ELLERMAN & PAPAYANNI LINES, LTD. v. IGRAF (SALES), LTD. (SEQUERRA, THIRD PARTY).

(1942) 73 Ll.L.Rep. 129

KING'S BENCH DIVISION.

Before Mr. Justice Atkinson.

Sale of goods (f.o.b.)-Freight-Purchase by defendants of cases of sardines-Shipment from Portugal in plaintiffs' steamer- Freight "payable upon shipment and to be paid ship or goods lost or not lost and if not paid upon shipment shipper's consignees and the goods to remain liable therefor"-Freight not paid on shipment -Goods insured by defendants for £4500, subsequently increased to £6500- Sale by defendants to third party-Payment: Net cash against documents, less allowances for import duty and landing charges-Part price paid by third party- Ship and cargo sunk-Agreement between defendants and third party that latter should claim under policy and that he should pay defendants balance of price, less certain allowances-Dispute as to whether third party agreed to pay freight-Claim by plaintiffs for freight admitted by defendants - Right of defendants to indemnity from third party-Subsequent discovery that vessel was sunk before contract with third party was entered into-Avoidance of contract-Effect- Restitutio - Judgment for defendants against third party for agreed sum- Defendants' costs in third-party proceedings -Failure to establish right to indemnity-Refusal by learned Judge to award costs incurred by defendants in defending plaintiffs' claim.