¥m' THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW the Property he TY LAW LIBRARY here than.^B^ Aease ret#ti,v or notify Librarian. ^J'^ ^ Books helongixji^yo ^is Library areJ^eiusoId, exchanged or%iven away. r |> V, JAN 3 1917 .• ■/ _, of -- LOSiSGBLHS THE CONTRACT OF AFFREIGHTMENT AS EXPRESSED IN CHAETERPARTIES BILLS OF LADING. BY SIR THOMAS EDWARD gCRUTTON, ONE OF THE LORDS JUSTICES OF HIS MAJESTY'S COURT OF APPEAL ; AUTHOR OF "the LAWS OF COPYRIGHT;" "THE MERCHANT SHIPPING ACT, 1894 ; " ETC. EIGHTH EDITION. BY SIE T. E. SCRUTTON AND F. D. MACKINNON, M.A^^ OF TRINITY COLLEGE, OXFORD, AND OF THE IN ONE OF HIS majesty's COUNSi ^^V^ LONDON: SWEET AND MAXWELL, LIMITED, 3, CHANCEEY LANE. Toronto, Canada : THE CARSWELL COMPANY, LTD., 19, Duncan Street. Sydney, N.S.W. : LAW BOOK CO. OF AUSTRALASIA, LTD., 51-53, Elizabeth Street. 1917. NOTE. 1st Edition 27id Edition drd Edition ith Edition 5th Edition 6th Edition 1th Edition Sth Edition 1886 1890 1893 1899 190i 1910 1914 1917 .. By T. E. SCBUTTON. .. By T. E. SCKUTTON. .. By T. E. SCEUTTON. .. By T. E. SCRUTTON. r, f T. E. SCRUTTON, K.C., and .. By ' Tj f Sir T. - ^y t F.D p. j Sir T. E. Sckuttox and ••• - I F. D. Mackiitnon T> ( Sir T. E. Scbutton and ■•• ^y I F. D. MACKINNON, K.C. I F. D. MACKINNON. Sir T. E. Scrutton and MACKINNON. T 1917 6 PREFACE TO THE FIRST EDITION. The last twenty years have seen what aknost 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 beginning of this century, sailing-ships made their one or two voyages a year, in a not too hurried manner, 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 powers 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 they carry, until the bill of ladmg contains fifty or sixty lines of closely printed conditions and exceptions, and there appears to be no ^f<'^.»RI iv PREFACE TO TEE FIRST EDITION. 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 foUowmg 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. Essex Coukt, Temple, October 25, 1886. PEEFACE TO THE EIGHTH EDITION. The great majority of the problems discussed in the Courts since the last edition of this work, and referred to in this edition, have arisen directly or indirectly out of the War. The text has been revised throughout so as to deal with these new problems, and also in certain parts as to older questions. The most material alterations or revisions will be found under Articles 4, 30, 99, and 159. The Table of Cases includes about 120 cases not cited in the last edition, but not all of these are new ones. We have added in various places certain antiquarian notes which seemed to be of interest. The revision of the text of this edition was completed at Easter of this year. On the back of this page will be found a note of certain cases reported since that time, a reference to which may perhaps be usefully inserted on the pages indicated. T. E. S. F. D. M. June 13, 1917. ADDENDA. Pages 20, 24, 26. Strathlorne S.S. Co. v. Baird. Decision of Court of Session reversed by House of Lords on the question whether the custom relied on had been proved ; (1916), Sess. Cas. H- L. 134. Pages 22, 130. "\ATiether the practice of a single trader can create a custom of a port. See also Cazalet v. Morris (1916), Sess. Cas. 952. Pages 96, 97. Effect of requisition by Admiralty upon a time charterparty. See also Countess of Warwick Co. v. Le Nickel Societe (1917), 33 T. L. R. 291; Anglo- Northern Co. v. Emlyn Jones (1917), 33 T. L. E. 302 ; Heilgers v. Cambrian Co. (1917), 33 T. L. R. 348; and Lloyd Beige v. Stathotos (Lloyd's List, May 17th, 1917). Pages 203, 213. ^Vhether exceptions are for benefit of both charterer and shipowner, or only of latter. See also Cazalet v. Morris (1916), Sess. Cas. 952. Pages 209, 429. Incorporation in bill of lading of sect. 1 of Harter Act nullifies provision limiting liability to so miich per package ; Hordern v. Commonwealth Line (1917), 33 T. L. R. 344. Qiiery if such incorporation will also nullify limitation of liability by sect. 503 of Merchant Shipping Act, 1894 (pp.371, 421). Page 253. Smith v. The King. Decision of Sankey, J., reversed by C. A. (1917), 33 T. L. R. 342. Pages 332, 334. See also Newsumv. Bradley (1917). 33 T. L. R. 309. CONTENTS. Section I. — Nature and Construction 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 Affreightment .... 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 Custom or Usage, when admissible ...... Article 9. — Printed Forms of Contract. Article 10. — Alterations in Contract . . . . page 1—28 1—3 3—7 8—10 10- 13, 14- 16- -13 14 -16 -19 19—26 26—28 28 Section II. — Parties to the Contract . 29 — 71 Article 11. — Who are Principals ... 29 — 32 Article 12. — When an Agent binds his Principal . . 32, 33 Article 13. — When Agent is personally liable as Prin- cipal 33—36 Article 14. — Agent for undisclosed Principal . . 36, 37 Article 15. — Agent for Crown ..... 37 Article 16. — Classes of Agents ..... 37 — 41 (a.) — Managing Owner . . . . 37, 38 (ft.)— Broker ' 38—40 (c.) — Captain ...... 41 Article 17. — Who are bound by Charters . . . 42 — 44 {a.) — Part-owner of Shares in Ship . . 42 (6.) — Purchaser ..... 42 (c.) — Mortgagor or Mortgagee . . . 43, 44 Article 18. — Position of Shipper of Goods on Chartered Ship 44—55 {a.) — Where the Shipper is also the Char- terer ...... 44 — 49 (b.) — Where the Shipper is other than the Charterer 49—53 (c.) — Indorsee from Shipper . . . 53 — 55 VIU CONTENTS. Article 19. — Incorporation of Cliarter in Bill of Lading . Article 20. — Authority of Master or Broker to sign Bills of Lading ..... I. — Wliere no goods are shipped II.— :-"\Vhere goods are shipped : (1.) — The ship not being chartered. (2.) — The ship being chartered Article 21. — Statutory liability of Persons signing Bill of Lading Article 22. — Through Bills of Lading .... PAGE 55—59 60—67 60—62 62, 63- 63 -67 68, 69 69—71 Section III. — Representations TAKINGS IN THE CONTRACT AND UnDEK- . 72—100 Article 23. — Representations and Conditions Precedent 72 — 75 Aiiirle 24. — Ship's Class on the Register . . . 75, 76 Article 25. — Ship's Tonnage, or Dead Weight Capacity. 76 — 78 Aiiicle 26. — Ship's Name and National Character . 79 Article 27. — ^Whereabouts of Ship, and time of Sailing. 79 — 81 Article 28. — Conditions implied in the Contract . . 82 Article 29. — Undertaking of Seaworthiness . . . 82 — 90 Article 30. — Undertaking of Reasonable Dispatch — Effect of delay 91—98 Article 31. — Undertaking by Shipper not to ship dan- gerous goods without notice . . 98 — 100 ding . 101 . 101— -103 104 . 104, . 105— 105 -108 . 108— -111 Section IV. — Performance of Contract : Loading 101 — 159 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 Ship- owner ...... Article 39. — ^Vhere the Ship must be ready to load — ^Vhere the Charterer is bound to load. 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 ..... AHicle 46. — A full and complete Cargo Article 47. — Broken Stowage Article 48. — Deck Cargo 111, 112 112—121 121, 122 122, 123 123—127 127, 128 128, 129 129—131 131—134 134 134. 135 CONTENTS. IX Article 49. — Ballast and Dunnage Article 50. — Loading and Stevedores . AHicle 51. — Mate's receipt ....-• Article 52. — Shipped in Good Condition, Quantity and Quality unknown . . • . Article 53. — Cesser Clause ...... Article 54. — Demurrage and Cesser Clause . PAGE 135, 136 136—141 141—144 144—146 146—149 149—159 Section V. — The Bill of Lading as a Document OF Title ....... AHicle 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 61. — Reservation of J us Disponemli. Article 62. — Conditional Indorsement . Article 63. — Stoppage in transitu. Article 64. — Wlio may stop in transitu Article 65. — Insolvency of Vendee AHicle 66. — Against whom the Right may be exercised Article 67. — Indorsement of Document of Title and Stoppage ..... Article 68. — The Transit Article %^. — ^When the Transit ends . Article 70. — Notice to stop, how given Article 71. — Master's Duty on receiving notice—Ship owner's rights as to freight Article 72. — Indorsement of Bill of Lading as a Mort gage . Article 73. — Indorsement Pledge Article 74. — Ineffectual Indorsements . Article 75. — Bills of Lading Act . Article 76. — Position of Indorsee AHicle 77. — Admiralty Jurisdiction Act of Bill of Lading as a 160—197 160, 161 161, 162 162, 163 163, 164 164—167 168 168, 169 169—173 173, 174 174, 175 176 176—178 178—181 181—183 183—188 188 189 189 189, 190 191, 192 192, 193 193, 194 194—197 Section VI. — Liability of Shipowner for Loss of, OR Damage to, Goods carried AHicle 78. — Liability of Shipowner in absence of Express Stipulations .... AHicle 79. — Effect of Excepted Perils. AHicle 80. — Act of God ...... 198—242 198—203 203—213 214, 215 X CONTENTS. PAGE Article 81. — King's Enemies 215 AHiele 82.— Restraints of Princes .... 216—218 Atiide 83.— Perils of the Sea 219—224 Atikle 84.— Strikes 224, 225 Adicle 85.— Pirates, Robbers, Thieves . . . 225—227 Ariide 86. — Leakage, Breakage, etc 227, 228 A)iide 87.— Fire 228, 229 Aiiide 88.— Barratry 230, 231 Artide 89.— Negligence 231—237 Article 89a. — Railway Companies — Carriage by Sea — Negligence ...... 237 — 239 AHiele 90.— Jettison 239 Aiiide 91. — Operation of Exceptions .... 