N Wm.CI Printers and 27, FI Just pul THE CONV Vendor and Pure' tion and Searches Properly Acts, li Court. By Edvv Conveyancing Ci Law, one of the ] Cherry, LL.B., UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LffiRARY BRETT'S s. C S MITED, .a7V Reporting I, E.C, >th, 2 1 J. id 1892 ; the ind Charges Registra- he Married Woman's h Notes and Rules of ter-at-Law, one of the femp^e, Barrister-at- Benjamin Lennard ENT LAWS -Laiv, LL.B. London Exhibitioner in Real 1869 ; Joint Author of Acts, 1883 " ; and of fporated Law Society, d livii'g law, and only r to enable the reader OF ENGLAND Universuy ; H.A Property and Eq " Gierke and Brt " Ltading Cises %* The i) ain idea to deal with past law to understand the present. 'I'hc Laiv 'Journal says, in the course of an exhaustive review: — "We are able confidently to recotnmend these Commentaries to sti'dents, with whom we venture to predict ihey will become deserveoly popular . . . Mr. Brett's Commentaries are thoroughly comprehensive, and we have Utile but praise for the manner in which he has discharged his self-imposed task. . . . We are of opinion that Mr. Brett has produced a work of very considerable merit." Third Edition, thoroughly revised, demy Svo, cloth, 165. BRETT'S LEADING CASES IN MODERN EQUITY. By Thomas Brett, of the Middle Temple, Harrister-at-Law, LL.I'., Joint Author of "Gierke and Brett's I on\eyanritig Acts." and late Lecturer on Equity to the Incorp .rated Laiv Society, &c., &c. Third Edition, revised to date. By J. D. Rogers, B.C.L., of the Inner Temple, and J. M. Dixon, of the Inner Temple, Barristers-at-Law. "There is no better book or one so good from which the student can learn the most important decisions of Couits of Equity di ring recent years.'" — Jiirist. Specially recommended as a text-book for "The Final" by the Solicitors' yo7ir>ial. Demy Svo., cloth, 15J. THE LAW OF LICENSING IN ENGLAND so far as it relates to the Retail Sale of Intoxicating Liqu .r-, and to Theatres and Music Halls. With a full Appendbc of Statutes. By John Bruce Willi.a.mso.n, of the Middle Temple and North Eastern Circuit, Barrisler-at-Law. Demy 8vo., cloth, 6s. ; cash price, ^s. ; postage, 5;/. THE REAL REPRESENTATIVE LAW, 1897 : being Part L of the Land Transfer Act, 1897, with Notes thereon, and a Discussion on .\dministration thereunder. By Amherst D. Tyssen, D.G.L., of the Inner Temple, Barrister-at-Law. Second Edition, revised, post 8vo., cloth, Zs. 6>i. \ THE LAW OP ARBITRATION ; being the Arbitration Act, 1889. With Notes of Statutes, Rules of Court, Forms and Cases, and an Index. Second Edition, ThoroughU Revised to date. By W. Of i ram Crewe, Solicitor, &c., with Honours H.T. 1866. " Meets a want which has been especially felt by those engaged in arbitration since the passing of the Act." — Lazu Ti»!ts. Third Edition, crown Svo., cloth, price $s. THE OFFICE OF MAGISTRATE. By Harold Wright, B.A., LL.B., of the Middle Temple, Barrister-at-Law, Stipendiary Magistrate for the Staffordshire Potteries, -Author of "A 1 reatise on the Bankruptcy Act, 1883," &c. "This little book contains a capital Epitome of the Duties of a Magistrate, written in popular language. It is fi.U of practical hints and suggestions." — Law Times. 21, FLEET STREET, LONDON, E.G. Wm. CLOWES A.ND SONS, Limited, LAW PUBLISHERS, Second and greatly improved Edition, demy 8vo., cloth, 6s. THE ENGLISH DEATH DUTIES. A Table showing at a glance the incidence of the Knglish Death Duties (the Probate, Legacy, Succession Account, the Temporary Estate Duties, and the Kstate Duties under the Finance Acts 1894 and 1896), with reference to the sections of Statutes imposing them, the Forms used in their payment, and at what date of death each or any become payable. With various useful notes and references to decisions. Designed as a meanj of easy and quick reference to these complicated duties. By K. Harris, of the Legacy and Succession Duty Department, Somerset House. Second Kdition, demy Svo., cloth, io.f. 6d. FRIENDLY SOCIETIES (THE LAW RELATING TO). Comprising the Friendly Societies Act, 1896, and the Collecting Societies and Industrial Assurance Companies Act, 1896, to_;ether with m Appendix containing Model Rules and the Forms appended to the Treasury Regulations, 1897. ^y ^- Baden Fi^i-LEK, B.A. (Oxon.), of the Inner Temple, Barrister-at-Law. Demy 8vo., cloth, 21^-. THE LAW AFFECTING SOLICITORS. A Treatise on the Law affecting Solicitors of the Siipr'-me Court. By Arthur P. Polev, B.A. (late Scholar of St. John's College, Oxford), of the Inner Temple and Midland Circuit, Barristcr-at-Law. With Appendix containing the Statutes bearing on the subject. Demy 8vo., cloth, 12.C 6ci. THE STOCK EXCHANGE (THE LAW AND PRACTICE OF). With -Appendices. Containing the Rules and Regulations annotated, and Forms of Instruments accompanying a Mortgage of Securities. By B. E. Spencer Brodhurst, M.A., B.C.L., of the Inner Temple, Barrister-at-Law. Cheap Edition, Illustrated, cloth gilt, lof. THE ORDER OF THE COIF. By Mr. Serjeant Pulling. ■' Under the above quaint, but appropriate, title, Serjeant Pulling has compiled a most interesting memoir of that grade in the legal professi n of which he will probably prove to be one of the last sur- vivors. . . . The introductory 1 hapter and that which follows it a'e a study in English Constitutional History. . . . The illustrations, eight in all, are admirable." — Antiquarian Aiagazine. Second Edition, demy 8vo., cloth, Z2S. dd, ERASER'S LAW OF LIBEL AND SLANDER. The Principles and Practice of the Law of Libel and Mander. With Suggestions on the Conduct of a Civil Action, Forms and Precedents, and all Statutes bearing on the subject. By Hugh Fraser, LL.D. of the Inner Temple and Nort'ern Circ lit, l!arr.ster-at-Law. "The book should be welcomed by the busy practitioner." — Law Times. " A good piece of work." — Laiv Journal. "A practitioner's book, and to practitioners . . . we can heartily commend it." — Law Notes. Royal 8vo., cloth, 25.?. MORTGAGES. A Concise Treatise on Mortgages, Pledges, and Liens. By Walter Ashburner, M.A., of Lincoln's Inn, Barrister-at-Law; late Fellow of Merton College Oxford. _ ^ ' " A short treatise on the law of Mortgages . . . has long been wanted, . . . and Mr. Ashburner's book will . . . be a welcome adjition to the lawyer's library. ... A highly creditable performance." — Laiv Times. Second Edition, revised, demy 8vo., cloth, 2o.r. THE LAW OF NUISANCES. With Statutory Appendix. By E. W. Garrett, M.A., of the Inner Temple and Midland Circuit, Barrister-at-Law. Now Ready, demy 8vo., cloth, 30J. ; cash price i^s., postage, dd. THOMSON'S COMPENDIUM OF MODERN EQUITY. Primarily for the use of Praciitioners in the Chancery Division— also for Bar Students and Candidates for Honours at the Law Institution. By Andrew Thomson, Esq., B.A., LL.D., Barrister-at-Law ; formerly Lecturer on Equity to the Incorporated Law Society ; and afterwards Professor of Equity to the Inns of Court, Author of a treatise on the Equity Practice of the County Court (with Precedents). Demy 8vo., cloth, 12J. 6rf. ADMIRALTY JURISDICTION & PRACTICE IN COUNTY COURTS (A TREATISE ON THE). By Francis William Raikks, LL.D., Cantab., of the Inner Temple, one of Her Majesty's Counsel, and Burleigh Dunbar Kilburn, M.A., Oxon., of the Inner Temple, Barrister-at-Law. Second Edition, royal 8vo., 1,100 pages, cloth, 25^. THE PRINCIPLES OF RATING as applied to Railways, Docks, Tramways, Gas and Water Works, Coal and other Mines, Electric Lighting Works, Manufactories, and other Hereditaments. W ith a complete Digest of Cases and all the important Statutes dealing with Local Rating. By Edwakd Bovle, of the Inner Temple, Barrister-at-Law, and G. Humi'HREYS- Davies, Fellow of the Surveyors' Institute, &c. 27, FLEET STREET, LONDON, E.G. OHARTERPARTIES AND BILLS OF LADING. BY THE SAME AUTHOR. Second Edition, revised. Demy Svo, 800 pj)., cloth, 80.?. THE MERCHANT SHIPPING ACT, 1894. With Copious Notes and Keferences to Decided Cases, and an exhaustive Index. By T. E. Scruttok, Esq., of the Middle Temple, Barrister-at-Law, Author of " Charterparties and Bills of Lading," etc. The aim of tlie author has been to render the Act, which is tlie longest ever passed by Parliament, acces- sible and intelligible both to lawyers and commercial men ; and by a copious index containing over 1600 entries, and by constant cross references to other j^arts of the Act, to make it as easy to find what is wanted as is possible in an Act of 7-18 clauses and 2l* schedules. *^* Tliis Act consolidates all the previous enactments of vierchant shipping. " Mr. Scruttiiii . . . has produced, to use his own words, ' a work- ing edition of the Act.' Taking it as a whole, we are inclined to think it is in its arrangement the easiest for reference of the editions which have come before us." — Shijiping Gazette. "The object of the scheme adopted is to make the volume useful to laymen and lawyers alike. This object has been achieved." — Law Times. THE CONTIUCT OF AFFREIGHTMENT AS EXPRESSKD IX CHAETERP ARTIES BILLS or LADING. T. E. SCRUTTON, M.A., LL.B., 01" THE MIDDLE TEMPLE, BARRISTEK-AT-LAW, BARSTOW SCHOLAR OF THE INNS OF COURT ; LATE SCHOLAR OF TRINITY COLLEGE, CAMBRIDGE ; AUTHOR OP " THE LAWS OF COPYRIGHT ; " " THE MERCHANT SHIPPING ACT, 1894 ; " ETC. FOURTH EDITION. LONDON: WILLIAM CLOWES AND SONS, LIMITED, 27, FLEET STREET. 1899. LONDON: PRINTED BY WILLIAM CLOWES AND SONS, Limited, STAMFORD STREET AND CHARING CROSS. 5cr IdZc 1899 TO LOED ESHER ^his M,ot\t, LARGELY COMPILED FROM HIS JUDGMENTS, 13 RESPECTFULLY DEDICATED BT THE AUTHOR. y^rrr- -'-^ -r^ .r* a o PREFACE TO THE FIEST EDITION. The last twenty years have seen what almost amounts to a revolution in the shipping trade of Great Britain. Steamers have supplanted sailing vessels, and the electric telegraph has placed the centres of commerce throughout the world in immediate communication with each other. At the begin- ning of this century, sailing ships made their one or two voyages a year, in a not too hurried manuer, and the time of those voyages varied enormously as winds and waves might ordain. The master, absent from his owners for long periods, and without any power of speedy communication with them, had in all foreign ports great jjowers and great responsibilities in the employment of the ship. Shipowners carried goods under the terms of a short and simple bill of lading. The introduction of steam and the telegraph have changed all this. Ocean cables enable the shipowner to direct the employment and transact the business of his ship abroad while sitting in his office in London, and the master has become little more than the chief navigator of the vessel. The mighty power of steam enables regular voyages to be calculated on, while the large amount of capital invested in a steamer and the keen competition it meets compel the shipowner to take advantage of every hour and minute that can be saved in its employ. Shipowners also have gradually protected themselves by exceptions in their bill of lading against every risk of liability for damage to the goods Vlll PREFACE TO TEE FIRST EDITION. they carry, until the bill of lading contains fifty or sixty lines of closely printed conditions and exceptions, and there appears to be no duty imposed on the fortunate shipowner but that of receiving the freight. This great commercial change seems to justify new works on commercial law, as compared with new editions of the old works whose value no one will question, but which were compiled under a different state of business relations. Re-editing, to satisfactorily adapt such works to modern commerce, must almost be re-writing. Cases such as Sewell V. Burdick, or Jackson v. The Union Marine Insurance Co., cannot, without a great want of proportion, be relegated to footnotes, and commercial practice has rendered obsolete much of the old learning. It is of very little use to set out the " ordinary authority of a master " as founded on cases before 1860, when in 1886 the master's functions in port have been reduced almost to the vanishing point. In the following pages I have therefore endeavoured to combine the statement of the law with an account of the commercial practice of to-day, and I have not scrupled to omit old authorities which have become by change of time obsolete : while I have set out what the law is in the absence of express agreement, I have also added to it the clauses in an ordinary bill of lading of the present day which supersede or modify it. T. E. S. I, Essex Court Temple, October 25, 188G. PREFACE TO THE FOURTH EDITION. The five years that have passed since the last edition have shown no diminution in the number of reported cases which the growing complexity of commercial transactions gives rise to. On the one hand it has been reserved for the closing years of the nineteenth century to witness the discussion and decision of what is "a day," {The Katij, 1895, P. 56,) and what " a weather working day," (BrancJceJoiv S.S. Co. V. HoU, 1897, 1 Q. B. 570,) for purposes of demurrage. On the other hand, while these lines are written, the Court of Appeal is considering, in The Vorticjern, how to adapt the old rule of " seaworthiness at the outset of the voyage for the whole of the voyage " to the development of commerce under which steamers on voyages from the East cannot at starting carry coal sufficient for the voyage home. Forms of contract are increasing in complexity. In the last century a bill of lading might be sufficiently expressed in a few lines, as witness the following : — " Shipped by the grace of God in good order and well con- ditioned by James in and upon the good ship called the Mary Borough, whereof is master under God for this present voyage, Captain David Morton, and now riding at anchor at the Burr of Senegal, and by God's grace bound for Georgey, South Carolina, to say twenty-four prime slaves, six prime women slaves, being marked and numbered as in the margin, and are to X PREFACE TO THE FOURTH EDITION. be delivered in the like good order, and well conditioned, at the aforesaid port of Georgey (the danger of tlie seas and mortality only excepted) and so God send the good ship to her desired port in safety. — Amen. — D. Mokton. In 1899 the Documentary Committee of the Chamber of Shipping presents us with the elaborate forms, some of which are set out in Appendix I. ; and the equally modern invention of Mutual Insurance and Protection Clubs, which by ingenuity almost amounting to genius had already been used to establish The Shij)ping Federation, is again called upon to endeavour to secure uniformity in the use of the new Documents. But the most important feature of the years since the last edition of this work has been the establishment of the Commercial Court. It may be open to question whether any important class of work should be specialised by either judges or counsel. Patent cases have their own peculiar counsel, but inflict themselves alike on the scientific aud the unscientific judge. The judge who in London has been deprived of the opportunity of trying any shipj)ing or insurance cases may find himself at Liverpool or Newcastle with a Commercial list to try. On the other hand, the business client, whose money is at stake and whose time and temper are consumed, declines to regard his case as intended to educate a judge, whose previous practice while at the bar has been in the main agricultural or libellous, in the mysteries of reinsurance policies. He did not under- stand or appreciate the law, in its delays, which decided his case when its main surviving interest was who was to pay the costs, or in its rules of evidence which required expensive lawyers to obtain pages of not too relevant evidence on lengthy commissions at his expense. Com- mercial business was leaving the law courts ; and the lay arbitrator with a complete and practical knowledge of the subject-matter in dispute, and a thorough contempt for the PREFACE TO THE FOURTH EDITION. XI technical niceties of the law, was rapidly drawing to his tribunal the greater part of the commercial disputes of this country. The history of the Commercial Court has shown that with judges thoroughly acquainted with business and thoroughly determined that the cases before them shall be decided with the despatch and simplicity that business men require, the heavy commercial cases which, were the backbone of the Guildhall sittings before the Judicature Acts, and which had not been attracted to the Law Courts in the Strand, have found an appropriate tribunal and one commanding the con6dence of commercial suitors. It is easy to criticise some of the methods of the Court. If Equity in its origin was measured by the Chancellor's foot, commercial procedure shows a tendency sometimes to short cuts and hasty methods which, when photographed by the shorthand writer and microscopically examined in the more serene and leisurely air of the Court of Appeal, look rough and crude. But substantial and speedy justice is done, and is done with the confidence and approval of the lay clients whose business disputes are settled, and whose money depends on the decisions of the Court. In one respect one of the fundamental principles of the Court has been departed from. Its original idea was that the same judge should control the proceedings in a case from start to finish. The judge who made the interlocutory orders would do so knowing that he would himself try the case ; the judge who tried the case would remember its interlocutory history. This very valuable feature of the Court has not been sufhciently respected. In the Autumn Sittings of 1898 three judges sat in the Commercial Court, each for about twenty days, and as a result, the judge who made the interlocutory orders rarely tried the case. Tlie judges on the Election Rota do not go on circuit during their year of ojBfice ; if the same privilege could be conferred on the judge Xll PREFACE TO TEE FOURTH EDITION. taking- the Commercial list, the first principles of the Court would be more eflectively carried out. One of the welcome features of the Court to commercial men is the fixing of a day for trial : if this feature could be made more certain by calling upon another judge on the Commercial Rota to take the day's cases, when owing to any unexpectedly heavy cause there was no chance of their being reached by the judge taking the list, a great boon would be conferred on litigants. In no class of cases is it more true that the time of the parties and witnesses is money which should not be wasted ; and if a series of cases are each a day late, when one day's work by another judge, given in time, would keep the whole series up to time, there seems to be an unnecessary waste of the time of the parties to the disputes before the Court. It would be well, also, if the scope of the Commercial Court were extended by enabling one, or if necessary two, of the judges on the Commercial Rota, to hear and decide the special cases stated by arbitrators in commercial disputes. In the preparation of this edition and especially in the preparation of the Table of Cases and Index, I have had much valuable assistance from my friend Mr. A. B. Langridge, of the Middle Temple, which I should desire gratefully to acknowledge. T. E. S. 3, Temple Gardens, March 8, 1899. CONTENTS. Section I. — Nature and Constkuction of the Contract Article 1. — Nature of the Contract Article 2. — Nature and Effect of a Charterparty Article 3. —The Bill of Lading Article 4. — Effect of Illegality on a Contract of Aflreightmeut Article 5. — Effects of Blockade ...... Article 6. — Construction of the Contract : on what principle Article 7. — Construction of the Contract : by what law . Article 8. — Evidence of Usage, when admissible Article 9. — Printed Forms of Contract .... Article 10. — Alterations in Contract ..... Section II. — Parties to the Contract . Article 11. — Who are Principals ..... Article 12. — When an Agent binds his Principal Article 13. — When Agent is personally liable as Principal Article 14. — Agent for undisclosed Principal Article 15. — Agent for Crown . Article 16. — Classes of Agents . («.) — Managing Owner . {b.) — Broker .... (c.) — Captain. Article 17. — Who are bound by Charters . (a.) — Part-owner of Shares in Sliip (&.) — Purchaser (c.) — Mortgagor or Mortgagee Article 18. — Position of Shipper of goods on Chartered Ship (a.) — Where the Shipper is also the Charterer (6.) Where the Shipper is other than the Charterer (c.) Indorsee from Shipper Article 19. — Incorporation of Charter in Bill of Lading Article 20. — Authority of Master or Broker to sign Bills of Lading I. — Where no goods are shipped . . . . PAGE 1—22 1—3 3—7 7—9 9, 10 11 11—13 13—16 16—20 21, 22 22 23—58 23—26 26,27 27—30 30 30 30—34 31, 32 32—34 34 35—37 35 35 36,37 37—47 37—42 42—45 45—47 47—49 50—55 50—52 XIV CONTENTS. 11. — Where goods are shipped : (1.) — The Ship Bot being chartered ... 52 (2.) — The Ship being chartered .... 53 — 55 Article 21. — Statutory liability of Persons signing Bill of Lading ........ 56 Article 22.— Through Bills of Lading 57, 58 Section IIL — Eepkesentations .and Undeu- takings in the contract Article 23. — Kepresentatiuns and Conditions Precedent . Article 24. — Ship's Class on the Register Article 25. — Ship's Tonnage, or Dead Weight Capacity . Article 26. — Ship's Name and National Character . Article 27. — Whereabouts of Ship, and Time of Sailing . Article 28. — Conditions implied in the Contract Article 29. — Undertaking of Seaworthiness Article 30. — Undertaking of Reasonable Dispatch . Article 31. — Undertaking by Shipper not to ship dangerous goods without notice Section IV. — Performance of Contract : Loading Article 32. — Performance of Contract before Loading Article 33. — To proceed to^a port and there load Article 34. — To proceed to a safe port Article 35. — -To proceed to a port as ordered . Article 36. — So near as she can safely get Article 37.— Safely . , . . ^ . Article 38. — Loading under a Charter. Duty of Shipowner Article 31). — The place where the carrying voyage is to begin Article 40.— Readiness to load ..... Article 41. — Notice to Charterers of readiness to load Article 42. — Duty of Charterers to furnish Cargo . Article 43. — Alongside Article 44. — Charterer's refusal to load Article 45. — Loading Article 46. — A full and complete Cargo Article 4:1 . — Broken Stowage . Article 48. — -Deck Cargo . Article 49. — Ballast and Dunnage . Article 50. — Loading and Stevedores Article 51. — Mate's receipt Article 52. — Shipped in Good Condition, unknown . Article 53. — Cesser Clause . '". Article 54. — Demurrage and Cesser Clause Quantity and Quality 59—80 59—62 62,63 63—65 65 66—68 68 69—74 74—78 78—80 81—131 81 81—83 83 83,84 84—87 87—92 92 92—98 98,99 99 100—103 103. 104 104. 105 105—107 107—109 109 109. 110 110. 111 111—114 114—117 117, 118 119—121 121—131 CONTENT^. XV Section V. — The Bill of Lading as a Document op Title Article 55. — Signature of the Bill of Lading . Article 56. — Indorsement of the Bill of Lading Article 57. — Effects of Indorsement Article 58. — 'Effects by Mercantile Custom Article 59. — Intention to transfer the whole Property Article 60. — -Unpaid Vendor's Securities ... Article Ql. — ^\.es,er\3i.i\oxi oi Jus Disponendi . Article 62.— Conditional Indorsement Article 63. — Stoppage in transitu .... Article 64. — -Who may Stop in transitu . Article 65. — Insolvency of Vendee .... Article 66.— Against whom the Right may be exercised Article 67. — Indorsement of Document of Title and Stoppage Article 68.— The Transit Article 69. — When the Transit ends Article 70. — Notice to Stop, how given . Article 71. — -Master's Duty on receiving notice Article 72. — Indorsement of Bill of Lading as a Mortgage Article 73. — Indorsement of Bill of Lading as a Pledge Article 74. — Ineffectual Indorsements Article 75.— Bills of Lading Act .... Article 76. — ^Position of Indorsee .... Article 77. — Admiralty Jurisdiction Act . Section VI. — Liability of Shipowner fok Loss OF, OR Damage to, Goods carried Article 78. — ^Liability of Shipowner in absence of Express Stipulations 164 — 168 Article 79.— Effect of excepted Perils 168 — 175 Article 80.— Act of God 175, 176 Article 81. — Queen's Enemies 176, 177 Article 82. — ^Restraints of Princes 177 — 179 Article 83.— Perils of the Sea 179—184 Article 84.— Strikes 184, 185 Article 85. — Pirates, Robbers, Thieves 185, 186 Article 86. — Lealsage, Breakage, &c. ..... 186, 187 Article 87.— Fire 187 Article 88. — Barratry 187, 188 Article 89.— Negligence 188—193 Article 90.— Jettison 193 Article 91. — Operations of Exceptions ..... 193 — 195 Article 92. — Who can sue for failure to carry Goods safely . 195 Article 93. — Who can be sued for negligent carriage of the Goods 195, 196 I 2 132—163 132 132, 133 133, 134 134, 135 135, 136 136 137 137—141 141, 142 142, 143 143, 144 144—146 146—149 149—151 151—155 155 155, 156 156 156, 157 157, 158 158—160 160 160—163 164—196 XVI CONTENTS. Section VII. — The Contract : Performance of the The Voyage Article 04.- Article 95.- Article 96.- Article 97.- Artide 98.- Article 99.— Art cle 100, Ar Ar\ tide tide Artide 101, Artide 102. Artide 103. 104, 105, Artide 106. Artide 107. ^7- Saville v. Campion (2 B. & Aid. 503) 6 Saxon SS. Co. v. Union SS. Co. (4 Com. Cas. 29 ; 68 L. J. Q. B. 58; 15 Times L. R. 47) 238, 241, 289, 290 Scaife v. Tobin (3 B. & Ad. 523) 226 Scaramanga v. English (1 Com. Cas. 99) 290, 291 V. Marquand (53 L. T. 810 ; 5 Asp. Mar. C, N. S. 506) 227 V. Stamp (5 C. P. D. 295 ; 49 L. J. C. P. 674; 42 L. T. 840 ; 28 W. R. 691 ; 4 Asp. Mar. C, N. S. 295) 68, 203, 204, 205 Schilizzi v. Derry (4 E. & B. 873 ; 24 L. J. Q. B. 193 ; 1 Jur., N. S. 795) 85, 8C> Schloss V. Heriot (14 C. B., N. S. 59) 216 Schmaltz v. Avery (16 Q. B. 655 ; 20 L. J. Q. B. 228 ; 15 Jur. 291) 24, 25, 26, 28, 2?^ TABLE OF CASES. \l PAGE Scbmi.U V. Eoyal Mail SS. Co. (45 L. J. Q. B. 646 ; 4 Asp. Mar. C, N. S. 217 (n.)) . . . 172, 187, 193, 194, 216, 218, 219, 359 Schotsraans v. L. & Y. E. Co. (L. R. 2 Ch. 332 ; 36 L. J. Ch. 361 ; 16 L. T. 189 ; 15 W. R. 537 ; 2 Asp. Mar..C., 0. S. 485) . 149, 150 Schultz V. Leidemann (see Leidemann v. Schultz). Schuster v. Fletcher (3 Q. B. D. 418 ; 47 L. J. Q. B. 530 ; 26 W. R. 756 ; 3 Asp. Mar. C, N. S. 577) 222 V. McKellar (7 E. & B. 704; 26 L. J. Q. B. 281 ; 3 Jur., N. S. 1320) 43, 45, 275 Scotson V. Pegg (6 H. & K 295; 30 L. J. Ex. 225 ; 3 L. T. 753 ; 9 W. R. 280) 250 Scott V. Pettit (3 B. & P. 469) 151 Scout, The (L. K. 3 A. & E. 512 ; 41 L. J. Ad. 42 ; 26 L. T. 371 ; 20 W. R. 617 ; 1 Asp. Mar. C, N. S. 258) 228 Scovell V. Bevan (19 Q. B. D. 428 ; 56 L. J. Q. B. 604 ; 36 W. R. 301) 302, 347 Scrutton v. Childs (36 L. T. 212 ; 3 Asp. Mar. C, N. S. 373) . 21 Seeger v. Duthie (8 C. B., N. S. 45 ; 30 L. J. C. P. 65 ; 9 W. R. 166 ; 1 Asp. Mar. C, O. S. 3) 62, 66, 274 Selfv. L. B. &S. C. R. (42L. T. 173) 58 Serraino v. Campbell ((1891) 1 Q. B. 283 ; 60 L. J. Q. B. 303 ; 64 L. T. 615 ; 39 W. R. 356 ; 7 Asp. Mar. C, K S. 48) . . 47, 49, 249 Seville Co. v. Colvils (15 Sc. Sess. C. 4th Ser. 616) . . .68, 69, 70 Sewell V. Burdick (10 App. C. 74 ; 54 L. J. Q. B. 156 ; 52 L. T. 445 ; 33 W. R. 461 ; 5 Asp. Mar. C, N. S. 376) . . 7, 38, 132, 133, 134, 135, 146, 156, 157, 158, 159, 160, 161, 162, 163, 282 Shadforth v. Cory (32 L. J. Q. B. 379 ; 8 L. T. 736 ; 11 W. R. 918 ; 1 Asp. Mar. C, 0. S. 363) 98 V. Higgiu (3 Camp. 385) 66 Shaiid V. Sanderson (4 H. & N. 381 ; 28 L. J. l]x. 278) . . 275, 276 Sharp V. Gibbs (1 H. & N. 801) 66 Shaw, Savill v. Aitken (1 C. & E. 195) 107 Shepard v. De Bernales (13 East, 565) 280 Shepherd v. Harrisou (L. R. 5 H. L. 116 ; 40 L. J. Q. B. 148 ; 24 L. T. 857 ; 20 W. R. 1 ; 1 Asp. Mar. C, N. S. 66) . . 136, 137, 138, 139 V. Kottgen (2 C. P. D. 578 ; 47 L. J. C. P. 67 ; 37 L. T. 618 ; 26 W. R. 120 ; 3 Asp. Mar. C, N. S. 544) . . 216, 220, 221 Shield V. Wilkins (5 Ex. 304 ; 19 L. J. Ex. 238) . . .87, 89, 90 Shields V. Davis (6 Taunt. 65 ; 4 Camp. 119) .... 262, 274 Shillito, The (3 Com. Cas. 44) 55 Shipton V. Thornton (9 A. & E. 314; 1 P. & D. 216) . . 211,259 Shirwell v. Shaplock (2 Chit. 397) 233 Short V. Simpson (L. R. 1 C. P. 248 ; 35 L. J. C. P. 147 ; 13 L. T. 674 ; 14 W. R. 307 ; 2 Asp. Mar. C, 0. S. 307) . . 134, 155, 159 Sickens v. Irving (7 C. B., N. S. 165 ; 29 L. J. C. P. 25 ; 6 Jur., N. S. 200) 34 Sieveking v. Maas (6 E. & B. 670; 25 L. J. Q. B. 358: 2 Jur., N. S. 515) 84 Simmonds v. Wiiite (2 B. & C. 805) 224, 226 Siordet v. Hall (4 Bing. 607 ; 1 M. & P. 561) .... 172, 176 Sjoerds v. Luscombe (16 East, 201) 245, 248 Skandiuav, The (51 L. J. Ad. 93) 17,106,269 Slubey V. Hey ward (2 H. Bl. 504) 152 lii TABLE OF CASES. PAGE Small V. Moates (9 Bine;. 574 ; 2 M. & Scott, GT-i) . . 38, 39, 285 Smidt V. Tiden (L. K. 9 Q. B. 446 ; 43 L. J. Q. B. 199 ; 30 L. T. 891 ; 22 W. R, 913) 276, 277, 280 Smith V. Bedouin Navigation Co. ((1896) A. C. 70 ; 65 L. J. P. C. 8 ; 12 Times L. R. 65) 50, 117, 194 V. Darfc (14 Q. B. D. 105 ; 54 L. J. Q. B. 121 ; 52 L. T. 218 ; 33 W. R. 455 ; 5 Asp. Mar. C, N. S. 360) . 66, 67, 68, 82, 83, 174 V. Drummond (1 C. & E. 100) 7 V. Goss (1 Camp. 282) 145, 153 V. M'Guire (3 H. & N. 554 ; 1 F. & F. 199) . 27, 290, 292 V. Plumer (1 B. & Aid. 575) 273, 274 V. Pyraan ((1891) 1 Q. B. 742 ; GO L. J. Q. B. 127 ; 63 L. T. 642 ; 39 W. R. 318 ; 7 Asp. M. C, N. S. 7) . . . 256, 258 V. Rosario Nitrate Co. ((1894) 1 Q. B. 174; 70 L. T. 68; 7 Asp. M. C, N.S. 417) 101,169 V. Shepherd (Abbott, 13th ed., pp. 459, 477) . . .171 V. Sievekin^ (5 E. & B. 589 ; 24 L. J. Q. B. 257) . . 47, 249 V. Tregarthen (56 L. J. Q. B. 437 ; 57 L. T. 58 ; 35 W. R. 665 ; W. N. (1887) 124 ; 6 Asp. Mar. C, N. S. 137) . 56, 294, 295 V. Wilson (6 M. & S. 78; 8 East, 437) . . . 101, 103 Smurthwaite v. Wilkins (11 C. B., N. S. 842; 31 L. J. C. P. 214; 7 L. T. 65 ; 10 W. R. 386 ; 1 Asp. Mar. C, 0. S. 198, 244) 159, 282 Scares v. Rahn (3 Moore, P. C. 1) 214 Soblomsten, The (L. R. 1 A. & E. 293 ; 36 L. J. Ad. 5 ; 15 L. T. 393 ; 15 W. R. 591 ; 2 Asp. Mar. C, 0. S. 436) 198, 199, 210, 259, 260, 264, 265, 266 Sodergren v. Flight (6 East, 622) 285 Southampton Steam Coll. Co. v. Clark (L. R. 6 Ex. 53 ; 40 L. J. Ex. 8 ; 19 W. R. 214 ; 3 Asp. Mar. C, 0. S. 197) . . 110, 111, 270 Southcote V. Bennett (4 Rep. 83 b ; Cro. Eliz. 815) . . .167 Southgate, The ((] 893) P. 329) 192 Southwell V. Bowditch (1 C. P. D. 374 ; 45 L. J. C. P. 630 ; 35 L. T. 196 ; 24 W. R. 275) 27, 30 Spaight V. Farnworth (5 Q.B. D. 115; 49 L. J. Q. B. 346 ; 42 L.T. 296 ; 28 W. R. 508 ; 4 Asp. Mar. C, N. S. 251) . . 263, 268, 269 Spalding v. Ruding (6 Beav. 376 ; 15 L. J. Cb. 374) . . .147 Sparrow v. Paris (7 H. & N. 594 ; 31 L. J. Ex. 137 ; 5 L. T. 799 ; 8 Jur., N. S. 391) 290 Spence v. Chodwick (10 Q. B. 517; 16 L. J. Q. B. 313 ; 11 Jur. 872) 176, 177, 183 Spencer's Case ((1583): cited 1 Smith, L. C. Ed. 10, p. 54) . . 35 Splidt V. Bowles (10 East, 279) 35 Staffordshire, The (L. R. 4 P. C. 194 ; 41 L. J. Ad. 49 ; 27 L. T. 46 ; 20 W. R. 557 ; 1 Asp. Mar. C, N. S. 365) . . . .213, 214 Stainbankv. Shepard (13 C. B. 418; 22 L. J. Ex. 341; 17 Jur. 1032) 213 Staniforth v. Lyall (7 Bine. 169 ; 4 M. & P. 829) . . . 290, 291 Stanton v. Austin (L. R. 7 C. P. 651 ; 41 L. J. C. P. 218) . . 99 V. Richardson (L. R. 9 C. P. 390 ; 45 L. J. C. P. 78 ; 33 L. T. 193 ; 24 W. R. 324 ; 3 Asp. Mar. C, N. S. 23) . . . 69, 70, 72 Steel V. Lester (3 C. P. D. 121 ; 47 L. J. C. P. 43 ; 37 L. T. 642 ; 26 W. R. 212; 3Asp. Mar.C, N. S. 537) 5,6 V. State Line Co. (3 App. C. 72 ; 37 L. T. 333 ; 3 Asp. Mar. C, N. S. 516) 68, 69, 71, 165, 189 TABLE OF CASES. liii PAGE Steele v. Dixon (3 Sc. Sess. Cas. 4th Series, 1009) .... 31 Steinman v. Angier Line ((1891) 1 Q. B. 619 ; GO L. J. Q. B. 425 ; 64 L. T. 613 ; 39 W. R. 392 ; 7 T. L. R. 398 ; 7 Asp. M. C, N. S. 40) 186 Stephens v. Harris (57 L. J. Q. B. 203 ; 36 W. E. 185 ; 6 Asp. Mar. C, N. S. 192 ; 57 L. T. 618) .... 100, 101, 103, 185 V. Macleod (19 Sc. Sess. Cas. 4th Series, 38) . . 96, 107 V. Wintringham (3 Com. Cas. 169) Stettin, The (14 P. D. 142 ; 58 L. J. Ad. 81 W. E. 96 ; 6 Asp. Mar. C, X. S. 395) . Stevenson v. York (2 Chit. 570) .... Stewart v. Merchants' Ins. Co. (16 Q. B. D. 619 ; 55 L 53 L. T. 892 ; 5 Asp. Mar. C, N. S. 506) V. Eogerson (L. E. 6 C. P. 424) 17, 19, 104, 263 61 L. T. 200; 38 14, 232 . 240, 243 B. 81; 11, 21 . 94 191; 219, 226 518) 250 Q. B. — V. West India Co. (L. E. 8 Q. B. 362 ; 42 L. J. 28 L. T. 742 ; 21 W. E. 953 ; 2 Asp. Mar. C, N. S. 32) . Stindt V. Eoberts (5 D. & L. 460 ; 17 L. J. Q. B. 166 ; 12 Jur, Stock V. Inglis (see Inglis v. Stock). Storer v. Gordon (3 M. & S. 308) 10 Stornoway, The (51 L. J. Ad. 27 ; 46 L. T. 773 ; 4 Asp. Mar. C, N. S. 529) 42, 286 Strahan v. Gabriel (12 Ch. D. 590) 94, 95, 98 Straker v. Kidd (3 Q. B. D. 223 ; 47 L. J. Q. B. 365 ; 26 W. E. 511 ; 4 Asp. Mar. C, N. S. 34 (n.)) 48 Strang v. Scott (14 App. Cas. 601 ; 59 L. J. P. C. 1 ; 61 L. T. 597 ; 6 Asp. M. C, N. S. 419) 216,217,224,225 Stringer w. English and Scottish Ins. Co. (L. R. 5 Q. B. 599; 39 L. J. Q. B. 214 ; 22 L. T. 802 ; 18 W. E. 1201 ; 3 Asp. Mar. C, 0. S. 440) 177 Strong V. Hart (6 B. & C. 160; 2 C. & P. 55) 280 Strugnell v. Friedrichsen (12 C. B., N. S. 452 ; 9 Jur., N. S. 77) . 108 Stuart V. British & African Navigation Co. (2 Asp. M. C, N. S. 497 ; 32 L. T. 257) 174, 204 Stumore v. Breen (12 App. Cas. 698 ; 56 L. J. Q. B. 401) . 34, 54, 56 Suart V. Bigland (not reported) 253, 270 V. Haigh (9 Times L. E. 488) 28 Sully V. Duranty (3 H. & C. 270 ; 33 L. J. Ex. 319) . . .243 Sultan, Cargo Ex (Swa. 504 ; 5 Jar., N. S. 1060) . . 212, 213, 214 Svensden v. Wallace (10 App. C. 404 ; 13 Q. B. D. 69 ; 54 L. J. Q. B. 497 ; 52 L. T. 901 ; 5 Asp. Mar. C, N. S. 453) 210, 216, 222, 223, 224 Swainston v. Garrick (2 L. J. Ex., N. S. 255) HI Swan V. Barber (5 Ex. D. 130 ; 49 L. J. Ex. 253 ; 42 L. T. 490 ; 28 W. E. 563 ; 4 Asp. Mar. C, N. S. 264) . . . 268, 276, 287 Sweeting v. Darthez (14 C. B. 538 ; 23 L. J. C. P. 131 ; 18 Jur. 958) 243, 270 Symons v. Darknoll (Palmer, 523) 168 Talca, The (5 P. D. 169 ; 29 W. E. 123 ; 4 Asp. Mar. C, N. S. 226) 35 Tamvaco v. Simpson (L. E. 1 C. P. 363 ; 35 L. J. C. P. 196 ; 14 L. T. 893 ; 14 W. E. 376 ; 2 Asp. Mar. C, 0. S. 249, 383) . . 256, 284, 286 V. Timothy (1 C. & E. 1) 166 liv TABLE OF CASES. PAGE Tancred v. Delagoa Bay Go. (23 Q. B. D. 239 ; 5S L. J. Q. B. 459 ; 61 L. T. 229 ; 38 W. R. 15) 277 Tanner v. Phillips (42 L. J. Ch. 125 ; 27 L. T. 480 ; 21 W. E. 08 ; 1 Asp. Mcar. 0., N. S. 448) 256, 279 V. Scovell (14 M. & W. 28 ; 14 L. J. Ex. 321) . . . 152 Tapley v. Martens (8 T. 11. 451) 280 Tapscott V. Balfour (L. R. 8 C. P. 46 ; 42 L. J. C. P. 16 ; 27 L. T. 710 ; 21 W. R. 245 ; 1 Asp. Mar. C, N. S. 501) 93, 94, 95, 96, 98, 243, 247 Tarrabochia v. Hickie (1 H. & N. 183; 26 L. J. Ex. 26) . 66, 75, 76 Tasmania, The (13 P. D. 110; 57 L. J. Ad. 49; 59 L. T. 263; 6 Asp. Mar. C, N. S. 305) 4, 229 Tate V. Hyslop (15 Q. B. P. 368 ; 54 L. J. Q. B. 592 ; 53 L. T. 581) 166 V. Meek (2 Moore, 278 ; 5 Asp. Mar. C, N. S. 487) . . 270- Tatbani v. Hodgson (6 T. R. 656) 183, 184 Tattersall v. Nat. SS. Co. (12 Q. B. D. 297 ; 53 L. J. Q. B. 332 ; 50 L. T. 299 ; 5 Asp. Mar. C, N. S. 206) . . .69, 72, 74, 173, 189' Taubman v. Pacific SS. Co. (26 L. T. 704 ; 1 Asp. Mar. C, N. S. 336) 172 Taylor v. Budgett (not reported) (1886) 341 V. Clay (9 Q. B. 713 ; 10 L. J. Q. B. 44; 11 Jur. 277) 246, 291 V. Dunbar (L. R. 4 C. P. 206 ; 38 L. J. C. P. 178 ; 17 W. R. 382) 171, 180, 184 V. Liverpool SS. Co. (L. R. 9 Q. B. 546 ; 43 L. J. Q. B. 205 ; 30 L. T. 714 ; 22 W. R. 752 ; 2 Asp. Mar. C, N. S. 275) . 173, 185. V. Perrin (H. L., not reported) ...... 47 Teutonia, The (L. R. 4 P. C. 171; 41 L. J. Ad. 57; 26 L. T. 48; 20 W. R. 261 ; 1 Asp. Mar. C, N. S. 214) . 10, 83, 178, 206, 207, 259, 260- Thames, The (63 L. T. 353 ; 6 Asp. M. C, N. S. 536) ... 36 Tbames and Mersey Insurance Co. v. Hamilton (12 App. C. 484; 56 L. J. Q. B. 620 ; 57 L. T. 695 ; 30 W. R. 337 ; Asp. Mar. C, N. S. 200) 171, 179, 180, 181, 182, 184 Tharsis Sulphur Co. v. Culliford (22 W. R. 46) . . . . 42 — V. Morel ((1891) 2 Q. B. 647 ; 65 L. T. 659 ; 61 L. J. Q. B. 11 ; 40 W. R. 58 ; 7 T. L. R. 704 ; 7 Asp. M. C, N. S. 106) 93, 94, 95, 96, 98, 239, 243- Thiis V. Byers (1 Q. B. D. 244 ; 45 L. J. Q. B. 511 ; 34 L. T. 526 ; 24 W. R. 611 ; 3 Asp. Mar. C, N. S. 147) .... 97, 243- Thin V. Richards ((1892) 2 Q. B. 141 ; 62 L. J. Q. B. 39 ; 60 L. T. 584 ; 40 W. R. 017 ; 8 Times L. R. 571) . . . 09, 70, 71, 73 Thomas v. Clarke (2 Starkie, 450) 108 V. Lewis (4 Ex. D 18 ; 48 L. J. Ex. 7 ; 39 L. T. 069 ; 27 W. E. Ill ; 4 Asp. Mar. C, N. S. 51) 31, 32, 34 V. Rhymney Ry. Co. (L. R. 6 Q. B. 260 ; 40 L. J. Q. B. 89; 24L. T. 145; 19 W. R. 477) 57 Thompson v. Brown (7 Taunt. 056 ; 1 Moore, 358) .... 12 V. Dominy (14 M. & W. 403 ; 14 L. J. Ex. 320) . . 158 V. Gillespy (5 E. & B. 209 ; 24 L. J. Q. B. 340) . 197, 198 . V. Palmer ((1893) 2 Q. B. 80; 62 L. J. Q. B. 502 ; 69 L. T. 366 ; 42 W. R. 22) 300 V. Small (1 C. B. 328 ; 14 L. J. C. P. 157) . . .284 V. Trail (5 B. & C. 36 ; 2 C. & P. 334) . . 115, 150, 253 V. White (1898, unreporte-l) 236 V. Whitmore (3 Taunt. 227; 182: TABLE OF CASES. Iv PAGE Thomson v. Davenport (9 B. & C. 78 ; 2 Smith, L. C. ed. 10, p. 368) 30 Thorman v. Burt (1 C. & E. 596 ; 5 Asp. Mar. C, N. S. 563 ; 54 L. T. 349) 50, 51, 56 Thornton v. Fairlie (8 Taunt. 354 ; 2 Moore, 397) . . . .264 Thorogood v. Bryan (8 C. B. 115 ; 18 L. J. C. P. 336) . . .229 Thorsen v. M'Dowall (19 Sc. Sess. C. 743) 236 Thrift V. Youle (2 C. P. D. 432 ; 46 L. J. C. P. 402 ; 36 L. T. 114 ; 3 Asp. Mar. C, N. S. 357) 186, 187 Thrunscoe, The ((1897) P. 301 ; 77 L. T. 407 ; 46 W. R. 175 ; 8 Asp. M. C, N. S. 313 ; 13 Times L. R. 566) 182 Thyatira, The (8 P. D. 155 ; 58 L. J. Ad. 85 ; 49 L. T. 409 ; 32 W. R. 276 ; 5 Asp. Mar. C, N. S. 147, 178) . . . . 257 Tigress, The (B. & L. 38 ; 32 L. J. Ad. 97 ; 8 L. T. 117 ; 11 W. R. 538 ; 1 Asp. Mar. C, 0. S. 323) . . . 144, 146, 156, 162, 232 Tillett V. Cwm Avon (2 Times L. R. 675) ... 95, 247, 250 Tindall v. Taylor (4 E. & B. 219 ; 24 L. J. Q. B. 12 ; 1 Jur., N. S. 112) 253 Tobin V. Crawford (9 M. & W. 716 ; 12 L. J. Ex. 490) . . 273 Tonnelier v. Smith (2 Com. Cas. 258 ; 8 Asp. M. C, N. S. 327 ; 13 Times L. R. 560) 272 Touteng v. Hubbard (3 B. & P. 291) 75, 77, 78 Towse V. Henderson (4 Ex. 890 ; 19 L. J. Ex. 163) . . 73, 111 Trent and Mersey Navigation Board v. Ward (3 Esp. 127 ; 4 Dougl. 287) 168 Trindade v. Levy (2 P. & P. 441) 87 Trinity House v. Clark (4 M. & S. 288) 4, 7 Trouson v. Dent (8 Moore, P. C. 419) . . . 195, 200, 208, 209 Tucker v. Humphrey (4 Bing. 156) 157 Tully V. Howling (2 Q. B. D. 182 ; 46 L. J. Q. B. 388 ; 36 L. T. 163 ; 25 W. R. 290 ; 3 Asp. Mar. C, N. S. 368) . . .70, 72, 74, 75 V. Terry (L. R. 8 C. P. 679 ; 42 L. J. C. P. 240 ; 29 L. T. 36 ; 2 Asp. Mar. C, N. S. 61) 118, 263, 269, 270 Turgot, The (11 P. D. 21 ; 54 L. T. 276 ; 34 W. R. 552 ; 5 Asd. Mar. C, N. S. 548) 198, 199 Turner v. Barlow (3 F. & F. 946) 272 V. Trustees of Liverpool Dock (6 Ex. 543 ; 20 L. J. Ex. 393) 138, 139, 140, 268 U. Ulysses, Cargo, Ex The (13 P. D. 205 ; 6 Asp. Mar. C, N. R. 354) 227 Undaunted, The (11 P. D. 46 ; 55 L. J. Ad. 24 ; 54 L. T. 542 ; 34 W. R. 686 ; 5 Asp. Mar. C, N. S. 580) 70 Unwin v. Wolseley (1 T. R. 674) 30 Valente v. Gibbs (6 C. B., N. S. 270 ; 28 L. J. C. P. 229; 5 Jur., N. S. 1213) 82 Valieri v. Boyland (L. R. 1. C. P. 382 ; 35 L. J. C. P. 215 ; 14 L. T. 362 ; 14 W. R. 637 ; 2 Asp. Mar. C, 0. S. 336) .... 56 Valpy V. Gibson (4 C. B. 837 ; 16 L. J. C. P. 241) . . . .153 Van Baggen v. Baines (9 Ex. 543 ; 23 L. J. Ex. 213) . . 66, 67 Ivi TABLE OF CASES. PAGE Van Casteel v. Booker (2 Ex. G91 ; 18 L. J. Ex. 9) . . . 139, 150 Vanderspar v. Duncan (8 Times L. E. 30 ; W. N. (1891) 178) . . 108 Vertueu. Jewell (4 Camp. 31) 143,144,147 Victor, The (Lush. 72 ; 2 Asp. Mar. C, 0. S. 261) . . . .228 Village Belle, The (30 L. T. 232 ; 2 Asp, Mar. C, N. S. 228) . 101 Vindobala, The (14 P. D. 50 ; 58 L. J. Ad. 51 ; 60 L. T. 657 : 6 Asp. Mar. C, N. S. 376 ; 37 W. R. 409) .... Vivieime, The (12 P. D. 185 ; 56 L. J. Ad. 107 ; 57 L. T. 316 : 36 W. R. 110 ; 6 Asp. Mar. C, N. S. 178) .... Vlierboom v. Chapman (13 M. & W. 230 ; 13 L. J. Ex. 384 ; 8 Jur. 811) . . . • 209, 265 Vogemann v. Bisley (2 Com. Cas. 81 ; 13 Times L. R. 172) . . 270 Vortigern, The (15 Times L. R. 259). See Addenda. W. Wagstafif V. Anderson (5 C. P. D. ] 71 ; 49 L. J. C. P. 485 ; 42 L. T. 720 ; 28 W. R. 856 ; 4 Asp. Mar. C, N. S. 290) . . 29, 38, 42, 44, 112, 209, 275 Waikato, The ((1899) 1 Q. B. 50 ; 68 L. J. Q. B. 1 ; 79 L. T. 326 ; 4 Com. Cas. 10 ; 15 Times L. R. 33) 12, 68, 69, 70, 73, 172, 174 Wait V. Baker (2 Ex. 1 ; 17 L. J. Ex. 307) . . 137, 138, 139, 140 Wake V. Harrop (1 H. & C. 202; 31 L. J. Ex. 451 ; 7 L. T. 96; 10 W. R. 626 ; 1 Asp. Mar. C, 0. S. 247) . . . . 23, 24 Wakelin v. L. & S. W. R. (12 App. C. 41 ; 56 L. J. Q. B. 229 ; 55 L. T. 709 ; 35 W. R. 141 ; 51 J. P. 404) 115 Walford v. Galindez (2 Com. Cas. 137 ; 13 Times L. R. 293) 194, 216, 219, 224, 226 Walker v. Maitland (5 B. & Aid. 171) ' . ' 171 Wallace v. Fielden (7 Moore, P. C. 398 ; 3 AV. Rob. 243) . 213, 215 Walley v. Montgomery (3 East, 585) 139 Walshe V. Provan (8 Ex. 843 ; 22 L. J. Ex. 355) . . 34, 53, 274 Walthew V. Mavrojani (L. R. 5 Ex. 116 ; 39 L. J. Ex. 81 ; 22 L. T. 310; 3 Asp. Mar. C, 0. S. 382) 216,222,223 Ward V. Felton (1 East, 507) 281 Waring v. Cox (1 Camp. 369) 157 Warkworth, The (9 P. D. 145 ; 53 L. J. Ad. 65 ; 49 L. T. 715 ; 33 W. R. 112 ; 5 Asp. Mar. C, N. S. 326) 191 Warren v. Peabody (8 C. B. 800 ; 19 L. J. C. P. 43 ; 14 Jur. 150) 111, 270, 290 Waterloo, The (2 Dod. 433) 228 Watkius V. Rymill (10 Q. B. D. 178 ; 52 L. J. Q. B. 121 ; 48 L. T. 426 ; 31 W. R. 337) . . . . , . . . 9, 44, 280 Watson, Ex parte (5 Ch. D. 35; 46 L. J. Bk. 97; 36 L. T. 75; 25 W. R. 489 ; 3 Asp. Mar. C, N. S. 396) . . . 141, 151, 153 V. Shankland (L. R. 2 H. L. Sc. 304) ; 29 L. T. 349 ; 2 Asp. Mar. C, N. S. 115) 256 Waugh V. Morris (L. R. 8 Q. B. 202 ; 42 L. J. Q. B. 57 ; 28 L. T. 265 ; 21 W. R. 438 ; 1 Asp. Mar. C, N. S. 573) .... 10 Wavertree SS. Co. v. Lowe ((1897) A. C. 373 ; 66 L. J. P. C. 77 ; 76 L. T. 576 ; 8 Asp. M. C, N. S. 276 ; 13 Times L. R. 419) . 226 Webber v. G. W. Ry. (4 H. & C. 582 ; 34 L. J. Ex. 170 ; 12 L. T. 498 ; 13 W. R. 755) 56 Webster v. Bond (1 C. & E. 338) 172 TABLE OF CASES. Ivii PAGE Wegener v. Smitli (15 C. B. 285 ; 24 L. J. C. P. 25) . 47, 249, 250 Weguelin v. Cellier (L. R. 6 H. L. 286 ; 42 L. J. Ch. 758 ; 22 W. R. 26) 268,278 Weidner v. Hoggett (1 C. P. D. 533 ; 35 L. T. 368) ... 28 Weir V. Girvia ((1899) 1 Q. B. 193 ; 4 Com. Cas. 56 ; 15 Times L. R. 69) 25G V. Pirie (No. 1) (3 Com. Cas. 263) 3, 48 V. (No. 2) (3 Com. Cas. 271) 3, 48 V. Richardson (3 Com. Cas. 20 ; 14 Times L. R. 80) . 247, 248 V. Union SS. Co. (4 Com. Cas. 92) ..... . 110 Wentworth v. Outhwaite (10 M. & W. 436 ; 12 L. J. Ex. 172) 141, 152 West India Tel. Co. v. Home Ins. Co. (6 Q. B. D. 51 ; 50 L. J. Q. B. 41 ; 43 L. T. 420 ; 29 W. R. 92 ; 4 Asp. Mar. C, N. S. 341) 171, 180 Westoll V. Carter (3 Com. Cas. 112 ; 14 Times L. R. 281) . . 362 Westport Coal Co. v. McPhail ((1898) 2 Q. B. 130 ; 67 L. J. Q. B. 674 ; 78 L. T. 490 ; 46 W. E. 566; 3 Com. Cas. 140 ; 8 Asp. M. C, N. S. 378 ; 14 Times L. E. 388) 189 Westzinthus, In re (5 B. & Ad. 817) 145, 147 White V. Furness ((1895) A. C. 40 ; 64 L. J. Q. B. 161 ; 72 L. T. 157 ; 7 Asp. M. C, N. S. 574 ; 11 Times L. R. 129) . . 281, 282 V. Granada SS. Co. (13 Times L. R. 1) . . . . 204, 205- V. Parkin (12 East, 578) 12 V. Turnbull, Martin, & Co. (3 Com. Cas. 183 ; 78 L. T. 726 ; 14 Times L. R. 401) 32 V. Winchester (13 Sc. Sess. Cases, 4th Ser. 524) . . 239, 243 Whitecross Wire Co. v. Savill (8 Q. B. D. 653 ; 51 L. J. Q. B. 426 ; 46 L. T. 643 ; 30 W. R. 588 ; 4 Asp. Mar. C, N. S. 531) . . 219 Whitehead v. Anderson (9 M. & W. 518 ; 11 L. J. Ex. 157) . 143, 151, 152 155 Wiggins V. Johnston (14 M. & W. 609 ; 15 L. J. Ex. 202) . . ' 34 Wigglesworth v. Dallison (1 Dougl. 201, and 1 Smith L. C. 10th ed. 535) 17 Wilhelm, The (14 L. T. 636 ; 2 Asp. Mar. C, 0. S. 343) . . 76 Wilhelm Schmidt, The (25 L. T. 34 ; 1 Asp. Mar. C, N. S. 82) 16, 206 Williams v. African SS. Co. (1 H. & N. 300) . . . .359 V. Dobbie (11 Sc. Sess. Cases, 4th Ser. 982) . . 118, 194 V. East India Co. (3 East, 192) 79' Williamson v. Hine ((1891) 1 Ch. 390 ; 60 L. J. Ch. 123 ; 63 L. T. 682 ; 39 W. R. 239 ; 6 Asp. M. C, N. S. 559) ... 32, 33 Willis V. Palmer (7 C. B., N. S. 340 ; 29 L. J. C. P. 194 ; 8 W. R. 295; 6 Jur., N. S. 732) 278 Wilmshurst v. Bowker (7 M. & G. 882 ; 8 Scott, N. R. 571 ; 12 L. J. Ex. 475) 139 Wilson V. Bank of Victoria (L. R. 2 Q. B. 203 ; 36 L. J. Q. B. 89 ; 16 L. T. 9 ; 15 W. R. 693 ; 2 Asp. Mar. C, 0. S. 449) . 220, 221 V. Gabriel (4 B. & S. 243; 8 L. T. 502; 11 W. R. 803; 1 Asp. Mar. C, 0. S. 346) 278 V. Hicks (26 L. J. Ex. 242) 29a V. Kymer (1 M. & S. 157) 281 V. London S, N. Co. (L. R. 1 C. P. 61 ; 2 Asp. Mar. C, 0. S. 279) 234, 237 V. Rankin (L. R. 1 Q. B. 162 ; 35 L. J. Q. B. 87 ; 13 L. T. 564; 14 W. R. 198; 2 Asp. Mar. C, 0. S. 161, 287) . . 10, 71 Iviii TABLE OF CASES. 9 Times Wilson V. Wilson (L. R. 14 Eq. 32; 41 L. J. Cb. 423; 26 L. T 34G ; 20 W. R. 436 ; 1 Asp. Mar. C, N. S. 265) Wiseman v. Vandeputt (2 Vern. 202) Witted V. Galbraith ((1893), 1 Q. B. 577 ; 41 W. R. 395 L. R. 300) Witzler V. Collins (35 Am. Rep. 327) Wood V. Jones (7 D. & R. 126) Woodley v. Mitchell (11 Q. B. D. 47 ; 52 L. J. Q. B. 325 599; 31 W. R. 651 ; 5 Asp. Mar. C, N. S. 71) Woodliff's Case (Moore, 462, Owen, 57) Woolley V. Reddelien (5 M. & G. 316 ; 12 L. J. C. 930) Worms V. Storey (11 Ex. 427 ; 25 L. J. Ex. 1) Wriciht V. Marwood (7 Q. B. D. 62 ; 50 L. J. Q. B, 297 ; 29 W. K. 673; 4 Asp. Mar. C, N. S. 451) 643 V. New Zealand Co. (4 Ex. D. 165 ; 40 L. T. 413 ; 4 Asp, Mar. C, N. S. 118) Wyllie V. Harrison (13 Sc. Sess. Cas. 4th Ser. 92) 278 141 . 300 . 117 . 142 t8 L. T. 179, 181, 183 . 167 P. 142 ; 7 Jur. . 84 70, 71, 73, 189 45 L. T. 109, 217, 218 95, 246, 247 246, 247, 248 X. Xantho, The (12 App. Cas. 503 ; 55 L. T. 203 ; 56 L. J. Ad. 146 ; 35 W. R. 23 ; 6 Asp. Mar. C, N. S. 207) . . 118, 164, 168, 169 170, 171, 179, 180, 181, 183, 184, 194, 229 Yates V. Mennell (8 Taunt. 302 ; 2 Moore, 294) V. Railston (2 Moore, 294) . Young V. Moeller (5 E. & B. 775) . . 270 . 270 250, 282 Z. Zeta, The ((1892) P. 285 ; 61 L. J. P. 100 ; 40 W. R. 535 ; 8 T. L. R. 552 ; 7 Asp. M. C, N. S. 64) 301 Zeus, The (13 P. D. 188; 59 L. T. 344; 37 W. R. 127; 6 Asp. Mar. C, N. S. 312) 302,347 Zwilchenbart v. Henderson (9 Ex. 722 ; 23 L. J. Ex. 234) . 275, 276 ALPHABETICAL GUIDE TO CASES. In the illustrations contained in the following pages an attempt has been made to lessen the labour of mastering the facts by using particular letters to represent particular characters in the case. Thus, except in a few cases where they obviously stand for places, A is always a shipowner, C a charterer, G a consignee ; X is always the port of loading ; Z the port of discharge. A = shipowner. B := shipowner's agent C = charterer. D = charterer's agent. E = captain. F = shipper. G = consignee. 11 = indorsees of bill of lading. P = purchaser of goods shipped. 1} = ships. V = unpaid vendor of goods shipped, w = agent of such a vendor. X = ]jort of loading. Y = port of call, or of refuge. Z = port of discharge. ADDENDA. In Calin v. Pochetfs Bristol Channel Steam Packet Company (1899), 1 Q. B. 643, the C.A., reversing the judgment of Mathew, J., held that where an indorsed bill of lading is sent to the vendor together with a bill of exchange for acceptance, and he fails to accept the bill of exchange, but transfers the bill of lading to an innocent x^urchaser of the goods, the property in the goods passes to such sub-purchaser, and the right to stop in transitu upon the insolvency of the original vendee is defeated by such transfer of tlie bill of lading. Note at p. 138. In Tlie Vortigern (15 Times L. K. 259), the C.A., affirming the judg- ment of Barnes, J., and following Thin v. liichards (1892), 2 Q. B. 141, held that in the case of long steamer voyages for which sufficient coal cannot be taken on board at starting, there is a warranty by the ship- owner that at each coaling stage of the voyage his ship has sufficient coal on board to accomplish the next stage of the voyage, and, though the insufficient supply of coal may be due to negligence of the master or engineer, which is a peril excepted in the bill of lading, yet the shipowner is liable for cargo burnt by reason of such insufficiency of coal. Note on Article 29. This case appears to extend considerably the insurance doctrine of stages of seaworthiness in applying it to stages determined only by the intention of the shipowner. THE CONTRACT OF AFFREIGHTMENT. Section I. — Nature and Construction op the Contract. Article 1. — Nature of the Contract. When a sliipownev, or person having for the time the right as against the shipowner to make such an agreement, agrees to carry goods by water, or to furnish a ship for the purpose of so carrying goods, in return for a sum of money to be paid to him, such a contract is called a contract of afreight- ment, and the sum to be paid is called freight. When the agreement is to carry a complete cargo of goods, or to furnish a ship for that purpose, the contract of affreightment is almost always contained in a document called a charterparttj (a), the shipowner letting the ship for the purpose of carrying, or undertaking to carry, the charterer hiring the ship for such purpose, or undertaking to provide a full cargo. Such a document is usually signed before any steps are taken under the contract it contains. When the agreement is to carry goods which form only part of the intended cargo of the ship, the contract of affreightment as to each parcel of goods shipped is evidenced in a document called a hill of lading, which serves also as a receipt by the shipowner, acknowledging that the goods (a) As to stamps on charters, see 54 & 55 Vict. c. 39, ss. 15, 49-51 ; Appendix III. Charters made entirely abroad can be stamped within two months of their receipt in this country. The Belfort (1884), 9 P. D. 215. B 2 BILLS OF LADING. have been delivered to him for a certain purpose. A bill of lading is rarely signed until some steps have been taken in pursuance of the contract it evidences. By the custom of merchants indorsement of the bill of lading may pass the property in the goods, for the shipment of which it is a receipt ; and by statute such an indorsement will also confer on the indorsee the same rights and liabili- ties as if the contract evidenced in the bill of lading were originally made with him (b). The charterer with whom the shipowner enters into the contract of affreightment may ^'ntend to supply the cargo himself. In this case, when the cargo is shipped, a bill of lading will almost always be signed, which is usually, while in the hands of the charterer, merely a receipt for the goods, but which may be evidence of a contract adding to or varying the contract between them contained in the charterparty (c). Or the charterer may intend to enter into sub-contracts of carriage with other shippers, who provide all or part of the cargo. In this case, as each shipper ships his goods, a bill of lading will be signed, evidencing a contract between the shipper on the one hand, and, according to circumstances, the shipowner or charterer on the other. Such contract will be independent of the contract contained in the charterparty, except in so far as it expressly incorporates it {d). Note. — A form of contract has lately come into use on the Danube called a Berth-note. It varies in form very much, but is intended by the brokers who invented it to free them from liability for freight and demurrage, while giving them the right to engage cargo for the ship at a protit. A singularly involved specimen of this document came before the Court in S.S. Botlierfield v. Tioeedy (e), and was held to make the broker a charterer. In coal-ports a form of contract called a Colliery Guarantee is now in constant use. The charter provides that the ship shall be loaded in accordance with the colliery guarantee. The charterer then obtains from the colliery who are to supply (b) Sec Section V. post, Articles 57, 58, 75. (c) See Article 18, post; and Rodocanachi v. Milbuni (1886), 18 Q. B. D. 67. \d) See Articles 18, l^, pout. (f) (1897), 2 Com. Cases, 84. CHA 7? TERPA R TIES. 3 the cargo a contract to load the ship on certain terms ; this guarantee is sometimes addressed to the charterer, sometimes to the shipowner (ee). These transactions are usually treated by the Courts as a contract between shipowner and charterer that the charterer shall load the ship in accordance with the terms of the colliery guarantee (/) ; but in some cases the documents appear to amount to an acceptance by the shipowner of the liability of the colliery in substitution for that of the charterer. Questions also arise how much of the colliery guarantee is incorporated in the charter. In Weir v. Pirie (1st case) (l ; Baltazzi v. Ryder (1858), 12 Moore, P. C. 168. The headnote to tlie latter case is not justified by the report, so far as it contradicts the text. (d) The Helen, vide supra. (e) Mackill v. Wright (1888), 14 App. C. per Lord Halsbury at p. 114 ; Lord Watson at p. 116; Lord Macnaghten at p. 120. Glynn v. Margetson (1893), A. C. 351. (/) Dimech v. Corlett (1858), 12 Moore P. C. at p. 224 ; So, per Brett, M. E., in Sailing Ship Garston v. Hickie (1885), 15 Q. B. D. 580. " The term ' port ' is to be taken in its business, popular, or commercial sense, and not in its legal definition for revenue or pilotage purposes," and in Stewart v. Merchants^ Marine Ins. Co. (1885), 16 Q. B. D. at p. 627. 12 CONSTEUCTION OF THE CONTRACT. sense and meaning, as collected in the first place from the terms used, understood in their plain, ordinary, and popular sense, unless they have generally in respect of the subject- matter, as by the known usage of trade or the like, acquired a peculiar sense, distinct from their popular sense ; or unless the context evidently points out that they must in the par- ticular instance, and in order to effectuate the immediate intention of the parties, be understood in some other special and peculiar sense {g). The construction of a charter or bill of lading is for the Court, unless there is mutual (li) mistake of the parties, ambiguity (^), or some peculiar meaning attached to the words of the document by reason of the custom of the trade or port to which the document relates. In these cases the presence of the mistake or the meaning of the words will be a question for the jury, and oral evidence will be admissible to assist their decision [h) ; whether there is any ground for the admission of oral evidence on these points (I) will be a question for the Court (m). Exceptions or clauses introduced in favour of one party to the contract are to be construed most strictly against him (n). Case 1. — A ship was chartered to proceed to X., a river port, and there load, " the master guaranteeing to carry 3000 tons dead weight of cargo, upon a draught of twenty-six feet of water." Tiie ship could carry such a cargo, at such a draught in salt, but not in fresh, water. Eeld, that as the charter shewed that both parties contemplated loading in a river, the guarantee must be applied to both fresh and salt water (o). (7) Per Lord Eldon in Eohertson v. French (1803), 4 East at ]>. 135, cited by Bowen, L.J., in Bart v. Standard Marine Ins. Co. (1889), 22 Q. B. D. at p. 501. (/() Dixon V. Heriot {\.&Q2), 2 F. & F. 760. (0 Cf. The Curfew (1891), P. 131. (/;) See Aktiesolkah Helios x. Ekman (1897), 2 Q. B. 83 (C.A.), where oral evidence was admitted to explain what was meant by "alongside," and "delivery" at a particular port. (/) As lo variation of charters or bills of lading by parol evidence, see Thompson v. Brovn (1817), 7 Taunt. 656 ; Whiter. Parkin (1810), 12 East, 578 ; Teduc V. Ward (1888), 20 Q. B. D. at p. 480. (m) Bou-es v. Shand (1877), L. R. 2 App. C. 455, 462 ; Ashforth v. Bedford (1873), L. R. 9 C. P. 20. As to evidence of usage, see Article 8. (n) Burton v. English (1883), 12 Q. B. D. at p. 222, j/rr Bowen, L. .T. ; cf. Nonnan v. Binnington (1890), 25 Q. B. D. at p. 477. The Waikato (1899), 1 Q. B. 56 (C. a). (0) The Noricay (1865), 3 Moore, P. C, N. S. 245. Cf. Hart v. Standard Marine Co. (1889), 22 Q. B. D. 499 ; Mackill v. Wright (1888), 14 App. C. 106. THE LAW OF THE FLAGS. \'^ Case 2. — A ship was chartered " to proceed to loading-berth, North Dock, Swansea, and there load, always afloat, a full cargo • . . lighterage if any, necessary to enable steamer to complete loading at North Dock, Swansea, to be at merchant's risk and expense." The vessel could have loaded " always afloat " in the North Dock, but could not at neap tides have got over the sill fully loaded. To avoid waiting till spring-tides, the shipowners moved the ship to another dock when partly loaded ; the charterers claimed the cost of carrying cargo to the other dock. Hehf, that the clause as to lighterage was sufficiently ambiguous to admit ex- trinsic evidence in the shape of telegrams between the parties before signing the charter to explain it (p). Article 7. — Construction of the Contract. — By ivhat Laiv. The construction of charterparties and bills of lading must be governed by the law by which it appears from all the circumstances that the parties intended to be bound {q). Though, in the absence of clear evidence of intention, the presumption in the case of contracts generally is that such law was the lex loci contractus, the law of the place where the contract was made (r), it is submitted that in the absence of any express indication of intention as between the parties to a contract of affreightment, there is a strong presumption in favour of the law of the ship's flag (s). Whoever puts his goods on board a foreign ship to be carried authorises the master to deal with them according to the law of the ship's flag, unless that authority is limited by express stipulation between the parties at the time of the agreement {t), and this may be so in cases of necessity, though the intention of the parties is found to be that the contract should be governed by another law than that of the ship's flag {q). (p) The Curft'u: (1891), P. 131. See T/ie Nifa (1892), P. 411, when such evidence was rejected, there being no ambiguity. iq) The Lidustrie (1894), P. 58 (C.A.). (r) In re Missouri S.S. Co. (1889), 42 Ch. D. at pp. 336, 338, 340 ; Chartered Bank V. Netherlatids Company (1883), 10 Q. B. D. 521, 529, 540 ; Jacobs ^ Co. v. Credit Lyoniuiis (1884), 12 Q. B. D. 589 ; Ex parte Dever, In re Suae (1887), 18 Q. B. D. at p. 666. (s) Lhyd V. Guibert (1865), L. R. 1 Q. B. 115; The Gaetano e Maria (1882), 7 P. D. 1, 137 (C.A.) at p. 147 ; The August (1891), P. at pp. 342, 343 ; The Bahi). Gase 7. — E., an English merchant, shipped goods in an English port to be carried to a Dutch port in a shipreiiistered in Hulland, and carrying the Dutch flas, belonging to a company registered in Holland, and also regis- tered in England as an English joint stock company. The bill of lading was in the English language and form, and described the company as a "limited coni])any." Iltld, tliat the intention of the parties was that the contract slmuld be governed by English law, thus setting aside the ^3rm« facie application of the law of the tiag (c). JVo^e. — The general rule of law is undoubted, that while the intention of the parties to a contract is the real guide in deter- mining by what law they intended their contract to be governed, yet, in the absence of any evidence of a different intention, the law of the country where the contract was made is presumed to be the governing law. The cases preceding In re Missouri S.S. Co. (d) suggest that in the case of contracts of affreightment there is a strong presitmption in favour of the law of the ship's flag ; and this view was taken by Chitty, J., in the Missouri case, where at p. 327, after citing Lloijd v, Guibcrt (('), he said that the principle upon which that case proceeded (the law of the flag) " is not confined to the particular facts of that case, but is applicable and ought to be applied not merely to ques- tions of construction, and the rights incidental to and arising out of the contract of affreightment, but to questions as to the validity of the stipulations in the contract itself. ... It is just to presume that in reference to all such questions the parties have submitted themselves to the law of one country only, that of the flag ; and so to hold is to adopt a simple natural and con- sistent rule." The conclusions of his judgment rest "first on the general ground that the contracts are governed by the law of the flag ; and secondly on the particular ground that the parties were contracting with a view to the law of England." The Court of Appeal, stating the general principle of the lex loci contractus, find that the parties contemphited that their contract should be governed by English law (which was also the law of the flag), but say nothing either for or against the law of the flag, as a general presumption. In the later case of The Industrie (/), however, the Court of Appeal has laid down a distinction between the powers of the (6) In re Missouri S.S. Co. (1889), 42 Ch. D. 321. (c) Chartered Bank v. Netherlands India Steam Compinij (1883), 10 Q. B. D. 521. (d) In re Missouri S.S. Co. (1889), 42 Ch. D. 321. (c) (18L>5), L. R. 1 Q. B. 115, 125. (/) 0894), P. 58. 1 6 ADMISSIBILITY master in a port of distress, in matters not provided for by the contract, where the law of the ship's flag, the only law the master may be expected to know, is taken as a guiding rule, as in the case of The Gaetano c Maria (g), and cases where it appears to be the intention of the parties that their contract shall be construed by a particular law, and so construed it deals with the matter in dispute, as in The Industrie (/). So far, however, as the powers of the master as agent of necessity are concerned, it is submitted that the previous authority of Lloyd V. Guibert (e) and The Gaetano e Maria (g), followed in The August (/t), on these points is not shaken, and in view of these cases the cases of The Hamburg, Duranty v. Hart (^), The San Roman (Je) ; and The Wilhelm Schmidt (I), so far as they set up another standard of construction than the law of the flag, are of very doubtful authority. Article 8. — Evidence of Usage, when Admissihle. A charter is so far conclusive as to the terms of the con- tract expressed in it, that what is not in the charter cannot be part of the terms. To this there is an exception that customs of trade are tacitly incorporated in the contract, though not expressed in it (m), on the ground that the parties to the contract must be presumed to have contracted with reference to such customs (w). Customs of trade may control the mode of performance of a contract, but cannot change its intrinsic character (o). Thus if the express terms of the charter are inconsistent with the alleged usage, evidence of the usage will not be admissible (m). Evidence of usage is therefore admissible to explain ((/) (1882), 7 P. D. 137. (X) (1891), P. 329. (0 (1864), B. & L. 253, 260, 272. (/O (1872), L. R. 3 Adm. 583 ; L. R. 5 P. C. 301. (/) (1871), 25 L. T. 34; 1 Asp. War, C. 82. (m) Eohinson v. Mollett (1875), L. R. 7 H. L. 802, at p. 811, per Blackburn, J. See also Brett, J., at p. 819, and Lord Chelmsford, p. 836. Oa the nature of a "custom of trade," s^a per Willes, J., in Meyer v. Dresser (1864), 16 C. B., N. S. at p. 662. (n) Kirchner v. Venus (1859), 12 Moore, P. C. 361, 399. (o) MollM V. Bobhison (1870), L. R. 5 C. P. 656, per Willes, J., see also L. R. 7 H. L. at p. 83G. The Mfa (1892), P. 411. OF CUSTOMS. 17 ambiguous ( fy) mercantile expressions in a charter, or to add incidents, or to annex usual terms and conditions which are not inconsistent with the written contract between the parties, but not for any further purpose (q). It is still more admissible to explain the contract of which a bill of lading is evidence, as the bill of lading is not the contract, but only evidence of the contract (r). In general, therefore, the term " loading " will be con- strued by the usages of the port of loading (s), "discharge " by the usages of the port of discharge (t), the method of payment of freight by the usages of the port where freight is payable (u) ; for where the performance of a contract has reference to a particular trade the party contracting is necessarily obliged to make himself acquainted by due inquiry with the usages of that trade (x). Usages or customs to be enforced by the Courts must be — 1. reasonable ; 2. certain ; 3. consistent with the contract ; 4. universally acquiesced in ; 5. not contrary to law. Note. — In a charter to discharge " according to the custom of the port," the jury were directed "that 'custom' in the charter did not mean custom in the sense in which the word is some- times used by lawyers, but meant a settled and established practice of the port," and the House of Lords approved this direction (y). This seems to require a less rigorous standard of proof than in the case of a legal custom. The nature of a (p) J7. jr. "freight" which is a well-understood term in a contract, cannot be •explained by usage ; Krall v. Burnett (1877), 25 W. II. 305 ; though its methoil of payment, which varies in each port, can : Brown v. Bi/rm (1854), 3 E. & B. 702 ; Falkner v. Earle (1863), 3 B. & S. 360 ; The Norway (1865), 3 Moore P. C, N. S. 245. In Aktieselkab Helios \. Ekmm (1897), 2 Q. B. 83 (C.A.), evidence of custom was admitted to explain the meaning of the words "alongside" and '' delivery" in the port of London. See also Stephens v. Wintringham (1898), 3 Com. Cases, 169. (g) Robinson v. Mollctt (1875), L. R, 7 H. L., pp. 802, 815 per Mellor, J (r) See Andrew v. Moorhoitsc (1814), 5 Taunton, 435. (s) E.g. The Skandinav (1881), 51 L. J. Ad. 93 ; Fullagsen v. Walford (1883), 1 C. & E. 198; Cuthbert v. Cumming (1855), 11 Ex. 405; Leidemann v. Schultz (1853), 14 C. B. 38 ; Laxcson v. Burness (1862), 1 H. & C. 396. (t) Marzetti v. Smith (1883), 49 L. T. 580; Petrocochino v. Bott (1874), L. R. 9 C. P. 355 ; Aste v. Stumore (1884), 1 C. & E. 319. (m) See note (j;) supra; post, note p. 19. (a;) Per Willes, J., in Russian Co. v. De Silva (1863), 13 C. B., N. S. 610, 617, and see cases and rules laid down in notes to Wigglesworth v. Dallison, 1 Smith, L. C, 10th ed., pp. 535-560. (i/) Postkthwaite v. Freeland (1880), 5 App. C. at p. 616. 1 8 ADMISSIBILITY binding custom lias been thus illustrated : " In order that the shippers should be taken to have impliedly given leave to stow the goods on deck, the shipowners must prove a practice so general and universal in the trade, and in the particular port from which the goods were taken, that everyone shipj)ing goods there must be taken to know that other people's goods, if not his goods, might probably be stowed on deck " (z). I. Cases in which evidence of usage has been held admissible. Case 1. — Charter betweeu A. and C, a foreigner, from Riga to Liverpool, containing clauses : " the steamer to be discharged in ten working days. Discharging dock to be ordered on arrival at Liverpool." Evidence was tendered of a custom of the port of Liverpool, that ia the case of timber ships lay-days commenced on the mooring of the ship at the quay where she was to discharge. Held admissible, as explaining the meaning of "arrival at Liverpool "; inadmissible, if its effect was to vary or add to the terms of the charter, unless it was proved to have been known to botli parties (ff). Case 2. — D. entered into a charter with A. " as agents for merchants," and signed it " as agents for merchants." Evidence was tendered of a custom that if D.'s principal were not disclosed within a reasonable time, D. was personally liable. Held admissible, as not inconsistent or irrecon- cilable with the written contract, but as adding in a certain contingency a collateral provision for liability (h). Case 3. — A charter was made " On condition of the ship's taking a cargo of not less than 1000 tons of weight and measurement." Held, that the proportions of weight and measurement tonnage were to be ascertained by oral evidence of the usage of the port of loading (c). Case 4. — A ship was chartered " to proceed to a port in the Bristol Channel or so near thereto as she may safely get at all times of tide and always afloat, and deliver the same, eight running days to be allowed for discharging the cargo." The ship was ordered to Z., and entered the port of Z. : a custom of the port of Z. was proved that vessels too heavily laden to proceed in the port beyond Y., were lightened at Y., and pro- ceeded by canal to Z. and there finished unloading ; and that the times of unloading at Y. and Z. counted in the lay-days, but not the time spent iu proceeding along the canal. Held admissible, as not inconsistent with the charter (d). Case 5. — Wool was shipped from Odessa under a bill of lading, " freight to be paid in London on delivery at 80s. per ton, gross weight, tallow, grain, («) Neimll V. Royal Exchange Sluppiw] Co. (1885), 33 W. R. 342, 868, at p. 869 ; on the facts of which see Royal Exchamje Co. \. Dixon (1886), 12 App. C. at p. 18. But the practice of the only shipper at the port for 30 years has been held not to constitute a custom of the port ; Clacevich v. Jlutcheson (1887), 15 Sc. Sess. C. 4th ser. 11. (a) S.S. Mrdcn v. Dempsey (1876), L. E., 1 C. P. D. G54, and see note, post, p. 20. (6) Hutchinson v. Tatham (1873), L. E. 8 C. P. 482 ; see p. 25, post. (c) Fust V. Dowie (1864), 5 B. & S. 20 ; see Article 25, liost. Id) Nielsen v. Wait (1885), 14 Q. B. D. 516 ; 16 Q. B. D. G7 (C.A.), But see Reynolds v. Tomlinson (1896), 1 Q. B. 586. OF CUSTOMS. 19 or seed in proportion as per London Baltic printed rates." Ilehl, tliat evidence of the customs of tlie Russian trade was admissible to explain this bill of lading, thougli the defendant, the consignee under it, was wholly unconnected with tlie Russian trade (e). Case 6. — A bill of lading stated that goods shipped at X. were deliver- able at Z., " he or they paying freight for the said goods, five-eighths of a penny per pound — with 5 per cent, primage and average accustomed." Held, tliat evidence of a custom of Z. to deduct three months' discount on freights on goods from X. was admissible (/). Case 6a. — A charter provided that a ship should deliver a cargo of timber " which should be taken from alongside at merchant's risk and expense." Held, that evidence of a custom that the ship should place the timber in barges ahmgside at its own expense was admissible as explaining " alongside " and " delivery "' (•) (1876), L. R. 1 C. P. D. at p. 662. Cf. Ilohnan v. Permian Nitrate Co. (1878), 5 Sc. Sess. C, 4th Series at p. 663, (s) (1845), 2 C. B. 412. (0 (1868), L. R. 3 Q. B. 412. OF CUSTOMS. 21 Article 9. — Printed Forms of Contract. Questions of mistake in the expression of intention fre- quently arise in the case of charters effected by filling in printed forms, where parts of the printed form, left in by inadvertence, are in direct contradiction to clauses written in the form (u) : in these cases the written clause should usually prevail, as clearly expressing the intention of the parties (x). It is unnecessary to find a meaning in the particular charter for every word of a common printed form (y), and the Court may look at erasures from the printed form as shewing the intention of the parties (z). Case 1. — A charter contained a printed clause tbat cargo at Z. "should be brought to and taken from alongside at owner's risk and expense; " and a written one ; " cargo at Z. as customarj'." The custom at Z, is that the ship pays for the lighterage. Held, that of these contradictory clauses the written one should prevail (as being obviously intended by the parties) (a). Case 2. — A charter contained a printed clause : " The cargo to be taken from alongside the ship at merchant's risk and expense, where she can lie always afloat"; and a written clause : " The cargo to be discharged . . . according to the custom of the respective ports." Held, that a custom of Yarmouth was not admissible to put on the shipowners the cost of pulling cargo from the ship " always afloat " to the quay (6). (m) Curious charters result from the filling in of time charters on printed forms intended for voyage charters, and vice versa. A similar result in a policy of insurance puzzled the Courts in Stcicart \. Merchant's Insurance Ca. (1885), L. R. 16 Q. B. D. 619. (.f) Scruttonv. C'hilds (1877), 36 L. T. 212 : contra per Charles, J., in BaumvoU V. Gilchrcst (1891), 2 Q. B. at p. 317; citing Alsagcr v. St. Katherinc's Docks (184-5), 14 M. & W. 794, which hardly supports the learned judge's view. (!/) Per Brett, J., and other Judges in Gray v. Carr (1871), L. R. 6 Q. B. 522, 536, 550, 557 ; Pearson v. Goschcn (1864), 17 C. B., X. S. 353, 373, 376 ; but see Maclean v. Fleming (1871), 2 L. R. H. L. (So.) 128. («) Ptr Lord Esher in BaumvoU v. Gilchrest ^- Co. (1892), 1 Q. B. 256 ; cf. p< r Lord Herschell (1893), A. C. p. 15. See also Glynn v. Margetson (1892), 1 Q. B. 337; (1693), A. C. at p. 357 per Lord Halsbury : Boidand S.S. Co. v. Wilson (1897), 2 Com. Cases 198 ; contra per Lords Hatherley and Blackburn in Jnglis V. Butter]/ (1878), L. R. 3 App. C. at pp. :.t39. 576. It is not clear why the "erasure" is not a "surrounding circumstance " which may be looked at. (a) Scrution v. Childs (1877), 36 L. T. 212. See also Alsa" '^ "'^s proved that 1). was allowed by C. to act as liis general agent. Held, that C. was liable in the charter, though in making it D. had exceeded C.'s special in- structions (A). Article 13. — Wlien Agent is personally liahle as Princiiml. Whether or not a person, professing to have signed the ■charter as agent, can sue and be sued as principal, depends, apart from custom or express agreement, on the intention of the parties, to be gathered from the terms and signature of the charterparty, and the conduct of the parties in con- nection with the contract (i). Where a person signs the charter in his own name without qualification, he is^ prima facie, deemed to contract ])ersonally, and, in order to prevent this liability from attaching, it must be clear from the other portions of the charterparty that he did not intend to bind himself as principal {k). Note. — An agent wishing to protect himself from personal liability should state in the body of the charter that it is made by him as agent for the charterer or shipowner, and sign it " D., as agent for the charterer " (or shipowner). In this case, if no other clause in the charter shews an intention to make the agent personally liable, he cannot be sued on the charter; unless he does not disclose his principal, and a custom that an agent so failing to disclose is personally liable is proved to exist in that trade or port (7). Where a person effects a charter as agent, so describing himself as to escape personal liability on the charter, but has not in fact the authority he professes to have, so that his professed principal repudiates the charter, the alleged agent is liable in tort for breach of an implied warranty that he has the authority that he i-rofesses to have («*). The measure of (h) Smith V. 2higuire (1858), 3 H. & N. 554. («') A person may by his conduct have estopped himself from denying that he 'is personally liable : I/criiia)in v. Jloijal Exchange Shipping Co. (1884), 1 C. & E. 413 : where a well-known line put on to the berth an extra steamer, and were held by their conduct and the form of the bill of lading estopped from saying that they were not the parties contracting to carry. (k) Hough V. Man-:anos (1879), 4 Ex. D. 104. Cf. Gadd v. Houghton (1876), 1 Ex. D. 357 (C.A.); Ilich v. Tweedy (1890), 63 L. T. 765. (0 Per Bovill, (".J., and Brett., J., Hutchinson v. Tatham (1873), L. R. 8 C. \\ 482. See also brokers' cases : Fairlie v. Fenton (1870), L. R. 5 Ex. 169 ; Gadd v. Houghton (1876), 1 Ex. D. 357 (C'.A.) ; Southwell v. Bowditch (1876), 1 C. P. D. 300, 374(C.A.); J'ike v. Omilei/ (1887), 18 Q. B. D. 708. (m) Collcn V. Wright (1857),' 8 E. & B. 647. 28 PRINCIPAL damages for sncla a breach is what the plaintifif has in fact lost, he- cause he has not a bindinp; contract with the alleged principal («). Bri tclerjraphic authorifi/. In Lilly v. Smales (o), Avhere an agent signing " by telegraphic authority of charterer, D. as agent," efiected a charter which, through a mistake in trans- mission of the telegram instructing him, he had no authority to effect, Denman, J., admitted evidence as to the meaning attached by business men to such words, and held on that evidence that the warranty implied by such a signature was only that the agent had a telegram which, if correct, authorised such a charter as that which he signed. In Suart v. Haigh (p), where 8., a sub-agent, effected a charter inirporting to be made between A. and " D. as ageut for charterer C," on telegraphic instructions from D., an agent of C, the charterer, and signed, " 8., by telegraphic authority of D. as agent," the House of Lords held that S. warranted that he had authority from C, as well as from D., to sign the charter. I. Cases where an ageut has been held liable as prin- cipal (q). Case 1. — Charter between A. and " D. on behalf of C," afterwards referred to as "the parties " : signed by A. and D. IleJd, D. was a party to the contract, and could sue and be sued under it (r). Case 2. — Charter between C. and " B. for owners ot the S." signed " for owners, B." Held, ambiguous, but when construed with letters (not objected to), to render B. personally liable (s). Case 3. — Charter between A. and "D., merchants" — "to load from factor of said merchants . . . thirty running days to be allowed said merchants " — signed " by authority of and as agents for C, of 'Meme\,jpro D." Held, D. was personally liable (t). Case 4. — Charter between A. and"D., agent for C," signed "D." Held, D. was personally liable (;u). Case 5. — Charter between A. and " D., as agent for charterer . . . ship to load from agents of said freights (= D.) . . . captain to sign bills of lading at any freight required by charterers ( ~ J).) . . . This charter being entered into on behalf of others, it is agreed that all hability of charterers ( = D.) shall cease on completion of the loading." Signed " D." Held, J), was personally liable (x). (n) Ex p. Panmurc (1883), 24 Ch. D. 367 ; Firbanh x. Ilumplircys (1886), 18 Q. B. D. 54. (o) (1892), 1 Q. B. 456. ip) (1893), 9 T. L. E. 488. {q) See also Oghshy v. J'V/fews(1858). E. B. & E. 930; Schmidts v. Aviry (19,^1), 16 Q. B. 655 ; Paicc v. Walker (1870),' L. R. 5 Ex. 173, which has been doubted by James, L.J., in Gadd v. Jfotijhton (1876), 1 Ex. D. 357 ; Weidnei- v. Hoggctt (1876), 1 C. P. D. 533. (?•) Cooke V. Wilson (1856). 1 C. B., N. S. 153. (s) Adams \. Hall (1877). 37 L. T. 70. {t) Lennard v. Rohinson (1855), 5 E. & B. 125. (m) Parker v, Winloio (1857;, 7 E. & B. 942. Cf. Hick v. Twcdy (1890), 63 L. T. 765. (.>■) Hough V. Man-anos (1879), 4 Ex. D. 104. AND AGENT. 29 II. Cases where agent has been held not personally liable. Case 6. — B. entered into a charter "between A. and C," and signed it " B. pro. A." A. had given B. no authority to make this contract, and did not adopt it. Held, that B., who had executed the charter in the name of another, and added his own name only as agent for that other, could not be treated as a party to the charter and sued upon it ; {rpccere unless it could be shewn he was the real principal) (y). Case 7. — Charter between A. and " D., as agents to C, merchant and charterer." Signed " for C, D. as agent ; for A., B. as agent." Held, that D. was not personally liable, upon a contract which both in its body and its signature was expressed to be made by him " as agent" (z). Case 8. — Charter between " B., acting for owners of the ship," and C. : "B. undertakes to pay demurrage on barges." Held, by Bramwell, L.J., that B. was not personally liable (a). Case 9. — Charter between A. and " D., as agents for merchants." Signed " D., as agents for merchants." Held, that, apart from custom, D. would not be personally liable (b). Note. — An ingenious point has been taken with varying suc- cess, where an agent lias been held personally liable on charters which also contain a cesser clause, i.e. " this charter being- entered into on behalf of others, it is agreed that all liability of agents shall cease on shipping of the cargo," or words to that eifect. In Ogleshi/ v. Yglesias (c) it was held by Erie and Crompton, JJ., that the agent, though personally liable on the charter, was freed by such a clause from all liability after ship- ]:)ing of cargo. On the other hand, in Schmaltz v. Avery (d), Patteson, J., delivering the judgment of the Court, said: " There is nothing in the argument that the plaintiff's res^ionsibility is expressly made to cease, ' as soon as the cargo is shipped,' for that limitation plainly applies only to his character as agent, and, being real principal, his responsibility -would unquestion- ably continue after the cargo was shipped." Of these contradictory decisions that in Oglesby v. Yglesias (c ) seems the more consistent with principle. If the plaintiffs relied on the defendant's character as principal, then with their eyes open they have agreed to the insertion of a clause directly limiting his liabilities, and the erroneous recital that he acts for another will not affect the question. And this is not inconsistent (t/) Jenkins t. Hutchinson (1849), 13 Q. B. 744. Vide ante, note to Article 11, p. 25. The remedy against B. was on a breach of warranty : Collen v. Wright (1857), 8 E. & B. 647. Yida ante, p. 27. («) Deslandes \. Gregory (I860), 2 E. & E. 602, but in Hough v. Manzanos (1879), 4 Ex. D. 104, Pollock, B., held that the words " as agents for charterers " in the body of the agreement are ambiguous. See, however, Hutchinson v. Tat ham, vide sub. (a) Wagstaff v. Anderson (1880), L. R. 5 C. P. D. 171. Judgment proceeded partly on the ground that " shipbrokers do not usually act for themselves." (6) Hutchinson v. Tatham (1873), L. R. 8 C. P. 482 ; Fitie v. Ongley (1887), 18 Q. B. D 708. (c) (1858), E. B. & E. 930. Id) (1851), 16 Q. B. 655, 663. 30 PRINCIPAL AND AGENT. with the case of Giillirhsen v. Steioart (c) ; for there, though persons exempted from liability after loading by a cesser clause were yet held lia1:)le for freight, it was on tlie subsequent con- tract in the bill of lading; on the charter alone they would, it is submitted, have been exempt. Barwich v. Burnyeat (/) even exemytts them on charter and bill of lading together, but is, it is submitted, wrong. Article 14. — Agent for Undisclosed Frinciiml (jj). Where an agent contracts for an undisclosed principal, evidence of a custom that the agent is personally liable, if he does not disclose his principal either at the time of the contract or within a reasonable time, is admissible to render the agent liable as principal, but not to exclude the prin- cipal's liability. Case. — D. entered into a charter with A., "as agents for merchants," and signed it, " as agents for merchants." Held, that evidence of a custom that if D. did not disclose to A. within a reasonable time the name of such merchants, D. was personally liable on the charter, was admissible (/<). Article 15. — Agent for Crown. Agents chartering on behalf of the Crown are not per- sonally liable (i). Article 16. — Classes of Agents. Agents who may have authority on behalf of the ship- owner to effect charters, sign bills of lading, or do ship's business generally, are : (e) (1884), i:^. Q. B. D. 317. (/) (1877), 36 L. T. 250. Vide sub, Article 18, note. ((/) On the liabilities of undiselosed principals and their agents : see Thomson v. Davenport, 2 Smith L. C. 10th Ed. p. 368, and notes thereto ; Iliijrjins v. Senior (184-1), 8 M. & W. 834. (A) Hutchinson v. Tathcun (1873), L. R. 8 C. P. 482; Pike v. Owjlqi (1887), 18 Q. B. D. 708. On this custom see also Dale v. Humfrey (1858), E. B. & E. 1004; Fleet v. Murton (1871), L. 11. 7 Q. B. 126 ; Southwell v. Bowditch (1876), 1 C. P. D. 100, 374. (i) MacBeath v. Haldimand (1786), 1 T. II. 172 ; Unwin x. Wolseley (1787), 1 T. Pt. 674; Gidley v. Lord Palmerston (1822), 3 B. & B. 275. In exceptional cases the agent may by the form of the charter expressly make himself liable, as in Cunningham v. Collirr (1785), 4 Douglas, 233, where Lord Mansfield held such an agent Lable. MANAGING OWNER. 31 (a.) The managing owner, (b.) Brokers. * (c.) The captain. (a.) Managing Oivner. The managing owner is an agent appointed by the other owners to do what is necessary to enable the ship to prose- cute her voyage and earn freight (k). He has authority to pledge his co-owners' credit for necessary repairs, when his co-owners cannot be com- municated with in time (I), but not otherwise ; nor can he, except under special circumstances, bind them by borrowing money (m). He cannot delegate his authority (n). He binds by his action those of his co-owners, who have appointed him or expressly assented to his appointment, or hold him out as having authority, and no others (o). The fact that any person is registered as "' managing- owner " is not conclusive that he has authority to bind his co-owners, but may be displaced by evidence of absence of authority (^j). In the absence of express instructions, he has the power to procure a charter, and make the contracts necessary to carry it out (q). He has no power, in the absence of such (k) Barker v. HighJey (1863), 15 C. B., X. S. 27, oi; Thomas v. Lcids (1878), L. II. 4 Ex. D. 18, 23. He used to be called "ship's husband." The ship's hus- band now is usually only a servant of the shipowner who undertakes the >pecial duty of looking after the ship's equipment and outfit. In the case of the limited companies (single ship companies), by which many steamships and sailing vessels are now owned, the articles of association provide for the appointment and powers of the "managing owner," and shareholders in them will be bound by the articles. By 57 & 58 Vict, c 60, s. 59 (1894), the name and address of the managing owner of every British ship, or of the ship's husband, or person to whom the management of the ship is entrusted by the owner, must be registered at the custom-house of the ship's port of registry. (See Appendix III.). (0 The Huntsman (1894), P. 214. (»0 Pringle v. Dixon (1896), 2 Com. Cases, 38; Doi-ij v. Trist (1897), 2 Com. Cases, 153; cf. Steele v. Dixon (1876), o Sc. Sess. Cases, 4th Series at p. UiOo. (n) Doeg v. Trist, vide supra. (o) Frazer v. Cuthbcrtson (1880), L. R. 6 Q. B. D. 93; Barker v. Highlejj, vide supra. But his co-owners may bring an action of restraint. See The England (1886), 12 P. D. 32; and Article 17((, post. As to the powers of a managing owner of several steamers, see National Bank of Scotland v. Dewhurst (1894), 1 Com. Cases, 318. (^)) Frazer v. Cuthhertson, vide supra. () \n JJiederichscn v. Farquharson (1898), 1 (j. B. 151, the point seems to have been involved, but not to have been discussed. It is dithcult to see how the charterer-shipper could have succeeded in that case, though the consignee, as indorsee from him, did. (2) (lf<89), 17 Sc. Sess. C. 1G7. 42 CHARTER AND the bill of lading alone, but offers no explanation of bow the bill of lading contains a contract in their case, when it did not in the case of their indorsers. (b.) Where the Shipper is other than the Charterer. Where a ship, while under charter, is still in the posses- sion of the captain, as servant of the shipowner (r), shippers of goods, other than tlie charterer, who receive bills of lading signed by the master or broker : — I. If they are ignorant of the provisions of the charter, will be held to have contracted with and can sue the ship- owner and not the charterer (s). They cannot be required to accept bills of lading in accordance with the charter, if such charter involves unusual or onerous terms, but can demand their goods buck, if shipped, at the ship's expense {t). II. If the shippers are aware of the provisions of the charter which make the captain the agent of the charterers, the master or broker in signing bills of lading will be held to have acted as the charterer's agent {u) and the shipper (»•) Baumvoll v. Gilchrest (1893), A. C. 9. If the master of the ship is not the servant of the owner, the owner will not be liable on the master's bills of lading (^same case). But the fact that the charter contains a clause that the captain shall sign bills of lading as agent for the charterers does not make him the servant of the charterers against shippers who do not know of the clause, if in other respects the ship still remains in the possession and control of the shiji- owners. Manchester Trust v. Furncss Withy ij- Co. (1895), 2 Q. B. 539. (s) Sandeman v. Scurr (1866), L. R. 2 Q. B. 8G (C.A.) ; The FigUa Maggiore (1868), L. K. 2 A. & E. 106 ; Hayn v. Culliford (1878), 3 C. P. D. 410 ; Wagstaff V. Anderson (1880), 5 C. P. D. 171 (C.A.) ; The St. Cloud (1863), B. & L. 4. If the charter is a demise, they can sue the charterer in tort, he being in possession of their goods, and also in contract, if the master is his servant: Baumvoll \, Gilchrest (^siqyra). (t) Peek V. Larsen (1871), L. R. 12 Eq. 378 ; The Stornoicag (1882), 51 L. J. Adm. 27. So also where there are a charter and a sub-charter, and the shipper only knows of one, he will not be bound by the other: Tharsis Sulphur Co. v. Culliford (1873), 22 W. K. 46 ; The Emilien Marie (1875), 44 L. J. Adm. 9. So also where a mate's receipt not agreeing with the terms of the shipping note is tendered: Armstronei v. Allaii (1892), 8 T. L. R. 613. (m) The St. Cloud (1863), B. & L. 4, at p. 15 ; Newberry v. Colvin (18^.2), 1 CI. & Fin. 283 ; Sandeman v. Scurr (1886), L. R. 2 Q. B., at pp. 97, 98 ; Blai/;ic v. Stembridge (1859), 6 C. B., N.S. 894. Manchester Trust v. Furness, Withy ) Grant v. Noricay (1851), 10 C. B. 665, at pp. 687, 688; Cox v. Bruce (1886), 18 Q. B. D. 147 ; Reynolds v. Jex (1865), 7 B. & S. 86. And see Article 20, post, and note thereto, p. 51. (g) Mitchell V. Scaife (1815), 4 Camp. 298. (r) Article 20, post. (s) Cliappel V. Comfort (1861), 10 ('. B., N.S. 802 ; Fry v. Mercantile Bank of India (1866), L. R. 1 C. P. 689; Smith v. Sieveking (1855), 4 E. & B. 945. " Where a charter is entered into, the special provisions of that charter are bind- ing only as between the charterer and shipowner, and if a bill of lading is signed by the master, and that bill of lading comes to the hands of an assignee for value. the latter is entitled to have the goods delivered to him on the terms mentioned 46 CHARTER AND will the indorsee be bound by verbal negotiations with the shipper not embodied in the bill of lading (t). Case 1. — A ship was chartered with certain excepted perils, including " restraint of princes." F. shipped goods in ignorance of the charter, and the master sigaed a bill of lading only containing an exception of " perils of the sea." In an action in rem by G., the consignees, who also were ignorant of the charter, against ship, owner, and master, for failing to deliver through " restraint of prices," held, that the owner was liable, and that the contract in the bill of lading was not affected by the contract in the charter of which F. aad G. were ignorant (u). Case 2. — A ship was chartered by 0. for a certain voyage, at a certain freight with a lien on the cargo for all freight, the master to sign bills of lading without prejudice to the charter. C. shipped goods for which the master signed a bill of lading, making the goods deliverable to G., " paying freight as per margin, i.e. £l'J6." 0. indorsed the bill for value to G. Held, that the owners having by their master signed bills making the goods deliverable on payment of a certain freight, could only claim that freight, and not the whole freight for which they had a lien under the charter, as against consignees who had advanced money on faith of the statements in the bill of lading (x). Case 3. — A. chartered a ship to C. at a certain freight, " A. or his agent to sign bills of lading at any rate of freight without prejudice to this charter." D., C.'s agent abroad, advanced money to the ship, and in con- sideration of such advance the master loaded goods from D., giving a bill of lading, " shipped by D., to be delivered to order, or assigns, paying freight to D.'s agent, G., as per margin." Held, that the master had no authority to make such a contract, and that A. was not bound by it to G., consignees of cargo (y). Case 4. — C. chartered a ship from A. to pay a certain freight, sixteen lay-days and demurrage at £2 per diem. C. shipped a cargo consigned to G. in London under a bill of lading, " paying freight as per charter," with a memorandum in the margin, " There are eight working days for un- loading in London." The vessel was detained four days beyond her lay- days. G. was sued by A. for demurrage. Held, that as the bill of lading in the bill of lading, and, properly speaking, is not bound to refer to the charter at all " (Willes, J., in Chappel v. Comfort, at p. 810). This is subject to reference to the charter lor any of its terms expressly incorporated in the bill of lading. And see post, Article 19. (T) Leduc V. Ward (1888), 20 Q. B. D. 475. (w) The Fatria (1871), L. R. 3 A & E. 436. Otherwise if F. had shipped through C, the charterer as agent. Dclaurier v. Wijllie (1889), 17 So. Sess. C. 167.' (x) Gilkison V. Middkton (1857), 2 C. B., N.S. 134-. See also Mitchell v. Scaife (1815), 4 Camp. 298. This case is distinguishable from cases like Kern v. Deslandcs (1861), 10 C. B., N.S. 205, by the fact that the holder is an indorsee for value, and not a mere agent or factor. Here too the owners seem to have authorised the signing of the bills of lading (see fer Cockuurn, C.J.), and so varied their lien. I have omitted the part of the case which was overruled in Kirchner V. Venus (1859), 12 Moore, P. C. 361, as to whether there was a lien for freight at all. (?/) Reynolds v. Jex (1865), 7 B. & S. 86. Such a contract as to freight was beyond the usual authority of a master, and should have put G. on inquiry. See also Arrospe v. Barr (1881), 8 Sc. Sess. C, 4th Ser. p. 602: The Canada (1897), 13 T. L. R. 238. BILL OF LADING. 47 endix \\\., iwst. Mistake or negligence of the master, not fraudulent, will not enable the indorsee to sue, if there has been fraud either of the shipper, his agent, or his vendor : Yalieri v. Boyland (1866), L. R. 1 C. P. 382. See also Pyman v. Burt (1884), 1 C. & E. 207, where the master's signature was obtained by pressure of the shipper's clerk, the authority of which was doubted by Lord Esher in Lishmann v. Christie (1887), 19 Q. B. D. 333. (0 Meyer v. Dresser (1864), 16 C. B., N.S. 646. (K) See note () recklessly, careless whether it is true or false." 60 CONDITION IS breach therefore entitles the other party to repudiate the charter, or 11. Terms of the Contract which one party has promised to be true. Their breach only gives rise to an action for damages, for their truth is not of such importance to the contract that their falsehood should destroy the ground of agreement between the parties (c). The breach of a condition precedent being waived by one party in so far that he does not repudiate the contract converts the condition precedent into a simple term of the contract, its breach giving an action for damages [d). If the party claiming to repudiate for breach of a condi- tion precedent has already after knowledge of the breach received substantial benefit under the contract, for which he will give no equivalent if he is allowed to repudiate the contract, he will not be entitled to repudiate, but will only have an action for damages (e). It is for the Court to determine whether a representation is a condition precedent, the jury finding the surrounding circumstances, from which the intention of the parties to the charter can be inferred (/). Note. — It is unusual to have any dispute about conditions precedent to a bill of lading : (1) because such disputes usually arise when the ship has sailed, and the shipper has no oppor- tunity of reclaimino; his goods ; and (2) because statements in a bill of lading are rarely important to original shippers. It is submitted that the description of the vessel in the bill of lading and any statement as to her destination or route {(f), probably (c) Behn v. Barness (1863), 3 B. & S. 751 (Ex.Ch.). See also per Bowen, L.J., in BentscnY. Tcvjlor (1893), 2 Q. B. at p. 280. (d) Bcntsen v. Taylor (1893), 2 Q. B. 274 (C.A.). Engmann v. Palgravc (1899), 4 Com. Cases, 75. (e) Behn v. Burness (1863), 3 B. & S. 751 ; Ohlsen v. Drummond (1785), 4 Dougl. 356; Havelock v. Geddcs (1809), 10 East, 555; Graves v. Legg (1854), 9 Ex. 709, 716 ; Fust v. Dowie (1864), 5 B. efe S. 20; 31acAndrew v. Chappie (1866), L. R. 1 C. P. 643; Bentscn v. Taylor (1893), 2 Q. B. 274. (/) Behn v. Burness, ride supra; Oppcnhcim v. Frazer (1876), 34 L. T. 524. \g) Thus in Leduc v. Ward (1888), 20 Q. B. D. 475, a statement in a bill of lading that the ship S. was now at X. and bound for Z., was held to contain a contract that the S. would proceed from X. to Z. by the ordinary route : SenMc, that if a shipper under such a bill of lading had subsequently and before sailing discovered the shipowner's intention to proceed by another and longer route, he could have demanded his goods back on failure of a condition precedent. See Feel v. Frice (1815), 4 Camp. 243, where the shipowner, after delivering a card giving destination, Z. by way of Y., subsequently altered it to Y. by way of Z., PRECEDENT. 6 1 also any statement as to her date of sailing on shipping cards, are, if insisted upon, conditions precedent, and that substantial inaccuracies in these matters, if discovered before the ship sails, would entitle the shipper to require his goods back, free of fi'eight and expenses. In Frazer v. Telegrajjh Go. (li) a statement in the bill of lading, " shipped on board the steamship S., from X. to Z.," was held to constitute a contract that the goods should be carried by a vessel whose principal motive power was steam : the ship was a sailing vessel with an auxiliary screw, and made the voyage entirely under sail. Held, that the contract was broken. Semhle, that if the shipper had discovered the character of the ship and her intended mode of progress, after he shipped the goods, but before she sailed, he could have demanded his goods back, free from freight and expenses, on failure of a condition precedent. Case 1. — A ship was chartered on October 19 as " the *S'. now in the port of Amsterdam . . . should with all possible despatch proceed to Newport and there load." On October 15 the *S'. was at Niewdiep, 62 miles from Amsterdam, and could have arrived there in twelve hours; but, owing to contrary winds and absence of steam-power, she did not arrive at Amsterdam till the 23rd. She discharged as quickly as possible, and reached Newport on December 1. The charterers refused to load. Held, that it was for the judge to construe this contract and decide as to the materiality of its statements, being influenced not only by its language, but also by the circumstances under which, and the purposes for which, it was entered into, which circumstances and purposes were to be found by the jury. That in this case the evidence shewed that the time of the ship's arrival to load was an essential fact for the charterer to know, and that the position of the ship at the time of entering into the charter was the only datum from which the charterer could calculate the time of the ship's arrival. That the truth of the words " now in the port of A." was, therefore, a condition precedent to the obligation of the charter, and their untruth entitled the charterer to repudiate it (i). Case 2. — A contract was made for the sale of such rice as may arrive by the ship S. " now at Rangoon." The ship was not then at Rangoon, and the buyers repudiated the contract. Ileld, that evidence that the presence of ship and cargo at Rangoon was of vital importance to the parties, as the prohibition of the export of rice from Rangoon was expected in conse- quence of famine in India, was admissible. Per Blackburn, J. : " It is never a fact to go to the jury what the words of a contract mean, but it is a fact to go to them under what circumstances are they made, and to what do they relate ; " and the contract must be constructed by the judge in con- nection with the findings of the jury on these points (Ic). and it was held that he was bound to give specific notice of the alteration to each shipper under the first card. In Armstrong v. Allan (1892), 8 T. L. R. 613, the clause in a shipping note, "no goods to be received on board unless a clean receipt can be given," was treated as a condition precedent, the breach of which entitled the shipper to redemand his goods. (/t) (1872), L. R. 7 Q. B. 566. (0 Behn v. Burness (1863), 3 B. & 8. 751. (Ji) Oppenheim v. Frazer (1876), 34- L. T. 524. See also Gorrissii v. Pcrrin (1857), 2 C. B., N.S. 681. 62 CONDITIONS Case 3. — A ship was chartered for twelve months certain, from Decem- ber 24 ; and the owner covenanted that the ship should be at his expense forthwith made seaworthy for a voyage of twelve months and kept sea- worthy during the voyage. She was not in fact seaworthy, but the charterer employed her for several months. Held, that under the circum- stances seaworthiness was not a condition precedent to the payment of freisht (Z). Case 4. — A ship was chartered at a freight of £1500, on condition of her taking a cargo of not less than 1000 tons of weight and measurement ; she could not carry such a cargo ; but the charterers loaded a cargo and the ship sailed witii it. Held, that even if the condition was broken, it was only under the circumstances a ground for damages and not a condition precedent (in). Case 5. — A ship was chartered to proceed to a safe port near Cape Town. The charterer did not name a port, but offered to send a supercargo with the ship to do so. Held, that his naming a port was a condition precedent to the obligation of the shipowner to commence the voyage (?i). Case 6. — A ship was chartered to be ready on or before November 10, or charterers to have the option of cancelling the agreement. Held, that such readiness was a condition precedent to the charter. The charter also contained a clause that the captain should attend daily at the broker's office to sign bills of lading. Held, that such a daily attend- ance was not a condition precedent to the right to sue under the charter (o). Article 2-1, — 81ii2)s Class on the Register. A statement in the charter of the ship's class on the register amounts only to a condition precedent that the ship at the time of making the charter is actually so classed {p) and not that she is rightly so classed {q), or that she will continue to be so classed during the term of the charter- party (r). Case 1. — A ship was chartered as the "A 1 British brig, S. of Liverpool." Held, a condition precedent to the charter that at the time of its making thfc ship was classed A 1 at Lloyd's {p). Case 2. — On September 4, a ship was chartered as " A 1^ Record of American and Foreign Shipping Book . . , the ship 8. newly classed as above." At that date the statement was correct. On November 13 she arrived at New Orleans to receive her cargo, and on November 25 her (0 Havelock v. GcJdes (1809), 10 East, 555. (m) Fust V. Dowio (1864), 5 B. & S. 20. ■ (n) Rw. V. Hackett {\M4-), 12 JI. & W. 724. See also Ohlsenx. Drummond (1785), 4 Dougl. 356 ; Bradford v. Williams (1872), L. R. 7 Ex. 259. (o) Secgcr v. Duthic (1860), 8 C. B., N.S. 45. Ip) Routh V. Macmillan (1863), 2 H. & C. 750. (q) French v. Ncircjass (1878), 3 C. P. D. 163. (r) Hurst v. Ushornc (1856), 18 C. B. 144, approved in French v. Ncwgass, vide supra. PRECEDENT. 63 classification was cancelled for unseaworthiness (s). Held, that the state- ment was only a warranty of the ship's being so classed at the making of the charter, and was not a continuing warranty of her being rightly in such class, or remaining so classed (^). Case 3. — A ship was chartered as " the good ship S. A 1." During her voyage she ran off her letter. Ueld, to amount to a warranty of her class at Lloyd's at the time of her charter, but not to a warranty tiiat she should continue of that class daring the charter, or that the owners would omit no act necessary to retain her in that class (r). Article 25. — Ship's Tonnage, or Dead Weight Capacity. A variation from the ship's tonnage as named in the charter will not be a breach of a condition precedent, unless the jury find the difference unreasonably great, or such as to be of material importance to the contract (t). Where a charter contains a guarantee that a ship shall or can carry a certain number of tons dead weight, or is of a certain dead weight capacity, such a guarantee is of the vessel's carrying capacity with reference to the contem- plated voyage, and the description of cargo proposed to be shipped, so far as that description was made known to the owners {u). If there is nothing in the contemplated voyage or the contemplated cargo to give any special meaning to the guarantee, it will be treated as a guarantee of the carrying capacity of the ship without reference to any particular cargo {x). Case 1. — A ship was chartered to carry all such goods as the charterers should send alongside; "owners guarantee that the vessel shall carry not less than 2000 tons dead weight. Should the vessel not carry the guaranteed dead weight as above ... a pro rata reduction per ton to be (s) The charterer could throw up the charter for unseaworthiness, if it could not be remedied within a reasonable time. See Article 29, post. Hurst v. Usbornc (1856), 18 C. B. 144, approved in French v. Nfwgass, vide supra. (t) So held in Barker v. Windle (1856), 6 E. & B. 675, where the chartered tonnage was from 180 to 200 tons, the actual tonnage 258 tons; and Gibhs v. Grcij (1857), 2 H. & N. 22, where the difference was between 470 and 350 tons. See Article 46, j)Ost. (m) Mackill V. ^Vri(jht(\iiiS\ 14 App. C. 106, per Lord Macnaghten at p. 120, Lord Watson at pp. 116, 117, Lord Halsbury at pp. 114, 115. See also Potter V. New Zealand Shipinng Co. (1895), 1 Com. Cases, 114. (a;) See Carnegie v. Conner (1889), 24 Q. B. D. 45, in which case, however, Mackill V. Wright (». s.) does not appear to have been cited. 64 CONDITIONS iiia(le from the first payment of freight." The cargo intended to be carried was a general cargo, in part composed of machinery, and there was a marginal note on the charter, specifying the numbers and measurements of the largest pieces of machinery. The ship was in fact of a carrying capacity of 2000 tons dead weight; the charterers tendertd a cargo of less than 2000 tons weight, but which largely exceeded 2000 tons weight and measurement, and which included more large pieces of machinery than were specified in the marginal note. The vessel in fact sailed with only 1691 tons weight on board. Held, that as the cargo was not that contemplated in the charter, and the cause of the vessel's not carrying 2000 tons dead weight was attribut- able to the charterers, they were not entitled to any deduction from the freight (?/). Case 2. — A ship was chartered to carry a general cargo, including measurement goods, on a line running from Antwerp to the Plate, to pay freight at so much per ton on guaranteed dead weight capacity, with a guarantee that the ship should carry 2430 tons dead weight, or a pro rata reduction to be made. The charterers tendered a cargo of 2430 tons weight, containing the usual proportions of weight and measurement goods on such a voyage. The vessel could carry 2430 tons of coal, but in fact only carried 2314 tons weight of the cargo tendered, and there was no evidence that the deficiency was attributable to the charterers. Suhmitted, that the charterers were entitled to a deduction from the freight (z). Note. — The term " tonnage " refers to register tons of 100 cubic feet, and has no reference to weight. The term " tons " by itself would mean a weight of 20 cwt., but the full phrase " ton of 20 cwt." is generally used. For payment of freight the ton is sometimes calculated at some specified number of cwt. less than twenty. The term " tons weight or measurement," means that goods shipped are to be taken either by weight of 20 cwt., or by measurement of 40 cubic feet, a measure probably derived from the measure of 20 cwt. of salt water ( = 35"7 cubic feet, the balance being the allowance for the hull carrying it). Whether goods are to be treated as weight or measurement goods for freight, is at the oj^tion of the shipowner. See, for the meaning of the phrase in a charter, Pust v. Dotoie (a). The number of tons of 20 cwt. a vegsel will lift is called her " dead weight capacity," for !>hort, "dead w^eight," " d. w.," or " capacity." " Capacity " is also applied to the " room " or number of cubic feet available for stowage in the holds of a ship, which may differ materially from the weight she can lift without putting her Plirasoll mark or load-line under water. The primary meaning of " dead- weight " appears to be simply (y) Mackill v. Wright (1888), 14 App. C. 106, joer Lord IMacnaghten at p. 120, Lord Watson at pp. 116, 117, Lord Halsbury at pp. 114, 115. («) This point arose in Hamilton v. Grant (1889), referred to the arbitration of a Queen's Counsel, but was not decided owing to a finding in favour of the char- terers, of improper stowage by the master. (a) Pust V. Dowie (18G4), 5 B. & S. 20. PRECEDENT. 65 "weight'"; it has, however, acquired a secondary meaning as applied to goods which measure less than 40 cubic feet per ton weight, and therefore pay freight oy weight. But it is sub- mitted that "dead weight" may include goods measuring more than 40 cubic feet per ton, which certainly have a weight, and that it is only not usually applied to them, because for freight- paying purposes this weight is immaterial. The case of Mac- hill V. Wright (h) must raise some difficult questions of construc- tion. It can no longer be said that the guarantee is one of mere carrying capacity (see per Lord Macnaghten at p. 120) ; the circumstances must be looked at in each case, and the question which arose in Case 2 shows the difficulties which may occur (c). Article 26. — Ship's Name and National Character. Substantial accuracy in the name of the vessel will be a condition precedent. The national character of the vessel as stated in the charter may be a condition precedent ; e.g. in time of war, when neutrality is an important circumstance {d). But a warranty of national character cannot be inferred from the mere name of the ship, and lias been held, in policies of insurance, only to rei'er to the time of the execution of the charter, and not to be a warranty continuing during the currency of the charter (e). (6) (1888), 14 App. C. 106. (c) In Carnegie v. Coniwr (1889), 24 Q. B. D. 45, the ship was chartered to " load a cargo of creosoted sleepers and timbers . . . chartei-er having option of shipping 100/200 tons of general cargo . . . owners guarantee ship to carry at least about 90,000 cubic feet or 1500 tons dead weight of cargo." The charterer tendered a cargo of 1500 tons dead weight, including less than 200 tons general cargo; and the actual measurement of the cargo tendered did not exceed 90.0uu cubic feet; but, owing to awkward stowage of the sleepers, only 1120 tons dead weight, measuring G4,400 cubic feet, were shipped. The judge at the trial directed the jury that the guarantee applied to the kind of cargo specified in the charter. The Divisional Court held that the guarantee was merely of carrying capacity, and sent the case down for a new trial. This case was decided on October 25, 1889, but unfortunately MackiU v. Wrigld, decided on December 18, 1888, and reported in August 18s9, was not cited to the Court, whose judgment loses some of its authority from the omission, as the dicta in MackiU v. Wright are certainly inconsistent with those in Carnegie x. Conner. ((/) Behti v. liurness (1863), ;j i'>. & .S. 751, at p. 757. During the Spanish- American War in 1898, lay arbitrators under a charter to nonduate a tirst-class steamer held that a tender of a Spanish steamer was a bad tender, on the ground that being liable to capture, she was not fit to cany the cargo. The C.A. declined to order a special case to be stated. Hoyland v. ^ci//(', October 29, 1898. (e) Arnould on Insurance, 6th ed., p. 621; Baring v. Christie (1804), 5 East, .398 ; Dent v. Smith (1868), L. R. 4 (I B. 414. 66 CONDITIONS. Article 27. — Whereahouts of Ship and Time of Sailing. A statement of the position of the ship at the time of making the charter (/), or that she will be at a certain place by a certain day (g), or that she will be ready to receive cargo by a certain day (h), or that she will sail on her voyage by a certain day (i), is usually a condition precedent to obligations under the charter. The fact that the breach of such a condition precedent results from perils excepted in the charter will not prevent its being a condition precedent (/;;). A statement that a ship will proceed or sail or load with all convenient speed is not a condition precedent, unless the delay frustrates the commercial purpose of the voyage (I). Case 1. — Behn v. Burness (rn). Case 2. — A ship, on March 29, was stated in the charter to be " now sailed or about to sail." She did not in fact sail till April 23. Held, that the statement was a condition precedent, and was broken {n). Case 3. — A ship was chartered " now at sea, having sailed three weeks ago," to sail to X. and there load a cargo. The ship had not in fact " sailed three weeks ago." Held, the statement was a condition precedent, and its breach entitled tlie charterer to throw up the charter (o). (/) Behn v. Burness (1863), 3 B. &S. 751 ; Ollhe v. Booker (1847), 1 Ex. 416; Oppenheim v. Frazer (1876), 34 L. T. 524. {g) Gorhling v. Masseg (1873), L. R. 8 C. P. 395. (A) Oliver v. Fielden (1849), 4 Exch. 135 ; Seeger v. Duthie (1860), 8 C. B., N.S. 45 ; Sliadforth v. Higgin (1813), 3 Camp. 385. (0 Glaholm v. Hays (1841), 2. M. & G. 257; Van Baggen v. Babies (1854), 9 Ex. 523; Deffell v. Brocklchank (1817), 4 Price, 36; Bentsen v. Taylor (1893), 2 Q. B. 274. (/;) Smith V. Dart (1884), L. R. 14 Q. B. D. 105 ; Croockewit v. Fletcher (1857), 1 H. & N. 893. (I) Dlmech v. Corlett (1858), 12 Moore P. C. 199 ; Tarrahochia v. Hickie (1856), 1 H. & N. 183 ; Mac Andrew v. Chappie (1866), 1 L. R. C. P. 643 ; Clipsham v. Vertue (1843), 5 Q. B. 265. And see Article 30, jwst. The common "cancelling clause," by which the charterer has the option of cancelling the charter if the ship is not ready to load by a certain day, appears to go no further than a clause "ready to load by " a certain date, compliance with which would be a condition j)recedent. The " cancelling clause " may be so strict as to give neither party :in option, as in Adamson v. Nevxastle Association (1879), 4 Q. B. D. 462. {m) Vide ante, Article 23, Case 1, p. 61 (1863, 3 B. & S. 751. Behn v. Burness (1863) came before the Exchequer Chamber as a test case to decide whether Ollive v. Booker (1847), and Glaholm v. Hays (1841), or Dimech v. Corlett (1858), were good law, assuming them to contradict each other. The Court held both to be good law, treating Dimech v. Corlett as the application of Ollive V. Booker to a set of very special facts. Sharp v. Gibhs (1857), 1 H. & X. 801, also turns on very special facts. (n) Bentsen v. Taylor (1893), 2 Q. B. 274 (C.A.). (o) Ollive V. Booker (1847), 1 Exch. 416. PBECEDENT. 67 Case 4. — A ship was chartered " expected to be at X. about the IHtli December . . . shall with all convenient speed sail to X." The ship was in fact then on such a voyage that she could not complete it and be at X. by December 15. Suhmitted, that the charterer was entitled to throw up the charter (p). Case 5. — A ship was chartered "now on the stocks, and ready to receive cargo in all May." Held, a condition precedent (q). Case 6. — A ship was chartered " to proceed to X., the vessel to sail from Y. on or before the 4th of February." Held, a condition precedent (r). Case 7. — Charter to proceed to X., " and on arrival there to load and to sail with June convoy, provided she arrived out and was ready to load sixty- five running days previous to the sailing of such convoy." The ship was not ready to load sixty-five days before the June convoy. Held, the breach only absolved her from sailing with the June convoy, and did not free her altogether from her obligation to load and proceed (s). Case 8. — A ship was chartered to proceed to X, and there load ..." the act of God, and perils of the seas during the said voyage always excepted ; should the steamer not be arrived at X. free of pratique and ready to load on or before December 15, the cliarterers to have the option of cancelling or confirming the charter." Through dangers of the sea, the steamer, though at X., was not free of pratique by December 15, and the charterers cancelled. Held, that the clause as to excepted perils did not prevent them from so doing (t). Case 9. — A ship was chartered on February 24, from X. to Y., and thence to Z. The charter described her as (1) coppered A 1 of X. : (2) now at anchor in this port, and contained a clause (3) that she should "proceed with all convenient speed." At the execution of the charter, the ship (1) was not coppered and had no class on the register ; (2) was not at anchor in the port, being then coppered as a new vessel in dry dock ; and (3) did not leave X. till March 30. The charterer was at X. and knew of the delay, but did not repudiate the charter. Held (1) that " A 1 coppered " referred to the date of sailing, and not to the date of the charter (u). (2) That " now at anchor in the port " was too unimportant to be made a condition precedent, unless it could be shewn that the object of the charter had been frustrated by its untruth, (3) That the term " to sail with all convenient speed," though undoubtedly broken, could not be treated as a condition precedent (x), since the charterer knew of its breach and did not throw up the charter (y). (^p) See CorkUng v. Masseij (1873), L. R. 8 C. P. 395. (ib Articles 99, 100. (d) Clipsham V. Verfuc (1843), 5 Q. B. 265. (e) The Glcnfruin (1885), 10 P. D. 103; Smithy. Dart (1884), 14 Q. B. D. 105 ; Qilrou v. Price (1893), A. C, 56 ; Seville v. Colrils & Co. (1888), 15 8c. Sess. C, 4th Ser. 616, cf. on facts with Cunnmrjham v. Colvils (1888), 16 Sc. Sess. C, 4th Ser. 295; The Waikato (1899), 1 Q. B. 56 (C.A.). UNDERTAKING OF SEAWORTHINESS. 69 Article 29. — Undertaking of Seaworthiness. A shipowner by contracting to carry goods in a ship, in the absence of express stipulation (/), impliedly undertakes that his ship is seaworthy {g). The seaworthiness required is relative to the particular voyage contracted for, and the particular stages of that voyage, being different for summer or for winter voyages, for river and lake, or for sea navigation (Ji), and varies with the particular cargo contracted to be carried {i). The undertaking is not merely that the shipowner will do and has done his best to make the ship fit, but that the ship really is fit in all respects to carry her cargo safely to its destination, having regard to the ordinary perils to which such a cargo would be exposed on such a voyage (h). The seaworthiness must exist not only at the commence- ment of loading, but also at the time of sailing from the port of loading, and it then includes an undertaking that the stowage is fit and proper for the proposed voyage (Z). If the charterer or shipper discovers the unseaworthiness before commencing the voyage, and the ship cannot be made (/) See note, post, p. 74, aud The Laertes (1887), 12 P. D. 187 ; Dohell v. S.S. Eossmore (1895), 2 Q. B. 408. (q) Steel V. State Line Steamship Co. (1877), 3 App. C. 72 ; The Marathon (1879), 40 L. T. 163; Cohn v. Davidson (1877), 2 Q. B. D. 455; Kopitoff v. WiVso?i (1876), 1 Q. B. D. 377 ; Lyon v. Mells (1804), 5 East, 428. (A) Thin V. Richards (1892), 2 Q. B. 141; Daniels v. Harris (1874), L. R. 10 C. P. 1 ; Annen v. Woodman (1810), 3 Taunt. 299. («) Stanton v. Richardson (1875), 45 L. J. 78 (H. L.) ; Tattersall v. Nationai Steamship Co. (1884), 12 Q. B. D. 297; The Marathon (1879), 40 L. T, 163; Maori King v. Hughes (1895), 2 Q. B. 550 (C. A.) (refrigerating machinery) ; Queensland Bank v. P. <^ 0. Co. (1898), 1 Q. B. 567 (C.A.) (bullion in a bullion room); The Waikato (1899), 1 Q. B. 56 (C.A.) (wool in an insulated hold). (h) Hedley v. Pinknnj S.S. Go. (1894), A.C. at p. 227 ; Maori King v. Hughes (1895), 2 Q. B. 550; Steelx. State Line Co. (1877), 3 App. C, at p. 86; The Glenfruin (1885), 10 P. D. 103. A defect that can be remedied in a few minutes at sea is not unseaworthiness. Hcdleg v. Pinkney (1894), A.C. 222. So temporary repairs to one boiler of two preventing its use for a short time was held not unseaworthiness in The Pentland (1897), 13 Times L. R. 430. Otherwise if the defect, though easily remediable, cannot be reached while at sea to be remedied, as in Steel v. State Line S.S. Co. (1877), 3 App. C. 72. (0 Cohn V. Davidson (1877), 2 Q. B. D. 455. Filling the boilers of a steamship with muddy water at starting has been held unseaworthiness, from which the owner was not protected by an exception of negligence of navigation. Seville Co. v. Colvils, vide sub. ; but compare with Cunningham v. Colvils (1888), 16 Sc. Se.ss. C, 4th Ser. 295. 70 UNDERTAKING OF seaworthy in a time which it is reasonable, under the cir- cumstances, that the charterer or shipper should wait, he may throw up the contract of hire or carriage (m). If unseaworthiness arises in the course of the voyage, and the shipowner has an opportunity to remedy it, he is bound to remedy it before proceeding on the voyage, but cannot require the charterer or shipper to wait more than a reason- able time for that purpose {n). The shipowner will be liable in damages for loss caused by : (1) unseaworthiness at starting, unless he is expressly protected from such liability by exceptions in the charter or bill of lading (o); (2) unseaworthiness on the voyage, not covered by exceptions, even though he has no oppor- tunity to repair it ; (3) unseaworthiness on the voyage, though covered by exceptions, which he has an opportunity to repair, if he proceed without repairing (p). This implied undertaking arises not from the shipowner's position as a common carrier, but from his acting as a shipowner {q). Note. — In time policies of insurance there is no implied warranty of initial seaworthiness (r) owing to the hardship of requiring the shipowner to undertake that his vessel is sea- worthy at a time when she is at sea beyond his control, a time at which such policies frequently begin to run. There is also the difficulty of deciding what constitutes sea-worthiness for a definite time, but for unknown voyages. These considerations do not apply so strongly to time charters, which usually, though (»i) Stanton v. Eichardson (1875), 45 L. J. (H. L.) 78; Tulhj v. HovAinj (1877), 2 Q. B. D. 182. (n) Worms v. Storcij (1855), 11 Ex. 427 ; The Bona (1884), 51 L. T. 28 ; TUn V. Richards (1892), 2 Q. B. 141 ; Assicurazioni v. Bessie Morris S.S. Co. (1892), 2 Q, B. 652 (C.A.). See The Yortigern (1899), 4 Com. Cases. (o) As in The l((crtes (1887), 12 P. D. 187. For cases where exceptions did not protect him, see The Glenfruin (1885), 10 P. D. 103; The Undaunted (1886), 11 P. D. 46 ; Seville Co. v. Colvils <^ Co. (1888), 15 Sc. Sess. C, 4th Ser. 616; Gilroy v. Price (1893), A. C. 56; Maori King (18Q5), 2 Q. B. 550; Queensland Dank V. P. & 0. Co. (1899), 1 Q. B. 567 ; The Waihato (1899), 1 Q. B. 56 (C.A.). (p) Wo7-ms V. Storey (1855), 11 Ex. 427 ; Thin v. Jiichards (1892), 2 Q. B. 141. (q) Kopitoff V. Wilson (1876), 1 Q. B. D. 377. A tug-owner also impliedly contracts that his tug is properly equipped and supplied with coals: The Un- daunted (1886), 11 P. D. 46. But see liobertson v. Amaf:on Tug Co. (1881), 7 (I. B. D. 598, negativing an implied contract of efficiency, where the tug is named ; the facts there, however, were very unusual. ()•) Gibson v. Small (1853), 4 H. L. C. 353. SEA WOE TITINESS. 7 1 not always, commence with the A'essel's starting from port for a known voyage. A time charter, therefore, includes an under- taking of seaworthiness at the beginning of the time. Where several voj^'ages are included in the charter, special provisions are frequently inserted (s). In the absence of such jDrovisions, the owner must be held to undertake that his ship is seaworthy on leaving each place where he has an opportunity to remedy unseaworthiness (/). Note 2. — Seaivorthj : that the ship should be in a condition to encounter whatever perils a ship of that kind and laden in that way might be fairly expected to encounter in making such a voyage at such a time of year. Thus, the ship must be properly ballasted and dunnaged (u). A ship chartered to carry gun- powder must have the magazine required by the Board of Trade regulations. The shipowner must provide the ship with all necessary documents for the voyage (x) ; but in Wilson v. Ban- Jcin (y), the certificate of the port of loading as to stowage, the absence of which did not increase the risk of the voyage, or affect the admissibility of the ship at her port of discharge, was held not an essential to seaworthiness. Case 1. — F. shipped goods under a bill of lading, which excepted " perils whether or not arising from negligence of A.'s servants, risk of craft or hull, or any damage thereto, &c." Seawater entered through the negligence of some of the crew in leaving a lower port insufficieatly fastened. Held, that if this were so at the beginning of the voyage the ship was then miseaworthy, and the exceptions of the bill of lading did not protect the shipowner, as they do not apply till the voyage has begun (2). That such a bill of lading contained an implied undertaking that the ship was, at the time of its departure, reasonably fit for accomplishing the services which the shipowner engages to perform (a). Case 2. — A ship was chartered to proceed to a wharf in the river X., and there take on board a cargo, and proceed to Z. She was seaworthy when she began to load, but unseaworthy when she put to sea. Held, that the owner undertakes that the ship shall be seaworthy for the intended voyage at the time of her sailing on it : that what is seaworthi- ness for loading in harbour may be unseaworthiness for the voyage : that the ship may be, without any breach of the undertaking, unseaworthy for (s) See Hiph-y v. Sccufe (1826), 5 B. & C. 167 ; Havdock v. Gcddcs (1809), 10 East, 555. (0 Worms V. Storey (1855), 11 Ex. 427; The Bona (1884), 51 L. T. 28; Thin V. Richards (1892), 2 Q. B, 141. (m) Vide Article 49. (.(•) Levy V. Costerton (1816), 4 Camp. 389 ; Button v, Poides (1861), 30 L. ,J.. N.S. Q. B. 169. iy) (1865), L. R. 1 Q. B. 162. (i) in charters, both the carr\'ing voyage, ami the chartered voyage, whicli need not coincide with the carrving voyage; in bills of lading, the carrying voyage: Hudson v. Hill (1874), 43 L. J. C. P. 273; Barker v. 31' Andrew (1865), 18 (J. B., N.S. 759. (a) Sted V. State Line Steamship Co. (1877), L. W. 3 App. C. 72; cf. Oilroy v. Pnc''(1893), A. C. 56. 72 UNDERTAKING OF the voyage while in port, if she is seaworthy for loading, but will break the undertaking if she leaves port in that condition (6). Case 3. — A ship was chartered to proceed to the East Indies and take on board a cargo of, inter alia, wet sugar. The ship was seaworthy for any cargo except wet sugar, for which she had not pumps of sufficient capacity. Held, that the charter implied an undertaking that the ship was fit to carry wet sugar, and that, as the ship could not be made fit without a delay unreasonable under the circumstances of the contract, the charterer was justified in throwing up the charter (c). Case 4. — A ship was chartered on March 4, " for twelve months, for as many consecutive voyages, as the t^aid sl:ip can enter upon after comple- tion of the present voyage " from X to Z. When the ship had completed that voyage, she was found to be unseaworthy, and the necessary repairs delayed her for two months. The charterer threw up the charter. Held, by the whole Court, that he was justified : by Brett, J., on the ground that the ship was not reasonably fit for the purpose for which she was chartered, and could not be made fit within any time which would not have frustrated the object of the adventure (d) : hy the rest of the Court (e), on the ground that time was of the essence of the contract, and that the charterer was not bound to accept the ship for a time shorter than or substantially different fiom that which he had contracted for(/). Case 5. — F. shipped cattle under a bill of lading agreeing that the shipowner was not liable for accidents, disease or mortality, and under no circumstances for more than £5 per anmial. The ship, after carrying a cargo of cattle on a previous voyage, was improperly cleaned, and F.'s cattle took foot and mouth disease. Held, there was a duty on the ship- owner to have the ship reasonably fit for the carriage of the goods he had contracted for, and that, such duty being neglected, the limitations of liability did not apply {g). Case 6. — A steamer carried frozen meat from Australia to Europe with an exception in the bill of lading, " steamer shall not be accountable . . . for the condition of goods shipped under this bill of lading, nor for any loss or damage thereto arising from failure or breakdown of machinery." On the voyage the refrigeratmg machinery broke down, owing to its defective condition at starting, and the meat was damaged. Held, that there was an implied warranty that the ship should at starting be fitted with refrigerating machinery fit to carry the meat to Europe ; that this warranty was broken ; that the exceptions therefore did not apply, and that the shijwwner was liable (Ji). (b) Cohn V. Daiidson (1877), 2 Q. B. D. 455 ; in Kopitoff v. Wilson (1876), 1 Q. B. D. 377, in which armour-plates broke loose from their stowage and sank the ship, the question left to the jury was: "Was the ship at the time of sailing in a state, as regards the receiving and stowing of the plates, reasonably fit to encounter the ordinary perils that might be expected at a voyage at that season? " (c) Stanton v. Richardson (1875), 45 L. J. (H. L.) 78. (d) It seems that this is more in accord with principle than the other view ; it time were of the essence of the contract, one day's delay would free the charterer, but the Court recognise the other position in the phrase " a substantially different time." (e) Hellish, L.J., Amphlett, J.A., Kelly, C.B. ( f) Tulb) V. Howling (1877), 2 Q.B. D. 182. ((\) Tattcrsnll v. Natioiial S.S. Co. (1884), 12 Q. B. D. 297. (A) Maori King v. Hughes (1895), 2 Q. B. 550 (C.A.). See also Queensland Bank V. P. (J- 0. Go. (1898), 1 Q. B. 567 (C.A.), in which in a bill of lading for SEAWORTHINESS. 73 Case 7. — A ship was chartered, " then being tight, staunch and strong," to proceed from X. to Z., "all other unavoidable (t) hindrances, dangers and accidents of the sea excepted." She was seaworthy when she started, but became unseaworthy by excepted perils during the voyage, and put into a port, where she could have been repaired. She proceeded tu sea without rejDairs. Held, that she was not bound to repair or proceed, but if she wished to proceed, she must repair, and that the owner was liable for damage on the further voyage, caused by the unseaworthiness of his vessel (Jc). Case 8. — A vessel was damaged while on her voyage by decks straining, and the master, having an opportunity to repair, proceeded without caulking the decks. In consequence the cargo was damaged. Held, that the shipowner was liable for such damage (J). Case 9. — A ship, chartered to carry tea, carried antimony as ballast. The charterers, alleging that the fumes of antimony were prejudicial to tea, refused to load. Antimony in fact was not prejudicial to tea. Held, that the ship being in fact fit to carry the cargo, the fact that there was a general belief that it was unfit was no defence to the charterer (m). 'Note. — It is not now unusual to find in bills of lading a clause limiting this undertaking to one that due diligence has been used to make the ship seaworthy : e.g. "All the above excep- tions are conditional on the ship being seaworthy when she sails on the voyage, but any latent defects in the machinery shall not be considered unseaworthiness, provided the same do not result from want of due diligence of the owners, or any of them, or tlie ship's husband or manager ; " or " It is expressly declared that the company are not liable for loss or damage occasioned by any defects whatsoever in the hull, machinery, or equipment of this vessel .... whether such defects existed before the commencement of or arose or developed during the voyage, provided all reasonable means have been taken to make the vessel seaworthy " (w). the carriage of specie, on an admission that it was usual to carry specie Iq a bullion room, there was held an implied warranty that the bullion room was reasonably fit to resist thieves; and The Waikato (1899), 1 Q. B. 56 (C.A.), where, wool being damaged by being stowed in an insulated hold, there was held to be an implied warranty that the hold was fit to carry wool, in spite of an exception : " loss or damage arising from . . . defects latent on beginning voyage or otherwise." (i) Unavoidable = Unavoidable by ordinary despatch and diligence. Granger- V. Dent (1829), M. & M. 475. {]:) Worms v. Storey (1855), 11 Ex. 427. (0 The Bona (1884), 51 L. T. 28. Cf. Thin v. Richards (1892), 2 Q. B. 141, where a vessel having liberty to call at ports on her voyage, started with a supply of coal sufficient to take her to her first port of call, insufficient to take her the whole voyage, and did not take fresh coal on board at her port of call. She w.as lost through insufficient coal. The shipowners were held liable by the C. A. (1) if the voyage was one voyage, because the ship was unseaworthy for that one voyage at its commencement, (2) if it was a voyage in stages, because the shij) was unseaworthy on leaving the port of call. Gf. Biccard v. Shepherd (^IS6\), 14 -Moore P. C. 471, and Dixon v. Sadler (18-19), 5 M, & W. 405. (m) Towse v. Henderson (1850), 4 Ex. 890. (»i) These two exceptions bear the mark of The Glenfruin (1885), 10 1*. D. 74 UNDERTAKING OF A common Liverpool exception is " unseaworthiness of the vessel at the commencement of the voyage, provided all reason- able means have been taken to provide against the same." A few bills go so far as even to negative liability even for unsea- worthiness caused by negligence, e.g. " In accepting this bill of lading the shipper expressly agrees that the steamer is sea- worthy and reasonably fit for the carriage of the cargo herein contracted to be carried (o), at the time of starting on the voyage, and under no circumstances is such seaworthiness or fitness to be questioned ; " and, again, " not liable for act, neglect, or default of any person or persons in providing, despatching, and navigating the ship." A form of clause which has been adopted in consequence of the Harter Act (see Appendix V.) exempts the owners from negligence in navigation or mismanagement provided due diligence has been exercised by her owners to make the vessel in all respects seaworthy. This was held in Dohell v. S.S. Bossmore (p), to require not only that the owner, but also that all persons employed by him to ensure seaworthiness, should, have used due diligence. Article 30. — TJndertahing of reasonahle Dispatch. The shipowner impliedly undertakes that his vessel shall be ready to commence the voyage agreed on, and to load the cargo to be carried, and shall proceed upon and com- plete the voyage agreed on, in a time which is reason- able having regard to the charterer's or shipper's voyage or adventure (q), i.e. in such a time that in a commercial sense the commercial speculation entered into can be carried out (r). If one of the parties is prevented from complying with this 103. See other clauses in The Laertes (1887), 19 P. D. 187, where the shipowner was held protected by exceptions limiting the warranty of seaworthiness. (o) This bears the mark of Tattersall v. National S.S. Co. (1884), 12 Q. B. D. 297. (p) Bohell V. S.S. Eossmorc (1895), 2 Q. B. 408. ((/) Jackson V. Union Marine Insurance Co. (1874), L. li. 10 C. P. 123 ; Tally V. Ilowliwj (1877), 2 Q. B. D. 182; dicta of Judges in Rankin v. Potter (1872), L. R. 6 H. L. 83 ; M'Andreic v. Adams (1834), 1 Bing. N. C. 29 ; Fuider v. Kiwop (1878), 4 Q. B. D. 299 (unloading). Assicurazioni v. Bessie Morris (1892), 1 Q. B. 571, at p. 577; (C.A.) (1892), 2 Q. B. 652. See also Domddson v. Little (1882), 10 So. Sess. Cases, 4th. Ser. 413 ; Mackenzie v. Liddell (1883), ibid. l()b. (r) See Note 1 ; jjost, p. 76. REASONABLE Dl^FATCII. 76 undertaking by obstacles not known to the parties when they entered on the charter (s), and which cannot be removed within a reasonable time as defined above, the other party, whether charterer or shipowner, may throw up the charter {t) ; whether shipowner or shipper he may repudiate the contract contained in the bill of lading {u). If the obstacle to performance is one of the excepted perils, no action will lie against the party so prevented for his failure to perform the contract. If the obstacle is not covered by the exceptions, an action will lie against the party failing to perform his contract. If the delay, though unreasonable, is not such as to frus- trate the commercial purpose of the adventure, it will be a ground for an action for damages, but will not justify the repudiation of the charter {x). Case 1. — A ship was chartered in November, 1871, to proceed witli all possible dispatch, dangers and accidents of navigation excepted, from Liverpool to Newport, and there load iron for San Francisco. She sailed from L. to N, on January 2, 1872, and stranded on the way on January 3. The necessary repairs took till the end of August. On February 15, the charterers threw up the charter. The jury found that the time necessary for getting the ship off and repairing her was so long as to put an end, in a commercial sense, to the commercial speculation entered upon by the shipowner and charterer. Held, that the charterer was justified under the circumstances in throwing up the charter, though as the delay arose from excepted perils he had no action against the shipowner (?/). Case 2. — A ship is chartered to fetch ice from Norway in March, to be delivered in June ; owing to delay from perils of the sea she cannot arrive in Norway till August, or at her tinal destination till November. Stibmitted ; the charterer may throw up the charter (z). Case 3. — A ship was chartered to proceed to Z. with all convenient speed, with an exception of "restraint of princes." Before anything had been done under the charter, the French Government declared Z. blockaded. Held, that the shipowner was only bound to wait a reasonable time for the (s) Medciros v. Hill (1832), 8 Bing. 231. it) Jackson V. Union Marine Insurance Co. (1874), vide supra; Geipcl v. Smith (1872), L. R. 7 Q. B. 404. (m) See Note 2 ; jMst, p. 78. {x) CUpsham v. Verhie (1843), 5 Q. B. 265 ; Tarrabochia v. Hickie (1856), 1 H. & N. 183 ; MacAndrew v. Chappie (1866), L. R. 1 C. P. 643 ; cf. Collard v. Carsuvll {The Victoria) (1892), 19 Sc Sess. C 987, where two days' delay in taking delivery was held not to justify repudiation. (y) Jackson V. Union Marine Insurance Co. (1874), L. R. 10 C. P. 125. See also Tzdly v. Hoidimj (1877), 2 Q. B. 1). 182. (a) On authority of Jackson v. Union Mariiv: Insurance Co. vide supra, see jj/r Bramweil, B., pp. 141, 143, 146. Touteng v. Hubbard (1802), 3 B. &: P. 291, must be taken as oveiTuled so far as it contradicts Case 2. 76 liEASONABLE DISPATCH. ■ removal of such an obstacle, and as it was likely to continue so long as to defeat the object of such a commercial adventure, the shipowner was justified in throwing up the charter, and in refusing to load at all, though the loading was not prevented by the blockade of Z (a). Case 4. — A ship was chartered as " bound to Nantes," to load at Nantes and proceed to Z. Before proceeding to Nantes, the ship went to New- castle. The charterer alleged unreasonable delay, and refused to load. Held, that such an allegation was only a ground for an action for damages, and would not support a repudiation of the charter unless it was also alleged that the delay frustrated the object of the voyage (h). Case 5. — A ship was chartered " with all convenient speed, having liberty to take an outward cargo for owner's benefit, direct on the way, to proceed to X, and there load a full cargo." The ship deviated to Y. which was not " direct on the way " to X., and arrived at X. a few days late. The charterer refused to load. It was admitted that the object of the voyage was not frustrated, and the whole Court held, that the charterer was not entitled to repudiate the charter, but had his remedy in damages (c). Case 6. — Owing to the delay of the master of a ship, who omitted to take on board provisions and stores while the cargo was loading, the ship was detained after her loading was completed, so that the harbour froze and she was ice-bound for the winter. Held, that the shipowners were liable for the damages resulting from such delay {d). Case 7. — A ship was chartered on October 20, to go in ballast to X., and bring back a cargo of fruit direct to Z. ; if the vessel did not arrive at X. by January 31, the charterer was to be at liberty to cancel the charter. The ship did arrive before January 31, but made au intermediate voyage before so doing. Held, that the charterer was entitled to throw up the charter, the implied undertaking to proceed with reasonable speed having been broken (e). Note 1. — The case of Jackson v. Union Marine Insurance (f) has never been formally approved by the House of Lords, tbough Lord Blackburn in Dahl v. Nelson said ((/) : " There was a dissenting minority" [z.e. Cleasby, B], "in that case, and some ])revious authorities are perhaps not quite consistent with it. It is no doubt competent to your Lordships to reconsider that case, and decide contrary to it; I think it was rightly decided." In the same case Lord Watson said (Ji) : " 1 adopt the view of Brett, L.J. (?'), that the shipowner must bring his ship to the (a) Geipd v. Smith (1872), L. R. 7 Q. B. 404. (6) C/ipsham v. Vertue (1843), 5 Q. B. 265. See also Tarrahochia v. Hickie (1856), 1 H. & N. 183. (c) MacAndrew v. Chap^jle (1866), L. R. 1 C. P. 043. See also Bornniann v. Tooke (1808), 1 Camp. 377. But see Freeman v. Taylor (1831), 8 Bing. 124, where six weeks* delay and deviation on the outward voyage, found by the jury to frustrate the object of the charter, was held to put an end to the charter. (d) The Wilhelm (1866), 14 L. T. 636. (e) M' Andrew v. Adams (1834), 1 Bing. N. C. 29 (a good example of the double undertaking, express and implied). (/) L. R. 10 C. P. 125(1874). (j) (1896), 1 Q. B. 586. Iz) (1896), 1 Com. Cases, 360. (rt) See the general statement of the law hj Brett, L.J., in Nelson v. Dcihl (1879). 12 Ch. b. 580-585. (6) Kelso7i.y. Bahl, 12 Ch. D. 582,;«'7- Brett, L.J. ; Brercton v. Chapman (\SZ\), 7 Bitg. 559; Kell v. Anderson (1842), 10 51. & W. 498; Cargo ex Argos (1873), L. R. 5 P. C, at p. 160 ; Lacour v. Donaldson (1874), 1 Sc. Sess. Cases, 4th Ser. 192 ; Ship Milverton Co. v. Cape Town Gas Co. (1897), 2 Com. Cases, 281 ; The Jifari/ Thomas (1896), 12 T. L. R. 511 ; Sanders v. Jenkins (1896), 2 Com. Cases, 12, VOYAGE BEGINS. 93 ship shall load at, and has a reasonable time allowed for arriving at that decision ; but he must choose a berth that is free, or likely to be free in a reasonable time (c). If the owner, without waiting a reasonable time for the decision of the charterer, has already proceeded by his own choice to one, he must bear the expense of proceeding to another, if ordered by the charterer (d). If within the port there is a custom to require the loading or unloading to take place at various parts of the port, the shipowner must, in the absence of special clauses, comply with the custom. The commencement and mode of calcu- lation of the lay-days will depend on the custom of eacli particular port (e), but, in the absence of any custom, will commence on the ship's arrival at the first place in the port where such vessels usually load or unload, and will include the time spent in moving the ship to other usual places of loading or discharge (/). 2. If the charter runs "to proceed to a (named) dock, and there load," or " to a dock as ordered on arrival," in the absence of any special custom to the contrary (g), the ship will have fulfilled her obligations when she gets into the dock, though she may not reach that part of the dock where she is to load (or discharge) for some time afterwards (Ji). (c) Per Bowen, L.J., iu T/uirsis Co. v. 3Io7'el (1891), 2 Q. B., at p. 652. Cf. Jaquesx. Wj7so?i (1890), 7 T. L. R. 119. In Bulinan v. Fenwick (1894), 1 Q. B. 174, the C. A. appears to hold that the only limitation to the charterer's power to select a berth is that he must not choose one which at the time of giving the order is so blocked that the obstacle cannot be removed in a time consistent with the commercial adventure. For the application of the same principle to the tender of a colliery guarantee, see Dohell v. Green (1899), 4 Com. Cases, 85. If the cause of delay is one which the parties must have contemplated, as neap tides, they must wait till the tides are suitable. Carlton S.S. Co. v. Custlo Mail Co. (1898), A. C. 486. (cO The Felix (1868), 2 L. R. Adm. 273. Parker v. Winlow (1857), 7 E. & B. 942. (e) Nielsen y. Wait (1885), 16 Q. B. D. 67. (/) Caffarinix. Walker {\^1rn, Avon (1886), 2 Times L. R. 675; and post, Articles 132, 133, but see Tapscott v. Pndfour (1872), L. R. S C. P. 46. 96 WHERE TEE CABRTING Matbew, J., in Pyman v. Dreyfus (i) is also erroneous. In that case under a charter to load at Odessa, the lay-days were treated as beginning, not when the ship reached the usual berth at Odessa to which she was ordered by the charterers, but when she had arrived " as near as she could safely get " to any usual loading berth in the port. In other words, the right of the charterer to select the usual berth at which the ship was to load was conceded, (see case, p. 155); but it was held that he must do so at his own expense of time, the lay-days being fixed. This appears contrary : (1) to Dahl v. Nelson (k), which decides that a ship chartered " to 0., or as near as she can safely get," must wait a reasonable time to overcome any temporary obstacle ; (2) to Ta/pscott V, Balfour (I) and Tharsis Co. v. Morel (m), in that it treats the lay-days as commencing when the ship is at the disposition of the charterer in the port, and not when it reaches the berth to which it is ordered to load. It is submitted that the decision is erroneous and should be treated as overruled by Tharsis Co. v. 3Iorel (m). This submission appears to be supported by the decision in Ship Milverton Co. v. Cape Town Gas Co. (1897), 2 Com. Cases, 281. 6. The Scotch case of Stephens v. Macleod (1891), 19 Sc. Sess. 0. 38, would not, it is submitted, be followed in England. There a ship was chartered to load at P. or any usual one loading place in the river as ordered on arrival, and load a cargo after being berthed in turn. The vessel was ordered to a particular loading place, and was loaded in turn of the vessels ordered to that place, but vessels ordered to other places were loaded before her at their berths, though they had arrived after her, this being according to the custom of the river. The Court of Session held (semble wrongly and diss. Lord Young), that the lay-days should have begun when the first turn of the ship at any loading place would have arrived. It is submitted this entirely overlooks the right of the shipper to select his loading berth, and the principle of Tapscott v. Balfour (I). Generally it seems that the principle of construing a clause to load either in a fixed time or in a reasonable or customary time, as applicable to the whole stay in the port of loading, and not as only commencing on the ship's arrival at the particTilar place of loading specified in or named under the charter, is discountenanced by the decision in Tharsis Co. v. Morel (to), on the clause " with all despatch as customary," approving Tapscott v. Balfour (I), a case (jf tixed lay-days, and approved in Good v. Isaacs (?i), on the clause " as fast as steamer can deliver as customary." Case 1. (o). — A ship was chartered to take coals to London, the vessel to be delivered in live working days: she entered the port of L. at Gravesend, (0 (18S9), 24 Q. B. D. 152. (/O (1881), 6 App. Cas. 38. (0 (1872), L. K. 8 C. P. 46. (ni) (1891), 2 Q. B. 647. (/() (1892), 2 Q. B. 555. ('i) As the law as to Idading and unloading on this point is identical, with the VOYAGE BEGINS. 97 on March 9, but was not allowed to proceed to the Pool, the usual place for the discharge of colliers, till March 20. Held, that the lay-days were to be reckoned from the time of the ship's arrival at the ordinary place of discharge, according to the usage of the port of L. for such vessels (p). Case 2. — A ship was chartered " to proceed to a port in the Bristol Channel, or so near thereto as she may safely get at all times of the tide and always afloat, eight running days, Sundays excepted, to be allowed the merchants, and for loading and discharging the cargo." The steamer was ordered to Gloucester, and arrived at Sharpness, within the port of Glou- cester, but seventeen miles from the usual basin for discharging grain cargoes; at S. she unloaded sufficient grain to enable her to proceed to the basin. The shipowner claimed to date his "running days" from com- mencing to discharge at S. A custom of the port of Gloucester was proved, that vessels too heavily laden to proceed beyond S. were lightened at S., and that the times of unloading at S. and G. counted in the lay-days but not the time of proceeding from S. to G. Held, a reasonable custom, and not inconsistent with the charter, though, in its absence, the lay-days would have run consecutively, Sundays excepted, from commencing to discharge at S. ('y). Case 3. — A vet^sel was chartered to proceed to Z., and there discharge, lay-days to commence when steamer was " ready to discharge." She arrived at the port, and the only place of discharge was occupied by another sliip. JMd, that she was not "ready to discharge" till she reached a usual place of discharge in the port (r). Case 4. — A ship was chartered to proceed to any dock at Z., as ordered by charterers, and there load coal in the usual and customary manner. She was ordered to the W. docks. Coal is usually loaded in the W. docks from tips, sometimes from lighters. By the dock regulations of Z. no coal agent is allowed to have more than three vessels in the dock at the same time. The vessel was ready to go into the dock on July 3, but the charterer's agent having already three vessels in the dock she was not admitted till July 11, and could not get under the tips till July 2"2. Held, that the lay- days commenced on July 11, and that the words "load in the usual and exception that no notice of readiness to unload is required, I have cited cases as to- unloading in support of these propositions. (])) Kell V. Anderson (1842), 10 M. & VV. 498. The case o'l Ford\. Cotesworth (1870), L. R. 5 Q. B. 544-, is not inconsistent with this. There the charter was to proceed to Lima and deliver in the usual and customary manner. The ship pro- ceeded to Callao, the usual port of discharge for L., but was prevented from dis- charging for seven days by acts of the Government; and it was held that if there had been a time fixed for the disciiarge it would have begun on arrival at the usual place of discharge, but that, as there was no fi.xed time, reasonable diligence only was required, and the delay from the time of arrival was not unreasonable under the cii-cumstances. In 2/uis v. Byers (1876), 1 Q. B. D. 244, where there was a fixed time named, the lay-days counted from the arrival at the usual place of discharge. See also Brercton v. Chapman (18ol), 7 Bing. 559. (q) Nielsen v. Wait (1885), 16 Q. B. D. 67 (CA.), whose decision proceeded on different grounds from that of Pollock, B., in the Court below, 14 Q. B. D. 516. But see Reynolds v. Tomlinson (1896), 1 Q. B. 586, where a vessel chartered to a safe port and ordered to Gloucester, where she could not get without being lightened, refused to proceed beyond Sharpness, and the Divisional Court rejected evidence of the above custom, as contradicting the provision to proceed to a safe port. See also M'lntosh v. Sinclair (1877), 11 Ir. L. K. C. L. 460; Caffarini v. Walker (1876), 10 Ir. L. R. C. L. 25(1. (»•) Sanders v. Jenkins (1890), 2 Com. Cases, 12. H i)8 READINESS TO LOAD. customary manner " referred to the manner and not the place of load- ing (s). Case 5. — A ship was chartered to jjroceed to the Mersey, and deliver her cargo at any safe berth as ordered on arrival in the dock at Garston, ... to be discharged when berthed with all despatch as customary. On arrival at the dock a berth was ordered by the harbourmaster, as customary, but owing to the crowded state of the dock the vessel did not reach it for sojne time. Held, that the obligation of the charterers did not commence till the vessel was in berth (t). Case 6. — A vessel was chartered to proceed to H., cargo to be discharged at usual fruit berth, as fast as steamer can deliver as customary and where ordered by charterers. On arrival the ship was ordered to a usual fruit berth, and moored there, but without permission of the officials controlling the quay, and was ordered away the next morning. Held, that the obligations of the charterers to unload did not commence till the ship was in a usual fruit berth as ordered by charterers, and with the assent of the harbour authorities {u). Case 7. — A ship was chartered to discharge cargo at a (named) quay at Z. The ship arrived and found the only quay berth occupied by another ship. The shipowner offered to discharge across the other ship, if the charterer would pay the additional expense. The charterer refused. Held, that the lay-days did not begin till the ship was alongside the quay, the place named where the voyage was to end (x). Case 8. — A ship was chartered to load coals and proceed to Z., and deliver the same at one of four named places, " as ordered by charterer . . . forty-eight running hours for loading and discharge." She was ordered to discharge at W. wharf, and entered the dock for that purpose; the discharging berths at the W. wharf being full, she did not begin to unload until twenty-four hours after entering the dock. Held, that the lay- days did not begin till the ship reached the W. wharf (?/). Case 9. — A ship was chartered to proceed to a customary loading- place in the E. Dock, Grimsby, and there receive a cargo of coal, " to be loaded as customary at Grimsby as per colliery guarantee. The guarantee provided that the ship should be loaded in fifteen colliery working days after she was "ready in dock at Grimsby." The ship was ready in dock on September .3, but did not get under the spout at a customary load- ing-place till October 10. Held, that the lay-days began on September 3. Semble, that but for the colliery guarantee they would have begun when the ship could first get into a customary loading berth selected by char- terers, who had a cargo ready (z). Article 40. — Beadiness to load. A ship to be ready to load must be completely ready iu all her holds, so as to afford the charterer complete control (s) Tapscott V. Balfour (1872), L. K. 8 C. P. 46. See also Shadforth v. Corij (1863), 32 L. J. Q. B. 379. In S.S. Norden v. Dempscy (1876), 1 C. P. D. 654, a custom for timber ships at Liverpool that the lay-days should begin on reaching i\ particular place in the dock, was proved and held binding. (0 Tharsis Co. v. Morel (1891), 2 Q. B. 647. (M) Goodv. Isaacs (1892), 2 Q. B. ^,57. (x) Strahan v. Ga6rW (1879), p'r Brett, L.J., 12 Ch. D. 590. ((/) Murphy V. Coffin (1883), 12 Q. B. D. 87. (z) Monsen v. Macfartanv (1895), 2 Q. B, 562. NOTICE OF READINESS. 99 of every portion of the ship available for cargo {a). She must also in the absence of special stipulation have obtained all papers and permits necessary for loading (h). Case 1. — A ship was chartered with a power to tlie charterer to cancel the charter if the sliip were not ready to load on or before May 31. On that day she had only discliarged two of her holds, and was not completely discharged till the middle of the next day. Held, the charterers were entitled to cancel (c). Case 2. — A ship under charter " to be ready to load on or before mid- night on October 10," was on that day in port ready to load in all respects except that the doctor had not visited her and declared her free from infection. Held, she was not ready to load (6). Article 41. — Notice to Charterers of readiness to load. The shipowner must give nutice to the charterers of the ship's readiness to load her cargo at the place agreed on in the charter {d). Case 1. — A ship was chartered to proceed diiect to the S. dock, and there load in the usual and customary manner. In an action by ship- owner against charterer for not loading, the latter pleaded that, by reason of want of notice of the ship's arrival at the S. dock and her readiness to load, the charterers were unable to load her. Held, a good defence, if proved (e). Case 2. — A. ship was chartered to proceed to A., and there load; slie arrived at A. with a cargo on owner's account. Her arrival was entered at the Custom House, but no notice was given to the charterer of her readiness to load homeward cargo. Held, the charterer was not liable for failing to provide a cargo (/). (a) Grows, Maclean ^ Co. v. Volkart (1884), 1 C. & E. 309; per Brett, L.J., at 12 Ch. D. 583 ; Oliccr v. Fielden (1849), 4 Ex. 135 ; Bailey v. Dc Arroyav (1883), 7 A. & E. 919. lu jjractice the ship is considered " ready to load " thougli stiffening ballast, or cargo used for stittening the ship, lias yet to be put on board her. A steamer may taive her bunkers before proceeding to her loading port, and is not necessarily restricted to bunl;ers for the cliartered voyage. Carlton S.S. Co. V. Castle Mail Co. (1897), 2 Com. Cases, 173 (the decision on this point not affected by the decisions on appeal). In Hick v. Tweedy (1890), 63 L. T. 765 : under a clause "Charterers have option of cancelling if ship is not ready to receive cargo by December 12," it was held sufficient that the ship herself should be ready to receive cargo though she was not in a loading berth." But for the calculation of lay-days, it seems that there is no difference between " ready to load" and '^ ready in berth to load," and it has been so held in an unreported case. (6) The Austin Friars (1894), 10 T. L. R. 633. (c) Groves, Maclean & Co. v. 1 'olkart (1884), 1 C. & E. 309. (d) Stanton v. Austin (1872), 7 L. K. C. P. 651; Fairhridge v. Pace (1844), 1 C. & K. 317. In Gordon v. Powis (1892), 8 T. L. R. 397, under the clause: " Captains or owners to telegraph advising probable arrival, and at least eight clear days' notice shall be given previous to requiring cargo," it was held that a telegram advising ship's departure from last port did not satisfy notice of readiness for cargo required. (e) Stanton v. Austin, vide supra. (/) Fairhridge v. Pace, vide supra. What amount of notice will suffice is doubtful. If the charterers are proved to be otherwise aware of the readiness to H 2 100 DUTY OF CHARTERER Article 42. — Duty of Charterers to furnish Cargo. In the absence of express stipulations qualifying it, the duty of the charterer to furnish a cargo according to the charter is absolute {g). The charterer therefore will not be relieved from his express contract to load in a fixed time, or from his implied contract to load in a reasonable time, by anything preventing him from bringing a full and complete cargo to the place of loading {h). " The usual despatch in loading " means the usual despatch of a person who has at the place of loading a cargo ready for loading (^). The exceptions in a charter do not usually apply to protect the charterer who has failed to load, till the joint operation of loading is ready to begin, ship and cargo being ready at the place of loading (k). Thus, in the absence of express exceptions, the charterer will not be excused from loading by : — (I.) causes preventing a cargo being obtained, as strikes (Z), bankruptcy of merchants supplying the cargo (I), or non-existence of such cargo {m), or: — (II.) causes preventing a cargo, when obtained, from being transmitted to the port of loading, as ice (n), bad weather (o), railway delays (p), or Government orders (q). load, I do not think express notice would be required. No notice is required of readiness to discharge. \^Vidt: post, Art. 124-.] (f/) He need only have his cargo ready at the ordinary time when the ship may be expected to be readj', and is not bound to provide for unexpected con- tingencies. Little V. Stccaiso7i (1896), 74 L. T. 529 (H. L. Sc). (A) Lord Selborne in Corerdale v. Grant (1884), 9 App. C. at pp. 475-6 ; Lord Blackburn in Fostldhwaite v. Frccland (1880), 5 App. C. at p. 619. As this duty devolves on the charterer alone, he does not come within the prin- ciple of Ford V. Cotesworth, L. R. 4 Q. B. at pp. 133, 134 ; 5 Q. B. 544 (1870). Thus, in Kirk v. Gibbs (1857), 1 H. & N. 810, where a charterer had contracted to load a full cargo, and to procure the necessary Government pass for loading : Held, no defence that the Government vvould only grant a pass on con Savill v. Aithn (1883), 1 C. & E. 195), or goods {3Iitclt'S<>n v. NicoU (1852), 7 Ex. 929), in the cabins. 108 FULL AND COMPLETE CAEGO. in the charter, but must load as much cargo {n) as the ship will carry with safety (o). But where a certain number of tons is stipulated for in the clause as to " cargo," that number and not the actual capacity of the vessel will constitute the approximate measure of the charterer's obligation {i)). The charterer is bound to put on board goods equivalent to the cargo stipulated for, or to a full and complete cargo, though, owing to their destruction before the ship sails, they may not all be carried in the ship [q). But when the charterer has loaded goods which have been destroyed by fire, he is not bound, nor is he entitled, to load other goods in the same space, and the shipowner has the right to fill that space with goods and take the freight thereon {r). Where the ship is stowed in a manner that does not make full use of her hold, but the charterer or his agents saw the stowage and made no objection, the shipowner will not be liable for not loading a full and complete cargo (s), Laivful merchandise : = goods ordinarily shipped from the port of shipment {t). Case 1. — A vessel was chartered " to load a full and complete cargo of iron, say about 1100 tons." The actual tonnage of the ship was 1210 tons. The charterer furnished 1080 tons. Held, that the charterer was {a) "Cargo" usually meaus au entire shipload: Kreuger v. Blanck (1870), 5 L. K. Ex. 179 ; Borrowman v. Drayton (1877), 2 Ex. D. 15. But a contract to load a " cargo " stated to be less than the capacity of the vessel leaves the ship- owner at liberty to load other cargo. Caffin v. Aldridge (1895), 2 Q. B. 648 (C.A.). As to "dead weight capacity," see Article 25. (o) Heathfieldv. Eodenacher (1896), 2 Com. Cases, 55 (C.A.); Thomas v. Clarke (1818), 2 Stark. 450; Hunter v. Fry (1819), 2 B. & Aid. 421. {p) Morris v. Levison (1876), 1 ('. P. D. 155; Alcock v. Leeuw (1884), 1 C.& E. 98. (q) Thus in Joiies v. Holm (1867), L. R. 2 Ex. 335, where when a ship had loaded part of her cargo she caught tire, and the cargo on board being damaged had to be sold : Held, that the charterer was not bound to replace the damaged cargo, but was bound to supply so much as would with the damaged cargo make a "full and complete cargo." But see Strwjnell v. Fricdrichsen, 12 C. B., N.S. 452 (1862), when the discharge of three quarters of the cargo under similar cir- cumstances by the master's request, and at the charterer's expense, was held to free the charterer from any further liability. (»•) Aitken v. Ernsthausen (1894), 1 Q. B. 773. This seems to be so whether the rate of freight is a rate per ton or a lump sum. (s) Hovill v. Stephenson (1830), 4 C. & P. 469. (t) Vanderspar v. Duncan (1891), 8 T. L. K. 30 ; where Government guns were held not lawful merchandise from Cevlon. Of. Potter v. New Zealand S. Co. (1895), 1 Com. Cases, 114. DECK CARGO. 109 only bound to load " about 1100 tons," that '.j per cent, was a fair margin ; hence that he should have loaded 1133 tons (?{). Case 2. — A ship was guaranteed to carry 2600 tons dead weight, and charterers undertook to load a full and complete cargo at a named freight, " all per ton dead weight capacity as above." A full and complete cargo would be 2950 tons. Held, (1) charterers should load 2950 tons : (2) freight was payable on that quantity at the named rate (.r). Article 47. — Broken Stowage. Where tliere is a charter " to load a full and complete cargo," if the cargo loaded leaves room that may be filled with " broken stowage," such broken stowage must be provided unless the custom of the port of loading does not require it (?/). Case. — A ship was chartered " to load at X. a full and complete cargo of sugar, molasses, ^~ other produce." The charterer filled the ship with sugar in hogsheads and molasses in puncheons, but did not fill up with broken stowage. Evidence of a custom at X., that " full and complete cargo of sugar and molasses" meant cargo so stowed without broken stowage, held admissible, and the custom reasonable. Held, there- fore, that the charterer had fulfilled his obligation (2). Article 48. — Bech Cargo. Goods are to be loaded ia the usual carrying places (a). The shipowner or master will only be authorized to stow goods on deck : (1) by a custom binding in the trade or port of loading, to stow on deck goods of that class on such a voyage (h) ; or (2) by express agreement with the shipper of the particular goods so to stow them (c). (?j) Morris v. Levison (1876), 1 C. P. D. 155. A cargo of so many tons, "or thereabouts," is frequently taken to allow a margin of 5 per cent, either way. In Alcock V. Leeuw (1S84-), 1 C. & E. 98, a charter to ship "empty petroleum barrels as required by the master, say about 5000," was held to allow the master 10 per cent, margin on either side of 5000. (x) HcathfiekfS.S. Co. v. Eodenacher (1896), 2 Com. Cases, 55 (C.A.). ()/) Cole V. Meek (1864), 15 C. B., N.S., 795; see also Duckett v. SattcrfielJ (1868), L. R., 3 C. P. 227. («) Cuthhert v. Cumming (1856), 11 Ex. 405. (a) Mitcheson v. Nicoll (1852), 7 Ex. 929 ; Royal Exchange Co. v. Dixon (1886), 12 App. C, at p. 16. See post, Articles 90, 110. Where a ship was chartered, charterers to have " the full reach of the vessel's hold from bulkhead to bulkhead, including the halt-deck ; " Held, tiiat the freight for goods stowed on deck was due to the shipowners. Neill v. Kldleij (1854), 9 Ex. 677. ('») Such as existed in Gould v. Oliver (1837), 4 Bing. N. C. 134, and was attempted to be proved in Neicall v. Royal Exchani/c Co. (1885), 33 W. R. 342, 868, and Royal Exchange Co. v. Dixon (1886), 12 App. C. 11. (c) As in Burton v. English (1883), 12 Q. B. D. 218; Wright v. Man'-ood (1881), 7 Q. B. D. 62 ; Johnson v. Chapman (1865), 19 C. B., N.S. 563. 