239 — 241 AHiele 92. — Who can sue for failure to carry Goods safely 241, 242 AHiele 93. — Who can be sued for negligent carriage of the Goods 242 Section VII. TRACT : -The Performance The Voyage OF THE CON- AHicle 94. — Final Sailing .... AHiele 95. — Master's authority on the Voyage AHiele 96. — Master's authority, whence derived AHiele 97. — ^ Necessity ..... AHide 98. — Communication with Owners . AHiele 99. — Master's duty to proceed without deviation AHiele 100. — Master's authority to delay or deviate in case of Necessity AHide 101. — Master's duty to take care of Goods AHiele 102. — Master's power to sell Damaged Goods AHide 103. — Master's power of Transhipment AHide 104. — Master's power of raising Money on Cargo AHiele 105. — Bottomry .... AHide 106. — Conditions justifying Bottomry AHide 107. — Jettison .... AHiele 108. — General Average AHide 109. — Classes of General Average Loss AHide 110. — Jettison of Cargo . AHide 111. — Cargo damaged by Fire . AHiele 112. — Sale of Cargo, or other sacrifice of its value .... AHide 113. — Sacrifice of Ship or Tackle AHide 114. — Sacrifice of Freight. AHide 115. — Extraordinary Expenditure by Ship owner .... AHide 116. — Expenses in Port of Refuge . 243—282 243, 244 244—246 246 246, 247 247—250 250—254 254—257 257, 258 258, 259 260—262 262, 263 263, 264 264, 265 266 266—268 268 268—270 271 271, 272 272, 273 273, 274 274, 275 275, 276 CONTENTS. xi PAGE Article 117. — Master's duty to collect General Average Contribution 276 — 278 Article 118. — Who can sue for General Average Con- tribution 278 Article 119. — Who is liable for General Average Con- tribution 278, 279 Article 120. — General Average Contribution, how adjusted 279 Article 121. — Salvage 280, 281 Article 122.— Collision 281, 282 Section VIII. — Performance of the Contract : Unloading 283 — 295 Article 123. — Unloading under a Charter . . . 283, 284 Article 124. — Notice of Readiness to discharge not required 284, 285 Article 125. — Duty of Master as to Delivery at Port of Discharge 285 — 287 Article 125a. — Goods of different owners mixed and unidentifiable — Delivery . . . 287 — 289 Article 126. — Master's power to land or carry on Goods at Common Law .... 290, 291 Article 127. — Statutory Provisions as to Unloading . 291 — 295 Section IX. — Demurrage . . 296 — 317 Article 128. — Nature of Demurrage .... 296 — 298 Article 129. — Demurrage, when payable . . . 298, 299 Article 130. — Demurrage, how calculated . . . 299 — 303 Article 131. — To load or unload in a fixed time . . 304 — 307 Articles 132 and 133. — To load or unload — in reasonable time — with customary dispatch — as customaiy 307 — 314 Article 134. — Who are liable for Demurrage on a Charter 314, 315 Article 135. — Who are liable for Demurrage on a BiU of Lading 315—317 Section X. — Freight . . 318 — 354 AHicle 136.— Freight, what it is 318—321 AHicle 137.— Advance freight 321 — 325 AHicle 138.— Back freight 325 Article 139.— Shipowner's right to full freight . . 326, 327 AHicle 140.— Lump freight 327—329 AHicle 141. — Full freight for delivery of damaged goods or for short delivery .... 329, 330 Xll CONTENTS. PAGE Aiiicle 142, — Freight pro rata for short delivery . 331 Aiiicle 143. — Freight pro rata, for delivery short of destination ..... 331 — 335 Article 144. — Amount of freight 335 — 338 Article 145. — Freight, when payable .... 339, 340 Article 146.— Time freights in Charters . . • 340 — 343 Aiiicle 147. — Freight : to whom payable . . . 344 I.— The Shipowner 344, 345 II.— The Master 345 III.— The Broker 345, 346 IV. — A third person . . . ' • • 346 v.— The Charterer 34&— 349 VI.— Assignee of Ship or freight. . . 349, 350 VII. — Mortgagee of Ship and freight . . 350, 351 Aiiicle 148. — Freight : by whom payable . . .351 I.— The Shipper 352, 353 II.— The Consignee 353, 354 III. — Indorsee of the Bill of Lading, or person taking delivery under it . 354 IV. — Vendor who stops in transitu . . 354 Section XI.— Liex . . . 355—362 Article 149. — Kinds of Lien. 355 Article 150. — -Common Law Lien for freight . . 355 — 357 Article 151. — Lien : on what goods .... 357 Article 152. — ^Lien : for what amount .... 357, 358 Aiiicle 153. — Lien : how waived ..... 358, 359 Article 154. — Lien : how maintained .... 359 Article 155. — Liens not sujjported by common law . 359, 360 Article 156. — ^Lien of broker ..... 360 Aiiicle 157. — Lien by express agreement . . . 360 — 362 Section XII. — Damages . . 363 — 375 Article 158. — Kule of Damages 363, 364 Article 159. — Damages for failure to load under Charter 36^^-370 Aiiicle 160. — Damages for failure to carry safely . 370 — 373 Article 161. — Dead freight ...... 374, 375 Aiiicle 162. — Damages for not signing or presenting Bill of Lading ....". 375 Section XIII. — Jurisdiction . . 376 — 380 Section XIV. — The Commercial Court . 381 — 388 CONTENTS. xiii APPENDICES. PAGE Appendix I. — Forms of Charters and Bills of Lading. 389 Appendix II. — Customs of British. Ports . . . 390 — 404 Appendix III. — Statutes ...... 405 — 423 Appendix IV. — General Average : York- An twerp Rules 424 — 428 Appendix V. — United States Act, 1893 . . . 429 — 431 Appendix VI. — Australian, New Zealand, and Cana- dian Acts 432 — 438 INDEX 439 496 TABLE OF CASES. PAGE Abchurch S.S. Co. v. Stinnes ((1911) Sess. Cas. 1010; 48 Sc. L. R. 865; (1911)2Sc. L. T. 72) 212 Acatos V. Bums (3 Ex. D. 282 ; 47 L. J. Ex. 566 ; 26 W. R. 624) 98, 99, 250, 259, 333 Accomac, The (15 P. D. 208 ; 59 L. J. Ad. 91 ; 63 L. T. 118 : 39 W. R. 133 ; 6 T. L. R. 482 ; 6 Asp. M. C. 579) . 202, 204 221, 224, 231, 233, 236 Achard v. Ring (31 L. T. 647 : 2 Asp. Mar, C, N. S. 422) . 271 Acme Wood Co. v. Sutherland (9 Com. Cas. 170) . . 166 Acton V. Castle Mail Co. (1 Com. Cas. 135 ; 11 T. L. R. 518 ; 8 Asp. M. C. 73) 9 Adam v. Moms (18 Sc. Sess. C. 153 ; 28 Sc. L. R. 149) . 257 Adams v. Hall (37 L. T. 70 ; 3 Asp. Mar. C. 496). . 30, 31, 35 V. Royal Mail Steam Co. (5 C. B., N. S. 492 ; 29 L. J. C. P. 33) 124, 126 Adamson v. Newcastle Ins. Ass. Co. (4 Q. B. D. 462 ; 48 L. J. Q. B. 670 ; 41 L. T. 160 ; 27 W. R. 818 ; 4 Asp. Mar. C. 150) 80, 312 Admiral Co. v. Weidner ( (1916) 1 K. B. 429 ; (1917) 1 K. B. 222; 22 Com. Cas. 154; 33 T.L. R. 71) . . .95,96,97 Adonis, The (5 C. Rob. 256) 14 Agius V. Great Western Colliery Co. ( (1899) 1 Q. B. 413 ; 68 L. J. Q. B. 312 ; 80 L. T. 140) 363 Aitken v. Ernsthausen ( (1894) 1 Q. B. 773 ; 63 L. J Q. B. 559 ; 70 L. T. 822 ; 7 Asp. M. C. 462 ; 10 T. L. R. 256) . 133, 331, 365 Ajum Goolam v. Union Marine Co. ( (1901) App. Cas. 362 ; 70L. J. P. C. 34; 84L.T. 366; 9Asp. M. C. 167) . . 87 Aktieselskab Helios v. Ekman ((1897) 2 Q. B. 83; 66 L. J. Q. B. 538 ; 76 L. T. 537 ; 8 Asp. M. C. 244 ; 2 Com. Cas. 163) 15, 20, 23, 27, 127, 129, 283 Aktieselskabet Adalands v. Whitaker ( (1913) 18 Com. Cas. 170) 225 Aktieselkabet Argentina v. Von Laer (20 T. L. R. 9) . 210, 304 Aktieselkabet Hekla v. Bryson (100 L. T. 155 ; 14 Com. Cas. 1 ; 25 T. L. R. 168 ; 11 Asp. M. C. 186) . . 309, 404 Aktieselkabet Inglewood v. Millar (88 L. T. 559 ; 8 Com. Cas. 196 ; 19 T. L. R. 405 ; 9 Asp. M. C. 411). 110, 113, 116, 308 Aktieselskabet Lina v. Turnbull ((1907) Sess. Cas. 507; 44Sc.L. R. 367 ; 14Sc. L. T. 753) . . . .225,341 Aktieselkabet Shakspeare v. Ekman (18 T. L. R. 605) . . 225 Albano, The (8 T. L. R. 425) 214 Alcock V. Leeuw (1 C. &E. 98) 132, 133 xvi TABLE OF CASES. PAGE Alexander, The (4 C. Rob. 93) 14 V. Dowie (1 H. &N. 152; 25L. J. Ex. 281) . 41 Alexiadi v. Robinson (2 F. & F. 679) . . 291, 293, 294, 298 Alien, The (Swa. 189) 281 Alhanibra, The (6 P. D. 68 ; 50 L. J. Ad. 36 ; 44 L. T. 637 : 29 W. R. 655 ; 4 Asp. Mar. C. 410) . 24, 104, 108, 109, 110, 111, 115 Alina. The (L. R. 5 Ex. D. 227 ; 49 L. J. Ad. 40 ; 42 L. T. 517 ; 29 W. R. 94) 380, 406 Allan V. Gripper (2 C. & J. 218 ; 2 Tyr. 217) . 184, 187, 359 V. James (3 Com. Cas. 10) 69, 208 Allen V. Coltart (11 Q. B. D. 782 ; 52 L. J. Q. B. 686 ; 48 L. T. 944 ; 31 W. R. 841 ; 5 Asp. Mar. C. 104) . 110, 193, 315, 316, 317 Allerton S.S. Co. v. Falk (6 Asp. Mar. C. 287) . . 125, 127 Allison and Richards, In re (20 T. L. R. 584) . . 211,225 Allison V. Bristol Maiine Ins. Co. (1 App. C. 209 ; 34 L. T. 809 ; 24 W. R. 1039 ; 3 Asp. Mar. C. 178) . 320, 322, 323, 355 Alne Holme,. The ( (1893) P. 173 ; 62 L. J. Ad. 51 ; 68 L. T. 862 ; 9 T. L. R. 364) 125, 225 Alsager v. St. Katherine's Docks (14 M. & W. 794 ; 15 L. J. Ex. 34) 26, 27. 356 Amos v. Temperley (8 M. &W. 798) .... 353,354 Andalina, The (12 P. D. 1 ; 56 L. T. 171 ; 32 W. R. 336 ; 6 Asp. Mar. C. 62) 345 Andersen t-.CrundaU (14 T.L. R. 256) . . . .139 Anderson v. Anderson ( (1895) 1 Q. B. 749 ; 64 L. J. Q. B. 457 ; 72 L. T. 313 ; 43 W. R. 322) 212 V. Clark (2 Bing. 20) 241 ■ V. English and American Shipping Co. (1 Com. Cas. 85) 149 V. Morice (1 App. Cas. 713 ; L. R. 10 C. P. 58, 609 46L. J.C. P. 11 ; 35L. T. 566) 87 Tritton v. Ocean S.S. Co. (10 App. C. 107 ; 54 L. J. Q. B. 192 ; 52 L. T. 441 ; 5 Asp. Mar. C. 401) . . .281 Andrew v. Moorhouse (5 Taunt. 435 ; 1 Marsh. 122) . 21. 319 Angell V. Duke (L. R. 10 Q. B. 174 ; 44 L. J. Q. B. 78 ; 32 L. T. 25 ; 23 W. R. 307) 72 Angier v. Stewart (1 C. &E. 357) 342 Anglo-African Co. v. Lamzed (L. R. 1 C. P. 226 ; 35 L. J. C. P. 145 ; 13 L. T. 796 : 14 W. R. 477 ; 2 Asp. Mar. C. 0. S. 309) 136, 140 Anglo -Argentine Co. v. Temperley ( (1899) 2 Q. B. 403 ; 68 L. J. Q. B. 900 ; 81 L. T. 296 ; 4 Com. Cas. 281 : 15 T. L. R. 472 ; 8 Asp. M. C. 595) .... 268, 272 V. Westoll ( The Times, May 15, 1900 ; (1904) App. Cas. 255) 231 Anglo-Hellenic Co. v. Drevfus (108 L. T. 36 ; 19 Asp. M. C. 291 : 57 S. J. 246 ; 29 t. L. R. 197) . . . 21,115 Anna, The (18 T. L. R. 25) 304 Annen v. Woodman (3 Taunt. 299) 83 Annie, The (12 P. D. 50 : 56 L. J. Ad. 70 ; 56 L. T, 500 : 35 W. R. 366 ; 6 Asp. Mar. C. 117) 280 Anonymous Case (2 Show. 283) 322 TABLE OF CASES. xvii PAGE Apollinaris Co. v. Nord-Deutsclie Co. ( (1904) 1 K. B. 252 ; 73 L J. K. B. 62 ; 89 L. T. 670 ; 9 Com. Cas. 91 ; 20 T. L. R. 79 ; 9 Asp. M. C. 526) 269 Appleby v. Myers (L. R. 2 C. P. 651 ; 36 L. J. C. P. 331 ; 16L. T. 669) 96 Ardan S.S. Co. v. Weir ( (1905) App. Cas. 501 ; 74 L. J. P. C. 143 ; 93 L. T. 559 ; 11 Com. Cas. 26 ; 21 T. L. R. 723 ; lOAsp. M. C. 135) 123,124,307,308 Arden S.S. Co. v. Mathwin ( (1912) Sess. Cas. 211 ; 49 Sc. L. R. 143; (1911) 2 Sc. L. T. 450) .... 124,212 Argentina, The (L. R. 1 A. & E. 370 ; 16 L. T. 743 ; 2 Asp. Mar. C, 0. S. 529) 191, 192 Argentino, The (14 App. Cas. 519 ; 6 Asp. M. C. 433) . . 372 Argos, Cargo ex (L. R. 5 P. C. 134 ; 28 L. T. 745 ; 21 W. R. 707 ; 2 Asp. Mar. C. 6) . 10,11,106,115,261,275,291,318, 325, 326, 327, 359, 376, 380, 406 Armement Deppe v. Robinson (Lloyd's List, Feb. 27, 1917) 122 Armstrong v. Allan (8 T. L. R. 613) . . 51, 74, 141, 142, 144, 392 Arne, The ( (1904) P. 154 ; 73 L. J. P. 34 ; 90 L. T. 517 ; 20 T. L. R. 221 ; 9 Asp. M. C. 565) .... 297, 308 Amo, The (8 Asp. M. C. 5 ; 72 L. T. 621) . . . 332, 334 Arrospe v. Barr (8 Sc. Sess. Cas. 4th Ser. 602) ... 55 Artaza v. Smallpiece (1 Esp. 23) 352, 354 Asfar V. BlundeU ( (1896) 1 Q. B. 123 ; 65 L. J. Q. B. 138 ; 73 L. T. 648 ; 44 W. R. 130 ; 8 Asp. M. C. 106 ; 1 Com. Cas. 185 ; 12 T. L. R. 29). . . . 318, 326, 329, 330 Ashcroft V. Crow Colliery Co. (L. R. 9 Q. B. 540 ; 43 L. J. Q. B. 194 ; 31 L. T. 266 ; 22 W. R. 825 ; 2 Asp. Mar. C. 397) 116, 117, 310 Ashforth v. Redford (L. R. 9 C. P. 20 ; 43 L. J. C. P. 57) . 15 Ashmore v. Cox ( (1899) 1 Q. B. 436 ; 68 L. J. Q. B. 72 ; 4 Com. Cas. 48) 74, 124 Asia, The ( (1891) P. 121 ; 60 L. J. P. 38 ; 64 L. T. 327 ; 7 Asp. M. C. 25) 378 Assicurazioni v. Bessie Morris S.S. Co. ( (1892) 2 Q. B. 652 ; 61L. J. Q. B.754; 67 L. T. 218 ; 61 W. R. 83 ; 8T.L. R. 715) 85, 92, 94, 244, 260, 262, 263 Associated Cement Co. v. Ashton ( (1915) 2 K. B. 1 ; 84 L. J. K. B. 519; 20 Com. Cas. 165; 112 L.T. 486) . . .6,41 Association, &c. v.L.&L Docks ( (1892) 3 Ch. 242) . . 393 Aste V. Stumore (1 C. & E. 319) . . 21, 291, 394, 395, 397 Atkinson v. Cotesworth (3 B. & C. 647 ; 5 D. & R. 552 ; 1 C. &P. 339) 344, 345 V. G. W. Ins. Co. (27 L. T. 103 ; 1 Asp. Mar. C. 382) 230, 231 V. Ritchie (10 East, 530) 10 V. Stephens (7 Ex. 567 ; 21 L. J. Ex. 329) . . 335 Atlantic Ins. Co. v. Huth (16 Ch. D. 474 ; 44 L. T. 67 ; 29 W. R. 387 ; 4 Asp. Mar. C. 369) .... 247, 259 Atwood V. Sellar (5 Q. B. D. 286 ; 49 L. J. Q. B. 515 ; 42 L. T. 644 ; 28 W. R. 604 ; 4 Asp. Mar. C. 283). . 275, 276 Aubert v. Gray (3 B. & S. 163 ; 32 L. J. Q. B. 50 ; 7 L. T. 469 ; 9 Jur. N. S. 714 ; 1 Asp. Mar. C, 0. S. 264) . . 216 xviii TABLE OF CASES. PAGE August, The ( (1891) P. 328 ; 60 L. J. Ad. 57 ; 66 L. T. 32 ; 7 Asp. M. C. 110) 16,17,19,248,259 Austin Friars, The (10 T. L. R. 633 ; 7 Asp. M. C. 503) . 121, 122, 298—305 Austin Friars Co. v. SpUlers ( (1915) 3 K. B. 586 ; 84 L. J. K. B. 1958 ; 20 Com. Cas. 342 ; 31 T. L. R. 535) . 272, 275, 425 Australasian S. Nav. Co. v. Morse (L. E. 4 P. C. 222 : 27 L. T. 357 ; 20 W. R. 728 ; 8 Moore, P. C, N. S. 482 ; 1 Asp. M. C. 407) 244, 245, 249, 250, 257, 259 Avery v. Bowden (6 E. & B. 953 ; 26 L. J. Q. B. 3 ; 3 Jur., N. S. 238) 11, 128 Avon S.S. Co. V. Leask (18 Sc. Sess. C. 280). . 128, 299, 303 B. Badische Anilin v. Basle Co. ( (1898) A. C. 200 ; 67 L. J. Ch. 141 ; 77 L. T. 573 ; 14 T. L. R. 82) 166 Baerlein v. Chartered Bank ( (1895) 2 Ch. 488 ; 65 L. J. Ch. 54 ; 43 W. R. 692 ; 1 Com. Cas. 96 ; 11 T. L. R. 475) . 385 Baerselman v. Bailey ( (1895) 2 Q. B. 301 ; 72 L. T. 677 ; 43 W. R. 593 ; 8 Asp. M. C. 4) 210, 233 Bahia, The (B. &L. 61, 292 ; 12 L. T. 145 ; 14 W. R. 411 ; 2 Asp. Mar. C, O. S. 174) . . 16, 194, 260, 326, 327, 333 Baillie v. Moudigliani (cited Park on Insurance, p. 90) . 335 BaUy V. de Crespigny (L. R. 4 Q. B. 180 ; 38 L. J. Q. B. 98 ; 19L. T. 681) 13,96 304 . 250, 251, 253 49 Sc. L. R. . 136. 283 &P. 114) . 121 14 Baird v. Price Walker (115 L. T. 227) . Balian v. Joly Victoria (6 T. L. R. 345) Ballantyne v. Paton ( (1912) Sess. Cas. 246 : 183; (1911) 2 Sc. L. T. 510) . Bailey v. De Arroyave (7 A. & E. 919 : 3 N Baltazzi v. Rvder (12 Moore, P. C. 168) Bamfield v. Goole, &c., Transport Co. ( (1910) 2 K. B. 94) 98, 99 Bank of Australasia v. Clan Line ( (1916) 1 K. B. 39 ; 84 L. J. K. B. 1250 ; 21 Com. Cas. 13 ; 13 Asp. M. C. 99 ; 113 L. T. 261) 209 Banner, Ex parte (2 Ch. D. 278 ; 45 L. J. Bk. 73 ; 34 L. T. 199 ; 24 W. R. 476) 168, 170, 171, 175 Bannerman v. "Wliite (10 C. B., N. S. 857 ; 9 W. R. 784) . 72 Bannister v. Breslauer (L. R. 2 C. P. 497 ; 36 L. J. C. P. 195 ; 16 L. T. 418 ; 15 W. R. 840 ; 2 Asp. Mar. C, 0. S. 490) 147, 150, 152, 155, 157, 159 Barber v. Meyerstein (L. R. 4 H. L. 317 ; 39 L. J. C. P. 187 ; 22 L. T. 808 ; 18 W. R. 1041 ; 3 Asp. Mar. C, 0. S. 449). . . . 160, 163, 164, 180, 191, 192, 287 V. Taylor (5 M. &W. 527) 170 Barclay v. CucuUa (3 Douglas, 389) 202 Barcore, The ( (1896) P. 294 ; 65 L. J. Ad. 97 ; 8 Asp. M. C. 189) 222, 223 Baring v. Christie (5 East, 398) 79 Barker v. Highley (15 C. B., N. S. 27 ; 32 L. J. C. P. 270 ; 9 L. T. 228 ; 11 W. R. 968 ; 1 Asp. Mar. C, 0. S. 383). 37, 38 TABLE OF CASES. xix PAGE Barker v. Hodgson (3 M. & S. 267) . . 10, 305, 306, 312 V. M'Andrew (18 C. B., N. S. 759 ; 34 L. J. C. P. 191 ; 12 L. T. 459 ; 13 W. R. 779 ; 2 Asp. Mar. C, O. S. 205). 87, 91, 94, 102, 103 V. Windle ( 6 E. & B. 675 ; 25 L. J. Q. B. 349 ; 2 Jur. N. S. 1069) 76 Barnes v. Lawson (16 Com. Cas. 74) ..... 386 Barque Quilpue v. Brown {see Quilpue v. Brown). Barret v. Button (4 Camp. 333) . . . 125, 127, 305, 306 Barrie v. Peruvian Corporation (2 Com. Cas. 50 ; 12 T. L. R. 133) 203, 213, 383 Barrow t;. Bell (4 B. &C. 736) 222 V. Coles (3 Camp. 92) 171 Ex parte. Re Worsdel (6 Ch. D. 783 ; 46 L. J. Bk. 71 ; 36 L. T. 325 ; 25 W. R. 466 ; 3 Asp. Mar. C. 387) . 187, 188 V. Williams (2 T. L. R. 37) 228 BaVwick v. Burnyeat (36 L. T. 250 ; 25 W. R. 395 ; 3 Asp. Mar. C. 376) 36, 47, 56, 148 Bastifell v- Lloyd (1 H. & C. 388 ; 31 L. J. Ex. 413 ; 10 W. R. 721) 106, 107 Bates V. Todd (1 M. &R. 106) 68 Baumvoll v. Gilchrest (The Sultan) ((1893) A. C. 8 ; 62 L. J. Q. B. 201 ; 68 L. T. 1 ; 7 Asp. M. C. 130) . 4, 5, 6, 7, 49, 51, 53, 242, 346 V. ( (1892) 1 Q. B. 253 ; 61 L. J. Q. B. 121 ; 66 L. T. 66 ; 7 Asp. M. C, N. S. 59) . 26, 27, 33, 140 Baxter v. Chapman (29 L. T. 642 ; 2 Asp. Mar. C. 170). . 169 V. Royal Mail Co. ( (1908) 2 K. B. 626 ; 77 L. J. K. B. 988 ; 99 L. T. 286 ; 14 Com. Cas. 46 ; 24 T. L. R. 537 ; 11 Asp. M. C. 98) 145, 209, 231, 240 Beatson v. Schank (3 East, 233) 210 Beeswing, The (53 L. T. 554 ; 5 Asp. Mar. C. 484) . 244, 245 Behn v. Burness (3 B. & S. 751 ; 32 L. J. Q. B. 204 ; 8 L. T. 207 ; 11 W. R. 496 ; 1 Asp. Mar. C, 0. S. 329) . 73, 74, 79, 80, 81 Belcher v. Capper (4 M. & G. 502 ; 5 Scott, N. R. 267) . 7 Belfort, The (9 P. D. 215 ; 5 Asp. Mar. C. 291) . . . 1 Bell V. Antwerp Line ( (1891) 1 Q. B. 103 ; 60 L. J. Q. B. 270 ; 64 L. T. 276 ; 39 W. R. 84 ; 7 Asp. Mar. C. 154) . 377 V. Kymer (3 Camp. 545 ; 5 Taunt. 477 ; 1 Marsh. 146). 354 V. PuUer (2 Taunt. 285 ; 12 East, 496). . . .366 Bennett v. Bacon (2 Com. Cas. 102 ; 13 T. L. R. 204) . 60, 240 V. Mcllwraith ( (1896) 2 Q. B. 464 ; 65 L. J. Q. B. 632 ; 45 W. R. 17 ; 1 Com. Cas. 441 ; 8 Asp. M. C 176 ; 12T. L. R. 616) 377 V. Maclellan (18 Sc. Sess. Cas. 4th Ser. 955) . . 42 Bennetts v. Brown ( (1908) 1 K B. 490 ; 77 L. J. K. B. 515 ; 98 L. T. 281 ; 13 Com. Cas. 110 ; 24 T. L. R. 199 ; 11 Asp. M. C. 10) 20, 24, 301 Benson v. Blunt (1 Q. B. 870 ; 1 G. & D. 449) . . .304 V. Chapman (2 H. L. C. 696 ; 13 Jur. 969 ; 8 C. B. 950). 246,346 U.Duncan (3 Ex. 644; 18 L. J. Ex. 169 ; 14 Jur. 218) 222, 263 XX TABLE OF CASES. PAGE Benson v. Ilippius (4 Bine 445 ; 3 C. & P. 186) . . .315 V. Schneider (7 Taunt. 273 ; Holt, N. P. 416) . . 130 Bentsen v. Taylor, Son &Co. ( (1893) 2 Q. B. 274 ; 41 W. R. 593 ; 7 Asp. M. C, N. S. 385 ; 9 T. L. R. 552). 73, 79, 80, 81 Berkeley V. Watling(7 A. &E. 29) 61 Bernal v. Pirn (1 Gale, 17) 357 Benidtson v. Strang (L. R. 3 Ch. 588 ; 37 L. J. Ch. 665 ; 19 L. T. 40 : 16 W. R. 1025 ; 3 Asp. Mar. C, 0. S. 154). 5, 177, 183 Bernina, The (13 App. C. 1 ; 58 L. T. 423 ; 6 Asp. Mar. C 257 ; 55 L. J. Ad. 65 ; 36 W. R. 870) . . 261, 262, 282 Berresford v. Montgomerie (17 C. B., N. S. 379 ; 34 L. J. C. P. 41 ; 10 L. T. 814 ; 12 W. R. 1060) . . . 292, 293 Bessey V. Evans (4 Camp. 131) • 305 Best V. Saunders (M. & M. 208 : 3 M. & R. 4) . . . 320 Bethell v. Clark (20 Q. B. D. 615 ; 57 L. J. Q. B. 302 ; 57 L. T. 627 ; 36 W. R. 185, 611 ; 6 Asp. Mar. C. 346) . 182, 183, 185, 186 Beynon v. Godden (3 Ex. D. 263 ; 39 L. T. 82 ; 26 W. R. 672 ; 4 Asp. Mar. C. 10) 350 V. Kenneth (8 So. Sess. Cas. 4th Ser. 594) . . 159 Biccard v. Shepherd (14 Moore, P. C 471 ; 5 L. T. 504 ; 1 Mar. L. C, 0. S. 165 ; 10 W. R. 136) .... 89 BiddeU v. E. Clemens Horst Co. ( (1911) 1 K. B. 214, 934) . 166, 167 Biddulph V. Bingham (30 L. T. 30 ; 2 Asp. Mar. C. 225) . 142, 144 Bird V. Brown (4 Ex. 786 ; 19 L. J. Ex. 154 ; 14 Jur. 132) . 175, 182, 184, 187 Birkley v. Presgrave (1 East, 220) . . . 266, 272, 274 Birlev v. Gladstone (3 M. & S. 205 ; 2 Mer. 401) . . 360, 374 Bishop tJ. Pentland (7 B. &C. 219) 222 V. Ware (3 Camp. 360) 360 Black V. Rose (2 Moore, P. C, N. S. 277 ; 11 L. T. 31 ; 12 W. R. 1123 : 2 Asp. Mar. C, 0. S. 89) . . . . 339 Blackburn v. Liverpool, &c., Co. ( (1902) 1 K. B. 290 ; 71 L. J. K. B. 177 ; 85 L. T. 783 ; 7 Com. Cas. 10 : 18 T. L. R. 121 ; 9 Asp. M. C. 263) . . . 