110 BALLAST AND DUNNAGE. The effect of deck stowage not so authorised will be to set aside the exceptions of the charter or bill of lading, and to render the shipowner liable under his contract of carriage for damage happening to such goods {d). The peculiar position of goods stowed on deck puts them in a special relation to claims for general average (e). Case 1. — A ship was chartered to carry a " full and complete cargo." Held, that the charterer was not entitled to load goods in the cabin (/). Case 2. — Cotton was shipped under a bill of lading, excepting "jettison" and " stranding." The cotton was shipped on deck improperly (the attempt to prove a custom to do so failing) ; owing to the ship's stranding, the cotton was jettisoned, such jettison itself being proper. //eZcZ, that the goods being impi-operly stowed, the shipowner was nut protected by the exceptions (7), L. R. 2 C. P. 497. (o) M. Smith, Byles, JJ. ; Keating, J., with some doubt. (p) L. R. 6 Q. B. at p. 537. iq) L. R. 6 Q. B. 522, at p. 546. (r) lb., p. 549. (s) (1873), L.R. 8 Ex. 101. {t) (1875), L. R. 10 Q. B. 553, at p. 558. 130 CESSER CLAUSE for detention, as otherwise it would be meaningless. On this ground it is distinguished in Loclhart v. FalJc (u) and in Clinic V. Radford (x), and on this ground I have treated it as law in the text. But I cannot see how it is compatible with Gray v. Cnrr, an express decision of the Court of Exchequer Chamber, with the remarks of Brett, J., and other judges in that case on the occurrence of words in these mercantile documents on printed forms, to which no meaning need he attached (?/), and the inconvenience there suggested of a lien on cargo for unliquidated damages. It may perhaps be justified as a strict application of the " cesser clause " even though there was no corresponding lien ; but this is not the ground of the judgments. In Bestitutton Co. v. Pirie (z), which is very inadequately reported. Cave, J., appears to have followed the dicta of Lord Esher, already referred to, and the case is affirmed by the Court of Appeal. If the provisions as to loading were in the nature of demurrage, the case is perfectly correct, but irrelevant if they were in the nature of damages for detention. The Court of Appeal lias deliberately and emphatically decided the other way in the two cases of Clink v. Radford («) and Dimlop v. Balfour (h). Notwithstanding these dicta and decisions it is hard to see how the Courts in flice of Gray v. Carr (c) can fail to hold where there is a demurrage clause in the charter, that the lien for demurrage does not include a lien for damages for detention. The first alternative being thus disposed of, the second is that the charterer should still be liable for detention in loading, in spite of the " cesser clause." Assuming that there is no lien for damages for detention, the adoption of this alternative would carry out the principle that the charterer's exemption should be co-extensive with the shipowner's lien, at the expense of the strict interpretation of the clause. The alternative has been adopted in Lockhart v. Folk ((?), Clink v. Badford (a), and Dunloj) V. Balfour (6), where the charterer was held liable for damages for detention at the port of loading : it was also acted on in Francesco v. Massey (e), where the charterer did not dispute his liability for such damages for detention, and, (m) (1875), L. R. 10 Ex. 132. {x) (1891), 1 Q. B. at p. 629, 631. (y) See Article 9, a7ite. (z) (1889), 61 L. T. 330; on appeal, 6 Times L. R. 50. (rt) (1891), 1 Q. B. 625. (0) (1892), 1 Q. B. 507. (c) (1871), L. R. 6 Q. B. 522. The Scotch Courts have so held in Gardiner v. Macfarlane (1889), 16 Sc. Sess. C. 4th Ser. 658. (-/) (1875), L. R. 10 Ex. 132. (e) (1873), L. R. 8 Ex. 101. AND DEMURRAOE. 131 to some extent, in Chrisfnffcrsen v. Hansen (/), where, in the absence of a lien for demurrage, the charterer was held liable for demurrage at the port of loading in spite of the cesser clause. As the result it seems that the principle to follow is, that the charterer's exemption should be co-extensive with the ship- owner's lien, and that, as the existence of a lien is governed by- principles of law, or by express agreement, the lien should be the chief factor in the couple. That therefore where there is no lien, as in the case of unliquidated damages in the absence of express agreement, there should be no exemption for the char- terer. This is opposed to the view that the charterer should be held freed by the cesser clause, from all claims, and that there- fore the shipowner's lien should be made co-extensive with his exemption. The adoption of this principle involves disapproval of the obiter dicta in Kish v. Cory (^g), and in Sanguinetti v. Pacific Steam Navigation Co. (Ii), and perhaps of the decision in Restitu- tion Co. V. Pirie (^), and a careful restriction of the applica- tion of Bannisters. Breslauer (7c), which, in view of the direct authorities on the point which we have cited, does not seem without justification (Z). (/) (1872), L. R. 7 Q. B. 509. Ig) (1875), L. R. 10 Q. B. 553. (h) (1877), 2 Q. B. D. 239. (0 (1889), 61 L. T. 330 ; on appeal, 6 Times L. R. 50. {k) (1867), L. R. 2 C. P. 497. \l) For discussion of the question by the Scotch Courts, see Beynon v. Kenneth (1881), 8 So. Sess. Cases, 4th Ser. p. 594 ; Lamb v. Kaselack (1882), 9 Sc. Sess. Cases, 4th Ser. p. 482 ; Salvesen v. Guy (1885), 13 Sc. Sess. Cases, 4th Ser. p. 85, and Gardiner v. Macfarlane (1889), 16 Sc. Sess. Cases, 4th Ser. p. 658, in which the Scotch Courts refused to follow Lord Esher's dicta referred to above. K 2 ( 132 ) SECTION V. The Bill of Lading as a Document of Title. Article 55. — Signature of the Bill of Lading. After the shipment of goods under a contract of affreight- ment, the bill of lading (a), which, where there is no charter, constitutes the most important evidence of the contract of affreightment, is signed by the carrier or his agent (6), and delivered to the shipper. Such signing does not give rise to any new contract, but only gives precision to one which had been previously made. The signature and delivery of the bill of lading create a document, subsequent dealings with which may have effects on the property in the goods shipped. Article 56. — Indorsement of Bill of Lading. Goods shipped under a bill of lading may be made deli- verable to a named person, G., or to a name left blank, or *' to bearer," and in the first two cases may or may not be made deliverable " to order or assigns." Bills of lading making goods deliverable " to order," or "to order or assigns" are by mercantile custom negotiable instruments, the indorsement and delivery of which may affect the property in the goods shipped (c). (a) The shipper has usually obtained the printed form of the bill of lading used by the shipowner, and has filled in the details before presenting it ; it is checked by the shipowner or his broker and then signed : cf. p. 8. (6) Usually in London for steamers, the loading broker, or the person doing his work ; for sailing ships, usually the master ; abroad, either the branch house, or agent of the line, or the master. Difficulties experienced by a goods owner suing a shipowner in proving the agency of the person signing the bill of lading may frequently be avoided by suing in tort. (c) Custom of merchants, as found in the special verdict in Lickbarrow v. Mason (1794), 5 T. R. G83 ; discussed by Lords Selborne and Blackburn, in Sewell V. Burdick (1884), 10 App. C. 74; and in Blackburn on Sale, 2nd ed. pp. 315-319. EFFECTS OF INDORSEMENT. 133 Indorsement is effected either by the shipper or con- signee writing his name on the back of the bill of lading, which is called an " indorsement in blank," or by his writing " Deliver to I. [or order], F.," which is called an " indorsement in full" {d). So long as the goods are deliverable to a name left blank, or to bearer, or the indorsement is in blank, the bill of lading may pass from hand to hand by mere delivery, or may be re-delivered to the original holder without any indorsement, so as to affect the property in the goods (e). But the holder of the bill may at any time fill in the blank either in the bill or indorsement, or restrict by in- dorsement the delivery to bearer, such power being given to him by the delivery to him of such a bill of lading {d). Semble. — A bill of lading which does not contain some such words as " to order," or " to order or assigns," or which is indorsed in full, but without such words (/), is not a negotiable instrument (g). Note. — Where goods are to be carried under a through bill of lading, separate bills of lading are sometimes signed for the conveyance of goods on subsequent stages of the transit. In these bills of lading the company, or the shipowner signing the through bill of lading appears as the shipper and there is indorsed on the bills, " Delivery to be made to the holders of the original bill of lading duly indorsed, per s.s. S., from X., dated " This is done to prevent conflicting claims to the goods from two sets of bills of lading for the same goods being in circulation. Article 57. — Effects of Indorsement. The indorsement and delivery of a bill of lading by the person entitled to hold it have effects depending partly on custom and partly on statute. (d) See note (c), ante, p. 132. (e) Per Lord Selborne iu Sewell v. Burdick, 10 App. C. at p. 83. The in- ference that an assignment of property is conteuiphited will be weaker from an indorsement iu blank than from one in full. (/) I.e. " deliver to A." (<;) Henderson v. Comptoir d'Escompte de Paris (1873), L. R. 5 P. C. 253, at p. 260. 134 IND OB SEMEN T. I. — By mercantile custom (h) such an indorsement and delivery of a bill of lading, made after shipment of the goods and before complete delivery of their possession has been made to the person having a right under the bill of lading to claim them ({), transfers such property (j), as it was the intention of the parties to the indorsement to transfer {h). II. — By the Bills of Lading Act (l), the indorsee of a bill of lading, to whom under the particular circumstances of the indorsement the property in the goods shipped under the bill of lading passes, has all the rights and duties of the original shipper under the contract evidenced in the bill of lading (m). III. — By the Admiralty Jurisdiction Act, indorsement of the bill of lading may give to the indorsee rights of action in the Court of Admiralty against the carrying ship (n). Article 58. — Effects on Property of Indorsement hy Mercantile Custom. The presumed intention of the parties in indorsing a bill of lading may vary widely according to the circumstances. It may be an intention : — 1. To transfer absolutely the property in the goods (o), subject only, if the price be unpaid, to the right of the unpaid vendor (p) to stop the goods in their transit to the vendee, as a means of re-asserting his lien on the goods for the price unpaid, known as the right of Stoppage in transitu (q). (/j) As stated in the special verdict in Lickharrow v. Mason (1794), 5 T. R. 683. See note (c), ante, p. 132. (i) Barber v. Meyerstein (1870), L. E. 4 H. L. 317. Wrongful delivery of tlie goods, apart from the bill of lading, does not render the bill inefiective as a symbol of property ; and its indorsement, even after such wrongful delivery, may still pass the property: Short y. Simpson (1866), L. R. 1 C. P. 248. (j) Strictly speaking, the property is transferred, not by the indorsement, but by the contract under which the indorsement is made: see /ler Lord Bramwell, 10 App. C, at p. 105. (k) Sewell V. Burdick (1884), 10 App. C. 74, and see Article 58. (0 (1855), 18 & 19 Vict. c. Ill, vide post, Appendix III. (ni) Sewell v. Burdick, vide supra, and see Article 75. The indorsee does not obtain any rights and duties of the original shipper, which are not derived from the contract evidenced in the bill of lading. Leduc \. Ward (1888), 20 Q. B. D. 476. (n) (1861), 24 Vict. c. 10, § 6, vide post. Article 77, and Appendix III. (o) See Article 59. (jo) See Article 60. (q) See Articles 63-71. INDORSEMENT. 135 2. To pass the property on certain conditions, as on the acceptance of bills of exchange for the price (r). 3. To efifect a mortgage of the goods as security for an advance (s). 4. To effect a pledge of the goods for the same pur- pose {t). 5. To pass no property at all in the goods {u). Note. — The decision iu Seioell v. Burdick (x) has made it clear that the effect of the indorsement of a bill of lading depends entirely on the particular circumstances of each indorsement, and that tliere is no general rule that indorsement passes the whole legal property in tlie goods, as had been strongly con- tended by Brett, M.E. (y), in the Court below, and in Glyn, Mills, (£• Co. V. East and West India Docks (z). In the light of this decision, the special verdict in Lickbarrow v. Mason (a), which recites that " the property is transferred by indorsement," must be read " the property which it was the intention to transfer is transferred ; " (&) and many obiter dicta on the subject, such as the statement of Lord Hatherley in Barber v. Meyer- stein (c), that, when goods are at sea, assigning the bill of lading is parting with the " whole and complete ownership of the goods," and of Lord Westbury in the same case (c), that the transfer of the bill of lading for value " passes the absolute pro- ]ierty in the goods," must be taken as overruled, or strictly limited to the circumstances of the particular case (cZ). Article 59. — Intention to transfer the whole Froperty hj Indorsement of the Bill of Lading. Property in goods at sea may be completely passed by indorsement and delivery of the bill of lading under which they are shipped, in exchange for payment of the price. Note 1.— The question of property in goods shipped is not of great importance to the shipowner, as he is safe in delivering to the holder of the first bill of lading duly presented, if he has no notice or knowledge of other claims (e), while if he has such (r) See Articles 61, 62. (a) (1794), 5 T. R. 683. (s) See Ai-ticle 72. (6) As suggested by Lord Selborne, 10 (f) See Article 73. App. C, at p. 80. Qi) See Article 74. (c) (1870), L. R. 4 H. L. 825, 335, (.(,•) (1884), 10 App. C. 74. (rf) See 10 App. C, at pp. 81, 104. ((/> 13 Q. B. D., at p. 167. (e) Glyn Mills wWest India Dock Co. («) (1880), 6 Q. B. D., at p. 480. (1882), 7 App. C. 591 ; see Article 125. 136 SECURITIES OF UNPAID VENDOR. knawledge, though probably in strict law he must either deliver at his peril to the rightful claimant, or interplead (/j, yet in practice he can almost always obtain in exchange for delivery of the goods an indemnity against legal proceedings, which will render him virtually safe. For this reason I have not gone minutely into the numerous cases on this subject. An exhaus- tive discussion of them will be found in Benjamin on Sale, 4th ed. pp. 345-371, and a summary of the results at p. 369. Part of this summary has been approved by the House of Lords ((/), and a similar summary is to be found in the judgment of Cotton, L.J., in Mirabita v. Ottoman Banh (h). Note 2. — The 2)roperty in goods shipped under a bill of lading may be passed without indorsement of such bill (i), and it would seem that subsequent indorsement of the bill of lading will have no effect. But see Kemp v. Falk (j). On the eifect of a sale of goods at sea C. F. I. (cost, freight and insurance), see Delaurier v. Wyllie (^). Article 60. — Unpaid Vendor s Securities. Where goods are shipped by a vendor, in pursuance of his buyer's order, for delivery to the buyer, such shipment prima facie passes the property to the buyer, delivery to the ship being equivalent to delivery to him (Z). But under these circumstances the unpaid vendor has the right to stop the goods in transitu (m), though they are made by the bill of lading deliverable to the vendee (w). An unpaid vendor frequently insists on more than this security for the price, and deals with the bill of lading so as to prevent the property in the goods from passing to the vendee on their shipment, either by : — (I.) Keserving to himself the jus disponendi (o). (II.) Conditional indorsement of the bill of lading (p). (/) Per Lord Blackburn, 7 App. C, at p. 611. (g) Shepherd v. Harrison (1871), L. R. 5 H. L. 116, at p. 127. (/t) (1878), 3 Ex. D., at p. 172. (i) Ifeyer v. Sharpe (1813), 5 Taunt. 74 ; Nathan v. Giles (1814), 5 Taunt. 558. U) (1882), 7 App. C. 573. {k) (1889), 17 Sc. Sess. C. 167. A sale C. F. I. before shipment includes an obligation on the seller to ship the goods with such shipping documents as will ensure their getting to their contract destination. Lecky v. Ogilvy (1897), 3 Com. Cases, 29 (C.A.) (the two Tripolis). (0 Shepherd v. Harrison (1871), L. R. 5 H. L. 116, at p. 127 ; and see Article 68. (?«) lYc/eposi, Article 63. in) Ex parte Banner (1876), 2 Ch. D. 278, at p. 288. (o) See Article 61. {2>) See Article 62 : and also Sale of Goods Act, 1893, § 19. CONDITIONAL INDOBSEMENT. 137 Article 61. — Beservation of Jus disponendi by unpaid Vendor. The unpaid vendor may take from the master a bill of lading making the goods deliverable to his order or to his agent, and may forward this bill to his agent, with instruc- tions not to indorse it to the vendee except on payment for the goods. If he takes the bill in this form on his own behalf, and not as agent for, or on behalf of, the purchaser, he thereby reserves himself the power af absolutely disposing of the goods, known as the jus disponendi, and no property will pass to the purchaser by the shipment {q). Payment or tender of the price will pass the property to the pur- chaser (r), unless this jus disponendi has been reserved by the vendor for some other purpose than that of securing the contract price (s). Note. — It has been discussed whether the jus disponendi is merely a vendor's lien, or is some right in the vendor concomitant with property in the vendee, or whether it amounts to a state- ment that the acts of the vendor prevent the property from passing to the vendee on shipment of the goods, and postpone the vesting of the property till certain conditions are satisfied. Ogg V. Shiiter (t) shews that it is more than a vendor's lien. The judgment in Mirahifa v. Ottoman Banh (u) declines to decide between the last two alternatives, but the language of Cotton, L.J., in the same ease appears to shew that to speak of the vendor's jus disponendi is another way of saying that the property has not passed to the vendee, whatever may be his rights under the contract of sale. Article 62. — Conditional Indorsement by Unpaid Vendor. The unpaid vendor may draw a bill of exchange on the vendee for the price, and either : — (I.) Forward it for acceptance, together with a copy of {q) Shepherd v. Harrison (1871), L. R. 5 H. L. 116 ; Mirahita v. Ottoman Bank (1878), 3 Ex. D. at p. 172; Ogg v. Shuter (1875), 1 C. P. D. 47 ; Gabarron v. Erceft (1875), L. R. 10 Ex. 274 : see Sale of Goods Act, 1893, § 19, s.s. 1, 2. (r) Mirahita v. Ottoman Banh, vide supra. (s) Wait V. Baker (1848), 2 Ex. 1. (t) (1875), 1 C. P. D. 47. (w) (1878), 3 Ex. D. 1G4. 138 CONDITIONAL the bill of lading {x), sending also an indorsed bill of lading to his agent {y) ; or : — (II.) Discount it at a bank, depositing an indorsed bill of lading as security for the advance, and leaving the bank to present the bill of exchange for acceptance, together with the bill of lading (2). In case (I.) the vendee cannot retain the bill of lading, or obtain the indorsed bill of lading, unless he accepts the bill of exchange {a). In case (II.), he cannot obtain the bill of lading from the bank unless he satisfies the bank's claim for advances (b) ; but if, before the bank realizes the goods to satisfy its claim, the vendee tenders the amount claimed, the property in the goods will at once pass to him (c), and he will be entitled to the bill of lading, unless the jus disjjonendi has been reserved by the vendor with some other intention than that of securing tlie contract price (d). The vendee is not entitled to require delivery of all copies of the bill of lading before accepting bills of exchange, if the copy tendered is in fact effectual to pass the property ; nor semhle, can he claim that they should be delivered at such a time :that they can be forwarded to arrive at the port of destination before the ship, but only that the shipper shall forward them with all reasonable despatch (e). In all these cases the vendor, by reserving the jus dis- (ic) In Coventry v. Gladstone (1867), L. R. 4 Eq. 493, an attempt to set up a custom to deliver bills of lading, not when bills of exchange were accepted, but when they were paid, failed. (y) SJiepherd v. Harrison (1871), L. R. 5 H. L. 116. (z) Turner v. Trustees of Liverpool Docks (1851), 6 Ex. 543. Where a bank presents a bill of exchange with bills of lading annexed, it is not taken to guarantee that the latter are genuine : Leather v. Simjjson (1871), L. R. 11 Eq. 398 ; Baxter v. Chapman (1874), 29 L. T. 642. (a) Shepherd v. Harrison (1871), L. It. 5 H. L. 116. See also Sale of Goods Act (1893), § 19, s.s. 3, and Cahn v. Pochett's S.S. Co. (1899), 4 Com. Cas. For special facts under which the consisjnee who had received bills of lading was held not bound to accept bills of exchange drawn against them, see Deppennan v. Ilubhersty (1852), 17 Q. B. 766 ; for special facts in which the consignee was held to be bound, see Imperial Ottoman Bank v. Cowan (1874), 31 L. T. 336 ; Iloare V. Dresser (1859), 7 H. L. C. 290. (6) Turner v. Trustees of Liverpool Docks (1851), 6 Ex. 543. (c) Mirabita v. Ottoman Bank (1878), 3 Ex. D. 164. {d) Wait T. Baker (1848), 2 Ex. 1. See also Barber v. Taylor (1839), 5 M. & W. 527 ; Gilbert v. Guignon (1872), L. R. 8 Ch. 16. (6-) Sanders v. Maclean (1883\ 11 Q. B. D. 327. INDOESEMENT. 139 ponendi, is 'prima facie presumed to intend to retain the property in the goods (/), and the burden of disproving this intention lies on those who dispute it {g). Case 1. — P. requested V. in Brazil to purchase cotton for him ; V. did so and forwarded it to England, taking a bill of lading deliverable to V.'s order, and describing the cotton in the invoice as " shipped on account and at the risk of P." V. forwarded to bis agent W. the invoice and two bills of lading ; W. sent on to P. the invoice and one bill of lading, indorsed, and a bill of exchange for the price of the cotton. P. refused to accept the bill of exchange, but kept the bill of lading, which he handed to his brokers, who paid the freight on the cotton, and got a delivery order from the ship- owners. Meanwhile, W. obtained delivery of the cotton under the second bill of lading. Held, that W.'s action reserved to him the jus dispo- nendi, and the property in the cotton ; that P. could not keep the bill of lading without accepting the bill of exchange, and that W. was justified in taking possession of the cotton (h). Case 2. — V. purchased goods in X., as agents for P. in England, with the proceeds of bills drawn by V. on P., and discounted in X. On shipping, V. took bills of lading making the goods deliverable to P. and forwarded them to P. by post, with notice of the bills of exchange drawn. While the goods were in transitu, P. became bankrupt, having accepted some of the bills, but having paid none. Held, that the property had passed absolutely to P., subject only to V.'s right to stop in transitu (i). Case o. — V. shipped guano to P., as the result of a correspondence, which objected to the proposed price, but asked the captain to bring some other goods as well. P. insured the cargo. V. took a bill of lading, making the goods deliverable to V., or order, but before it was indorsed to P. the ship was wrecked. The jury found that V. had intended the ship- ment to pass the property to P., and had not intended to keep the guano in his own hands ; and this verdict was sustained by the Court, who held that the property was in P. from the time of shipment (k). Case 4. — V. sold potatoes to P., payment to be by cash against bill of (/) The property and possession in goods shipped has been held to be trans- ferred to the vendee on the facts of the following cases : — Walley v. Montgomery (1803), 3 East, 585 ; Coxex. Harden (1803), 4 East, 211 ; Oglex. Atkinson (1814), 5 Taunt. 759; Wihnshurst v. Bowker (1844), 7 JI. & G. 882; Key v. Cotcsxoorth (1852), 7 Ex. 595; Joyce x. Swann (1864), 17 C. B., N.S. 84; Castle v. Playford (1872), L. R. 7 Ex. 98 ; Ex parte Banner (1876), 2 Ch. D. 278 ; Mirabita v. Ottoman Bank (1878), 3 Ex. D. 164; Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. C. 128. The property or possession was held to have been reserved by the vendor and shipper in the following cases : — Craven x. Ryder (1816), 6 Taunt. 433 ; Ruck x. Hatfield (1822), 5 B. & Aid. 632 ; Brandt x. Boivlby (1831), 2 B. & Ad. 932 ; Ellershaw v. Magniao (1843), 6 Ex. 570 ; Wait x. Baker (1848), 2 Ex. 1 ; Van Castcel X. Booker (1848), 2 Ex. 691 ; Jenkyns v. Brown (1849), 14 Q. B. 496 ; Turner x. Trustees of Liverpool Bocks (1851), 6 Ex. 543; Moakcs x. Nicolson (1865), 19 C. B., N:s. 290; Falke x. Fletcher (1865), 18 C. B., N.S. 403; Shepherd x. Harrison (1871), L. R. 4 H. L. 116 ; Ogg v. Shuter (1875), 1 C. P. D. 47 ; Gaharron x. Kreeft (1875), L. R. 10 Ex. 274. (f/) Joyce X. Swann (1864), 17 C. B., N.S. 84. (h) Shepherd x. Harrison (1871), L. R. 5 H. L. 116. See also Barrow x. Coles (1811), 3 Camp. 92, and Cahn x. Pockett's S.S. Co. (1899), 4 Com. Cas. (0 E.V parte Banner (1876), 2 Ch. D. 27-8. (/;) Joyce v. Swann (1864), 17 C. B., N.S. 84. 140 CONDITIONAL INDOBSEMENT. lading, and took a bill of lading, deliverable to V. or order. The shi]) arrived on Jan. 20. W., the agent of V., presented on Jan. 27 the bill of lading to B., who refused to accept the bill on exchange annexed, on the plea of short shipment. There was in fact no short shipment; and on Feb. 2, W. sold the potatoes ; P. on the same day giving notice that he claimed them, but not tendering the price. Held, that until P. paid or tendered cash against the bill of lading, the possession (gttccre property), was in W., with a power to sell the goods (Z). Case 5. — V. purchased cotton by P.'s orders and shipped it on P.'s ship, V. taking a bill of lading, making the cotton deliverable to Z., "to order or as-igns, paying for freight for the cotton nothing, being owner's pro- perty." V. indorsed the bill in full : — " Deliver to the bank of Z., or order ;" drew bills of exchange on P., and discounted them at another bank on the security of an indorsed bill of lading. V. also forwarded to P. an invoice stating that the goods were shipped " by order and for account of P., and to him consigned." P. became bankrupt before the goods arrived ; V. paid the bills of exchange, and claimed to stop the goods in transitu; the representatives of P. claimed the goods on arrival. Held, that by the terms of the bill of lading, V. reserved to himself the jus disponendi in the goods, and did not lose it by indorsing the bill to the bank ; and that he consequently was entitled to the goods as against P.'s representative (in). Case 6. — V. shipped 600 tons umber upon a ship chartered for P., under a bill of lading, deliverable to V. or assigns. P. insured the umber. V. drew a bill of exchange for the price and forwarded it for discount to the Z. bank, with the bill of lading. P. declined to accept the bill, but after- wards, and before the bank dealt with the cargo, tendered the amount of the bill of exchange, and demanded the bill of lading. The bank refused, and sold the umber. Held, that the refusal and sale were wrongful, and that the property passed to P. on his tender made before the bank had realised (ii). Case 7. — V. agreed to sell to P. corn for cash or acceptance on handing over bill of lading. V. sent P. the charter of the ship made in V.'s name, in which the corn was loaded, and took a bill of lading, deliverable to G. iir assigns. When the cargo reached its destination V. left the invoice and an unindorsed bill of lading with P., who raised disputes as to the quality of the cargo, but afterwards tendered the price. V. refused to accept it. Held, that no property in the corn passed to P., either at shipment, or by the tender of the price (o). Case 8. — V. agreed to sell to P. iron, payment in cash to L., in exchange for bills of lading. V. took a set of three bills of lading, forwarded two duly indorsed to his agents in L., and retained the third himself. On August 3, V.'s agents tendered the two bills to P., who refused to pay cash unless all three were tendered. V.'s agent accordingly procured the third, (0 Ogg V. Shuter (1875), 1 C. P. D. 47. (m) Turner v. Trustees of Liverpool Docks (1851), 6 Ex. 543. (ji) Alirabita v. Imperial Ottoman Bank (1878), 3 Ex. D. 164. (o) Wait V. Baker (1848), 2 Ex. 1, distinguished in Mirabita v. Ottoman Bank (1878), 3 Ex. D, 164, as a case where the vendor kept a hold on the cargo for the purpose of securing his absolute property in the corn till he chose to pass it to the purchaser, and not merely to secure the contract price. Such a distinction has rather a slender foundation in fact, and it is submitted that the authority of Wait v. Baker is much weakened by the more recent decision. See also Ellershaw v. Magniac (1843), 6 Ex. 570; Gaharron v. Keeft (1875), L. R. 10 Ex. 274. STOPPAGE IN TRANSITU. 141 and tendered the three to P. on August 9. P. refused to pay cash on the ground that the tender was so late, that he could not forward them so as to reach the port of destination before the ship. Held (1), that the tender of what was in fact a bill effectual to pass the property was good, though the purchaser in the absence of the other bills of the set did not know it was effectual {p). (2) Seinble (7), that so long as V. used reasonable diligence in tendering the bill of lading to P., it was not necessary that he should tender it in time for it to reach the port of destination before the carrying ship (r). Article 63. — Stopimge in transitu. Under certain conditions a vendor, who has forwarded goods in such a manner that the property, though not the actual possession, has passed to the purchaser (s), has the right of resuming possession of the goods during their transit to the purchaser. This resumption of possession by tlie vendor does not amount to rescission of the contract {t), but is the exercise by an unpaid vendor (m) of his right to insist on his lien for the price {x). This right, known as the right of Stoppage in transitu (y), may be exercised by : — (j)) Thus if the third bill had been indorsed to I. before the tender of the other two to P., the tender would not be effective, but P. was not entitled to require proof of the effectiveness of the tender, a state of things productive of some hardship. (g) I'er Brett, M,R., at pp. 336-338 : Cotton, L.J., at p. 340, and Bowen, L.J., at p. 344, expi-ess themselves not unfavourably to this view, but decline finally to decide it. (;■) Sanders v. Maclean (1883), (C.A.), 11 Q. B. D. 327. (s) It is beyond the scope of this work to discuss exhaustively the cases when property passes on shipment ; the method of reserving property in the vendor by taking bills of lading, making the goods deliverable to his order, has been dealt with above : Article 61. On the question of appropriation of goods not specific, the reader is referred to Benjamm on Sale, Book II., c. 5, and the numerous cases cited in the various stages of Inr/lis v. Stock (1885), 10 App. C. 263. (0 Kemp V. Falk (1882), 7 App. C. at p. 581 ; In re Humberston (1846), De Gex, 262; Wentworth v. Outhwaite (1842), 10 M. & W. 436. (m) It depends on the character of impaid vendor, and not on the nature of a lien ; for other persons who are entitled to liens have yet no right to stop in transitu after they have lost possession. Kinloch v. Craig (1790), 3 T. R. 783. (.«) Statement of law by Cotton, L.J., in Phelps v. C'owi6) (1877), 5 Cli. D. 195. (q) (1844), 7 M. & G. 360. (;•) (1870), L. R. 4 H. L. at p. 330. (s) (1868), L. R. 6 Eq. 44. (i) See for a discussion on similar questions and of the now numerous clauses in Private Acts authorising the issue of negotiable warrants for goods, an article by Mr. A. T. Carter in L. Q. R, Vol. VIII., p. 300. THE TRANSIT. 149 Lord Blackburn, in Kemp v. Folic (u), held tliat cash receipts i.e. receipts for the price of goods given by the vendee's agents, on production of which the carrier deliveied the goods, were not documents of title within clause 5 of the Act of 1877, whose indorsement defeated the vendor's right to stop ; and that if they were documents of title, the statute was " never meant to have that effect"; what effect is not very clear. On the general question of delivery orders and warrants, see also Merchant Banlcing Co. v. Phoenix Bessemer Co. (v) ; Gunn v. BolcJioio Vaughan (lo); Coventry v. Gladstone (y) ; Pooley v. Great Eastern Bailway {z). Article 68. — The Transit. The determination of the beginning or end of the transit during which the goods may be stopped, involving, as it does, questions whether property or possession was intended by the parties to pass, must depend on the intention of the parties as shown by all the facts of the case (a). Thus wrongful or mistaken delivery will not either commence (b) or end (c) the transit, nor will wrongful refusal to deliver by the carrier prevent the transit beiug considered at an end {d). The transit commences when the vendor has given up possession of the goods in fulfilment of the contract, and continues until the goods have reached the liands of the vendee, or of one who is his agent to take possession of and keep the goods for him at such a place that the goods will (m) (1882), 7 App. C. at pp. 585, 58(3. (t)) (1877), L. R. 5 Ch. I). 'J05. (w) (1875), L. R. 10 Ch. 491. (?/) (1868), L. R. 6 Eq. 44. {z} (1876), 34 L. T. 537. (a) (1877), Per Jessel, M.R., 5 Ch. D. 219. (6) Ruck V. Hatfield (18'22), 5 B. & Aid. 632, where goods were shipped condi- tionally on obtaining bills of lading reserving the j'ms dispomndi to the consignor: see also the suggestion in Schotsmans v. L. c^- Y. B. Co. (1867), L. R. 2 Ch. 332, 335, that a vendor would not terminate the transit by shipping goods on a ship in ignorance of the ship's being owned by the vendee. (c) Litt V. Cowleu (1816), 7 Taunt. 169, where the carrier, afternotice to stop, delivered by mistake to the consignee ; see also Loeschman v. Williams (1815), 4 Camp. 181, a case of conditional delivery. ((0 Sale of Goods Act, 1893, § 45, s. (6) : Bird v. Brown (1850), 4 Ex. 786; see also Cowasjee v. Thompson (1845), 5 Moore P. C. 165, at p. 175, where vendors wrongfully retained a mate's receipt for the goods. 150 THE TRANSIT; remain there until a fresh destination is communicated to them by orders from the vendee (e). The necessity for stoppage in transitu does not arise until the vendor loses possession, as till then his possession enables him to exercise directly his lien for the unpaid price. In some cases the vendor, by giving up possession, may also end the transit, as where he delivers goods on board the vendee's ship (/), without reserving the jus disponendi to himself (g). It makes no difference whether the ship is a general ship, or sent specially for the goods {Ji),ov whether she is owned by the vendee, or is under a charter to him amounting to a demise (*). But delivery of the goods on board a ship chartered by the vendee, if the charter does not amount to a demise, will not end the transit, unless it clearly appears that such is the intention of the parties (j). Such an intention will not be inferred from the fact that the delivery is /. o. b., nor from the fact that the vendor does not know the ultimate destination of the vessel (k). Case 1. — V. sold goods to P. and shipped them on board P.'s ship, then on the berth as a general ship. Bills of lading were taken, making the goods deliverable to P. or assigns. Held, that such shipment prevented V. from stopping in transitu (I). Case 2. — V. sold clay to P. deliverable /. o. b.atX. It was shipped at (e) Sale of Goods Act, 1893, §45 ; per Willes, J., in Bolton v. L. Sf Y. B. (1866), L. R. 1 C. P. at p. 439 ; Lord Ellenborougli in Dixon v. Baldwen (1804), 5 East, 175 ; approved by C. A. in Ex parte Miles (1885), 15 Q. B. D. 39, at p. 44, and in Bethell v. Clark (1888), 20 Q. B. D. 615. These cases were approved by the Privy Council in Lyons v. Hoffnung (1890), 15 A. C. 391. See also Kendal v. Marshall (1883), 11 Q. B. D. 356, and Article 69. (/) Sale of Goods Act, 1893, § 45, s. 5 ; Schotsmans v. L. ^ Y. B. Co. (1867), L. R. 2 Ch. 332 ; Merchant Banking Co. v. Phmiix Bessemer Co. (1877), 5 Ch. D. 205, at p. 219 ; Van Casteel v. Booker (1848), 2 Ex. 691. (^) Vide ante, Article 61. (A) Schotsmans v. L. ^- Y. B. Co., vide supi'a, at pp. 336, 337, distinguishing Mitchcl V. Ede (1840), 11 Ad. & E. 888. (i) Fowler v. M'Taqgart (1801), cited at 1 East, 522. Ij ) Sale of Goods Act, 1893, § 45, s. 5 ; Berndtson v. Stranq (1868), L. R. 4 Eq., 481 ; 3 Ch. 588; 2Ioakes v. Nicholson (1865), 19 C. B., N.S. 290; Bohtlingk v. Inglis (1803), 3 East, 381 ; Thon.pson v. Trail (1826), 2 C. & P. 334. Liglis V. Ushcrv:ood (1801), 1 East, 515, as explained by the same Court in Bohtlingk v. Inglis, vide supjra, at p. 398, is not contrary to the test. Cf. Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. C. at p. 137. (k) Ex parte Boscvear China Clay Co. (1879), 11 Ch. D. 560; compare Bethell V. aark (1888), 20 Q. B. D. 615. (0 Schotsmans v. L. ^- Y. B. Co. (1867), L. R. 2 Ch. 3;;2. WHEN IT ENDS. 151 X. on a ship chartered by P. V. did not know the ship's destination : no bills of lading were taken, nor did P. give an acceptance for the price. Held, that the clay was in the possession of the master of the ship as carrier, and that V. could therefore stop it during the voyage, on P.'s insolvency (m). Article 69, — When the transit ends. The transit may be ended : — (n) I. By delivery to the vendee or his agents : II. By delivery to a forwarding agent (o) : III. By mutual agreement between vendee and carrier, whereby the carrier holds as agent for the vendee (o). 1. By actual delivery to the vendee or his agents (^;), even before the original place of destination (q). What circumstances amount to delivery of the goods will depend on the intention of the parties concerned (r). The delivery of part of the goods operates as a construc- tive delivery of the whole only in cases where the delivery takes place in the course of delivery of the whole, as where an essential part of a machine packed in parts is delivered to the consignee (s), in which case the taking possession of such a part by the buyer would be the acceptance of constructive possession of the whole (t). The burden (m) Ex parte Rosevear China Clay Co. (1879), 11 Ch. D. 560; compare Bethell V. Clark (1S88), 20 Q. B. D. 615. (n) Sale of Goods Act, 1893, §§ 45, 46. (o) These two classes are really special kinds of agents for the vendee. 0>) Willes, J., in Bolton v. L. ^ Y. R. Co. (1866), L. E. 1 C. P. at p. 439 : such delivery may be at the vendee's own warehouse, or at a place which he uses as his own, for the deposit of goods, though belonging to another: Scott v. Pettit (1803), 3 B. & P. 469 ; Rour v. Fick/ord (1817), 8 Taunt, 83 ; jx-r Parke, B., in James v. Griffin (1837), 2 M. & W., at p. 633. (g) Sale of Goods Act, 1893, § 45, s. 2; Z. ^ N. W. R. v. Bartlett (1861), 7 H. & N, 400. The dictum of James, L.J., in Ex parte Watson (1877), 5 Ch. D. 43, that, where the contract is to send goods to a place Z., " if the vendor found out that the goods were going to be diverted from the ship bound to Z. he would be entitled to obtain an injunction to prevent such diversions," is not inconsistent with this, as delivery after notice to stop in transitu would not be etFectual in any case, while delivery before notice to stop, though short of Z., would be effectual, in spite of any injunction. Scmhle, that if the vendee acquires posses- sion against the carrier's will, such possession is not effectual to deprive the vendor of his rights. (See Blackburn on Sales, 2nd ed, p. 375 ; Bird v. Brown (1850), 4 Ex. 786, and cases, Article 68, and note to section 3 of this Article. Contra, per Parke, B., in Whitehead v. ^lft(:/«-son(1842), 9 M. & W. 518, at p. 534.) (r) See cases on constructive delivery summarised in Benjamin on Sales, 4th ed, pp. Ill, 81], 880. (s) E.cjMrte Cooper (1879), 11 Ch. D. 68, per Cotton, L.,I., at p. 75, (t) Sale of Goods Act, 1893, § 45, s, 7 ; ex parte Cooper (1879), 11 Ch. D. 68, 152 THE TRANSIT; of proving such constructive delivery is on those who assert it {u). Case. — V. shipped 100 tons of iron castings to P. on a ship chartered by V. under a bill of lading to P. and assigns. On arrival thirty tons had been delivered to P., who had paid part of the freight. V. then stopped in transitu. Held, the notice was good as to that part of the cargo not delivered (f). 2. Delivery of goods to a forwarding agent will or will not end the transit, according as the forwarding agent receives them as agent for the vendee or as carrier. The chief test of his character is whether he receives the instructions necessary for forwarding from the vendee or vendor (v). It is immaterial that the property in the goods passes to the vendee on delivery to the carrier (x). Thus, if the vendor from the contract of sale, or from instructions from the vendee, can give no further directions as to the destination of the goods, and they will therefore remain with the forwarding agent, unless and until he has received instructions from the vendee, such an agent will receive the goods as agent for the vendee, and on his receiving them the transit will be at an end (?/). approving Willes, J., at L. R. 1 C. P. 440. Cases where part delivery has been held to give constructive delivery of the whole, are Tanner v. Scovell (1845), 14 M. & W. 28 ; Sliibey v. Heyimrd (1795), 2 H. Bl. 504; Hammond v. Anderson (1803), 1 B. & P., N. R. 69 ; Jones v. Jones (1841), 8 M. & W. 431, which were criticised in Ex parte Cooper, vide supra, at p. 77, and Ex parte Folk (1880), 14 Ch. D., at p. 455 and 7 App. C. 573, 579, 586. See also Wentworth v. Outhicaite (1842), 10 M. & W. 436 ; Whitehrad v. Anderson (1842), 9 M. & W. 518 ; Dixon V. Yates (1833), 5 B. & Ad. 313, 339. (m) Ex parte Cooper (1879), 11 Ch. D. 68 ; one reason given by the Court, that constructive delivery would involve the master's abandonment of his lien for the balance of the freight, appears inconsistent with Allan v. Gripper (lSo2), 2 C. & .1. 218, in which it was held that the existence of the carrier's lien was not incon- sistent with his holding as the vendee's agent, though the transit was at an end. (v) Sale of Goods Act, 1893, § 45, s. 3 ; Kendal v. Marshall (1883), 11 Q. B. 1). 356. See also a note by Mr. A. Cohen, Q.C., in " Law Quarterly Review," Oct. 1885. The test may be put otherwise: "Is the transit prescribed by the vendor over? If so, the right to stop is gone, though further transit takes place prescribed by the vendee." But Ex parte Rosevenr China Co. (1879), 11 Ch. D. 560 (Art. 68, Case 2), shews that sometimes the vendor may be unable to '' pi'e- scribe the transit," and yet retain his right to stop. It is easy to distinguish the facts of this case from others, but hard to see the principle of distinction between them. The test is also subject to tliis, that if the vendee gets the goods by consent of the carrier before the prescribed transit is over, the right is gone. See this point discussed by Bowen, L.J., in Kendal Y.Marshall, vide siqr-a, at p. 639. (x) Lyons V. Iloffnunij' (1890), 15 App. C. 391. (y) Ex parte Miles (1885), 15 Q. B. D. 39, affirming Dixon v. Baldwen (ISOi), 5 East, 175; Bowe v. Pickford (1817), 8 Taunt. 83; Ex parte Gibbes (1875), 1 Ch. D. 101 ; Leeds v. Wright (1803), 3 B. & P. 320. WEEN IT ENDS. 153 If, on the other hand, the vendor can and does give sucli instructions, as where the contract provides for such further transit, the transit will not end on delivery to the forwarding agent, though the particular ship in which the transit is to be made is ordered by the vendee, for in this case the forwarding agent receives the goods as carrier (z). Case 1. — V. sold goods to P. in London, P. being employed as commis- sion agent by (>, in Jamaica. P. ordered the goods of V. " lor the mark E. M., Kingston, Jamaica." V. knew from previous dealings that this mark was used by G. P. instructed V. to pack the goods, mark them with the above mark, and forward them to Q. at Southampton for shipment by the S. V. forwarded to Q., adding " please forward as directed : " V. sent particulars of mark, &c., of goods, leaving columns for " consignee " and " destination " blank. After this P. wrote to Q. that the consignee was Gr., and the destination " Kingston, Jamaica." The goods were shipped under bills of lading describing P. as consignor. P. afterwards failed. Held, that V.'s right to stop had ceased when the goods reached Q. (a). Case 2. — V. sold goods to P. in London ; P. wrote to V. : — " Please consign the goods to the Darling Downs to Melbourne, loading in the East India Docks here." V. sent the goods by rail to London. Tlie railway company sent P. an advice note that the goods were at his order and risk, together with a note : "The goods advised by this note have been forwarded to our Poplar tStation for shipment per Darlincj Downs."" They were so forwarded by the railway company and were shipped on the Darling Doiuns for Melbourne, the mate's receipts being sent to P. On the day they were shipped P. failed, and V. sent notice to the railway company to stop delivery, too late to prevent shipment. Held, that the captain of the ship received the goods as a carrier to Melbourne; that the transit did not therefore end till M., and that the notice to stop was effectual (6). Case 3. — Y. agreed with P. to sell him goods, drawing bills on him for the price, and shipping them to G. at Z. V. packed the goods, and forwarded them to London in bales marked Z., and addressed to the S., a ship named by P., and bound for Z. The railway company advised P. of the arrival of the goods in London, and that "they remained at his order, and were held by the company as warehousemen at his risk," adding "will be sent to the aS." They were so sent and shipped. Held, that the transit lasted till the arrival of the goods at Z., and V. could therefore stop in transitu at any time before such arrival (c). (Jase 4. — Y. sold goods to P., P. saying nothing about their destination. (z) Bethellx. Clark (1888), 20 Q. B. D. 615; Lijons v. Iloffnung, v. s. ; Ex parte Watson (1877), 5 Ch. D. 35, as explained in E.v parte Miles (1885), 15 Q. B. D. at pp. 46, 47 ; Kendal v. Marshall (1883), 11 Q. B. D. 35G ; Rodgn- v. Comptoir d'Escompte (1869), L. R. 2 P. C. 393; Valp!/ v. Gibson (1847), 4 ('. B. 837 ; Nicholls v. Lc Fnirre (1835), 2 Bing. N. C. 81 ; Coates v. Eailton (1827), 6 B. & C. 422 (doubted by Brett, L. J., 11 Q. B. D. at p. 366); Smith v. Gos& (1808), 1 Camp. 282; James v. Griffin (1837), 2 M. & \V., per Parke, B., at p (a) Ex parte Miles (1885), 15 Q. B. D. 39. (6) BctlieU V. Clark (1888), 20 Q. B. D. 615. Cf. Lyons r, Iloffnung (1890), 15 App. C. 391. (c) Ex parte Watson (1877), 5 Ch. D. 35. 154 THE TRANSIT. P. resold to K., and arranged with K. that the goods should be forwarded to Z. by steamer from X. P. then directed V. to send the goods to K. at X. V. did so, and the railway company gave K. notice that they held the goods as his warehousemen. Held, that V.'s right to stop in transitu was at an end (d). 3. The transit may be ended by agreement (e) between the carrier, wharfinger, or forwarding agent on the one hand, and the consignee on the other, that the former shall hold the goods, not as carrier but as vendee's agent (/). The fact that the carrier still claims a lien on the goods will not prevent his holding as vendee's agent, so as to bar the vendor's right of stoppage {g). Note. — There must he a mutual understanding; thus, the intention of the carrier alone, not assented to by the consignee, will not suffice (/i) : nor will the demand of the vendee if not assented to by the carrier (^), provided such refusal to deliver is not wrongful (/;;). Qusere, whether the transit could be so ended during the voyage by agreement between carrier and consignee. It could be by actual delivery to the consignee ; why not by the agreement of the carrier to hold as the vendee's agent ? Yet this would seriously affect the vendor's rights. Case 1. — V. sold oil to P. and forwarded it by carrier to Z. On its arrival at Z. the carrier gave notice to P., who signed for it in the carrier's books. Held, that the transit was over (/). Case 2. — V. sold goods to P., who lived at Z., and forwarded the goods to Z. by steamer. On arriving, the steamer was discharged into B.'s ware- house. B. was agent of the steamer, and usually held such goods at the risk and subject to the orders of the consignee. In this case he had no orders, as P., being bankrupt, had absconded before the arrival of the goods. V. gave P. notice to stop the goods. Held, that the transit was not ended by delivery of the goods to B., who could not be P.'s agent without authority from P. {in). Case 3. — V. sold goods to P., and forwarded them by ship. P. pledged the bill of lading to I. and became bankrupt. When the ship reached the Thames, I. paid the freight to the brokers and obtained an overside order (d) Kendal v. Marshall (1883), 11 Q. B. D. 356. (e) James v. Griffin, vide supra; Bolton v. L. 4' ^- Railway (1866), L. R. 1 C. P. 431 ; Ex parte Barrov: (1877), 6 Ch. D. 783. (/) Sale of Goods Act, 1893, § 45, s. 3 ; James v. Griffin (1837), 2 M. & W. 623 ; Ex parte Gouda (1872), 20 W. R. 981. (-7) Allan v. Gripper (1832), 2 C. & J. 218 ; Kemp v. Falk (1882), 7 App. C. at p. 584. (A) Edwards v. Brewer (1837), 2 M. & W. 375. (0 Jackson V. Nichol (1839), 5 liing. N. C. 508 ; Coventry v. Gladstone (1868), L. R. 6 Eq. 44. (/i) Bird V. Brown (1850), 4 Ex. 786. (0 Ex parte Gouda (1872), 20 W. R, 981. (ot) Ex parte Barrow (1877), 6 Ch. D. 783. NOTICE TO STOP. 155 for delivery. On jiresenting this at the ship, before she began to unload, I. was told that he should have the goods as soon as they could he got at. Before unloading began, V. stopped the goods. Held, that the transit was not ended by I.'s transactions, and that V. was entitled to stop (»). Article 70. — Notice to stop, Jioiv given. Notice to stop in transitu, to be effective, must be given either to the person holding the goods (as the captain of the ship or the warehouseman), while the goods are still in transitu, or to the shipowner or principal, whose servant has the custody of the goods, in such a time that he can by reasonable diligence forward it to his servant in time to prevent delivery ; and it is his duty so to forward it (o). Senible, that delivery by mistake after such a notice is received by the person in whose possession the goods are, will be ineffectual to rob the vendor of his remedy against the carrier (^:)). Article 71. — blaster s duty on receiving Notice. It is incumbent on the master to give effect to a claim to stop in transitu by delivery of the goods to the vendor, and not merely by abstaining from delivery to the vendee, (n) Coventry v. Gladstone (1868), L. R. 6 Eq. 44. (o) Sale of Goods Act, 1893, § 46 ; Whitehead v. A7iderson (1842), 9 M.& W. at p. 534 ; Kernp v. Falk (1882), 7 App. C". at p. 585 ; ijer Lord Blackburn, who suggests that his view is at variance witli that expressed by Bramwell, L.J., iu the Court below {Ex ijarte Falk, 14 Ch. D. at p. 455), who said "I cannot thinlc that any duty was imposed on the shipowners at L. to stop the goods ; it would be monstrous to hold that the telling some one else to stop the goods amounts to a stoppage in transitu," The first sentence is contrary to Wlutehead v. Anderson (at p. 534). But the last sentence is clearly right, as notice to the shipowner, not reaching the captain, could not i)revent the consignee from obtaining the goods, the vendor's remedy being against the shipowner. Litt v. Coiclej (1816), 7 Taunt. 169, seems to decide further that delivery liy an agent, who through mistake or neglect of his principal has not been informed of a notice to stop duly given to the principal, does not prevent the vendor from maintaining trover against the vendee, but as the case proceeds on the view, now abandoned, that notice to stop rescinds the contract, this position can hardly now be justified. It seems therefore that in such cases the remedy is against the carrier only ; for the vendor cannot claim the property, which has passed, or his lien, which has been lost, or possession, which has been abandoned. From this point of view see Short v. Simpson (1866), L. R. 1 C. P. 248, at p. 255. For an ineffectual notice to stop, see Phdps v. Comber (1885), 29 Ch. D. 813. (p) Litt V. Cowley (1816;, 7 Taunt. 169 ; Short v. Simpson, vide supra. 156 INDORSEMENT AS A PLEDGE. as soon as he is satisfied that the claim is made by the vendor, unless he is aware of an auswer in law to such claim {q). He can protect himself by an indemnity from the person to whom he delivers, or in case of a double claim, can interplead. Article 72. — Indorsement of Bill of Lading as a Mortgage. The effect of indorsement of a bill of lading may be to show an intention to pass, and therefore to pass, the legal estate in the goods to the indorsee as security by way of mortgage for an advance, leaving the indorser an equitable right to redeem them (r). Article 73. — Indorsement of Bill of Lading as a Pledge. The indorsement may have the effect of giving the in- dorsee an equitable interest as security by way of pledge for an advance, accompanied by a power to obtain delivery of the goods when they arrive, and if necessary to realize them for the purpose of the security (s). If such goods are not delivered to the pledgee of the bill of lading, he can bring trover or detinue at common law for them, though the defendant's parting with the goods was before the plaintiff acquired his title {t). An indorsement of bills of lading in blank, and their de- posit so indorsed by way of security for money advanced {u), without more, will be held to be a pledge (s). Note. — It is impossible to state with any confidence what dealings with a bill of lading will amount to a mortgage as dis- (g) Sale of Goods Act, 1893, § 46, s. 2 ; Tlie Tigress (1863), 32 L. J. Adni. at pp. 101, 102. (r) Sewell v. Burdick (1884-), 10 App. C. 74. As to the difference, iu general, between a mortgage and a pledge, see In re Morritt (1886), 18 Q. B. D. at pp. 232, 235. (s) Sewell V. Burdick, ante. The person indorsing the bill of lading as security for advances still retains sufficient interest in the goods to enable him to bring an action for damage to them. The Glamorganshire (1888), 13 App. C. 454. (t) Bristol Bank v. Midland By. Co. (1891), 2 Q. B. 653. (?<) It will require the stamp suitable for a pledge, and not for a mortgage : Harris v. Birch, 9 M. & W. 591 (18+2). INEFFECTUAL INDORSEMENTS. 157 tinguished from a pledge. Probabl}' none of the ordinary com- mercial dealings with bills of lading amount to mortgages, and the difference between mortgages and pledges is immaterial from a commercial point of view, as it lies chiefly in the exact legal remedies for enforcing the security. Case 1. — F. shipped goods to Z. on A.'s ship, taking a bill of lading, making the goods deliverable to F. or assigns. F. indorsed the bill in blank, and deposited it with I. as security for an advance. I. never claimed the goods mider the bill of lading. Held, that the transaction amounted to a pledge of the goods represented by tlie bill of lading (a;). Case 2. — F. sold cheese to G. and shipped it on board A.'s ship, taking bills of lading to order of F. or assigns. F. drew bills of exchange on G. for the price, which he sold to the T. Bank, with bills of lading attached indorsed in blank. The T. Bank forwarded the bills to their agents in London with a hypothecation note of the goods attached. On arrival of A.'s ship, A. deposited the goods with X., instructing them to hold the goods to his order. G. induced X. to deliver the goods to him without any order from A., and then by fraud G. induced the Z. Bank to take up the bills of exchange receiving with them the bills of lading. Z. got delivery orders from A. and presented them to X. When it was found that G. had procured X. to deliver to him the goods without any order from A. Z. sued X. for conversion. Held, that Z. were pledgees of the goods, and could sue for conversion, though X. had converted them at a time when Z. had no title (?/). Article 74. — Ineffectual Indorsements (z). An indorsement of the bill of lading may pass no property to the indorsee as : — (1.) Where the indorser has no property to pass (a), having, e.g. already indorsed one part of the bill of lading so as to pass the property (h) ; (2.) Or where there is no consideration for the indorse- ment (c) ; (3.) Or where the circumstances show that no property was intended to pass, as in the case of an indorsement to an agent to enable him to sell, or to stop in transitu (d) ; (4.) Or where the indorsee knows of facts which prevent (x) See ante, note (s). (y) Bristol Bank v. Midland Eij. Co. (1891), 2 Q. B. 633. {z) This article must be read subject to the provisions of the Factors' Acts, which it is beyoml the province of this worlc to deal with. (a) Finlay v. Liverpool S.S. Co. (1870), 23 L. T. 251, at p. 255 ; Gurne>j v. Bchrend (1854), 3 E. & B. at p. 634. (6) Barber v. Meuerstein (1S70), L. R. 4 H. L. 317. (c) Per Lord Selborne, lu App. C. 80 ; Warimj v. Cox (1808), 1 Camp. 369. (f/) Wariuij v. Cox, vide supra; Patten v. Thompson (1816), 5 M. & S. 350 ; Tucker v. Humphrey (1828), 4 Bing. 516. 158 BILLS OF LADING ACT. the indorsement from being effective (e), as the open insol- vency of a consignee who has not paid the price of the goods (/). But where the indorser has the property, even though such property has been obtained by fraud, an indorsement for valuable consideration to a hona fide indorsee, before the original owner or indorser has obtained a legal rescission of the transfer, will pass the property {g). Case 1. — Goods consigned to P. were in course of transit landed at a sufferance wharf on the Thames, subject to a stop for freight by A., and to a stop for advances by I., a mortgagee on security of a set of three bills of lading. P. obtained from K. a loan, with which he redeemed the bills from I. and indorsed two to K, as security for his advance. P. obtained another advance from N., to whom he indorsed the third bill. With this advance the stop for freight was removed, and M. obtained the goods from the sufferance wharf on production of his indorsed bill. Held, that the pro- perty in the goods having passed to K. by the first indorsement, the second conferred no property on M., and K. could recover from him the goods or their value (Ji). Case 2. — V. shipped to P. oilcake, sending the bill of lading to V.'s agent, W., with instructions not to part with it "without first receiving payment." P. gave W. a bill of exchange accepted by K., and promised immediate payment in cash, on which W. delivered to P. the indorsed bill of lading. P. indorsed the bill of lading to I., who took it hond fide and for value. P. and K. then became bankrupt, without paying W. Held, that though P. had obtained the bill of lading by fraud, he could transfer the property in the goods by its indorsement to I., a hond fide holder for value (i). Article 75. — Effects of Lidorsement under the Bills of Lading Act, 1855 {h). Such an indorsement of the bill of lading as passes to the indorsee the property, whether legal or equitable {I), in the goods, also vests in him all the rights and liabilities arising (e) Dick V. Lumsden (1793), Peake, 189; Cuming y. Brown (1807), 1 Camp. 104; Gilbert v. Guignon (1872), L. R. 8 Ch. 16. (/) Vidii Article 65. (g) Pease v. Gloaheo (1866), L. R. 1 P. C. 219; The Argentina (1867), L. K. 1 A. & E. 370. (A) Barber v. Meyerstein (1870), L. R. 4 H. L. 317. (0 The Argentina (1867), L. R. 1 A. & E. 370. (A) 18 & 19 Vict. c. Ill, s. 1, see Appendix HI. Until this Act was passed, the indorsement of a bill of lading would not affect the contract evidenced in it, and the indorsee could not sue or be sued on such contract, though he was the person really interested in the goods, the subject of the contract : Thompson v. Dominy (1845), 14 M. & W. 403 ; Howard v. Shepherd (1850), 9 C. B. 297. (0 'Scwell V. Burdick (1884), 10 App. C. at pp. 85, 95. BILLS OF LADING ACT. 159 in respect of such goods from the contract evidenced in the bill of lading {m). He may lose such rights and liabilities by such a further indorsement of the bill of lading as divests him of the property («). An indorsee of a bill of lading as security for an advance, whether the transaction amounts to a pledge (o), or, semhie, to a mortgage (jj), does not become liable under the contract evidenced in the bill of lading, until he completes his inchoate title by taking possession of the goods under the bill so indorsed (o). Such a vesting of rights and liabilities by indorsement of a bill of lading does not in any way affect the shipowner's right against the original shipper or owner of the goods for the freight (q), or the liability of the consignee or indorsee by reason of his being such consignee or indorsee or of his receiving the goods in consequence of such consignment or indorsement, or any right of stoppage in transitu (/•). Case. — F. shipped goods to Z. on A.'s ship, taking a bill of ladine, making the goods deliverable to F. or assigns, freight payable at Z. F. pledged the bills as security for an advance by indorsing them in blank, and depositing them so indorsed with I. F. did not claim the goods at Z., and they were sold bv the authorities there to pay custom-house charges. I. took no steps to obtain the goods. A. sued I. for freight as indorsee of (m) The indorsement does not vest in the indorsee any rights and liabilities arising otherwise than from such contract. LcJuc v. TT'an? (1888), 20 Q. B. D. 476. If the indorsee proves that the immediate indorsement to him was for valuable consideration, be need not also prove tliat the indorsement to his indorser was for value, in the absence of any evidence of fraud or other circum- stances invalidating the indorsement : Dracachi V. Anglo-Egyptian Navigation Co. '(1868), L. R. 3 C. P. 190. (n) Smurtlmaite v. Wilkins (1862), 11 C. B., N.S. 842; but see Corlett v. Gordon (1813), 3 Camp. 472 ; Lewis X. M'Kee (1868), L. R. 4 Ex. 58. Though the indorsee has agreed to resell the property, if the bill of lading is still an effective instrument he will not lose his rights and liabilities imder it, till he has reindorsed it so as to pass the propertv : 21ie Felix (1868), L. R. 2 A. & E. 273. Fowler v. Knoop (1879), 4 Q. B. D. 299. {o)Seicell V. Burdick (1884), 10 App. C. 74, j)cr Lord Selborne, at pp. 88, 89, explaining The Freedom (1871), L. R. 3 P. C. 394 ; The Figlia Maggiore (1868), L. R. 2 A. & E. 106. See also Allen v. Coltart (1883), 11 Q. B. D. 782, at pp. 784, 785. (p) Per Lord Blackburn, 10 App. C. at pp. 96, 97. Iq) Fox v. Nott (1861), 6 H. Sc N. 630, where the bill was indorsed to the shipowner himself: Short v. Simpson (1866), L. R. 1 C. P. 248. (r) 18 & 19 Vict. c. Ill, s. 2. An indorsement of a bill of lading has by this Act no further effect on the right of stoppage than it would have had before the Act. IGO ADMIRALTY the bill of lading. Held, that as I. had taken no steps to complete his title by claiming the goods under the bill of lading, lie was not liable on the contract evidenced in it (s). Article IQ.- — Position of Indorsee. The lawful holder of a bill of lading, in whom the pro- perty in tlie goods is vested, may by indorsement transfer a right greater than he himself has ; for he transfers his position under the contract evidenced in the bill of lading, but does not transfer any other rights or liabilities which may be vested in him against or to the shipowner, charterer, or original shipper, unless the indorsee has notice of such rights and liabilities {t). Case 1. — F., shippers of goods, indorsed to I. a bill of lading stating that the goods were shipped on board the »S'. lying at Fiume and bound for Dunkirk. The ship deviated from the ordinary voyage between those two ports and was lost on such deviation. I. sued the shipowners, who pleaded that F. knew of the intention to deviate before shipment. Held, that F.'s knowledge did not effect I. {iv). Case 2. — C. chartered a ship from A. and shipped goods in it, receiving a bill of lading from the master. C. saw the method of stowage and did not object to it. C. indorsed the bill to I. The goods were damaged by the method of stowage. I. sued A. on the contract in the bill of lading. Held, that I. was not affected either by O.'s position under the charter or by C.'s knowledge of the method of stowage (x). Article 11. — Effects of the Indorsement of the Bill of Ladincf under the Admiralty Jurisdiction Act, 1861 {y), and Parties under that Act. In any case where goods are carried into any port in England and Wales in any ship {%), and at the time of the (s) Siu-ell V. Burdick (1884), 10 App. C. 74. See also Foider v. Knoop (1879). 4 Q. B. D. 299. (0 Eodqer v. Comptoir d'Escompte do Paris (1869), L. R. 2 P. C. 393 ; The Helene (1865), B. & L. at p. 424; The Emilicn Marie (1875), 44 L. J. Adni. 9 ; Jenkyns v. Usborne (1845), 8 Scott, N. E. 523 ; Leduc v. Ward (1888), 20 Q. B. D. 476. The ordinary case of defeat of stoppage iji tranxitn by indorsement to a bona fide holder falls under this principle. (?«) Leduc v. Ward, vide supra. (x) The Helene, vide supra. (y) 24 Vict. c. 10, s. 6. See Appendix III. (?) The ship carrying must be tlie ship doing the wrong: tlius where damaged o-oods were transhipped, and the second ship came to England, she was held not JURISDICTION ACT. 161 institution of the cause no owner or part-owner {a) of the ship is domiciled in England or Wales, claims Qj) in rem can be made against such ship in the Admiralty Court, as follows : — I. Claims on contract (c). 1. Every indorsee of a bill of lading to whom the property in the goods shipped under the bill of lading shall have passed so as to transfer to liim the contractual rights and liabilities under the bill of lading, in virtue of the Bills of Lading Act, 1855, may sue for breach of such a contract. Thus an indorsee to whom the whole property, legal or equitable, has passed, or a mortgagee or pledgee of the bill of lading who has completed his title by taking possession of the goods under the bill of lading, may so sue {d) ; a mortgagee or pledgee who has not so completed his title (e), or a bare liable for the fault of the first ship, and the first ship when afterwards she came to England was held not liable, as not having carried the goods to England : The Ironsides (1862), Lush. 458. But the sliip may be liable, though she does not carry the goods into port, as in cases of short delivery: The Danzig (1863), B. & L. 102. It will be sufficient that the ship shall come into such a port in the course of her voyage, though the goods are not to be delivered there: The Pieve Superiore (1874), L. R. 5 P. C. 482, at p. 491. See also The Bahia (1863), B. & L. 61 ; The Patria (1871), L. R. 3 A. & E., at p. 459. When she has once been in such a port, the jurisdiction of the Admiralty in respect of that voyage vests, and tlie claim can be enforced against the shi() on her entering an English port in any subsequent voyage : but as the claim does not give a maritime lien, such arrest will not avail against any valid cliarges on the ship, nor against any bond fide purchaser: The Pieve Siqjeriore, vide supra. The damage must be done on the homeward voyage ; there will be no claim for damage on the outward voyage to goods delivered abroad ; The Kasan (1863), B. & L. 1. (a) This will include a charterer, if the charter amounts to a demise, but not otherwise: The St. C^omc^ (1863), B. & L. 4. This limitation does not apply to claims in the County Court under the County Courts Admiraltv Jurisdiction Act of 1869 (32 & 33 Vict. c. 51, s. 2), App. III.: The Bona (1882), 7 P. D. 241. (6) The claims must arise indei)endeutly of the Admiralty Jurisdiction Act : The St. Cloud (1863), B. &. L., at p. 18 ; The Figlia Maggiore (1868), 2 L. R. A. & E., at p. 110, approved by Lord Selborne, 10 App. C. at p. 88 ; e.g. if the claim could not have been made against an English owner before the Act, it cannot be made against a foreign owner by virtue of the Act. The Admiralty Court cannot con- sider a set-ofl' for freight claimed by the shipowner: The Don Francisco {lBiQ2), Lush. 468. (c) The " contract " in the Act refers to the contract in the bill of lading : The Piece Superiore (1874), L. R. 5 P. C, at p. 491. (fO The Figlia Maggiore (1868), L. R. 2 A. & E. 106 ; The Freedom (1871), L. R. 3 P. C. 594, discussed by Lord Selborne iu 10 App. C, at pp. 88, 89. Such right to sue in contract continues until the contractual rights have been lost by such a reindorsement as passes the property, though there is an agreement to sell, which may give an interest to the vendee to sue in tort : The Felix (1868), L. R. 2 A. & E. 273; The Marathon (1879), 40 L. T. 163. See Article 75. (e) Because he has not yet acquired contractual rights under the Bills of M 162 ADMIRALTY assignee of the bill of lading (/) to whom no property has passed, cannot so sue on the contract. 2. A consignee named in the bill of lading, to whom the property in the-goods has passed by such consignment, may also sue on the contract, as he has under the Bills of Lading Act contractual rights under the bill of lading {g). A con- signee to whom the property in the goods has not passed by such consignment, or a consignee not named in the bill of lading (Ji), may not sue on the contract, unless he takes a title by indorsement of the bill as above (i). II. In Tort {h). 1. Every indorsee of the bill of lading, to whom a pro- perty as against the indorser, though it may not be the whole property, has passed, may so sue in tort. Thus a mortgagee or pledgee, who has not yet completed his title by taking possession of the goods, may sue in tort {I). A bare assignee, having no property in the goods, cannot sue in tort {m). 2. A consignee to whom the, or any, property in the goods has passed, may sue in tort {n). A consignee to whom no property in the goods has passed cannot so sue {m). Note. — The above statement, it is believed, reconciles all the cases, with the exception of dicta in The Nepoter {n), suggesting that the Admiralty Act intended to give every consignee or Lading Act, 1855 : Sewell v. Burdick (1884), L. R. 10 App. C. 74 ; and therefore has apart from this statute no legal claim against the shipowner. Article 75. (/) The St. C/o«c/ (1865), B. & L. 4. Article 74. ((/) 18 & 19 Vict. c. Ill, s. 1 : The Nepoter (im^), L. R. '2 A. & E. 375, see also Fowler v. Knoop (1879), 4 Q. B. D. 299 : where the consignee named in the bill of lading, who had sold the cargo, but not assigned the bill of lading, was held entitled to sue. (A) Thus in a bill deliverable "to shipper or order," the consignee ordered would be a consignee not named in the bill of lading. (j) See note {k), Article 75. (Ji) " Breach of duty " of the master will include a refusal to deliver to a vendor who has stopped in transitu: The Tigress (1863), B. & L. 38; and a refusal by the master to give the holder of the bill of lading the particulars necessary to compute his liability for freight and general average contribution : The Norwcui (1864), B. & L. 226 ; but not a refusal, though improper, to insert certain particulars in his protest : The Santa Anna (1863), 32 L. J. Adm. 198. (;) Though he cannot sue on the contract : The Figlia Macjgiore (1868), L. R. 2 A. & E. 106 ; per Lord Blackburn, 10 App. C. pp. 94, 95. (in) St. Cloud (1863), B. & L. 4, and ;>er Lord Blackburn, 10 App. C. p. 94. (rt) The Nepoter (1869), L. R. 2 A. & E. 375. JURISDICTTOX ACT. 163 ussignee of a bill of lading a capacity to sue. These dlcUi were unnecessary, as the plaintiffs there being " consignees named in the bill of lading" had contractual rights under tlie Act of 1855, and also had, as Sir E. Phillimore held, a, though not the, pi'operty in the goods, which would enable theiu to sue in tort. The Act of 18G1 gives those who have a lawful claim in per- sonam against the shipowner, which fails owing to his absence from the coTintry, an auxiliary' remedy in rem against the ship, which is present in the country. But, as was held by Dr. Lush- ington in The St. Cloud (o), and by Sir E. Phillimore in The Figlia Maggiore (p), and ajiproved by Lord Selborne in Sewell v. Burdick iq), the claim must arise in law independently of the Act of 18G1, which gave a new remedy, not a new primary right. Who then could sue before 1861 ? Anyone who had a proprietary interest in the goods could sue in tort. A party to the bill of lading or a consignee named in it, or an indorsee who acquired the property in the goods by the indorsement, could sue in contract. But those who had no property could sue neither in contract nor in tort. Those who had a property, but not the property under the Act of 1855, could sue in tort but not in contract. A bare assignee had neither property nor contractual rights, and thus, apart from the Act of 1861, could not sue at all; it is, therefore, submitted that Sir E. Phillimore's obiter dicta to the contrary are inaccurate. To obtain this result it is not necessary to read " assignee" in the Act of 1861 as "assignee to whom the property shall pass," a process which Dr. Lushington was doubtful about in The St. Cloud (o), and Lord Blackburn condemned in Sewell v. Burdick (q). For " claim by an assignee " means " lawful claim," and a bare assignee before the Act of 1861 could make no lawful claim. (o) St. Cloud, ante, p. 143, note (c). Qa) (1868), L. R. 2 A. & E. 106. (({) (1884), 10 App. C, 74, at p. 94, M 2 ( 164 ) SECTION VI. Liability of Shipowner for Loss of, or Damage to, Goods carried. Article 78. — Liahilitij of Shipoivner in absence of express Stipulations. In the absence of express stipulations in the contract of affreightment («), all shipowners who are common carriers {i.e. wlio offer their ships as general ships for the transit of the goods of any shipper), are liable for any damage to such goods in transit, unless caused by the act of God or the Queen's enemies or by the vice of the goods themselves (jS). Qusere, whether a shipowner who is not a common carrier has the same liability as a common carrier (c), or is only liable as a bailee for the exercise of due care and diligence {d). All shipowners who contract to carry goods undertake absolutely, in the absence of express provisions negativing (a) See Article 3, and Zipton v. Jescott Steamers (1895), 1 Com. Cases, 32. (h) Nugent v. Smith (1870), 1 C. P. D. 19, 422 ; Liver Alkali Co. v. Johnson (1874), L. K. 9 Ex. 338. Per Bowen, L.J., in Pandorf v. Hamilton (1886), 17 Q. B. D., at p. 683. See Articles 80, 81. This liability is not removed by a practice of the shipowner to insure at the cost of the goods owner, and bv his direction, Hill v. Scott (1S95), 2 Q. B. 371. (c) Per Brett, J., in Nugent v. Smith (1876), 1 C. P. D., at p. 33, and Liver Co. V, Johnson (1874), L. R. 9 Ex., at p. 344. ((?) Per Cockburn, C.J., in Nugent v. Smith, vide supra, at pp. 434, 438 : com- pare Lord Herschell, at p. 510, and Lord Macnaghten, at ]>. 515 of The Xantho (1887), 12 App. C. 503: Lord Watson at p. 526 of Hamilton v. Pam/or/ (1887), i2 App. C. 318 ; and Note, post, p. 169. See also per Willes, J., in Notara v. Henderson (1872), L. R. 7 (^ B., at p. 236 ; Grill v. General Colliery Co. (1866), R. L. 1 C. p., at p. 612. If he has the liability of a carrier he will be liable ior damage to the goods carried resulting from causes other than the act of God or the Queen's enemies, or the vice of the goods themselves, though such damage could not be prevented by reasonable care and diligence on his part and that of his servants. If he has only the liability of a bailee he will be free where he can prove that he and his servants have exercised reasonable care and diligence. LIABILITY OF SHIPOWNERS. 1G5 such undertaking, that their ship is seaworthy at the begin- ning of the voyage (e), that they will proceed on the voyage with reasonable despatch (/) and without unnecessary deviation {(j). Note. — In the law, as thus stated, there ai'e two disputed points : — (1.) Whether the owner of a ship or lighter hired to carry a specific cargo on a particular voyage, as ditstinguished from a general ship plying habitually between particular ports and carrying the goods of all comers, is in the absence of express agreement a common carrier, and therefore liable, in the absence of express stipulations, for all damage resulting in transit, unless from the act of God or the Queen's enemies or vice in the goods themselves. (2.) Whether, apart from the liabilities of a common carrier, every shipowner or master who carries goods on board his vessel for hire is, in the absence of express stipulations, subject to the liability of an insurer, except as against the act of God or the Queen's enemies or inherent vice in the goods, or whether he is only liable for loss shown to have arisen from negligence on his part, or on that of his servants. The practical importance in the case of ships is not very great, as the difference in the law would chieQy affect ships chartered to one shipper without any express stipulations in the charter, an unusual case ; but it is important in the case of lighters, which are frequently let out for hire in that way. I. The first question has been discussed in Liver AlJcali Co. v. Jolmson (1872) (li). There, A. was a lighterman and let out his flats to any customer who applied for them ; his flats did not ply between any fixed points, but each voyage was fixed by the particular customer ; a special bargain was made with each customer, though not for the use of a particular flat ; but no flat was carrying goods for more than one person on the same voyage. A. let a flat on these terms to C. to carry salt from L. to W. ; on the voyage, without A.'s negligence, the flat was wrecked. C. sued A. for the damage to the salt. The Court, consisting of Kelly, C.B., Martin, Bramwell, and Cleasby, B.B., held A. a common carrier, and therefore liable. Kelly, C.B., laid stress on the fact that no particular vessel was hired, saying: "No doubt, if each particular voyage had been made under a special contract containing stipulations applicable to that voyage only, the case would have been different," which seems to distinguish the case of a ship specifically chartered to a particular shipper. (e) Steel v. State Line (1878), 3 App. C, 72, and Article 29. (/) ^ee Article 30. 0/) See Articles 99, 100. (A) L. E. 7 Ex. 267. Cf. Hill v. Scott (1895), 2 Q. B. 371. 166 LIABILITY OF In tlie Exclieque]" CliamLer the majority of the Court (Black- hnrn, Mellor, Archibald, and Grove, J J.) affirmed this jiido- ment (/ ) on the ground that a lighterman, carrying on business as described, "does, in the absence of something to limit his liability, incur the Uabllity of a common carrier in respect of the goods he carries." Brett, J., while agreeing that A. was liable, put his liability on the ground that (j) " by a recognised custom of England, every shipowner who carries goods for hire in his ship, whether by inland navigation, or coastways, or abroad, undertakes to carry them at his own absolute risk, the act of God or the Queen's enemies alone excepted," unless he limits this liability by express agreement. He emphatically held that A. was not a common carrier, on the ground that he did not undertake to carry goods for, or charter his flat to, the first comer ; (and therefore was not liable to an action for refusing to do so, the essential characteristic of a common carrier). The rest of the Court had expressly abstained ( li) from examining whether A. was a carrier so as to be liable to such an action, and had confined themselves to deciding that he " had the liability of (queere, the same liability as) a common carrier." In Nugent v. Smith (I), Cockburn, C.J., repeated Brett, J.'s, ob- jection : " I cannot help seeing the difficulty that stands in the way of Liver Alkali Co. v. Johnson, namely, that it is essential to the character of a common carrier that he is bound to carry the goods of all persons applying to him, while it has never been held, and, as it seems to me, never would be held, that a person who lets out vessels to individual customers on their application was liable to an action for refusing the use of such vessel if required to furnish it." The judgment however may be sup2)orted on narrow grounds : (1.) It only applies, according to the judgment of the Court below, to cases where no specific vessel is chartered or hired, but there is a contract to carry so much goods ; the case of a specific charter is expressly excluded. (2.j The Court above do not decide that A. was a common carriei", but only that a lighter- man, contracting to carry goods in some vessel or other, has the same liability as a common carrier. The case therefore ma}'' be confined to the calling of lightermen ; and whether a lighter- man has the liabilities of a common carrier is a question of fact in each particular case (m). At present the leading lightermen on the Thames expressly decline to take the liability of common carriers, and only hold themselves liable for damage from negligence or wilful acts on the part of their servants (^n). (0 (1874), L. R. 9 Ex. 338, at p. 341. U) At p. 344. {k) See p. 340. (0 (187G), 1 C. P. D., at p. 433. (m) Tamraco v. Timothy (1882), 1 C. & E. 1. {a) See 'Tate v. IJijslop (1885), 15 Q. B. D., at p. SHIPOWNERS. 