221, 233, 235 Blaikie v. Stembridge (6 C. B., N. S. 894 ; 29 L. J. C P. 212 ; 8 W. R. 239) 136, 138, 139, 140 Blakelev v. MuUer ( (1903) 2 K. B. 760 ; 88 L. T. 90 ; 67 J. P. 51 ; 19T. L. R. 186) 96 Blakey V. Dixon (2 B. &P. 321) 319 Blanche, The (58 L. T. 592 ; 6 Asp. Mar. C. 272). . . 44 Blanchet v. Powell's, &c., Co. (L. R. 9 Ex. 74 ; 43 L. J. Ex. 50 ; 30 L. T. 28 ; 22 W. R. 490 ; 2 Asp. Mar. C. 224) . 330, 331 Blanck v. Solly (1 Moore, 531 ; Holt, N. P. 554) . . .11 Blasco V. Fletcher (14 C. B., X. S. 147 : 32 L. J. C. P. 284 ; 9L. T. 169; llW. R. 997; 1 Asp. Mar. C, O. S. 380) . 327, 333 Blenheim, The (10 P. D. 167; 54L. J. Ad. 81; 53L. T. 916; 34 W. R. 154 ; 5 Asp. Mar. C. 522) . . . .372 Blight V. Page (3 B. & P. 295) . . 10, 124, 305, 306, 312 Blyth V. Smith ( (1843) 5 M. & Gr. 405) . . . .363 Bohtlingk V. Inglis (3 East, 381) 183 TABLE OF CASES. xxi PAGE Bolckow Vaughan v. Compania Minera (85 L. J. K. B. 1776 ; 114L. T. 758; 32T. L. R. 404) 216 Bolton V. Lambert (41 Cli. D. 295 ; 58 L. J. Ch. 425 ; 60 L. T. 687 ; 37 W. R. 434) 33 V. Lane, and Yorkshire Ry. Co. (L. R. 1 C. P. 431 ; 35 L. J. C. P. 137 ; 13 L. T. 764 ; 14 W. R. 430) . 182, 183, 187 Bona, The ( (1895) P. 125 ; 64 L. J. Ad. 62 ; 71 L. T. 870 ; 43W. R. 289; 7 Asp. M. C. 557 ; IIT. L. R. 209) . 272,273 Bonaparte, The (8 Moore, P. C. 459) .... 248, 263 Bond V. Federal Steam Co. (21 T. L. R. 438 ; 22 T. L. R. 685) 84, 212 Bondrett v. Hentigg (Holt, N. P. 149) 221 Bonnie Kate, The (59 L. T. 203 ; 6 Asp. Mar. C 149) . . 42 Booker v. Pocklington Co. ( (1899) 2 Q. B. 690 ; 69 L. J. Q. B. 10 ; 81 L. T. 524 ; 5 Com. Cas. 15) . . . . .281 Booth S.S. Co. V. Cargo Fleet Co. ( (1916) 2 K. B. 570 ; 22 Com. Cas. 9; 115 L. T. 199; 32 T. L. R. 535). . 173,189 Bomman v. Tooke (1 Camp. 377) 91 Borrowman v. Drayton (2 Ex. D. 15 ; 46 L. J. Ex. 273 ; 35 L. T. 727 ; 25 W. R. 194 ; 3 Asp. Mar. C. 303) . . 132 Borthwick v. Elderslie S. Co. {see Elderslie Co. v. Borthwick). Bottomley v. Forbes (5 Bing. N. C. 121 ; 6 Scott, 866) . 25, 338 Bourne v. Gatlitf (11 C. & F. 45 ; 8 Scott, N. R. 604 ; 7 M. & G. 850) 285 Bowes V. Shand (2 App. Cas. 455 ; 46 L. J. Q. B. 561 ; 36 L. T. 857 ; 25 W. R. 730 ; 3 Asp. Mar. C. 461) . . 15 Boyd V. Mangles (3 Ex. 387 ; 18 L. J. Ex. 273) . . 349 Boyson v. Wilson (1 Stark. 236) 145, 240 Bradford v. Williams (L. R. 7 Ex. 259 ; 41 L. J. Ex. 164 ; 26 L. T. 641 ; 20 W. R. 782 ; 1 Asp. Mar. C. 313) . 75, 368 Bradley v. Dunipace (1 H. & C. 521 ; 32 L. J. Ex. 22 ; 5 L. T. 356) 146 V. Goddard (3 F. & F. 638) .... 284, 285 Braemount S.S. Co. v. Weir (15 Com. Cas. 101 ; 102 L. T. 73; 11 Asp. M. L. C. 345; 26T. L. R. 248) . 96,203,213 Branckelow S.S. Co. v. Lamport ( (1897) 1 Q. B. 570 ; (1907) 1 K. B. 787 n. ; 66 L. J. Q. B. 382 ; 2 Com. Cas. 89) . 301, 302 Brandt v. Bowlby (2 B. &Ad. 932) 170 Brass v. Maitland (6 E. & B. 470 ; 26 L. J. Q. B. 49 ; 2 Jur., N. S. 710) 98, 99 Bremner v. Burrell (4th Sc. Sess. Cas. 4th Ser. 934) . .115 Brenda S.S. Co. v. Green ( (1900) 1 Q. B. 518 ; 69 L. J. Q. B. 445; 82L. T. 66; 5 Com. Cas. 195 ; 16 T. L. R. 226 ; 9 Asp. M. C. 55) 20, 23, 127, 130 Brereton v. Chapman (7 Bing. 559 ; 5 M. & P. 526) . 115, 119 Breslauer v. Barwick (36 L. T. 52 ; 3 Asp. Mar. C. 355) . 29, 30 Briggs V. Merchant Traders Co. (13 Q. B. 167 ; 18 L. J. Q. B. 178 ; 13 Jur. 787) 281 Brightman v. Miller (Shipping Gazette, June 9, 1908) . 59, 328 Briscoe v. Powell (22 T. L. R. 128) ... 26, 230, 232 Bristol and West of England Bank v. Midland Ry. Co. ( (1891) 2 Q'. B. 653 ; 65 L. T. 234 : 40 W. R. 148 ; 7 T. L. R. 627 ; 7 Asp. M. C. 69) 190 xxii TABLE OF CASES. PAGE Bristol, &c., Ry. Co. v. Collins (7 H. L. C. 194 ; 20 L. J. Ex 41) 69 British and Foreign Co. v. Sanday ( (1916) 1 A. C. 650 ; 8.5 L. J. K. B. 550 ; 21 Com. Cas. 154 ; 114 L. T. 521 ; 32 T. L. R. 266) 216,218 British and Mexican Co v. Lockett ( (1911) 1 K. B. 264 ; 80 L. J. K. B. 462; 103 L. T. 868 ; 16 Com. Cas. 75) .20,24,301 British and S. A. Co. v. Anglo -Argentine Co. (18 T. L. R. 382) .338 British Columbia, *Scc., Co. v. Nettleship (L. R. 3 C. P. 499 : 37 L. J. C. P. 235 ; 18 L. T. 291 ; 16 W. R. 1046 ; 3 Asp. Mar. C, 0. S. 65) . . . . 128, 141, 143, 364, 366, 371, 372, 373 British Shipowners Co. v. Grimond (3 Sc. Sess. Cas. 4th Ser. 968) 284. 295 British Wagon Co. v. Lea (5 Q. B. D. 149 ; 49 L. J. Q. B. 321 ; 42 L. T. 437) 3 Broad v. Thomas (7 Bing. 99 ; 4C. &P. 338 ; 4M. &P. 732). 40 Broken Hill Co. v. P. & 0. Co. ( (1917) 1 K. B. 688 ; 22 Com. Cas. 178) 253 Bronncker t;. Scott (4 Taunt. 1) 316,345 Brown v. Byrne (3 E. & B. 702 ; 23 L. J. Q. B. 313 ; 18 Jur. 700) 20, 23, 319 V. Johnson (10 M. & W. 331 ; 11 L. J. Ex. 373 ; Car. &M. 440) 114,115,300,305 V. Kough (29 Ch. D. 848 ; 54 L. J. Ch. 1024 ; 52 L. T. 878 ; 34 W. R. 2 ; 5 Asp. Mar. C. 433) . . .360 V. Muller (L. R. 7 Ex. 319 ; 41 L. J. Ex. 214 ; 27 L. T. 272 ; 21 W. R. 18) 369 V. North (8 Ex. 1 ; 22 L. J. Ex. 49) ... 336 V. PoweU, &c., Co., Limited (L. R. 10 C. P. 562 ; 44 L. J. C. P. 289 ; 32 L. T. 621 ; 23 W. R. 549 ; 2 Asp. Mar. C. 578) 60 V. Tanner (L. R. 3 Ch. 597 ; 37 L. J. Ch. 923 ; 18 L. T. 624 ; 16 W. R. 882 ; 3 Asp. Mar. C, 0. S. 94) . 339, 350, 351 V. Turner Brightman & Co. ( (1912) A. C. 12 ; 81 L. J. K. B. 387 ; 17 Com. Cas. 171 ; 12 Asp. M. L. C. 79) 225, 340, 341 Bruce v. Nicolopoulo (11 Ex. 129 ; 24 L. J. Ex. 321) . 102, 124 Bruce Marriott v. Houlder ( (1917) 1 K. B. 72 ; 22 Com. Cas. 116) 137 Brunner v. Webster (5 Com. Cas. 167 ; 16 T. L. R. 217) . 216, 218 Bryans v. Nix (4 M. & W. 775 ; 1 H. & H. 480) . . .165 Bryden V. Niebuhr (1 C. & E. 241) . . 45,47,56,148 Buckle V. Knoop (L. R. 2 Ex. 333 ; 36 L. J. Ex. 223 ; 16 L.T.571; 15W. R. 999;2Asp. Mar. C, 0. S. 491, 519) . 25,337 Buckley v. Gross (32 L. J. Q. B. 129 ; 3 B. & S. 566 ; 7 L. T 743 ; 9 Jur., N. S. 986 ; 11 W. R. 465) . Bucknall v. Murray (5 Com. Cas. 312) . V. Tatem (83 L. T. 121 ; 9 Asp. M. C. 127) . Budgett V. Binnington ( (1891) 1 Q. B. 35 ; 60 L. J. Q. B 1 ; 63 L. T. 742 ; 39 W. R. 131 ; 6 Asp. Mar. C. 592) 287 342 103 122 304. 307' TABLE OF CASES. xxiii PAGE Buller V. Fislier (3 Esp. 67 ; 2 Peake, 183) . . . 221 223 Bulman v. Fenwick ( (1894) 1 Q. B. 179 ; 63 L. J. Q. B. 123 ; 69 L. T. 651 ; 42 W. R. 326 ; 7 Asp. M. C. 388 ; 10 T. L. R. 45) 113,116,203,225 Burdick v. Sewell {see Sewell v. Burdick). Burges v. Wickham (33 L. J. Q. B. 23 ; 3 B. & S. 669 ; 8 L. T. 47 ; 11 W. R. 992) 83, 84 Biirghall (assignees of) v. Howard (1 H. Bl. 366) . . . 173 Burgon v. Sharpe (2 Camp. 529) ...... 41 Burlmsou v. Hall (12 Q. B. D. 347 ; 53 L. J. Q. B. 222 ; 50 L. T. 723 ; 32 W. R. 492) 349 Burmester v. Hodgson (2 Camp. 488) .... 310, 312 Burrell v. Green (see Burrell v. Hind Rolph). V. Hind Rolph ( (1915) 1 K. B. 391 ; 20 Com. Cas. 84; 84L. J. K. B. 192; 112L. T. 105) . . . .341 Burstall v. Grimsdale (11 Com. Cas. 280) .... 167 Burton v. English (12 Q. B. D. 218 ; 53 L. J. Q. B. 133 ; 49 L. T. 768 ; 32 W. R. 655 ; 5 Asp. Mar. C. 187) . 15, 134, 237, 245, 246, 247, 266, 269, 270 Busk V. Fearon (4 East, 319) 263, 264 Bvrne v. Schiller (L. R. 6 Ex. 319 ; 40 L. J. Ex. 177 ; 25 L. T. 211 ; 19 W. R. 1114 ; 1 Asp. Mar. C. Ill) . 322, 324 C. Caffarini v. Walker (Ir. R. 10 CL. 250) . . 115, 119, 243 Caffin V. Aldridge ( (1895) 2 Q. B. 648 ; 65 L. J. Q. B. 85 ; 73 L. T. 426 ; 44 W. R. 129 ; 8 Asp. M. C. 233 ; 1 Com. Cas. 181 ; 12 T. L. R. 27) . . . 27, 132, 243, 252 Cahn V. Pockett ( (1899) 1 Q. B. 643 ; 68 L. J. Q. B. 515 ; 80 L. T. 269 ; 4 Com. Cas. 168 ; 8 Asp. M. C. 516) . 169.170, 171 Calcutta S.S. Co. v. Weir ( (1910) 1 K. B. 759 ; 79 L. J. K. B. 401; 102L. T. 428; 11 Asp. M. L. C. 395 ; 15 Com. Cas. 172; 26 T. L. R. 237) 45 Caldwell V. Ball (1 T. R. 205) 286 Calye's Case (8 Rep. 32 ; 1 Smith, L. C. 12th ed. 131) . . 202 Cambrian, The (57 L. T. 205) 280 Cammell v. Sewell (5 H. & N. 728 ; 29 L. J. Ex. 350 ; 6 Jur., N. S. 918 ; 8 W. R. 639) 259 Campion v. Colvin (3 Bing. N. C. 17 ; 3 Scott, 338) . . 357 Canada, The (13 T. L. R. 238) 55,64,67 S. Co. V. British Shipowners Assoc. (23 Q. B. D. 342 ; 58 L. J. Q. B. 462 ; 61 L. T. 312 ; 38 W. R. 87 ; 6 Asp. Mar. C. 388) 235 Cantiere Meccanico v. Constant (17 Com. Cas. 182) . .167 Cap Blanco, The ( (1913) P. 130 ; 83 L. J. P. 23 ; 12 Asp. M.C. 399; 109L. T. 672; 29T.L. R. 557) . . .194 Capper v. Forster (3 Bing. N. C. 938) . . . 136, 339, 365 V. WaUace (5 Q. B. D. 163 ; 49 L. J. Q. B. 350 ; 42 L. T. 130 : 28 W. R. 424 ; 4 Asp. Mar. C. 223) . 110,111 Carali v. Xenos (2 F. & F. 740) 129, 309 Cardiff S.S. Co. v. Jameson (88 L. T. 87 ; 9 Asp. M. C. 367 ; 19 T. L. R. 159) 24, 283 Carisbrook S.S. Co. v. London, &c., Co. ( (1902) 2 K. B. 681 ; 71 L. J. K. B. 978 ; 6 Com. Cas. 291 ; 9 Asp. M. C. 332) . 278 xxiv TABLE OF CASES. PAGE Carisbrook, The (15 P. D. 98 ; 59 L. J. Ad. 37 ; 62 L. T. 843 ; 38 W. R. 543 ; '6 Asp. M. C. 507) . . . 113, 117 Carlberg v. Wemvss Co. ( (1915) Sess. Cas. 616) . . 286, 298 Carlton S.S. Co.'^t;. Castle Mail Co. ( (1898) A. C. 486 ; 67 L. J. Q. B. 795 ; 78 L. T. 661 ; 47 W. R. 65 ; 3 Com. Cas. 207 : 14 T. L. R. 469 ; 8 Asp. M. C. 402) . 104, 106, 108, 110, 116, 121, 124, 308 i,. (2 Com. Cas. 173) . . 133 Carmichael v. Liverpool S.S. Assoc. (19 Q. B. D. 242 ; 56 L. J. Q. B. 428 ; 57 L. T. 550 ; 35 W. R. 793 ; 6 Asp. Mar. C. 184) 235 Carnegie v. Conner (24 Q. B. D. 45 ; 59 L. J. Q. B. 122 ; 6 Asp. M. C. 447) 77, 78 Can V. Jackson (7 Ex. 382 ; 21 L. J. Ex. 137) . . 30, 31, 32 V. Wallachian Co. (L. R. 2 C. P. 468 ; 36 L. J. C. P. 236 ; 16 L. T. 460 ; 15 W. R. 874 ; 2 Asp. Mar. C, 0. S. 517) 318 Carron Park, The (15 P. D. 203 ; 59 L. J. Ad. 74 ; 63 L. T. 356 : 39 W. R. 191 ; 6 T. L. R. 474 ; 6 Asp. M. C. 543) . 103, 233, 235, 239, 267 Cassaboglou v. Gibb (11 Q. B. D. 797 ; 52 L. J. Q. B. 538 ; 48 L. T. 850 ; 32 W. R. 138) 175 Castel Latta v. Trechman (1 C. & E. 276) . 106, 107, 255, 334 Castle V. Playford (L. R. 7 Ex. 98 ; 41 L. J. Ex. 44 ; 26 L. T. 315 ; 24 W. R. 440 ; 1 Asp. Mar. C. 255) . . 170 Castlegate Co. v. Dempsey ( (1892) 1 Q. B. 854 ; 61 L. J. Q. B. 620 ; 66 L. T. 742 ; 7 Asp. M. C. 186) . . 309,311,313 Cathcart, The (L. R. 1 A. &E. 329 ; 16L. T. 211) . . 44 Catherine Chalmers, The (32 L. T. 847 ; 2 Asp. Mar. C. 598) . 138, 140. 205 221 223 Cato V. Irving (21 L. J. Ch. 675 ; 5 De G. & Sm. 210 ;' 16 ' Jur. 161) 350 Caughey v. Gordon (3 C. P. D. 419 ; 27 W. R. 50). 45, 46, 320 Cawthron v. Trickett (15 C. B., N. S. 754 ; 33 L. J. C. P. 182 ; 9 L. T. 609 ; 12 W. R. 311 ; 1 Asp. Mar. C, O. S. 414) 315, 316 Celtic King, The ( (1894) P. 175 ; 63 L. J. Ad. 37 ; 70 L. T. 562 ; 7 Asp. M. C. 440 ; 10 T. L. R. 222) ... 43 Central Argentine Co. v. Marwood ( (1915) A. C. 981 ; 84 L. J. K. B. 1593) 207, 306 Chandler v. Webster ( (1904) 1 K. B. 493 ; 73 L. J. K. B. 401 ; 90 L. T. 217 ; 52 W. R. 290 ; 20 T. L. R. 222) . 93, 96 Chappel V. Comfort (10 C. B., N. S. 802 ; 31 L. J. C. P. 58 ; 4 L. T. 448 ; 9 W. R. 694) . . 54, 55. 56, 58, 314, 315 Charleton v. Cotesworth (R. &M. 175) 320 Charlton and Bagshaw v. Law ( (1913) Sess. Cas. 317 ; 50 Sc.L. R. 214; (1912)2Sc.L. T. 459) . . . .433 Chartered Bank of India v. British India Co. ( (1909) App. Cas. 369; 78L. J. P. C. Ill ; lOOL. T. 661; 14 Com. Cas. 189 ; 11 Asp. M. L. C. 245 ; 53 S. J. 446 ; 25 T. L. R. 480) . 82, 209 V. Henderson (L. R. 5 P. C. 501 ; 30 L. T. 578) 179 V. Netherlands Co. (10 Q. B. D. 521 ; 52 L. J. Q. B. 220 ; 48 L. T. 546 ; 31 W. R. 445 ; 5 Asp. M. C. 65) 16, 18, 223, 234, 282 TABLE OF CASES. XXV PAGE Chasca, The (L. R. 4 A. & E. 446 ; 44 L. J. Ad. 17 ; 2 Asp. Mar. C. 600) 222, 224, 230 Chavasse, Ex parte (4 De G. J. & S. 655 ; 34 L. J. Bk. 17 ; 11 Jur., N. S. 400 ; 2 Asp. Mar. C, 0. S. 197) ... 14 Christie v. Lewis (2 B. & B. 410 ; 5 Moore, 211) . . . 6, 7 Christoffersen v. Hansen (L. E. 7 Q. B. 509 ; 41 L. J. Q. B. 217 : 26 L. T. 547 ; 20 W. R. 626 ; 1 Asp. Mar. C. 305) . 147, 152, 159 Christy v. Row (1 Taunt. 299) . . . 325, 332, 333, 352 Ciampa v. British India Co. ( (1915) 2 K. B. 774 ; 84 L. J. K. B. 1653 ; 20 Com. Cas. 247) . . .84,89,211,216 Citizen's Bank v. WendeUn (2 T. L. R. 240). . . .245 Cito, The (7 P. D. 5 ; 51 L. J. Ad. 1 ; 45 L. T. 663 ; 30 W. R. 836 ; 4 Asp. Mar. C. 468) .... 332, 334 City of Lincoln v. Smith ( (1904) App. Cas. 250 ; 73 L. J. P. C. 45 ; 91 L. T. 206 ; 9 Asp. M. C. 586) . . .231 City of Peking, The (15 App. Cas. 438) . . . .372 Civil Service, &c., Soc. v. General Steam Co. ( (1903) 2 K. B. 756 ; 72 L. J. K. B. 933 ; 89 L. T. 429 ; 20 T. L. R. 10 ; 9 Asp. M. C. 477) 93 Clacevich v. Hutcheson (15 Sc. Sess. Cas. 4th Ser. 11) . 22, 130, 283 Clan Macdonald, The (8 P. D. 178 ; 52 L. J. Ad. 89 ; 49 L. T. 408; 32 W. R. 154; 5 Asp. Mar. C. 148) . 293, 316, 394, 397 Clemens Horst Co. v. Biddell {see E. Clemens Horst Co., &c.). V. Norfolk, &c., Co. {see E. Clemens Horst Co., &c.). CUfford V. Watts (L. R. 5 C. P. 577 ; 40 L. J. C. P. 36 ; 22 L. T. 717 ; 18 W. R. 925) 126, 306 Clink V. Hickie Borman (No. 1) (3 Com. Cas. 275) . . 3, 57 V. (No. 2) (4 Com. Cas. 292; 15 T. L. R. 408) 302 V. Radford ( (1891) 1 Q. B. 625 ; 60 L. J. Q. B. 388 ; 64 L. T. 491 ; 39 W. R. 355 ; 7 T. L. R. 327 ; 7 Asp. M. C. 10) 147, 148, 150, 151, 152, 153, 154, 155, 158, 159, 297, 374 CUpsham v. Vertue (5 Q. B. 265 ; 13 L. J. Q. B. 2 ; 8 Jur. 32) 80, 82, 91, 93 Coates V. Railtou (6 B. & C. 422 ; 9 D. & R. 593) . . 185 Cobban v. Downe (5 Esp. 41) 141, 143 Cochran v. Retberg (3 Esp. 121) 300 Cock V. Taylor (13 East, 399 ; 2 Camp. 589) . . 352, 353 Cockburn V. Alexander (6 C. B. 791 ; 18 L. J. C. P. 74) . 24, 136, 339, 365 Coggs V. Bernard (2 Lord Raym. 909 ; 1 Smith, L. C. 12th ed. 191) 202 Cohn V. Davidson (2 Q. B. D. 455 ; 46 L. J. Q. B. 305 ; 36 L. T. 244 ; 25 W. R. 369 ; 3 Asp. Mar. C. 374) . 82, 84, 87 Cole V. Meek (15 C. B., N. S. 795 ; 33 L. J. C. P. 183 ; 9 L. T. 653 ; 12 W. R. 349 ; 1 Asp. Mar. C, O. S. 415) . 134 Coleman v. Lambert (5 M. & W. 789) .... 241, 353 Collard v. S. E. Ry. Co. (30 L. J. Exch. 393 ; 7 H. & N. 79 ; 4L. T.,N. S. 410) 371 V. Carswell (The Victoria) (19 Sc. Sess. Cas. 987) . 91 xxvi TABLE OF GASES. PAGE Collen V. Wright (8 E. & B. 647 ; 27 L. J. Q. B. 215 ; 4 Jur.. N. S. 357) 34, 35 Collier, The (L. K. 1 A. & E. 83 ; 12 Jiir., N. S. 789 ; 2 Asp. Mar. C, O. S. 473) 281 Collins V. Lamport (34 L. J. Ch. 196; 11 L. T. 497 ; 13 W. R. 283 ; 2 Asp. Mar. C, 0. S. 153) .... 43 Colonial Ins. Co. v. Adelaide Ins. Co. (12 App. C. 128 ; 56 L. J. P. C. 19 ; 56 L. T. 173 ; 35 W. R. 636 ; 6 Asp. Mar. C. 94) 131, 170, 183 Coltman v. Chamberlain (25 Q. B. D. 328 ; 59 L. J. Q. B. 563 ; 39 W. R. 12) 43 Comber v. Leyland ( (1898) A. C. 524 ; 67 L. J. Q. B. 884 ; 79 L. T. 180) 377 Commercial Mar. Ins. Co. v. Namaqua Mining Co. (seeBiccard V. Shepherd). Commercial S.S. Co. v. Boulton (L. R. 10 Q. B. 346 ; 44 L. J. Q. B. 219 ; 33 L. T. 707 ; 23 W. R. 854 ; 3 Asp. Mar. C. Ill) 300,303,342 Compania Vascongada v. Churchill ((1906) 1 K. B. 237; 75 L. J. K. B. 94 ; 94 L. T. 59 ; 11 Com. Cas. 49 ; 22 T. L. R. 85 ; 10 Asp. M. C. 177) ... 63, 65. 145, 146 Concadoro, The ( (1916) 2 A. C. 199 ; 85 L. J. P. C. 156 ; 114 L. T. 962 ; 32 T. L. R. 462) 208 Consohdated Tea Co. v. Oliver's Whaii ( (1910) 2 K. B. 395 ; 15 Com. Cas. 212 ; 26 T. L. R. 388) . . 198, 200 Constantia, The (6 C. Rob. 320) 176 Cook V. Jennings (7 T. R. 381) 260, 332 Cooke V. Eshelby (12 App. C. 271 ; 56 L. J. Q. B. 505 ; 56 L. T. 673 ; 35 W. R. 629) 32 —t;. Wilson (1 C. B., N.S .153; 26 L. J. C. P. 15 ; 2 Jur., N. S. 1094) 34 V. (85 L. J. K. B. 888 ; 114 L. T. 268 T. L. R. 160) 9 Cooper, Ex parte (11 Ch. D. 68 ; 41 L. J. Bk. 49 ; 40 L. T. 105 ; 27 W. R. 518 ; 4 Asp. Mar. C. 63) . . . 175. 184 Corcoran v. Gurney (1 E. & B. 456) 222 CordeHa, The ( (1909) P. 27 ; 78 L. J. P. 48 ; 100 L. T. 197 : 11 Asp. M. C. 202) 20, 305 Corkling v. Massey (L. R. 8 C. P. 395 ; 42 L. J. C. P. 153 ; 28 L. T. 637 ; 21 W. R. 680 ; 2 Asp. Mar. C. 18) . 79. 80 Corlett V. Gordon (3 Camp. 472) 192 Corry v. Coulthard (2 C. P. D., at pp. 583, 584 ; 3 Asp. Mar. C. 546 n,.) 272 Cory V. Burr (8 App. C. 393 ; 52 L. J. Q. B. 657 ; 49 L. T. 78 ; 31 W. R. 804 ; 5 Asp. Mar. C. 109) . . 205, 215, 218 V. Stewart (2 T. L. R. 508) 43 Coulthurst V. Sweet (L. R. 1 C. P. 649) .... 337 County of Durham, The ( (1891) P. 1 ; 60 L. J. P. 5 ; 64 L. T. 146 ; 39 W. R. 303 ; 7 T. L. R. 57 ; 6 Asp. Mar. C. 606) 380 of Lancaster S.S. v. Sharpe (24 Q. B. D. 158 ; 59 L. J. Q. B. 22) 314, 316, 347 Covas V. Bingham (2 E. & B. 836 ; 23 L. J. Q. B. 26 ; 18 Jur. 596) 145, 330 TABLE OF CASES. xxvii PAGE Coventry v. Gladstone (L. R. 6 Eq. 44 ; 37 L. J. Cli. 492 ; 16 W. R. 837) .... 169, 180, 181, 187, 188, 394 Coverdale v. C4rant (9 App. C. 470 ; 53 L. J. Q. B. 462 ; 51 L. T. 472 ; 5 Asp. Mar. C. 353 ; 32 W. R. 881). 123, 124, 125, 126, 127, 128, 130 Cowasjee v. Thompson (5 Moore, P. C. 165) . 142, 143, 182 Cowie V. Witt (23 W. R. 76) 29, 30 Cox V. Bruce (18 Q. B. D. 147 ; 6 Asp. Mar. C. 152) . 53, 63, 64, 143, 209 V. Malcolm ( (1912) 2 K. B. 107 11. ; 17 Com. Cas. 205). 166 V. May (4 M. & S. 152) 281 Coxe t'. Harden (4 East, 211) 170 Craig V. Delargy (6 Sc. Sess. Cas. 4tli Ser. 1269) . 144, 227, 241 Crathie, The ( (1897) P. 178 ; 66 L. J. Adm. 93 ; 76 L. T. 534; 45 W. R. 631) 422 Craven v. Ryder (6 Taunt. 433 ; Holt, N. P. 100) . 142, 143, 170 Crawford v. AUan Line ( (1912) A. C. 130 ; (1912) Sess. Cas. H. L. 56; 81 L. J. P. C. 113; 17 Com. Cas. 135; 12 Asp. M. L. C. 101 ; 105 L. T. 964 ; 28 T. L. R. 168) . 70, 145, 146 V. Tobin (9 M. & W. 716 ; 12 L. J. Ex. 490). . 354 V. Wilson (1 Com. Cas. 277 ; 12 T. L. R. 170) . 210 Crawshay y. Eades (1 B. & C. 181 ; 2 D. & R. 288) . . 177 Cressington, The ( (1891) P. 152 ; 60 L. J. Ad. 25 ; 64 L. T. 329 ; 7 T. L. R. 208 ; 7 Asp. M. C. 27) . . 135, 221, 233 Crew, Widgery&Co. V. G. W. S.S. Co. ( (1887)W. N. 161) . 216, 217 Croockewit v. Fletcher (1 H. & N. 893 ; 26 L. J. Ex. 153) . 28, 79, 81 Crooks V. AUan (5 Q. B. D. 38 ; 49 L. J. Q. B. 201 ; 41 L. T. 800 ; 28 W. R. 304 ; 4 Asp. Mar. C. 216) . . 9, 209, 239, 241, 277, 360 Cross V. Pagliauo (L. R. 6 Ex. 9 ; 40 L. J. Ex. 18 ; 23 L. T. 420 ; 19 W. R. 159 ; 3 Asp. Mar. C, 0. S. 492) . . 127 Crossfield v. Kyle S.S. Co. ( (1916) 2 K. B. 885 ; 85 L. J. K. B. 1310 ; 115 L. T. 285 ; 22 Com. Cas. 67) . 61, 62, 330 Crow V. Falk (8 Q. B. 467 ; 15 L. J. Q. B. 183 ; 10 Jur. 374) . 102, 103 Crown S.S. Co. v. Leitch ( (1908) Sc. Sess. Cas. 506) . . 307 Cullen t;. Butler (5 M. & S. 461) 221,224 Cuming v. Brown (9 East, 506 ; 1 Camp. 104) . . 179, 191 Cunard v. Hyde (2 cases) (27 L. J. Q. B. 408 ; 29 L. J. Q. B. 6 ; 5 Jur., X. S. 40) 10 Cunard Co. v. Marten ( (1902) 2 K. B. 624 ; 71 L. J. K. B. 968 ; 9 Com. Cas. 9 ; 89 L. T. 152) 27 Cunningham v. Collier (4 Dougl. 233) 37 V. Colvils (16 Sc. Sess. Cas. 4th Ser. 295) . 82, 85, 240 V. Dunn (3 C. P. D. 443 ; 48 L. J. C. P. 62 ; 38 L. T. 631 ; 3 Asp. Mar. C. 595) .... 307, 312 Curfew, The ( (1891) P. 131 ; 60 L. J. P. 53 ; 64 L. T. 330 ; 39 W. R. 367 ; 7 Asp. M. C. 29) . . 15, 16, 106, 109, 110 Curling V. Long (1 B. & P. 634) 334 Cuthbert v. Gumming (11 Ex. 405 ; 24 L. J. Ex. 310 ; 1 Jur., N. S. 686). ... . . 