167 II. The custom to insure, binding in the absence of express agreement on all shi})owners lending their vessels for hire, rests in modern times on the authority of Lord Elsher, who expressed that opinion in 1874, in the case just cited, and repeated it in 1875, in NtKjent v. Smith (o), Avhere he said, Denman, J., con- curring : " The true rule is that every shipowner or master who carries goods on board his ship for hire is, in the absence of express stijnilation to the contiary, subject by implication . . . by reason of his acceptance of the goods to be carried, to the liability of an insurer, except as against the act of God or the ■Queen's enemies . . . not because he is a common carrier, but because he carries goods in his ship for hire." As the ship there was a general ship, this was obiter dictum, but in the Oourt of Appeal, Cockburn, C.J., admitting that the point was not involved in the case, took occasion to dissent entirely from the view of Brett, J., in a very elaborate judgment, in which he held that no such liability existed, but that shipowners, other than of general ships, were only bailees, and bound to use ■ordinary care and diligence. On this two questions arise (Ij as to the history of the rule; (2) as to its present position. I. As to its history, the view of Brett, J., was (p) that the common law of England as to bailments is founded on the Roman law, that therefore bailees are liable only for ordinary care unless they fall within certain classes, who are absolute insurers, the historical origin of these classes being found in the Praetor's Edict (q). This historical view has been attacked, I venture to think successfully, by Mr. 0. W. Holmes in his work on the Common Law (r). Cockburn, C.J., took the view (s) that the strict liability of carriers was introduced by custom in the reigns of Elizabeth and James I. as an exception to the ordinary rule that bailees were bound to uj-e ordinary care (t). Holmes maintains that the stricter liability is the older of the two, and that the present liability of carriers is therefore a survival of the old rules (u). (o) 1 C. P. D., at \\ 33. {p) Ibid., at p. 29. ((/) Dig. IV. 9. (;•) (1882), Loudon, pp. 175-205. is) 1 C. P. D., at p. 430. (t) Liabilitj' of innkeepers, Cahje's Case (1584), 8 Co. 32. Of common carriers l>y land, Woodlijf's Case (159G), Moore, 462; Oweu, 57. Of common carriers by water, Jlich v. Kneeland {IGlo), Hob. 17 ; C'ro. Jac. 330. The first case cited for the general liabilitv of sliipowuers is Morse v. Slue (1671), 2 Keb. 866; 3 Keb. 72, 112, 135; 2 Lev. 69 ; 1 Vent. 190, 238; 1 Mod. 85 : Sir T. Kaym. 220. (it) The fuller discussion of the historical question is beyond the scope of this work. The reader may refer to Holmes, C. L. c. 5, Bailments, and to the follow- ing cases: Soathcote v. Bmnet (1601), 4 Kep. 83 b., Cro. Eliz. 815 (adversely- discussed by Lord Holt in Co>j(js v. Bernard (1703), 2 Ld. Raym. 909, and Sir W. 168 EXCEPTED II. As to the rule of law now prevailing, the recent cases in the House of Lords («), supported as they are hy several dicta of "Willes, J., e.g. " the shipowner's exemption is from liability for loss whicli could not have been avoided by reasonable care, skill, and diligence " {lo). ..." The contract in a bill of lading is to carry with reasonable care unless prevented by the excepted perils " (x) ; and also by the judgments in Laurie v Douglas (y), where a direction to the jury that " a shipowner was only bound to take the same care of goods as a person would of his own goods, i.e. an ordinary and reasonable care," was held a proper direction, and in The Duero (2), render it hardly safe at present to adopt the view advocated by Lord Esher. But the question so far as it is of practical importance is fully discussed below (a). Article 79. — The efect of excepted Perils in the Contract of Affreightment. Charterparties contain an undertaking by the shipowner and charterer to perform their respective parts of the con- tract, unless prevented by certain perils excepted in the contract, provided that such perils could not have been avoided by reasonable care and diligence on the part of the person prevented by them from performing the contract, and of his servants (IS). Bills of lading contain an undertaking Jones on Bailments, 3rd ed. pp. 41-45); Puch v. Knccland (^ CA^), vide supra; Symons v. Darhioll (1628), Palmer, 523 ; Nicholls v. Moore (1661), 1 Sid. 36 ; Matthews V. Hopkin (1 667), 1 Sid. 244 ; Morse v. Slue (1671), vide supra ; Goff v. Clinkard (1750), 1 Wils. 282, n. ; Dale v. Hall (1750), 1 Wils. 281 ; Barclay v. Cuculla (1784), 3 Dougl. 389 ; Trent Navigation v. Ward (1785), 3 Esp. 127 ; Forvxml v. Pitt. B. D. 47. The decision of the C. A. in S.S. Garston v. Hic'hie, Borman (1886), 18 C^. B. D. 17, that such a collision is a peril of navigation is now unnecessary. ((') Lawrence v. Aberdein (1821), 5 B. & A. 107 ; see also Latham v. Llodjson (1/96), 6 T. R. G56. 184 STBIKES. Case 5. — Goods shipped were stowed in a place especially exposed to the waves, and in rough weather were damaged by salt water. Held, that the improper stowage took the daniage out of the exception (Jc). Case 6. — Owing to bad weather a ship's hatches were kept closed, and the cargo putrefied. Held, that improper stowage and lack of ventilation took the case out of the exception " perils of the seas " (I). Case 7. — Goods were shipped with an exception "all and every the dangers and accidents of the seas and navigation." While the ship was discharging her cargo in dock, moored to a barge and a lighter, she capsized, owing to ropes breaking, and the goods were damaged. Held, a " danger of navigation " within the exception (?n). Case 8. — Goods were damaged by sea water let into the hold by the barratrous act of the crew in boring holes in the ship. Held, not a loss by perils of the sea («). Case 9. — Goods were damaged on the voyage by rats. The shipowner, who had two cats and a mongoose on board and had employed a professional ratcatcher, was found to have taken every precaution. Held, that such damage by rats was not a peril of the sea or of navigation (o). Case 10. — On a voyage rats ate a hole in a leaden pipe, and so let sea- water into the ship, damaging the cargo. Held, a peril of the sea (p). Case 11. — A ship was fired into in mistake for an enemy, and sea water entered through the shot-holes. Damage done by such sea water is a peril of the sea (q). Case 12. — A donkey-engine accidentally exploded : Submitted, that if the explosion damaged goods directly, such damage would not be a peril of the sea ; but that if it admitted sea water to the goods, the damage in that case would be a peril of the sea (r). Article 84. — Strikes. The exception " strikes or lockouts " covers refusals of men or masters to carry on work or business by reason of and incidental to labour disputes (s). It does not cover (k) The Oquendo (1878), 38 L. T. 151 ; see also The Catherine Chalmers (1875), 32 L. T. 847. (0 The Freedom (1871), L. R. 3 P. C. 594, 603 ; see also The Figlia Ifaggiore (1868), L. R. 2 A. & E. 106. Where goods properly stowed putrefy through extraordinary delay caused by bad weather, semble, that the shipowner will not be excused by the exception "perils of the sea"; though he may be by the plea of inherent vice in the goods themselves, The Barcorc (1896), P. 294 : such damage would not be a peril of the sea for which underwriters would be liable. See Taylor v. Dunbar (1869), L. R. 4 C. P. 206 ; Tatham v. Hodgson, v. s. ; Fink V. Fle7ning (1890), 25 Q. B. D. 396. (to) Laurie v. Douglas (1846), 15 M. & W. 746; see The Accomac (1890), 15 P. D. 208 ; cf. Devaux v. I'Anson (1839), 5 Bing. N. C. 519, as criticised by Lord Herschell, 12 App. C. 497. (n) The Chasca (1875), L. R. 4 A. & E. 446. (o) Kay V. Wheeler (1867), L. R. 2 C. P. 302. Ip) Hamilton v. Pandorf (IfiSl), 12 App. C. 518. (g) Ctdlcn v. Butler (1816), 5 M. & S. 461, as corrected by Lord Herschell, 12 App. C. 509. (?•) Tliames Ins. Co. v. Hamilton; The Inchmaree (1887), 12 App. C. 484 ; Hamilton v. Pandorf, v. s. (s; RirJiardson v. Samuel (1898), 1 Q. B. 261, at pp. 267, 268. EXCEPTED PERILS. 185 dismissals of men to save expense (t) or men leaving work for fear of disease (m). The employer must use reasonable exertions to carry on his business and obtain men {x). Strikes preventing cargo from coming to the port of loading may be within the exception {y). Article 85. — Pirates, Bobbers by Land or Sea, Thieves. The exception " robbers " refers to robbers by violence external to the ship {z), and does not include secret theft {a). The exception " thieves " refers to thieves external to the ship (a). Theft or mutinous seizure by the crew, if reasonable precautions have been taken to prevent them, are probably barratry. Case 1. — A box of diamonds was shipped with the exceptions, " pirates, robbers, thieves, barratry of master and mariners." The box was stolen before dehvery ; there was no evidence to shew by whom. Held, that thieves meant " thieves external to the ship." That even if theft by the crew was barratry, still as the shipowners must prove the loss to fall within one of the exceptions (h) (and it might have been the act of a passenger, who was certainly not within the exceptions), the shipowner was liable (c). Cane 2. — (joods were shipped from P. to London, under exceptions, " robbers, the dangers of the seas, roads, and rivers." The goods were stolen in transit by rail from Southampton to London. Held, that " robbers " meant robbers by violence, and the shipowner was liable (z). Case 3. — Goods were shipped under exceptions ..." pirates, robbers, or thieves of whatever kind, whether on board or not, or by land or sea." Goods were stolen after shipment by one of the stevedore's men employed (i) Eichardson v. Samuel, vide supra. (m) Stephens v. Harris (1887), 56 L. J. Q. B. 516, Ix) BidminY. Fenwick (1894), 1 C^. B. at p. 185. (?/) The Alne Holme (1893), P. 173. {z) De Rothschild v. Royal Mail Co. (1852), 7 Ex. 734. The phrase " assailing thieves " is sometimes used. (a) Taylor v. Liverpool S.S. Co. (1874), L. R. 9 Q. B. 546. Cf. The Prinz Heinrich (1897), 14 Times L. R. 48. {h) Semble, that if the shipowner had proved theft by the crew, i.e. prima facie barratry, the omis of proving negligence of the owner or master would then be on the shipper. (c) Taylor v. Liverpool S.S. Co. (1874), L. R. 9 Q. B. 546. 186 EXCEPTED by the ship. Held, the exception did not apply to thefts committed by men in the service of the ship (e). Note. — Loss by pirates has been held a peril of the sea, so the advantage of the exception "pirates" is not very great. It however relieves the shipowner of the burden of proving that the loss was not caused by his negligence ( f). Mutinous seizure by the passengers has been held " piracy " under an insurance policy {g). The cases above are sometimes met by such exceptions as " thieves, whether on board or not," " pilferage," or " plunder of goods by crew or stevedores." Many bills of lading, how- ever, adopt the cases by inserting the exception, " thieves by land or sea, but not pilferage." In ships which usually carry bullion in a bullion room, there is an implied warranty that the bullion room is reasonably fit to resist thieves : unless this is complied with, the exceptions do not apply (Ji). Article 86. — Loss or Damage from Leakage (J), Breakage, Heat, Sweat, Bust, &c. If reasonable care is used in the stowage of goods, this- exception protects the shipowner from liability for any damage or loss to the goods which leak, break, heat, sweat,, rust, &c. It does not by itself j)rotect him from liability for damage resulting from negligent stowage {h), (though it throws the burden of proving such negligence on the shipper (J), nor from liability for damage to goods from the leakage, &c., of other goods (w). (e) Steinman v. Angler Line (1891), 1 Q. B. 619. Some of the large lines- have now widened their exception to meet this. (/) Czech V. General Steam Co. (1867), L. R. 3 C. P. 14. (g) Palmer v. Naylor (1854), 10 Exch. 382. Ih) Queensland Bank v. P. 4- 0. Co. (1898), 1 Q. B. 567. (i) An attempt to limit " leakage " to "ordinary leakage," said by the custom of trade to be one per cent., failed in Ohrloffv. Briscall (1866), 4 Moore P. C, N.S. 70, 77. (k) Philips \. Clark (1857), 2 C. B., N.S. 156, see per WiUes, J. (0 Czech V. Gemral Steam Co. (1867), L. R. 3 C. P. 14; Craig v. Delargy (1879), 6 Sc. Sess. Cases, 4th Ser. 1269: but see The Glendarroch (1894), P. 226. (m) The Nepoter (1869), L. R. 2 A. & E. 375 ; Thrift v. Youle (1877), 2 C. P. D. 432. This source of liability is often met by an exception of " contact with or smell or evaporation or taint from other goods ; " or " injurious eti'ects from, other goods." PERILS. 187 Case 1. — Goods were shipped, " to be free of breakage, leakagfe, or damage." On discharge tlie goods were found damaged by oil. There was DO oil in the cargo, but oil was used in the donkey-engine in an adjacent part of the ship. Held, that the exception did not relieve the owner from liability for the negligence of his servants, but threw the burden of proving such negligence on the shipper (/). Case 2. — Sugar was shipped " not liable for leakage." It was damaged by leakage from other sugar which accumulated owing to insufficient means of drainage. Held, that the accumulation of leakage was the cause of the damage, and that the exception did not cover this (n). Case 3. — Palm-baskets and barrels of oil were shipped " not accountable for rust, leakage, or breakage." The oil leaked and damaged the jmlm- baskets. Held, the excejition only covered the leakage of the oil, and not the damage to the baskets by such leakage (o). Article 87. — Fire. This exception by itself will only protect against fires not caused by the shipowner's negligence, as in stowing cargo improperly, but it will throw the burden of proving such negligence on the shipper (Z). If a fire results from spontaneous combustion, due to the dangerous condition of the goods, of which the shipowner could not reasonably know, this exception will protect him, but shippers of other goods damaged will have their remedy against the shippers of the dangerous goods {p). Fire caused by lightning will be an " act of God." Article 88. — Barratry of Master or Mariners. This exception covers any wilful act of wrong done by the master or mariners against the ship and goods, though with the intention of benefiting the shipowner. Barratry of the mariners includes any crime or fraud causing loss of or damage to the goods, committed by them under such (?0 The Nepotcr (1869), L. R. 2 A. & E. 375. Case 3 shews that the esceptioa did not cover the damage by leakage, even without accumulation. (o) Thrift V. Youle (1877), 2 C. P. D. 432. So "rust " only covers rust of the goods themselves, not damage done by contact with other rusty goods: Barrow r. Willums (1890), 7 T. L. E. 37. (^j) See awfc, Article 31. The exception " fire on board " does not relieve the shipowners from the liability for general average contribution to the owner of goods damaged by water used in extinguishing a fire on board. Schmidt v. Royai Mail Co. (187G), 45 L. J. Q. B. 646. 188 PERILS circumstances that they could not reasonably have been prevented by the owner or the master. Acts to the best of a man's judgment, though erroneous, or through honest incompetence, or illegal acts done by the owner's instructions, or acts whose commission has only been rendered possible by the owner's negligence in ap- pointing a drunken or incapable captain (q), will not come under the exception "barratry" (r). The following acts are barratrous : — Boring holes in a ship to scuttle it (s) ; illegal trading with the enemy, or smuggling (t) ; intentional breach of port rules so that the ship is forfeited or detained (m) ; intentional breach of blockade without owner's authority (a;) ; fraudulent devia- tions from course (?/). The following acts are not barratrous : — Deviation, unless accompanied by fraud or crime (z) ; failure to observe rules of navigation, without fraud, though such failure is by statute to be taken as wilful default (a) ; stowing goods on deck, in sj)ite of shipper's remonstrance (6). Article 89. — Negligence of the Master, Mariners, and other Servants of the Shipowner (c). The tendency of the Courts is to construe this and similar exceptions strongly against the shipowner ; they will not protect him from the consequences of his own personal {q) See per Brett, L.J., 10 Q. B. D., at p. 532. (;•) Arnould on Jlarine Insurance, 6th ed. pp. 774-776 ; Lord Hardwicke, in Leicin v. Suasso there cited ; Lord Ellenborough, in Earle v. Eowcroft (1806), 8 East, at p. 139 ; Atkinson v. G. W. Insurance Co. (1872), 27 L. T. 103 (Am.). (s) The Chasca (1875), L. R. 4 A. & E. 446 ; louides v. Fender (IS73), 27 L. T. 244. (0 Earle v. Eowcroft (1806), 8 East, 126 ; Havelock v. Hancill (1789), 3 T. R. 277 ; Pipon v. Cope (1808), 1 Camp. 434. (««) Knight v. Cambridge, cited 8 East, 135; Robertson v. Ev:er (1786), 1 T. R. 127. (,'•) Goldschmidt v. WJiitmore (1811), 3 Taunt. 508, (g) Boss V. Eunter (1790), 4 T. K. 33. (i) Earle v. Eowcroft, vide supra ; Plign v. Eoyal Exchange Co. (1798), 7 T. R. 305. (rt) Grill V. General Collierg Co. (1866), L. R. 1 C. P. 600, at p. 610. (/-) Atkiiison V. G. W. Insurance Co. {Am.) (1872), 27 L. T. 103. (c) This exception assumes various forms. See Xote 1. EXCEPTED. 189 negligence, as in negligently appointing a drunken or in- competent captain, or in negligently giving orders that no pilot should be employed {d). But where the master is himself owner or part owner, the exception " negligence of the master " will protect him as to negligence as master, though not as to negligence as owner (e). This exception, or any other, will not apply, unless clearly worded to that effect, to relieve the sliipowner from the con- sequences of a breach of his implied undertaking (/) that the ship should be seaworthy at starting {g). Case 1. — Cargo was shipped under an exception, " negligence or default of master or mariners or others performing their duties." Through care- less stowage by master and crew the cargo was damaged. Held, the exception freed the shipowner from liability (A). Submitted, that it would not have done so, if the stowage had made the ship unseaworthy at starting {g). Case 2. — -Sugar was shipped under an exception of " loss from any act, neglect, or default of the pilot, master or mariaers in navigating the ship " . . . "the captain, officers, and crew of the vessel in the transmission of the goods, as between the shipper and the sliip shall be considered the agents of the shipper." The sugar was negligently stowed. Held, by Denman, J., that the damage did not occur "in navigating the ship" ; by • the Court of Appeal that the damage, resulting from the act of the steve- dore, was not within the exception (i). Case 3. — A ship was chartered to proceed to X., and there load sugar, the sliipowners not to be responsible " for any act, neglect, or default, what- soever of their servants during the said voyage." During the loading one (cZ) Per Brett, L.J., 10 Q. B. D. 532 ; Norman v. Blnnington (1890), 25 Q. B. D., at p. 477. See also Worms v. Storey (1855), 11 Ex., at p. 430 (repairs); Grill v. General Colliery Co. (1868), L. R. 1 C. P. 600, 3 C. P. 476, at p. 481 (navigation) ; Laurie v. Douglas (1846), 15 M. & W. 746 (management of cargo): discussed in Notara v. Henderson (1872), L. R. 7 Q. B., at p. 236 ; and The Accomac (1890), 15 P. D., at p. 211. (e) Westport Coal Co. v. Macphdl (1898), 2 Q. B. 130. (/) Steel V. State Line Co. (1878), 3 App. C. 72 ; and Article 29. {(j) See The Glenfruin (1885), 10 P. D. 103; where, tliough "accidents to machinery" were excepted in the bill of lading, loss caused by the breikiug of a crankshaft through a latent flaw, not discoverable by diligence on the j)art of the shipowner, was held not within the exception ; Tattersall v. National Steam Ship Co. (1884). 12 Q. B. D. 297 ; and Leuw v. Dudgeon (1867), L. R. 3 C. P. 17, note; where cattle were shipped under a bill of lading containing the exception, "the owners will not be liable for any loss arising from suffocation or other causes to cattle." Cattle were lost through suffocation, resulting from the ship's capsizing through insufficient ballast being provided, through owner's negligence. Held, that this prevented the exception from applying. And see Note 2. (Ji) The Duero (1869), L. R. 2 A. & E. 393. (0 Hayn v. Culliford (1878), 3 C. P. D. 410 ; 4 C. P. D. 182. Cf. The Ferro (1893), P. 37, where the words were " navigation or management," and the stevedore's negligent stowage was held not to come within thera. on both of the grounds taken in Hayn v. Gnlliford. 190 PERILS -of the enciineers negligently lefb open a valve, whereby water entered and damaged the cargo. Held, that " voyage " included the whole time during which the vessel was performing the contract contained in tlie charter, and that the exceptions exempted the shipowner from liability (k). Case 4. — Cargo was carried under an exception of" any act, negligence, or default of master, or crew in the navigation of the ship in the ordinary course of the voyage." In discharging cargo in dock, through the removal of a bilge-pump, water entered the hold, and damaged the cargo. Held, by Butt, J., that the damage was caused by joint negligence of an engineer and shore workmen, and was not within the exception ; Held, by the C.A. that, assuming there was negligence of the crew, it was not in navigating the ship, or in the ordinary course of the voyage, and the exceptions did not apply (I). Case 5. — Cargo was carried under an exception of " negligence or default of pilot, master, mariners, engineers, or other persons in the service of the ship, whether in navigating the ship or otherwise." The goods were damaged while the ship was being loaded, by negligence of the ship- owner's men. Held, that the exception protected the shipowner from liability (m). Case 6. — A cargo was shipped under the exception, " perils of the sea . . . and other accidents of navigation even when occasioned by the negligence of the master." On the voyage a leak was caused by perils of the sea, through which water entered ; the master negligently omitted to stop the leak, whereby water continued to enter. Held, the exceptions freed the shipowner from liability (n). Note 1. — The original form, of this exception was "loss or damage arising from, collision or other accidents of navigation occasioned by default of the master or crew." But this was held not to free the shipowner from actual negligence of his servants (o). It now takes various forms; e.g. "act, neglect or default of the pilot, master, or mariners, or other servants of the shipowner ; " engineers, stokers, and stevedores are some- times expressly included ; and the exception sometimes also covers " any person for whose conduct the owners would other- wise he responsible, whether on board this or any other vessel " ; or " on any other ship belonging to or chartered by the com- l^any " (p). The exception sometimes applies to " navigation," sometimes to " navigation and management," or " navigation in the ordinary course of the voyage," or " navigation or other- wise : " or "providing, despatching, or navigating the ship or otherwise ; "or " whether such neglect do occur before or during (k) The Can-on Park (1890), 15 P. D. 203. (0 The Accomac (1890), 15 P. D. 208; doubting Laurie v. Douglas (1846), 15 M. & W. 746. For a Scotch decision on similar words see Gilroy v. Price (1891), 18 Sc. Sess. C. 569. (m) Norman v. Binnimjton (1890), 25 Q. B. D. 475; see Bacrsehnan v. Baile;/ (1895), 2 Q. B. 301, where one passage at the end of the judgment in Norman v. Binninyton is disapproved; see also De Clermont v. Gen. Steam Nav. Co. (1891), 7 T. L. R. 187. (n) TJie Cressington (1891), P. 152. (o) See note ((/) ante, p. 189. OO To meet Chartered Bank v. Netherlands Co. (1883), 10 Q. B. D. 521. EXCEPTED. 191 the voyage, or .at the port of discharge." This form of clause is frequently combined with the exception expressly negativing the implied undertaking of seaworthiness (5). It sometimes concludes, "it being agreed that the captain, officers, and crew in transmission of the goods, as between shipper, owner and consignee thereof, and shipowners, are to be considered servants of such shipper, owner, or consignee." The following clause has lately been used as a compromise, viz. " strandings and collisions and all losses occasioned thereby are excepted, even when occasioned by negligence, default or error in judgment of the pilot, master or mariners and other servants of the ship- owner, but nothing herein contained shall exempt the ship- owner from liability to pay for damage to cargo caused by bad stowage, by improper or insufficient dunnage or ventilation, or by improper opening of valves, sluices, and ports." Note 2. — -Much discussion has taken place on the question whether the words " navigation" and " voyage " constantly found in this exception merely apply to the actual sailing of the ship from port to port, or are wider and cover all acts done in pur- suance of the cargo-carrying adventure from the reception of the goods till their discharge. The aitthorities are not in a very satisfactory condition. It seems that the exceptions in the con- tract of affreightment, unless otherwise worded, limit the ship- owner's liability during the whole time in which he is in posses- sion of the goods as carrier (r). Accordingly an exception of negligence " during the voyage " was held by Sir J. Hannen to cover negligence during loading, and to apply to the whole time during which the vessel was engaged in performing the contract contained in the charter ( s), and an exception of " damage in navi- gating the ship," or otherwise," was held to cover damage done (lurinjr loading (<). So also in club policies of insurance. In Good V. London Mutual Association (u), leaving a sea-cock and bilge-cock open whereby the water entered the hold, was held "improper navigation " within the policy ; Willes, J., defining the phrase as " something improperly done with the ship or part of the ship in the course of the voyage." Being asked arguendo whether iq) Vide ante, note to Article 29. (r) Norman V. BinnhK/ton {1890], 25 Q. B. D., at p. 478; The Carron Park (1890), 15 P. D. 203; iier Wright,' J., in De Clermont v. Gm. Steam Nav. Co. (1891), 7 T. L. R., at p. 188. (s) The Carron Park, v. s. (t) Norman v. Binnington, v. s. Cf. The Glenochil (1896), P. 10, in which an exception "faults in management" was held to cover putting water into the ballast tanks, while the cargo was being discharged, without ascertaining that the pipes were in order. (m) (1871), L. R. 6 C. P. 563. In The Warkicorth (1884), (9 P. D. 20, 145), a negligent inspection of the steam -steering gear by an overlooker on shore, whereby the ship steered badly and did damage, was held "improjier navigation" within 25 & 26 Vict. c. 63, s. 54, which limits the owner's liability, and Bowen, L.J., defined it as " imi)roper navigation by the owner of the ship or his agents, including using a ship which is not in a condition to be so employed." 192 PERILS bad stowage would be improper navigation, Willes, J., said, " Certainly, unless in a ])ort where stevedores are employed," the qnalification being the point taken by the Court of Appeal in Hayny. Culliford (x), while M. Smith, J., qualified tliis as " bad stowage which afi'ects the safe sailing of the ship." In Car- miclmeVs Case (y), a cargo of wheat was damaged through improper caulking of a cargo-port by the shipowner's servants before the voyage commenced ; and it was held by the Court of Appeal that this was" improper navigation" within the policy. In Canada Shi'ppi7ig Co. v. British Shipoivners' Association (z) a cargo of wheat was damaged by being stowed in a dirty hold, and this was held by the Court of Appeal not to be improper navigation. It hardly falls within the scope of this work to distinguish these cases on policies, and I am quite unable to do so. In The Accomac (a), where a pipe was left open through the joint negligence of the ship's engineer, and shore workmen re- jiairing the shiji, whereby water entered and damaged the cargo, the C.A., while holding that the joint negligence took the case out of the exception, was also inclined to hold that this was neither "navigation" nor "in the ordinary course of the voyage," and they doubted the decision in Laurie v. Douglas (b), where the capsizing of a ship while moored in dock was held a danger of navigation. In The Ferro (t-j, Sir F. Jeune, and Barnes, J., held under a bill of lading excepting " damage from any act, neglect or default of the pilot, master, or mariners in the navigation or management of the vessel": (1) that the stevedore's negligence was not covered ; (2) that, if it was im- proper, stowage was not " navigation or management of the vessel." In The Southgafe (d), where water entered through a valve improperly left open while the vessel was moored with cargo in her before starting, Barnes, J., seems to have thought that the accident was one of " navigation," while he decided that it was clearly an " accident of the sea and other waters ; " and in The Glenochil (e), where the engineer while the cargo was being discharged pumped water into the ballast tank to secure stability, without inspecting the pipes, and the water through a broken pipe damaged the cargo, the Divisional Court held that this was in the " management," even if it was not in the " navigation " of the vessel. It would seem that " navigation in the course of the voyage " cannot be extended beyond the actual sailing of the ship (though it is submitted on the whole {x) Hayn v. Culliford (1878), 3 C. P. D. 410 ; 4 C. P. D. 182. ly) Carmichael v. Liverpool S.S. Association (1887), 19 Q. B. D. 242. (z) (1889), 23 Q. B. D. 342. (a) (1890), 15 P. D. 208. (6) (1846), 15 M. & W. 746. (c) (1893), P. 38. Id) (1893), P. 329. (e) (1896), P. 10. EXCEPTED. 193 course of tlie authorities that the better view would have been to consider the words as applicable to the whole adventure the shipowner undertakes, the management and conduct of his ship as a cargo-carryino- vessel) ; but that " management," and pei'- haps " navigation " by itself, will extend to the whole of such adventure. Note 3. — The excei)tion, " at merchant's risk" in a clause for the benefit of the shipowner, has been held to cover any damage done by the negligence of the master or crew acting as agents of the shipowner, as in cases of improper jettison, or collision or stranding arising from negligence, but not to cover any damage done by master of crew acting in case of necessity as agents of the cargo-owner, as in a case of proper jettison, giving rise to •a general average contribution (/). Article 90. — Jettison. This exception will cover all claims made under the bill of lading and arising from the improper jettison of goods properly stowed; but will not cover claims arising out of the jettison of goods improperly stowed {g). Submitted, that it will not cover any claims for a general average contribution arising from proper jettison of goods (/i). Article 91. — Operation of Exceptions, Exceptions in the contract of affreightment, unless other- wise clearly worded, limit the shipowner's liability during the whole time he is in possession of the goods as carrier, and therefore apply during the loading and discharging of the goods (^). (/) Burton v. English (1883), 12 Q. B. D. 218. ((/) Eoyal Exchange S. Co. v. Dixon (1886), 12 App. C. 11 ; Newall v. Eoyal Exchange Go. (1885), 33 W. R. 342, 868. See also Article 110. (/t) On authority of Schmidt v. Rorjal Mail Co. (1876), 45 L. J. Q. B. 646 ; Crooks V. Allan (1879), 5 Q. B. D. 38. (0 Norman V. Binnington (1890), 25 Q. B, D. 475; The Carron Park (1890), 15 P. D. 203 : per Wright, J., in De Clermont v. Gen. Steam Nav. Co. (1891), 7 T. L. R. 187 ; and see Note 2 to Article 89, p. 191, ante. The exceptions do not affect the relations of the shipowner and the charterer outside the scope of the charter, as in damage by the ship to charterer's property. Raynes v. Ballantyne (1897), 14 Times L. R. 2. 194 OPERATION OF EXCEPTIONS. The arrival of the ship (Ic), coupled with failure to deliver the goods, is prima facie evidence of breach of contract by the sliipowner (l). The shipowner must shew that the cause of the loss was one of the excepted perils in the bill of lading, or that the goods were not shipped {ni), in order to free himself (Z). If he makes 2k, prima facie case to this effect, the shipper must then disprove it by shewing that the real cause of the loss was something not covered by the exceptions, as for instance the negligence of the shipowner or his servants, where negligence is not one of the excepted perils {n) ; and unless he can prove this clearly, the shipowner will be protected (o). Exceptions in the bill of lading will not effect the rights and liabilities of shipper and shipowner as to general average contributions {p), unless they are clearly intended to do so (//). Case 1. — Goods shipped under a bill of lading, excepting " perils of the sea," were delivered damaged. The shippers sued, and the shipowners proved damage by sea-water through stranding. Ihld, that unless the shijjper proved negligent navigation causing the stranding, the shipowners succeeded (r). (/;) The non-arrival of the ship is not evidence of negligence at all. Boyson v. Wilson (1816), 1 Stark. 236. {I) The Xantho (1886), 2 Times L. R. 704. Lord Herschell's remarks in 12 App. C, at p. 512, were not approved by the C.A. in The Glendarroch (1894), P. 226. Where goods are delivered damaged, see, as to the burden of proof, Article 52. (m) Smith V. Bedouin Co. (1896), A. C. 70. ILtrrowing v. Katz (1894), 10 Times L. R. 400; affirmed by H. L., November 26, 1895 : (see note in (1896) A. C. at p. 73): Bennett v. Bacon (1897), 2 Com. Cases, 102 (C.A.). In all these cases the shipowner could not produce any satisfactory evidence to displace the statement of shipment in the bill of lading; such evidence must show not merely that tile goods may not have been shipped, but that in fact they were not, (1896), A. C, at p. 79. U the bill of lading results from a tally it will be difficult to displace it ; otherwise if the tally was disputed. Hine v. Free (1897), 2 Com. Cases, 149. (ji) The Glendarroch (1894), P. 226. (o) The Norway (1865), 3 Moore, P. C, N.S. 245; Muddle v. Stride (18i0), 9 C. & P. 380 ; Czech v. Genera/ Steam Co. (1867), L. R. 3 C. V. 14. See also Williams V. Bobble (1884), 11 Sc. Sess. Cases, 4th Ser. 982; Cunningham v. Colvils (1888), 16 Sc. Sess. Cases, 4th Ser. 295. (p) Schmidt V. Eoyal Mall S.S. Co. (1876), 45 L. J. Q. B. 646 ; Crooks v. Allan (1879), 5 Q. B. D. 38. (q) As in Wa/foi-d v. Gallndez (1897), 2 Com. Cases, 137. A clause negativing contribution is not uncommon in Italian and Greek charters. (r) The Glendarroch (1894), P. 226. WHO CAN SUE AND BE SUED. 195 Case 2. — Goods were shipped, " to be free from leakage or damage." Oq discharge the goods were found damaged by oil. There was no oil in the cargo, but oil was used in the donkey engine in an adjacent part of the ship. Held, that the exception did not relieve the owner from liability for the negligence of his servants, but threw the burden of proving such negligence on the shipper (s). Article 92. — Who can sue for failure to carry Goods safely. I. In tort, there can sue : — All who have any proprietary interest in the good?, whether or not they are parties to the bill of lading. The consignee of goods will be deemed to have such a property unless the contrary appear {t). The nominal shipper cannot sue in tort if he ships merely as agent for the real owner (ii). II. In contract, there can sue : — (1.) The shipper, unless he acted merely as agent for another, in which ease the principal can sue {x), the agent cannot (w). (2.) Any person to whom by indorsement and delivery of the bill of lading, or by indorsement followed by delivery of the goods, the absolute property in the goods has passed {ij). (3.) The consignee named in the bill of lading if the property has passed to him by such consign- ment (y). Article 93. — Who can he sued for negligent carriage of the Goods. I. The shiijowner. — 1. In tort, if he is or was in posses- sion of the goods by his agents, there being no charter (a) Czech V. General Steam Co. (1867), L. R. 3 C. P. 14 ; Cralj v. Delanjij (1879), 6 Sc. Sess. Cases, 4th Ser. 1269. (i) Coleman v. Z«m6e;-i; (1839), 5 U. & W. 502, at p. 505; Tronson v. Dent (1853), 8 Moore, P. C. 419. (u) Moore v. Hoppers (1807), 2 B. & P. N. R. 411. (x) Anderson v. Clark (1824), 2 Bing. 20 ; Fra^jano v. Lon;/ (1825). 4 B. & C. 219. ((/) 18 & 19 Vict. c. Ill, s. 3, and Article 75. For cases before the Act on the ability of consignees to sue in contract : see Tronson v. Bent (1853), S Moore, P. C 419 ; Sargent v. 2Iorris (1820), 3 B. & A. 277. o 2 196 WHO CAN BE SUED. amounting to a demise (z) ; 2, i7i contract, by any person with whom he has contracted, or by the assignees of such person. II. The charterer. — 1. In tort, if he is or was in possession of the goods, his charter amounting to a demise (z) ; 2, in contract, by any person with whom he has contracted, or the assignees of such person. III. The master. — 1. In tort, if he is or was in possession of the goods ; 2, in contract, by any person to whom he has made himself personally liable on a contract. The shipper or person entitled to sue can sue either the master or the owner or charterer, but not both. If he has obtained judgment against the master, he cannot further sue the owner or charterer for the same cause (a). (z) See Article 2 ; and cf. BaumvoU v. Gilchrest (1893), A. C. 8. (rt) Priestly x. Fernie, 3 H. & C. 977 (1865); Leslie y. Wilson, 6 Moore, Ex. 415 (1821). ( 197 ) SECTION VII. The Perfokmance of the Contract. — The Voyage, Article 94. — ''Final Sailing " {h). A vessel has finally sailed when she has left her port of loading (or her last port of call in the United Kingdom) (c), ready for her voyage, and with the purpose of proceeding on her voyage without any intention of coming back {cl). The fact that she is towed and has no sail set, or that she is driven back into port by a storm, will not prevent her having " finally sailed " {d). But if her clearances are not on board, or she is not ready for sea, the fact that she has left the port will not constitute final sailing (e). The term " port " is to be taken in its business, popular, and commercial sense {d), and not in its legal definition for revenue or pilotage purposes (/). (6) Whether a vessel has " finally sailed " may be of importance as to the payment of " advance freight." (c) "Sailing" in insurance cases, where tliere is a warranty to sail before a particular day, has been held to be " breaking ground," /.<.'. leaving her moorings ready for sea, though not leaving port ; see Parke, B., in Boelandts v, Harrison (1854), 9 Ex., at p. 456, Arnould, 6th ed. pp. 608-620. (c?) Price v. Lii-ingsto)ie (1882), 9 Q. B. D. 679; Boelandts v. JTarrison (ISoi), 9 Es. 444 ; S.S. Garston v. Hickie (1885), 15 Q. B. D. 580 ; approved by Lord Watson in Hunter v. Northern Ins. Co. (1888), ll^i App. C, at p. 733. "Port" may mean a usual place of loading within a legal port : Caffin v. Aldridge (1895), 2 Q. B. 648 (C.A.); see also The Man/ Thomas (1896), 12 T. L. R, 511. (e) Thompson v. Gillespy (1855), 5 E. & B. 209 ; Hudson v. Bilton (1856), 6 E. & B. 565. (/) On the other hand, in Caffarini v. Walker (1876), 10 Ir. L. R. C. L. 250, a.nd M'Intosh V. Sinclair {1S7 7), 11 Ir. Rep. C. L. 456, the "port of Newry " was taken in its legal and fiscal sense, and not as a geographical expression. On the distinction see also Nicliolson v. Williams (1871), L. R. 6 Q. B. 632. In Nielsen v. Wait (1885), 14 Q. B. D. 516, the "port of Gloucester" seems to be taken as the legal or fiscal port. In S.S. Garston v. Hickie, vide supra, Brett, M.R., says, " the port may extend beyond the place of loading and unloading ; if the port authorities are exercising authority over ships within a certain space of water, and shipowners are submitting to that jurisdiction, that is the strongest evidence that that space of water is accepted as the commercial port." 198 CAPTAIN'S AUTHOniTY " Port Charges " include all charges a vessel has to pay- before she leaves a port, and therefore light dues, where such are claimable {g). Case 1. — A ship was chartered, the owners to receive one-third of the freight within eight days "from final sailing from her last port in the United Kingdom." She was loaded at Penartb, and towed out eight miles, bringing her three miles into the Bristol Channel, outside the commercial but inside the fiscal port of Cardiff. She then cast anchor, owing to threatening weather. A storm arose, which drove her ashore within the commercial port of Cardiff. Held, that she had finally sailed from her last port, so as to entitle the owners to an advance of one-third of the freight {li). Case 2. — A ship being loaded and cleared, came into the roads and cast anchor three miles fromX. harbour, not intending to return. The shrouds and cables were not ready for sailing, bills of lading were not signed, and the mate was not on board. She was lost the same day, before the de- ficiencies were supplied. Held, she had not finally sailed (i). Article 95. — Master s Authority on the Voyage. The master on the voyage occupies a double position ; he has the duty on behalf of the shipowners, of doing what is necessary to carry out the contract (k), and of taking reasonable care of the goods entrusted to him, his first duty to the goods owner being to carry on the cargo safely in the same bottom (l), and he has also, if- extra- ordinary steps are necessary, such as sale (m), borrowing money on bottomry (n), salvage agreements (o), tranship- ment (j:>), jettison (q), deviation or delay (r), the power to (g) Newman v. Lamjiort (1896), 1 Q. B. 20. (A) Price V. Livingstone (1882), 9 Q. B. D. 679. In Eoelandts v. Harrison, r.s., and S.S. Garston v. Hickie, r.s., the port was also the port of Cardiff', the ship in each case was ready to sail, and in her way to sea, but had not got outside the commercial port. (i) Thomijson v. Gillespy (1855), 5 E. & B. 209; see also Hudson v. Bilton (1856), G E. & B. 565. (k) The Turgot (1886), 11 P. D. 21 ; The Beeswing (1885), 53 L. T. 554. (0 The Hamburg (1864), B. & L. 253, see p. 272; The Gratitudine (1801), 3 C. Rob. 240; Notara v. Henderson (1872), L. R. 7 Q. B. 225 ; Assicurazioni v. Bessie Morris S.S. Co. (1892), 2 Q. B. 652 ; (C.A.), et iwst, Article 101. (m) See Australasian S. Nav. Co. v. Morse (1872), L. R. 4 P. C. 222; and Articles 102, 104. (?i) See The Karnak (1869), L. R. 2 P. C. 505, and Articles 105, 106, post. (o) The Renpor (1883), 8 P. D. 115, and Article 121. (p) The Sohlomsten (1866), L. R. 1 A. & E. 293, and Article 103. (q) Burton V. English (1883), 12 Q. B. D. 218, and Article 107. (>•) See Articles 99, 100. ON TEE VOYAGE. 199 bind his owners, if such steps are shewn to be necessary, and if there was no possibility of communication with his owners. He can also bind the charterer by his actions in doing what is necessary on the charterer's part to carry out the contract, but not beyond, unless by express instructions (s). Thus the captain is the agent of the owners in providing those necessaries for the voyage which by the terms of the charter are to be paid for by the owners, or necessaries for the ship's sailing where it is to the interest of the owners that the ship should sail (t) ; he is the agent of the charterers for providing those necessaries for the voj^age which are by the charter to be paid for by the charterers, e.g. coal (u). The duty of protecting the interests of the cargo owner may devolve upon the master, from his possession of the goods; in this case, if his action was necessary, and there was no possibility of communication with the cargo owner, the action of the master will bind the cargo owner (x), as in salvage agreements (y), sale (z), borrowing money on respondentia (a), transhipment {h), jettison (c), delay or de- viation (d). The master is always the appointed agent for the ship ; he is in special cases of necessity the involun- tary agent for the cargo owner ; but the foundation of his authority is the prospect (d) of benefit, direct or indirect, to the cargo owner. Thus he may sell part of the cargo to carry on the rest, but may not sell the whole cargo (s) The Turgot (188Q), 11 P. D. 21 ; The Beeswing (1885), 53 L. T. 554. (t) Thus where the owners were to receive time freight, and the ship was detained through failure of the charterers to supply coal as per charter, it was held that the master had no authority to bind the owners by his orders for coal, as the owners gained nothing by expediting the sailing of the ship : The Turgot (1886), 11 P. D. 21. See also Citizens Bank v. Wendeliu (1886), 2 Times L. R. 240. (m) The Beeswing (1885), 53 L. T. 554; Morgan v. Castlegate S.S. Co. (1893), A. C. 38. (x) The Gratitudine (1801), 3 ('. Rob. 240, and see Articles 96, 97, 98. (y) The Renpor (1883), 8 P. D. 115, and Article 121. {z) See Australasian 8. Nar. Co. v. Morse (1872), L. R. 4 P. C. 222, and Articles 102, 104. (a) The Onward, L. R. 4 A. it E. 38 (1873); Klcinwort v. Cassa Marittima, 2 App. C. 159 (1877), and Articles 104-106. (6) The Sohlomsten (1866), L. R. 1 A. & E. 293, and Article 103. (c) Burton v. English (1883), 12 Q. B. I). 218, and Article 107. (d) The fact that the cargo ultimately derives no benefit is immaterial, if there was a reasonable prospect of it ; Benson v. Chapman (1848), 2 H. L. ('. 696, at p. 720. 200 CAPTAIN'S AUTHORITY ON THE VOYAGE. unless it cannot profitably be carried further. He may not repair the ship at the sole expense of the cargo with- out reasonable prospect of benefit to such cargo, and such a prospect would not exist in the case of goods not injured by delay (e). Article 96. — Master s Authority, ivhence derived. The authority of the master in the absence of express instructions to deal with the ship and goods in a manner not consistent with the ordinary carrying out of the con- tract, as by selling the goods, throwing them overboard, or pledging them for advances of money, depends on two circumstances : — 1. The necessity of the action : (Art. 97). 2. The impossibility of communicating with his principals, whether goods-owners or shipowners : (Art. 98). Article 97. — Necessity. Action will be necessary if it is apparently the best course for a prudent man to take in the interests of the adven- ture (/). The mere fact that the master acts in good faith is not sufficient {g). Thus, if money can be obtained from the shipowner's or cargo owner's agent in the port, or raised on personal credit, the master will not be justified in binding the ship or cargo by a bottomry bond ; but there will be necessity for such a course of action if the carriage of the cargo cannot be completed with profit to the cargo owner, without raising money on security of the cargo (li). So, also, if damaged wool can either be sold as it is, or can be dried, repacked, and sent on, but at a cost to the owner, clearly exceeding any possible value of it when so treated, the com- mercial necessity for the sale will arise ; but if the goods can ((?) The Onward, v. s., at pp. 57, 58 ; see also j>cr Brett, M.R., and Bowen, L.J., in the Pontida (1884), 9 P. D., at p. 180; The Gratitudine (1801), 3 C. Rob., at pp. 257, 261. (/) The Onward, L. R. 4 A. & E. 38, at r. 58 ; Atlantic Insurance Co. v. Huth (1880), L. R. 16 Ch. D. 474, at p. 481. Cf. Fhelps, James ^ Co. v. Hill (1891), 1 Q. B. 605. {g) Tronson v. Dent (1853), 8 Moore, P. C, at p. 448, et seq. ; but the owner may be liable for an erroneous, though bond fide, use of the master's discretion : Ewhanh v. Nutting (1849), 7 C. B. 797. (A) The Ontvard, vide supra. MASTERS DUTY ON THE VOYAGE. 201 be carried on and delivered in a merchantable state, though damaged, the master will not be justified in selling (i). Where such a necessity of dealing with the cargo arises, the captain in dealing with the cargo acts as the agent of the cargo owner (Jc) ; if no such necessity exists (I), or if the necessity arises from wrongful acts or omissions on the part of the shi})- owner (in), or if the captain professes to act for the shipowner (n), he will be treated as the agent of the shipowner (n). Article 98, — Communication with Oivners. The master, before dealing witli the cargo in a manner not contemplated in the contract must, if possible (p)^ communicate with the owners of the cargo as to what should be done. For the master's authority to bind the cargo owners rests upon the fact that the circumstances require immediate action in the interests of the cargo, and nobody but the master can decide what shall be done in time to take such immediate action. If the cargo owners can be communicated with and can give directions in time, the necessity for the master's action does not arise (q). The possibility of communication must be estimated by consideration of the facts rendering immediate action neces- sary, the distance of the master from the cargo owners, and his means of communicating with them, the cost and risk incidental to the delay resulting from the attempt to make such communication, and the probability of failure after every exertion should have been made (r). (j) See note (z) ante, p. 199. (/v) Burton V. English (1883), 12 Q. B. D. 218. (?) As in the case of improper jettison or sale. (;«) As in the case of jettison resulting from improper stowage on deck ; Newall V. Royal Exchange S. Co. (1885), 33 W. R. 342, 868. (n) As in cases of transhipment, in which the captain does not abandon the shipowner's voyage, and forward the goods in the interests of the cargo owner, but continues the voyage in another ship in the interests of the shipowner and to earn freight for him. (o) Newall v. Royal Exchange S. Co., vide supra. (jj) Such communication is practically impossible in the cases of jettison and salvage agreements at sea. (q) The Hamburg (1863), 2 Moore, P. C, N.S., at p. 323, explaining The Bonaparte (1853), 8 Moore, P. C. 459. For the German law, see The August (1891), P. 328. (r) The Karnak (1869), L. R. 2 P. C, at p. 513; The Ommrd {1^12>), L. R. 4 A. & E. 38. 202 MASTER'S DUTY The necessity for communication with cargo owners will be much lessened in cases where the action of the master primarily affects the ship, as in repairs of the ship, or de- viations by necessity, causing delay, or where, the ship being a general one, there are many owners of cargo (s). Such communication need only be made where an answer can be obtained from the cargo owners, or there is reason- able expectation that it can be obtained, before it becomes necessary to take action. If there are reasonable grounds for such an expectation, the master should use every means in his power to obtain such an answer. He is bound to employ the telegraph where it can be usefully employed, but the state and management of the particular telegraph, and the probability of correct transmission of messages by it, are all to be considered {t). The information furnished must be full, and must include a statement of any measures, such as sale, raising money on bottomry, &c., which the master proposes to take {u). If the master communicates and receives instructions, he is bound to follow them, if consistent with his duty to the shipowner ; if he communicates and receives no instruc- tion he may take such action as appears necessary {x) ; if he can communicate and does not do so, he cannot justifi- ably take any action on behalf of the cargo owners (y). Case 1. — A vessel belongiDg to Hamburg, duiing her voyage from South America to London with a cargo belonging to English owners, but not perishable, put into St. Thomas to repair. Mails left St. Thomas for London every fortnight, taking fourteen days on the journey. The master made no attempt to communicate with the consignees, but three months after arrival gave a bottomry bond on ship, freight and cargo for the cost of repairs. Held, that the bond was invalid against the cargo owners, as the master had not consulted them, though he had reasonable opportunities of so doing (s). Case 2.- — A timber-laden vessel bound to England put into the Mauritius (s) Phelps, James 4- Co. v. Hill (1891), 1 Q. B. 605. If this case lays down that it is never necessary to communicate with cargo owners where steps are to be taken affecting their cargo, and inconsistent with the contract, it is submitted it goes too far. The authorities ou this article do not seem to have been cited to the Court. {t) Australasian S. Navigation Co. v. 3forse (1872), L. K. 4 P. C. 222. (m) T/io Onward, v. s. ; Kleinwort v. Cassa Marittima (1877), 2 Ajip. C. 150. Ix) The Karnak (1869), L. R. 2 P. C. 505. ii) The Hamburg (1863), 2 Moore, P. C, N.S. 289. ON THE VOYAGE. 203 for repairs on June 11. Tlie master placed the ship in the hands of Messrs. B., who, without attempting to raise monej'' oa the personal credit of the shipowners, ])roposed a bottomry bond on ship, freight and cargo. On July 20, the master communicated this proposal to shipowners, and commimicated the need of rejjairs, but not the bottomry, to the cargo owners, who did not hear of tlie i)roposal till September 8, too late to prevent the proposal being carried into effect. Held, the bond was invalid against the carilo, both becaus^e th«re was no necessity for it, the cargo not being a perishable one, and because the master had failed to communi- cate with the cargo owners (2). Case 3. — Wool was shipped from X. to Z., forty-five miles from X. The ship was wrecked, the cargo transhipped and brought back to X. It was there found damaged by transhipment, dirty and wet, and it began to heat, Lloyd's agent, on Saturday, December 23, advised an immediate sale, which was fixed for Tuesday, December 26. There were twenty-three owners of the wool, most of them at Z., 900 miles from X. ; no letter could reach them in time; there was a telegraph, but owing to the inter- vention of Sunday and Christmas Day, and the mercantile habits of Z., the jury found communication by telegraph impossible. Held, a case was made out entitling the master to sell (a). Case 4. — Tin plates were shipped from Swansea to New York ; after leaving Swansea, the ship was forced by bad weather to put into Queen's- town, ship and cargo being damaged. There were sixty cargo owners. The master communicated with the shipowner, but not with the cargo owners, and received instruction to proceed to Bristol to repair. On reaching Bristol, she was sunk in a collision. Held, that the fact that the master put back without communicating with the cargo owners did not in itself render the shipowner liable for the deviation (h). Article 99. — Master's Duty to proceed without deviation. In the absence of express stipulation the owner of a vessel, whether a general ship or chartered for a special voyage, impliedly undertakes to proceed in that ship (c) without unnecessary (d) deviation in the usual and customary manner (e). Deviation necessary to save life will be allowed to the shipowner ; deviation only necessary to save the property of others will not be allowed (/). {z) The Onward (1873), L. R. 4 A. & E. 48. (a) Australasian Steam Navigation Co. v. Morse (1872), L. R. 4 P. C. 222. (6) Phelps, James ^ Co. v. hill (1891), 1 Q. B. 607. See note (s), ante. (c) Balian v. Johj Victoria (1893), 6 T. i.. K. 345 (C.A.). (d) See post, Article 100. (e) Leduc v. Ward (1888), 20 Q. B. D. 470 ; Daiis v. Garrett (1830), 6 Bing. 716; Scaramanga v. Stamp (1880), 5 C. P. D. 295 (C.A.). See also 3Iax v. Roberts (1810), 12 East. 89 ; Ellis v. Turner (180ei), 8 T. R. 431. On the implied undertakings in tlie contract of affreightment, see Articles 28-30. (/) Scaramanga v. Stamp, vide supra. 204 MASTER'S DUTY ON THE VOYAGE. To tow another vessel even in the course of the chartered voyage will constitute a breach of the implied contract ; to communicate with a ship in distress will not, as the distress may involve danger to life ((/). The shipowner will be liable to the charterer or cargo owner for any damage, which occurs on or results from an unnecessary deviation (A). ;^ote. — Express stipulations limiting this implied contract are now usually introduced into charters and bills of lading, e.g. : — " With liberty to call at any ports in any order, to sail with- out pilots, and to tow and assist vessels in distress, and to deviate for the purpose of saving life or property ; " Such a clause allows the shipowner to take on board cargo at the port of call, unless he has already contracted for the whole reach of the ship (i), but not to go out of the course of the original voyage to discharge such cargo (k). And " liberty to tow and assist vessels in all situations." This latter clause will protect a ship in towing off a stranded vessel, though no life is in danger, and though the vessel towing is wrecked and her cargo lost(Z) ; and though the towage delays the chartered adventure, if it does not frustrate its commercial object (m). All these clauses must be construed in the light of the com- mercial adventiire undertaken by the shipowner. Thus a clause giving leave " to call at any ports," will only allow the shipowner to call at ports which will be passed in the ordinary course of the named voyage in their geographical order (n) ; the words " in any order," will allow the shipowner to depart from geographical order (o) ; but even when there are general words giving liberty to call at ports outside the geographical voyage, (g) Scaramanga v. Stamp, vide supra. (A) Davis V. Garrett, vide supra ; The Dmiheth (1897), P. 133 ; compare Neirall V. Royal Exchange 8. Co. (1885), 33 W. R. 342, 868. In Balian v. Joly Victoria (1890), 6 T. L. R. 345, where a deviation tooiv place botli from the agreed ship and the agreed voyage, the C. A., in holding the shipowners not entitled to rely on a clause in the bill of lading limiting their liability to £5 per package, suggested that the deviation swept away all limitations in the shipowner's liability as a common carrier. It is submitted that it also sweeps away his protection as a common carrier for acts of God and the Queen's enemies, for both in Davis v. Garrett and in Leducv. Ward the cargo was lost by act of God, but the shipowner was held liable. (0 Caffiyi V. Aldridqe (1895), 2 Q. B. 648 (CA ). (A) The Dunhcth (1897), P. 133. ll) Stuart V. British & African Navvjation Co. (1875), 32 L. T. 257. (m) Potter v. Burrell (1897), 1 Q. B'. 97. (n) Lednc v. Ward (1888), 20 Q. B. D. 475 ; Glynn v. Margetson (1893), A. C. 351 ; White v. Granada SS. Co. (1896), 13 T. L. R, 1. (o) Gljnn T. Margetson, v.s. MASTERS AUTHORITY TO DELAY OR DEVIATE. 205 these will be cut down, by the special description of the voyage undertaken, to ports on the course of that voyage (o). Case 1. — A ship was chartered to convey lime from X. to Z. She un- necessarily deviated from the usual course, and during such deviation the lime suffered damage by rain. Held, that the charterer was entitled to recover such damage from the shipowner {p). Case 2. — A ship was chartered to proceed from X. to Z. ; on her voyage she went to the assistance of a vessel in distress, and agreed to tow her to Y. (out of her course) ; while thus towing she was wrecked. The jury found the deviation not reasonably necessary to save life, but reasonably necessary to save property. Held, that such a deviation was unjustifiable, and that the cargo owners could recover against the shipowner \q). Case 3. — Oranges were shipped at Malaga, under a bill of lading, stating shipment on board a steamer " now lying in the port of M., bound for Liverjjool with liberty to proceed to and stay at any port or ports in any rotation in the Mediterranean, Levant, Black Sea, or Adriatic, or on the coasts of . . . Spain . . . for the purposes of delivering coal cargo or passengers, or any other purpose whatever." The steamer on leavino- Malaga, proceeded to B., a port two days off in the opposite direction to L., where she loaded cargo, and then returned and proceeded to L. By reason of this delay, the oranges were rotten on arrival at L. Held, that general words must be limited by the specified voyage, and only allowed the ship to call at ports fairly and substantially in the ordinary course of the voyage, and that they did not justify the actual deviation (r). Article 100. — Master's Authority to delay and deviate in cases of necessity. If a master receives credible information that if he con- tinues in the direct course of his voyage his ship or its cargo will be exposed to some imminent peril, as by hostile capture, pirates, icebergs, or other daugers of navigation, or where ship or cargo have been damaged and repairs or re- conditioning are necessary (s), he will be justified in reason- able delay to ascertain the nature of the danger, and reasonable delay or deviation to avoid or repair (s) it, or if) Davis V. Garrett (1830), 6 Bing. 716. Cf. Leduc v. irarc^(1888), 20 Q. B. D. 475 ; The Dunbeth (1897), P. 133 ; and Balian v. Joly Victoria (1890), 6 T. L. R. 345. (7) Scaramangn v. Stamp (1880), 5 C. P. D. 295. (r) Glynn v. Margctson (1893), A. C. 351 ; White v. Granada Co. (1896), 13 Times L. R. 1. (s) Cf. Phelps, James & Co. v. JJill (1891), 1 Q. B. 605. It would seem from this case, that where the ship is a general ship, and therefore there are many owners of cargo, it will rarely, if ever, be necessary to communicate with them for authority to delay or deviate, even if one of the objects of such action is re- conditioning of cargo ; sed qua re ; and see Article 98, ante, note (s), p. 202. 206 ■ MASTERS AUTHOBITY to consult his owners, if communication with them is possible {u). It is not necessary that the danger should be common to ship and cargo : it will be sufficient if it affects either of them {x). If the master delays or deviates unreasonably, or to a greater extent than a prudent man under the circumstances would adopt, the cargo owner's position depends on whether the delay is so unreasonable as to put an end to the contract from a commercial point of view. If it is, he will be justified in requiring his goods at the port of delay without payment of any freight {y) ; if it is unreasonable, but not so much so as from a commercial point of view to put an end to the contract, his remedy will be an action for damages (z). If the delay or deviation is reasonable, the charterer cannot require the goods short of the port of destination, without the payment of full freight (a). Case 1. — A Prussian ship with a contraband cargo was chartered from X. to an English port for orders ; thence to any safe port iu England or the continent between Havre and Hamburg ; she received orders to proceed to Dunkirk, and had arrived off that port on June 16, when she was informed that war had broken out between France and Prussia. The captain sailed to the Downs to inquire, and anchored there on June 17 (Sunday) ; on the 18th, the shipowner ordered him not to go into Dunkirk ; on the 19th he put into Dover, and there was infcrmed that war between France and Prussia, imminent from the 10th of June, bad been declared on the 19th. Held, that putting back to the Downs to obtain information and the delay on the 19th were justifiable, and that the goods owners could not obtain their goods at Dover, without payment of full freight (V). (ti) The Teutmia (1872), L. R. 4 P. C. 171, at p. 179 ; Nd>el v. Jenkins (1896), 2 Q. B. 32G; The San Boman (1873), L. R. 5 P. C. 301 ; The Wilhelm Schmidt (1871), 25 L. T. 34; The Repress (1872), L. R. 3 A. & E. 597; The Jleinrich (1871), L. R. 3 A. & E. 424 ; Pole v. CetcovUch (1860), 9 C. B., X.S. 430 Where the danger was foreseen by the shipowner, who after consideration gave his master orders to pursue a certain course, the master has no power to deviate from that course in consequence of that danger: The Roebuck (1874), 31 L. T. 274. {x) The Teutonia, vide supra. ly) See, however. The Patria (1871), L. R. 3 A. & E. 436, at \\ 464, on which see note (c), post: contra, see Castel v. Trechman (1884), 1 C. &i E, 276. (z) See Articles 28, 30. (a) The Teutonia, vide sub. (6) The Teutonia (1872), L. R. 4 P. C. 171. The San Boman, The Heinrich, The Express, and I'he Wilhelm Schmidt, note (") supra, all arose out of similar circum- stances, and in effect decide tliat reasonable ajiprehension of capture justifies delay TO DELAY on DEVIATE. 207 Case 2. — Coffee was shipped on a Gorman ship, under a bill of lading, containing only an exceptioa of perils of the seas, from America to Hamburg. Near Falmouth the master was informed that war had broken out between France and Grermany, and he accordingly put in to F. on August 23. Hamburg was theu blockaded by the French Fleet, and remained blockaded till Heptember 18. During all that time and until November 7, the English Channel and North Sea were rendered unsafe by French cruisers. On September 18, when the blockade was raised, the goods owner offered full frei'2;ht for the goods delivered either at F. or at Hamburg. The master refused to proceed to Hamburg, on the ground of the danger of capture, and refused to tleliver the cargo. IMd, that the master's delay (of fifty days, September 18 to November 7), was un- reasonable, and his refusal to either proceed to H. or deliver the cargo, a breach of the contract (c) ; and that the goods owners were therefore entitled to the cargo. Case 3. — Goods were shii3pedat Swansea on a general ship starting from Bristol, and calling at S., to New York. The ship put into Queenstown, with damage to ship and cargo through bad weather. The captain com- municated with the shipowners at Bristol, who ordered him to return there. He did not communicate with the cargo owners. When in the Avon, the ship and cargo were lost by an excepted peril. Cargo owners- sued the shipowner for loss on a deviation. It was proved that the ship but not the cargo could be repaired at Queenstown ; that ship and carso could be repaired, and cargo sold at Swansea, sixty miles short of Bristol ; that ship could be advantageously repaired and cargo sold at Bristol, though there was no evidence as to whether the cargo could be reconditioned there. The jury fuund the master had acted reasonably and the deviation was justifiable. The C.A. refused to disturb their verdict, and held, that under the circumstances there was no necessity to communicate with the cargo owners and obtain their sanction (d). ov deviation. The latter part of the decision in The Teutonin can be supported either on the ground in the judgment, that the master was entitled to delay for a reasonable time by fear of capture, and could not be required to abandon his voyage without the payment of full freight ; or on the ground that as tlie charterers had not named a port which could safely be entered, the fulfilment of the voyage was prevented by their failure to name a "safe port," and therefore the master was entitled to full freight. See post, Article 139. (c) The Patria (1871), L. R. 3 A. & E. 43G. It is difficult to understand this case, as the same judge had held a longer delay from similar causes reasonable in other cases : (e.g. San Roman, 53 days ; Express, 170 days). The absence of the exception, " restraint of princes," may make the difference (see Article 82). It may be, though it is not so stated, that the delay put an end commercially to the contract; or the case may be rested on the ground that the goods owner was entitled to demand his goods on tender of full treight, which, however, would not prove that he was entitled to them without any payment of freight on the ground of unreasonable delay. Sir R. Phillimore suggested that on the refusal of the master to proceed to H. the goods owners were entitled to their goods on payment oi & pro rata freight, but it seems clear that such a refusal if wrongful would entitle them to their goods without payment of any freight at all. Mcdeiros v. Hill (1832), 8 Bing. 231, shews that, if the parties knew of the blockade when the charter was entered into, the existence of the blockade would be no defence to an action for not proceeding towards the blockaded ports. {d) Phelps, James & Co. v. Hill (1891). 1 Q. B. 605. 208 MASTERS DUTY TO TAKE CARE OF GOODS. Article 101. — Master's Duty to take care of Goods. The master, as representing the shipowner, has the duty of taking reasonable care of the goods entrusted to him, in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, e.g. by ventila- tion, pumping, or saving goods which accident has exposed to danger (e). He has also the duty of taking reasonable measures to prevent the loss or deterioration of the goods even by reason of accidents, for the necessary effects of which the shipowner is by reason of the bill of lading under no liability, and the shipowner will be liable (/) for any neglect of such duty by the master (e). The place, the season, the extent of the deterioration, the opportunities at hand, the interests of other persons in the adventure whom it might be unfair to delay for the sake of that part of the cargo in peril, all the circumstances affect- ing risk, trouble, delay, and inconvenience must be taken into account. The performance of the duty cannot be in- sisted on if it involves deviation, but reasonable delays in a port of call for purposes connected with the voyage, though not necessary to its completion, will not amount to deviation (e). As the master has to exercise a discretionary power, his owner will not be liable unless it is affirmatively proved that the master has been guilty of a breach of duty (e). Semhle, the master will have a lien on the goods for any expenses incurred in the performance of such duty (g). (c) Notara v. Henderson (1872), L. R. 5 Q. B. 346 ; 7 Q. B. 225, per Willes, J., at p. 235 ; Tronson v. Dent (1853), 8 Moore, P. C. 419 ; Australasian Navigation Co. V. Morse (1872), L. R. 4 P. C. 222. Cf. Garriock v. Walker (1873), 1 Sc. Sess. Oases, 4th Ser. luO ; Adam v. J/orm (1890), 18 Sc. Sess. Cases, 153; Phelps James & Co. v. Hill (1891), 1 Q. B. 605. For a discussion, whether in case of wreck of the ship, the shipowners may charge for the services of agents in saving, conditioning, and forwarding the goods, see Eose v. Baiik of Australasia (1894), A. C. 687. (/) This is not like the authority to tranship, a power for the benefit of the shipowner only, to secure his freight: Do Cuadra v. Swann (1864), 16 C.B., N.S. 772. {g) Hingston v. Wendt (1876), 1 Q. B. D. 367. See ^^er Blackburn, J., at p. 373. MASTER'S POWER TO SELL GOODS. 209 Case. — F. shipped beans on the >S'. on a voyage to Z., the bill of lading giving leave to call at ports on the voyage. The vessel called at Y., and on her way out came into collision, whereby the beans were damaged by salt water ; she put back to Y. The wet beans might have been warehoused and dried at Y., with material benefit to them, and without unreasonable delay to the adventure. The ship proceeded to L. without drying them. Held, that the shipowners were liable to V. for the master's failure to dry the beans (h). Article 102. — Masters Power to sell damaged Goods. The condition of the goods may be such that immediate sale is the wisest course in the interests of the cargo owner ; in such a case the master, if he cannot communicate with the cargo owner and receive his instructions, will be bound to sell them («*). Such a condition will arise if the master cannot convey the goods or cause them to be conveyed to their destination as merchantable articles, either at all, or without an expenditure clearly exceeding their value after their arrival at their destination (k). Case 1. — Maize was shipped on a voyage from X. to Z. ; at Y., an inter- mediate port, it was found heated and sprouting ; the master transhipped it into lighters; and informed the shipper's agent by telegraph on March 10 and 13 of its condition, suggesting that it could not be carried on. He received two telegrams in reply that the shipper wished the grain to be forwarded. On March 27 the captain telegraphed again : " Have held survey, which reports grain unfit for shipment : will bo sold to-morrow by public auction ; " and it was sold on the 28th. The sale was a prudent measure, but not one of such urgent necessity as to give no time or oppor- tunity for communicating with the owners. Held, that no case was made out entitling the master to sell, as he was bound to have waited the result of his communication of the proposed sale to the owner (/). Case 2. — The ship R., with a mixed cargo of metal au.. perishable articles, was wrecked, on April 19, in Algoa Bay, fifty miles from Port Elizabeth. The consul there, on April 22, advised the captain to sell the ship and cargo, which he did on April 30. The captain did not go to P.E., or make any attempt to raise money for salvage, or to induce others to attempt the (A) Notara v. Henderson (1872), L. R. 7 Q. B. 225. (0 Australasian S. Nav. Co. v. 3forse (1872), L. R. 4 P. C. 222 ; Acatos v. Burns (1878), 3 Ex. D. 282; Tronson v. Dent (1853), 8 Moore, P. C. 419, 449, et seq. ; Atlantic Insurance Co. v. Huth (1880), 16 Ch. D. 474 ; Vlicrhoon v. Chapman (1844), 13 M. & W. 230, and see Articles 97, 98. As to German law, see The August (1891), P. 328 : The Industrie (1894), P. 58. {k) Atlantic Insurance Co. v. Ihdh (1880), v. s. at p. 481. As to the person liable for unjustifiable sale by master, see Wagstaffv. Anderson (1879), 4 C. P. D. 283, and Articles 2, 93. (I) Acatos V. Burns (1878), 3 Ex. D. 282. See also Australasian S. Kav. Co. v. Morse (1872), L. R. 4 P. C. 222, cited ante, Article 98, Case 3, p. 203. 210 MASTERS POWER salvage. He had no funds in his hands. There was conflicting evidence as to whether such attempts, if made, would have been successful, but much evidence that the course adopted was the most prudent. Held, that no necessity for the sale existed, such as would make the master the agent of the cargo owner to effect a sale, and that the sale must therefore be rescinded {in). Article 103. — Masters Power of Transhipnent. Where an English vessel {n) in which goods are shipped is hindered by excepted perils from completing the contract voyage, if the obstacle can be overcome by reasonable expenditure or delay, the shipowner must do his best to overcome it. It is only where excepted perils render the completion of the voyage physically impossible or so clearly unreasonable as to be impossible in a business point of view that the shipowner is justified in throwing up the voyage without the consent of the charterer or shipper (o). Where the shipowner is so prevented from completing the contract voyage, he is not bound either to repair or tranship ; though, if he elects to do neither, he must hand over his cargo to the cargo owner {p) freight free, or, if the cargo owner is not present to receive it, the master must act for the best, and as the cargo owner's agent, unless he can consult him. He has, however, the right to earn his freight either by repairing his own ship and proceeding to the port of destination, or by transhipping the goods into another vessel to be forwarded thither {q), and he may delay the transit a reasonable time for either of these purposes (r). (m) Atlantic Insurance Co. v. Huth (1880), 16 Ch. D. 474. The sale was rescinded as invalid by the law of the country where it was made ; if it had been valid by that law, though invalid by English law, it could not have been rescinded, thoucrh the captain would be respon^ible to the owners of the cargo for an improper sale; Cammell v. Sewcll (1860), 5 H. & N. 728. (n) See Article 7; The Bahia (1864), B. &. L. 292; The Express (1872), L R. 3 A. & E. 597. (o) Assicurazioni v. Bessie Morris S.3. Co. (1892), 1 Q.B. at p. 581 ; in C. A. (1892), 2 Q. B. 652. (p) See 2)er Bowen, L.J., in Svendsen v. Wallace (1884), 13 Q. B. D., at p. 88. (a) See per Lawrence, J., in Cook v. Jennings (1797), 7 T. R. 381, at p. 385, and per Lindlev, J., in Hillx. Wilson (1879), 4 C. P. D. 329, at p. 333; De Cuadra v. Swatin (1864), 16 C. B, N.S. 772. (r) The Bahia (1864), B. and L. 292 ; T/ie Soblomstcn (1866), L. R. 1 A. & E. TO TRANSHIP GOODS. 211 In case of justifiable transhipment by the master as agent for the shipowner, the cargo owner will be bound to pay the full freight originally contracted for, though the trans- shipment was effected by the shipowner at a smaller freight (s). Senible, that the master cannot, without express authority, bind the cargo owner to more unfavourable terms in the contract of transhipment, as by wider exceptions {t), or to pay a larger freight than that originally contracted for, unless communication with the cargo owner was impossible, and forwarding the cargo on such terms would appear to a reasonable man to be the most beneficial course in the interests of the cargo [u). If the hindrance of the ship's voyage is not caused by excepted perils, the shipowner is not entitled as of right to tranship on his own account on terms more onerous to the shipper than the original contract (though he may be bound to do so on account of the cargo owner) ; but he is liable for delay or failure to deliver {x). Case 1. — F. shipped goods on board the S. at a named freight for a voyage from X. to Z. : on the voyage, at Y. the necessity for transhipment arose, and the master made a contract for the forwarding of the goods to 7i. at a freight, which, together witti jjro rata freight from X. to Y., was less than the original freight agreed upon. On arrival at Z. F. refused to pay more than such pro rata and forwarding freight. Held, that he was bound to pay the freight originally agreed upon (?/). Case 2. — A shipowner carried goods under a contract of affreightment, which did not except negligence of the master and crew. The ship was so injured by the negligence of her master as to be unable to complete the voyage ; and the master thereupon transhipped the cargo into another vessel under a contract containing an exception of negligence of the master and crew. Such vessel was lost by negligence of the master and crew. Held, that the transhipment being for the benefit of the shipowner, he 293; Cargo ex Galam (1863), B. & L. 167; The Gratitudinc (1801), 3 C. Rob. 240; ShiptoH v. Thornton (1838), 1 P. & D. 216, 231, et seq. (s) Shipton V. Thornton, vide supra; The Bernina (1886), 12 P. D. 36. (0 The Bernina (1886), 12 P. D. 36. (m) Glhbs V. Greu (1857), 2 H. & N. 22, where it was held that the master had no power to bind the consignee to ship a full cargo, or, scinhle, to pay a higher freight than that current at the time; and see Cargo ex Argos (1873), L. R. 5 P. ('. 134, at p. 165 ; Shipton v. Thornton, vide sub, at p. 234. (a-) Shipton v. Thornton, vide sub ; The Bernina, ride sub. (V) Shipton V. Thornton (1838), 1 P. & D. 216. See Jlatthcics v. Gihbs (1860), 30 L. J. Q. B. 55. p 2 212 MASTER'S POWER OF RAISING MONEY. could not bind the cargo owner by more onerous exceptions, and was there- fore liable for the loss {z). Case 3. — A ship chartered by C. to proceed to London, ran ashore near Gibraltar. Ship and cargo were damaged ; the ship was repaired in six weeks at a cost of £700, and proceeded to the United Kingdom with another cargo. Some of the original cargo was sold, some with the consent of its owners was transhipped ; the latter cargo could have been carried to London in the repaired ship without unreasonable delay, and C. never consented to the original voyage being abandoned. Held, that the shipowner, if he could repair within a reasonable time and at a reasonable cost, was bound to remedy the effect of the excepted perils, and carry on the cargo in the same ship (a). Article 104. — Masters Poiver of raising Money on Cargo. The master will be entitled to raise money on the cargo, to enable him to complete the contract voyage, if such course is the most beneficial for the cargo owner, when the master cannot obtain money in any other way, and if the cargo owner cannot be communicated with, or, being communi- cated with, omits to give any instructions whatever. Money may be so raised either : (1.) by a sale of part of the cargo (&); in which case the goods owner may either treat the proceeds of the sale as a loan to the shipowner ; or, if the vessel reaches her destination, he may claim an in- demnity against any loss occasioned to him by the sale, but in the latter case he must pay the freight which would have been earned if the goods sold had been carried to their destination (c). (2.) By a loan on the special security of the cargo, analogous to a bottomry bond (c). Article 105. — Bottomrij. By English law (d) the master as agent of the cargo owner has authority to bind the cargo by a bottomry bond as security for advances made to him, when such advances («) The Bernina (1886), 12 P. D. 36. (a) Assicurazioni v. Bessie Morris S.S. Co (1892), 2 Q. B. 652. Qj) See Hopjxr v. Burness (1876), 1 C. P. D. 137, and Articles 97, 98. (c) See Article 143 on Freight. This contract is sometimes known as respon- dentia, on which, see Busk v.Fcaron (1803), 4 East, 319 ; Glover v. Black (1763), 3 Burr. 1394; The Sultan (1859), Swabey, 504. (c?) The law by which the powers of tlie master to bind ship and cargo by a bottomry bond are to be determined is, in the absence of express evidence of contrary intention, the law of the ship's flag. See Article 7. BOTTOMRY. 213 are necessary in the interests of the cargo (e), and when it is either impossible to communicate with the cargo owner and receive his instructions within such a time as will afford any reasonable prospect of success in protecting the cargo (/), or when, a proper communication (g) of the necessity of raising money by bottomry having been made to the cargo owner, he has omitted to send any instructions to the master (h). It is essential to a bottomry bond that there should be a maritime risk involved, i.e. that the money advanced should only be payable if the ship or cargo arrives safely at its destination (^) ; and that it should not be merely an advance on the personal credit of the master, goods owner, or ship- owner (Jc). Deviation from the voyage described in the bond without consent of the lender makes the sum advanced at once payable (I). ((•) The Hamburg (1864), 2 Moore, P. C, N.S. 289; The Karnak (1869), L. R. 2 P. C. 505 ; The Onward (1873), L. R. 4 A. & E. 38, at p. 58 ; The Gratitudine (1801), 3 C. Rob. 240; The Faithful (1862), 31 L. J. Adm. 81; Wallace v. Fielden (1851), 7 Moore, P. C. 398. Djmond v. Scott (1877), 5 Sc. Sess. C, 4th Ser. 196. When the .naster has bound the cargo without authority, the cargo owner can recover from the shipowner any sums he has had to pay to obtain the cargo, on an implied contract of indemnity : Benson v. Duncan (1849), 3 Ex. 644, and see Article 97. A hypothecation note beyond the master's authority may yet create a personal liability on the shipowner, the hypothecation being rejected: Assicurazioni y. Bessie Morris S.S. Co. (1892), 1 Q. B., at p. 575. ( f) The Onward, v. s. • The Bonaparte (1853), 8 Moore, P. C. 459 ; The Ham- burg, V. s. ; The Olivier (1862), Lush. 484; The Lizzie (1868), L. R. 2 A. & E. 254; The Panama (1870), L. R. 3 P. C. 199. (gr) As to what is a proper communication, see Kleinwort v. Cassa Marittinui, of Genoa (1877), 2 Apj). C. 156 ; The Onward, v. s. ; The Bonaparte, v. $., and Article 98. (/i) The Bonaparte, vide supra. (0 The Indomitable (1859), Swabev, 446 ; Stainbank v. Shepard (1853), 13 C. B. 418; The Heinrich Bjorn (1885), 10 P. D. 44 (C.A.) ; Miller v. Potter (1875), 3 Sc. Sess. C. 105. Nothing can be hypothecated, except something which is in danger of perishing by maritime risk during the time the bond is running. Therefore, cargo not yet shipped cannot be jdedged : The Jonathan Goodhue (1858), Swabey, 355. Nor can cargo which, having been shipped in another ship, has been burnt : The Sultan (1859), Swabey, 504. If part of the cargo is lost on the voyage, the owners of the cargo will be freed from a pro- portionate part of the sum secured by the bond : The Sultan, vide supra. Freight to be earned on a subsequent voyage is not the subject of bottomry : The Staffordshire (1872), L. R. 4 I\ C. 194. (/;) Busk V. Fearon (1803), 4 East, 319 ; The Heinrich Bjorn, vide supra. The fact that bills are given as a collateral security does not necessarily invalidate the bond : 'The Onward, vide supra ; The Staffordshire, vide supra. Cf. Miller v. Potter, V. s. (0 London & Midland Bank v. Xidsen (1895), 1 Com. Cases, 18. 