21, 129, 130, 131, 134 xxviii TABLE OF CASES. PAGE Czech V. General Steam Navigation Co. (L. R. 3 C. P. 14 ; 37L. J. C. P. 3; 17L. T. 246; 16W. R. 130; 3 Asp. Mar. C, 0. S. 5) 227, 240, 241 D. Da Costa v. Newnham (2 T. R. 407) 276 Dahl V. Nelson (6 App. C. 38 ; 50 L. J. Ch. 411 ; 44 L. T. 381 ; 29 W. R. 543 ; 4 Asp. Mar. C. 392) . . 105, 106 Dakin v. Oxley (15 C. B., N. S. 646 ; 33 L. J. C. P. 115 ; 10 L. T. 268 ; 12 W. R. 557 ; 2 Asp. Mar. C, 0. S. 6). 318, 319, 329, 330, 331, 332, 337 Dale V. Hall (1 Wils. 282) 202, 215, 223 V. Humirey (E. B. & E. 1004 ; 27 L. J. Q. B. 390 ; 5 Jur., N. S. 191) 37 Dalgleish v. Davidson (5 D. & R. 6) 279 Dall' Orso V. Mason (3 Sc. Sess. Cas. 4tli Ser. 419) . . 117 Dampskibsselskabet Danmark v. Poulsen ( (1913) Sess. Cas. 1043) 124, 203, 210, 225, 307 Dampskibsselskabet S. v. Calder (17 Com. Cas. 97) . 128, 142, 208 Dampskibsselskabet Svendborg v. Love ( (1915) Sess. Cas. 543) 225, 308, 314 Daniels v. Harris (L. R. 10 C. P. 1 : 44 L. J. C. P. 1 ; 31 L. T. 408 ; 23 W. R. 86 ; 2 Asp. Mar. C. 413) . . 83 Danube and Black Sea Ry. Co. v. Xenos (13 C. B., N. S. 825 ; 31 L. J. C. P. 284 ; 5 L. T. 527 ; 10 W. R. 320 ; 1 Asp. Mar. C, 0. S. 172) 128, 129 Danzig, The (B. & L. 102 ; 32 L. J. Ad. 164 ; 9 L. T. 236 ; 1 Asp. Mar. C, 0. S. 392) 194 Darling v. Raeburn ( (1907) 1 K. B. 846; 76 L. J. K. B. 570 ; 96 L. T. 437 ; 12 Com. Cas. 262 ; 23 T. L. R. 354 ; 10 Asp. M. C. 499) 83, 121, 133 Davidson v. Bisset (5 Sc. Sess. Cas. 4th Ser. 709). . 45, 47, 48 V. Burnand (L. R. 4 C. P. 117 ; 38 L. J. C. P. 73 ; 19 L. T. 782 ; 17 W. R. 121 ; 3 Asp. Mar. C, 0. S. 207) . 205, 221 V. Cwynne (12 East, 381) .... 80,330 Davies v. McVeagh (4 Ex. D. 265 ; 48 L. J. Ex. 686 ; 28 W. R. 143) 113, 117 Davies-Evans v. Ladoga, Ltd. {see The Kingsland). Davis V. Garrett (6 Bing. 716 ; 4 M. & P. 540) . 250, 251, 253 v. Reynolds (4 Camp. 267 ; 1 Stark. 115) . . . 174 De Bussche v. Alt (8 Ch. D. 286 ; 47 L. J. Ch. 381 ; 38 L. T. 370 ; 3 Asp. Mar. C. 584) 41 De Clermont v. Gen. Steam Nav. Co. (7 T. L. R. 187) . 8, 9, 141 233 235 239 De Cuadra v. Swann (16 C. B., X. S. 772) . . ' . ' 257* 260 De LassaUe v. Guildford ( (1901) 2 K. B. 215 ; 70 L. J. K. B. 533 • 84 L. T. 549) . . . . 19 20 72 De Ma'ttos v. Gibson (4 De G. & j! 276 • 28 L. J. Ch. 498) ' ." '43 De Rothschild v. Royal Mail Co. (7 Ex. 734 ; 21 L. J. Ex. 273) 208, 220, 226 De Silvale v. Kendall (4 M. & S. 37) 322 Dean v. Hogg (10 Bing. 345 ; 4 M. & Scott, 188) . . 6 V. M'Ghie (4 Bing. 45 ; 2 C. & P. 387) . . .350 TABLE OF CASES. xxix PAGE Deerhound, The {see Ogmore i'. Bonier). Deflfell V. Brocklebank (3 Bligli, 561 ; 4 Price, 36) . 79, 80 Delaurier v. Wvllie (17 Sc. Sess. C. 4tli Ser. 167 ; 27 Sc. L. R. 148) 45, 46, 49, 53, 54, 55, 56, 59, 163, 165, 191 Den of Airlie Co. v. Mitsui (17 Com. Cas. 117 ; 106 L. T. 451 ; 12 Asp. M. L. C. 169) 44. 57 Dene S.S. Co. v. Biicknall (5 Com. Cas. 372) . . .342 Dennis v. Cork S.S. Co. ( (1913) 2 K. B. 393 ; 82 L. J. K. B. 660 ; 18 Com. Cas. 177 ; 12 Asp. M. C. 337 ; 108 L. T. 726 ; 29 T. L. R. 489) 295, 417 Dent V. Smith (L. R. 4 Q. B. 414 ; 38 L. J. Q. B. 144 ; 20 L. T. 868 ; 17 W. R. 646 ; 3 Asp. Mar. C, 0. S. 251) . 79 Depperman v. Hubbersty (17 Q. B. 767) . . . . 170 Derry v. Peek (14 App. C. 337 ; 58 L. J. Ch. 864 ; 61 L. T. 265 ; 38 W. R. 33) 72 Deslandes v. Gregory (2 E. & E. 602 ; 30 L. J. Q. B. 36 ; 8 W. R. 585) 32,35 Devaux v. J' Anson (5 Bing. N. C. 519) . . . 221, 224 Dever, Ex parte. In re Suse (13 Q. B. D. 766 ; 51 L. T. 437 ; 33 W. R. 290 ; 18 Q. B. D. 660) .... 16, 360 Diamond, The ( (1906) P. 282 ; 75 L. J. P. 90 ; 95 L. T. 550 ; 10 Asp. M. C. 286) .... 84, 228, 420, 421 Dick V. Badart ( (1883) 10 Q. B. D. 387 ; 48 L. T. 391 ; 5 Asp. M. C. 49) 393 ■ V. Lumsden (1 Peake, N. P. C. 189) . . . .191 Dickenson v. Lano (2 F. & F. 188) . . . . 353 Dickinson v. Martini (1 Sc. Sess. Cas. 4th Ser. 1185) . 110, 111, 298 Dictator, The ( (1892) P. 304 ; 61 L. J. Ad. 73 ; 67 L. T. 563) 5 Diederichsen v. Farquaharson ( (1898) 1 Q. B. 151 ; 67 L. J. Q. B. 103 ; 77 L. T. 543 ; 3 Com. Cas. 87 ; 8 Asp. M. C. 333 ; 14 T. L. R. 59) 49, 56 DiUon v. Livingston (11 T. L. R. 313) . . . . 42,339 Dimech v. Corlett (12 Moore, P. C. 199) . . 3, 14, 80, 81 Distington Co. 17. Possehl ( (1916) 1 K. B. 811 ; 85 L.J. K. B. 919 ; 32 T. L. R. 349) 13 Dixon V. Baldwen (5 East, 175) 182, 185 V. Heriot (2 F. & F. 760) 15, 28, 81 V. Sadler (5 M. & W. 405) 89 V. Yates (5 B. & Ad. 313; 2N. &M. 177) . 176,184 Dobbin v. Thornton (6 Esp. 16) 315 Dobell V. Green ( (1900) 1 Q. B. 526 ; 69 L. J. Q. B. 454 ; 82 L. T. 314 ; 5 Com. Cas. 161 ; 9 Asp. M. C. 53) . 3,116 V. Rossmore S.S. Co. ( (1895) 2 Q. B. 408 ; 44 W. R. 37 ; 8 Asp. M. C. 33; 11 T. L. R. 501) . . . 90,430 V. Watts (7 T. L. R. 622) 304 Dobson V. Droop (M. & M. 441 ; 4C. & P. 112) . . . 56 V. Wilson (3 Camp. 480) .... 269, 271, 278 Doeg V. Trist (2 Com. Cas. 153 ; 13 T. L. R. 320) . . 38 Domett V. Beckford (5B. & Ad. 521) 352 Donaldson v. Little (10 Sc. Sess. Cas. 4th Ser. 413) . 91, 213 Don Francisco, The (Lush. 468 ; 31 L. J. Ad. 14 ; 1 Asp. Mar. C, 0. S. 169) 195 XXX TABLE OF CASES. PAGE Doolan i;. M. E. Co. (2 App. Cas. 792 ; 37 L. T. 317 ; 25 W. R. 889 ; 3 Asp. M. C. 685) 238 Dora Forster, The ( (1900) P. 241 ; 69 L. J. P. 85 ; 49 W. R. 271). . 264 Dougal V. Kemble (3 Bing. 383 ; 11 Moo. 250) . . 353, 354 Douglas V. Russell (4 Sim. 524 , 1 Mylne & K. 488) . . 350 Dowlais, The (18T. L. R. 683; 51 W. R. 88) . . .339 Dracachi v. Anglo-Egyptian ^'av. Co. (L. R. 3 C. P. 190 ; 37 L. J. C. P. 71 ; 17 L. T. 472 ; 16 W. R. 277 ; 3 Asp. Mar. C, 0. S. 27) 192 Draupner, The ( (1910) App. Cas. 450 ; 78 L. J. P. 90 ; 103 L. T. 87 ; 11 Asp. M. L. C. 436 ; 26 T. L. R. 571) . 53, 55, 56, 64 Drew V. Bird (M. & M. 156) .352 Driefontein Co. v. Janson (see Janson v. Driefontein). Duckett V. Satterfield (L. R. 3 C. P. 227 ; 37 L. J. C. P. 144) 134 Diiero, The (L. R. 2 A. & E. 393 ; 38 L. J. Ad. 69 ; 22 L. T. 37 ; 3 Asp. Mar. C, 0. S. 323) .... 203, 232 Dufourcet v. Bishop (18 Q. B. D. 373 ; 57 L. J. Q. B. 497 ; 56 L. T. 633 ; 6 Asp. Mar. C. 109) .... 322, 324 Dunbeth, The ( (1897) P. 133 ; 66 L. J. Ad. 66 ; 76 L. T. 658 ; 8 Asp. Mar. C. 284) 251, 252, 253 Duncan v. Dundee S. Co. (5 Sc. Sess. Cas. 4th Ser. 742) . 280 Duncan Fox v. Schrempft ( (1915) 3 K. B. 355 ; 84 L. J. K. B. 2206; 20 Com. Cas. 337; 113 L. T. 600; 31 T. L. R. 491) 96 Dunford v. Compania Union (16 Com. Cas. 181 ; 104 L. T. 811 ; 55 S. J. 424) 343 Dunlop V. Balfour ( (1892) 1 Q. B. 507 ; 61 L. J. Q. B. 354 ; 66L.T.455; 40W. R.371 ; 8T.L. R.378) . 147,148,150, 151, 152, 153, 154, 155, 158, 159, 297, 309 V. Murietta (not reported) ..... 345 Dunn V. Bucknall {see Dunn r. Currie). ■ V. Currie ( (1902) 2 K. B. 614 ; 71 L. J. K. B. 963 ; 87 L. T. 497 ; 8 Com. Cas. 33 ; 18 T. L. R. 807 ; 9 Asp. M. C. 336) 203, 217, 372, 373 Dupont V. British S. Afr. Co. (18 T. L. R. 24) . . .166 Duranty v. Hart (see The Hamburg). Duthie V. Hilton (L. R. 4 C. P. 138 ; 38 L. J. C. P. 93 ; 19 L. T. 285; 17W. R. 55; 3 Asp. Mar. C, 0. S. 166) . . 326, 330 339 Dutton V. Powles (2 B. & S. 174 ; 31 L. J. Q. B. 191 ; 6 ' L. T. 224 ; 10 W. R. 408 ; 8 Jur., N. S. 970 ; 1 Asp. Mar. C, O. S. 209) 86 Dymond v. Scott (5 Sc. Sess. Cas. 4th Ser. 196) . . . 263 E. E. Clemens Horst Co. v. Biddell ( (1912) A. C. 18 ; 81 L. J. K. B. 42 ; 17 Com. Cas. 55 ; 105 L. T. 563 ; 12 Asp. M. L. C. 80 ; 56 S. J. 50 ; 28 T. L. R. 42) . . . 167 • V. Norfolk, &c.. Co. (11 Com. Cas. 141 ; 22 T. L. R. 403) .... 70, 210, 284, 336, 360 Earle v. Rowcroft (8 East, 166) 230. 231 TABLE OF CASES. xxxi PAGE East Asiatic Co. r.Tronto Co. (31 T.L. R. 543) . . 106,335 East India Co. v. Todd (1 Bro. P. C. 405) . . . .210 East Yorkshire S.S. Co. v. Hancock (5 Com. Cas. 266) . 56 Eastman v. Harry (33 L. T. 800 ; 3 Asp. Mar. C. 117) . 137 Eden, The ( (1892) P. 67 ; 68 L. J. Ad. 68 ; 66 L. T. 387 ; 40 W. R. 415) 380 Edmond, The (Lush. 57, 211 ; 30 L. J. Ad. 128) . 43, 265, 344 Edwards v. Brewer (2 M. & W. 375) .... 174, 187 V. Southgate (10 W. R. 528) . . . 291, 359, 360 Eider, The ( (1893) P. 119; 9 T. L. R. 312) . . . 377 Elder Dempster v. Dunn (15 Com. Cas. 49 ; 101 L. T. 578) 50, 65 Eldershe Co. v. Borthwick ( (1905) App. Cas. 93 ; 74 L. J. K. B. 772 ; 93 L. T. 387 ; 10 Com. Cas. 109 ; 21 T. L. R. 277; 10 Asp. M. C. 121) 15,82 Ellershaw v. Magniac (6 Ex. 570) .... 170, 172 EUiott V. Lord (52 L. J. P. C. 23 ; 48 L. T. 542 ; 5 Asp. Mar. C. 63) 124, 126 Elhs t). Turner (8 T. R. 531) 250 Elpis, The (L. R. 4 A. & E. 1 ; 42 L. J. Ad. 43 ; 27 L. T. 664 ; 21 W. R. 576) 379, 407 Elswick S.S. Co. v. Montaldi ( (1907) 1 K. B. 626 ; 76 L. J. K. B. 672 ; 96 L. T. 845 ; 12 Com. Cas. 240 ; 23 T. L. R. 322 ; 10 Asp. M. C. 456) 306 Embiricos v. Reid ( (1914) 3 K. B. 45 ; 83 L. J. K. B. 1348 ; 19 Com. Cas. 263; lllL. T. 291; 30T. L. R. 451) . 91,92,93, 94 Emilien Marie, The (44 L. J. Ad. 9 ; 32 L. T. 435 ; 2 Asp. Mar. C. 514) 51, 179, 194, 398 Emmy, The {Shipping Gazette, Aug. 9, 1905) ... 56 Energie, The (L. R. 6 P. C. 306 ; 44 L. J. Ad. 25 ; 32 L. T. 579 ; 23 W. R. 932 ; 2 Asp. Mar. C. 555). . . 291, 359 England, The (12 P. D. 32; 56 L. J. Ad. 115; 56 L. T. 896; 35 W. R. 367 ; 6 Asp. Mar. C. 140) . . . . 38, 42 Engman v. Palgxave (4 Com. Cas. 75 ; 15 T. L. R. 113) . 73, 80, 91 Erasmo TregUa v. Smith ; vide TregUa. Erichsen v. Barkworth (3 H. & N. 601 ; 28 L. J. Ex. 95). 286, 290 Esposito V. Bowden (7 E. & B. 763 ; 27 L. J. Q. B. 17) . 10, 11, 12, 128 Ettrick, The (6 P. D. 127 ; 50 L. J. Ad. 65 ; 45 L. T. 399) . 281 Europa, The ( (1908) P. 84 ; 77 L. J. P. 26 ; 98 L. T. 246 ; 24T. L. R. 151 ; 11 Asp. M. C. 19) . . . 85,213,251 Euterpe S.S. Co. v. Bath (2 Com. Cas. 196) . . . .294 Evans v. BuUock (38 L. T. 34 ; 3 Asp. Mar. C. 552) . . 305 v. Cunard (18T. L. R. 374) 253 V. Forster (1 B. & Ad. 118) 316 V. Nichol (3 M. & G. 614 ; 4 Scott, N. R. 43) . 142, 144 Ewbank v. Nutting (7 C. B. 797) 247 Exchange, The (1 Edw. 39) 14 Express, The (L. R. 3 A. & E. 597 ; 41 L. J. Ad. 79 ; 26 L. T. 956 ; 1 Asp. Mar. C. 355). . . 17, 255, 256, 260 F. Fairhridgei;. Pace (1 C. & K. 317) .... 122,123 Fairhe v. Fenton (L. R. 5 Ex. 169 ; 30 L. J. Ex. 107 ; 22 L. T. 373 ; 18 W. R. 700) 34 xxxii TABLE OF GA8E8. PAGE Faith V. East India Co. (4 B. & Aid. 630) . . . .360 Faithful, The (31 L. J. Ad. 81) 263,265 Falk, Ex parte (14 Ch. D. 446 ; 42 L. T. 780 ; 28 W. R. 785 ; 4 Asp. Mar. C. 280) 178,184,188 Falke v. Fletcher (18 C. B., N. S. 403 ; 34 L. J. C. P. 146 ; 13 W. R. 346 ; 11 Jur., N. S. 176) .... 142, 171 Falkner v. Earle (3 B. & S. 360 ; 32 L. J. Q. B. 124 ; 7 L. T. 672 ; 11 W. R. 307 ; 1 Asp. Mar. C, 0. S. 279) . 20, 23 Fanchon, The (5 P. D. 173 ; 50 L. J. Ad. 4 ; 42 L. T. 483 ; 29 W. R. 339 ; 4 Asp. Mar. C. 272) 43 Fanny, The (48 L. T. 771 ; 5 Asp. Mar. C, N. S. 75) . . 41 Farina V. Home (16 M. &W. 119; 16 L. J. Ex. 73) .. .180 Farrant v. Barnes (11 C. B., N. S. 553 ; 31 L. J. C. P. 137 ; 8 Jur., N. S. 868) 98 Fearon t'. Bowers (1 H. Bl. 364) 286 Featherston v. Wilkinson (L. R. 8 Ex. 122 ; 42 L. J. Ex. 78 ; 28 L. T. 448 ; 21 W. R. 442 ; 2 Asp. Mar. C. 31) . 101, 365, 367 Feise v. Wray (3 East, 93) 174, 175 Feliciana, The (59 S. J. 546) 176 FeUx, The (L. R. 2 A. & E. 273 ; 37 L. J. Ad. 48 ; 18 L. T. 587 ; 17 W. R. 102 ; 3 Asp. Mar. C, 0. S. 100) . 114, 116, 118, 193, 195 Fenton v. Dublin S.S. Co. (8 A. & E. 835) . . . .281 Fenwick v. Boyd (15 M. & W. 632) .... 326, 339 -^ V. Schmalz (L. R. 3 C. P. 313 ; 37 L. J. C. P. 78 ; 18 L. T. 27 ; 16 W. R. 481 ; 3 Asp. Mar. C, 0. S. 64) . 124. 126, 209 Ferro, The ( (1893) P. 38 ; 62 L. J. Ad. 48 ; 68 L. T. 418 ; 7 Asp. M. C. 409) 139, 232, 236 Field S.S. Co. v. Burr ( (1899) 1 Q. B. 579 ; 68 L. J. Q. B. 426 ; 80 L. T. 445 ; 4 Com. Cas. 106 ; 8 Asp. M. C. 529) . 219 FigUa Maggiore, The (L. R. 2 A. & E. 106 ; 37 L. J. Ad. 52 ; 18 L. T. 532 ; 3 Asp. Mar. C, 0. S. 97) . 51,137,141,193, 195 196 197 222 223 Finlay v. Liverpool and G. W. S.S. Co. (23 L.'t. 161, 251 ; ' 3 Asp. Mar. C, 0. S. 487). . . . 191,216,217,286 Firbank v. Humphreys (18 Q. B. D. 54 ; 56 L. J. Q. B. 57 ; 56 L. T. 36 ; 35 W. R. 92) 34 Fisher v. Calder (1 Com. Cas. 456) 62 Fleet V. Murton (L. R. 7 Q. B. 126 ; 41 L. J. Q. B. 49 ; 26 L. T. 181 ; 20 W. R. 97) 32, 37 Fletcher v. Alexander (L. R. 3 C. P. 375 ; 37 L. J. C. P. 193 ; 18 ,L. T. 432 ; 16 W. R. 803 ; 3 Asp. Mar. C, 0. S. 69) 269, 279 V. Gillespie (3 Bing. 635; 11 Moore, 547) . . 128 -y. Inglis(2B. &Ad. 315) 222 Flora, The (L. R. 1 A. & E. 45 ; 35 L. J. Ad. 15 ; 14 L. T. 192 ; 2 Asp. Mar. C, 0. S. 325) 281 Flower v. Rose (7 T. L. R. 280) 378 Ford V. Cotesworth (L. R. 4 Q. B. 127 ; 38 L. J. Q. B. 52 ; 19 L. T. 634 ; 17 W. R. 282 ; 3 Asp. Mar. C, O. S. 190) . 123, 124 307 V. (L. R. 5 Q. B. 544 ; 39 L. J. Q. B. 188 ; ' 23 L. T. 165 ; 18 W. R. 1169 ; 3 Asp. Mar. C, 0. S. 468) . 119, 126, 307, 312, 313 TABLE OF GASES. XXXlll 74 L. 83 Forder v. G. W. R. ( (1905) 2 K. B. 532 871 ; 93 L. T. 334 ; 21 T. L. R. 625) Forest Oak v. Richard (5 Com. Cas. 100) Forest S.S. Co. v. Iberian Ore Co. (5 Com. Cas 563; 9 Asp. M. C. 1) ForfarsMre, The ( (1908) P. 339 ; 78 L. J. P. 44 587 ; 11 Asp. M. C. 158) Forward i;. Pittard (1 T. R. 27) . . . . Foster v. Colby (3 H. & N. 705 ; 28 L. J. Ex. 81) Foulkes V. Met. D. Ry. (5 C. P. D. 157 42 L. T. 345 ; 28 W. R. 526) . Fowler v. Knoop (4 Q. B. D. 299 ; 48 L L. T. 180 ; 27 W. R. 299 ; 4 Asp. Mar, V. M'Taggart (cited at 1 East, 522) . Fowles V. G. W. Ry. (7 Ex. 699 ; 22 L. J. Ex. 76) Fox, The (83 L. J. P. 89 ; 30 T. L. R. 576) . Fox V. Nott (6 H. & N. 630 ; 30 L. J. Ex. 259) . PAGE J. K. B. . 230 80, 102, 307 81 L. T. . 302 99 L. T. . 208 202, 215, 421 . 356, 357, 358 49 L. J. C. P. 361 ; . 71 J. Q. B. 333 ; 40 C. 68) . 192, 196, 285, 306, 310, 316, 317 . 182 193, 69 115 352 Fragano v. Long (4 B. & C. 219 ; 6 D. & R. 283). . .241 France Fenwick v. Spackman (18 Com. Cas. 52 ; 108 L. T. 371; 12 Asp. M. C. 289) 211,212 Francesco v. Massey (L. R. 8 Ex. 101 ; 42 L. J. Ex. 75 ; 21 W. R. 440 ; 2 Asp. Mar. C. 594 n.) . . 147, 148, 150, 151, 152 154 155 157 159 Eraser v. Telegraph Co. (L. R. 7 Q. B. 566 ; 41 L.'j. q'. B 249 ; 27 L. T. 373 ; 20 W. R. 724) .... Fratelli Sorrentino v. Buerger ( (1915) 3 K. B. 367 ; 84 L. J K. B. 1937) Frayes v. Worms (19 C. B., N. S. 159 ; 34 L. J. C. P. 274 12 L. T. 547 ; 13 W. R. 898 ; 2 Asp. M. C, 0. S. 209) Frazer v. Cuthbertson (6 Q. B. D. 93 ; 50 L. J. Q. B. 277) V. Marsh (13 East, 238 ; 2 Camp. 517) . Freedom, The (L. R. 3 P. C. 594 ; 38 L. J 452 ; 1 Asp. Mar. G. 28) Freeman v. Taylor (8 Bing. 124 ; 1 Moore & S. 182) 74 322 38 7 Ad. 25 ; 24 L. T. 193, 195, 222, 223 81, 82, 91, 93 36 147, 152 38 . 76 French v. Gerber (2 C. P. D. 247 ; 46 L. J. C. P. 320 L. T. 350 ; 25 W. R. 355 ; 3 Asp. Mar. C. 403) V. Newgass (3 C. P. D. 163 ; 47 L. J. C. P. 361 L. T. 164 ; 26 W. R. 430 ; 3 Asp. Mar. C. 574) Friedlander v. Shaw, Savill & Albion Co. (2 Com. Cas. 124 ; 13 T. L. R. 252) 395 Frith V. Forbes (4 De G. J. & F. 409 ; 32 L. J. Ch. 10 ; 8 Jur., N. S. 1115 ; 1 Asp. Mar. C, 0. S. 253) . . .360 Frost V. Knight (L. R. 7 Ex. Ill ; 41 L. J. Ex. 78 ; 26 L. T. 77 ; 20 W. R. 471) 129,284,369 Fry V. Mercantile Bank (L. R. 1 C. P. 689 ; 35 L. J. C. P. 306 ; 14 L. T. 709 ; 14 W. R. 920 ; 2 Asp. Mar. C, 0. S. 346) 46, 54, 56, 57, 356, 357, 358 Fuentes v. Montis (L. R. 3 C. P. 268) 162 Fullagsen t;. Waif ord (1 C. & E. 198) 21 Furness v. Forwood (2 Com. Cas. 223 ; 8 Asp. Mar. C. 298 ; 13 T. L. R. 500) 125, 208 V. Tennant (8 T. L. R. 336 ; 66 L. T. 635) . . 131 XXXIV TABLE OF CASES. PAGE Furness V.White ( (1895) App. Cas. 40) . . . .294 Fusilier, The (3 Moore, P. C, N. S. 51 ; 30 L. J. Ad. 25 ; 12 L.T. 186; 13 W. 11.592; 2Asp. Mar. C.,O.S. 177). . 280 G. Gabarron v. Kreeft (L. R. 10 Ex. 274 ; 44 L. J. Ex. 238 ; 33 L. T. 365 ; 24 W. R. 146 ; 3 Asp. Mar. C. 36) . Gabay v. Lloyd (3 B. & C. 793 ; 5 D. & R. 641) . Gadd V. Houghton (1 Ex. D. 357 ; 46 L. J. Ex. 71 222 ; 24 W. R. 975) Gaetano e Maria, The (7 P. D. 137 ; 51 L. J. Ad. 6^: 835 ; 30 W. R. 766 ; 4 Asp. Mar. C. 535) . Galam, Cargo ex (2 Moore, P. C, N. S. 216 ; B. ~ " 9 L. T. 550 ; 12 W. R. 495 168, 171, 172 . 221 35 L.T. 33, 34 46 L.T. . 16, 17, 19 . &L. 167 ; 33 L. J. Ad. 97 ; 9 L. T. 550 ; 12 W. R. 495 ; 1 Asp. Mar. C, O. S. 408) 260, 318, 326, 327 Galileo, The ( (1915) A. C. 199 ; 83 L. J. P. 102 ; 19 Com. Cas. 459; 111 L. T. 656; 30T. L. R. 612) . . .208 Gardiner v. Macfarlane (16 Sc. Sess. Cas. 4th Ser. 658) . 150, 151, 152, 154, 155; 158, 159, 297 Gardner v. Cazenove (1 H. &N. 423 ; 26 L. J. Ex. 17) . 349, 350 V. Trechmann (15 Q. B. D. 154 ; 54 L. J. Q. B. 515 ; 53 L. T. 518 ; 5 Asp. Mar. C. 558) . . 56, 58, 324, 356, 357, 358, 361 Garriock v. Walker (1 Sc. Sess. Cas. 4th Ser. 100) . . 257 Garston S.S. Co. v. Hickie (No. 1) (15 Q. B. D. 580 ; 53 L. T. 795 ; 34 W. R. 177 ; 5 Asp. Mar. C. 499) . . 14, 243, 244 V. (No. 2) (18 Q. B. D. 17 ; 56 L. J. Q. B. 38 ; 55 L. T. 879 ; 35 W. R. 33 ; 6 Asp. Mar. C. 71). 219, 223, 330 26 251 Geipel v. Smith (L. R. 7 Q. B. 404 ; 41 L. J. Q. B. 153 L. T. 361 ; 20 W. R. 332 ; 1 Asp. Mar. C. 268) . 92, 94, 106 General Steam Nav. Co. v. Slipper (11 C. B., N. S. 493 ; 31 L. J. C. P. 185 ; 5 L. T. 641 ; 10 W. R. 316 ; 1 Asp. Mar. C, 0. S. 180) .... Geraldes v. Donison (Holt, N. P. 346) Gertrude, The (12 P. D. 204 ; 13 P. D 6 Asp. M. C. 315) . Gether v. Capper (18 C. B. 866 ; 25 L. N. S. 789) Gibbens v. Buisson (1 Bing. N. C. 283 ; 1 Scott, 133) Gibbes, Ex parte (1 Ch. D. 101 ; 45 L. J. Ch. 10 ; 33 479 ; 24 W. R. 298) . Gibbon v. Mendez (2 B. & Aid. 17) Gibbs V. Charleton (26 L. J. Ex. 321) V. Grey (2 H. & N. 22 ; 26 L. J. Ex. 286 ; 3 Jur. 216 J. C. P. 260 ; 2 543) V. Potter (10 M. & W. 70) Gibson v. Carruthers (8 M. & W. 321 ; 11 L. J. Ex. 138) V. SmaU (4 H. L. C. 353 ; 17 Jur. 1131) . V. Sturge (10 Ex. 622 ; 24 L. J. Ex. 121 ; 1 N. S. 259) Gidley v. Palmerston (7 Moore, 91 ; 3 B. & B. 275) Giertsen v. TurnbuU ( (1908) Sess. Cas. 1101 ; 45 Sc Jur. L.T. 109 338 364 339 339 185 340 64 261 . 421 . 173 86 Jur., 336, 337 37 L. R. N. S. 76, 916; 16 Sc. L.T. 250) 86,341 TABLE OF CASES. xxxv PAGE Gilbert v. Guignon (L. R. 8 Ch. 16 ; 27 L. T. 733 ; 21 W. R. 281 ; 1 Asp. Mar. C. 498) 170, 191 Gilkison v. Middleton (2 C. B., N. S. 134 ; 26 L. J. C. P. 209). 49, 53, 54, 61, 346, 348, 356, 358 Gilroy v. Price ( (1893) A. C. 56 ; 68 L. T. 302) . 82, 85, 87, 233 Glaholm v. Hays (2 M. & G. 257 ; 10 L. J. C. P. 98 ; 2 Scott, N. R. 471) 79,80,81 Glamorganshire, The (13 App.C. 454; 59 L. T. 572 ; 6 Asp. Mar. C. 344) 190 Glasgow Navigation Co. v. Howard (15 Com. Cas. 88 ; 102 L. T. 172; 11 Asp. M. C. 376; 26T. L. R. 247). . 20,21, 24, 128, 397 V. Iron Ore Co. ( (1909) Sess. Cas. 1414; 46Sc. L. R. 908; (1910)A. C. 293). . . 208,385 Gledstanes -?;. Allen (12 C. B. 202) . . . 45,46,357 Glendarroch, The ( (1894) P. 226 ; 22 L. J. Ad. 89 ; 70 L. T. 344 ; 7 Asp. M. C. 420 ; 10 T. L. R. 269) . 203, 214, 219, 221, 222, 227, 240, 241 Glen Devon, The ( (1893) P. 269 ; 62 L. J. Ad. 123 ; 70 L. T. 416 ; 7 Asp. Mar. C. 439) 302 Glenfruin, The (10 P. D. 103 ; 54 L. J. Ad. 49 ; 52 L. T. 769 ; 5 Asp. Mar. C. 413) . . . 82, 84, 85, 90, 102, 207, 209, 212, 222, 232 Glenmanna, The (Lush. 115) 265 Glenochil, The ( (1896) P. 10 ; 65 L. J. Ad. 1 ; 73 L. T. 416 ; 8 Asp. M. C. 218) 235, 236, 430 Glover v. Black (3 Burr. 1394 ; 1 W. Bl. 396) . . .263 Glynv. E.