214 BOTTOMRY. Case. — A., owner of the ship R., lying at X., gave B, the following document : " In consideration of N. ^vancing me, A., £600 for necessaries supplied to the ship ILB., I undertake to return them the whole amount so advanced me with interest and charges on the return of the B. from her present voyage. B. is ak-o authorised to cover the said amount advanced me by insurance on ship out and home at my cost. Held, that this was not a bottomry bond, as there was no maritime risk, but an alternative security for the lender, viz., either the personal liability of A. if the ship returned, or the policy of insurance if she were lost (in). Article 106. — Conditions justifying Bottomry. Whether there is necessity for raising money on the cargo by bottomry must depend on whether any arrangement more beneficial to the cargo than the raising of money on it to enable the voyage to be prosecuted, can be made (w). The foundation of the master's authority to bind the cargo is the prospect that such a course will be the one most bene- ficial to the cargo owner (o). Thus if the master could obtain money on his personal credit, or that of the ship- owner {p), or if there is an agent of the shipowner within reach, whom he has not consulted {q), his authority to bind the cargo by bottomry will not arise. The question will not only be, was there a necessity for bottomry at all, but was there a necessity for a bond for that amount ; and it will not avail the bond-holder to say he made reasonable inquiries if the amount expended is in fact unnecessary and unreasonable (r). (m) The Heinrich Bjorn, vide supra. (n) The Karnak (1869), L. R. 2 P. C. 505. The money may be raised to free the cargo from arrest for salvas;e : The Sultan (1859), Swabey, 504. (o) The Onward, L. R. 4 A. & E. 38, (p) Soares v. Rahn (1838), 3 Moore, P. C. 1 ; Heathorn v. Darlintj (1836), 1 Moore, P. C. 5. The fact that money was advanced before the bond was given is immaterial if the money was advanced in view of a bond being given: The Laurel (1863), B. & L. 191. (q) Lyall v. Hicks (1860), 27 Beav. 616; The Faithful (1862), 31 L. J. Adm. 81. But an advance by agents of the shipowner on bottomry is not invalid, if they refused to adv^ince on his personal credit, and gave the master a chance of getting money elsewhere : The Hero (1817), 2 Dod., at p. 144 ; The Staffordshire (1872), L. R. 4 P. C, at p. 203. (r) The Pontida (1884), 9 P. D. 177. As to various items for which bottomry may be justified, see The Glenmanna (1860), Lush. 115; The EJmond (1861), Lush. 211, JETTISON. 215 Where communication with the cargo owner is reasonably practicable the master must lay the facts before him, and ask his instructions as to bottomry before acting. It is not sufficient merely to state the injuries to the ship, and the need of repairs or other steps in the interest of the cargo, without a statement of the necessity of raising money by bottomry (s). If the cargo owners ask for further informa- tion the master has no right to act until he has supplied such further information, if such further information should have been supplied at first {t). Article 107. — Jettison. The captain's authority to jettison goods properly stowed arises in cases of necessity {u), i.e. where a prudent man in the interest of the adventure would take such a course {x). Where such necessity arises the captain in making the jettison acts as agent of the cargo owner {x) ; if no such necessity exists, or if the goods jettisoned were improperly stowed, e.g. on deck, and the jettison is therefore improper, the captain acts only as the agent of the shipowner, who is liable for his acts {y) unless protected by exceptions (z). Article 108. — General Average. All loss which arises in consequence of extraordinary sacrifices made or expenses incurred for the preservation of the ship and cargo comes within general average, and must be borne proportionably by all who are interested {a). (s) Wallace v. Fielden (1851), 7 Moore, P. C. 398 ; The Onward, L. R. 4 A. & E. 38. It) Klcinii-ort v. Cassa Marittima (1877), 2 App. C. 156. (m) It is almost impossible that the question of communicating with the cargo owner should arise, except perhaps in a case of stranding. (x) Burton v. English (1883), 12 Q. B. D. 218, at pp. 220, 223; and see Article 97. ((/) Royal Exchange S.S. Co. v. Dixon (188G), 12 App. C. 11 : Xcx-all v. Rogal Exchange Steamship Go. (1885), 33 W. R. 342, 868. («) JE.g. " at merchant's risk " : Burton v. English, vide supra, and perhaps " neglicjence of master in navigating, &('." See Articles 90, 110. (a) Pa- Lawrence, J., in Birkleg v. Presgruve (1801), 1 East, 220, at p. 228; 216 GENERAL AVERAGE. To give rise to a claim for general average contri- bution (h) : — 1. There must be a common danger (c). 2. There must be a necessity for a sacrifice (h). 3. The sacrifice must be voluntary (d). 4. It must be a real sacrifice, and not a mere destruction and casting off of that which had become already lost and consequently of no value (d). 5. There must be a saving of the imperilled property through the sacrifice (b). 6. The common danger must not arise through any default for which the interest claiming a general, average contribution is liable in law (e). Note. — Except in the case of express clauses, such as " the master, owner, or agents of the vessel shall not be responsible either as carriers, or as contributors to genercd average for any loss or injury to the said goods, arising from any of the causes above-mentioned," which is so unreasonable as to require a very prominent place in the bill of lading to make it binding on the shipper (/), the bill of lading does not afiect general average. The office of the bill of lading is to provide for the rights and liabilities of the parties in reference to the contract to carry, and it is not concerned with liabilities to contribution in general average where a loss has been occasioned by a sacrifice properly made for tlie general benefit (^g). The clause " not to be liable for any damage capable of being- covered by insurance " does not free the shipowner from liability to general average contributions (g). see also^cr Brett, M.ll., in Svendsen v. Wallace (1884), 13 Q. B. D., at p. 73. As to the etymology and hi&tory of the word "average," see Murray's Dictionary, sub voce, Tlie subject of general average is so entirely in the hands of average adjusters, and so ably dealt with in the works of Mr. Lowndes and Mr. Manley Hopkins, that I have not thought it necessary to treat it in any length or detail. (6) Firie v. Jiliddle Dock Co. (1881), 44 L." T. 426. (c) See Walthev) v. Marrojani (1870), L. E. 5 Ex. 116. Royal Mail Co. v. Bank of Rio (1887), 19 Q. B. D. 362. ((/) Shejiherd v. Kottgen (1877), 2 C. P. D. 585. This covers a case where the sacrifice is by order of the port authorities, the master assenting, if it was made for the benefit of ship and cargo. Papananni v. Grampian S.S. Co. (1896), 1 Com. Cases, 448 ; probably not if for the benefit of other ships. (e) Strang Y. Scott (1889), 14 App. C, at p. 608; Schloss v. Jleriot (1863), 14 C. B., N.'S. 59. Thus in The Carron Park (1890), 15 P. D. 203, the shipowner succeeded in recovering a general average contribution for expenditure occasioned by the negligence of his servants from liability for which he was protected by an exception in the bill of lading. (/) Crooks V. A/Ian (1879), 5 Q. B. D. 38: see also Walfordv. Galindez (1897), 2 Com. Cases, 137. (g) Per Lush, J., in Schmidt v. Royal Mail S.S. Co. (1876), 45 L. J. Q. B. 646. JETTISON OF CARGO. 217 Article 109. — Classes of General Average Loss. The following sacrifices or expenses may give rise to a claim for a general average contribution : — I. Sacrifices — 1. of cargo : (a.) By jettison : (h.) By fire, directly or indirectly : (c.) By sale : 2. of ship or tackle : 3. of freight. II. Expenditure on ship in replacing a general average loss, or in a port of refuge. Article 110. — Jettison of Cargo. Where cargo stowed in a proper part of the ship is pro- perly jettisoned for the common good, its owner is entitled to a general average contribution from the other interests in the adventure ; i.e. the ship, the freight, and the rest of the cargo (h). He can enforce this clause either by a direct action against each of the owners of ship or cargo («'), or by claiming through the master, who is his agent for that purpose, a lien on each parcel of goods saved to satisfy its proportionate liability (h) . An interest whose fault has led to the jettison is not entitled to a general average contribu- tion in respect thereof, but innocent owners of cargo jetti- soned in consequence of the fault of another interest are not thereby deprived of their remedy (h). Cargo stowed on deck (which is not a usual or proper place of stowage), if jettisoned, does not give rise to a general average contribution from the other interests in the adventure, unless it is so stowed in pursuance of a recognised custom of the trade or port, or by consent of all the other interests in the adventure (k). (/i) Strang v. Scott (1889), 14 App. C. 601, 606. See Articles 90, 108, supra; as to the amount of the contribution, see Fletcher v. Alexander (1868), L, R. 3 C. P. 375. (i) Dohson v. Wilson (1813), 3 Camp. 484. (/.) Strang v. Scott (1889), 14 App, C, at p. 608; Wright v. J/ariTOOf? (1881), 218 JETTISON OF CARGO. If the cargo is shipped on deck by agreement of the ship- owner, and in the absence of a custom so to load, the owner of such cargo, if jettisoned, has no right to a general average contribution eitlier against other cargo owners, or against the shipowner and person entitled to the freight, if there are other cargo owners (J) ; such a jettison may give rise to such a contribution from the ship and freight, if there are no other cargo owners [m), even though such cargo according to the charter is to be carried " at merchant's risk " («). The clause " at merchant's risk " covers liability for im- proper jettison, resulting from acts of the crew done as the servants of the shipowner ; but not for a proper jettison,, which is made by the captain as agent of tlie cargo owner {n). If the goods are stowed on deck without the merchant's consent, or a binding custom so to stow, and are then jetti- soned, the shipowner will be liable for such a jettison as a breach of his contract to carry safely (o). Case 1. — F. shipped in A.'s ship twenty-six pieces of timber. There was a custom in the timber trade to carry lumber on deck. F.'s goods were placed on deck, and were properly jettisoned. Held, that F. was entitled to a general average contribution from ship and freight: Semhie, also from cargo (p). Case 2. — C. F. shipped in A.'s ship a full cargo of timber, under a charter^ whereby C. F. was to provide " a full cargo of timber, including a deck load." On the voyage the timber on deck was properly jettisoned. Held, C. F. was entitled to recover a contribution to his loss from A. (g). Case 3. — F. shipped cattle on A.'s ship, agreeing they should be carried on deck: there were other owners of cargo. On the voyage the cattle were properly jettisoned. Held, that F. was not entitled to a general average contribution either against A. or against the other cargo owners (r). Case 4. — F. shipped timber on A.'s ship, which was not a general ship, under a charter, " the steamer shall be provided with a deck-load if required 7 Q. B. D. 62, at p. (37. Such a custom was proved in Burton v. English (1883), 12 Q. B. D. 218 (C.A.), an.l in Gould v. Ol'cer (1S37), 4 Bing. N. C. 134; it also exists in the coasting trade ; it was not proved in Xewall v. Exchange Shipping Co. (1885), 33 W. R. 342, 868. (/) Wright V. Marwood, vide supra; not so, if there is a custom so to load; Gould V. Oliver, vide supra. (m) Johnson v. Chapman (1865), 19 C. B., X.S. 563 ; discussed in Wright v, Marwood (1881), 7 Q. B. D., at p. 69. (») Burton V. English, vide supi-a ; and see Articles 95, 107. (o) Eogal Exchange S.S. Co. v. Dixon (1886), 12 App. C. 11 ; Newall v. Bogal Exchange Steamship Co. (1885), 33 W. R. 398 ; see also per Lush, L.J., in Schmidt V. lioyal Mad Co. (1876), 45 L. J. Q. B. 646, at p. 648. (p) Goxdd V. Oliver (1837), 4 Bing. N. C. 134. (ry) Johnson v. Chapman (1865), 19 C. B., N.S. 563. ()■) Wright V. Marwood (1881), 7 Q. B. D. 62. CARGO DAMAGED BY FIRE. 2 19 at full freight, but at merchant's risk," There was a custom to carry such timber on deck : on the voyage the deck timber was properly jettisoned. Held, that F. was entitled to a general average contribution from A. (s). Case 5. — Cotton was shipped by F., under bills of lading, excepting "jettison " and " stranding." Some of the cotton was stowed on deck; the ship stranded, and the deck cotton was properly jettisoned. An attempt to prove a custom to stow on deck failed. Held, that the cargo owner was entitled to recover the full value of the cotton from the shipowner (t). Article 111, — Cargo damaged hy Fire, directly or indirectly. Damage to the cargo by pouring water on it (u), or by scuttling the ship to extinguish fire, or by burning it instead of fuel for the engines to avert the loss of ship and cargo {x)y gives rise to a claim for general average contribution by the owner of the cargo destroyed or damaged {y). Case. — F. had shipped wire on board the S. to be carried to Z. The S. arrived, and proceeded to discharge her cargo ; about 100 tons remained on board, including the plaintiffs wire, when a fire broke out, which was extinguished by pouring water into the hold, whereby the wire was damaged. Held, that F, was entitled to a general average contribution from the owner of the *S', Article 112, — Sale of Cargo. Sale of part of the cargo to furnish money for repairs to enable the ship to prosecute the voyage (z), or to release the master from arrest that he may prosecute the voyage (a), will only give rise to a claim for general average against the rest of the cargo, if such cargo can be carried on in no other way. (s) Burton v. English (1883), 12 Q. B. D. 218. (<) Eoyal Exchange Steamship Co. v. Dixon (1886), 12 App. C. 11. (?<) Papayanni v. Grampian S.S. Co. (1896), 1 Com. Cases, 448. (x) Walford v. Galindez (1897), 2 Com. Cases, 137. Semble, that if the ship was insufficiently supplied with fuel at starting, the owner of the cargo burnt will be entitled to recover its full value from the shipowner, while in consequence other owners of carcjo will not bo liable to contribute to general average: Robin- son V. Price (1876), 2 Q. B. D. 91, 295. (?/) Whitecross Wire Co. v. £'aii7/ (1882), 8 Q. B. D. G53 ; in which the Court of Appeal for the first time decided this question, which they had left undecided in Stewart v. West India S.S. Co. (1873), L. R. 8 Q. B. 362. See also Achard V. Ping (1874), 31 L. T. 647. An exception " lire on board " in the bill of lading will not relieve the owner from liability for general average contribution to the owner of goods damaged by water used in extinguishing such fire: Schmidt v. Royal Mail S.S. Co. (1876), 45 L. J. Q. B. 646. (2) Hallett V. Wiqram (1850), 9 C. B. 580. 00 Dohson V. Wilson (1813), 3 Camp. 480. 220 SACBIFICE OF SHIP OR TACKLE. and it is more beneficial to the cargo to be carried on than to stay where it is (z) : any other kind of sale will only give rise to a personal claim against the shipowner (b). Article 113. — Sacrifice of Skip or TacJcle. Sacrifice of ship or tackle necessary for the safety of the whole adventure, and not incurred in carrying out the ship- owner's original contract, will give rise to a general average contribution (c), unless : — (1.) The thing sacrificed was at the time in such a con- dition that it would have been certainly lost, even if the rest of the adventure was saved, as when a mast is cut away, which is either certain to go overboard, or has already gone overboard and is hanging as a wreck (d), — or : — (2.) The sacrifice was rendered necessary by the original default of the shipowner, as in providing a ship insufficiently equipped (e), in which case he must bear all the loss. Case 1, — A ship sailed Avell equipped, having a donkey engine, and a sufiBcient supply of coal for all purposes other than pumping purposes; she met with heavy weather and leaked considerably ; the donkey engine was used to pump, and it was only by this steam pumping that the leak was kept under; the coal ran short; and some of the sjmre spars and cargo were used for fuel. Held, that the sacrifice of the sjmrs and cargo was a general average loss (/). (h) llcqtper v. Burness (1876), 1 C. P. D. 137 ; in which the payment of freight on cargo thus sold is discussed; and see Article 104, on master's power of raising money on cargo. (t:) BirJdey v. Presgrave (1801), 1 East, 220 ; Frice v. Noble (1811), 4 Taunt. 123 ; Wilson v. Bank of Victoria (1867), L. R. 2 Q. B. 203. Tipping the ship by the head, in order to repair the propeller, whereby water damaged the cargo, has been held a genei-al average sacrifice, McCall v. Ikmlder (1897), 2 Com. Cases, 129. iSo also intentionally damaging the engines by working them to get a ship off is a general average sacrifice : The Bona (1895), P. 125 (C.A.). As to calculation of the amount of general average sacrifice where it follows previous damage, and the ship becomes a constructive total loss: s^g Henderson v. Shati/dand {IS'dG), 1 Q. B. 525 (C.A.). ((/) Shepherd v. Kottgen (1877), 2 C. P. D. 585. See Corry v. Coulthard (1877), 2 C. P D., at pp. 583, 584. ((?) See Rolnnson v. Price (1877), 2 Q. B. D. 91, at p. 95; Wilson v. Bank of Victoria (1867), L. R. 2 Q. B. 203. (/) Pobinson v. Price, vide supra, and at p. 295. SACRIFICE OF FREIGHT. 221 Case 2. — A seaworthy ship, fitted with a donkey engine and a sufficieut supply of coal for ordinary purposes, sailed on a voyage. She met bad weather, and made some water, but nut enough to create any risk, while the engines worked ; the coal got low, and spare spars and wood were burnt with it to economize it; but some coal was obtained from a passing vessel; at the end of the voyage the engine broke down from overwork. Held, by all the Court, that the injury to the engine, and the second supply of coal did not give rise to general average contribution ; the Court were equally divided as to whether the burnt spars and wood were a general average loss (9). Case 3. — A sailing ship with aiixiliarj^ screw, was damaged by perils of the sea, so that practically she had lost all power of sailing ; instead of re- pairing her sailing gear she proceeded with her voyage under steam alone, at a very heavy expenditure in coals. Held, that such expenditure did not give rise to a general average contribution (K). Case 4. — A ship met with a storm which caused part of the rigging to give way; the mainmast in consequence began to lurch, and was cutaway by the captain's orders ; if it had not been cut away, it would have gone overboard very shortly, at great risk to the ship. Held, that the cutting away of the mast, then practically worthless, did not give rise to a claim for general average contribution (i). Article 114. — Saci'ijice of Freight. Sacrifice of freight by the shipowner, by an act whereby the cargo is preserved, gives rise to a general average contribution against the cargo (k). Case. — F. Shipped coal on A.'s ship to be carried to Z. ; on the voyage the coal took tire by spontaneous combustion ; the ship and cargo were in immediate danger of total destruction by fire ; but, by jettison of cargo, and pouring water on it, and discharging it at Y. , the ship and a large portion of the cargo were saved from destruction. It was found impossible to carry the cargo to its destination, and it was accordingly sold at Y. By reason of such measures, the ship was prevented from earning her freight by delivery at Z. Held, that the shipowner was entitled to a general average contribution from the cargo on account of the freight thus lost. Article 115. — Extraordinary Expenditure hy Shipowner. Extraordinary expenditure voluntarily incurred, or extra- ordinary loss of time and labour voluntarily accepted, may also give rise to a general average contribution, provided ((/) Harrison v. Bank of Australasia (1872), L. R. 7 Ex. 39. (/i) Wilson V. Bank of Victoria, vide supra. (0 Shepherd v. Kottgen (1877), 2 C. P. D. 585. (A) Pirie v. Middle Dock Go. (1881), 4-i L. T. 42G. It was also hold that the cargo was not entitled to general average contribution from the ship : (1) because the loss arose from vice in the cargo ; (2) because there was really no loss, the cargo selling for more at Y. than it would have realised after pa3'ing freight at Z. 222 PORT OF REFUGE EXPENSES. that in each case the sacrifice is made for the common safety in a time of danger (I). Such general average contribution must cover not only the voluntary sacrifice, but also expenses directly caused by, or in consequence of, a voluntary sacrifice (l). Thus, when the cargo has been placed in safety, it will not be liable to contribute to expenses afterwards incurred. by the shipowner for the purposes of earning his freight, as in getting off a stranded vessel (m), or making arrangements for the further carrying of the cargo in his own vessel, under •circumstances when the cargo might have stayed where it was, or have been carried on by other vessels, with equal advantage (n). But expenses incurred by the shipowner or his agents, as agents of the cargo owner or in the sole inte- rests of the cargo, in preserving the cargo, must be borne by the cargo (o). Article 116. — Expenses in Port of Refuge. Where a ship on her voyage runs into a port of refuge to repair a general average sacrifice, such as cutting away a mast, the expenses of repairing the sacrifice, of warehousing and reloading goods necessarily unloaded for the purpose of repairing the injury, and expenses incurred for pilotage with other charges on the vessel on leaving port, are also the subject of general average (p). (J) PtrBowen, L.J., Svendsen v. Wa^^ace (1884), 13 Q. B. D., at pp. 84, 85. See also per Lawrence, J., in Birklcy v. Presjrave (1801), 1 East, 220. (m) Walthew \. llavrojani {1870), L. R. 5 Ex. 116; Job v. Langton (1856), 6 E. & B. 779 ; Royal Mail Co. v. Bank of Eio (1887), 19 Q. B. D. 362. (n) Schuster v. Fletcher (1878), 3 Q. B. D. 418. For circumstances in which the shipowner may make such charges, see Rose v. Bank of Australasia (1894), A. C. 687, in which Schuster v. Fletcher (v. s.) was disapproveJ. (o) See j9(r M. Smith, J., and Hannen, J., in WaJthew v. Mavrojani, v. s. at pp. 125,126. M. Smith, J., suggests the case of " perishable goods lauded on a desert island in a distant and unfrequented part of the world." Semble, that this is not general average ; but that, the original venture being at an end, the cargo owner must bear the whole expense : see Cargo ex Argos (1872), L. R. 5 P. C. 134. Forwarding for the jiurpose of earning freight only must be paid for the ship- owner, Cf. Schuster v. Fletcher, v. s. (p) Atwood V. Scllar (1880), 5 Q. B. D. 286. See also Plummer v. Wildman (1815), 3 M. & S. 482, as explained in Srendsen v. Wallace (1885), 13 Q. B. D. at p. 91 ; Ilallctt V. Wigrain (1850), 9 C. B. 580. PORT OF REFUGE EXPENSES. 223 Where a ship on her voyage, in consequence of damage not the subject of a general average contribution, such as springing a leak, puts into a port of refuge, and, in order to repair the ship, the cargo is necessarily landed, the expenses of reloading the cargo to enable the ship to prosecute her voyage, are not the subject of a general average contribution from the cargo (q). Senihle, that in principle the expenses of unloading the cargo will or will not be the subject of general average, according as the cargo is not or is safe in the ship without removal (r). Semhle, that the expenses of warehousing the cargo are to be borne by the cargo (q). Semhle, that pilotage expenses and port dues out are not the subject of general average (s). The expenses of unloading and reloading cargo at a port of refuge may be a general average charge on freight to earn which they are incurred (t). Note. — The distinction in fact between Atwood v. Sellar (u), and Svendsen v. Wallace (y), is that in the first ease the ship put into port to repair a general average sacrifice ; in the second to repair a particular average loss, or one liable to be borne by the ship alone (ic) : though such putting into port is probably a general average sacritice in itself. The difference in principle is not clear, and seems to be rather a question of the continuity of the transaction, unloading the cargo not being a necessary consequence of putting into ])ort, which was the general average sacrifice in Svendsen v. Wallace; though it is of the voluntary sacrifice of the ship, wdiich was the general average act in Atwood V. Sellar. But it is impossible to feel that the present position of Atwood v. Sellar is satisfactory as an authority. Da (g) Svendsen X. Wallace {l%^b), 10 App. C. 404; 13 Q. B. D, 69. See also Power V. Wliitmore (1815), 4 M. & S. 141 ; Hallett v. Wigram, v. s. : Walthcw v. Mavrojani (1870), L. E. 5 Ex. 116. (r) In practice they are charged as general average ; but see jper Brett, M.R., 13 Q. B. D., at p. 76 ; Bowen, L.J., 13Q. B. D., at p. 88; Lord Blackburn, 10 App. C, at p. 414. (s) So per majority of C. A. in Scendsen v. Wallace, vide supra. {t) Hall V. Sanson (1855), 4 E. & li. 500. (m) (1880), 5 Q. B. D. 286. (r) (1885), 10 App. C. 404. (>(?) J.ickson V. Charnock (1800), 8 T. P.. 509 ; Hallett v. Wigram (1850), 9 C. B. 580. 224 GENERAL AVERAGE CONTRIBUTION. Costa V. Newnham (a;) must be taken as overruled : and Moran V. Jones (y) as either overruled or limited to its own very- special facts (z). Article 117. — Master s Duty to collect General Average Contribution. Where a general average loss has occurred on a voyage, the shipowner or master has the right to retain the cargo until he is paid or tendered the amount due on it for general average (a) : he is under a duty to persons entitled to a general average contribution from the cargo so to do, and is liable to an action if he omits to do so (6). It is also the duty of the master to furnish to all cargo owners all the accounts and particulars necessary for ad- justing general average (e). If he omits to do so, the cargo owner who fails to tender a sufficient sum in con- sequence of such omission, is not liable for such failure (d). If he does furnish such particulars, the cargo owner must either pay the sum demanded, or tender the right sum, at his peril (d). If, as in practice, the master demands a particular security (e) for the payment by the cargo owner of the («) (1788), 2 T. E. 407. See per Brett, M.K., 13 Q. B. D. 80 ; Bowen, L.J., p. 90. (y) (1857), 7 E. & B. 523. See per Brett, M.R., at 13 Q. B D. p. 80 ; Bowen, L.J., at p. 93. See also 19 Q. B. D. 371, 377. (x) The present practice of English average adjusters will be found in the Resolutions of July 9, 1885, set out in Appendix IV. (a) See jjcr Lord Esher and Lindley, L..J., in Ilnth x. Lamport (1886), 16 Q. B. D. 735 ; Simmonds v. White (1824), 2 B. & C. 805, at p. 811. For a clause exempting the goods from lien, but making the shippers liable, see Walford v. Galindez (1897), 2 Com. Cases, 137. (6) Strang v. Scott (1889), 14 App. C, at p. 606 ; Crooks v. Allan (1879), 5 Q. B. D. 38 ; NoheVs Explosives v. Bca (1897), 2 Com. Cases, 293 ; Hallett v. Bousfield (1811), 18 Ves. 187, is now of doubtful authority, see 14 App. C. 606. Some bills of lading exempt the master from this duty, e.g. " shipowner not to be bound to exercise his lien on cargo for general average contribution." The master is under no duty to persons entitled to salvage from the cargo to detain it, until he obtains a bond from the cargo owners to pay such salvage : The Raishy (1885), 10 P. D. 114, and Article 121. (c) Huth V. Lamport, vide supra, and see The Norway (1864), B. & L., at p. 397. ((f) See per Lord Esher and Lindlev, L.J., in Huth v. Lamport (1886), 16 Q. B. D. 735 ; Simmonds v. Wiitc (1824), 2 B. & C. 805. (e) Semble, that if the master obtains from the cargo owners the form of secu- rity usual at the port of discharge he will be protected : Simmonds v. White (1824), 2 B. & C. 805 ; The Raishy (1885), 10 P. D. 114. GENERAL AVERAGE CONTRIBUTION. 225 amount found on adjustment to be due, such security must be a reasonable one (/ ). Case. — A., shipowners, had a lien on cargo in their ship, for general average. They required the cargo owner to make a deposit of 10 per cent, on the value of the goods in the name of A., or B., his average adjuster, or A. and B. ; and to execute a bond, the " Liverpool Bond," providing that such deposit should be a security for general average, and that the persons in whose name it stood might pay out from time to time such sums as they thought right to A. or his master on account of their disbursements. " All questions of general average to be adjusted by B., with appeal to arbitrators whose decision was final." Held, that such a requirement was unreason- able, and its continued demand released the cargo owner from the necessity of tendering (/). Article 118. — Who can sue for General Average Contribution. I. The shipowner, or the charterer, if the charter amounts to a demise : they have also a possessory lien on the cargo for the general average contribution due from it {g). II. The cargo owner, who can sue another cargo owner (A), the shipowner, or the person entitled to the freight, for general average contribution due from them. He has not after adjustment a maritime lien on the ship for the contri- bution due from it, nor will such a personal debt support a bottomry bond on the ship given in a subsequent voyage (i). III. The person entitled to the freight, for contributions due from the other interests in the adventure {j). Article 119. — Who is Halle for General Average Contribution. There are liable for general average contributions : — I. The shipowner, for those due from the ship (unless she (/) Huth V. Lamport (1886), 16 Q. B. D. 735. The clause ia some bills of lading, " In case of average, a deposit sufficient to cover the estimated contribu- tion to be paid at port of discharge if so required by the master," seems both un- necessary and unworkable. The master has his lien without it, and the method of "estimating," which is the difficulty, is not provided for. ((/) See Articles 117, 149. (h) Stranq v. Scott (1889), 14 App. C. 601 ; Do^json v. Wi7son (1813), 3 Camp. 479. (z) The North Star (1860), Lush. 45: qucure, whether a lien for general average by foreign law will support a bond. 0') Pirie V. Middle Dock Co. (1881), 44 L. T. 426. Q 226 GENERAL AVEBAGE CONTRIBUTION. is under a charter amounting to a demise, in which case the charterer is liable), and from the chartered, freight. II. The cliarterer for those due from the ship, if the charter amounts to a demise, and from freights payable to him. III. The cargo owner. IV. A consignee of cargo who has taken delivery of the goods under a bill of lading is not liable for general average, unless : — (a.) He is the owner of the goods ; or (b.) The bill of lading under which he takes the goods stipulates that he shall pay average ; or (e.) He has notice from the master of his lien for average, and after that takes the goods {h). V. The shipper, though the property in the goods has passed from him, may be liable under special clauses in the biU of lading {I). Article 120. — General Average Contribution, how adjusted. In the absence of special agreement (m), the amount to be contributed in general average is adjusted when the voyage is terminated by the delivery of the goods or otherwise and according to the law of the place of delivery (n). The fact that the voyage has been temporarily suspended, while the ship is repaired at a port of refuge, does not justify an average adjustment at such port (o). (k) Scaife V. Tobin (1832), 3 B. & Ad. 523. He would not be liable if he merely had notice that the goods were liable for general average, but not that the master claimed a lien (same case). (0 Walford v. Galindcz (1897), 2 Com. Cases, 137. (in) E.g. "Average, if any, to be adjusted according to British custom," which makes the custom of English average adjusters, though contrary to the law, part of the contract, Stewart v. West India Co. (1873), L. E. 8 Q. B. 362. A very usual clause is, "Average to be adjusted according to York-Antwerp rules," referring to a code of rules settled and adopted by a series of International conferences, including one at York in 1864, one at Antwerp in 1877, and one at Liverpool in 1890. See Appendix IV. ()i) Slmmonds v. White (182-1-), 2 B. iS: C. 805; Dalgleish v. Davidson (1824), 5 D. & R. 6. The shipowner is under no obligation to employ an average stater at any particular place, or at all. Wavertree S.S. Co. v. Love (1897), A. C. 373. (o) Hill V. Wilson (1879), 4 C. P. D. 329 ; see also Fletcher v. Alexander (1868), L. R. 3 C. P. 375; Mavrow Ocean Insurance Co. (1875), L. R, 10 C. P. 41. SALVAGE. 227 Article 121. — Salvage. If cargo is saved from loss or damage on a voyage by persons other than those who have undertaken to carry it (p), the salvors are entitled to remuneration for their services, known as salvage. No salvage is payable by cargo owners unless some cargo is saved, and it is payable proportionately to the cargo saved (q). Ship and cargo must each pay its own share of salvage ; neither can be made liable for salvage due from the other without an express agreement to pay it (r), or unless the shipowner is liable to indemnify the cargo owner for such payment, which was caused by his breach of contract (s) ; but either or both, if saved, may be liable to pay salvage for life saved, though, if life is saved but not cargo or ship, the cargo owner or shipowner will not be liable to pay life salvage (t). The authority of the master to bind the cargo to pay salvage is derived from necessity and benefit to the cargo (u). It is no part of the duty of the master of the salved ship to protect the salvors by obtaining a bond from the cargo owners for their proportion of any salvage that may be due before allowing the cargo owners to take away their goods {v). Where, however, the shipowners have paid, or made them- selves personally liable to pay, a sum of money for the (p) This includes a Queen's ship, if the services rendered are beyond the scope of her public duty. The Cargo ex Utysscs (1888), 13 P. D. 205. (q) The Longford (1881), 6 P. D. 60. (r) The Pyrennee (1863), B. & L. 189; The Baisby (1885), 10 P. D. 114; .-» case of an agreement to salve, and not an agreement to pay a particular sum for salvage. For instances of such express agreement, see The Prinz Heinrich (1888), 13 P. D. 31 ; The Cambrian (1887), 57 L. T. 205. (s) Scaramanga v. Martin (1886), 53 L. T. 810 ; Duncan v. Dundee Shipping Co. (1878), 5 Sc. Sess. C, 4th Ser., p. 742. (t) The Benpor (1883), 8 P. D. 115 ; The Mariposa (1896), P. 273 ; Cargo ear Sarpedon (1877), 3 P. D. 28; The Fusilier (1865), 3 Moore, P. C, N.S. 51. In The Annie (1886;, 12 P. D. 50, the ship was raised, but sold for less than the cost of raising her, and it was held that there was nothing to which a claim for life salvage could attach. (?/) The Benpor (1883), 8 P. D., at p. 118. (r) The Baisby (1885), 10 P. D. 114. 2 Q 228 COLLISION. preservation of the ship and cargo, if such payment is justi- fiable, and did not result from the fault of the shipowners {w), they will have a lien on the cargo for the sum that they have justifiably paid {x) ; though the fact that they have bond fide and reasonably paid a certain sum, is not conclusive that that sum is the basis on which the liability of the cargo owners is to be reckoned (y). The charterer of a vessel which renders salvage services is not entitled, in the absence of special clauses, to salvage for those services (z) unless the charter amounts to a demise, so that at the time of the salvage he is in possession of the vessel (a). Case. — The B., owned by A., rendered salvage services to the S., owned by K., and chartered to A., the charter not amounting to a demise. Held, that A. was entitled to salvage from the S. (z). Article 122. — Collision. The cargo laden on board a vessel at the time of collision cannot be sued in the Admiralty Court for the damage (b) even though it belongs to the owner of the ship, or to the charterer under a charter amounting to a demise (c). The owner of cargo on board a ship sued for collision can only be compelled to pay into court the amount of freight due from him to the shipowner {d). The owner of a cargo lost by a collision may, if both ships (to) The Ettrick (1881), L. R. 6 P. D. 127. (.r) Briijqs V. Merchant Traders' Co. (1849), 13 Q. B. 167; Cox v. J/a^ (1815), 4 M. & S. 152. (»/) Anderson, Trltton ^ Co. v. Ocean S.S. Co. (1884), 10 App. C. 107. For the conditions rendering a salvage agreement void, see The Sialto (1891), P. 175 ; The Mark Lane (1890), 15 P. D. 135. («) The Collier {X^QQ), L. R. 1 A. & E. 83 ; The Waterloo (1820), 2 Dods. 433 ; The Alfen (1857), Swabey, 189. The charterer may have a claim against the owner for delay or deviation in rendering the salvage ; TJie Alfen, ride supra. (a) The Maria Jane (1850), 14 Jur. 857 ; The Scout (1872), L. R. 3 A. & E. 512, and Article 2. (6) The Victor (1860), Lush. 72; The Leo (1862), Lush. 444. (c) If it were a demise, the charterer would be liable for collision caused by negligence of the chartered ship : Fcnton v. Duhlin S.S. Co. (1838), 8 A. & E. 835. (rf) The Leo (1862), Lush. 44 ; The Flora (1866), L. E. 1 A. & E. 45. COLLISION. 229 are at fault, recover lialf his loss against each ship (e) ; if the other ship is alone in fault, he may either recover the whole loss against her, or he may recover it from the carry- ing ship, unless prevented by exceptions in the contract of affreightment; if the carrying ship is alone at fault, he may recover the whole loss from her unless prevented by exceptions in the contract of affreightment (/). (e) The Milan (1861), Lush. 388 ; Thorogood v. Bryan (1849), 8 C. B. 115, to the contrary, is now overruled by The Beniina (1887), 13 App. C. 1. (/) See The Xantho (1887), 12 App. C. 503, and Articles 83, 84, ante. Oa the liability of a ship in rem for a collision, where the charter amounts to a demise, see The Tasmania (1888), 13 P. D. 110 ; and Article 2. ( 230 ) SECTION VIII. Performance of Contract : Unloading. Article 123. — Unloading under a Charter. At the port of discharge, the duty of providing and making proper use of sufficient means for the discharge of cargo lies in general upon the charterer (a). This duty must be fulfilled when : — (1.) The ship is at the place where the carrying voyage is to end (a). (Articles 34-37, 39.) Neither the master nor any agent of the shipowner is entitled to demand of the consignee before the ship's arrival, whether he will receive the goods consigned to him. A refusal to perform the contract made before the ship's arrival is not necessarily a breach of the contract, unless it is accepted as such by the shipowner, or is still unretracted at the time of the ship's arrival, in which case it is a continuous refusal amounting to a breach of the contract (&). (2.) She is ready to discharge (a). [Notice to the charterer of the above facts is not necessary, but when they are fulfilled the lay- days allowed for discharging begin. (Article 124.) (c).] (a) Per Lord Selborue in Postlcthwaitc v. Frceland (1880), 5 App. C, at p. 608 ; per Lord Esher iu Nelson v. Dnhl (1879), 12 Ch. D., at p. ?83. The ship- owner is not in the absence of a custom of the port bound to separate cargoes which have been loaded in bulk, e.g. bones, horns, piths and hoofs mixed. British Shipowners' Co. v. Grimond (1876), 3 Sc. Sess. Cases, 4th Ser., 968. For the custom of London as to timber see Aktieselkah Helios v. Ekman (1897), 2 Q. B. 83 (C.A.), and Article 43. (6) Ripley V. M'Clure (1849), 4 Ex. 34.5, as modified and explained by Hochster V. De la Tour (1853), 2 E. & B. 678 ; Frost v. Knight (1872), L. R. 5 Ex. 322; which cases are discussed in Johnstone v. Milling (1886), 16 Q. B. D. 460. (c) As to the time when the ship's responsibility ends, see Clacevich v. Hutcheson (1887), 15 Sc. Sess, C, 4th Ser., 11 ; The Jacderen (1892), P., per Barnes, J., at p. 358, and Article 127. Note 2, post, p. 237. UNLOADING. 231 Article 124. — Notice of Readiness to Discharge not required. In the absence of special contract or custom the ship- owner is not bound to give notice of his readiness to unload either to the charterer or to shippers or consignees under bills of lading {d). If, however, the shipowner's wrongful act or omission has prevented the charterer and consignee from learning by reasonable diligence of the ship's readiness to unload, they will to that extent be discharged (e). Case 1. — A ship carried goods uuder a bill of lading, " to be taken out in fourteen days after arrival, or to pay 10s. a day demurrage." The ship was ready to deliver on October 3, but the goods were not landed till October 29. The consignees pleaded : — (1) no notice of arrival : Held, unnecessary (/) ; (2) that the ship was wrongly entered in the custom- house as Die Treue instead of TheTreue: Held, that an entry by the ship- owner so inaccurate as to mislead a person using reasonable diligence, would have relieved the consignee from liability for demurrage ; but that it was not proved here that reasonable diligence had been used, and that therefore the consignees were liable ((/). Case 2. — Under a charter : " the ship to be addressed to charterers' agents free of commission," the ship, in breach of the charter, was addressed by the shipowners to other agents, who gave no notice to consignees, whereby the latter were sued for demurrage. It being proved that the charterer's agent would have given such notice : Held, that the shipowner could not claim demurrage, the liability to which arose from his own breach of contract (A). Unloading according to custom of port of discharge, see Articles 45 and 133. Demurrage in unloading, see Section IX. Article 125. — Dutg of Master as to Deliverij at Port of Discharge. In the absence of statutory provisions («"), customs of tlie port of discharge (/;;), or express stipulations in the charter (d) JIarnmn v. J/ani (1815), 4 Camp. 161; Harman v. Clarke (1815), 4 Camp. 159; Nelson v. Dahl (1879), ^kt Brett, L.J., 12 Ch. D. 583. (e) Houlder v. General Steam Xavlij. B. D. 486. • UNLOADING. 233 Case. — Goods were shipped and consigned to G. to be delivered in Z. under three bills of lading marked First, Second, Third, respectively. G. indorsed the bill of lading marked " First " to a bank as security for a loan. On the arrival of the goods at Z. they were landed into warehouses by the master, under a stop for freight due on them. G. produced to the warehouseman the bill marked "Second," unindorsed, and was entered in their books as the owner. G. then paid the freight, and gave a delivery order to P., to whom the warehouseman delivered bona fide and without knowledge of the bank's claim. Etld, that the warehouseman was not liable to the bank for wrongful delivery of the goods (.s). Article 126. — The Master's Power to land or carry on the Goods at Common Law. While the master is not, as a general rule, bound to unload except on production of the bill of lading, he is not bound to keep goods on board his ship if no bill of lading is produced. If the consignee or holder of the bill of lading does not claim delivery within a reasonable time, the master may land and warehouse the cargo in a statutable {t) warehouse at the expense of its owners, still preserving his lien on it, and it is his duty to do so rather than render the charterers, other than the defaulting coiisignees,liable for demurrage {u). Semhle, that if there are no statutable warehouses, delivery into which preserves his lien, he can still retain it by hiring a warehouse for the purpose (v). If, in unloading by the master, owing to the delay or absence of the consignee, difficulties arise, from the inaccu- rate description of goods in the bill of lading, the consignee must bear the resulting loss {w). If the master is forbidden to land the goods by the port authorities, or cannot obtain warehouse accommodation, he may, and must, deal with them in the manner both most (s) G/yn, Mills <^ Co. v. East and West India Dock Co. (1882), 7 Apj). C. 591. (i) I.e. a warehouse, on the goods in which the lien of the shipowner is pre- served by some statute, such as M. S. Act, 1894, § 494. (See Appemlix III.) (ft) Howard v. Shepherd (1850), 9 C. B., at p. 321 ; Erichsen v. Barkuorth, (1858), 3 H. & N. 601. This power is also given by e.xpress provision in most bills of lading. See article 127, Xote 1. (d) Mors Ic Blanch v. WUson (1873), L. R. 8 C. V. 227. (to) Shiricell v. Sha2)loc/c (1815), 2 Chit. 397. 234 UNLOADING. reasonable to preserve his lien, and most convenient in his judgment for their owner, at their owner's expense {x). Article 127. — Statutory Provisions as to Unloading. By statute (y), a shipowner is at liberty to land any goods imported in his ship from foreign parts into the United Kingdom, whenever (z) their owner fails to make entry of them at the custom house, or having made entry fails to take delivery of them within a certain time (a), whether such failure was caused by the fault of the goods-owner or not, provided it w-as not caused by the fault of the ship- owner (h). This statutory power may be excluded or varied by express agreement (c), or by the custom of the port (d). I. Time at which such landing may take place. (1.) If a time is named in the charter or bill of lading, at any time after the expiration of such time (e), and before the consignee is ready and offers to take delivery of the goods (/). (2.) If no time is so named, then at any time after the expiration of seventy-two hours, Sundays and holidays excepted, from the report of the ship at the custom house by the master (g). (x) Cargo ex Argos (1872), L. R. 5 P. C. 134 ; Mors le Blanch v. Wilson (1873), L. R. 8 C. P. 227 ; Edwards v. Southgatc (1862), 10 W. R. 528. See Article 138. (?/) Merchant Shipping Act, 1894,' §§ 492-501 ; see Appendix III. («) The Act only applies to the case of a consignee failing to be ready to take delivery when the shipowner is ready to laad his goods : ^wr Brett, M.R., Marzetti v. Hmith (1884), 49 L. T., at p. 583. (fl) Where the cargo is apportionable, if the consignee applies in time to take delivery of part, the shipowner is not entitled to land such part unless the consignee's failure to take the first part has prejudiced the shipowner in the delivery of the remainder : Wilson v. London Steam Co. (1865), L. R. 1 C. P. 61. (6) The Encrgic (1875), L. R. G P. C, at p. 316. (c) See Note 1, post. (d) Such custom may either apply to the wliole port, as in Marzetti v. Smith (1884), 49 L. T. 580 ; or to a particular trade, as in Aste v. Stumore (1884), 1 C. & E. 319, where a custom of the London grain trade to discharge on the (pay, if the merchant did not demand the grain within twenty-four hours of ship's arrival, was proved: Alexindi v. Eohinson (1861), 2 F. & F. 679, at p. 683, where a custom in the London fruit trade of immediate discharge was proved. (e) M. S. Act, 1894, § 493, s.la; and see Appendix IIL (/) § 493, s. 3. (\>. C, at p. 608 r Hick V. Bodocanachi (1891), 2 Q. B. 626 ; (1893), A. C. 22 ; Castlegate S.S. Co. v. Dempsey (1892), 1 Q. B. 854 ; Good v. Isaacs (1892), 2 Q. B. 555 : see also WyllieY. Harrison {\dS'o'),lii Sc. Sess. C, 4th Ser. 92. Where the charter is " to deliver as fast as the custom of the port will allow," and the bill of lading is silent, and there is no custom of the port : held, that the implied con- tract in the bill of lading to deliver within a reasonable time prevails : Fowler V. Knoop (1878), 4 Q. B. D. 299. As to damages for not loading " in regular turn," see Jones v. Adamson (1876), 1 Ex. D. 60 ; Taylor v. Clay (1846), 9 Q. B. 713. The cases of Ashcroft v. Crow Colliery Co. (1874), L. R. 9 Q. B. 540, and Wright v. Nno Zeahtnd Shipping Co. (1879), 4 Ex. D. 165, are not at first sight reconcilable with this proposition. In Ashcmft's Case the vessel was to be loaded with "the usual dispatch of the port," and the regulations of the port prevented the charterer, who had other vessels to load, from loading the ship so quickly as another merchant could have done. The vessel was loaded with the usual dispatch of such a vessel at that time with such a charterer ; but not with the usual dispatch at that time of such a vessel with an ordinary charterer, or with the usual dispatch of a vessel in the ordinary state of the port. The Court held that the vessel was not loaded with the usual dispatch, and Lord Blackburn (5 App. C, at p. 622) says : " this is probably right." If so the distinction must be that the cause of the delay was the charterer's own act, a "self-imposed inability," which constitutes absence of reasonable diligence. Thus, though the then state of the port is material in deciding what is " the usual dispatch," the then state of the charterer's engagements is not. The same remark applies to the authority of Wright v. Nen: Zealand Shipping Co. (1879), 4 Ex. D. 165. In that case there was no express stipulation as to the time of unloading ; the port was crowded and always was at that time of year, and nearly half the ships in the port belonged to the charterers (C.) ; there was an insufficient supply of lighters ; only two firms had them, and C. only employed one. The ship was detained seventy-two, instead of thirty-five days. In the Court of Appeal, Bramwell, Cotton, and Thesiger, L.JJ., though holding that C. was not bound to provide appliances not ordinarily used at the port, decided that an insufficient Bupply of lighters owing partly to C.'s own engagements was no defence. In Fostlethwaite v. Freeland, Cotton, L. J., held to his original opinion, but Brett and Thesiger, L.JJ., held that C. was not liable. Thesiger, L.J., distinguished his previous decision on three grounds: (1) in that case there was no express provision as to the custom of the port ; (2) the charterer's inability rested partly on the number of his own vessels ; (3) that the number of vessels, being ex- ceptional, could not be considered. This last reason appears very unsatisfactory in view of Burmcster v. Hodgson (1810), 2 Camp. 489, and Rodgcrs v. Forrester (1810), 2 Camp. 483. When the case came before the House of Lords in Fostlethwaite v. Freeland (1880), 5 App. C. 599, Lord Selborne distinguished Wright v. Nev} Zealand Shipping Co. on two grounds : (1) there was no express reference to the custom of the port ; (2) there was no evidence that reasonable diligence would not have enabled the charterer to provide sufficient lighters. Lord Blackburn expressly disapproved of the case, but curiously enough approved Ashcroft \. Crow Colliery Co. (1874), L. R. 9 Q. B. 540, which also, turned on a "self-imposed inability" of the charterer, owing to the number of vessels he had contracted to load, this being one of the grounds on which CUSTOMARY DISPATCH. 247 The clauses : — " To he cUscharf/ed with all dispatch " either " as customari/" (Zj or '■'■ accordiwi to the custom of the port :" (m) " To be discharged as fast as steamer can deliver" (7i), to which "as customary " (o) i.s sometimes added, all mean the same thing ; viz. : that the shij) is to be discharged as quickly as is consistent with the manner in which every vessel going to the port is dis- charged, and the existing circumstances at the time when the vessel actually comes to the port, so far as these circumstances are not caused by the charterer or consignee {pi). Thus, where the consignee has been prepared to deliver in the customary manner into warehouses controlled by the harbour authorities, but is prevented because the warehouses without default of his were full (o) ; or to deliver into trucks on the quay, a rule of the port not allowing cargo to be deposited on the quay, but is prevented because the railway company without default of his did not supply trucks (g) ; he is not liable for the subsequent delay. So, where all the work of loading or discharging is done by a dock company as agents of shipowner and charterer or con- signee, and the work is delayed, without fault of the charterer or consignee, by a strike of the dock company's men (I), or the crowded state of the dock quays (n), the charterer or consignee is not liable for the delay. "Custom" or "customary," does not mean "custom" in the CottoD, L.J., had based his judgment in Wright v. New Zealand Co. The dicta of some of the Lords Justices that " reasonable time " refers to ordinary circumstances, cannot now be supported, but must, after the decision in Hick v. Eodocanachi (1891), 2 Q. B. 626, affirmed as Hick v. Raymond (1893), A.C. 22, be read, "a time reasonable in the then circumstances, so far as they are not caused by self-imposed inabilities, or negligence on the part of the charterer, such as engagements to discharge more vessels than he can discharge in a reasonable time." In Hick v. Raymond, v. s., at p. 32, Lord Herschell expressly supported Wrighfs Case on the ground that the circumstances causing delay there were not, as in the case under appeal, beyond the control of the charterers. Wright v. Nev} Zealand Co. was followed by the Divisional Court, in Tillct v. Cwm Avon (1886), 2 Times L. R. 675, where the consignees of goods under a bill of lading with no stipulation as to unloading were owners of three out of the five bertlis at the port of discharge, but had ships already discharging there, whereby the ship was detained seven days before she could begin to discharge. It was held, that the consignees were liable for the delay as unreasonable. The relation of As/wroft V. Crow Colliery Co., vide supra, to Tapscott v. Balfour (1872), L. R. 8 C. P. 46, has been discussed : ante. Note to Article 39, p. 94. (0 Castlrqatc S.S. Co. v. Dempsey (1892), 1 Q. B. 854. (m) Postiethieaite v. Freeland (1880), 5 App. C. 608. (,?i) The Jacderen (1892), P. 351. Weir v. Richardson (1897), 3 Com. Cases, 20. (o) Good V. Isaacs (1892), 2 Q. B. 555. (p) Per Lord Esher in Castlegate S.S. Co. v. Dempsey, v. s., p. 859. I'l) Wyllie X. Harrison (1885), 13 Sc. Sess. C. 92. It would be otherwise if there was no such rule of the port, or the ship could have discharged at another quay, in which case the delay would fall on the consignee : Kruuse v. Drynan (1891), 18 Sc. Sess. C. 110 ; cf. Granite S.S. Co. v. Ireland (1891), 19 Sc. Sess. C. 124, (a case of fixed days). 1^48 CUSTOMARY DISPATCH. strict legal sense, but a settled and established practice of tbe port (r). " As customary " means " in the customary manner," and only indirectly refers to the time of discharge (s). Case 1. — A ship was chartered to unload at London " in the usual and customary time." The ship was discharged in her turn, with due diligence, but, owing to the crowded state of the docks, was detained forty-nine days longer than the usual time of discharge when the docks were not crowded. Held, that the charterer was not liable (t). Case 2. — A ship was chartered to deliver rails at Z., " the cargo to be discharged with all dispatch according to the custom of the port." The custom was to discharge such cargo by a warp and lighters, which were under the absolute control of a company, who discharged vessels in their order of arrival. Owing to the number of vessels, and the insufficiency of lighters, the vessel did not begin to discharge for thirty-one days. Lighters could not have been procured from elsewhere in sufficient time to lessen the delay. Held, that the charterer (C.) was only bound to use the means of dispatch habitually used at the port, and having used these with all the diligence in his power, was not liable for demurrage («). Case 3. — A ship was chartered to unload " iu the usual and customary manner ; " during her unloading the authorities stopped her discharge, and ordered her to leave her discharging berth. Held, that the charterers were not liable for such delay, for, as both parties were to concur in the act of unloading, the implied contract was that each would use reasonable dili- gence in performing his joart ; and the intervention of superior authority, which could not havebeen avoided by any diligence, excused both parties(a;). Case 4. — A vessel was chartered " to be discharged with all dispatch as customary." By the custom of the port, all the work of discharge was done by a Dock Company. By a strike of the Company's labourers, and without fault of the consignee, the discharge was delayed four days. Held, that the consignee was not liable (y). Case 5. — A vessel was chartered to discharge at Hamburg, " at usual fruit berth, as fast as steamer can deliver as customary." She reached a usual fruit berth on March 8, but owing to the crowded state of the ware- houses, into which the fruit must by the custom of the port be delivered by cranes, the warehouses and cranes being under control of the harbour authorities, her discharge did not begin till March 11. Held, as the delay arose without fault of the consignee and in the customary manner of dis- charge, he was not liable (z). (r) Per Lord Blackburn, approving Lord Coleridge in Postldhwaite \. Freeland (1880), 5 App. C, at p. 616 : see Article 8, ante. (s) Dunlop V. Balfour (1892), 1 Q. B., at p. 520 ; Castlcgate S.S. Co. v. Dcmpsey, ibid., at pp. 861, 862. (0 Rodgers v. Forrester (1810), 2 Camp. 483; cf. The Jaederen (1892), P. 351, where the clause was "as fast as ship can deliver," and she could not get to a quay. See also Weir v. Eichardson (1897), 3 Com. Cases, 20. (li) Postlcthioaite v. Free/and (1880), 5 App. C. 599. (x) Ford V. Cotesworth (1870), L. K. 5 Q. B. 549. The remarks of Baron Martin show that this decision must be limited to cases where no fixed time for loading has been stipulated for : see note (A), supra, p. 245, see also Sjoerds v. Luscomhe (1812), 16 East, 201. (is (1859), 11 Moore, P. C. 368, at p. 390. (/O KrallY. Burnett (1877), 25 W. R. 305 ; Lncis v. Marshdl {l^U), 7 M. & G. 729 ; Blakey v. Dixon (1800), 2 B. & P. 321. This will allow the introduction of usages of the particular trade, or practices of merchants creatino- rights between the parties to a contnict in respect of some matter which is not in terms provided for by the contract; see per AVilles, J., in Meyer v. Dresser (1SG4), 16 C. B., N.S. 646, at p. 662, and Article 8, ante. So Brown v. Byrne (1854)' 3 E. & B. 703 ; where a custom at Liverpool as to discount from freight was held binding : See also Rnsdan Sterna Naviyation Co. v. Dc Silvet (1863), 13 C. B., N.S. 610 ; The Norway (1865), 3 Moore, P. C, N.S. 245. In Meyer v. Dresser (1864), 16 C. B., N.S. 646, evidence of a particular method of payment of freight, tendered as a " general custom of merchants," was rejected as a mere mode of carrying on business ; and in Kirchner v. ]'enus, ride supra, evidence of custom as to freight was held inadmissible on the ground that one of the parties, being Ignorant of it, could not have intended, or be presumed to have intended to be bound by it: sed qi/CEi-e ; and see note, ante, p. 21. In Suart v. Bigland (C. A. Jan. 24, 1886), "to pay out of freight collected," was held to mean out of gross, not nett, freight. (0 Lidgett V. Perrin (1861), 11 C. B., N.S. 362; Andrew v. Moorhousc (1814), 5 Taunt. 435 ; and see Article 8. (m) Krall v. Burnett, vide supra. See also Mashitcr v. BuUer (1807), 1 Camp. 84, criticised by Brett, J., in Allison's Case, 1 App. C, at p. 218 254 FREIGHT. which also referred to "passa;:e money" included the passage money of steerage passengers. Held, inadmissible (ii). Case 3. — Goods were shipped under a bill of lading, which was not pro- duced at the trial ; but the shipping card contained the words, " freight payable here." There was also tendered oral evidence of conversations as to this clause. Held, ambiguous as to the time of payment, the oral evidence admissible, and the nature of the actual contract a question for the jury (o). Note 1. — " With Primage and Average accustomed." — Primage ■was originally a small payment made by the merchant to the master for care and attention bestowed on his goods, for which the master could sue (li). By the master's agreement with the shipowner, primage may and usually does belong to the ship- owner ; and in that case the master cannot contract in the bill of lading that it should be paid to him (q). Primage at the present time is a percentage on the freight paid to the ship- owner by the merchant : part of it is sometimes allowed to the merchant's shipping agent by the shipowner as his remunera- tion, being in effect a sort of commission. It is very rare to find a master receiving primage at the present day. Average accustomed, or petty average, refers to certain small charges and expenses which used to be borne partly by ship and partly by cargo ; the charge is now obsolete. Note 2. — Freight is usually payable, under a voyage charter, in accordance with the express provisions of the charter, thus : a certain proportion of the freight, or a certain lump sum on sailing ; remainder on delivery, either by cash or by specified bills. If the charter is a round charter, or there are loading and discharging expenses in the course of the voyage, such disburse- ments are usually by the charter to be advanced against the freight by the charterers or their agents. The following time charter clause speaks for itself : — " The charterers shall pay for the use and hire of the said vessel at the rate of per gross register ton per calendar month, and at and after the same rate for any part of a month ; time to continue until the delivery to the owners, unless lost, at London. Should the vessel be lost without being heard of, hire shall cease to be due fifteen days after the date on which she left her last port." Where the charterers propose to put the ship up as a general ship, and the captain may sign bills of lading at a lower rate of freight than the charter, the shipowners usually protect them- selves thus : " any difference between charter and bill of lading (n) Lewis v. Marshall (1844), 7 M. & G. 729. (o) Lidget Y. Perrla (1861), 11 C. B., N.S. 362, distinguishable from Kra.U v. Burnett by the special facts. (j)) Charkton v. Cotesworth (1825), R. & M. 175; Best v. Saunders (1828), M. & M. 208. See Howitt r. Paul (1878), 5 Sc. Sess. C, 4th Ser. 321. iq) Caughey v. Gordon (1878), 3 C. P. D. 419. ADVANCE FREIGHT. 255 to be settled at port of loading before sailing ; if in vessel's favour to be paid in cash, at current rate of exchange less in- surance ; if in charterer's favour, by captain's draft, })ayable three days after ship's arrival at port of discharge." Note 3. — Stipulations as to the payment of freight in the bill of lading vary very much. It is very common to find the freight made due and payable "on shipment of the goods," or " in exchange for bills of lading," or " on or before the departure of the vessel." A very usual clause is " Freight for the said goods with primage to become due on shipment, and to be paid in London in cash without deduction, ship lost or not lost." Where the freight is to be paid on delivery it is sometimes secured thus : " Freight and primage for the said goods to be paid at destination, but if the consignee for any reason, perils of the sea excepted, refuses to pay the same, shippers hereby undertake to pay amount here on demand," or " to be delivered after safe arrival at Z. to G., freight for the said goods as per margin being paid first in London." The clause " ship lost or not lost," almost always appears. A proviso is sometimes inserted for the payment of double freights on goods incorrectly described. Article 137. — Advance Freight. Where money is to be paid by the shipper to the ship- owner before the delivery of the goods for ship's disburse- ments (r) or otherwise, such payment will be treated as an advance of freight, or as a loan, according to the intention of the parties, as expressed in the documents (s). A stipulation that it shall be paid " subject to insurance," or " less insurance," will indicate that the payment is in advance of freight {t). (?•) Under a clause " Cash for disbursements to be advanced at port of loading on account of freight not exceeding £150 in all," tlie charterer is not entith'd to advance the maximum sum named if the shipowner prefers to find the cash himself. The Primula (18i)4), I'. 128 ; see also The Red Sea (1896), P. 20. («) Allison V. Bristol Marine Jusurance Co. (1S7G), 1 App. C. 209, at pp. 217, 233, in which all the cases are discussed by Brett, J., and Kirchner v. Venus (1859), 12 Moore, P. C. 361, is explained. (0 Allison V. Bristol Co. (1876), 1 App. C, at p. 229 ; I/icks v. Shield (1857), 7 E. & B. 663 ; Jackson v. Isaacs (1858), 3 H. & N. 405, in which the charterer was to deduct cost of insurance from advance freight; Fratjes v. Worms (1865), 19 C. B., N.S. 159, in whicli it was held tliat general average on advance freight was to be paid by the charterer. 256 ADVANCE FB EIGHT. If it is an advance of freight, it must be paid, though the goods are after the due date of payment (tt) but before pay- ment, lost by excepted perils, and it will not be recoverable from the shipowner if the goods are after payment so lost (x). It will be recoverable if the goods are not lost by excepted perils (y), or if the shipowner has not fulfilled the condition precedent, of the starting within a reasonable time of a seaworthy ship on the agreed voyage (z). If advance freight be not paid at the time specified, there will not be a lien for it on the goods carried, without express stipulation (a). Payments for ship's use by the person liable to pay freight, before such freight is due, without authority from the contract of affreightment, will be treated rather as loans than as prepayment of freight (h). If the payment in advance is regarded as a loan by the shipper to the shipowner, whether on security of the freight or not (c), it is repayable, if freight to that amount be not due from the shipper, whether the ship be lost or not, and it cannot be insured by either party (d). (m) Cf. Oriental S.S. Co. v. Tylor (1893), 2 Q. B. 518, where the freight being due on signing bill of lading, it was held payable where the ship was lost before signing bill of lading, but after it should have been presented and signed ; otherwise if the loss is before the due date of payment. Thus in Smith v. Pymnn (1891), 1 Q. B. 742, where the freight was payable in advance, "if required," and the ship was lost before request, it was held the freight was not payable: and in Weir v. Girviii ^- Co. (1899), 1 Q. B. 193, where the freight was payable three days after sailing and part of the cargo was burnt before sailing, it was held that freight was not payable on the cargo burnt. (a;) Anonymous Case (1G84-), 2 Shower, 283; De Silcalc v. Kendall (1815), 4 M. & S. 37 ; Byrne v. Schiller (1871), L. K. 6 Ex. 20, 319 ; Saunders v. Drevj (1832), 3 B. & Ad. 445. For the explanation of tliis rule, which is peculiar to English law, and probably arose from the long voyages of the East India trade, see Brett, J., at 1 App. C. 223. (2/) G.Indian Peninsnlar It. Co. v. TiirnbHll (1885), 53 L. T. 325. Eodocanachi V. Milhurn (1886), 18 Q. B. D. 67 ; Dufonrcet v. Bishop (1886), 18 Q. B. D. 373, in which the advance freight was in effect recovered as part of the damages for non-delivery of the goods. («) Ex parte Nyholm, in re Child (1873), 29 L. T. 634. Cf. Smith v. Pymm (1891), 1 Q. B. 742, on the wording "one-third freight, if i-equired, to be advanced." (a) Iloro V. Kirchner (1857), 11 Moore, P. C. 21 ; Kirchner v. Venus (1859), 12 Moore, P. C. 361 ; Tamvaco v. Simpson (1866), 19 C. B., N.S. 453, see the judgment of Willes, J. ; Ex parte Nyholm, in re Child (1873), 29 L. T. 634, and see Articles 150, 155, 157, post. (b) Tanner v. Phillips (1872), 42 L. J. Ch. 125 ; The Salacia (1862), 32 L. J. Adm. 43, and see Article 147, s. vii. (c) It mav not involve a set-off against the freight. (d) Watson v. Shaiikland (1873), L. P.. 2 H. L. Sc. 304 ; Manfield v. Maitland ADVANCE FREIGHT. 257 Case 1. — Goods were sliippcd under a charter " to be delivered on beiug paid.freight £5 per tun delivered . . . Cash for ship's disbursements to be advanced to the extent of £300, free of interest, but subject; to insur- ance . . . The freight to be paid on unloading and right delivery of cargo as follows, in cash, less two months' interest at 5 per cent., aod if required £300 to be paid in cash on arrival at port of loading, less two months' interest." D., agent for the charterer, C., advanced £300; the ship was lost on the voyage, and C. claimed £300 from A., the shipowner, as a loan. Held, that the charter, and the provision for insurance, showed conclu- sively that the ailvance was for freight and not for loan, and as such could ■not be recovered, though the ship was lost (e). Case 2. — A ship was chartered, " freight to be paid thus : £1200 to be advanced the master by freighter's agents at X., and to be deducted with Ij per cent, commission on the amount advanced, and cost of insurance, from freight oa settlement thereof, and the remainder on right delivery of the cargo at port of discharge, in cash . . . the master to sign bills of lading at any cm-rent rate of freight required without prejudice to the charter, but not under chartered rates unless the difference be paid in cash." The shippers paid the £1200, and required the master to sign bills of lading under chartered rates, putting off" the payment in cash of the ■difference, £700, by excuses. The ship was lost on the voyage. Held, the £1200 could not be recovered back from the shipowners, and the shipowners could recover the £700, the intention being that it should be advance of freight, payable whether the ship was lost or not (/). Case o. — Groods were shipped under a charter, " Four-fifths of freight calculated on quantity shipped to be advanced and paid in cash in one month from the vessel's sailing from her last port in Great Britain, steamer lost or not lost." The excepted perils did not include the master's negligence. She sailed July 12, and was lost through the negUgence of her master on July 19, the loss being known on July 21 ; on July 26 the freighter paid four-fifths of Ireight to the charterer. Held, that the freighter could recover such payment, as '' lost or not lost" only referred to losses by excepted perils, and not to a loss by master's negligence {g). Cane 4. — Goods were shipped under a charter, " freight to be paid, half in cash on unloading and right delivery of cargo, and the remainder by bill in London at four months' date. The captain to be supplied with cash for shiji's use." Under the last clause, the master drew a bill for £219 on the freighters, which was accepted and paid. The ship was lost on the voyage. Held, that the sum of £219 was a loan, repayable by the ship- owner whatever the result of the voyage, aud consequently not insurable by the charterer (/(). Case 5. — Goods were shipped under a charter, " Sufficient cash for ship's disbursements to be advanced, if required, to the captain by charterers (C.) on account of freight at current rate of exchange subject to insurance only." The whole freight was £735. C. advanced at X. £160, being (1821), 4 B. & Aid. 582 ; Allison v. Bristol Marine Insurance Co. (1876), 1 App. C. 229, 253. (c) Hicks V. Shield (1857), 7 E. & B. 633. See also Allison v. Bristol Insurance Co., vide supra; and for n curious case of advance freight, see The Thyatira (1883), 8 P. D. 155. (/ ) Byrne v. Schiller (1S71), L. R. 6 Ex. 20, 319. That the shipowners would have no lien for such a difterence without an express agreement, is shown by Gardner v. Trechmann (1884), 15 Q. B. D. 154. (,(/) G. Indian Pen. R. Co. v. Tnrnbidl (1885), 53 L. T. 325. (h) Manficld V. Maitland (1821), 4 B. & Aid. 582. S 258 BACK FREIGHT. allowed £5 for insurance. C. did not insure the £160. The ship was lost by perils not excepted, and C. claimed to recover £8500, the price for which the goods were sold " to arrive," less £575 balance of freight. The shipowners claimed to deduct £735, the whole freight. Held, they were not entitled to do so, as O.'s damage was the amount he would have to receive, less the amount he would have to pay, on arrival of the goods (i). Case 6. — Under a charter, with a clause " One-third freight, if required, to be advanced, less 3 per cent, for interest and insurance," the ship sailed and was wrecked on her voyage. After the wreck, the shipowner "required" payment for the first time of one-third freight. Held, that the charterer was under no liability to pay advance-freight till requirement by the shijjowner, and that this requirement could not be made when the voyage could not be performed (k). Article 138. — Back Freight. When the ship is either ready to deliver cargo at the port of destination, or is prevented by excepted perils from reach- ing such port (T), but the merchant does not take delivery or forward instructions within a reasonable time, the master, if he does not tranship in the interests of the shipowner (m), has the power and duty to deal with the cargo in the owner's interest at the owner's expense. He may land and warehouse it, or, if this is impracticable, may carry it in his ship, or forward it in another ship to such place as may be most convenient for its owner, and can charge the owner with remuneration for and expenses of such carriage under the name of " hach freight " {n). Case. — Oil was shipped from X. to Havre, under a bill of lading, " Goods to be taken out within twenty-four hours after arrival." On reaching Havre the landing of oil was forbidden ; attempts to land it at other ports near failed. The ship returned to H., transhipped the oil into lighters in the harbour, unloaded the rest of the cargo, reshipped the oil and brought (0 Rodocanachi v. Milhurn (1886), 18 Q. B. D. 67. See Dufourcet v. Bishop (1886), 18 Q. B. D. 373. (A) ,Smith V. Fyman (1891), 1 Q. B. 742; but see Oriental S.S. Co. v. Tylor (1893), 2 Q. B. 518, where on the clause " one-third of the freight to be paid on signing bill of lading," it was held recoverable, where shippers had delayed presenting bill of lading till after ship had sunk, and then refused to present it, or pay advance freight, as damages for not presenting bills of lading. (/) Seinblc, that the shipowner can here also recover similar expenses and baek freight incurred in interests of cargo-owner ; vide Notara v. Henderson (1870), L. K. 5 Q. B. 346, and Articles 101, 103. Where the voyage is prevented by its illegality, back freight may be recoverable where such illegality was not known to the shipowner, but not where it was : Ileslop v. Jones (1787), 2 Chit. 550. (m) Article 103. (n) Cargo ex Argos (1873), L. R. 5 P. C. 134, settling the doubt of Mansfield, C.J., in Christy v. Row (1808), 1 Taunt. 300, at p. 314. See Article 126. FULL FREIGHT. 259 it back to L. The shipper made no request for the delivery of the goods at Havre. Held, that the shipowner was entitled to the freight and expenses of the return journey to X., as well as the original freight from X. to H. (n). Bead Freight. See Article \('A,^ost. Article 139. — Shipowner s Bight to Full Freight. The shipowner is entitled to the full freight in the charter or bill of lading : — 1. When he delivers the goods in a merchantable con- dition (o) at the port of destination {p), or is ready to deliver them, but the consignee does not take delivery within a reasonable time {q). 2. Where a lump sum as freight has been stipulated for, and he has delivered, or is ready to deliver, some part of such goods (r). 3. Where, the necessity of transhipment having arisen, he has transhipped, and so caused the goods to be delivered, even though at a less freight than that originally contracted for (s). 4. Where he has been prevented from delivering the goods solely by the default of the freighter, as in refusing to accept delivery at the port of destination it), or in requiring delivery of the goods at an intermediate port {u), or in refusing to name a safe port to which the ship can proceed, and enter (x). (o) Asfar V. BlunJ.cU (1896), 1 Q. B. 123. (js) Delivery need not be to the consignee, if it is in a manner approved bv him : see Fcnwick v. Boyd (1846), 15 M. & W. 632. (q) Duthic v. Hilton (1868), L. R. 4 C. P. 138, at p. 143 ; Cargo ex Argos (1872), L. R. 5 P. C. 134; and per Lord Mansfield, in Luke v. Zyde (1759), 2 Burr. 883. (?•) Vide Article 140. (s) Shipton V. Thornton (1838), 1 P. & D. 216 ; Matthews v. Gibbs (1860), 30 L. J. Q. B. 55, is not inconsistent with this, but turns on specific facts ; and see Article 103. (i) Cargo ex Argos, vide snptrii. («) The Bahia (1864), B. & L. 292 ; Carijo ex Galam (1863), B. & L. 167 ; The Sob/omsten (1866), L. R. 1 A. & E. 293; Luke v. Lgde (1759), 2 Burr, at p. 888. (x) The Teutonia (1872), L. R. 4 P. C. 171. S 2 260 FULL FREIGHT. Case 1. — F. shipped cement under a bill of lading: — "Freight to be paid within three days after the arrival of ship before the delivery of any por- tion of the goods specified in this bill of lading." The vessel arrived, but on the day of arrival a fire accidentally arose which necessitated the scuttling of the ship, and the cement was so acted ujion by water as to cease to exist as cement. Held, that the master must be ready to deliver before freight was payable, and therefore no freight was due (2/). Case 2. — F. shipped petroleum on A.'s ship to be delivered at Havre, to be taken by F. within twenty-four hours of ship's arrival at Havre. At H. the port authorities refused to allow the petroleum to be landed or the ship to come to the ordinary place of discharge in the port. The ship was allowed to anchor in the outer port, and F. could have taken delivery of the petroleum there into lighters. F. made no application of any sort for the goods to the ship. Held, that A. had done all that was required on his part, and was entitled to full freight (2). Case 3. — F. shipped goods from X. to Z. on the French ship S. During the voyage, from sea damage, the vessel put into Y. French law requires a " certificate of innavigability " before the voyage could be abandoned. Before the legal process of obtaining this certiBcate was completed, F. arrested the ship, and obtained the cargo without the master's consent. Held, that as the reasonable time allowed the master in which to tranship or repair had not expired, F. had no right to seize the cargo, and was liable for the whole freight (a). Case 4. — C. chartered A.'s ship to carry a cargo from X. to Z. Unknown to A. there was a resjyoiideutkc bond on the cargo. On the voyage to Z. the ship was stranded at Y., and while there the cargo was seized by the bondholder and sold, C. not interfering. Held, that as A. was prevented from carrying to Z. by the act of C, he was entitled to full freight to Z. (b). Case 5. — A German vessel was chartered to proceed to Y. for orders, and thence to a safe port as ordered in Great Britain, or on the continent between Havre and Hamburg. On reaching Y. the ship was ordered to Dunkirk, then safe, but before the ship's arrival there, owing to war between France and Germany, the vessel could not safely enter, and accordingly proceeded to Dover. The charterers required her to proceed to Dunkirk, and refused to name any other port, or to pay freight at Dover. Held, that as the charterers had failed to name a port safe on arrival, the sliip was discharged from the necessity of completing her voyage, and the shipowner was entitled to full freight at Dover (c). (y) D'iMic V. mitoa (1868), L. E. 4 C. P. 138 ; Asfar v. Blundcll (1896), 1 Q. B. 123 (dates). {z] Cirgo ex Argos (1873), L. R. 5 P. C. 134. (a) The BaMa (1864), B. & L. 292. If the goods-owner tenders full freight at an intermediate port, the master is bound to deliver; The Putrid (1863), L. K. 3 A. & E. 436. Blasco v. Fletcher (1863), 14 C. B., N.S. 147, turns on a special authority from the master. (6) Cargo ex Galam (1863), B. & L. 167. See also The SMomsten (1866), L. R. 1 A, & E. 293. (c) The Tcutoaia (1872), L. R. 4 P. C. 171. LUMP FREIGHT. 2G1 Article 140. — Lumi^ Freight. Lump freight is a gross sum stipulated to be paid for the use of the entire ship; it will, therefore, be payable if the shipowner be ready to perform his contract, though no goods are shipped, or though part of the goods shipped are not delivered. If any goods are shipped, some must be delivered to entitle the shipowner to lump freight {d). In S.S. Heatlificld v. Bodenncher (e) a ship was guaranteed by owners to carry 2600 tons dead weight; and the charterer contracted to load a full and complete cargo at a named rate " all per ton dead weight capacity as above." The ship could carry 2950 tons, and the Court of Appeal held freight payable at the named rate on 2950 tons : sed qusere. In S. S. Botherfield V. Ticeedy (/) the charterers, in a Danube berthnote, agreed to load a full cargo of wheat at a named rate per ton on the guaranteed dead weight capacity of 4280 tons. " Owners guarantee steamer can carry 4250 tons dead weight." The ship carried a full cargo of 3950 tons, which with bunkers made up the 4250 tons guaranteed. Held, freight was onl}' payable on 3950 tons. Both these cases seem to strike out of the charters part of their provisions. Case. — A ship was chartered to load a full carsro, jiroceerl to Z. and there deliver the same oa being paid " a lump freight of £315." On the voyage, jiart of the cargo, properly loaded, was lost through perils of the sea. Held, that on delivery of the remainder, the full freight of £315 was payable (y). (ped under a lump-sum charter were under water for two days in the Thames. They were condemned by the Sanitary Authority as unfit for human food, and were unmerchantable as dates. They, however, looked like dates, and were of considerable value for distillation into spirit. Held, by the Court of Appeal that as the thing delivered was not in a business sense the thing shipped, no freight was payable (k). 2. On a contract for a lump sum as freight, the ship- owner is entitled to full freight, though he delivers less goods than the quantity named in the bill of lading, if he delivers all that were loaded (J). Statements of contents or (A) Dakin v, Oxley (1864), 15 C. B., N.S. 646, jK-r Willes, J., at pp. 664 ct seq.: Mdhuish v. Garrett (1858), 4 Jur., N.S. 943; Shields v. Davis (1815), 6 Taunt. 65 ; Asfar v. Blundell (1896), 1 Q. B. 123. («) Dakin v. Oxley, vide supra. Ik) Asfar V. Blundell (1896), 1 Q. B. 123. Qucero whether this decision was right; the consignees took the cargo and sold it for £2400. Perhaps they could not have been compelled to take delivery, but, if they did, it is submitted they ought to pay freight. The distinction between J/eZ/cn'sA v. Garrett, vide supra, and Duthie v. Hilton (1868), L. K. 4 C. P. 138, where cement was affected by water, so as to become a solid mass, and it was held that no freight was due, is, I suppose, that the substance there was something different from the substance loaded, though the brick-dust and the solid cement would seem equally useless to the shipper. Willes, J., in Dakin v. Oxley, at p. 667, puts the question thus : " What was the thing for the carriage of which freight was to be paid, and whether that thing, or any and how much of it has substantiallv arrived." (0 Davidson V. Gwynne (1810), 12 East, 381; Blanchett v. Powell (1874), L. R. 9 Ex. 74; Meyer v. Dressa- (1864), 16 C. B., N.S. 646 ; The Norway (1865), FREIGHT PRO RATA. 263 weight contained in the bill of lading are binding against the shipper or consignee for the pnrposes of freight, if the goods are delivered as received {m). Case 1. — A bill of lading showed 300 tons to be shipped; only 217 tons were delivered. On proof that no more had been loaded ; lield, that the whole freight was due (■«). Case 2. — A ship was chartered to pay freight at 7s. per quarter delivered to consignee, but, if any part was delivered damaged, freight should be paid at captain's option, eitlieron invoice quantity loaded as per bill of lading, or half freight on damaged portion. Eighty quarters were damaged, and the captain elected to receive full freight on the bill of lading amount. This was " 2368 quarters, quantity and quality unknown," but only 226G quarters were delivered. Held, that the shippers were liable to pay on the bill of lading amount (o). Article 142. — Freight pro rata for sJiort deliverij. If the siiipowner, contracting to load a full cargo, only loads and carries part of it (j;), or if, having loaded a full cargo, he only delivers part of it, he will, in the absence of a stipulation for lump freight (r/), only be entitled to freight jpro rata on the quantity delivered ; and the freighter can counter-claim for short delivery not solely caused by ex- cepted perils, or by the vice of the goods themselves (r). 3 Moore, P. C, N.S. 245 ; Jcssd v. B.dh (1867), L. R. 2 Ex. 267. By express agreement the cargo-owner may have a right to deduct the cost of cargo short delivered from the freight, as in H.S. Gurston v. ifickic, Bormaii ij- Co. (1886), 18 Q. B. D. 17, where the clause was: "less cost of cargo delivered short of bill of lading quantity." (»«,) Tully V. Tcrnj (lS7d), L. R. 8 C. P. 679. See also Covks v. Bingham (1853), 2 E. & B. 836. It may by agreement be made binding as against the shipowner : Lisliman v. Christie (1887), 19 Q. B. D. 333, where the clause was : " the bill of lading to be conclusive evidence of the quantity received, as stated therein." (?i) Blmichct V. Powell, vide supra. (o) Tnlhi V. Terni, ride s>(j:nt. See also Jessel v. Bath (1867), L. R. 2 Ex. 267. I2O Ritchie V. Atkinson (1808), 10 East, 295. (jl) Willes, J., suggests in Dakin v. Oxleij, vide sub, an exception if the delivery of the whole cargo is made a condition precedent to the payment of any freight; but such a case is rare. At Grimsby there is a custom in the timber trade that no freight is payable till complete delivery of the cargo. Stejihens v. Wintringhmi (1898), 3 Com. Cases, 169. (r) Dakin v. Oxle i/ (ISQi), 15 C. B., N.S., at p. 665; The Norway (1865), 3 Moore, P. C, N.S. 245; Spaight v. Farnworth (1880), 5 Q. B. 1). 115; as to French law, see Blanchct v. Powell (1874), L. R. 9 Ex. 74; as to Prus.sian law and usage, see Meyer v. Dresser (1864), 16 C. B., N.S. 646. 264 FREIGHT Note. — Where, after shipment, part of a cargo is burnt, there- being an exception of fire, the shij)per is relieved from replac- ing it, or from paying freight on it ; the shipowner is not entitled to demand freight on it, or fresh cargo in its place, but may himself furnish fresh cargo in its place, on which he will be entitled to freight. This appears to be so whether the freight is a lump freiglit or per ton (s). Case. — A ship was cliaitered to proceed to X. and there load a complete cargo of hemp, and proceed to Z. and deliver the same on being paid freight at £5 per ton. A complete cargo was not loaded. Held, that the shipowner could recover freight j«'o rata on the quantity delivered, and the freighter had a cross-action for failure to load a complete cargo (t). Article 143. — Freight pro rata for delivery short of 2:)lace of destination. If the contract is governed by English law {u), where the shipowner delivers the goods to the merchant short of the port of destination, he can only claim freight proportional to the amount of voyage completed, known as freight p-o rata itineris peracti, or freight pro rata, if an express or implied agreement to that effect exists with the merchant {x). Such an agreement will not be implied from the mere fact that the merchant receives his goods at the request of the shipowner at an intermediate port (y). To justify a claim for pro rata freight there must be such a voluntary acceptance of tlie goods by their owner, at a point short of their final destination, or such a dealing, or neglect to deal with them there, as to raise a fair in- ference that the further carrying of the goods, (the ship- owner having a right to carry them further), was intentionally dispensed with by the goods-owner (z). (s) Aithm LUhurn v. Ernsthwsni (1894-), 1 Q. B. 773 (C.A.). (0 Bltchk V. Athnson (1808), 10 East, --'OS. («) For a foreign ship under Englisli charter see The fnro rata freight. ((') Christi/ V. Bow (1808), 1 Taunt. 299. 266 FREIGHT PRO RATA. master had not lost his right to tranship, and that the cargo owners were therefore liable to pay j)ro rata freight (/). Case 3. — A ship was chartered to sail from X. to Z. ; owing to restraint of princes she was unable to {proceed, and put back to Y. ; the charterers refused to accept the cargo at Y. ; the shipowner unloaded it after notice to the charterers, and it was sold by consent without prejudice to questions in dispute. Held, that there was no liability in the charterers to pay freight pro rata (g). Case 4. — A ship was chartered to proceed to Taganrog and deliver cargo. Owing to ice in the Sea of Azof she could get no further than Kertch, 300 miles by sea from T., and would have had to wait till the spring to com- plete her voyage. The captain proposed to discharge the cargo ; the con- signees objected. The captain delivered the cargo to the custom-house at Kertch, claiming a lien on it for freight ; the custom-house gave it up to the consignees, who gave the captain a receipt for it, but declined to pay freight. Held, that the shipowner was not entitled to full freight, for he had not completed tiie voyage, nor to pro rata freight, for there was no express or implied contract to pay it (h). Case 5. — C. chartered a ship to carry a cargo from X. to Q. and deliver it ; to load another cargo at Q. and carry it to Z., the freight for the voyage out and home, payable on final delivery of the cargo, to be £1300. The ship reached Q. and discharged ; she then loaded a cargo and proceeded to Z., but on the voyage suffered great dama>;e and put into Y., where the ship and one-third of the cargo were abandoned. The captain left for England, leaving instructions with the vice-consul to forward the remainder of the hides to Z., and they were forwarded. Held, that C. was liable to pay freight p^'o rata from Q. to Y. ; that he was not liable for freight from X. to Q. ; nor could the shipowner claim freight from Y. to Z., as the vice- consul and cnptain in tlieir combined action had acted as agents of C. and not of the shipowner (i). Case 6. — A ship on a voyage to Z, was, owing to perils of the sea, abandoned by her crew. Slie was found derelict by another ship, which brought her into an English port. Held, that upon satisfying the cargo's liability to the salvors the cargo owners were entitled to their goods without payment of any freight, tlie contract of affreightment being at an end by justifiable abandonment of the ship, and the shipowner having therefore no right to carry on by transhipment (k). Case 7. — A ship, S., on a chartered voyage met with storms, and signals of distress were made to the ship R. The S.^s master and crew went on board the R., but without taking clothes or baggage ; on seeking to return to the S. they were not allowed ; the master of the R. sent some of his own (/) The Sohlomstcn (1866), L. R. 1 A. & E. 293. Se7nhle, the shipowner was entitled to full freight, as the master, being entitled to tranship, was prevented by the default of the cargo owners; see The Bahia (1864), B. & L. 292. The case cited is distinguishable from such cases as Hopper v. Burness (1876), 1 C. P. D. 137, as there the sale was by the master; here the master was in no way responsible for it. (. 90. Ip) Hunter v. Prinsep (1808), 10 East, 378. (g) This has been doubted by Pollock, C.B., in Atkinson v. Stephens (1852), 7 E.K. 567. (r) Atkinson v. Ste2^hens, vide supnt. (s) There may be an express agreement for the pavment of freight outside :that in the bill of lading: J/edley v. Lapagc (1816), Holt, 392. (0 See Article 8. 2G8 AMOUNT OF therefore no freight is due from him for their carriage, but a freight whether substantial {u), or nominal {x), is inserted in the bill of lading as payable, that i'reight will be payable by assignees of the bill of lading or persons taking delivery under it, other than the owner or his agents. Case 1. — E., master of a -ship owned b_v A., carried a cargo of wheat " on owner's account," purchased on the credit of R., to whom E. gave bills of Lading for " wheat shipped on owner's account, deliverable to P.'s order at freight of Is. per ton," and bills of exchange for the price, which A. accepted. A. had mortgaged his ship to M. A. sold the cargo in transitu to K., the sale note running "as cargo is coming on ship's account, freight to be com- puted at £2 15.S. per ton." A. indorsed the bill of lading, which he had received from P. on his acceptance of the bills of exchange, to K. with a note r " The freight assigned is at the rate of £2 15s. per ton, and not the nominal amount of Is. per ton." On ship's arrival, M., as mortgigee, took posses- sion, and claimed freight at £2 15s. from K., who refused to pay more than Is. Held, tha't M. was only entitled to the freight named in the bill of lading, the larger .'•um being in reality part of the purchase-money, and no claiui of (/uantum mei'ioit being possible in face of the express contract (?/). Case 2. — D., as agent for C, purchased and paid for rice to be carried tO' Z. in C.'s ship. The rice was then shipped under bills of lading, "to be delivered to D. or assigns, freight for the said goods at £1 5s. per ton." C. assigned the freight to M. durirg the voyage. Held, that oq arrival D. was bound to pay to M. the freight in the bill of lading, and was not entitled to set off the price of the rice due from C. to himself (z). Where freight is payable on goods according to their weight or measurement, and owing to swelling (a), expansion after hydraulic pressure (h), or shrinkage, tlie same goods- are larger or smaller at the port of destination than when loaded, freight will be payable in the absence of express- stipulation or usage on the amount shipped, and not on the amount delivered (c). ((() Weguclin v. Cel/tcr (1873), L. H. 6 H. L. -Jstj. (.r) Keith y. Burroxcs (1877), 2 App. C. (336 ; Bruvt, v. North (1852), 8 Ex. 1 ;; Turnrr V. Trustees of Liverjioo/ Bucks (^1851), G Ex. 543. The shipowner may, however, have a lien as unpaid vendor for the balance of the price, representing what would be freight if the shipowner and original goods-owner were different r Sica7i V. Barber (1879), 5 Ex. D. 130. (?/) Keith V. Biirroirs (1877), 2 Apj). C. 636. (z) Wegueiin v. Cellier (1873), L. R. 6 11. L. 286. (a) Gibson v. Sturge (1855), 10 Ex. 622; ,'oirie, ride s'lprit, and see Article 46, note (»i)> P- 107. (i) The SkmidiiKiv, ride suprii. The two c;ises of Moller v. Living (1811), 4 Taunt. 101, and Gcraldes v. Donison (1816), Holt, N.P. 346, are not inconsistent with this. In Mollir v. Liviiir/ there was a contract to pay freight at £14 per last on a qiinntity stated in the bill of lading as " 100 la^ts in 2092 bags." The voyage was from D. to L. There were 2092 bags on board, and they contained 100 lasts by L. measure but not by D. measure : held, that tlie specific descrip- tion in the bill of lading negatived any question of different measures, and freight was payable ou the 100 lasts. If the description had been simply " 100 lasts,"' the 270 FREIGHT: WHEN PAYABLE. Article 145. — Freight : ivlien jjai/aUe. When freight is payable on delivery of the cargo, pay- ment and delivery are concurrent acts (k). The merchant is not entitled to have the goods, unless he is ready to pay the freight. The shipowner is not entitled to the freight, unless he is ready to deliver the cargo (I). The master is entitled to refuse to discharge the cargo, unless freight is paid for each portion as delivered (m) ; seinhle, also that the merchant need only pay freight pari passu witli delivery. question would arise, and it did in Geralcles v. Donison, vide supra, where, follow- ing a usage of merchants, it was held that the bill of lading weight was subject to check by weighing at the port of delivery; the Court there suggesting that the clause " weights unknown " in the bill of lading introduced the custom. But in Tully v. Tcrrn (1873), L. R. 8 C. P. 679, that clause was held not to interfere with the captain's right under the charter to be ])aid freight on the invoice quantity in the bill of lading; the object of the clause being explained to be '' to protect the captain against any mistake that might occur in the invoice quantity in the bill of lading, in case of alleged short delivery, or deterioration, not caused by his default." Vide supxi. Article 52. For freight on fodder, under a special cattle contract, see Holland v, Pritchard (1896), rJ^Times L. R. 480. Under the Chamber of Shipping Coal Charter, 1896, freight may be paid at receiver's option on quantity delivered or on bill of lading quantity, less 2 per cent. In such a case, the charge for stevedoring will be on the quantity on which freight is payable. The Hollinsida (1898), P. 131. In Dillon V. Livingston ^ P. ^ 0. Co. (1895), 11 Times L. R. 313, an agree- ment by the master that if the consignee dispensed with weighing he would accept freight on bill of lading quantiiy, less 2 per cent., and pay for 2 per cent, cargo short delivered, w as held within his authority as master. For special clauses as to freight, where the cargo is to consist of several articles at various rates, see : Capper v. Forster (1837), 3 Bing. N. C. 938. Cockburn v. Alexamler (1848), 6 C. B. 791. Warren v. Peabody (1849), 8 C. B. 800. Southampton Co. v. Clarke (1870), L. R. 6 Ex. 53. For special phrases, e.g. : — Freight in full for the voyage, see Sweeting v. Darthez (1854), 14 C. B, 538. Highest freight pxnd on same voyage : Gether v. Capper (1856), 18 C. B. 866. Alternative freights : Gibbons v. Bitissoii (1834), 1 Bing. N. C. 283. Fenwick T. BoydO.i'^Q), 15 M. & W. 632. (Ji) Vogemannv. Bisley(lS97),2 Com. Cases, 81. It may be that the consignee is entitled to ascertain what goods are on board before payment. (/) Paijnter v. Jctmes (1867), L. R. 2 C. P. 349 ; Yates v. Railston ; Tate v. Meek; Yates v. Mennell (1818), 2 Moore, C.P. 278, 297 ; Duthiex. Hilton (1868), L. R. 4 C. P. 138. (m) Black V. Rose (1864), 2 Moore, P. C. N.S. 277. Brown v. Tanner (1868), L. R. 3 Ch. 597, which decides that the freight under a charter is not due under the contract till all the cargo is delivered, and which turns partly on the special words " freight to be collected by the charterei-s," would not prevent the master from claiming his lien on each part of the cargo. In Stiart v. Bigland (C.A.), Jan. 24, 1886, a clause " to pay out of freight collected," was held to mean " out of gross freight collected," and not to justify postponement of payment till all freight was collected. TIME FREiaiTTS IN CHARTERS. 271 Note. — -Freij^lit is usually payable at the financial centre ; the stipulations as to tlie time (jf its payment vary consicler- ably in practice, but in very many cases freight is payable at the jiort of loading, sometimes on delivery of bills of lading, sometimes with fourteen days' credit. In the former case, where the bill of lading contains a clause "freight paid in London," the delivery of the bill of lading acts as a receipt for the freight. Article J4G. — Time Freights in Charters. Where freight is payable by time it is earned at the end of each period specified, unless a contrary intention appears {n), althougli it may only be payable under the charter at longer intervals, and the ship is lost before the longer interval expires (o). In the absence of express agreement it is payable during the ship's detention by blockade (^j), embargo (p), bad weather (in), or repairs (o). Note. — Time charters now usually contain clauses as fol- lows : — " In the event of loss of time from deficiency of men or stores, break-down of machinery, or damage preventing the working of the vessel for more than twenty-four working hours, the payment of hire shall cease till slie be again in an efficient state to resume her service. . . . Should the vessel be lost without being heard of, hire shall cease to be due fifteen days after she left her last port." A vessel with this clause broke down in her high-pressure engine on a voyage from the West Coast of Africa to the Elbe, and put into the Canary Islands, where she was pronounced unfit to proceed. A tug was engaged as a general average expenditure, and brought her home, with the use of her low-pressure engine. Held, that no freight was payable from the Canary Islands to the Elbe, as the ship was not in an efficient state; but that hire was due for the time during which she was discharging cargo at the port on the Elbe (5), as she was efficient for that purpose, though not for proceeding to sea as a steamer. The ordinary cesser of hire clause appears defective, in not providing for the return of prepaid hire, in respect to that portion of time already 2>aid for, during which the ship remains inefficient, and it is advisable to (n) As it did in Gibbon v. Mcndcz (1818), 2 B. & AUl. 17. (0) Havclock V. Galdcs (1809), 10 East, 555. (^) Moorsom v. Greaves (1811), 2 Oaui]). 626. Iq) Hogarth v. Miller (1891), App. C. 48. '272 FREIGHT: modify the clause ami meet this point. "Whether a "month" in charters is lunar or calendar must depend upon the usage of the trade or port, in the absence of express stipulation, whicli is usually that the month shall mean thirty days, and is generally inserted. Thus, in 1863, in Turner v. Barlow (r), Erie, C.J., held that " month " = lunar month, except in mercantile transactions in the City of London, when it meant calendar month : and in Jolly v. Young (s), it was held that month = calendar month. Under a clause to pay freight per month, and at the same rate for any part of a month, Denman, J., following Commercial S.S. Co. v. Boulton (<), held that a part of a day must be reckoned as a whole day (u). Some few charters contain a guarantee by the shipowner that the passage shall not exceed a certain time. On the position where a ship is chartered for a fixed time, and the charterers send her on a voyage which cannot be completed in that time, see Gray v. Christie (.t), where Mathew, J., decided that if the voyage was a reasonable (jne, freight must be paid at chartered, not at current, rates. Under the ordinary clause :— " Freight so much per calendar month and at tlie same rate for any part of a month, hire to continue till re-delivery to owners; payment of the said hire to be made in cash in London monthly in advance without deduction " : — the charterer is liable to pay the month's hire in advance, though the vessel will probably be re-delivered before the end of the month, recovering the balance overpaid when the date of delivery is ascertained (j/). Article 147. — Freiglit : to whom payable. To whom freight is payable depends on the terms of the contract of affreightment, or, if no person is named therein, on the person with whom the contract was made, to whom or to his agent freight is payable, subject to any subsequent dealings, such as assignment of the freight or mortgage of the ship. It may be payable to : — 1. The shipowner (see p. 264). 2. The master (see p. 205). 3. The broker (see p. 265). 0) 3 F. & F. 949. (ar) (1889), 5 Times L. R. 577, (a) (1794), 1 Esp. 187. (y) Tonnelur v. Smith (1897), It) (1875), L. K. 10 Q, B. 346. Cora. Cases, 258 (C.A.). («) Angicr v. Stewart (1884), 1 C. & E. 357. TO WHOM PAYABLE. 273 4. A third person (see p. 274). 5. The charterer (see p. 27.")). 0. An assignee of the freight (see p. 277). 7. A mortgagee of the ship (see p. 278). Note. — Freight jiayable in London is usually payahle to tlie loading broker of the ship or line ; abroad, where the vessel is one of a line, to its branch house or its agents ; in other cases, if no instructions are contained in the charter or bills of lading, to the captain or the agent he appoints. In France all freight is frequently payable to the general consignee of a ship, who is quite distinct from the broker. I. The Shipowner. I. Where freight is clue from the charterer under a charter, or from the shipper, under a bill of lading where there is no charter, the shipowner, in the absence of express stipulation, is prima facie entitled to receive the freight (z). He may give authority to collect such freight to any person he pleases (a). The loading broker (where freight is payable at the port of loading), and the master, when freight is payable on delivery, have ordinarily authority from the shipowner to collect freight {a), and payment to either of them will be good payment, discharging the shipper or consignee, unless the owner has given the shipper or consignee notice not to pay either of them (i), or unless there is any custom of the trade or port to the contrary. Payment to the master before freiffht is due will be treated rather as an advance to the master than as a prepayment of freight (c). II. The Master. II. The master may be entitled to sue in j)erson lor freio-ht : («) Smith V. Plumer (1818), 1 B. & A. 575, at p. 581 ; Atkinson v. Cotcsworth (1825), 3 B. & C. at p. 649. ((«) The Eihnond (1860), Lush. 57. For a curious case where the shipper was held to have made a new contract with the shipowner to the exclusion of tlie charterer ; see Hoyland v. Graham (1896), 1 Com. Cases, 274. (/)) Atkinson v. Cotcsivorth, vide supra, (c) iSmith V. Plumer, vide sxpra. T 274 FBEIOHT: (1.) Where the express contract Avas made with him {d) : (2.) Where a contract to pay freight to him is inferred as a fact from the consignee or some other person taking delivery of the goods (e). But the master who receives freight from consignees has usually no right to retain it against his owner, for, in the absence of express agreement or statutory procedure (/), the master has no lien for wages, or advances made abroad on ship's account, on either ship or freight {g). III. The Broker. III. The broker, who has acted as loading broker to the ship (7i), usually collects the freight he has engaged. Pay- ment to him in the absence of any express notice not to do so will usually discharge the person paying. IV. A third Person. 1. Where freight is made payable by the charter or bill of lading to a third person he can only sue in the name of the shipowner, but payment to the shipowner, apart from such a suit, will not discharge the person paying, unless the third person was only to receive payment as agent for the shipowner {i). (d) As in Seegcr v. Duthic (1860), 8 C. B., N.S., at p. 56 ; Shields v. Davis (1815), 6 Taunt. 65. ((') Brouncker v. Scott (1811), 4 Taunt. 1. The master cannot in such a case sue fur demurrage, S. C. As to the effect of taking delivery, vide post. Article 149. (/) Under 24 Vict. c. 10, s. 10 ; 52 & 53 Vict. c. 46, s. 1. As to the seamen's lien for wages on freight due under a charter and subcharter, see The Andalina (1886), 12 P. D. 1. {(j) Smith X. Pbnwr (1818), 1 B. &A. 575. So also, if freight is made payable to agent of ship's husband, he cannot retain it as against owners in satisfaction of a debt due to him by ship's husband : Walshc v. Frovan (1853), 8 Ex. 843. Where a master sues for freight on a charter a debt due to the charterer from the shipowner cannot be set off against the master's claim ; scd quare, now Ishey V. Boialen (1853), 8 Ex. 852. (h) See Article 16 b., note at p. 32. In Dunlop v. Marietta (C.A., Dec. 1886) A. in Glasgow instructed B. in Liverpool to make a charter; 13. did so with C. through D. in London. A. ratified the charter signed by D. ; A. instructed B to get the advance freight sent " either directly or through you." B. wrote to D. to collect it. D. obtained it from C. and bolted. Held, that C. had not paid A. (0 Eirchncr v. Venus (1859), 12 Moore, P. C. 361, at p. 398. TO WHOM PAYABLE. 275 2. Payment to a person entitled to receive the beneficial produce of a contract to pay freight will absolve the payer (Jc) ; thus payment of freight to the obligee under a bottomry bond binding ship and freight (Z), or payment into the Court of Admiralty, by the monition of the Court in a suit in rem against ship and freight by an obligee of a bottomry bond (m), are bars to an action for freight by the shipowner. V. Cliarterer. Where a ship is under a charter which leaves the posses- sion and control in the owner {n), and goods are shipped by third persons under bills of lading signed by the master, the •express contract in such bills of lading will be made with the person for whom the master is understood by the shipper to sign as agent ; e.g. with the shipowner, if the shipper is ignorant of the terms of the charter ; with the charterer, if the shipper knows of the terms of the charter, unless the charter itself negatives the latter presumption (o). The fact that the master has power to sign bills of lading *' without prejudice to the charter," will not render the shipper liable under the charter, but will only protect the shipowner from any alteration of his contract with and remedies against the charterer (p) and vice versa (q). Where the shipowner has under the charter a lien for (k) Morrison v. Parsons (1810), 2 Taunt. 407, at p. 415. (0 Benson v. Chapman (1849), 2 H. L. C. 696. (m) Place v. Potts (1855), 5 H. L. C. 383. (n) Baumvoll v. Gilchrest (1893), A. C. 8, and see Article 18, ante. Where the charter puts the owner out of" possession, it seems that the shipper, ignorant of the charter, should have a contract with the charterer as undisclosed principal ; sed quare whether the two parties were ever at one in any agreement ; cf. Lindsay v. Cundy (1878), 3 App. C. 459. (o) Vide Article 18 ; Marquand v. Banner (1856), 6 E. & B. 232 ; Zwilchenhart V. Henderson (1854), 9 Ex. 722, 23 L. J. Ex. 234; Michenson v. Begbie (1829), 6 Bing. 190. Where the intention is that the charterer shall employ the ship as a general ship for his own ])rofit, when the master signs bills of lading, he does so as the agent of the charterer, not of the owner. But still, the owner, being in possession of the ship by his master and crew, has rights in respect of this possession, e.g. to claim a lien on goods on board for freight due to him under the charter. Schuster v. McEcllar (\Sol), 7 E. & B. 704. 724; see also Wajstaff V. Anderson (1880), L. R. 5 C. P. D. Ill, per Bramweil, L.J. (p) Shand V. Sanderson (1859), 4 H. & N. 381. (g) Bodocanachi v. Milburn (1886), 18 Q. B. D. 67. See Article 20, p. 50. T 2 276 FREIGHT: freight, and his master waives this lien on demand by the shipper or consignee for the goods, a contract by the shipper or consignee with the shipowner to pay hira the freight for which the lien is claimed may be found as a fact (r) from such demand and delivery, although the shipper or consignee is aware of the charter (s). Note. — Lush, J., in Smidt v. Tiden (t), suggests that the master signs bills of lading under a charter, not as charterer's agent, but because he is bound by the charter to sign. Quaere, if the master intends to sign as agent for the charterer, having power to sign hills of lading "without prejudice to the charter," but the shipper, being ignorant of the charter, thinks he is signing as agent of the shipowner, whether there is any contract at all, excepting such as may be found as a fact from subsequent demand of the goods under the bill of lading and delivery? (u)^ Case 1. — A. chartered a ship to C. to carry corn at 4s. Gd. per quarter. C. could not provide a cargo, and the master (whether as agent of A. or C. was not clear) agreed with F. to carry corn for him at 6s. per quarter : C. entered into a sub-charter with F. at that rate. On arrival, A. delivered corn to F., but F. refused to pay A. more than 4s. Gd., C. having given him notice to pay the remaining Is. Gd. to him. Held, that C. was entitled to the Is. Gd., and that no contract by F. to pay more than 4s. Gd. could be implied from his taking delivery {x). Case 2. — E., master of a ship, chartered her to C ; " captain to sign bills of lading at more or less freight without prejudice to this agreement, proceed to Z., and there deliver on being paid freight a lump sum of £100." C. put on board 1350 bags of tlour ; and F. loaded 500 bags of flour, for which E. signed a bill of lading, " which goods I shall deliver to G. for you, paying me freight according to contract with C." F. wrote to G. and to C, stating that G. would pay a certain freight to C. On arrival at Z., C. paid £100 to E. G. received the cargo from E. under the bill of lading, but refused to pay freight to C. Held, that E. could not sue G., on any contract to pay either freight express or implied (y). Case o. — A. chartered a ship to C. to carry cargo on being paid freight at 75s. per ton, captain to sign bills of lading, without i^rejudice to charter, at any rate of freight required. D., C's agent, purchased goods for C, taking the bills of lading, which provided for freight at 20s. per ton, in his own name. During transit, C. failed. On arrival, A. claimed against D. chartered freight. Iltid, he was only entitled to bill of lading freight (z). (r) It will not be implied as a matter of law : see Sanders v. Vanzellcr (1843),. 4 Q. B. 260. Cf. as to demurrage : S.S. County of Lcmcastvr v. ,'^harpe (1889),. 24 Q. B. D. 158. (s) Swan V. Barber (1879), 5 Ex. D. 130. (0 (1874), L. R. 9 Q. B. 447. (m) Baumtoll v. Gilchrest (1893), A. C. 8, and note ()i), (Oitc, p. 275. Ix) Michcnson v. Begbie (1829), 6 Bing. 190. (i/) Zwilchenbart v. Henderson (1854), 23 L. J. Ex. 234. (z) Shatid V. Sanderson (1859), 4 H. &X. 381. TO WHOM PAYABLE. 277 Case 4. — E. A., master and part owner of a ship, chartered it to C. for a -certain voyage for a lump sum of £850, " payment to be by E. A.'s receiving such freight as C. may liavo payable abroad as per bills of ladinL', not ex- ceeding half, balance by bills from C. Master, at C.'s request, to sign bills of lading in the usual and customary manner, and at any rate of freight ■that may be filled up, and made payable in any manner the charterers may choose, without prejudice to this charter." C. put the ship up as a general ship, and E. A. signed bills of lading, " freight paid here as per margin; " £250 was payable abroad, which E. A. received, and took C.'s acceptance for £600, making up £850. C. failed before the bills became due, and E, A., and C.'s representative each claimed the balance of the freight against the shippers. Held, that E. A. was acting as C.'s agent in signing bills of lading, and that C. and not E. A. was therefore entitled to the balance of the freight (a). VI. Assignee of Ship or Freight. The assignee of a ship or of its freight (h) is entitled to all freight due after the assignment, which the assignor had at the time of assignment the right to transfer, from the moment at which he has gone through the forms necessary to complete his title (c). The assignee of a share in the ship is entitled to his share in the freight under similar circumstances (cl). Case. — A., in June 1854, sold by bills of sale, ,^1 of his ship to B., ^^} to Q. B. registered his bill of sale in November. In December, A. assigned the freight to be earned on a voyage then in progress to E., and E. gave notice thereof to C, the charterer. In January, 1855, Q. registered his bill of sale. Held, B. was entitled to gf- ; E. to *fl of the freight (d). Note. — If the assignment is in writing and aLsolute, and not by w^ay of chaige (c), the assignee, after giving notice to the (a) Marqnaml v. Banner (185G), G E. & B. 232 ; see also Sinidt v. Tiden, L. R. 9 Q. B. 446 (1874). J[arqiiiiit(/ v. Banwr has been criticized by Cresswell and Willes, JJ., in Gilkison v. Mlddlcton (1857), 2 C. B., N.S. 134. There A. the shipowner claimed against holders of the bills of lading a lien for freight due under the charter, though the master had signed bills of lading at a lower rate uuder a clause in the charter, re(|uiring him to sign bills of lading at freights required by C. the charterer, without prejudice to the charter. It was held that A. had only a lien for the lower freight, on the ground that the master was his agent to sign bills of lading at a lower freight. This does not show tliat A. could have sued the shippers for freight, but only that, against third parties ignorant of the charter, the master by signing bills of lading with the authority of the owner waived his lien against persons holding such bills, for suras of w-hich tliere was no notice in the bills. Marqnand v. Banner seems therefore good law. (6) An assignment of ireight to be earned is good: LcsHc v. Guthrie QS35), 1 Bing. N. 0. 697 ; Lindsay v. Gibbs (1856), 22 Beav. 522, overruling i2o68Vtso>i v. Macdonaell (1816), 5 INI. & S. 228. (c) See Lindsay v. Gibbs, vide supra ; Morrisonv. Parsons (1810), 2 Taunt. 407; Gardner v. Cazenovc (1856), 1 H. & N. 42:5 ; Boyd v. 3fanyles (1849), 3 Ex. 387. (d) Lindsay v. Gibbs, vide supra. («) See Burlinson v. Hall (1884), 12 Q. B. D. 347 ; lawredv. Del<«joa Buy Co. (1889), 23 Q. B. D. 239. 278 FREIGET: persons liable to pay freight, can sue in his own name (/). Where these conditions are not complied with, he can still only sue in the name of the assignor, as before the Judicature Acts {g). An assignment, absolute in form, may be looked into to see whether it is in substance by way of charge (h). Notice of the assignment of freight to the person liable to pay it takes it out of the order and disposition of the assignor (i). VII. IMortgagee of Ship and Freight. A mortgagee who has not entered into possession of the mortgaged ship has no absolute right to the freight the ship may be earning, and cannot compel its payment to himself by simply giving notice to the person liable to pay it (h). On taking actual or constructive possession (I) he then becomes entitled to all the freight that the ship is in course of earning, whether under an express contract (m), or, if none exists, under a quantum meruit (n), or to the freight already earned if it has not yet been paid (o). Case 1. — E., master of A.'s ship, carried a cargo of wheat " on owner's account," purchased on the credit of P., to whom E. crave bills of lading, for "wheat shipped on owner's account, deliverable to P.'s order at freight of Is. per ton," and bills of exchange for the price, which A. accepted. A. had mortgaged his ship to M. A. sold the cargo in transitu to K., the sale note running : " As cargo is coming on ship's account, freight is to be computed at 55s. per ton." A. indorsed the bills of lading, which he had received from P. on the acceptance of the bills of exchange, to K. with a memo. : " The freight assigned is at the rate of 55s. per ton, and not the (/) Jud. Act, 1873; 36 & 37 Vict. s. 25, sub-s. 6. ((/) See ]PothonuT v. De Mattos (1858), E. B. & E. 461 ; Wilson v. Gabriel (1863), 4 B. & S. 243 ; and Wcgudin v. Ccllier (1873), L. R. 6 H. L. 286, as to set off. (/*) Gardner v. Cazcnovc (1856), 1 H. & N. 423. (0 Douglas v. Fmssell (1831), 4 Sim. 524. (/;) Keith v. Burrows (1877), 2 App. C. 636 ; Liverpool Murine Co. v. Wilson (1872), L. R. 7 Ch., at p. 511; Gardner v. Cazenove (1856), 1 H. & N. 423; Dean v. M'Ghie (1826), 4 Bing. 45 ; KerswiU v. Bishop (1832), 2 C. & J. 529; Willes V. Palmer (1859), 7 C. B., N.S. 340. (I) As by giving notice to the mortgagor and charterer, the ship being at sea, and actual possession impossible ; Rusden v. Pope (1868), L. R. 3 Ex. 269 : or, where the mortgagor is ship's husband, by his removal by the other part owners and the mortgagee : Beijnon v. Godden (1878), 3 Ex. D. 263. (w) But no more, even though the freight in the contract is nominal : Keith v. Burroics, vide supm. (n) Gnmm v. Tyrie (1865), 4 B. & S. 680 ; 6 B. & S. 299. (o) Keith V. Burrows ; Liverpool Co. v. Wilson ; Rusden v. Pope, vide supra ; Brown r. Tanno- (1868), L. R. 3 Ch. 597; Wilson v. Wilson (1872), L. R. 14 Eq. 32. As to priority of mortgagees, see Liverpool Co. v. Wilson; Brown v. Tanner, vide s>ij)ra. TO WHOM PAYABLE. 279 nominal amount of Is. per ton." On the ship's arrival, M., as mortgagee, took possession, and claimed freight at 55s. from K., who refused to pay- more than Is. Held, that M. was only entitled to the freight named in the bill of lading, the larger sum being in reality part of the purchase- money, and no claim of (juanfun meruit being possible in face of the express contract (jj). Case 2. — A. mortgaged his ship, charters, and freight, to M., and sub- sequently chartered her, and mortgaged the freight to N., " the freight to be paid on unloading and right delivery of the cargo." The ship arrived in Y>OTt, and most of the cargo had been delivered to the. consignees, when M. took ])ossession. Held, that as no freight was payable under the charter till the wliole cargo was delivered, M. was entitled by taking possession to the whole freight under the charter (q). Case 3. — A. mortgaged his ship to M., and afterwards chartered her to C, the charter providing that C. should make advances not exceeding £150 on account of freight, the balance £450 to be paid on delivery of the cargo. C. advanced abroad £300. On the ship's arrival, M. took possession, and claimed £450 balance of freight from C. C. claimed to deduct £150 fur advances. Held, that the advance of £150 beyond the £150 warranted by the charter was simply a loan, and not a prepayment of freight, and that therefore C. was not entitled to deduct it from the freight due (r). Article 148. — FreigJd : hj wliom imyahle. Freight is prima facie payable according to the terms of the contract of affreightment, and by the person with whom such contract is made. But a new contract may be pre- sumed as a fact from demand of the goods, and their delivery by the master without insisting on his lien (s). Freight may be payable by : — I. The shipper : II. The consignee : III. The holder of the bill of lading. (p) Keith V. Burrows, viih' supra. Iq) Brown v. Tanner (1808), L. R. 3 Ch. 597. (r) Tanner v. PMUips (1872), 42 L. J. Ch. 125. In The Salacia (1862), 32 L. J. Adm, 43, the charter authorised " necessary ordinary expenses " : see Article 137. (s) Cock V. Taijhr (1811), 13 East, 399 ; Sanders v. Vanzeller (1843), 4 Q. B. 260, in which the earlier authorities are discussed. Many of these, e.g. Drew v. ^i>c;(1828), M. & M. 156; Artazav. Smal/piccc (1793), 1 Esp. 23 (on which see Cock v. Taylor, rule supra), and Moorsom v. Eymer (1814), 2 M. & S. 303, must be taken as overruled. 1280 FREIGHT: I. The Shipper. From shipment of goods upon a vessel for a certain voyage a contract by the shipper to pay freight for such goods is implied {t). From this implied contract the shipper may be freed, either by express contract in the bill of lading, or by delivery by the master on a bill of lading with an indorsement freeing the shipj)er, whose terms are known to the master when he delivers the goods {u). The shipper does not free himself from such liability by indorsing the bill of lading so as to pass the property, even to the shipowner {x). Nor will the presence of the clause in the bill of lading, " to be delivered to consignee or assigns, he or they paying freight for the same," free the shipper, if the master deliver under such a bill to the consignee without insisting on his lien for freight (?/), unless the master was offered cash by the con- signees, and for his own convenience took a bill of exchange, which was afterwards dishonoured, in which case the shipper will be freed (z). Case. — A. chartered a ship to D. to carry iron at 7s. 3cZ. j^er ton ; the next day, D., professing to act as A.'s brolier, chartered it to C, to carry iron at 8s. per ton ; each charter contained clauses making freight payable on signing bill of lading, and giving the owner an absolute lien for freight. aSTeither A. nor C. knew of the other charter, and D. had no authority to make it as broker for A. C. shipj^ed his iron under bills of lading signed by the master making the goods deliverable to " consignees he or they pay- ing freight as per charter." The master did not demand freight on signing bills of lading, and he delivered to the consignees without insisting on his lien. C. paid 8s. per ton to D., who became bankrupt. A. sued C. for freight at 7s. Zd. Held, there was neither an express, nor an implied con- tract on which A. could sue C, the parties never having been ad idem {a). (0 Doiiuit V. Bcckford (1833), 4 B. & Ad. 521; G. W. R. v. Baggc (^1885), 15Q. B. D. 626; Shrpard v. Do Bcriuilcs (1811), 13 East, 565; C/iristy v. Roio (1808), 1 Taunt. 300. (m) Lricia V. APKit' (1868), L. R. 4 Ex.- 58, a case of consignee : see for the general principles, Watkins v. %»u7/ (1883), 10 Q. B. D. 178. (.r) Fuj; V. Nott (1861), 6 H. & N. 630. (.'/) >'^hcpiir(l\. Be Berna/cs, vide supra. Such clauses are inserted for the benefit of the master, confirming his lieu, and not of the shipper. (z) Marsh V. Fcddcr (1815), 4 Camp. 257 ; Taplcy v. Martens (1800), 8 T. R. 451 ; StroiKi r. Hart (1827), 6 B. & C. 160. («j limidt V. Tklen (1874), L. R. 9 Q. B. 446. BY WHOM PAYABLE. 281 II, The Consignee. The consignee nanaed in the bill of lading to whom by the consignment the property in the goods shall pass, is by statute liable to pay freight, on the terms of the contract contained in the bill of lading, and as if it had been made with himself (h). If he is the owner of the goods, he is also i^rima facie liable to pay freight for them, as being the person with whom the contract of carriage is presumed to be made (c). If the consignee demands goods under a bill of lading, making them deliverable on payment of freight, though no contract is implied in law from such delivery, it will be evidence from which a jury may find a new contract to pay freight {d), unless the bill of lading clearly negatives such a contract (e). A. new contract may also be proved by evidence of previous dealings between the parties (/}, or of usage of trade {g). Entry of the goods at the custom house is 'prima facie evidence that the person in whose name they are entered is their owner and liable to pay freight for them, but he can rebut this presumption by shewing that his entry was merely as agent (Ji). (6) Bills of Lading Act (1855), 18 & 19 Vict. c. Ill, s. 1. Appendix III. (c) Coleman v. Lambert (1839), 5 M. & W. 502; Dickenson v. Lano (1860), 2 F. & F. 188. All cases before 1855 freeing the consignee from liability to pay- freight must be read in the light of the Bills of Lading Act. (c/) White V. Fiirness (1895), A. C. per Lord Herschell at pp. 43, 44; Cock v. Taiilor (1811), 13 East, 399 ; Dovgal v. EcnMc (182(5), 3 Bing., at p. 389; Arms V, 'Temperleij (1841), 8 M. & W. 798, at p. 805 ; Sanders v. Vanzdler (1843), 4 Q. B. 2(J0; Kemp v. Chirk (1848), 12 Q. B. 647. ((') Amos V. IVmperleii, vide supra, in which the bill of lading expressly stated that the defendent was consignee as agent f(ir another: Jfowardv. Tucker (1831), 1 B. & Ad. 712, where the bill of lading contained a statement that the freight had been paid in advance, which, though incorrect, was held inconsistent with a new contract to pay it. See also Ward v. Felton (1801), 1 East, 507 ; Kennedy V. Gonvci.i (1823), 3 D. & K. 503. (/) Wilson V. Ktjnvr (1813), 1 ^l. k S. 157 ; where it was proved that, when similar goods had been previously delivered to defendant, he had always paid the freight. ((/) As in Dickenson v. Lano, vide supra, where evidence of a custom of the stone trade that the consignee always, the quarry-owner never, paid the freight, was held admissible. (A) Ward v. Felton (1801), 1 East, 507 ; Wilson v. Kijnvr (1813), 1 M. & S. 157 ; Artaza v. Sniallpiece (1793), 1 Esp. 23. 282 FREiailT: BY WHOM PAYABLE. III. An Indorsee of the Bill of Ladino;, or Person takinor delivery under it. Indorsees of the bill to whom by the indorsement the pro- perty in the goods has passed (i), and who have not freed themselves from liability by such an indorsement as passes the jDroperty (Ji) ; and indorsees to whom the property in the goods has not passed by the indorsement, but who complete their proprietary rights by taking delivery of the goods under their indorsed bill of lading (Z), are by statute liable to pay freight for the goods according to the bill of lading {m). Other indorsees of the bill of lading who take delivery under it, but who do not acquire proprietary rights by so doing (/), are only liable if a new contract to pay freight can be found as a fact from the circumstances attending delivery (n), and the terms of the bill of lading (o). (i) Scwell V. Burdick (1884), 10 App. C. 74, and Article 75. (k) Smurth'Joaite v. Wilkins (1862), 11 C. B., N.S. 842. (0 Scwell V. Burdick (1884), 10 App. C. 74. (m) 18 & 19 Vict. c. Ill, Appendix III. For cases before this Act, see Crawford V. Tohin (1842), 9 M. & W. 716 ; Domjal v. Kemhlc (1826), 3 Bing. 383 ; Bdl v. Kymcr (1814), 1 Marsh, 146. (n) Sanders v. Vanzeller (1843), 4 Q. B. 260; Yomvj v. Modler (1855), 5 E. & B. 755 ; /u7?yj v. Clark (1848), 12 Q. B. 647. (o) See Howard v. Twc^rr (1831), 1 B. & Ad. 712; Lewis v. J/'Aw (1868),_ L. K. 4 Ex. 58 ; Aims v. Tempcrley (1841), 8 M. & W. 798. See (as to persoas taking delivery after having deposited freight under the Merchant Shipping Act, 1894) Article 127 ; and White x. Furncss (1895), A. C. 40. ( 283 ) SECTION XI. Lien. Article 149. — Kinds of Lien. A SHIPOWNER may have a lien on goods carried for charges incurred in carrying them : — I. At Common Law : IL By express agreement. By Common Law he has a lien for : — 1. Freight (a); 2. General average contributions (b) ; both of which are possessory liens depending on the posses- sion of the goods. 3. Expenses incurred by the shipowner or master in pro- tecting and preserving the goods, which give rise to a maritime lien, independent of possession (c). Article 150. — Common Laiv Lien for Freight. The Common Law lien for freight, which is a possessory lien, only exists where the agreed time for payment of freight is contemporaneous with the time of delivery of the goods {(l). (a) See Articles 150-154. (6) See Articles 117-120. (c) See Articles 101, 121, and Hingston v. Wendt (1876), 1 Q. B. D. 367, at p. 372, ((/) See 'per Brett, J., in Allison v. Bristol Marine Insurance Co. (1876), 1 App. C, at p. 225, explaining Kirchncr v. Venus (1859), 12 Moore, P. C. 361, at p. 390. 284 COMMON LAW In the absence of express agreement there is, therefore, no lien for : — (1.) Advance freight, or freight payable before the deli- very of the goods (e). (2.) Freight agreed to be paid after the delivery of the goods, or not due when the goods are claimed (/). Case 1. — Goods were shipped to be carried to Z. under bills of lading, " freight for the said goods to be paid at L., ship lost or not lost." The ship was lost, but the goods were saved. The shipowners claimed a lien. Held, that there was no such lien without express agreemeDt^((/). Case 2. — Goods shi]iped under a bill of lading, "deliverable to order or assigns on payment of freight, as per charter . . . the freight to be paid on unloading and right delivery of the cargo less advances in cash (/;), at current rates of exchange . . . half freight to be advanced by freighter's acceptance at three mouths on signing bills of lading, . . . owner to insure the amouut and deposit with freighter the club policy." The freighter gave his bill at three months for half freight, and the master in- dorsed on the bill of lading, " received on account of the within freight £300 as per charter. On arrival, before freighter's acceptance became due, the captain heard that the freighter was bankrupt, and refused to •deliver the cargo, unless the whole freight was paid. Held, that there was no lien ). When, the ship being chartered, the consignee is the charterer or his agent, he will be bound by the lien for freight due under the charter (q), unless a new contract exonerating him has been made in the bill of lading (r). Where the consignee is an indorsee for value of the bill of lading from the charterer, or represents a shipper, other than the charterer, whether aware of the charter or not, he only will be bound by the lien for freight contained in the charter, as distinguished from the freight specified in the bill of lading, if a clear intention to that effect is shewn in (/) Ex parte Nyholm, In re Child (1873), 29 L. T. G34. (Hi) Foster V. Colby (1858), 3 H. & N. 705. (h) Sodergren v. Flight (1796), cited, 6 East, 622 ; Perez v. Al$oj> (1862),. 3 F. & F. 188. (o) Bernal v. Pirn (1835), 1 Gale, 17. (/*) See Article 144. Amount of freight. Iq) McLean v. Flcminq (1871), L. R. 2 H. L. (So ), at pp. 133, 134; Kern v. Dcslandes (1861), 10 C. b., N.S. 205 ; Campion v. Cokin (1836), 3 Bing., N S. 17 : lroposals were made to the captain before his lay-days had ex2:)ired. A similar question of reasonableness was raised in Hudson v. Hill. Mayne on Damages (4th ed. pp. 1 G5, 275 ) treats the matter as unsettled. Though the cases are inconsistent, the better opinion seems to be that freight which a reasonable owner might and would have obtained after final breach must be reckoned in reduction of damages, after deducting the expenses of earning it. It will certainly be safer for the captain to earn the best freight in his power. So, also, a shipper of goods must do what is reasonable to lessen his loss from a breach of contract by the shijoowner ; thus, he must purchase goods to supjdy the deficiency at the lowest price. If he can avoid delay by paying a small sum for dues, he should do no, recovering it from the shijiowner ; and he cannot recover damages for delay which he might have so avoided (a). in) L. R. 8 C. P. 167. (v) 1 C. & K. 686. (x) L. J. 26 Ex. 242. (2) 43 L. J. C. P. 273. ((() jriollcr V. Jecks (1865), 19 V. B., N.S. 332 ; Alcxvidi v. Eobinson (1861), ■2 F. & F. 679 ; aliter if the sum is exorbitant: see The Norwatj (1864), 12 L. T., at 1-. 62; andji-«- M. Smith, J., at 19 C. D., N.S. p. 341. 294 DAMAGES FOR This view is supported by the dicta of Sir J. Hannen in The Blenheim (6), that the plaintiffs in an action for damage to cargo by collision ought to have tried to diminish the loss as much as possible; and of Lord Herschell in The Argentino (c), that what the shipowner could have earned on another adventure should be set off against any sum allowed him for loss of voyage by collision. Article 160. — Damages for failure to carry safely. Where goods are not delivered by the vessel contracting to carry them (cZ), the damages will, in the absence of special circumstances in the contract, be the market value of the goods when they should have arrived, less the sums which the cargo-owner must have paid to get them, such as freight (e). Where goods are delayed by the late arrival of the ship contracting to carry them, through causes for which the shipowner is responsible, senible, that the cargo- owner can only recover damages in the form of interest on their value during the delay (/). The damages recoverable will not include damage by loss of market (g), or by a fall in the price of such goods (h), or by stoppage of business through their non-delivery (^), and will not be affected by the fact that the caro^o-owner had sold the iroods to arrive (6) (1885), 10 P. D., at p. 171. (c) (1889), 14 App. Cas., at p. 524. (d) Cf. Smith V. Trvgartlwn ("1887), 56 L. J. Q. B. 437. le) RoJocanachi v. Milburn (188G), 18 Q. B. D. 67. (/) Cf. British Columhia Co. v. Ncttlcship (1868), L. R. 3 C. P. 499. (^) Many bills of lading expressly provide that the ship shall not be liable for claims for delay, loss of market, or sea risks, if the goods are carried past their destination. The Eastern trade, however, has usually the clause: "That sucli goods are when found to be sent back at ship's risk and expense, and subject to any proved claim for loss of market." The stipulation that the shipowner shall not be liable for more than the invoice cost of the goods is very usual. There is sometimes a clause, "price, in case of short delivery, to be the market price of the day at port of discharge, on the day of steamer's reporting, less charges and brokerage." There are usually clauses limiting the time within which claims will be recognized. See ante, p. 237. (K) The Parana (1877), 2 P. D. 118. See also, for a case of tort. The Notting Hill (1884), 9 P. D. 105 ; and the principles laid down in the collision cases of The Argcntino (1889), 14 App. C. 519 (loss of freight); The Blenheim (1885), 10 P. D. 167 (damage to cargo) ; The City of Peking (damages for detention), (1890), 15 App. C. 438. (0 British Columhia Co. v. Nettkship (1868), L. E. 3 C. P. 499, FAILURE TO CARRY SAFELY. 295 at a price higher {h) or lower (?) than the market price in fact on the presumed date of arrival. But, where it is part of the common knowledge of the contracting parties that the goods are wanted for a parti- cular market, or for a particular season, at which they will command a special price, or to fulfil a special sub-contract, damages for the loss of such market, season, or sub-contract may be recovered (m). Cane 1. — Goods shipped on A.'s ship were lost through causes for which A. was liable. The shippers had paid part of the freight in advance, and without A.'s knowledge had sold the goods to arrive for £3 per ton. The market price on the day when the ship should have arrived was £3 5s. per ton. Held, that the shippers were entitled to recover £3 5s. per ton less what they must have paid to get the goods; viz. the balance of the freight (l). Case 2. — F. shipped goods on A.'s ship, and afterwards, unknown to A., effected a sub-contract for resale of them . The goods were damaged by bad stowage, and in consequence F. was unable to fulfil the sub-contract. Held, that F. could not recover the profits lost under the sub-contract as damages from A. (A:). Case 3. — A.'s master, E., signed bills of lading fur 400 bales of cotton at Wilmington, " shipped on board the Carhls Baj for Liverpool." That ship could only take 165 bales, and E. ordered the remaining 235 bales to be shipped on board the Wylo, also for L. The Carhis Bay arrived on October 26, the Wylo on October 29 ; between these dates the price of cotton fell. The shippers sued E. under the Bills of Lading Act for damages for the non-delivery by the Carhis Bay. Held, that on such non-delivery, the shipiiers were entitled to the market value of the goods on October 26 as damages; that they might receive the goods ex Wylo on October 29, in part satisfaction of such damages ; but were still entitled to recover the difference in price between October 26 and 29, as damages (ii). Case 4. — F. shipped hemp on A.'s ship; owing to defective engines, the ship took 127 days on the voyage, 65 daj^s being an average voyage. During the delay the price of hemp fell ; and the consignee claimed his loss as damages from A. Held, he could not recover it (o). Case 5. — F. ships cattle from the States for the Christmas Smithfield market, such shipment and the usual fall of the price of dead meat after Christmas being well known in the cattle trade. Owing to the ship's un- seaworthiness, the cattle miss the Christmas market. Suhmitted, that the shipper can recover the loss by the fall of price from A. {p). {k) The St. Cloud (1863), B. & L. 4. (0 Rodocanachi v. Milbuni (1886), 18 Q. B. D. 67. (m) The Parana (1877), 2 P. D. 118. (n) Smith V. Trcgarthcn (1887), 56 L. J. Q. B. 437. If the Carhis Bay had been unjustifiably delayed from Oct. 26 to Oct. 29, the shippers could not have recovered for the fall in the market. See Tlie Parana (1877), 2 P. D. 118. (o) The Parana (1877), 2 P. D. 118. (p) On authority of Mellish, L.J. , in The Parana, s'/pn', at p. 121, but a similar point was actually so decided by the Court of Appeal in an unreported case in 1881, 296 DEAD FREIGHT. Case G. — F. shipped on A.'s ship several cases containing machinery for a sawmill at Z., and described as " merchandise." A. knew the general nature of the shipment. On arriving at Z. one of the cases was missing, and the sawmill could not be erected till it had been replaced. Held, that F. was entitled to the costs of replacing the missing machinery at Z., and to 5 per cent, interest on such cost, for the delay, but not to damages for the estimated profits of the mill during the delay {(f). Article 161. — Bead Freight. " Dead freight " is the name given to damages, whether liquidated or unliquidated, claimed for breach of a covenant in a charter to furnish a full cargo to a ship (r). For such damages no lien on goods actually carried in the ship exists at Common Law (s) ; but such a lien may be given by usage, or express contract of the parties (r). Case 1. — A vessel was chartered to carry a full cargo of bones at so much l^er ton, the shipowner to have a lien on the cargo for "freight, dead freight, and demurrage." Only 386 tons were shipped; 210 tons more could have been shipped. The master claimed a lien on the cargo shipped for damages for failure to ship the 210 tons. Held, that the charter gave him such a lien (r). Case 2. — A ship was chartered to load a full cargo at named freights, '\but, if the ship should not be fully laden, C. to pay not only for the goods which should be on board, but also for so much in addition as the ship could have carried. And, in case no goods were shipped, then C. should at the end of the voyage pay full freight for the vessel to A. as if she had been fully loaded." A full cargo was not shipped, and the master claimed a lien on the goods carried for "dead freight" due for goods not carried. Held, that no such lien existed at Common Law (t). Note. — It is doubtful whether the term " dead freight " must not be confined to damages ascertained or ascertainable by the charter itself, i.e. liquidated damages for breach of covenant to furnish a full cargo. In support of this view we have the cases of Pearson v. Goschen (1864) (u), and Gray v. Carr (1871) (x). In Pearson v. Gosclien there was a charter to load a full cargo at 90s. per ton, the master to have an absolute lien for all freight, dead freight and demurrage on the said cargo laden on board. Damages were claimed for short loading, and the cargo detained under the lien for " dead freight." The Court, Williams, Willes, {q) British CohimhiaCo. v. Nettkship (1868), L. R. 3 C. P. 499. (r) McLean v. Fleming (1871), L. R. 2 H. L. (Sc), 128. (s) Phillips V. Rodic (1812), 15 East, 547 ; Birley v. Gladstone {\^U), 3 M. & S. 205. (^) Phillips V. Rodie : vide supira. (m) 17 C. B., N.S. 352. ix) L. R. 6 Q. B. 522. DEAD FREIGHT. 297 Byles, and Keating, J J., held that the term " dead freight " did not include " damages in respect of room lost in consequence of the charterers not loading according to the charter," and that, though there was nothing else in the charter for the term " dead freight " to apply to, the clause as to lien, being an ordinary printed clause, need not necessarily have a precise meaning given to every vp-ord in it. The next case in ]ioint of time was McLean V. Flemincf (r), a Scotch case, decided in May, 1871, where the House of Lords held that a lien for dead freight, meaning unliqui- dated damages, might be given by specific contract. Lord West- bury expressly dealt with the inconvenience of a lien for an un- liquidated sum, by admitting it, but saying : " It was impossible to set up any consideration of inconvenience in answer to the clear terms of the contract." Lord Chelmsford rather weakened the judgment by saying that the case "could hardly be considered as one of unliquidated damages, because the proper measure of damages was the amount of the agreed freight on the deficient quantity of 210 tons," though, he added, whether the damages were liquidated or unliquidated, the charter gave a lien for them. Lord Westbury said that the calculation at the agreed freight per ton was not correct, as it took no account of the expenses of loading and carrying the 210 tons ; and that, therefore, the damages must be unliquidated. Lord Colonsay also held it equally clear in principle and authority that there might be, by express contract in the charter, a lien for unliquidated damages as " dead freight." The Lords expressly abstained from dealing with Pearson v. GoscJien, on being informed that it was about to be considered in another case in the Exchequer Chamber. This was Gray v. Carr (decided June, 1871): the arguments in this case were heard before the judgments in McLean v. Fleming, of which the judges appear to have seen a note, though not a very full one, and some of them in giving judgment ex- pressly deal with the case. In Grai/Y. Carr there was a charter to load a full cargo ; an absolute lien on the cargo for all freight, dead freight, demurrage, and average ; short shipment ; and a lien claimed for damages sub nomine "dead freight : " the damages were not ascertainable from the charter. On these facts, Kelly, C.B., Channel, B., and Willes and Brett, J J., held such a lien not sustainable, the damages claimed not being dead freight, while Bramwell and Cleasby, B.B., dissented. The majority took the view that " dead freight " only meant liquidated damages, and distinguished McLean v. Fleming, oh Lord Chelmsford's sugges- tion that the damages were there ascertainable from the charter. They dwelt on the inconvenience of a lien for an unascertainable amount {ij), and met the argument that if " dead freight " did not mean this, there was nothing in the charter that it could mean, (jl) Cf. Clink V. liaJford (1891), 1 Q. B. 625, per Lord Esher, at p. G29 ; Bowen, L.J., at p. 631 ; Fry, L.J., at p. 633. 298 BEAD FREIGHT. by the suggestion in Pearson v. Gosclien, that in contracts written into a general printed form, it was not necessary to give a meaning to every word in print. They expressly followed Pearson v. Gosclien. Of the minority, Bramwell, B., admitting it was not necessary to give every word in print a meaning, apparently held the point doubtful, but for McLean v. Flemimj which bound him, while Cleasby, B., took the line that in Graij V. Carr, the " dead freight " was capable of liquidation with very little trouble. Clearly, if the view of McLean v. Fleming taken in GraTj v. Carr is correct, dead freight must be limited to " damages ascertained or ascertainable from the charter," and this con- struction would, I think, be far more convenient for mercantile purposes ; but the judgment in McLean v. Fleming distinctly admits a lien for unliquidated damages by express agreement. It is, indeed, a decision in a Scotch case ; but, " so far as it proceeds upon principles of general jurisprudence, it ought to have weight in England " (per Lord Selborne in Etuing v. Orr-Ewing (1885) (z)) and the question was almost entirely discussed on the authority of the Eno;lish cases. The early cases of Phillips v. Bodie and Birley v. Gladstone contain exitressions supporting either view ; but, on the whole, they favoTir the view of the House of Lords ; and it is submitted that English Courts at the present day will be bound by McLean v. Fleming, and that Pearson v. Gosclien and Gray v. Carr on this point must be treated as overruled (a). Article 162. — Damages for not signing or i^resenting Bill of Lading. A clause requiring the captain to sign bills of lading within a certain time or pay a specified sum per day as liquidated damages for delay, or until the ship is totally lost or the cargo delivered, imposes a penalty, and the damages specified cannot be recovered, but only the actual damage sustained, which must be proved (b). Where advance freight is made payable on signing bill of lading, and the shipper wrongfully delays to present bills for signature till after the ship is lost, the amount of the advance freight may be recovered as damages for failure to present bills of lading (c). {z) L. R. 10 App. Cas. 453, at p. 49'J. (a) The Scotch Courts have considered the relation of McLean v. Fleming and Gratj V. Carr in Gardiner v. 3Iacfarlane (1889), 16 Sc. Sess. C, 4th Ser., p. 664. (6) Joiws V Hough (1880), 5 Ex. D. 115 ; liayner v. Eederiaktieholaget Condor (1895), 2 Q. B. 289 ; The Princess (1894), 70 L. T. 388. (c) Oriental S.S. Co. v. Tglor (1893), 2 Q. B. 5IS. ( 299 ) SECTION XIIL Jurisdiction. The following English tribunals have jurisdiction to decide disputes arising on charterparties or bills of lading : — I. The High Court of Justice ; either in (a.) The Queen's Bench Division, or (b.) The Probate, Divorce, and Admiralty Division ; Admiralty Jurisdiction. II. The County Courts. (a.) Under their Admiralty Jurisdiction ; (b.) Under their Common Law Jurisdiction. I. The High Court of Justice. With the limitations mentioned below, the Queen's Bench Division has jurisdiction to decide all disputes arising on charterparties and bills of lading. The Court of Admiralty had, before 1873, no original jurisdiction over claims arising on charterparties and bills of lading {a), other than that arising under the Act of 1861 (b). The Judicature Act of 1873 (c) gave to every judge of the High Court any jurisdiction which might have been exercised by any single judge of the Courts whose jurisdiction was transferred to the High Court. The two judges of the Admiralty Division have therefore, now, besides their original jurisdiction under the Act of 1861 (i), the same jurisdiction to deal with disputes arising on charterparties and bills of lading as is possessed by any judge of the Queen's Bench Division. The limits of the jurisdiction of the High Court arise : — (a) Cf. The Cargo ex Argos (1872), L. R. 5 P. C., at p. UG. (6) 24 Vict. c. 10, § 6, vide post, p. 301. (c) 36 & 37 Vict. c. 60, § 39. 300 JURISDICTION. (I.) When the defendant is out of the jurisdiction ; or (II.) When the amount in dispute and recovered is less than £50. (I.) When the defendant is out of the jurisdiction {i.e. out of England and Wales), leave to serve a writ upon him out of the jurisdiction, thus subjecting him to the juris- diction of the English Courts, can be obtained : — (1.) When the action is founded on any breach within the jurisdiction of any contract wherever made, which, according to the terms thereof, ought to be performed within the jurisdiction, unless the defendant is domiciled or ordinarily resident in Scotland or Ireland {d). Thus where freight is to be paid in England, or tlie goods delivered in England, a case for service under this rule would arise, but the contract must expressly or by implica- tion require performance within the jurisdiction. Thus, in Bell V. Antwerp Line (e), a charterparty under which the charterers agreed to indemnify the shipowners against lighterage which would be incurred at Kio was held not to fall within this rule. It follows from the same case that it is not enough that part of tlie contract as to which no breach is alleged is to be performed within the jurisdiction; the breach complained of must be of a part of a contract to be performed within the jurisdiction. (2.) When any person out of the jurisdiction is a neces- sary or proper party to an action properly brought against some other person duly served within the jurisdiction (/). Thus, in Masseij v. Heynes (g), where a foreigner disputed that lie was bound by a charter made by an alleged agent of his in England, leave was given to serve him under this rule in an action against himself on the charter, or in the alter- native against the agent for breach of warranty of authority. But in Flower v. Rose (h), a writ issued against a Scotch ship- ((0 Order XI., r, 1, sub-s. E. See Co)nbcr v. Leyland (1898), A. C. 524. (e) (1891), 1 Q. B. 103; cf. The Eider (1891), P. 119 ; Thompson v. Palmer <1893), 2 Q. B. 80. (/) Order XI., r. 1, sub-s. G. ((/.) (1888), 21 Q. B. D. 330. See also tlie same procedure in Bennetts v. Mcliwraith (1896), 2 Q. B. 464. (/O 7 T. L. R. 280; cf. also Witted v. Galbmith (1893), 1 Q. B. 577. JURISDICTION. 301 owner and a London broker to settle the amount of liability on a general average bond was not allowed to be served on the Scotch shipowner, on the ground that the broker was colourably joined and not a proper party to the action. Where a proposed defendant is out of the jurisdiction, another remedy is furnished by the Admiralty Jurisdic- tion Act, 1861 (i). (XL) The limitations on procedure in the High Court occasioned by the amount in dispute and recovered are as follows (Ic) : — (1.) If the plaintiff brings in the High Court an action founded on contract, and recovers less than £20, he shall have no costs, if the action could have been commenced in the County Court. If he recovers more than £20, but less than £50, he shall not be entitled to any more costs than he would have obtained on such a judgment in the County Court {I). (2.) If such an action is founded on tort, and the plain- tiff recovers less than £10, he shall have no costs ; if more than £10 but less than £20, he shall have only County Court costs (/). But in either case the High Court may certify for costs on the High Court scale (Z). (3.) If, in the Admiralty Division, the plaintiff recovers less than £300 in an action which could have been com- menced in a County Court, he does not necessarily lose his costs (m), though the judge in his discretion may deprive the plaintiff of his costs on that ground {n). II. The County Courts have jurisdiction of the following kinds : — (I.) Common Law : — (a.) Original : (b.) Eemitted. (i) 24 Vict, c, 10, § 6 ; see Article 77, ante. Ik) County Courts Act, 1888, § 116. (/) As to the power of the High Court to give full costs, and the cases decided on this statute, see " The Annual Practice." (m) Sockett v. CUpping,l,ilc (C.A.) (1891), 2 Q. B. 293 ; deciding that § 9 of 31 & 32 Vict. c. 71 is impliedly repealed. (w) Cf. The Herald (1890), 63 L. T. 324 ; The Asia (1891), P. 121 ; The Salthurn (1892), P. 333. Otherwise, if the action could not have been brought in the County Court : The Zeta (1892), P. 285. 302 JURISDICTION. (a.) Original Jurisdiction. — Where the debt or damage ■claimed does not exceed £50 (o). This may be increased by an agreement by the parties in writing (^i). (b.) Remitted. — Actions of contract where the claim does not exceed £100, though over £50, commenced in the High Court may be remitted to the County Court {q). There is no penalty in the shape of disallowance of costs if they are not remitted. (II.) Admiralty Jurisdiction as to charterparties and bills of lading rests on tiie Acts of 1868 and 1869 (r), which give County Courts having Admiralty Jurisdiction power to deal with the following causes : — "Any claim for damage to cargo ... in which the amount claimed does not exceed £300." " Any claim arising out of any agreement made in relation to the use or hire of any ship (s), or in relation to the carriage of goods in any ship, and any claim in tort in respect of goods carried in any ship, provided the amount claimed does not exceed £300." The County Courts have jurisdiction in cases of charter- parties and bills of lading, though the Court of Admiralty had no original jurisdiction in respect thereof {t). Cases brought on the Common Law side of the County ■Courts can be commenced : — (1.) In the Court within whose district the defendant resides or carries on business at the time of plaint (w). (2.) By leave, either in the Court within whose district ihe cause of action wholly or partly arose, or in the Court in which the defendants or one of them dwelt or carried (o) County Courts Act, 1888, § 56. (jj) i6u/. § 64. This jurisdiction is not ousted by the concurrent jurisdiction •of the Court in Admiralty to the extent of £300 : see Beg. v. Juihic of Southend C. C. (1884), 13 Q. B. D. 142 ; Scovdl v. Bcvan (1887), 19 Q. B. D. 428. (q) Act of 1888, § 65. (r) 31 & 32 Vict. c. 71, § 3; 32 & 33 Vict. c. 51, § 2. (s) This does not cover bottomry bonds : The Elpis (1872), L. R. 4 A. & E. 1 ; or Cardifif colliery guarantees: The Zeus (1888), 13 P. D. 188. (t) Cargo ex Argos (1872), L. R. 5 P. C. 134 ; The Alina (1880), 5 Ex. D. 227 (C.A.) ; Eeg. v. Judge of Gitg of London Court (1892), 1 Q. B. 273 (C. A.) ; Pugsley V. Hopkins (1892), 2 Q. B. 184 (C.A.). 00 Act of 1888, § 74, JURISDICTION. 303 on business within six montlis before the issue of the plaint {v). A remitted case on the Common Law side will be sent either to the Court in which it might have been commenced, as above, or to any Court convenient tlioreto {x). Cases on the Admiralty side may be commenced : — (1.) In the Court having Admiralty jurisdiction in which they could have been commenced as Common Law actions (y) ; or (2.) In the Court within the jurisdiction of the vessel {z) or property to which the cause relates is at the commence- ment of the proceedings (a). (3.) If (2) does not apply, and only then, in the Court in or nearest to whose district the owner of the vessel, or property to which the cause relates, or his agent in England resides {h). The old limit of the right of appeal against decisions of the County Cotirt in Admiralty to cases where more than £50 is recovered is repealed by § 120 of the County Courts Act, 1888 (c). ■ (k) Act of 1888, § 74. Ix) Ihid. § 65. (y) Ibid. § 74 ; The Hero (1891), P. 294. (-?) This includes the chartered vessel in an action on a charterparty : Thr (Jountij of Durham (1891), P. 1, In an action of demurrage against consignees of cargo, the cause i-elates to the ship, not to the cargo : Fugslcy v. Ropkins (1892), 2 Q. B. 184 (C.A.). (,() 31 & 32 Vict. c. 71, § 21. (6) 31 & 32 Vict. c. 71, § 21 ; Pugslcy v. EopUns, v.s. (c) The Eden (1892), P. 67. ( ^!04 ) SECTION XIV. The Commercial Court. The judges of the Queen's Bench Division of the High Court of Justice on May 24, 1894, passed a series of resolu- tions as to the conduct of the business of the Queen's Bench Division, of which Eesolution 14 was as follows : — " That it is desirable that a list should be made of commercial causes to be tried at the lioyal Courts of Justice by a Judge alone, or by Jurors summoned from the City, and that a Com- mercial Court should be constituted of judges to be named by the judges of the Queen's Bench Division." To carry out this resolution, in February, 1895, rules made by the judges of the Queen's Bench Division were pub- lished, and Mr. Justice Mathew, who, together with Lord Kussell of Killowen, Lord Chief Justice of England, and the present Lord Justice Collins, were the first judges nominated as judges of the Commercial Court by the judges of the Queen's Bench Division, sat for the first time in the Commercial Court on March 1, 1895. The rules above referred to were as follows : — Commercial Causes. Notice. The judges of the Queen's Bench Division desire to make, in accordance with the existing rules and orders, further provision for the dispatch of commercial business as herein provided : — 1. Commercial causes include causes arising out of the ordi- nary transactions of merchants and traders ; amongst others, those relating to the construction of mercantile documents, export or import of merchandise, affreightment, insurance, banking, and mercantile agency and mercantile usages. TEE COMMERCIAL COURT. 305 2. A separate list for summonses in commercial causes will be kept at chambers. A separate list will also be kept for tlie entry of such causes for trial, but no cause shall be entered in such list which has not been dealt with by a judge charged with commercial business, upon applications by either party foi- that purpose, or upon summons for directions or otherwise. 3. With respect to town commercial causes, it is considered desirable, with a view to dispatch and the saving of expense, that all applications shall be made direct to the judge charged with commercial business, and with respect to country com- mercial causes applications may, by consent of the parties, be made to him in like manner. 4. As to commercial causes already entered for trial, applica- tion may be made to such judge by either party to enter the same in the commercial cause list. 5. Applications in commercial causes under Order XIV. shall be made as heretofore, but where leave to defend has been given such causes may be dealt with like other commercial causes. 6. Application may be made to such judge under the pro- visions of the Judicature Act, 1894, and the rules thereunder, or by consent, to dispense with the technical rules of evidence, for the avoidance of expense and delay which might arise from commissions to take evidence and otherwise. 7. Application may also be made to such judge, after writ or originating summons, for his judgment on any point of law. 8. Such judge may at any time after appearance, and with- out pleadings, make such order as he thinks fit for the speedy determination, in accordance with existing rules, of the questions really in controversy between the parties. 9. Parties may, if they so desire, agree that the judgment or decision of such judge in any cause or matter shall be final. 10. Application may be made to such judge in urgent cases to fix an early day for the hearing of any cause or matter. 11. Summonses may be entered in the list of commercial summonses on and after Wednesday, the 20th day of February next; these will be heard by Mr. Justice Mathew, who, on Friday, the l>st day of March next, will sit, and thenceforward will, until further notice, and as far as is practicable, con- tinue to sit (de die in diem) for the dispatch of commercial business. Where necessary, other judges of the Queen's Bench Division will assist in the disposal of commercial business. 12. Country commercial causes will be tried, as is usual, at the assizes. By order. X 306 THE COMMERCIAL COURT. ■ Order dated 25th June, 189G. Commercial Causes. Great inconvenience has been caused in the arrangement of the Commercial List of cases, through parties who have had days fixed for trial not apprising the Court of the settlement or withdrawal of such cases. The result has been that other parties who would have been able to try their cases on those days have been unable to secure them, and days are thereby frequently wasted so far as the Commercial List is concerned. The parties are required, therefore, in cases for which day& have already been fixed, to give, where time will admit of it, notice to the clerk to the judge having charge of the Commer- cial List, seven days before the day fixed for the trial, that they will be prepared to try on such day ; otherwise such cases will be struck out of the list. Where time will not admit of seven days' notice, the earliest practicable notice must be given. As to cases in which days for trial shall hereafter be fixed, a like notice must be given (unless otherwise specially ordered), and on failure to give the required notice in any case, such case will be struck out of the list. The procedure of the Commercial Court thus established does not depend on any hard and fast rules, but, while vary- ing slightly according to the views of the particular judge taking the list at any time, runs on fairly well defined lines, the object of the Court being to get the real question in dispute tried as soon as possible, with as few technicalities as to parties or evidence, and as few preliminary proceed- ings as possible. The first step is to apply for transfer of the Cause to the Commercial List. This application is usually made as the first head of claim in a summons, a form of which will be found below, asking for directions as to all interlocutory proceedings up to the trial of the action. All summonses in the Commercial Court are heard by the judge, questions of taxation only being referred to one particular master. The application for transfer may be made ex jparte {a), but the other party can subsequently set aside the transfer. (a) Barric v. Peruvian Corporation (1896), 1 Q. B. 208 (C.A.). THE COMMERCIAL COURT. 307 if the case is not a commercial one. The application is, however, only made ex parte if it is desired to make an urgent application immediately on issue of the writ, when the ex parte application can be made for transfer and for an interim injunction, or other urgent order. In cases where it is desired to serve a writ out of the jurisdiction in a com- mercial case, the practice is to issue an ordinary writ, apply for its transfer to the Commercial Court, and for leave to serve a concurrent writ or notice of writ, as the case may be, out of the jurisdiction. Any subsequent application by the defendant must then be made to tlie judge taking the Commercial List. For a cause to be entered in the list it must be a " com- mercial cause." A definition of such a cause is attempted in rule 1 ; but the definition does not throw much light on the matter. The definition really depends on the views of the particular judge taking the list at the time. If the parties consent to the transfer, the judge does not closely scrutinise whether the case comes within any particular definition. In cases where the transfer is opposed, it becomes necessary to decide whether the cause is com- mercial. Speaking generally, cases relating to policies of insurance, charterparties and bills of lading, and banking, are always transferred. Cases relating to the Stock Ex- change are transferred if they appear to involve substantial questions as to the rules and usages of the Stock Exchange, but not if they are mere debt-collecting actions and claims for differences. Cases relating to bills of exchange stand on somewhat the same footing ; any case involving a real question under the law merchant is transferred, but mere debt-collecting actions on accommodation bills are not. Many company cases are transferred, especially those in- volving the construction of agreements for promotion, reconstruction, and similar matters ; some, but not many, cases of misrepresentations in prospectuses have been dealt with. Cases relating to the sale of goods, especially for shipment or import, are always taken, unless they appear to be mere debt-collecting actions, involving no point of X 2 308 TEE COMMERCIAL COURT. commercial law or usage (b). Cases relating to the above matters may be transferred from the Chancery Division (c). When a case is transferred, at the same time directions for its trial are usually given on a summons, a form of which is printed at the end of this chapter. Points of Claim and Defence. — These are substituted for the Statement of Claim and Defence in the High Court Rules. They are intended to be shorter and less technical than pleadings, and to tell the opponent and the Court what the points to be raised are ; they should, however, include particulars where particulars are necessary. At first the practice of the Court was to make the delivery of points of claim and defence simultaneous. Now seven days is usually allowed for points of claim, and seven days following their delivery for points of defence, but these times are frequently shortened. Interrogatories are rarely allowed, and then only few and short ones. Their chief justification is to avoid a com- mission, for which object the Commercial Judge will permit a great deal. The information asked for by interrogatories is frequently ordered to be given by way of particulars. Lists of Documents. — These take the place of the old affidavits of documents ; they are not sworn to, and the £5 fee is not required. The judges expect solicitors and counsel practising before them to see that the lists of documents, though not on oath, are complete, and any case of non- disclosure of a material document seriously prejudices the case of the party failing to disclose it. Mode of T^'ial. — It is not uncommon to order preliminary questions of law or construction, which if decided one way may put an end to the litigation, to be tried at once. The Court of Appeal has, however, intimated that where such an order is made, the trial of the main question must be postponed till the appeal, if any, is disposed of {d). (6) The note in the Annual Practice, 1899, p. 639, has been stated by JIathew, J., in chambers, to be incorrect as a general rule. (c) Bacrlcin v. Chartered Bank (1895), 2 Ch. 488. {d) The Maori King (1895), 2 Q. B., at p. 556. Such appeals are put by the C.A. in the final list of appeals, though interlocutory notice may have to be given. THE COMMERCIAL COURT. 309 Most of tbe cases tried in the Commercial Court are tried without a jury ; but if a jury is desired it is usually granted in a suitable case ; a condition is sometimes imposed that if the jury disagree, the matter shall be decided by the judge. Evidence. — The only powers of the Court in the absence of consent are not peculiar to it, but are derived from Order XXX., rule 7, of the Rules of the High Court, viz. : — " On the hearing of the summons " (for directions) " the Court or a judge may order that evidence of any particular fact to be specified in the order shall be given by statement on oath of information and belief, or by production of docu- ments or entries in books, or by copies of documents or entries, or otherwise as the Court or judge may direct:" and from that part of Order XXXVII., rule 1, which directs that "a judge may at any time, for sufficient reason, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or judge may think reasonable." These rules, of course, apply to all divisions of the High Court, but are not habitually acted upon except in the Commercial Court. In practice logs, protests, and average statements are constantly used as evidence of the facts stated therein ; the evidence of foreign witnesses is received by sworn declarations or affidavits communicated to the other side before an order is made for their admission as evidence, and commissions are very rarely granted, except on terms that their costs are reserved to the judge at the trial, and with the prospect of the party whose objection has rendered them necessary having to pay the costs thereof in any event. Time of Trial. — The judge frequently fixes a day for the trial on the hearing of the summons to transfer. In this case the practical inconvenience arises that the case cannot be entered for trial in the Associate's List until the pleadings, or the points corresponding thereto, are closed, and a fee paid. The Judge's List and the Associate's List are therefore widely dissimilar. Where cases stand 1, 2, o for May 1, 310 THE COMMERCIAL COURT. in the Judge's List, the Associate's List may show only 3 entered, which will take precedence of 1 and 2 accordingly. The remedy appears to be to treat the Judge's List as the Associate's List, to require the fee to be paid when the order fixing the day is drawn up, to allow subsequent deposit of pleadings with the associate, and to make it the duty of the solicitors in the cause to communicate settlement of case forthwith to the Court, allowing a suitable fee on taxation. The judges who, up to the end of the year 1898, have sat in the Commercial Court, are as follows : — Lord Russell of Killowen, L.C.J. ; Mathew, J. ; Collins, J. ; Kennedy, J. ; Bigham, J. ; and (for a short time, though not on the Rota,) Bruce, J. The proceedings of the Court are far quicker than those of the ordinary lists of the Queen's Bench Divisions, actions being frequently disposed of in less than a month from writ issued, and, it is believed, are considerably cheaper, and more satisfactoiy to commercial men. Form of Comjiercial Summons. Let all parties attend (formal ixirts) on the hearing of an application : — That the action be transferred to the Commercial List. That points of claim be delivered by the plaintiffs in seven days. That points of defence be delivered by the defendants in seven days afterwards. That lists of documents be exchanged between the parties ten days after delivery of points of defence. That the action be tried with [or without] a jury on That the costs of this aj)plication be costs in the cause. ( 311 ) APPENDIX I. Forms of Charters and Bills of Lading. J HAVE not thought it necessary to set out a large number of bills of lading, though all the forms used by the leading ship- owners of London and Livex'pool have been considered in writing the previous pages. A collection of such bills will also be found in Mr. Leggett's book on Bills of Lading, but it is difficult to see how they increase the value of a work like this. Certain forms of charters and bills of lading have, however, been agreed upon as a compromise by merchants and shippers in the particular trades to which they refer, approved by the Chamber of Shipping of the United Kingdom, and to some extent enforced through the machinery of the Marine Insurance Clubs, and I have accordingly inserted them, adding references to the articles where each clause will be found discussed. The following forms are annexed : — A. Chamber of Shipping Welsh Coal Charter, 1896. [Some- what similar coal charters have been approved by the Chamber of Shipjung for the North-East Coast (Tees to Berwick), and for Scotland.] B. Net Grain Charter. C. Anglo-American Cotton Charter, as agreed in London, July, 1895. D. The 1890 Black Sea Charter. E. Mediterranean, Black Sea, and Baltic Grain Cargo Steamer Bill of Lading, 1890. F. General Produce, Black Sea, Azoff, and Danube Bill of Lading, 1890. G. Time Charter. H. Negligence Claixse. 312 APPENDIX I. (A.) CHAMBER OF SHIPPING WELSH COAL CHARTER, 1896. It is this day mutually agreed between Messrs. (a) Owner of the good Screw Steamer called the classed of tons net register (h) tons deadweight, exclusive of bunkers, or thereabouts. Master, now (c) , and expected ready to load about (c) and Messrs. , as Agents for the Charterers (d), 1. That the said Steamer being tight, staunch, and strong, and in every way fitted for the Voyage (e), shall, with all possible dispatch, sail and proceed to Newport (Alexandra Dock), Cardiff, Penarth, or Barry (/), and there load, always afloat {g), in the customary manner (/i), from the Charterers, in such Dock as may be ordered by them on or before arrival in Barry Roads (t), a full and complete Cargo of (Ic) Coal nat exceeding tons, nor less than tons, and not exceeding what she can reasonably stow and carry, over and above her Tackle, Apparel, Provisions, and Furniture ; and being so loaded, shall therewith proceed, with all possible dispatch, to (/) or so near thereunto as she can safely get (J), and there deliver (m) her Cargo alongside (h) any Wharf, and/or Vessel, and/or Craft, as ordered, where she can safely (o) deliver, always afloat (g), but if required to shift, the expense of so doing to be paid by the Consignees, and the time to count ; on being paid Freight at the rate of per ton of 20 cwts. or 1,015 kilos delivered (jp), or on Bill of Lading quantity, less Two per cent, at Receiver's option, to be declared in writing before bulk is broken. If the Receiver should elect to weigh the Cargo at the port of destination, the weighing shall be done (by an official weigher) at his expense. The Owner may provide a check weigher at Steamer's expense. Should any deficiency be alleged on the authority of such weighing, it shall affect the freight only, from which no deduction shall be made for alleged shortage of Cargo, any custom of the port of discharge notwithstanding, but the Owner shall furnish, if required, a Statutory Declaration by the Master and other officers that all the Cargo received on board has been delivered. The Freight is in full of Trimming, and of all Port Charges, Pilotages, and Consulages on the Vessel. All Wharfage dues on the Cargo to be paid by the Charterers. 2. A sailing telegram to he sent to the Charterers on Steamer leaving her last port, or in default twenty-four hours more to be allowed for loading. 3. The Cargo to be loaded in running hours {q) (excluding Bunkering time, Sundays, Custom House, Colliery, and Local Holidays, Easter Monday and Tuesday, Whit Monday and Tuesday, and three days following Christmas Day, and from 5 p.m. on Saturday or the day previous to any such holiday to 7 a.m. on Monday or the day after any such holiday unless used) commencing when written notice is given of Steamer being completely discharged of inward cargo and ballast in all her holds and ready to load, such notice to be given between business hours of 9 a.m. and 5 p.m., or 1 p.m. on Saturdays. Any time lost (a) Articles 11 et scq. (i) Article 39. (6) Article 25. {k) Article 46. (c) Article 27. (/) Article 36. {(() Article 11. (m) Articles 123 ct seq. (c) Article 29. (n) Article 43. (/) Articles 30, 33. (o) Article 37. (-) Article 84. («) Oa these exceptions, see Section VI. (s) Article 79, p. 172. {x) Articles 99, 100. It) Article 19. 314 APPENDIX I. ■discharge, free of expense and risk to the Steamer, at the average rate of tons per day, weather permitting, Sundays and holidays excepted, provided Steamer can deliver it at this rate ; if longer detained Consignees to pay Steamer demurrage at the rate of fourpence per net register ton per running day (or ^yro rata for part thereof). Time to commence when Steamer is ready to unload and written notice given, whether in berth or not. In case of strikes, lock-outs, civil commotions, or any other causes or accidents beyond the control of the Consignees which prevents or delays the discharging, such time is not to count, unless the Steamer is already on demurrage. Consignees to effect the discharge of the Cargo, Steamer paying per ton of 20 cwt., or 1,015 kilos, and providing only steam, steam winches, wiuchmen, gins, and falls. 9. The Freight to be paid if required by the Owner, on signing Bills of Lading (Ship lost or not lost) in Cash (?/), less per cent, for Insurance and Interest (the Owner or his Agent giving Charterers or Shippers written notice before the Steamer commences loading, if any advanced freight is required), and the remainder on right delivery of the Cargo (z), in sufficient Cash for Steamer's ordinary disbursements at current exchange, and the balance by a good and approved Bill on London at three months' date, or in Cash equal thereto at Captain's option. The Receivers of the Cargo to be bound to pay Freight on account during delivery, if required by the Captain. The Charterers' account at port of loading to be paid when rendered, otherwise the Charterers may deduct it on settlement of Freight at port of destination (together with a charge of Three per cent, to cover all charges, including Insurance and Interest). 10. The Steamer to be free of address at Port of Discharge, but to pay the usual Commission of Two per cent, on the amount of Freight on •signing Bills of Lading. 11. In case of Average, the same to be settled according to the York- Antwerp Rules, 189(), and as if the Vessel were British. Should the Vessel put into any Port or Ports leaky or with damage, the Captain or Owner shall without delay inform the Charterers thereof. 12. Loading hours not to commence before 9 a.m. on and if Ship be not ready in loading dock as ordered before 9 a.m. on or if any wilful misrepresentation be made respecting the size, position, or state of the Steamer, Charterers to have the option of cancelling this Charter, such option to be declared on notice of readiness being given. 13. The Charterers' liability shall cease as soon as the Cargo is shipped, and the advance of Freight, Dead Freight, and Demurrage in Loading (if any) are paid, the Owner having a lien on the Cargo for Freight, Demurrage, and Average (a). 14. Penalty for non-performance of this Agreement, proved damages, not exceeding the estimated amount of Freight {h). 15. The Brokerage of Five per cent, is due to , on the cargo being loaded. (B.) NET GRAIN CHARTERPARTY. It is this day mutually agreed between (o) Owners of the good Steamship called the of the measurement of tons nett or thereabouts {d), and guaranteed Units of 480 lbs. (y) Article 137. (6) This clause is worthless and unen- («) Articles 136, 145. forceable. («) Articles 53, 54. (c) Articles 11 ct seq. ((?) Article 25. APPENDIX I. 315 Wheat or Maize, ten per cent, more or less {d) now (e) and Merchants, That the said Steamer shall, with all convenient speed (/) (having liberty to take outward cargo for owners' benefit ) sail and proceed to ((/) New Orleans, Galveston, Pensacola, Mobile, New York, Philadelphia, Baltimore, or Norfolk and/or Newport News, orders for loading port to be given within 24 hours after receipt of notice of arrival at Port Eads, if in ballast; or before completion of discharge, if taking cargo to United States, West Indies or neighbourhood ; owners to give Charterers reason- able notice of when orders are required (Ji), and that the said Steamer, being tight, staunch, and strong, classed and in every way fitted for the voyage {i), shall load as customary (Jc) always afloat (?) from the Agents of the said Charterers a full and complete cargo (in) of Wheat, and/or ^laize, and/or Rye, at Charterers' option, in bulk, and/or Sacks which said Merchants bind themselves to ship, not exceeding what she can reasonably stow and carry, over and above her Cabin, Crew, and Fuel Spaces, Tackle, Apparel, Provisions, and Furniture, and being so loaded shall proceed under steam direct to {)i) Queenstown or Falmouth for orders to discharge at a safe port (o) in the United Kinsjdom, or on the Continent between Bordeaux and Hamburg, both inclusive (Rouen excluded), or to a direct port within above range, orders to be given on signing Bills of Lading or so near thereunto as she may safely get (^>), and there deliver (5') the same where she can lie safely (r) always afloat (/), agreeably to Bills of Lading, on beins paid Freight, in British sterling, at the rate of per Ton of 2,240 lbs. delivered in fall (s). Charterers to have the option of ordering the Steamer to Queenstown or Falmouth for final orders as to port of discharge in United Kingdom or Continent, which are to be given within 12 hours of arrival (or lay days to count); Freight in this case to be five per cent, additional if ordered to the Continent. Charterers have the option of ordering the Steamer to Gibraltar for orders, which are to be given within 12 hours of arrival, or lay days to count (unless ordered direct on signing Bills of Lading), to discharge at Gibraltar or a good and safe port (0) in the Adriatic or Mediterranean, as above defined, Spain excluded. Charterers have the option of ordering the Steamer to Frederikshavn, Elsinore, or Copenhagen (at Master's option), for orders, which are to be given within 12 hours of arrival, or lay days to count (unless ordered direct on signing Bills of Lading), to discharge at one of the following ports, viz. : Gothenburg, Aarhuus, Copenhagen, Kiel, Nyborg, Helsingborg, Malmo, Landscrona (Stettin to discharge below the bridges). New Fair- water, Stockholm, Pillau, or Reval, and for purposes of Freight to be considered as given on signing Bills of Lading. Orders for these ports may be given at Queenstown or Falmouth within 12 hours of arrival, or lay days to count, in which case rate of Freight to be five per cent, extra. The Freight to be ^mid on unloading and right delivery of the Cargo (s) in cash if discharged in U. K., or if abroad, in cash at current rate of Exchange, short sight on London. (() Article 27. (m) Article 46. (/) Article 30. (») Articles 30, 33. (<7) Article 33. {o) Article 34. (h) Article 35. {}>) Article 36. (J) Article 29. () Article 145. 316 APPENDIX 1. Cash for Captain's ordinary disbursements at port of loading to be advanced, if required, Steamer paying Two-and-a-half per cent, com- mission and cost of insurance thereon, the amount of advance to be covered by Captain's draft, payable three days after ship's arrival at port of discbarge out of Freight and on which the draft shall form a charge (t). Loss, damage or detention by the Act of God, restraints of princes and rulers, public enemies or people, quarantine, epidemics, pirates or robbers, barratry of the Master or Crew, fire from any cause or wheresoever occurring, perils of the sea or other waters, riots, strikes or stoppages of labour, or lockouts of seamen or shore labourers, whether partial or otherwise, and any consequence thereof; explosions, bursting of boilers, breakage of shafts, or any latent defect in hull, machinery or appurtenances, collisions, stranding, or other accidents of the seas, rivers, canals, and navigation of whatsoever kind (even when, occasioned by the negligence, default or error in judgment of the Pilot, Master, Mariners, or other servants of the Shipowner, not resulting, however, in any case from want of due diligence by the owners of the Ship or any of them, or by the Ship's Husband or Manager), or any other extraordinary occurrence beyond the control of either party always mutually excepted ('/). General average shall be adjusted according to York-Antwerp Rules, 1890 {x). It is also mutually agreed that this shipment is subject to all the terms and provisions of and all the exceptions from liability contained in the Act of Congress of the United States, approved on the 13th day of February, 1893, and entitled, "An Act relating to Navigation of Vessels," etc., and Bills of Lading are to be signed in conformity with said Act (?/). Steamer to have liberty to sail with or without pilots, and to tow and assist Vessels in all situations (2), also (if loaded at a Gulf port) to coal at Norfolk or Newport News, in which case Charterers or their Agents have the option of giving orders there ; said orders to be given within 12 hours of arrival, or lay days to count, and for purposes of Freight to be considered as given on signing Bills of Lading. Captain to give written notice before signing Bills of Lading whether he calls for coal or not, and at which coaling station. Steamer to have liberty to coal at a port in the United Kingdom or Copenhagen, if ordered to the Sound or IBaltic ; or at Gibraltar, if ordered to the Mediterranean or Adriatic (2). Vessel to load under inspection of Underwriters' Agents and to comply with their rules. The Cargo to be brought, and taken from, alongside (a) the Steamer, at Merchants' risk and expense. Charterers to have the privilege of designating a wharf or wharves for loading. Charterers are to load, stow, and trim the Cargo at their own expense, under the direction of the Master, but they shall not be responsible for improper stuwage (h). Charterers to i:)ay American tonnage dues, pilotage, and all port charges incidental to the homeward cargo at loading port, including elevating, stevedore, wharfage, and tarpaulins, and to provide and fill sacks required to secure bulk grain, also dunnage mats and ceiling, and to provide an agent for Custom House business ; but Owners to pay all port and other charges incidental to any outward Cargo they may take to loading port. Charterers' Agents to pay cost of discharging cargo, pilotage, and all port charges incidental to the homeward cargo at (J,) Article 137. (?/) Appendix V., p. 367. (m) On these exceptions, see Section VL, (2) Articles 99, 100. pp. 168-188. ('') Article 43. (x) Appendix IV., p. 361. {h) Article 50. APPENDIX I. 317 the dischari!;ing port to which Steamer may be ordered, and to provide an ad. per net register ton, in consideration of which Charterers agree to pay port charges at loading port or ports on outward cargo, viz. : Levee dues, quarantine fees (but not fumigating), wharfage, watching, tarpaulin hire or shed dues and outward pilotage ; also U.S. tonnage dues and inward pilotage for vessels arriving in ballast. 8. Vessel to furnish the use of her steam winches (with steam sufficient to drive them) and tackle in loading, also to load at night and/ or Sundays and holidays if required by Charterers, thej' paying all extra expenses and labour incurred. Vessel to trim her ballast as required. Charterers to have the option of loading the vessel in the channel, bay, or stream, or of designating the wharf for loading, and if required b}' them to shift more than once, they to pay the cost of towage ; and it is agreed that the cargo shall be delivered according to the customs and usages of the ports of discharge, unless otherwise expressed herein {ff). Vessel shall, if ordered to a bar port, load at the wharf or in the channel, bay, or stream, to such a draught as the Pilots deem safe to cross the bar. Such draught to be at least six inches less thp.n the officially notified water on the bar. The Master is, however, at liberty to cross the bar on any less draught than above stipulated, on condition that Vessel pays such extra expenses as may be incurred thereby. In all other cases the whole expense of loading outside the bar (including lighterage) to be paid by Charterers as per clause 7. In any event all cargo lightered to be at shipper's risk. 9. Master to sign Bills of Lading as and when presented without reference or prejudice to this contract, on receipt of Press orders and shipi^er's guarantee to keep cargo insured ; and in the absence of fraud, clerical or obvious errors, the Bills of Lading, if signed by the Master, and the number of bales agree with the Mate's and/or tally clerk's ((f) Article 131. (/) Article 50. (e) Articles 128 ct scq. (ff) Article 8. APPENDIX I. 321 receipts, shall be conclusive evidence against the owners of the quantity ■of cargo shipped. In regard to cotton shipped on Through Bills of Lading from interior points, it is agreed and understood that the cargo described in the " Master's Receipt " or " Master's Bill of Lading " shall be delivered at tlie port of discharge upon presentation of the said Through Bill of Lading provided that the ])articulars agree with those stated in «uch Master's lleceipt or Bill of Lading. The freight as per Bills of Lading (and/or Through Bills of Lading) is to be accepted by the Master and/or owners towards payment of the amount of chartered freight due under this Cliarter Party. Any difference iu amount of freight between the Bills of Lading (and/or Through Bills of Lading), and the total gross chartered freight, as above, to be settled at port of loading before the vessel sails ; if in vessel's favour, to be paid in cash at current rate of ■exchange, less vessel's disbursements, and insurance and commission on same ; if in Charterer's favour, by usual Master's Bill, payable 5 days after arrival at port of discharge, or upon collection of freight (whichever occurs first), and sucli bill is hereby made by Owners a charge on freight as per Bills of Lading, and the said freight is hereby hypothecated as security for said bill. The amount of said bill shall be fully insured against all risks from the time of signing Press or Mate's Receipts at Charterers' risk and expense, and be subject to General Average, Salvage Charges, and all risks incidental to freight. Certificate of Insurance to be attached to the Draft, and given up on payment of same. 10. Sufficient cash for vessel's necessary disbursements, if required by the Captain, shall be advanced at tlie current rate of exchange, vessel paying 2^ per cent, commission thereon, for which the ]\Iaster shall execute a legal draft payable 60 days after date thereof or five days after arrival at port of discharge, or upon collection of freight (whichever occurs first), against the amount of freight due under this Charter, and said freight and vessel are hereby hypothecated as security for said draft (which shall take precedence of all other claims against the vessel and her freight), and said draft shall be insured by the Charterers at vessel's risk and expense, the Certificate of Insurance to be attached to the Draft {g). 11. In case steamer is in general average at port of loading the xVgency shall remain with the Charterers (or their Agents), but the custody commission to be waived. 12. The vessel shall be consigned to Charterers or their Agents at port of loading, and be entered and cleared by them at Custom House, paying them per cent, commission on the freight, as per charter, and a fee of £10 10s. for doing ship's business. 13. All freight payable under this charter, on Through Bills of Lading, and on the usual ship's Bills of Lading and/or Master's receipts shall (sub- ject to the vessel's lien thereon for chartered freight) belong exclusively to the Charterers, and shall be collected by their Agents at the port of dis- charge, it being hereby agreed that the vessel shall be consigned to the said Agents, and pay them Ten Guineas for attending to the vessel's inward business ; if, however, the consignment at the port of discharge is placed in other hands, vessel shall pay them as liquidated damages the sum of £75, and shall pay the amount of the Captain's bill or bills for disburse- ments, and/or freight differences, in cash to the holders of the said bills on the day the said vessel is entered at the Custom House. All cai-go on (^) Article 137. 32:^ APPENDIX I. buard under this charter in excess of the aggregate quantity required by Bills of Lading shall belong to the Cliarterers and l)e delivered to their Agents at port of discharge without any claim by the ship, average and salvage claims excepted. 14. The Act of God, restraint of rulers and people, war, fire,, epidemics, strikes or lockouts of stevedore's men, draymen or press hands,, detention or destruction of goods on railway or at press, pirates, collisions, and all and every danger and accidents of the seas, canals and rivers, and of navigation of whatever nature or kind during tlie performance of this charter always excepted (Ji). Charterers or stevedores shall not be respon- sible for any damages occurring while loading or discharging cargo by reason of any defect in vessel's machinery or tackle, nor for neglect on the part of vessel's officers or crew. The vessel to have liberty to sail with or without Pikits, and to tow and to deviate for the purpose of and for assisting vessels in distress (i). It is also mutually agreed that this charter is subject to all the terms and provisions of and to the exemptions from liability, contained in the Act of Congress of the United States, re- lating to navigation, etc., approved on the 13th day of February, 1893 (K). General average shall be adjusted according to York/Antwerp Rules, ISilO (J). 15. If any dispute shall arise regarding any of the clauses in this charter, or as to any matter or thing to be done or omitted in pursuance- thereof, or as to any breach of the same, or as to the rights, duties or liabilities of either of the parties, it shall be settled by arbitration at the port where the dispute arises, one arbitrator being appointed by the- Owners or Master and the other by the Charterers or their Agents, and on appointment, and before proceeding with the reference, the two arbitrators shall choose an umpire, and the decision of the arbitrators and/or the umpire shall be final unless either party appeals to the Court in jurisdiction within thirty days after the delivery of the award, or so soon after that period as the Courts may be sitting. 16. Penalty for non-performance of this agreement to be proved damages not exceeding estimated amount of freight due imder this charter (7n). (D.) THE 1890 BLACK SEA CHARTBRPARTY. London, 18 It is this day mutually agreed between {n) Owner of the good Steamer called the Flag (o), and classed {p) of the measure- ment ^ Register Tons, or thereabouts (n), whereof is nett o J \i/^ Master, now (r) and of Freighters, 1. That the said steamer, being tight, staunch, and strong, and every way fitted for the voyage (s), having leave to take a cargo for owner's benefit,, from any ports in the United Kingdom, or Continent, or Mediterranean (/t) Section VI., pp. 168-188. (n) Article 11 ct seq. \i) Articles 99, 100. (o) Article 7. (/:) Appendix V., p. 367. {p) Article 2-1. (0 Appendix IV., p. 361. Iq) Article 25. (?n) Tiiis clause is worthless and un- (r) Article 27. enforceable. (s) Article 29. APPENDIX I. 323 direct, aud (or) to any ports in tlie Mediterranean, xidriatic, Black or Azolf Seas, and (or) any ports on tiie way (<), tiliall with all convenient speed, sail and proceed to (ii) and as there ordered by within six running hours of arrival, or lay days — Sundays only excepted — to count, to (u) or so near thereunto'as she may safely get (.;), and there load, always afloat (_?y), from the factors of the sa'd freighters, a full and complete cargo (z) (but not exceeding tons, English weight) of wheat and (or) seed and (or) grain at the option of the freighters (if a mixed cargo, notice of tlie descriptions and quantities to be given before loading commences, anil the heaviest goods to be supplied first) which said freighters bind themselves to ship, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture; and being so loaded shall therewith proceed to a safe port (ci)in the United Kingdom, or a safe (a) port on the Continent, between Havre and Humburg (both inclusive) or to a safe («) port in the xVdriatic or Mediterranean Seas (Spain excluded). 2. Orders for the United Kingdom, Continent, or other stipulated port, unless given on signing Bills of Lading, are to be given at Gibraltar within twelve running hours of arrival, or lay days — Sundays only excepted — to count. 3. The Charterer has the right to order the steamer from. Gibraltar to Queenstown, Falmouth or Plymouth (at Master's option) for final orders to be given within twelve running hours (twenty-four at Queenstown) of arrival, or lay days — Sundays only excepted — to count, for the United Kingdom, Continent, or for other stipulated Continental port not west of Havre, paying Is. per unit extra freight over and above the rates herein- after state•) Article 87. {z) See pp. 18'.', 183. (s) Article 88. {a) Article 89. (0 Article 81. (6) See Thr Gknlivd (1893). P. 164. Vy2(] APPENDIX I. absence of customary Ventilation, or by improper opening of Valves, Sluices, and Ports, or by causes oilier than those above excepted, and all the above exceptions are conditional on the Vessel being Seaworthy when she sails on the Voyage, but any Latent Defects in the Hull and (or) Machinery shall not be considered unseaworthiness, provided the same do not result from \\ ant of due diligence of the Owners, or any of them, or by the Ship's Husband or Manager (c). 15. No cargo (other than freighters') or cattle to be shipped without the written sanction of the shippers, except as herein provided. 16. The Master is to telegraph from Constantinople and (unless taking cargo to the loading port) from his last port of outward discharge to of naming the date of the steamer's departure and to apply to at for cargo, failing to telegraph as above three days are to be added to the lay days. 17. If the nation under whose flag the steamer sails shall be at war, whereby the free navigation of the steamer is endangered, or in case of blockade or prohibition of export of gi ain and seed from the loading port, this Charter shall be null and void at the last outward port of delivery or at any subsequent period when the difficulty may arise, j^revious to cargo being shipped. 18. The freighters' liability on this Charter to cease when the cargo is shipped (provided the same is \vorth the I'reight, dead freight, and demurrage, on arrival at port of discharge), the owner or his agent having an absolute lien on the cargo for freight, dead freight, demurrage, lighterage at port of discharge and average (ri). 19. The Mediterranean, Black Sea, and Baltic Grain Cargo Steamer Bill of Lading, 1890, is to be used under this Charter, and its conditions are to form part thereof (e). 20. Penalty for non-performance of this Charter, proved damages not exceeding the estimated amount of freight (/). 21. The steamer to be reported at the Custom House in London, Newcastle, Cardiff, or Newport, by , to whom five per cent, on the gross amount of freight and demurrage is due by the steamer on the signmeut of this Charter, steamer lost or not. (E.) MEDITERRANEAN, BLACK SEA AND BALTIC GRAIN CARGO STEAMER BILL OF LADING, 1890. Shipped, in good order and condition, by {g), in and upon the good Steamship called the (/;), under flag, whereof is master for this present voyage, now lying in (i), and bound for {k), with liberty to call at any ports on the way for coaling or other necessary purposes, to sail without pilots and to tow and assist vessels in distress, and to deviate for the purpose of saving life ; (J), and to be delivered in the like good order and condition at the aforesaid port of unto or to his or their assigns (//t), he or they paying (<•) Article 29. 0/) Article 52. ('/) Articles 53, 54. (A) Article 26. (r) Articles 18, 19. For the form, see (/) Article 27. Form E. snh. {k) Article 23. (/) This clause is worthless and unen- (/) Articles 99, 100. forceable. (/«) Article 56. APPENDIX I. 327 freight, "^ demurrage, if any, for the aaid goods and all conditions and exceptions of the chartorpiirtv, dated («), are incorporated herewith. The Act of God (o), Terils, Dangers, and Accidents of the Sea or other Waters (^j), of wliat nature and kind soever; Fire from any cause on Land or on Water (7), Barratry of the Master and Crew (r), Enemies (.s), Pirates and liobbers {I), Arrests and Restraints of Princes, Rulers and People (u), Explosions, Bursting of Boilers, Breakage of Shafts, or any latent defect in Hull, ■'^' Machinery (.;•), Strandings, Collisions, and all other Accidents of Navigation, and all Losses and Damages caused thereby are excepted, even when occasioned by negligence, default or error in judgment of the Pilot, Master, Mariners, or other Servants of the Ship- owners (?/), but, unless stranded, sunk or burnt, nothing herein contained shall exempt the Shipowner from liability to pay for Damage to Cargo occasioned by bad Stowage, by improper or insufficient Dunnage, or absence of customary Ventilation, or by improper opening of Valves, Sluices and Ports, or by causes other than those above excepted, and all the above exceptions are conditional on the Vessel being Seaworthy when she sails on the Voyage, but any Latent Defects in the Hull ^'^^ Machinery shall not be considered unseaworthiness, provided the same do not result from want of due diligence of the Owners, or any of them, or by the Ship's Husband or IManager (,<;). General Average payable according to York-Antwerp Rules, 1890 (;:). laying days have been used at the ports of Loading. In Witness whereof, tlie Master of the said Ship hath affirmed to three Bills of Lading, all of this tenor and date, one of which Bills being accomplished, the others to stand void. Dated in this day of 189 Weight, Quantity and Quality Unknown («). (F.) GENERAL PRODUCE, BLACK SEA, AZOFF AND DANUBE STEAMER BILL OF LADING, 1890. Shipped, in good order and condition by in and upon the good Steamship now lying in the port of and bound for with liberty to call at any jjorts for coaling ^ loading '™ discharging or other necessary purposes being marked and numbered as per margin, and to be delivered in like good order and condition at the port of unto or to his or their assigns, he or they paying freight on the said goods on delivery at the rate of and charges as per margin. It is mutually agreed that the Ship shall have liberty to sail without, Pilots ; to tow and assist vessels in distress ; to deviate for the purpose of saving life or property ; to convey goods in lighters to and from the Ship at the risk of the Owners of the goods but at Ship's expense ; and in case (n) Articles 19, 134. (0 Article 85. (0) Article 80. ((«) Article 82. Ip) Article 83. (x) Article 29. (7) Article 87. (//) Article 89. (»•) Article 88. (?) Appendix IV. (s) Article 81. (a) Article 52. 328 APPENDIX I. the Ship shall put into a port of refuge for repairs, to tranship the goods- to their destination by any other Steamship. The Act of God, Perils, Dangers and Accidents of the Sea or other Waters of what nature and kind soever, Fire from any cause, on Land or on Water, Barratry of tlie Master or Crew, Enemies, Pirates and Robbers, Arrests and Restraints of Princes, Rulers, and People, Explosions, Bursting of Boilers, Breakage of Shafts, or any latent defect in Hull ""^ Machinery, Strandings, Collisions and all other Accidents of Navigation, and all Losses and Damages caused thereby, are excepted, even when occasioned by negligence, default or error in judgment of the Pilot, Master, Mariners, or other Servants of the Shipowners, but unless Stranded, Sunk or Burnt, nothing herein contained shall exempt the Shipowner from liability to pay for Damage to Cargo occasioned by bad Stowage, by improper or insufficient Dunnage or absence of customary Ventilation, or by improper opening of Valves, Sluices, and Ports, or by causes other than those above excepted, and all the above exceptions are conditional on the Vessel being Seaworthy when she sails on the Voyage, but any Latent defects in the Hull ^~ Machinery shall not be considered unseaworthiness, provided the same do not result from want of due diligence of the Owners, or any of them, or by the Ship's Husband or Manager. The Shipowner is not liable for Loss or Damage occasioned by Decay, Putrefaction, Rus-t, Sweat, Change of Character, Drainage, Leakage, Breakage, or any loss or damage arising from the Nature of the goods or the insufficiency of packages ; nor for Land Damage ; nor for the obliteration or absence of Marks or Numbers ; nor for any loss or damage caused by the prolongation of the voyage. The Steamer, while detained at any port for the purpose of coaling, is at liberty to discharge and receive goods and passengers. The goods are to be applied for within 24 hours of Ship's arrival and reporting at the Custom House, otherwise the Master or Agent is to be at liberty to put into lighters or land the same at the risk and expense of the owners of the goods. In case of quarantine at any port, the goods destined for that port may be discharged into quarantine depot, hulk, or other vessel, as required for the Ship's despatch. Quarantine expenses upon the said goods, of whatever nature or kind, shall be borne by the owners thereof. The Master or Agent shall have a lien on the goods for freight and payments made, if any, or liabilities incurred in respect of any charges stipulated herein to be borne by the Owners of the goods. In case any part of the within goods cannot be found during the Ship's stay at the port of their destination, they are to be sent back by first Steamer, at the Ship's risk and expense, and subject to any proved claim for loss of Market, provided the goods are properly port marked. The Ship shall not be liable for incorrect delivery of packages unless each of them shall have been distinctly marked by the Shippers before shipment. General Average payable according to York-Antweip Rules. The Owner andi Consignee of the goods and Shipowner mutually agree to be bound by all of the above stipulations, exceptions, and conditions, notwithstanding any custom of the ports of loading or discharging to the contrary. In Witness whereof the Master or duly authorised Agent of the said Ship hath affirmed to three Bills of Lading, all of this tenor and date, one of which Bills being accomplished, the others to stand void. Dated in this day of 189 Weight, Quality, Quantity and Contents Unknown. APPENDIX I. 320 ■ (G.) TIME CHAIITEHPARTY. London 189 . It is this day luutually agreed between of the good Iron Screw- Steam Ship called the (h) of Tons gross Register, and Tons net Register (c), having engines of horses' power (cZ), and classed at Lloyd's Years, or Years in Liverpool Book, now and during hiring (e), of Tons dead weight or thereabouts, inclusive of fuel and stures, &c., now (/) and Messrs. Charterers. WITNESSETH, That the said Owners agree to let, and the said Charterers agree to hire the said Steam Ship for the term of calendar Months, from the day of for a voyage from to and back to , she being then placed at the dispnsal of the Charterers, at , in such Dock, or at such safe (0 APPENDIX I. of hire shall cease until she be again in an efficient state to resume her service. The Charterers are to put on board in London tons Coal ( ) lor Ship's use for the Voyage out and home, and which is to include the working of the Donkey Engines. Should this quantity be insufficient, the Owner of the Steamer undertakes to pay the cost of any further quantity {k). The time of sailing from to be reckoned from the time the Captain receives his despatches on board, and the loading complete. The steam. winches and cranes to be in efficient working order when in port. Payment of the said Hire to be made in London, monthly, in advance, by Charterers' acceptance at thirty days' date, and in default of such payment the Owners shall have the faculty of withdrawing the said Steamer fiom the service of the Charterers without j^rejudice to any claim they, the Owners, may otherwise have on the Charterers, in pursuance of this Charter, any payment for part of a month to be calculated at thirty days to the month. That the cargo or cargoes may be laden '^ discliarged in any Dock, or at any Wharf or place that the Charterers or their Agents may direct, provided the Steamer can always safely lie afloat (J). That the whole reach of the Vessel's Holds and usual places of loading and accommodation of the Ship (w) (not being more than she can reasonably stow and carry) shall be at the Charterers' dis[)Osal, reserving only proper and sufficient space for Ships' officers, crew, tackle, apparel, furniture, provisions, stores, and fuel. That the Captain shall prosecute his voyages with the utmost dis- patch {n), and shall render all customary assistance with Ship's crew and boats. That the Captain (although appointed by the Owners) shall be under the orders and direction of the Cijarterers as regards employment, agency, or other arrangements ; and the Charterers hereby agree to indemnify t'le Owners from all consequeaces or liabilities that may arise from the Captain signing bills of Lading, or in otherwise complying with the same (o). That if the Charterers shall have reason to be dissatisfied with the conduct of the Captain, Officers, or Engineers, the Owners shall, on receiving ^particulars of the complaint, investigate the same, and, if necessary, make a change in the appointments. That the Master shall be furnished from time to time with all requisite instructions and sailing directions, and shall keep a full and correct Log of the voyage or voyages, which are to be patent to the Charterers or their agents. That the Charterers shall have the option of continuing the Charter for a further period of on giving notice thereof to the Owners previous to the expiration of the first-named term. That should the vessel be lost, freight paid in advance, and not earned (reckoning from the date of her loss) shall be returned to the Charterers. The Act of God {p), the Queen's Enemies () See Note 2, p. 237. (q) Pctrocochino v. Bott (1874), L. R. 9 C P. 355. 00 Marzetti v. Smith (1884), 49 L. T. 580. See also Aste v. Stumoiy (1884), 1 C. & E. 319 ; Clan Macdonald (1883), 8 P. D. 178. APPENDIX 11. 339 known as "closed docks," are worked on a system similar to the docks in London, but they are only used for discharging and stiffening ships, or putting some ballast into a ship when discharge!. All ships are loaded in the " open docks." Here the Harbour Board finds quay space and goods sheds, for which they are i)aid by tonnage dues from ships, dock and town dues from goods, paid by the shipper when the goods are entered at the custom house, and special rents from appro- priated berths let by the year to the large Steamship Com- panies. All loading is done by the shipowners and their servants, subject to this, that a master stevedore must be employed for the loading of every vessel, and that only those licensed by the Harbour Board may act as master stevedores, liut some of the steamship owners of the port are themselves master stevedores, and may employ under them whom they please. The eifect of these provisions is thus to ensure that the loading of all ships in the port is in the hands of responsible persons. I. Goods brought by Land. — The shipper sends the goods to the berths and i)uts them on the quay; the carter bringing the goods delivers a sJiipping-note^ which either the mate or the wharfinger signs ; after this the goods are at the ship's risk, in. the absence of express exceptions. The wharfinger measures the goods and sends a return to the broker's office. The stevedore puts the goods on board. Both wharfinger and stevedore are appointed and paid by the ship. II. Goods brought bij Water. — Are taken from the lighter's deck by the ship's stevedore, and tallied on board by one of the ship's ■officers, who gives a receipt to the lighterman. Except in licensing the master stevedore, the Dock Board has nothing to do with the loading of ships in open docks, the shipowner finding all the labour. II. — In Discharging general Ships. All the docks and sheds at Liverpool belong to the " Mersey Docks and Harbour Board." The docks are divided into two classes, "closed" and "open" docks. The "closed" docks, which are only used for discharging and stiffening ships, are worked by the Dock Board on a system similar to the docks in London ; the Board discharges the ship and delivers the cargo to the consignees. In the " open " docks, all the labour for dis- charging is provided by the shipowner. The goods are unloaded on to the quay by a master lumper, and are received on the quay, weighed, and " loaded oif," or delivered to the consignee at the dock bj^ a master porter. All master lumpers and master porters must be licensed by the Harbour Board, and are subject to by-laws framed by that body. But some of the Liverpool steam shipowners are themselves licensed master porters, and z 2 340 APPENDIX II. master lumpers, employing whom tliey please imder them, and themselves deliveriDg the cargo to the consignee. Goods are nearly always landed on the quay, but if delivered into craft overside, the master porter weighs them on the ship's deck. The consignee pays no wharfage for his goods if removed within seventy-two hours from the end of the working day on which they were landed, except in the ease of sailing ships in berths not appropriated to particular lines or shipowners, goods from which have only forty-eight hours. The use of the docks and sheds up till this time is paid for by tonnage dues on the ship, town and dock dues on the goods, paid when they are entered at the customs. After the expiration of the seventy -two or forty-eight hours the consignee must pay a special rate for goods not then removed, and the master porter is not bound to deliver such goods to him without further payment. This system does not affect the legal liability of the ship- owner, prior to the delivery of goods to the master porter. The liability of the latter is for damage to the goods during his receiving them, weighing, and loading them oti" (s). C. — Practice of the Port of Bhistol. I. In Loading general Ships. — ^The quays and sheds of Bristol Old Dock, Avonmouth, and Portishead belong to the corporation, and are worked by a Docks Committee. The committee, if so desired by the shipowner, undertakes stevedoring at Avonmouth and Portishead, but the shipowner usually makes his own arrangements with stevedores. The goods are handled on the quay at shipper's expense, as it is his duty according to the custom of the port to bring the cargo to the ship's rail, where it is received b}^ the ship ; the shipowner, therefore, only pays ttie stevedore for receiving- it from the rail of the ship and stowing it on board. As a matter of convenience, merchants usually either arrange with the ship's stevedore or pay the owner 7^d. per ton for lifting the goods from the wharf to ship's rail. At present there are no export dues at this port either on ship or cargo. II. In Discharging general Ships. — According to the custom of the port, the merchant has to receive the cargo from the ship's rail, except in cases where it is weighed on deck ; in that case the merchant sujjplies the scales and sends his own men to weigh the cargo and receive it from the scales. When cargo is weighed alongside the merchant either sends his own men to receive it from the ship's rail and to land and weigh it, or the ship arranges for the stevedore to land the goods, for which the merchants pay 7^(1. per ton. (s) The Emilica Marie (1875), 44 L. J. Adra. 9. APPENDIX 11. 341 In the case of cargo that has not been weighed, but has to be taken from the ship to truck or shed, this is done by the ship's stevedore, and l\d. per ton is paid by the merchant for the service. With cargoes of grain in bulk, the merchant sends men into the hold to bushel the grain; the ship's stevedore hoists it out of the hold to the scales on deck ; where his duty ends. In case of bag grain from India, it is usual to land the bags whole, the ship hoisting them out of the hold and delivering them to the scales or ship's rail ; but bagged grain from America is usually started in the hold l)y the merchant's men, and brought underneath the hatchway by ship's men, and then dealt with in the same way as grain in bulk. With cotton seed and valonia cargoes the ship's men have to fill into sacks in hold and deliver to scales on deck or ship's rail. With deal cargoes, the ship lands them end on with her ■derrick ashore or on raft where merchant's men receive, the ship placing one or sometimes two men alongside to turn tliem over on the landing men's shoulders. Balk timber is put into the water by the ship's gear, the ship's men raft it, providing grass rope for this purpose, merchants provide dogs. The timber is in charge of ship until measured, unless the charter specially provides otherwise. There is no wharfage payable by the ship, but only dock dues. Wharfage, town dues, etc., are payable on goods according to a scale. A question which had been disputed for some time in the port of Bristol was settled by the case of Taylor, Abrahams & Co. v. Budgett, decided at the Bristol Summer Assizes in 1886, and re- ported in the Bristol Mercurij of August 3 and 4 of that year. In 1881 a trade in grain between India and Bristol arose, and from that date till 1886 corn merchants at Bristol had endeavoured to enforce an alleged custom by which the ship was not entitled to deliver her cargo as fast as she could put it out, but only at an average rate of 1000 quarters a day, so that the merchant claimed the right to detain the ship as many days as there were thousands of quarters of wheat in her cargo ; if the ship wished to deliver quicker the consignee required that despatch money should be paid to him. On the question of the existence of this custom being brought to trial in 1886, on a charter with the clause " to discharge without delay and according to the custom of the port," a Bristol jury found that there was a usage to that effect, Avhich had not yet become a custom, and the judge held that such a custom, if proved, would be unreasonable, and therefore bad in law. In the case of Madaij v. Bretlierton, heard by Judge Austin at the Bristol County Court on September 30, 1898, the ship successfully claimed that under a bill of lading to receive as fast 342 APPENDIX II. as ship could continuously deliver, if the consignee was not taking delivery of grain at that speed because he wanted to send the grain away by truck or craft, and not to have it put into shed, the ship might discharge the grain into shed and recover the extra expenses from the consignee. This conflict is very common with grain cargoes at all English ports. D. — Practice ok the Port of Glasgow. I. In Loading.— A\\ the docks and quays at Glasgow belong to and are administered by "The Clyde Navigation Trust." The docks are tidal. The deepest berths are in the recently opened Prince's Dock, where 20 to 21 feet " always afloat " can be reckoned on, and it is hoped that by dredging a depth of 25 feet may ultimately be obtained at certain berths. At Queen's Dock and at Plantation Quay, 18 feet " always afloat " can be reckoned on. Most large vessels lie partly on the ground at low water, the bottom being soft. The use of the quays and sheds is paid for by dues on the net register tonnage of vessels, paid by their owners, and by dues on goods carried, paid by the merchant, either direct to the Navi- gation Trust or through the shipowner, who by shipping goods, before satisfying himself that the dues are paid, becomes liable to the Trustees for the dues on all goods carried by his steamer. In the case of most through rates, and by custom in some of the coasting and continental trades, the rate of freight charged includes the dues on the goods. The goods are carted to the qiiay by the shipper, being previously weighed at the " weighs " of the Trustees to ascertain the dues payable, and are laid down in the shed by the shipper's carter, where they are tallied, measured, and signed for by the ship. The shipowner handles them on the quay and loads them. Water-borne goods are rarely seen at Glasgow, but if so carried the lighter's crane must land them either on deck at the steamer's gangway or on the quay, at shipowner's option. The Trustees take the weight of water-borne goods from the shipper without checking it. Coal is put on board in truck loads hj crane at the General Terminus, Prince's Dock, and Queen's Dock, free of charge for craneage to the ship. Trimming charges vary according to the size of the vessel. II. In Discharging. — Dues inwards on ship and cargo, with exception of grain, are the same as outward dues. In the over- sea trade the shij) discharges the cargo, and delivers it to the plank ends, where it is received and stowed in the shed by a master jwrter, employed by the shipowner, but paid by the con- signee. Where required the goods are weighed on the quay by a sworn weigher ; where they are not so weighed the goods pass APPENDIX II. 34 3 over the Trustees' " weighs." All labour on tlie quay, including weighing, is paid for by the merchant. Forty-eight hours from the completion of discharge are allowed hy statute for the con- signees to remove goods from the quay ; but goods over fifty tons in one ccmsignraent are, by a practice almost uniform, allowed a longer time, varying with their weight, after which quay-rent is charged. Pig-iron, iron ore, and similar cargoes to be forwarded by rail are discharged at berths at the General Terminus, and at the railway terminus at the north side of the Queen's Dock, and arc delivered into railway waggons there. It is usually stipulated by charter that the ship pays craneage and Clyde dues on such goods. Delivery overside, which is rarely made, is made to the lighter from the steamer's plank ends. E. — Pkactice of the Port of Hulf.. I. In Loading. — ^The carrying trade is almost entirely confined to regular lines of Hull steamers. But sailing ships and strange steamers occasionally load on the berth. Engagements of goods are understood to be on the printed conditions of the special bill of lading used in each trade. The greater portion of goods shipped come from inland by craft '^'^ rail. or (A.) Goods sent hy Land to the Steamer. — If sent by rail the railway company send an advice note shortly before the goods ai'rive ; the shipper then sends delivery orders, and the railway company deliver accordingly, the coat of such deliveiy being- included in the carriage — excepting in the case of goods being carried at " station to station " rate, in which case delivery is not included. No document accompanies the goods alongside, and no receipt is given by the steamer for the goods prior to shipment ; but to authorise the loading of the cargo a shipping order is sent down to the shipping clerk at the steamer by the shippers of the goods. Goods are tallied into the steamer by the shipowner when shipped, and the}' are not tallied before. The dock company do not accept any responsibility for the safety of the goods in any way, the docks, quays, and sheds being open to the public, and not enclosed as at many other ports. Shipowners also repudiate any responsibility for the safety of goods lying under the dock company's sheds waiting shipment. The ship's responsibility commences when her tackle touches the goods. Nearly all the goods shipped at Hull are shipped by the owners of the steamers as agents for merchants or others, who either provide their own bills of lading for the particular ports required, or the shipowners as their agents prepare them. 344 APPENDIX II. All p;oods passing over the dock company's quays botli inwards and outwards incnr wharfage, but once only. Except by mutual agreement, the wharfage is ])aid by the shippers or consignees and not by the shipowner. (B.) Goods sent alongside in Craft. — The craft proceed along- side the steamer, if she is ready, and, for goods so loaded, no wharfage is incurred; otherwise they are landed from the craft in which they have come from inland, and tiucked to the load- ing-shed at the carrier's expense ; these goods pay wharfage. When goods are shipped the shi]»ping clerk at the steamer initials the bills of lading presented to him for that purpose, which are tlien taken to the shipowner's office and signed. Lighters if kept beyond three to five days incur demurrage at 7s. Gd. to 15s. per day, or more according to the size of the lighter. (C.) Labour. — The railway companies deliver to dock com- pany's sheds all goods, excepting goods carried at " station to station " rates and heavy pieces, which latter are unladen from the waggons by shippers, who also pay for craning heavy pieces on board the steamer. Dock company cranes are then used, and pieces under five tons are charged Is, per ton; over five tons a proportionate rate. The shipowners employ their own men to load the vessel. At Hull mates of regular liners do not tally the cargo on board ; this is done by shipowner's tallymen, except in the case of small coasters. In the case of sanitary pipes, tubes, pig-iron, etc., the railway companies only quote " station to station " rates, and such goods have to be unladen from the waggons by shippers. (D.) Coals are largely shipped at Hull. Eailway-borne coals are shipped by the railway companies' appliances, the shipping charges being included in the railway carriage, the wharfage being paid by the shippers, and the trimming in the shi})'s hold usually by the shipowner. II. In Discharging. — Steamers discharge general cargoes in the docks of the North Eastern Eailway Oom[iany, also the Alexandra Dock, owned by the Hull and Barnsley, &c., Eailway Company — usually in berths specially appointed to them. In all the docks the shipowner is free to employ his own stevedores. It is held by the shipowners that the ship's responsibility ceases when the goods pass the ship's rail. As a rule regular liners are discharged by their owner's stevedores on to quay, or into lighters, if latter are ready alongside on arrival; otherwise the cargo is landed on dock quay, or under dock shed, and lies at consignees' risk and expense. The dock company allow consignees forty-eight hours for removal of cargo, after which time the goods are warehoused, or allowed by special arrangement to remain on quay at a rental. APPENDIX 11. 345 A large portion of imports, grain, iron, flour, etc., received by the railway companies are discharged from the ship into the railway companies' own lighters, which are taken to the Railway Creek or Alexandra Dock and discharged into railway waggons, thus saving the charge of wharfage. The wharfage is always paid by the consignees and not by the shipowner. All goods discharged direct from ships into lighters and river craft are exempt from wharfage. Grain and seed are weighed, &c., at the consignee's expense by the Hull Corporation sworn meters, or the dock company's meters, or in some cases by the cousignees' meters. In discharging grain in bulk, three men are ])rovided by the consignee, and one by the shipowner, for each gang, for the purpose of filling the grain into bags to be hoisted out of the hold. The ship pays the cost of delivery on the scales on deck, and the consignee pays the cost of lifting off the scales and putting overside. The weighing is generally supervised by shipper's agents to ensure correctness. Regular liners commence discharging immediately after arrival during legal hours by authority of a " third report," or preliminary authority previously obtained from the Custom House authorities. ( 34G ) APPENDIX III. The Principal Statutes affecting the Contract of Affreightment. 18 & 19 Vict. c. Ill (1855).— Bills of Lading Act. Whereas, by the custom of merchants, a bill of lading of goods being transferable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract con- tained in the bill of lading continue in the original shipper or owner : and it is expedient that such rights should pass with the property: And whereas it frequently happens that the goods in respect of which bills of lading pur- port to be signed have not been laden on board, and it is proper that such bills of lading in the bands of a bona fide holder for value should not be questioned by the master or other person signing the same on the ground of the goods not having been laden as aforesaid : — ■ 1. Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself (a). 2. Nothing herein contained shall prejudice or aS'ect any right of stop- page in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or endorsee, by reason or in consequence of his being such consignee or endorsee, or of his receipt of the goods by reason or in consequence of such consignment or endorsement. 3. Every bill of lading in the hands of a consignee or endorsee for valu- able consideration, representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other persons signing the same, notwithstanding tliat such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board: Provided, that the master, or other person so signing, may exonerate himself in respect of such misrepresentation by shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims (h). («) See Articles 56-59, 75, ante, (b) See Article 21, auto. APPENDIX III. 347 24 Vict. c. 10, s. G. — Admiralty Court Act, 18G1. 6. The High Court of Admiralty shall have jurisdiction over any claim by the owner, or consignee or assignee of any Isill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shewn to the satisfaction of the Court that at the time of the institution of the cause any owner or j)art owner of the ship is domiciled in England or Wales : Provided always, that if in any such cause the plaintiff do not recover £20, he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a lit one to be tried in the said Court (c). 31 & 32 Vict. c. 71 (186S). — County Courts Admiralty Jurisdiction Act. 3. Any County Court having Admiraltj' jurisdiction {d) shall have jurisdiction, and all powers and authorities relating thereto, to try and determine, subject and according to the provisions of this Act the following causes . . . (3.) As to any claim (e) for damage to cargo . . . any cause in which the amount claimed does not exceed £300 (/). 32 & 33 Vict. c. 51 (1869). — County Courts Admiralty Jurisdiction Amendment Act. 2. Any County Court appointed or to be appointed to have Admiralty jurisdiction (^) shall have jurisdiction, and all powers and authorities relating thereto, to try and determine the following causes : (1) As to any claim (e) arising out of any agreement made in relation to the use or hire of any ship {h), or in relation to the carriage of goods in any ship (i), and also as to any claim in tort in respect of goods carried in any ship, provided the amount claimed does not exceed £300 (A:). [Other sections of these Acts set out the County Court procedure, and provide for transfer to the Admiralty Division.] (c) See Article 77, ante. ((/) The original County Court jurisdiction to try actions and contracts, such as charterparties or bills of lading, where the damages are less than £50, is not ousted by these sections. Iie(j. v. Jiulijc of Suutlicml Conrdij Court (1884), 13 Q. B. D. 142 ; cf. ,Scovfll v. Brvan (1887), 19 Q. 15. D. 428. The County Court Act, 1888, gives increased facilities in the case of claims between £50 and £100. ((;) The County Court has jurisdiction under this Act, though the Admiralty Division would have no such jurisdiction : The Alimi (1880) (C.A.), 5 Ex. D. 227 ; following The Anjos (1872), L. R. 5 P. C. 134; and though the owner of the ship is domiciled in England, so as to exclude the operation of the Admiralty Court Act, 18(51 : The jiona (1882), 7 P. D. 247. (/) In cases where the amount involved is over £300, jurisdiction may be given to a County Court by consent of the parties in writing. (Sub-section 4 of § 3, of Act of 1868 ; sub-section 2 of § 2, of Act of 18(39.) ((/) See note (d), supra. (h) I\t Day, J., in B. v. Southcm/ {lS8i), 13 q. B. D. 142, this clause appli.'s to charterparties. It does not apply to the colliery guarantees usual at Cardiff: The Zeus (1888), 13 P. D. 188, nor to bottomrv bonds': The Elpis (1872), L. R. 4 A. & E. I. («■) Per Day, J. (see note (n)), this clause applies to bills of lading. " Goods " do not include passenger's luggage : Iteg. v. Judge of City of Lomlon Court (1883). 12 Q. B. D. 115. (^) See note (/) above, and p. 302. 348 APPENDIX III. 54 & 55 Vict. c. 39.— Stamp Act, 1891, ss. 15, -10, 49-51. Stamps on Churterparties and Bills of Lading (/). 15. — (1.) Save where other express provision is in this Act made, any unstamped or insufficiently stamped instrument may be stamped after the execution thereof, on payment of the unpaid duty and a penalty of ten pounds, and also hy way of further penalty, where tlie unpaid duty exceeds ten pounds, of interest on such duty, at the rate of five pounds per centum per annum, from the day upon which the instrument was first executed up to the time wheu the amount of interest is equal to the unpaid duty. (3.) Provided that save where other express provision is made by this Act in relation to any particular instrument : (a.) Any unstamped or insufficiently stamped instrument which has been first executed at any place out of the United Kingdom, may be stamped, at any time within thirty days after it has been first received in the United Kingdom, on payment of the unpaid duty only : and (ft.) The Commissioners may, if they think fit, at any time within three months after the first execution of any instrument, mitigate or remit any penalty payable on stamping. (4.) The payment of any penalty payable on stamping is to be denoted on the instrument by a particular stamp. 40. — (1.) A bill of lading is not to be stamped after the execution thereof. (2.) Every person who makes or executes any bill of lading not duly stamped shall incur a fine of fifty pounds. 49. — (1.) For the purposes of this Act the expression " charterparty " includes any agreement or contract for the charter of any ship or vessel or any memorandum, letter, or other writing between the captain, master, or owner of any ship or vessel, and any other person for or relating to the freight or conveyance of any money, goods, or effects on board of the ship or vessel. (2.) The duty upon a charter-party may be denoted by an adhesive stamp, which is to be cancelled by the person by whom the instrument is last executed, or by whose execution it is completed as a binding contract. 50. Where a charterparty is first executed out of the United Kingdom without being duly stamped, any party thereto may, within ten days alter it has been first received in the United Kingdom, and before it has been executed by any person in the United Kingdom, affix thereto an adhesive stamp denoting the duty chargeable thereon, and at the same time cancel such adhesive stamp, and the instrument when so stamped shall be deemed duly stamped. 51. A charterparty may be stamped with an impressed stamp after execution upon the following terms ; that is to say, (1.) Within seven days after the first execution thereof, on payment of the duty and a penalty of four shillings and sixpence ; (2.) After seven days, but within one month after the first execution thereof, on payment of the duty and a penalty of ten pounds; and shall not in any other case be stamped with an impressed stamp. Schedule. Bill of Lading of or for any goods, merchandise, or effects to be exported or carried coastwise ,. .. .. .. Sixpence. €hartekparty .. .. .. .. .. .. .. Sixpence. (I) See Article 1, ante APPENDIX II T. 34^ 52 & 53 Vict. c. 45, s. 10.— Factors Act, 1889 {m). 10. Where a document of title to goods has been lawfully transferred to any person as a buyer or owner of the goods, and that person transfers the document to a person who takes the same in good faith and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu as the transfer of a bill of lading has for defeating the right of stoppage in transitu. 5G & 57 Vict. c. 71, ss. 19, 25, 38-48, 62 (parts).— Salk of Goods Act, 1893. 19. (n) — (1.) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may,by the terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled. In such case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. (2.) Where goods are shipped, and by the bill of lading the goods are deliverable to the order of the seller or his agent, the seller \% 'prima facie deemed to reserve the right of disposal. (3.) Where the seller of goods draws on the buyer for the price, and transmits the bill of exchange and bill of lading to the buyer together to secure acceptance or payment of the bill of exchange, the buyer is bound to return the bill of lading if he does not honour the bill of exchange, and if he wrongfully retains the bill of lading the property in the goods does not pass to him. 25. (o) — (1.) Where a person having sold goods continues or is in. ]X)ssession of the goods, or of the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title under any sale, jjledge, or other disposition thereof, to any person receiving the same in good faith and without notice of the previous sale, shall have the same effect as if the person making the delivery or transfer were expressly authorised by the owner of the goods to make the same. (2.) Where a person having bought or agreed to buy goods obtains,, with the consent of the seller, possession of the goods or the documents of title to the goods, the delivery or transfer by that person, or by a mercantile agent acting for him, of the goods or documents of title, under any sale, pledge, or other disposition thereof, to any person receiving; the same iu good faith and without notice of any lien or other right of the original seller in respect of the goods, shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. (3.) In this section the term " mercantile agent " has the same meaning as in the Factors Acts. (?)i) See Article 67, note, auU (h) Article 60. (o) Article 67. 350 APPENDIX III. PAKT IV. RIGHTS OK UNPAID SELLER AGAINST THE GOODS (p). 38. — (1.) The seller of the goods is deemed to be an "unpaid seller " within the meaning of this Act — (a.) When the whole of the price has not been paid or tendered ; (b.) When a bill of exchange or other negotiable instrument has been received as conditional payment, and the condition on which it was received has not been fulfilled by reason of the dishonour of the instrument or otherwise. (2.) In this part of this Act the term " seller " includes any person who is in the jiosition of a seller, as, for instance, an agent of the seller to whom the bill of lading has been indorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price. 39. — (1.) Subject to the iirovisions of this Act, and of any statute in that behalf, notwithstanding that the property in the goods may have ]iassed to the buyer, the unpaid seller of goods, as such, has by implication of law — (a.) A lien on the goods or right to retain them for the price while he is in possession of them ; (&.) In case of the insolvency of the buyer, a right of stopping the guods in transitu after he has parted with the possession of them ; (c.) A right of re-sale as limited by this Act. (2.) Where the property in goods has not passed to the buyer, the un- paid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien and stoppage in transitu where the property has passed to the buyer. 40. In Scotland a seller of goods may attach the same while in his own hands or possession by arresting or poinding ; and such arrestment or l^inding shall have the same operation and effect in a competition or otherwise as an arrestment or pomding by a third party. Unpaid Seller'' s Lien. 41. — (1.) Subject to the provisions of this Act, the unpaid seller of CToods who is in possession of them is entitled to retain possession of them until payment or tender of the j^rice in the following cases, namely : — (a.) Where the goods have been sold without any stipulation as to credit ; (Jb.) Where the goods have been sold on credit, but the term of credit has expired ; (c.) Where the buyer becomes insolvent, (2.) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer. 42. Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention. 43. — (1.) The unpaid seller of goods loses his lien or right of retention thereon — (p) Articles 63-71. APPENDIX HI. 351 (a.) When he delivers the goods to a carrier or other bailee or cus- todier for the purpose of transmission to the buyer without reserving the right of disposal of the goods ; (h.) When the buyer or his agent lawfully obtains possession of the goods; (c.) l>y waiver thereof. (2.) The unpaid seller of goods, having a lien or right of retention thereon, does not lose his lien or right of retention by reason only that he has obtaiued judgment or decree for the price of the goods. Stoppage in transitu. 44. Subject to the provisions of this Act, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price. 45. — (1.) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee or custodier for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee or custodier. (2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. (3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee or custodier for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the goods ma}' have been indicated by the buyer. (4.) If the goods are rejected by the buyer, and the carrier or other bailee or cistodier continues in possession of tbem, the transit is not deemed to be at an end, even if the seller has refused to receive them back. (5.) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether tiiey are in the possession of the master as a carrier, or as agent to the buyer. (6.) Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end. (7.) Where part delivery of the goods has been made to the buyer, or his a9;ent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circum- stances as to show an agreement to give up possession of the whole of the goods. 46. (1.) — The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the g'loils, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his princijial. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may com- municate it to his servant or agent in time to prevent a delivery to the buver. 352 APPENDIX III. (2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller. The expenses of such re-delivery must be borne by the seller. Resale by Buyer or Seller. 47. Subject to the provisions of this Act, the unpaid seller's right of lien or retention or stoppage in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller's right of lien or retentioo or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. 48. — (1.) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoj^page in transitu. (2.) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer. (3.) Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract. (4.) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer m:iking default, re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages. 62, — (1.) In this Act, unless the context or subject matter otherwise requires, — ****** " Bailee " in Scotland includes custodier : " Buyer" means a person who buys or agrees to buy goods : " Contract of sale " includes aii agreement to sell as well as a sale : ****** "Delivery" means voluntar}^ transfer of possession from one person to another : "Document of title to goods" has the same meaning as it has in the Factors Acts : " Factors Acts " mean the Factors Act, 1889, the Factors (Scotland) Act, 1890, and any enactment amending or substituted for the same : ****** " Goods" include all chattels personal other than things in action and money, and in Scotland all corporeal moveables except money. The term includes emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale: " Lien " in Scotland includes right of retention : APPENDIX III. 353 " Property " means the general property in goods, and not merely a special property : *»**•♦ " Rale " includes a bargain and sale as well as a sale and delivery : " Seller " means a person who sells or agrees to sell goods. ****** (2.) A thing is deemed to be done " in good faith " within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not. (3.) A person is deemed to be insolvent within the meaning of this Act who either has ceased to pay his debts in the ordinary course of business, or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he has become a notour bankrupt or not (7). 57 & 58 Vict. c. GO.— Merchant Shipping Act, 1894. Mortgages (r). 31. — (1.) A registered ship or a share therein may be made a security for a loan or other valuable consideration, and the instrument creating the security (in this Act called a mortgage) shall be in the form marked B in the first part of the First Schedule to this Act, or as near thereto as circumstances permit, and on the production of such instrument the registrar of the ship's port of registry shall record it in the register book. (2.) Mortgages shall be recorded by the registrar in the order in time in which they are produced to him for that purpose, and the registrar shall by memorandum under his hand notify on each mortgage that it has been recorded by him, statiug the day and the hour of that record. 32. Where a registered mortgage is discharged, the registrar shall, on the production of the mortgage deed, with a receipt for the mortgage money endorsed thereon, duly signed and attested, make an entry in the register book to the effect that the mortgage has been discharged, and on that entry being made the estate (if any) which passed to the mortgagee shall vest in the person in whom (having regard to intervening acts and circumstances, if any) it would have vested if the mortgage had not been made. 33. If there are more mortgages than one registered in respect of the same ship or share, the mortgagees shall, notwithstanding any express, implied, or constructive notice, be entitled in priority, one over the other, according to the date at which each mortgage is recorded in the register book, and not according to the date of each mortgage itself. 34. Except as far as may be necessary for making a mortgaged ship or share available as security for the mortgage debt, the mortgagee shall not by reason of the mortgage be deemed the owner of the ship or share, nor shall the mortgagor be deemed to have ceased to be owner thereof. 35. Every registered mortgagee shall have power absolutely to dispose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchase money ; but where there are more persons than one registered as mortgagees of the same ship or share, a subsequent mortgagee shall not, except under the order of a court of (q) Article 65. (r) Article 17 (c). 2 A 354 APPENDIX III. competent jurisdictiou, sell the ship or share, without the concurrence of every prior mortgagee. 36. A registered mortgage of a ship or share shall not be affected by any act of bankruptcy committed by the mortgagor after the date of the record of the mortgage, notwithstanding that the mortgagor at the commencement of his bankruptcy had the ship or share in his possession, order, or disposition, or was reputed owner thereof, and the mortgage shall be preferred to any right, claim, or interest therein of the other creditors of the bankrupt or any trustee or assignee on their behalf. 37. A registered mortgage of a ship or share may be transferred to any person, and the instrument effecting the transfer shall be in the form marked C in the first part of the First Schedule to this Act, or as near thereto as circumstances permit, and on the production of such instrument the registrar shall record it by entering in the register book the name of the transferee as mortgagee of the ship or share, and shall by memorandum under his hand notify on the instrument of transfer that it has been recorded by him, stating the day and hour of the record. 38. — (] .) Where the interest of a mortgagee in a ship or share is transmitted on marriage, death, or bankruptcy, or by any lawful means, other than by a transfer under this Act, the transmission shall be authenticated by a declaration of the person to whom the interest is transmitted, containing a statement of the manner in which and the person to whom the property has been transmitted, and shall be accompanied by the like evidence as is by this Act required in case of a corresponding transmission of the ownership of a ship or share. (2.) The registrar on the receipt of the declaration, and the production of the evidence aforesaid, shall enter the name of the person entitled under the transmission in the register book as mortgagee of the ship or share. Managing Oivner (s). 59. — (1.) The name and address of the managing owner for the time being of every ship registered at a port in the United Kingdom shall be registered at the custom house of that port. (2.) Where there is not a managing owner there shall be so registered the name of the ship's husband or other person to whom the management of the ship is entrusted by or on behalf of the owner ; and any person whose name is so registered shall, for the purposes of this Act, be under the same obligations, and subject to the same liabilities, as if he were the managing owner. (3.) If default is made in complying with this section the owner shall be liable, or if there are more owners than one, each owner shall be liable in proportion to his interest in the shiji, to a fine not exceeding in the whole one hundred pounds each time the ship leaves any port in the United Kingdom. Dangerous Goods (t). 446. — (1.) A person shall not send or attempt to send by any vessel, British or foreign, and a person not being the master or owner of the vessel, shall not carry or attempt to carry in any such vessel, any (s) Article 16 (a.). (0 Article 31. APPENDIX III. 355 •dangerous goods, without distinctly marl\ing their nature on the outside of the package containing the same, and giving written notice of the nature of those goods and of the name and address of the sender or carrier thereof to the master or owner of the vessel at or before the time of sending the same to be shipped or taking the same on board the vessel. (2.) If any person fails without reasonable cause to comply with this section, he shall for each offence be liable to a fine not exceeding one hundred pounds; or if he shows that he was merely an agent in the shipment of any such goods as aforesaid, and was not aware and did not suspect and had no reason to suspect that the goods shipped by him were of a dangerous nature, then not exceeding ten pounds. (3.) For the purpose of this Fart of this Act the expression " dangerouo goods " means aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer matches, nitro-glycerine, jietroleum, any explosives within the meaning ■of the Explosives Act, 1875, and any other goods which are of a dangerous nature. 447. A person shall not knowingly send or attempt to send by, or carry or attempt to carry in, any vessel, British or foreign, any dangerous goods under a false description, and shall not falsely describe the sender or carrier thereof, and if he acts in contravention of this section he shall for each offence be liable to a fine not exceeding five hundred pounds. 448. — (1.) The master or owner of any vessel, British or foreign, may refuse to take on board any package or parcel whicli he suspects to contain any dangerous goods, and may re ^uire it to be opened to ascertain the fact. (2.) Where any dangerous goods, or any goods, which, in the judgment of the master or owner of the vessel, are dangerous goods, have been sent or brought aboard any vessel, British or foreign, without being marked as aforesaid, or without such notice having been given as aforesaid, the master or owner of the vessel may cause those goods to be thrown overboard, together with any package or receptacle in which they are contained ; and neither the master nor the owner of the vessel shall be subject to any liability, civil or criminal, in any court for su throwing the goods overboard. 449. — (1.) Where any dangerous goods have been sent or carried, or attempted to be sent or carried, on board any vessel, British or foreign, without being marked as aforesaid, or without such notice having been given as aforesaid, or under a false description, or with a I'alse description of the sender or carrier thereof, any court having Admiralty jurisdiction may declare those goods, and any package or receptacle in which they are ■contained, to be, and they shall thereupon be, forfeited, and when forfeited shall be disposed of as the court direct. (2.) The court shall have, and may exercise, the aforesaid powers of forfeiture and disposal, notwithstanding that the owner of the goods has not committed any oftence under the provisions of this Act relating to dangerous goods, and is not before the court, and has not notice of the l^roceedings, and notwithstanding that there is no evidence to show to whom the goods belong ; nevertheless the court may, in their discretion, require such notice as they may direct to be given to the owner or shipper of the goods before they are forfeited, 450. The provisions of this Part of this Act relating to the carriage of dangerous goods shall be deemed to be in addition to and not in substitution for, or in restraint of, any other enactment for the like object, so nevertheless that nothing in the said provisions shall be deemed to authorise any person to be sued or prosecuted twice in the same matter. 2 A 2 35 G APPENDIX 111. PART VII. DELIVERY OF GOODS («). Delivery of Goods and Lien for Freight. 492. Ill this Part of this Act unless the context otherwise requires — The expression " goods " includes every description of wares and merchandise : The expression "wharf" includes all wharves, quays, docks, and premises in or upon which any goods, when landed from ships, may be lawfully placed : The expression " warehouse " includes all warehouses, buildings, and premises in which goods, when landed from ships, may be lawfully placed : The expression " report " means the report required by the customs laws to be made by the master of an importing ship : The expression " entry " means the entry required by the customs laws to be made for the landing or discharge of goods from an importing ship : The expression " shipowner " includes the master of the ship and every other person authorised to act as agent for the owner or entitled to receive the freight, demurrage, or other charges payable in respect of the ship : The expression " owner " used in relation to goods means every person who is for the time entitled, either as owner or agent for the owner, to the possession of the good;;, subject in the case of a lien (if any), to that lien : The expression " wharfinger " means the occupier of a wharf as herein- before defined : The expression " warehouseman " means the occupier of a warehouse as herein-before defined. 493. — (1.) Where the owner of any goods imported iu any ship from foreign parts into the United Kingdom fails to make entry thereof, or, having made entry thereof, to land the same or take delivery thereof, and to proceed therewith with all convenient speed, by the times severally herein-after mentioned, the shipowner may make entry of and land or unship the goods at the following times : — (a.) If a time for the delivery of the goods is expressed in the charterparty, bill of lading, or agreement, then at any time after the time so expressed : (&.) If no time for the delivery of the goods is expressed in the charterparty, bill of lading, or agreement, then at any time after the expiration of seventy-two hours, exclusive of a Sunday or holiday, from the time of the report of the ship. (2.) Where a shijiowner lands goods in pursuance of this section he shall place them, or cause them to be placed — (a.) If any wharf or warehouse is named in the charterparty, bill of lading, or agreement, as the wharf or warehouse where the goods are to be placed and if they can be conveniently there received, on that wharf or in that warehouse ; and (m) Articles 126, 127 APPENDIX III. 357 (h.) lu any other case on some wharf or in some warehouse on or in which goods of a like nature are usually placed ; the wharf or warehouse being, if the goods are dutiable, a wharf or warehouse duly approved by the Commissioners of Customs for tlie landing of dutiable goods. (3.) If at any time before the goods are landed or unshipped the owner of the goods is ready and offers to land or take delivery of the same, he shall be allowed to do so, and his entry shall in that case be preferred to any entry which may have been made by the shipowner. (4.) If any goods are, for the purpose of conveuience in assorting the same, landed at the wharf where the ship is discharged, and the owner of the goods at tlie time of that landing has made entry and is ready and oilers to take delivery thereof, and to convey the same to some other wharf or warehouse, the goods shall be assorted at lauding, and shall, if demanded, be delivered to the owner thereof within twenty-four hours after assortment ; and the expense of and consequent on that landing and assortment shall be borne by the shipowner. (5.) If at any time before the goods are landed or unship]ied the owner thereof has made entry for the laudim^ and warehousing thereof at any particular wharf or warehouse other than that at which the ship is dis- charging, and has offered and been ready to take delivery thereof, and the shipowner has failed to make that delivery, and has also failed at the time of that offer to give the owner of the goods correct information of the time at which the goods can be delivered, then the shipowner shall, before landing or unshipping the goods, in pursuance of this section, give to the owner of the goods or of such wharf or warehouse as last aforesaid twenty-four hours' notice in writin'j; of his readiness to deliver the goods, and shall, if he lands or unships the same without that notice, do so at his own risk and expense. 494. If at the time when any goods are landed from any ship, and placed in the custody of any person as a wharfinger or warehouseman, the shipowner gives to the wharfinger or warehouseman notice in writing that the goods are to remain subject to a lien for freight or other charges payable to the shipowner to an amount mentioned in the notice, the goods so landed shall, in the hands of the wharfioger or warehouseman, continue subject to the same lien, if any, for such charges as they were subject to before the landing thereof; and the wharfinger or warehouse- man receiving those goods shall retain them until the lien is discharged as hereinafter mentioned, and shall, if he fails so to do, make good to the shipowner any loss thereby occasioned to him. 495. The said lien for freight and other charges shall be discharged — (1.) Upon the production to the wharfinger or warehouseman of a receipt for the amount claimed as due, and delivery to the whar- finger or warehouseman of a coi)y thereof or of a release of freight from the shipowner, and (2.) Upon the deposit by the owner of the goods with the wharfinger or warehouseman of a sum of money equal in amount to the sum claimed as aforesaid by the shipowner ; but in the latter case the lieu shall be discharged without jirejudice to any other remedy which the shipowner may have for the recovery of the freight. 496. — (1.) When a deposit as aforesaid is made with the wharfinger or warehouseman, the person making the same may, within fifteen days after making it, give to the wharfinger or warehouseman notice in writing to retain it, stating in the notice the sums, if any, which he 358 APPENDIX III. admits to be payable to the shipowner, or as the cast- may be, that he does not admit any sum to be so payable, but if no such notice is given, the wharfinger or warehouseman may at the expiration of the lifteen days, pay the sum deposited over to the shipowner. (2.) If a notice is given as aforesaid the wharfinger or warehouseman shall immediately apprise the shipowner of it, and shall pay or tender to him out of the sum deposited the sum, if any, admitted by the notice to be payable, and shall retain the balance, or, if no sum is admitted to be payable, the whole of the sum deposited, for thirty days from the date of the notice. (3.) At the expiration of those thirty days unless legal proceedings have in the meantime been instituted by the shipowner against the owner of the goods to recover the said balance or sum, or otherwise for the settlement of any disputes which may have arisen between them concerning the freight or other charges as aforesaid, and notice in writing of those proceedings has been served on the wharfinger or warehouseman,, the wharfinger or warehouseman shall pay the balance or sum to the owner of the goods. (4.) A wharfinger or warehouseman shall by any payment under this section be discharged from all liability in respect thereof. 497. — (1.) If the lieu is not discharged, and no deposit is made as aforesaid, the wharfinger or warehouseman may, and, if required by the shipowner, shall, at the expiration of ninety days from the time when the goods were placed in his custody, or, if the goods are of a perishable nature, at such earlier period as iu his discretion he thinks fit, sell by public auction, either for home use or for exportation, the goods or so much thereof as may be necessary to satisfy the charges herein-after mentioned. (2.) Before making the sale the wharfinger or warehouseman shall give notice thereof by advertisement in two local newspapers circulating in the neighbourhood, or in one daily newspaper published in London, and in one local newspaper, and also, if the address of the owner of the goods has been stated on the manifest of the cargo, or on any of the documents which have come into the possession of the wharfinger or warehouseman, or is otherwise known to him, send notice of the sale to the owner of the goods by post. (3.) The title of a bona fide purchaser of the goods shall not be invalidated by reason of the omission to send the notice required by this section, nor shall any such purchaser be bound to inquire whether the notice has been sent. 498. The proceeds of sale shall be applied by the wharfinger or warehouseman as follows, and in the following order : (i.) First, if the goods are sold for home use, in payment of any customs or excise duties owing in respect thereof; then (ii.) In payment of the exjienses of the sale ; then (iii.) In payment of the charges of the wharfinger or warehouseman and the shipowner according to such jricrity as may be determined by the terms of the agreement (if any) in that behalf between them ; or, if there is no such agreement : — (a.) in payment of the rent, rates, and other charges due to the wharfinger or warehousman in respect of tbe said goods; and then ip.) in payment of the amount claimed by the shipowner as due for freight or other charges in respect of the said goods ; and the surplus, if any, shall be paid to the owner ol the goods. APPENDIX III. 359 499. Whenever any goods are placed in tlie custody of a \vharfin;5er or warehouseman, under the authority of this Part of this Act, the wharfinger or warehouseman shall be entitled to rent in respect of the same, and shall also have power, at the expense of the owner of the goods, to do all such reasonable acts as in the judgment of the wharfinger or warehouse- man are necessary for the proper custody and preservation of the goods, and shall have a lien on the goods for the rent and expenses. 500. Nothing in this Part of this Act shall compel any wharfinger or warehouseman to take charge of any goods which he would not have been liable to take charge of if this Act had not been passed ; nor shall he be bound to see to the validity of any lien claimed by any shipowner under this Part of this Act. 501. Nothing in this Part of this Act shall take away or abridge any powers given by any local Act to any harbour authority, body corporate, or persons, whereby they are enabled to expedite the discharge of ships or the landing or delivery of goods; nor shall anything in this Part of this Act take away or diminish any rights or remedies given to any shipowner or wharfinger or warehouseman by any local Act. PART VIII. LUBILITY OF SHIPOWNERS. 502. The owner of a British sea-going ship, or any share therein, shall not be liable to make good to any extent whatever any loss or damage happening without his actual fault or privity in the following cases, namely : — (i.) where any goods, merchandise, or other things whatsoever taken in or put on board his ship are lost or damaged by reason of fire on board the ship (a;) ; or (ii.) where any gold, silver, diamonds, watches (?/), jewels, or precious stones taken in or put on board his ship, the true nature and value (2;) of which have not at the time of shipment been declared by the owner or shipper thereof to the owner or master of the ship in the bills of lading or otherwise in writing, are lost or damaged by reason of any robbery, embezzlement, making away with, or secreting thereof. 503.— (1.) The owners of a ship, British or foreign, shall not, where all or any of the following occurrences take place without their actual fault or privity ; (that is to say,) (a.) Where any loss of life or personal injury is caused to any person being carried in the ship ; (5.) Where any damage or loss is caused to any goods, merchandise, or other things whatsoever on board the ship ; (c.) Where any loss of life or personal injury is caused to any (a;) This does not free the shipowner from liability for general average con- tribution for damage caused by water used to extinguish fire : Schmidt v. Royal Mail S.S. Co. (187(3), 45 L. J. Q. B. 646. (j/) A jury found that "watch movements" were not "watches" within this section. («) Cf. WiUums V. African S.S. Co. (1856), 1 H. & N. 300; where a descrip- tion, *' 248 ounces of gold dust," was hcldhad, as not stating value ; and Gibbs V. Fotter, 10 M. & W. 70 (1842), where the description '• 1338 hard dollars " was held good. 300 APPENDIX III. person carried in any other vessel by reason of the improper navigation of the ship ; (d.) Wliere any loss or damage is caused to any other vessel, or to any goods, merchandise, or other things whatsoever on board anj^ other vessel, by reason of the improper navigation of the ship ; be liable to damages beyond the following amounts ; (that is to say,) (i.) in respect of loss of life, or personal injury, either alone or together with loss of or damage to vessels, goods, merchandise, or other things, an aggregate amount not exceeding fifteen pounds for each ton of their ship's tonnage ; and (ii.) in respect of loss of, or damage to, vessels, goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, an aggregate amount not exceeding eight pounds for each ton of their ship's tonnage. (2.) For the purjjoses of this section — (a.) The tonnage of a steam ship shall be her gross tonnage with- out deduction on account of engine room ; and the tonnage of a sailing ship shall be her registered tonnage ; Provided that there shall not be included in such tonnage any space occupied by seamen or apprentices and appropriated to their use which is certified under the regulations scheduled to this Act with regard thereto. (&.) Where a foreign ship has been or can be measured according to British law, her tonnage, as ascertained by that measure- ment shall, for the purpose of this section, be deemed to be her tonnage. (c.) "Where a foreign ship has not been and cannot be measured according to British \a.w, the surveyor general of ships in the United Kingdom, or the chief measuring officer of any British possession abroad, shall, on receiving from or by the direction of the court hearing the case, in which the tonnage of the ship is in question, such evidence concerning the dimensions of the ship as it may be practicable to furnish, give a certificate under his hand stating what would in his opinion have been the tonnage of the ship if she had been duly measured according to British law, and the tonnage so stated in that certificate shall, for the purposes of this sec- tion, be deemed to be the tonnage of the ship. (3.) The owner of every sea-going ship or share therein shall be liable in respect of every such loss of life, personal injurj'^, loss of or damage to vessels, goods, merchandise, or things as aforesaid arising on distinct occasions to the same extent as if no other loss, injury, or damage had arisen. 509. This Part of this Act shall, unless the context otherwise requires, extend to the whole of Her Majesty's dominions. ( 3G1 ) APPENDIX IV. General Average. York-Antwerp Kules, 1890. Jettison of Bech Cargo. I. No jettison of deck cargo shall be made good as general average. Every structure not built in with the frame of the vessel shall be considered to be a part of the deck of the vessel. Damage hy Jcttiaon and Sacrifice for the Common Safety. II. Damage done to a ship and cargo, or either of them by or in consequence of a sacrifice made for the common safety, and by water which goes down a ship's hatches opened or other opening made for the purpose of making a jettison for the common safety, shall be made good as general average. Extinguishing Fire on Shipboard. III. Damage done to a ship and cargo or either of them, by water or otherwise, including damage by beaching or scuttling a burning ship, in extinguishing a fire on board the ship, shall be made good as general average ; except that no compensation shall be made for damage to such portions of the ship and bulk cargo, or to such separate packages of cargo, as have been on fire. Cutting aiuay Wreck. IV. Loss or damage caused by cutting away the wreck or remains of spars, or of other things which have previously been carried away by sea- peril, shall not be made good as general average. Voluntary Stranding. V. When a ship is intentionally run on shore, and the circumstances are such that if that course were not adopted she would inevitablj' sink, or drive on shore or on rocks, no loss or damage caused to the ship, cargo, and freight, or any of them by such intentional running on shore shall be made good as general average. But in all other cases where a ship is intentionally run on shore for the common safety, the [consequent loss or damage shall be allowed as general average. 302 APPENDIX IV. Carrying Press of Sail. — Damage to or Loss of Sails. VI. Damage to or loss of sails and spars, or either of them, caused by forcing a ship off the ground, or by driving her higher up the ground, for the common safety, shall be made good as general average ; but where a ship is afloat, no loss or damage caused to the ship, cargo, and freight, or any of them, by carrying a press of sail, shall be made good as general average. Damage to Engines in Refloating a Ship. VII. Damage caused to machinery and boilers of a ship, which is ashore and in a position of peril, in endeavouring to refloat, shall be allowed in general average when shewn to have arisen from an actual intention to float the ship for the common safety at the risk of such damage. Expenses Lightening a Ship luhen Ashore, and Consequent Damage. VIII. When a ship is ashore and, in order to float her, cargo, bunker coals, and ship's stores, or any of them are discharged, the extra cost of lightening, lighter hire, and reshipping (if incurred), and the loss or damage sustamed thereby, shall be admitted as general average. Cargo, Ship's Materials, and Stores hurntfor Fuel. IX. Cargo, ship's materials, and stores, or any of them, necessarily burnt for fuel for the common safety at a time of peril, shall be admitted as general average, when and only when an ample supply of fuel had been provided ; but the estimated quantity of coals that would have been consumed, calculated at the price current at the ship's last port of departure at the date of her leaving, shall be charged to the shipowner and credited to the general average. Expenses at Port of Piefuge, &c. X. (a). — When a ship shall have entered a port or place of refuge, or shall have returned to her port or place of loading, in consequence of accident, sacrifice, or other extraordinary circumstances, which render that necessary for the common safety, the expenses of entering such port or place shall be admitted as general average ; and when she shall have sailed thence with her original cargo, or part of it, the corresponding expenses of leaving (a) such port or place, consequent upon such entry or return, shall likewise be admitted as general average. (h). — The cost of discharging cargo from a ship, whether at a port or place of loading, call, or refuge, shall be admitted as general average, when the discharge was necessary for the common safety or to enable damage to the ship, caused by sacrifice or accident during the voyage, to be repaired, if the repairs were necessary for the safe prosecution of the voyage. (c). — Whenever the cost of discharging cargo from a ship is admissible as general average, the cost of reloading and stowing such cargo on board the said ship, together with all storage charges on such cargo, shall likewise be so admitted. But when the ship is condemned, or does not (a) These words do not include the expenses of breaking ice in the approaches to the port. Westoll v. Carter (1898), 3 Com. Cases, 112. APPENDIX IV. 3G;*> proceed on her original voyage, no storage expenses incurred after the date of the ship's condemnation, or of the abandonment of the voyage shall be admitted as general average. ((/). — If a sliip under average be in a port or place at which it is practicable to repair her, so as to enable her to carry on the whole cargo, and if, in order to save expenses, either she is towed tlience to some other port or place of repair, or to her destination, or the cargo or a portion of it is transhipped by another ship, or otherwise forwarded, then the extra cost of such towage, transhipment, and forwarding, or any of them (up to the amount of the extra expense saved) shall be payable by the several parties to the adventure in proportion to the extraordinary expense saved. Wages and Maintenance of Crew in Port of Refuge, etc. XL When a ship shall have entered or been detained in any port or pLace under the circumstances, or for the purposes of the repairs, mentioned in Kule X., the wages payable to the master, officers, and crew, together with the cost of maintenance of the same, during the extra period of detention in such port or place until the ship shall or should have been made ready to proceed upon her voyage, shall be admitted as general average (&). But when the ship is condemned or does not pro- ceed on her original voyage, the wages and maintenance of the master, officers, and crew, incurred after the date of the ship's condemnation or of the abandonment of the voyage, shall not be admitted as general average. Damage to Cargo in Discharging, etc, XII. Damage done to or loss of cargo necessarily caused in the act of discharging, storing, reloading, and stowing, shall be made good as general average, when and only when the cost of those measures respectively is admitted as general average. Deductions from Costs of Repairs. XIII. In adjusting claims for general average, repairs to be allowed in general average shall be subject to the following deductions in respect of " new for old," viz. — In the case of iron or steel ships, from date of original register to the date of accident, Up to f All repairs to be allowed in full, except painting or 1 year old -! coating of bottom, from which one-third is to be (A.) Ideducted. One-third to be deducted off repairs to and renewal of woodwork of hull, masts, and spars, furniture, upholster}', crockery, metal, and glassware, also sails. Between I rigging, rupes, sheets, and hawsers (other than wire 1 and 3 years / and chain), awnings, covers, and painting. (B.) I One-sixth to be deducted off wire rigging, wire ropes and wire hawsers, chain cables and chains, donkey engines, steam winches and connexions, steam crane& and connexions ; other repairs in full. (c) Whei'e, the ship being on monthly hire under a charter by which the owners pay the wages of master and crew, the owners recover a general average contribution for such wages in the port of refuge, the charterers are not entitled to recover back any of the monthly hire they have paid. Ilowdcn V. Nutfield S.S. Co. (1898), 3 Com. Cases, 5(5. 364 APPENDIX IV. Between 3 and 6 years (C.) C Deductions as above under Clause B, except that one- -j sixth be deducted off ironwork of masts and spars, and ( machinery (inclusive of boilers and their mountings.) / Deductions as above under Clause C, except that Between j one-third be deducted off ironwork of masts and spars, 6 and 10 years ■/ repairs to and renewal of all machinery (inclusive ol (D.) J boilers and their mountings), and all hawsers, ropes, V slippfs mifl riororinor Between 10 and 15 years (E.) sheets, and rigging. One-third to be deducted off all repairs and renewals, except ironwork of hull and cementing and chain cables, from which one-sixth to be deducted. Anchors to be allowed in full. / Generally (G.) " Over f One-third to be deducted off all repairs and renewals. 15 years -| Anchors to be allowed in full. One-sixth to be deducted (F.) ( off chain cables. The deductions (except as to provisions and stores, machinery, and boilers) to be regulated by the age of the ship, and not the age of the particular part of her to which they apply. No painting bottom to be allowed if the bottom has not been painted within six months previous to the date of accident. No deduction to be made in respect of old material which is repaired with- out being replaced by new, and provisions and stores which have not been in use. In the case of wooden or composite ships, When a ship is under one year old from date of original register, at the time of accident, no deduction new for old shall be made. After that period a deduction of one-third shall be made, with the following exceptions : — Anchors shall be allowed in full. Chain cables shall be subject to a deduction of one-sixth on]}^ No deduction shall be made in respect of provisions and stores which had not been in use. Metal sheathing shall be dealt with, by allowing in full tlie cost of a weight equal to tlie gross weight of metal sheathing stripped off, minus the proceeds of the old metal. Nails, felt, and labour metalling are subject to a deduction of one-third. In the case of ships generally. In the case of all sliips, the expense of straightening bent ironwork, including labour of taking out and replacing it, shall be allowed in full. Graving-dock dues, including expenses of removals, cartages, use of shears, stages, and graving-dock materials, shall be allowed in full. Temporary Bepairs. XIV. No deductions "new for old" shall be made from the cost of temporary repairs of damage allowable as general average. Loss of Freight. XV. Loss of freight arising from damage to or loss of cargo shall be made good as general average, either when caused by a general average act, or when the damage to or loss of cargo is so made gijod. APPENDIX IV. 36^ Amount to he made good for Carcjo Lost or Damaged hy Sacrifice. XVI. The amount to be made good as general average for damage or loss of goods sacrificed shall be tlie loss which the owner of the goods has sustained thereby, based on the marliet values at the date of the arrival of the vessel or at the termination of the adventure. Contributory Values. XVII. Tlie contribution to a general average shall be made upon the actual values of the projjerty at the termination of the adventure, to which shall be added the amount made good as a general average for property sacrificed; deduction being made from the shipowner's freight and passage- money at risk, of euch port charges and crew's wages as would not have been incurred had the ship and cargo been totally lost at the date of the general average act or sacrifice, and have not been allowed as general average; deduction being also made from the value of the property of all charges incurred in respect thereof subsequently to the general average act, except such charges as are allowed in general average. Passengers' luggage and personal effects, not shipped under bill of lading, shall not contribute to general average. Adjust7nent. XVIII. Except as provided in the foregoing rules, the adjustment shall be drawn up in accordance with the law and practice that would have governed the adjustment had the contract of aftreightment not contained a clause to pay general average according to these rules. ( 36G ) APPENDIX V. The United States Act of Coxgress, 1893. The subjoined Act, commonly known as the Harter Act, which came into force on July 1st, 1893, is of great importance to all shipowners oarrying passengers or goods to or from the United States. In effect, it endeavours to make a contract for the parties to a bill of lading, instead of leaving them to fix the terms of their own agreement. This it does by declaring that either the usual wide negligence clause, or the clauses relieving the owner from his implied contract of seaworthiness shall be null and void, but that a diligent owner shall be relieved from liability for certain named risks. The effect of this Act must be considered according as the action against a shipowner is brought in the Courts of England or the United States. I. In the Evglish Courts, it would seem from the decision in the Missouri Case (a), that the Courts will infer an intention of the parties to be bound by English law, and will give effect to the clauses which English law recognises, though they are declared null and void by American law. Such actions will usually be brought on contracts made in the United States, but the Court will disregard the lex loci contractus in favour of the expressed or implied intention of the parties to be bound by English law. It will be desirable, however, for shipowners to make the point clear in their charters and bills of lading by inserting in pro- minent type some such clause as the following : — " The parties hereto intend and agree that the construction and validity of the terms of this contract shall be decided by English law." II. In the United States Courts, such provisions as the negligence clause were held unenforceable as contrary to public policy in the Montana Case. As, however, in that case, the Supreme Court of the United States stated that if the parties, when entering into the contract, clearly manifested a mutual intention that the contract should be governed by the law of some other country, the law of the place of contract would not apply ; it would seem that a clause such as suggested, expressing the intention of the parties to be governed by English law, would prevent the application of the United States Statute. It may be noted, however, that the Statute says that negligence clauses " shall not be lawful." This can hardly, however, ajjply to contracts made in England. The adoption of the suggested clause will probably, therefore, protect the shij^owner both in English and United States Courts, but the judicial interpretation of this very important Act will require careful attention. (a) (1889), 42 Ch. D. 321. APPENDIX V. 367 Act of Congress, 1893 (Harter Act). [Public No. 57.] An Act relating to navigation of vessels, bills of lading, and to certain obligations, duties, and rights in connection with the carriage of property. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that it shall not be lawful for the manager, agent, master or owner of any vessel trans- porting merchandise or property from or between jjorts of the United States and foreign ports to insert in any bill of lading or shipping docu- ment any clause, covenant, or agreement, whereby it, he or they shall be relieved from liability for loss or damage arising from negligence, fault or failure in proper loadius, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge. Any and all words or clauses of such import inserted in bills of lading or shipping receipts shall be null and void and of no effect (6). § 2. That it shall not be lawful for any vessel transporting merchandise or property from or between ports of the United States of America, and foreign ports, her owner, master, agent, or manager to insert in any bill of lading or shipping document any covenant or agreement whereby the obligations of the owner or owners of the said vessel to exercise due diligence, properly equip, man, provision, and outfit said vessel, and to make said vessel seaworthy and capable of performing her intended voyage, or whereby the obligations of the master, officers, agents, or servants to carefully handle and stow her cargo, and to care for and properly deliver same, shall in any wise be lessened, weakened or avoided. § 3. That if the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation, or in the management of said vessel, nor shall the vessel, her owner or owners, charterers, agent, or master be held liable for losses arising from dangers of the sea or other navigable waters, acts of God, or public enemies, or the Inherent defect, quality, or vice of the things carried, or from insufficiency of package, or seizure under legal process, or for loss resulting from any act or omission of the shipper or owner of the goods, his agent or repre- sentative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service. § 4. That it shall be the duty of the owner or owners, master or agent of any vessel transporting merchandise or property from or between ports of the United States and foreign ports to issue to shippers of any lawful merchandise a bill of lading, or shipping document stating, among other things, the marks necessary for identification, number of packages, or quantity, stating whether, it be carrier's or shipper's weight, and apparent order or condition of such merchandise or property delivered to and received by the owner, master, or agent of the vessel for transportation, (h) See, for a discussion by the Ens;lish Courts of these clauses, DobcU v. S.S. Rossmore (1895), 2 Q. B. 408 ; The Gknodiil (1896), P. 10. 368 APPENDIX V. and such document shtall be p^imci facie evidence of the receipt of the merchandise therein described. § 5. That for a violation of any of the provisions of this Act the agent, owner, or master of the vessel guilty of such violation, and who refuses to issue on demand the bill of lading herein provided for, shall be liable to a fine not exceeding two thousand dollars. The amount of the fine and costs for such violation shall be a lien upon the vessel, whose agent, owner, or master is guilty of such violation, and such vessel may be libelled therefor in any district court of the United States, within whose jurisdiction the vessel may be found. One half of such penalty shall go to the party injured by such violation, and the remainder to the Govern- ment of the United States. § 6. That this Act shall not be held to modify or repeal sections forty- two hundred and eighty-one, forty-two hundred and eighty-two, and forty-two hundred and eighty-three of the Kevised Statutes of the United States, or any other Statute defining the liability of vessels, their owners, or representatives. § 7. Sections one and four of this Act shall not apply to the transpor- tation of live animals. § 8. That this Act shall take effect from and after the first day of July, eighteen hundred and ninety-three. Approved, February 13th, 1893. INDEX {For many common terms, see under the title^^ Words and Phrases of common occurrence") A 1, meaning of, in charter, G2 Abandonment of ship, and pro rata freight, 265 of warehoused goods, 236 " About," 108, 109 Accident preventing loading, meaning of, 101 inevitable, 175 ACT OF GOD, historical origin of exception, 168 meaning of, 175 shipowner must shew absence of negligence, 175 does not include rats or vermin, 176, 183 includes fire caused by lightning, 187 relation of, to perils of the sea, 176, 180 carrier not liable for, 164 charterer not liable for loss of a ship by, 7 Adjustment of general average contribution, when and where made, 226 Admiralty Court, who can sue in, and when, 160-163, 299-303 payment of freight into, when good, 275 Admiralty Jurisdiction Act, effect of indorsement of bill of lading under, 161-163 Advance Freight : see Freight. Advances to ship, whether freight or loan, 255, 256, 273 ADVICE NOTE, as evidence of terms of shipment, 8 for goods forwarded to ship, 333 AFFKEIGHTMENT, CONTEACT OF, definition of, 1 parties to, 23-58 when contained in charter, 1 when contained in bill of lading, 1, 2, 7, 37, 40, 132 in charter and bill of lading combined, 2, 7 in through bill of lading, 57, 58 effect of indorsement of bill of lading on, 133, 156-163 contiiined in cards, bills, representations by carrier's agent, 7, 8 construction of, 11-22 by what law construed, 13 illegality of, by English law, 9 illegality of, by foreign law, 9 2 B 370 INDEX. AFFKEIGHTMENT, CONTRACT OY— continued. owner adopting must adopt all terms of, 53 representations and undertakings in, 59 conditions precedent in, 59- G8 conditions implied in, 68-80 eflect of delay in performance of, 74-78 effect of deviation on, 203-207 effect of unseaworthiness on, 69-74 carrier's liability under, 164 effect of excepted perils in, 1G8-175, 193 exceptions in, how construed, 171, 174, 193 who can sue for breach of, 160-163, 195 who can be sued for breach of, 195 who can sue on in Admiralty Court, 160-163 damages for breach of, 289-298 and see Bill of Lading ; Chakterpakty. Afloat, always, 88 AGENT, when principal bound by, 26 when personally liable, 27-30 effect of cesser clause on his personal liability, 29 without the authority he professes, 27 classes of, for shipowner, 30 for undisclosed principal, 23-30 for Crown, 30 for charterer, position of, when holder of bill of lading, 38 effect of signature of, without qualification, 27 for merchants, as, effect of signature, 1 8 when principal ratifies the contract, 26 for charterer, effect of signature as, 27 by telegraphic authority, 28 for shipowner, may lend on bottomry, 214 All conditions as per charter, 43 All other conditions as per charter, 44, 49 Alongside, oral evidence explaining, 12, 17, 104 cargo to be brought, 103 Alterations in contract, effect of, 22 Always Afloat, 88 Ambiguity in contract, how construed, 12, 16, 17 when construed by custom, 16, 17 Anchor in the port, now at, 67 Arbitration Clauses, of colliery guarantee, whether incorporated in charter, 3 of charter, whether incorporated in bill of lading, 48 Arrests and restraints of princes, rulers, and peoples, 177-179 Arrest of goods on voyage, effect of on freight, 265 Arrival, probable, how to be notified, 99 at Liverpool, meaning of, 18 non-arrival of ship, no evidence of negligence, 118 of goods, evidence of negligence, 118 " As Customary," 248 " As fast as steamer can deliver," 96, 247, 341, 342 INDEX. 371 Assignee, bare, of share in ship, bound by churter, 3."i of bill of hiding, cauiiot suf- in Admiralty Court, 101, HJ2 Assignment of ntEiniiT, eftoct of, 277 who can sue on, 278 effect of notice of, 277, 278 to be earned, good, 277 Assist vessels in all situations, leave to, 204 Assortment, goods landed for, position of by statute, 235 At all times of the tide and always afloat, 88 . " At any ports in any order," 20i At merchant's risk, 193, 218 At ship's risk, 1 1-1 Attachment of goods, how affected by stoijpage in transitu, 145 Authorities, orders of, effect of on clauses as to lay days, 243 Average : with primage and average accustomed, 254 AVERAGE, GENERAL, what is, 215 in the case of fire on board, 1 87 foreign clauses negativing contribution, 194 what expenses of saving sliipowners may claim, 208 sacrifice must be real, and voluntary, 216 conditions supporting contribution in, 21G sacrifices, classes of, 217 jettison of cargo, 217 deck cargo, 218 pouring water on cargo, 219 burning cargo as fuel, 219 sacrifices of ship or tackle, 220 sacrifice of freight, 221 expenditures, classes of, 217, 221 on ship, 222, 223 in port of refuge, 222 warehousing cargo in port of refuge, 223 unloading and reloiiding cargo in port of refuge, 223 pilotage and port dues in port of refuge, 223 practice of adjusters as to port of refuge expenses, App. IV., 3G2 lien for, 224 captain, duty of to collect, 224 captain's refusal to give materials for calculating, breach of duty bv, 1G2, 224 how paid by cargo owners, 224 bond, nature of, 224 who can sue for, 225 who are liable for, 225, 226 how adjusted, 226 if any, to be adjusted according to British custom, 226 York- Antwerp rules as to, 226, 361-365 Average, petty, meaning of, 254 Average stater, shipowner not bound to employ, 226 Back Freight : see Freight, 258 Ballast, shipowner to supply, 71, 110 may be freight-paying goods, 110 Bank, bill of lading presented through, 138 2 B 2 372 INDEX. Bankruptcy preventing supply of cargo, 100 what is, to give rise to stoppage in transitu, 143, l-l-l Barnacles, delay by, due to restraint of princes, 160 Barratry, not a peril of the sea, 183 of captain and crew, 172, 187 what acts are barratrous, and what not, 188 Bearer, indorsement of bill of lading to, 132 Belligerent: see National Character; War. Berth note, 2 its intention and effect, 2 lump freight under Danube, 2G1 Bill of Exchange, and conditional indorsement of bills of lading, 137-141 payment by, and stoppage in transitu, 142 holders of, drawn agaiust cargo, have no lien on cargo, 287 BILL OF LADING, forms of. Appendix I., 326, 327 definition of, 1, 2, 7-9 stamps, necessary for, Appendix III., 348 as evidence of contract of affreightment, 1, 2, 7, 8 when signed, 2 how filled up and signed in London, A^jpendix II., 333, 334 by whom signed, 7, 132 authority of master or broker to sign, 50-55 owner may remain liable where master is charterer's agent to sign, 4, 5 modern practice as to, 8, 132 printed forms of, 8, 21, 50 statutory liability of persons signing, 56 effect of signature of, 132 where there is a charter, 1, 2, 37-49 differing from or contradicting charter, 37-49 differing from charter, indorsee of, 40, 41, 45-47 when charter is incorporated in, 2, 47-49 where there is a charter, whom the holder can sue, 37-47 parties to, 37-47 when agent personally liable on, 27 position of holder of, when agent for charterer, 38 ship^Dcr under, who is not charterer, 42-45 captain's authority to sign, where there is a charter, 53-55, 275-277 captain's authority to sign, where there is no charter, 52 beyond autliority of master, effect of, 53 as presented by charterers, master to sign, 43, 46, 53-5-"), 275 captain only to sign as agent for the charterers, 44 at any rate of freight, master to sign, 43, 46, 55 construction of, 11-13 construction, by what law, 13 illegality of contract in, 9, 10 construction of, by customs, 16-20 stijiulations as to loading or unloading in, how construed, 105 conditions precedent in, 60 repudiation of contract in, tor breach of conditions precedent, 60 conditions implied in, 68 .seaworthiness under, 69-74 exceptions as to seaworthiness in, 73, 74 reasonable dispatch under, 74-78 delay or deviation under, 78, 204 given to holder of mate's receipt, 114 ; Appendix II., 334 may be given without mate's receipt, 115 INDEX. 37H BILL OP IjAHmG— continued. stamps on, effect of, 8, 1315 contents of, when binding on shipper, 8, 9 prima facie evidence that goods were shipped, 50 burden of disproving lies on shipowner, 50 when conclusive evidence by statute, and of what and between whom, 56 two for same goods, 50 signed for goods not shipped, 50-52 evidence of quantity, liow displaced, 50, 191 and disputed tallies, 50, 191 conclusive evidence clause, 51, 2G3 evidence to displace required from shipowner, 19-1 effect of description of goods in, 52, 116, 117 clean, 115, 117 inaccuracies in, effect of in iniloading, 2'.'>?> statements as to goods in, effect of on frciglit, 262, 263 carrier's liability under, 161 commencement of ship's liability under, 114, 172, 17:! and excepted perils, 168-175, 193, 19-i list of exceptions in, 172-174 and iJolieies of insurance, different construction of, 171 burden of ])roof, where goods lost or damaged, 194 and general average, 216 holder of, has right to delivery of goods, 232, 233 when shipowner may safely deliver to first person presenting, 135, 136, 232 delivery of goods to other than holder of, 232 when holder of, does not claim delivery, 233, 234 and delivery order, 144-146 parties to, when liable for demurrage in charter, 48, 249 who are liable for demurrage on, 250 person taking delivery under, liable for demurrage on, 250, 251 indorsee of, liable for demurrage in, 250 freight under, 255, 270 freight due in exchange for bills of Jading, 255 freight on bill of lading quantity less 2 per cent., 270 persons taking delivery under, their liability to freight, 274, 282 indorsee of, when liable for freight, 282 lien on, to broker or shipping agent, 288 holder of, when liable to lien for charterparty freight, 48, 285, 286 consignee under, jiosition of, 162, 281, 285 form of ]\Iediteiranean grain, 326 form of Black Sea general ijroducc, 327 See Bill of Lading, Indorsement of ; Bill of Lading Act ; Bill of LADINti, TlIROCGn. BILL OF LADING, INDORSEMENT OF, effects of, 2, 133 kinds of, i;>3 how effected, 133 after wrongful delivery of goods, 134 when it transfers property absolutely, 134, 135 when it transfers property conditionally, 135, 136, 137-141 when it does not transfer property at all, 135, 157, 158 acting as a mortgage, 135, 156 acting as a pledge, 135, 156 jus digponciuli, reservation of, 13G, 137 conditional, 135, 136-141 to bank, with bill of exchange, 138-141 conditional, vendee vmder, 138 conditional, vendee cannot require all parts of, 738 effect of, on stoppage in transitu, 146, 147 374 INDEX. BILL OF LADING, INDORSEMENT OF— continued. and suits under Admiralty Jurisdiction Act, 160-163 to bare assignee, his rights, 161, 162 second, effect of, on contract, 159 and liability for demurrage, 249-251 and liability for freight, 279-282 and liens for freight in charter, 285, 286 restrictive indorsement, when affecting captain, 8 BILL OF LADING, THROUGH, nature of, 57, 58 for sea and land carriage, 58 whom contract in is witli, 57 freight on, how payable, 57 and subordinate bills of lading, 133 BILLS OF LADING ACT, 134, 146, 158, 159, 162, 346 Blank, indorsement of bill of lading in, 132, 133 Blockade, effect on contract by English law, 11, 75 effect by International Law, 11 is an arrest of princes, 177 breaking, when barratry, 188 justifies delay, or deviation, 205-207 effect on time freight, 271 BOTTOMRY, captain's power to borrow on, 198, 2C0, 202, 212-215 what is necessity for, 214, 215 there must be maritime risk in, 218 must not be an adv'ance on personal credit, 213, 214 deviation without consent from voyage in bond, 213 amount of, 214 communications with owners as to, 202, 213-215 what can be pledged in, 212, 213 loss of cargo under, 213 agent of shipowner may lend on, 214 obligee of bond, imyment of freight to, good, 275 Breach of conditions precedent, oral or written, 59 of duty, by master, under Admiralty Jurisdiction Act, what is, 162 Breakage, exception of, 186 BREAKDOWf^ OP Machineey, 172 Broken Stowage, 109 BROKER, position of as agent of shipowner, 32-34 his work with regard to ship, 32 commission on "all hire earned," 32 whether agent to accept revocation of charter, 32 is agent to effect charter, 32 classes of, 33 when a party to charter, 27-32 his representations, part of contract, 8, 59 power of captain to employ, 34 authority to sign bill ofladiug, 50-55, 132 statutory liability of, signing bill of lading, 56 payment of freight to, 32, 272-274 his lien on bill of lading, 288 Bristol, practice of: see Appendix IL, 340 INDEX. 375 Bullion, implied warranty of fitness to carry, 186 Bunker Coal, may be taken before loading, 99 not restricted to coal for chartered voyage, 99 Burden of Proof, when goods arc damaged or lost, 194 Burden, Ship's, when condition precedent, 63-Go ■C. F. I. = a price covering cost, freight, and insurance; the opposite of F. O. B. ; which see, 13G eftect of sale c. f. i. before shipment, 13G Cabins, charterer's right to carry imssengers and goods in, 1 07 €ALL, LIBERTY TO. as excepted peril, 173 must be interpreted according to adventure, 205 does not authorise unnecessary deviation, 205 " at any ports in any order," 205 Caxoklling Clause, 62, 66, 174 Capable of being covered by Insuhance, Damage, 173 Capacity of Ship, when condition precedent, 62, 63-65 statements as to, effect of. 63, l07 dead weight, 63-65 €APTAm, position of, abroad, effect of telegraph on, 34 power to effect or vary cliarters, 31, 34 power to employ broker, 34 power to settle accounts abroad, 34 ordinary authority of, 52-55 to sign bills of lading as agent for charterer, 42, 44, 48 to sign bills is not incorporated in the bill of lading, 49 when cannot make freight payable in advance, 53, 55 to sign bills of lading as presented, 53, 55 to sign bills of lading without prejudice to charter, 53 when must sign personally, 54 " at current or any rate of freight," 55 authority to sign bill of lading, 50-55 authority when there is a charter, 5:i-55 authority when there is no charter, 52 signing bills of lading for goods not on board, 50 liability as to quality marks in bill of lading, 52 liability of his owners for statements in bill of lading, 53 signing second bill for same goods, 50 signing bill of lading beyond his authority, 53 signing bill of lading, statutory liability of, 56 signing bill of lading, as agent for whom, 275 position under charter not a demise, 3, 4 position under charter amounting to a demise, 3 bound to stow skilfully. 111 barratry of, 187 negligence of, exception of, 188 exception of his negligence when owner or part-owner, 189 appointment of incompetent or drunken, 189 when can be sued for damage to goods, 195 breach of duty, within Admiralty Act, what is, 162 his authority on voyage, 198-203 authority conferred by shipment, 13, 199 when agent for shipowner, 198-203 when agent for cargo-owner, 198-203 376 INDEX. CAPTAIN— cosfyjmefL wlien ageut for charterer, 199 necessity as ground for his authority, 200 when he should communicate with owners before acting, 201, 213-215- when he should use telegraph, 202 when he may delay or deviate on voyage, 203-207 duty to take care of goods on voyage, 208 power to Sell damaged cargo, 209 power to tranship, 210-212 power to raise money on cargo, 212 power of bottomry, 212 power of jettison, 215, 217 duty to collect general average from cargo, 221 lien for general average, 224 bound to furnish particulars of general average to cargo-owners, 162, 224 not bound to collect salvage from cargo, 227 his duty in unloading, 230-234 duty on receiving notice of stopi^age in transitu, 155 when affected by restrictive indorsement, 8, 9 his duty to deliver, 231, 232 and conflicting claims for goods, 232 not bound to unload, unless to bill of lading, 233 position of, if no bill of lading produced, 233, 234 when may land and warehouse goods, 233-236 retains his lien by warehousing, 234, 236 his position, if consignee does not take goods, 233, 234, 258 when may refuse delivery of goods, 233, 270 cannot sue for demurrage, 251 his authority to receive freight, 273 effect of i^aymeut of freight to, before it is due, 273 when freight payable to, 274 when can sue on contract implied from delivery of goods, 274 cannot retain freight as against shipowners, 274 how may waive lien for freight, 286 how may enforce lien for freight, 286, 287 in case of breach of contract, must seek other employment, 290, 291-294 Captain to sign Bills of Lading at any Kate of Freight, 39, 43, 46, 55, 276 Capture and Seizure, 178, 179 deviation to avoid, 205, 207 after sailing, eti'ect of, 103 apprehension of, may excuse completion of voyage, 178 defined, 178 CARGO, charterer's duty to provide, 100, 101 failure of charterer to provide, 100, 101 non-existence of, effect on charter, 100 causes preventing transmission to the port of loading, 100, 101 causes preventing loading of, 100, 101 tendered, must reasonably comi:)ly with charter, 101 short supply of, 100, 243 to be brought alongside, 103, 104 full and complete, 107-109 meaning of, 108 full and complete does not include passengers. 107 where goods destroyed by fire after shipment, 108 who may fill up after destruction by fire, 108 if less than carrying capacity, 108 coming from inland, special exceptions for, 175 INDEX. 377 CARGO — continued. " ready to receive " not necessarily in luadiug-berth, 90 must be ready at ordinary, not unexpected, times, 100 shipment of cargo of customary nature, 10(5 where to be stowed, 101) marks on, errors in, 52, ilG, 173 shipowner to stow properly, 111-113 not shipped, bill of lading signed for, 50 shipper may be excused by restraint of princes, 178 non-arrival in ship, evidence of breach of contract, liH on non-arrival, where onus of proof lies, 194 damaged by water during repairs to propeller, 220 captain's duty to take care of on voyage, 208 lien for expenses in preserving, 208 captain's power to sell damaged, 209 transhipment of, 210 captain's power to raise money on, 212 captain's power to sell to raise money, 212 and bottomry and respondentia, 212 pledged without authority, 213-215 what can be bottomried, 213 loss of, when bottomried, 213 jettison of, 215, 217 and general average, 215-219; Ap^jendix IV., :;g1 general average, sacrifice of, 217 damaged by water to extinguish fire, 219 buint as fuel, 219 warehousing of, and general average, 223 unloading and reloading in port of refuge, 223; and Appendix IV., 362 when liable for salvage, 227 liable for life salvage, 227 shipowner's lien on for salvage expenditure, 208, 227, 228, 283 only liable for freight, in case of collision, 228 not liable for damage, in case of collision, 228 charterer's duty to provide for disciiarge of, 230 not taken by consignee at port of discharge, 233, 234, 258 abandonment of, after warehousing, 23() landed for assortment, 235 ; Appendix II., 337 entered for overside delivery, 235 ; Appendix II., 33G, 337 damaged, claims for, when to be made, 173, 237 damaged, freight for, 202 cannot be abandoned when not worth freight, 2G2 agreement to deduct from freiglit cargo not delivered, 2G3 if lost, when freight payable for, 252, 25G, 2G2, 2G3 shrinking or swelling, freight for, 2G8 belonging to shipowner, freight for, 2G7, 2GS on ship's account, no lien on for freight, 287 lien for freight, 283-288 no lien to holders of bill of exchange drawn agaiust it, 287 damages to, how assessed, 294-29G profits on, when included in damages, 294, 295 damages for failure to load, 289-294, 29G-298 damages for shutting out cargo, 81, 290 Cargo, Deck, 109 and general average, 215, 217-219 See Deck Caugo. CAEGO-OWNEK, captairi's duty to, 198, 199 when captain is agent for, 199, 201 S7S INDEX. GAUGO-OWNEB,— continued. when captain should communicate with, 201, 202 and deviation or delay on voyage, 203-207 and transhipment, 210 and cargo sold to raise money, 212 and cargo pledged without authority, 213-215 and jettison, 215, 217 captain must furnish particulars of general average to, 224 and general average, 215-220, 223-225 when he can sue for general average, 225 has no lien on ship for general average, 225 when liable for general average, 226 when liable for salvage, 227 when and whom he can sue for collision, 228, 229 not liable for collision, 228 not claiming cargo, 233, 234 how far lighterman is his agent, 114, 235 when liable for freight pro rata, 2G3-267 and see Consignee ; Shippee. CARRIER, as agent for vendee, 151 liability for goods carried, 164 shipowners who are not, their liability, 164 whether lighterman is, 165, 166 his lien, how affected by stoppage in transitu, 145 his lien, effect of end of transition, 154 refusal to deliver, effect on stoppage in transitu, 149 wrongful delivery and stoppage in transitu, 149 ending transit by agreement with vendee, 154 ■Caet note, Appendix II., 308 Cash receipts, not documents of title, 149 Cattle, regulations preventing arrival at port of loading, 102 freight on fodder for, 270 Causa proxima, and Causa remota, 169, 171 -Causes beyond Charterer's control as excepted perils, 174 Cesser clause and agent's liability, 29 not incorporated in bill of lading, 48 may be inoperative, if no effective lien given, 54, 55, 121 effect of, 119-121 co-extensive with lien, 119 when charterer is consignee, 120 common form of, 119 and demurrage, 119-131 €HARTERPARTY, definition of, 1 when signed, 1 stamps on, 1 ; Appendix III., 327 when a demise or lease of ship, 3-7 effects of a demise, 3, 42, 45, 161 illegality of, 9 construction of, 11-22 by what law construed, 13-16 when construed in the light of customs, 12, 16-20 variation of by parol evidence, 12, 16, 17, 20 explanation of, by parol evidence, 23 alterations in, eflfect of, 22 'INDEX. 379 GBJ^T'ERVK'KTY— continued. printed forms of, how coastrued, 23 parties to, 23-49 who are principals in, 23-30 statement as to parties in, when final, 23 when agent binds his principal, 2(! when agent personally liable as principal, 27-30 liability of agent for undisclosed principal, 30 agents for crown not personally liable, 30 power of managing owner to elfect or vary, 31, 32 powers of broker to eflfect, 32 powers of captain to effect, 34 powers of mortgagor to effect, 3G when binding on part-owner, 35 when binding on purchaser, 35 when binding on mortgagee, 3G who are bound by, 35-37 whom shipper under can sue, 37-49 position of shipper who is not charterer, 37, 42-45 representations and undertakings in, 59-80 repudiation of, 39-G2 conditions implied in, 68-80 undertaking of seaworthiness in, G9-74 i operation of charter before loading, 81 loading under, 92, 105 when ship is ready to load under, 98 notice of readiness to load undrr, 99 loading under and exceptions, 100, 101 cargo tendered must comply with, 101 relations of shipper, shipowner, and charterer as to stowage under, 111, 112, 114 exceptions in, how construed, 168-175, 193 unloading under, 230 who is liable for demurrage under, 249 who bound by lien for freight in, 285, 28G form of chamber of shipping Welsli coal charter, 312 form of nett grain charterparty, 314 form of Anglo-American, 318 form of 1890, Black Sea, 322 and see Charterer; Demurrage; Freight; Loading; Unloading; Voyage, &c. CHAETER AND BILL OF LADING, 1, 2, 7, 38-42 when they differ, 38, 40-42 indorsee of bill of lading differing from charter, 45-47 when one incorporated in other, 47, 48 Charter and sub-charter, position of shipper, 42 Charter, Time, seaworthiness in, 70, 71 freights in, 247, 2G2, 203 Charter, without prejudice to, 38, 39, 43, 4G, 50, 53-55, 275 Charter, other conditions, as per, 47, 48 Chartered Freight : see Freight. Chartered voyage and carrying voyage, 81 CHARTERER, definition of, 1 position of, under demise charter, 3, G, 7 position of, under charter not a demise, 3-G who is also a shipper, position of, 37-42 380 INDEX. CHARTERER— confmwed. when liable to shippers of goods, 42-45 duty to name place of loadiiip:, 92-94 entitled to receive notice of ship's readiness to load, 99 duty to furnish cargo, 100-103 when excused from loading, 101 prevented from bringing cargo to port of loading, 100 obligation to load, when fullilled, 101 damages for failing to load cargo, 289-294 to provide full and complete cargo, 107, 108 to provide broken stowage, 109 and passengers in cabins, 107 position as to stowage. 111, 112 and cesser clause, 119-131 who is consignee, and cesser clause, 120 when can be sued for damage to goods, 190 cai^tain's power to bind, on voyage, 199 when can sue for general average, 225 when liable for general average on ship or freight, 22G when has lien for general average, 225 when entitled to salvage earned by chartered ship, 4, 22S duty to provide for discharge of cargo, 230 not entitled to notice of readiness to discliarge, 230, 231 agreeing to load or unload in fixed time, 238, 242-244 not excused by illegal orders of authorities, 243 when liable for demurrage, 249 freight when payable to, 275-277 loss, captain how far bound to decrease, 292-294 Chabteker, Bills op Lading as presented by, 53 Charterer, Freight to be collected by, 270, 273, 275 Charterer's Agent, consigned to, free of Commission, 103 Chartering Broker, 33 Civil War : cf. War, preventing loading, may excuse charterer, 178 arrival of cargo for loading, 178 Claims for cargo damaged, when to be made, 173, 237 Class of ship on register, condition precedent, (J2 owner's duty to procure, 103 Clean Bill op Lading, 115, 117 Clean receipt, 115, 117 ; Appendix II., 333, 334 Clearances, failure to procure, 101, 103 when procured by charterers, 103 Coal Cargo, special exceptions for, 175 Coal, ordered by master, wlio liable for, 199 Collected by Charterers, Freight to be, 270 Colliery Guarantee, 2, 93, 94, 238 how it works, 2, 3, 93 how far incorporated in charter, 3, 48 delay before reaching berth under, 94 "to load on conditions of," 238 Colliery working day, 241 Collision, exception of, 183 when a peril of the sea, 179, 181, 183 cargo not liable for damage by, 228 cargo-owner may recover damages for, 228, 229 INDEX. 381 Commercial Court, 304-310 establishment of, 304 rules constitutinj;;, 304-30G procedure of, 30G-3J0 CoMMEROiAii purpose of voyage, frustration of, G6, 68, 72, 74-78 Commission, consigned to charterer's agents, free of, 103 Commission Agent may stop in transitu, 143 Communication by captain with owners, when necessary, 199 with goods owner, when necessary, 201, 203 Conclusive Evidence, Clause, 51, 263 Condition, Shipped in good, 117, 118 Conditions, Implied, in contract, 68-80 Conditions, Precedent, in Charter, 59-68 when oral representation may be treated as, 59 effect of waiver of, 60 repudiation for breach of, 60, 62 functions of Court and jury as to, 60 statements, as to ship's register, when, 62 ship's tonnage, when, G'd-^^) ship's name, when, 65 ship's national character, when, 65 ship's whereabouts, when, 66-68 ship's time of loading or sailing, when, 66-68 Conditions Precedent in Bill of Lading, 60 Conditional Indorsement, effect of, 136, 137-141 Consideration, what necessary for indorsement defeating stoppage in tran- situ, 146 no, for indorsement of bill, effect of, 157 Consigned to Charterer's Agents free op Commission, 103 CONSIGNEE, holding bill of lading, statutory position of, 56, 160-163 who is also charterer, eii'ect of cesser clause, 120 his position in Admiralty Court, 160-163 can sue in tort for negligent carriage, 195, 196 can sue in contract for negligent carriage, 196 when liable for general average, 226 cannot be called on to accept goods before ship's arrival, 230 entitled to reasonable time to receive goods, 232, 233 not claiming cargo, 233, 234 right to delivery direct from ship, 232, 233 where goods are landed for assortment, 235 where goods are entered as override goods, 235 disputing charges of landing, 235, 236 demanding goods, wlien part lamled, 234 how far lighterman is agent of, 114, 235 not having property, caimot be sued, 236 not having property, cannot counterclaim, 236 when liable for demurrage, 249, 250 preventing delivery of goods, 233, 258, 259 when must pay freight, 270. 281 taking delivery under bill of lading, to pay freight, 274, 279, 281 who is cargo-owner, 281 when bound by lien for freight in charter, 285 general, in France, 273 Consignor : see Shipper ; Cargo-owner. 382 INDEX. Construction of contract of affreightment, 11-22 of priuted conditious on passenger tickets, 9 provinces of Court and of jury, 12 by what law, 13-lG by law of ship's flag. 13-16 by law of contract, effect of erasure, 21 CoNSTKUCTiVE NOTICE, lu mercantile documents, 47 CoNSTEUCTiVE TOTAL LOSS, after previous damage, 220 Contact with othek Goods, 186 Contract of Affreightment : see Affreightment. Contractus, Lex Loci, 13 Convenient Speed, to proceed with, 66, 67 Co-owners, remedies against managing owner, 31 Coppered, A 1, 67 County Courts, Jurisdiction of, 301-303 Court, province of, in construction of contract, 12, 60 Covered by Insurance, Damage capable of being, 173 Craft, risk of, 172 Cranes and dock companies : Appendix II. Crew, position under demise charter, 3 under charter not a demise, 3, 5, 6 by whom engaged and discharged, 33 barratry of, 172, 187 negligence of, 188 Crime of master or crew, when barratry, 188 Crown, charters by agents for, 30 Custom, effect of, in construction of contract, 12, 16-20 evidence of, when admissible, 16-20 marks of binding, 18 cannot explain well-known terms, 17, 20 when they bind persons ignorant of them, 20 of port of loading, 17, 106 of port of discharge, 17, 107 mercantile meaning of, 106 Customary Dispatch, 98, 100, 245-248 Customary Manner, 97, 99, 245-248 ^•W.C. = deadweight capacity, 63, 65, 109 Damage, meaning of, 173 Damage capable of being covered by Insurance, 173 Damage, Ship, 173 Damage to Cargo, who can sue for, 1 95 who can be sued for, 195 limitation of liability for. Appendix III., 359 claims arising out of, 237 effect of, on freight, 262 carrier's liability for, 164-168 Damages, rule of, 289 for breach of oral agreement inducing contract, 59 for goods shut out, loss of profit on, 81, 290 to cargo by water, and general average, 219 for not presenting bill of lading, 258, 298 INDEX. 383 for goods not sliipped,290 for failure to load a cargo, 289-294 to cargo, how assessed, 294-29G for not signing bills of lading, 298 and see Fkeight, Dead. Damages for Detention : see Detention. Dangerous Goods, implied contract not to ship without notice, 78-80 what will be notice of, 79 and see Appendix III., 35-i Day, normal meaning of, 240 meaning in demurrage clauses, 240, 241 part of, counted as whole, 240, 241, 272 part of, counted as half, 241 working-day of twenty-four hours, 240 colliery working, 241 weather working, 241 running, 240, 24 1 length of, usually defined in colliery guarantee, 241 surf day, 240 Dead Freight : see Freight. Dead Weight, 63-65, 109 "per ton D.W.O. as above," 261 Deck Cargo, when proper, 109, 110 custom to load, 18, 109 effect of carrying without authority, 110 carrying, not barratry, 188 and general average, 217 in coasting trade, 218 Delay, on contract, effect of, 74-78, 205-207 captain's power to, on voyage, 205-207 Delivered, Freight payable by Net Weight, 268, 269 freight payable on intake measure of quantity, 268, 269 DELIVEKY OF GOODS. to whom shipowners may safely make, 135, 136, 232 effect of, by shipowner, 232 shipowner's duty, when conflicting claims for, 232 " as fast as steamer can deliver," 96, 247, 341, 342 " according to the custom of the port," 106 oral evidence explaining, 12, 17, 104 effect of wrongful, on stoppage in transitu, 149 what is to prevent stoppage «i transitu, 151 to forwarding agent, effect of, on stoppage in transitu, 151-154 contract to pay demurrage, implied from, 249, 250 what earns freight, 252, 259, 261 •' in manner approved by consignee," 259 of timber at Grimsby freight due on complete, 263 to person who has deposited freight, 282 damaged, effect of, on freight, 262 short, effect of, on freight, 262, 263 short-shipped, effect of, on freight, 262 short of destination, effect, of, on freight, 264-267 when concurrent witii payment of freigiit, 270 contract to pay freight, implied from. 279-282 to consignee, contract implied from, 250, 251, 279-282 freight due before or after, w) lien for, 283 without payment of freight, waives lien, 286 Delivery Order, as document of title, 147-149 and bill of lading, 147, 148 384 INDEX. Demise op Ship, when charter is, 3-7 position under, of charterer, captain, crew, 3, 161 eifects of construction of charter as, 4 hirer, not liable for ship's loss by act of God, 7 DEMURRAGE, what is, 121, 238 distinguished from damages for detention, 120. 121 when disputed, and operation of cesser clause, 121 wlien payable, 239 how calculated, 239 clauses as to, when applied to loading and unloading, 239, 240 under charter, who liable for, 48 and cesser clause, 121-131 at port of loading, 119, 120 on bill of lading, who liable for, 250, 251 who can sue on implied contract to pay, 251 contract to pay when implied from delivery, 249, 250 no lien for, at common law, 287 lien for, by express agreement, 119-131, 287 customary for lighters in London, Appendix II., 334 DESCRIPTION OF GOODS, eftect of '• weight and contents, etc., unknown," 118 Despatch : see Dispatch. Detention, Damages for, what are, 238 when payable, 239 distinguished from demurrage, 120, 121 and cesser clause, 121, 122-131 no lien for, at common law, 119, 121-131, 287 lien for, by express agreement, 119-131, 288 Deviation, implied contract to proceed without, 68, 203 when captain may make, 203, 205-207 when not barratry, 188 to save life allowed, 203 to save property, when allowed, 204 towage is, 204 communication with ship in distress is not, 204 damage occurring on, liability for, 204 delay to prevent damage to cargo not a, 205-207 its effect on bottomry bond, 213 Diligence, implied contract to use due, 74-78 Discharge : see Unloading. DISBURSEMENTS, advances for, whether freight or loan, 255 Dispatch Money, how calculated, 241 Dispatch, usual, in Loading, 97, 100, 245-248 Dispatch, usual, in Discharging, 97, 98 charterer may keep ship all her laydays, 243 " to be discharged with all," 247 DISTRESS, PORT OF, law as to powers of master in, 15, 16 Dock Dues and Charges, how paid, Appendix II., 333 Dock Warrant, effect of, 147-149 Dock, as ordered om arriving, 88, 93 " ready in dock," 98 Docks, if full, position of shipowner, 85. 93, 243, 245 in London, practice of, Appendix II., 332 INDEX. 385 and stevedores, Appendix II., 334 their cranes, liability for, Appendix II., 334 damage in, when a peril of the sea, 182 Document of Title, meaning of, 147 Dunnage, 71, 110 owner may supply cargo as, 111 Embargo, effect of, on contract, 77, 271 an arrest of princes, 177 effect of on time-freight, 271 Employment of ship, by whom settled, 32 Enemies, Queen's, 170 Engagement of Goods in ship, effect of, 81 and discharge of crew, by whom, 33 of freight, 33 entry and clearance of vessel, by whom, 33 Equii'ment of Ship, by whom directed, 32 Erasures in charter or bill of lading after signature, 22 EXCEPTED PERILS, 168, 172-174 t'Th chcLvt&T loo 1T2 apply before loading:, 82, 100, 101, 114, 173, 193 when they cover failure to load, 100, 101 only apply within scope of charter, 193 are for benefit of both shipowner and ciiarterer, 168 not incorporated in bill uf lading, 48 in bill of lading, 168-175 history of, 168 and express provisions in charter, 169 list of those judicially interpreted, 172-174 burden of proof as to, 194 effect of deck stowage on, 110, 193 their relation to implied undertakings, 68, 174 as to seaworthiness, 73, 74 and unreasonable delay, 75 Explosives, shipment of, 78-80 and see Appendix III., 354 F.O.B. = free on board, the goods then being at tlie risk of the purchasei-. who is liable for freight : Inglis v. Stock (1885), 10 App. C. 268. F.O.W. = first open water, for Baltic ports, after ice. Factors Acts, questions under, 147-149 Faults in Management, what is included in, 191 Final Sailing, 197 Fire on Board, 172 FIRE, goods lost after shipment before sailing through, 108, 264 assessment of damages after, 290 on board and general average, 187 exception of, 187 caused by lightning, is Act of God, 187 Fitness for Cargo : see Seaworthiness. Fixed Time, to be loaded in, 242 charterer may keep ship all her laydays, 243 to discharge in, 244, 247 2c 386 INDEX. Flag, Law op Ship's, as law of construction, 13-16, 212 followed in cases of necessity, 1 , 3 FoKEiGN Ship under English charter, 14, 264 Forthwith, 82 Forwarding Agent, delivery to, and stoppage in triinsitn, 151-153 Cargo and General Average, 222 France, general consignee in, 273 Fraud, avoiding charter. 59 effect on bUl of lading, 56, 158 Free of Commission, 103 FREIGHT, definition of, 1, 252 may not be explained by usage, 17, 19, 253 does not include passage-money, 19, 253 when earned, 252 not payable if goods lost, 232 merchantable condition as test of riglit to, 252, 259, 262 oral evidence to explain, when admitted, 17, 19, 253 on full and complete cargo per ton d.w.c, 261 mode of payment, to be fixed by custom, 17, 19, 253, 267 under English charter of foreign ship, 14, 264 for cargo belonging to shii^owner, 267, 268 amount of, how calculated, 268, 269 amount of, where goods shrink or swell on voyage, 268 and hydraulic presses, 268 alternative, 270 payable after arrival before delivery, 260 on fodder carried for cattle, 270 consignee may ascertain what goods are on board, 270 when payable, 270 payment of, and delivery of goods, concurrent, 270 complete delivery as condition precedent, 263 when shipowner entitled to, 270 " to be collected by charterers," 270 " to pay out of freight collected," 270 clauses as to, in time and voyage charters, 254, 255, 271, 272 clauses as to, in bills of lading, 255, 271 to whom payable, 272-279 when payable to shipowner, 27:! shipowner may give authority to collect, 273 master's or broker's authority to collect, 33, 34, 273, 274 payment to master or broker when good, 33, 34, 273, 274 payment before due, efiect of, 273 when payable to captain, 274 when payable to third person, 274 payment ot, to obligee of bottomry bond, good, 275 payment of, into Court of Admiralty, when good, 275 when payable to charterer, 275-277 assignment of, eftect of, 277 assignee of share of shij) entitled to, 277 when payable to mortgagee of ship, 278, 279 when payable to mortgagor of ship, 278, 279 by whom payable, 279, 282 when payable on contract implied from taking delivery of goods, 279- 282 implied contract to pay, by shipper, 279, 280 when shipper freed from contract to pay, 280 consignee, when liable to pay, 281 INDEX. 387 YimmiVT— continued. indorsee of bill of ladinj? when liable for, 182 where cargo transhipped, 210, 211, 259 under througli bill of lading. 57, 252 how affected by blockade, embargo, bad weather, delay for repairs, 27 1 guarantee of, when ship lost, 252 when payable, "ship lost or not lost," 252, 2.17 general average, sacrifice of, 217, 221 and general average expenses in port of refuge, 222, 223 person entitled to, and general average, 225 free, authority to master to carry, 53 stop for. Appendices II., III., 335, 35G release for. Appendix II., 337 lien for, by common law, 253, 283, 285 lien for, under demise, cliarter, 4 due on delivery of goods, lien for, 283 due after delivery of goods, no lien for, at common law, 284 lien for, on what goods, 285 lien for, for what amounts, 285 lien for, how waived, 286 lien for, how maintained, 286 taking payment of by bill, waives lien, 28G ilelivery without payment of, waives lien, 286 in charter, lien for against whom, 285, 286 and general consignee iu France, 273 release for, 337 when goods may be sold to realise lieu for, 358 FREIGHT, ADVANCE, what is, 255, 256 or loan, which a payment is, 255, 256, 273 insurance of, 255 common stipulations as to, 255 due on signing bills of lading, 256, 2;»S payable in advance "if required," 256 payable three days after sailing, 256 on cargo burnt, 256 if ship lost, 256 when recoverable, 256 and final sailing, 197 no lien for, at common law, 256, 284, 288 lien for, by express agreement, 256, 284, 288 Freight, Back, what is, 258 Freight, Dead, what is, 296-298 no lieu for at common law, 287 lien for by express agreement, 288 Freigut-Note as evidence of terms of siiipment, S FREIGHT. FULL, when shipowner is entitled to, 259, 260 earned when shipowner is ready to deliver, 259, 262 how earned if there is a lump sum as freight, 261 earned by means of transhi|)ment, 259 due when shipper prevents delivery, 259 for goods delivered damaged, wlien payable, 262 earned, if all goods shipped delivered, 262 in full for the voyage, 270 Freight, Lump, what is, 261 when earned by shipowner, 259, 261 2 c 2 388 INDEX. FKEIGHT, PRO RATA, when payable for bhort delivery, 263 when payable for delivery short of destination, 2G4-267 not payable without special agreement, 2G4 agreement to pay, from what implied, 264, 2t!5 eflect of arrest of goods on. 2G5 efiect of sale of goods on, 265 and detention by ice, 266 when ship abandoned, 265, 266 Freight and all other conditions as per Charter, \1 Freight to be collected by Charterers, 270 Freight in full for voyage, 270 Freight, highest on same voyage, 270 Freight payable in London, 19, 253, 271 on bill of lading quantities less two per cent., 270 Freight payable on net weight delivered, 269 Freight payable on intake measure of quantity delivered, 269 per ton delivered, in German law, 14 Freight, at any rate of, Master to sign bills of lading at, 38, 39, 43, 46, 55 at current or any rate, 55 From Ship's tackles. 237, 336, 338 Frost, an Act of God, 176 not a peril of the sea, 180 preventing loading, 102 Frustration of adventure, 74-78 Fuel, cargo used as, and general average, 219 Full and complete Cargo, 107-109 with guaranteed dead- weight capacity, 261 Full reach of the vessel, 109 General Average : see Average. Glasgow, Practice of : see Appendix II., 342 God, Act of : see Act of God. Good condition, shipped in, 117, 118 Goods : see Cargo. do not include passengers' luggage, 347 Goods Owner : see Cargo Owner. Gothenberg Custom, as per, 269 Government Action, preventing loading, 100, 174 when an "arrest of princes," 177, 178 Government pass, for loading, 100 Ground, taking the, when a peril of the sea, 180 Gunpowder, stowage of, 71, 78 Handbills as part of contract of aflfreightment, 8 Harter Act (U.S.A.), 74; and Appendix V., 367 Heat, exception of, 186 INDEX. 389 Highest freight on same voyage, 270 Holidays, Sundays and, excepted, 239-241 Hours, meaning of, in demurrage clauses, 241 now counted, 241 ]iart of, how counted, 241 saved, nut averaged, 240 HuLii, practice of port of: see Appendix II., 343 Hydhaulic puesses and freiglit, 268 Ice, ])r(iV(;nting loading or unloading, 100-103, 243 causing delay after loading is completed, 101 and pro rata freight, 260 IcEBEHGs, a peril of the sea, ISO, 181 justify delay or deviation, 205 Icebound Ports, duty of ship loading or discharging at, 85. 86 Illegal acts, when barratry, 188 orders of authorities do not excuse charterer, 243 Illegality, by English law, 9 by foreign law, 9 seizure by revenue officers, prima facie proof of, 10 as affecting charterer's refusal to load, 100, 104 when freight recoverable on ground of, 258 IMPLIED CONTKACTS, in contract of aftreightmeut, 68 eflect of breaches of, 68 how affected by exceptions, 68, 174 refer to the particular cargo, 69 refer to the particular voyage, 69 of seaworthiness, 69-74 of seaworthiness of refrigerating-room, 69 of seaworthiness of bullion room, 09 of seaworthiness of insulated hold, 69 in the case of a tug, 70 of reasonable dispatch, 74-78 not to ship dangerous goods without notice, 78-80 not to deviate, 203 iMPKOrKR Navigation, 191-193 INDORSEE OF BILL OF LADING, rights of, by custom, 2, 132, 133 rights of, by statute, 2, 56, 133, 134, 158, 159 when liable on clauses in charter, 45, 47, 53 for goods not shipped, position of, 50 when two bills are signed for same goods, 50 and stoppage in transitu, 144, 146 acting inula fide, 1 57 may have better position than indorser, 159, 160 further indorsement by, effect of, 159 when he can sue in Admiralty Court, 160-103 when he can sue in tort for damage to goods, 195 when he can sue on contract for damage to goods, 195 when liable fur freight, 282 when bound by lien for freight in charter, 285, 286 INDORSEMENT OF BILL OF LADING, effects by custom, 2, 133, 134 effects by statute, 2, 56, 133, 134 kinds of, 132, 133 390 INDEX. 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