&W. India Dock (7 App. C. 591 ; 6 Q. B. D. 475 ; 52 L. J. Q. B. 146 ; 47 L. T. 309 ; 31 W. R. 201 ; 4 Asp. Mar. C. 580) 164, 165, 286, 287 Glynn v. Margetson ( (1893) A. C. 351 ; 62 L. J. Q. B. 466 ; 69 L. T. 1 ; 7 Asp. M. C. 366) . . 14, 27, 252, 253, 254 Godard v. Gray ( (1870) L. R. 6 Q. B. 139 ; 40 L. J. Q. B. 62 ; 24 L. T. 89) 364 Gofe V. Clinkard (1 Wils. 281) 202 Golding, Davis & Co., Ex parte (13 Ch. D. 628 ; 42 L. T. 270; 28 W. R. 481) 177,178 Goldschmidt v. Whitmore (3 Taunt. 507) . . . .230 Good V. Isaacs ( (1892) 2 Q. B. 555 ; 61 L. J. Q. B. 649 ; 67 L. T. 450 ; 40 W. R. 629 ; 8 T. L. R. 476) . 113,118,120, 307 311 313 V. London Mutual Ass. (L. R. 6 C. P. 563 ; 20 w'. R. ' 33) ........... 235 Goodbody v. Balfour (5 Com. Cas. 59 ; 82 L. T. 484 ; 9 Asp! M. C. 69) 244 Gordon v. Powis (8 T. L. R. 397) 122 Gordon S.S. Co. v. Moxey (18 Com. Cas. 170 ; 12 Asp. M. C. 339 ; 108 L. T. 808) 225 Gorrisen v. Perrin (2 C. B., N. S. 681 ; 27 L. J. C P. 29 ; 3 Jur., N. S. 867) 75 Gosling t;. Higgins (1 Camp. 451) ..... 305 Gouda, Exparte (20 W. R. 981) 187 Gould V. Oliver (2 M. & G. 208 ; 4 Bing. N. C. 134). 134, 269, 270 Orange v. Taylor (90 L. T. 486 ; 9 Com. Cas. 223 ; 20 T. L. R. 386 ; 9 Asp. M. C. 559). . . 285, 288, 395, 397 C 2 xxxvi TABLE OF CASES. PAGE Granger v. Dent (M. & M. 475) 89, 210 Granite S.S. Co. v. Ireland (19 Sc. Sess. Cas. 124) . 123, 127, 304, 311 Grant t'. Coverdale (see Coverdale v. Grant). V. Norway (10 C. B. 665 ; 20 L. J. C. P. 93 ; 15 Jur. 296) .... 41, 48, 53, 58, 60, 61, 63, 64, 65, 69 Gratitudine, Tlie (3 C. Kob. 240) . . 244, 245, 246, 260, 263 Graves v. Legg (2 H. & N. 210 ; 26 L. J. Ex. 316 ; 3 Jur., N. S. 519) 73 Gray v. Carr (L. R. 6 Q. B. 522 ; 49 L. J. Q. B. 257 ; 25 L. T. 2i5; 19W. R. 1173; 1 Asp. Mar. C. 115). 27,56,147,149, 150, 151, 154, 155, 156, 157, 158, 314, 315, 374, 375 V. Christie (5 T. L. R. 577) 342 Great Indian Rv. Co. v. Tiirnbull (53 L. T. 325 ; 33 W. R. 874 ; 5 Asp. Mar. C. 465) 318, 322, 324 Great Western Ry. Co. v. Bagge (15 Q. B. D. 625 ; 54 L. J. Q. B. 599 ; 53 L. T. 225 ; 34 W. R. 45) . . . . 352 V. Blake (7 H. & N. 987 ; 31 L. J. Ex. 346 ; 8 Jur., N. S. 1013) 69 V. McCarthy (12 App. Cas. 218 ; 56 L. J. P. C. 33 ; 56 L. T. 582 ; 35 W. R. 429 ; 51 J. P. 532). 238 Green v. Georgii (1902, not reported) 294 Greenock S.S. Co. v. Maritime Ins. Co. ( (1903) 2 K. B. 657 ; 72 L. J. K. B. 59 ; 88 L. T. 207 ; 9 Com. Cas. 41 ; 9 Asp. M. C. 364) 83 Greenshields v. Stephens ( (1908) App. Cas. 431 ; .77 L. J. K. B. 985 ; 99 L. T. 597 ; 14 Com. Cas. 41 ; 24 T. L. R. 880 ; 11 Asp. M. C. 167) . . 99, 198, 207, 230, 267, 271, 273, 421, 424 Greeves v. West India, &c., Co. (22 L. T. 615 ; 3 Asp. Mar. C, 0. S. 426) 70 Griffiths V. Perry (1 E. & E. 680 : 28 L. J. Q. B. 204 ; 5 Jur., N. S. 1076) 180 Grill V. General Iron Col. Co. (L. R. 1 C. P. 600 ; L. R. 3 C. P. 476 ; 37 L. J. C. P. 205 ; 3 Asp. Mar. C, 0. S. 77 : 18L. T. 485; 16 W. R. 796) . . . 199,202,204,231 Groom v. Barber ( (1915) 1 K. B. 316 ; 84 L. J. K. B. 318 ; 20 Com. Cas. 71 ; 112 L. T. 301 ; 31 T. L. R. 66) . 166,167 Groves, Maclean & Co. v. Volkart (1 C. & E. 309) . . 121, 122 Guaranty Co. v. Hannay ( (1915) 2 K. B. 536 ; 84 L. J. K. B. 1465 ;' 21 Com. Cas. 67 ; 113 L. T. 98) . . . .385 Guion V. Trask (1 De G. F. & J. 373 ; 29 L. J. Ch. 337 ; 8 W. R. 266 ; 6 Jur., N. S. 185) 38 Gulf Line v. Laycock (7 Com. Cas. 1 ; 18 T. L. R. 14) . 21, 25, 339 Gullischen v. Stewart (13 Q. B. D. 317 ; 52 L. J. Q. B. 648 ; 49 L. T. 198 ; 31 W. R. 745 ; 5 Asp. Mar. C. 200) . 36, 45, 47, 56, 58, 148, 314, 315, 357 Gumm V. Tyrie (6 B. & S. 299 ; 34 L. J. Q. B. 124) . . 350 Gunn V. Bolckow Vaughan (L. R. 10 Ch. 491 ; 44 L. J. Ch. 732 ; 32 L. T. 781 ; 23 W. R. 739) . . 174, 176, 181 Gurney, In re. Ex parte Hughes (67 L. T. 598 ; 9 Morrell, 294 ; 7 Asp. M. C. 249) . . . i . . 185, 187 TABLE OF CASES. xxxvii PAGE Gurney v. Belirend (3 E. & B. 622 ; 23 L. J. Q. B. 265 ; 18 Jur. 856) 162, 191 Guthrie v. North China Co. (7 Com. Cas. 130 ; 18 T. L. R. 412) 334 Haabet, The( (1899)P. 295: 81L.T. 463; 8 Asp. M. C. 605) 264 Hadji Ali Akbar v. Anglo-Arabian Co. (95 L. T. 610 ; 11 Com. Cas. 219 ; 22 T. L. R. 600 ; 10 Asp. M. C. 307) . 253, 261 Hadley v. Basendale (9 Ex. 341 ; 23 L. J. Ex. 179 ; 18 Jur. 358) 363 . 91 10 28, 41 81 14, 108, 111, 243 . 277 271, 275, 276 V. Clark (8 T. R. 259) .... Haines v. Busk (5 Taunt. 521 ; 1 Marsh. 191) Hall V. Brown (2 Dow. 367) .... V. Cazenove (4 East, 477) .... V. Paul (19 Com. Cas. 384 ; 30 T. L. R. 598) Hallett v. Bousfield (18 Vesey, 187) . V. Wigram (9 C. B. 580 ; 19 L. J. C. P. 281) Haly V. Goodson (2 Mer. 77) 42 Hamburg. The (2 Moore, P. C, N. S. 289 ; B. & L. 253 ; 33 L. J. Ad. 116 ; 10 L. T. 206 ; 12 W. R. 628 ; 2 Asp. Mar. C, 0. S. 1) 19, 244, 248, 249, 263 Hamel v. P. & 0. Co. ( (1908) 2 K. B. 298 ; 77 L. J. K. B. 637 ; 98 L. T. 861 ; 13 Com. Cas. 270 ; 24 T. L. R. 535 ; 11 Asp. M. C. 71) 267,268,276 Hamilton V. Grant (1889, not reported) .... 77 V. Mackie (5 T. L. R. 677) 57 V. Pandorf (12 App. C. 518; 52 J. P. 196; 57 L. J. Q. B. 24 ; 57 L. T. 726 ; 36 W. R. 369 ; 6 Asp. Mar. C. 212) 199, 202, 204, 206, 219, 220, 221, 223, 224 Hamlyn v. Talisker Co. ( (1894) App. Cas. 202 ; 71 L. T. 1 ; 6 R. 188 ; 58 J. P. 540) 16 Hammond v. Anderson (2 Camp. 243 ; 1 B. & P., N. R. 69) . 184 V. Bussey (20 Q. B. D. 79 ; 57 L. J. Q. B. 98) . 363 Hansen v. Donaldson (1 Sc. Sess. Cas. 4th Ser. 1066) . . 304 V. Dunn (11 Com. Cas. 100 ; 22 T. L. R. 458) . 245, 247, 248, 257, 258, 260, 261 V. Harrold ( (1894) 1 Q. B. 612 ; 63 L. J. Q. B. 744 ; 70 L. T. 475 ; 7 Asp. Mar. C. 464 ; 10 T. L. R. 327) . 66, 147, 149, 153 Harland v. Burstall (6 Com. Cas. 1 13 ; 9 Asp. M. C. 184). 133, 166 Harman v. Clarke (4 Camp. 159) 284, 285 V. Gandolph (Holt, N. P. 35) 57 V. Mant (4Camp. 161) 284 Harper v. Vigors ( (1909) 2 K. B. 556 ; 78 L. J. K. B. 867 ; 100 L. T. 887 ; 14 Com. Cas. 213 ; 25 T. L. R. 627). . 32 Harries v. Edmonds (1 C. & K. 686) .... 366, 368 Harris v. Best (68 L. T. 76 ; 7 Asp. M. C. 272) . 139, 140, 304 V. Birch (9 M. & W. 591) 190 V. Dreesman (23 L. J. Ex. 210) . . . 124, 126 V. Marcus Jacobs (15 Q. B. D. 247 : 54 L. J. Q. B. 492 ; 5 Asp. Mar. C. 530) . . . . 113,150,155,297 xxxviii TABLE OF CASES. PAGE Harrison v. Garthorne (26 L. T. 508 ; 20 W. E. 722 ; 1 Asp. Mar. C. 303) ......... 102 —^v. Hiiddersfieid (19 T. L. K. 386) . . 50, 53, 347 V. Wright (13 East, 343) 364 Harrowing v. Dupr6 (7 Com. Cas. 157 ; 18 T. L. K. 594) . 116, 118, 308, 312 V. Katz (10 T. L. K.400; (1896) A. C. 73 «.) . 60,240 Hart V. Standard Marine Insurance (22 Q. B. D. 499 ; 58 L. J. Q. B. 284 ; 60 L. T. 649 ; 37 W. K. 366 ; 6 Asp. Mar. C. 368) 15, 16 Hassan v. Euncimau (91 L. T. 808 ; 10 Com. Cas. 19 ; 10 Asp. M. C. 31) 19, 72, 75 Hathesing v. Laing (L. E. 17 Eq. 92 ; 43 L. J. Ch. 233 ; 29 L. T. 734 ; 2 Asp. Mar. C. 170) ... 25, 142, 144 Havelock i). Geddes (10 East, 555) . . . 73,75,86,340 • V. Hancill (3 T. E. 277) 230 Hayn v. CuUiford (4 C. P. D. 182 ; 48 L. J. C. P. 372 ; 40 L. T. 536 ; 27 W. E. 541 ; 4 Asp. Mar. C. 128) . 68, 137, 232, 235 Hayton v. Irwin (5 C. P. D. 130 ; 41 L. T. 666 ; 28 W. E. 665 ; 4 Asp. Mar. C. 212) 24,108,109 Heather Bell, The ( (1901) P. 272 ; 70 L. J. P. 57 ; 84 L. T. 794 ; 17 T. L. E. 541 ; 9 Asp. M. C. 206) . . 43, 44 Heathfield v. Eodenacher (2 Com. Cas. 55 ; 12 T. L. E. 540) 132, 134. 328 Heathorn v. Darling (1 Moore, P. C. 5) . . . . 265 Hecker v. Cunard S.S. Co. (unreported, July, 1898) . 101, 366 Hedley v. Lapage (Holt, N. P. 392) 335 V. Pinkney S.S. Co. ( (1894) A. C. 222 ; 63L. J. Q.B. 419 ; 70 L. T. 630 ; 42 W. E. 497 ; 7 Asp. M. C. 483 ; lOT. L. E. 347) 84 Heilbut Symons v. Buckleton ( (1913) A. C. 30; 82 L. J. K. B. 245 ; 107 L. T. 769) 20, 72 Heinrich, The (L. E. 3 A. & E. 424 ; 24 L. T. 914 ; 1 Asp. Mar. C. 79) 255, 256 • Bjorn, The (10 P. D. 44; 11 App. C. 270; 55 L. J. Ad. 80 ; 55 L. T. 66 ; 33 W. E. 720 ; 6 Asp. Mar. C. 1) 264 Helen, The (L. E. 1 A. & E. 1 ; 35 L. J. Ad. 2 ; 14 W. E. 136 ; 2 Asp. Mar. C, 0. S. 293) .... 13, 14 Helene, The {see OhrlofE v. Briscall) .... 139, 194 Helios Aktieselskab {vide Aktieselskab Helios). Henderson v. Comptoir de Paris (L. E. 5 P. C. 253 ; 42 L. J. P. C. 60 ; 29 L. T. 192 ; 21 W. E. 873 ; 2 Asp. Mar. C. 98) 161, 179 ■ V. Shankland ( (1896) 1 Q. B. 525 ; 65 L. J. Q. B. 340 ; 74 L. T. 238 ; 44 W. E. 401 ; 8 Asp. M. C. 136 ; 1 Com. Cas. 333 ; 12 T. L. E. 250) 272 Herald, The (63 L. T. 324 ; 6 Asp. M. C. 542) . . .378 Hereward, The ( (1895) P. 284 ; 64 L. J. Ad. 87 ; 72 L. T. 903 ; 44 W. E. 288 ; 8 Asp. M. C. 22) . . . . 42 Hermann ^. Eoyal Exchange S. Co. (1 C. & E. 413) . 33,347 Heme Bay S.S. Co. v. Button ( (1903) 2 K. B. 683 ; 72 L. J. K. B. 879 ; 89 L. T. 422 ; 19 T. L. E. 680 ; 9 Asp. M. C. 472) 4, 6, 96 TABLE OF CASES. xxxix PAGE Hero, The (2 Dods. 139) 265 ( (1891) P. 294 ; 60 L. J. Ad. 99 ; 65 L. T. 499 40 W. R. 143 ; 7 Asp. Mar. C. 86) 380 Heslop V. Jones (2 Chit. 550) 10, 325 Heugh V. Escombe (4 L. T. 517 ; 1 Asp. Mar. C, 0. S. 79) . 365 Hibbert v. Oweu (2 F. & F. 502) 27 Hibernian, The ( (1907) P. 277 ; 76 L. J. P. 122 ; 97 L. T. 363 ; 23 T. L. R. 519 ; 10 Asp. M. C. 501) . 15, 70, 355, 362 Hick V. Raymond ( (1893) A. C. 22 ; 62 L. J. Q. B. 98 ; 61 W. R. 384; 7 Asp. M. L. C. 233; 9T. L. R. 141) . 307,308, 310, 312 V. Rodocauachi ( (1891) 2 Q. B. 626 ; 7 Asp. M. C 23, 97 {see also Hick v. Raymond) .... 298, 312, 314 V. Tweedy (63 L. T. 765 ; 6 Asp. Mar. C. 599) . 33, 35, 121, 364 Hickie v. Rodocanachi (4 H. & N. 455 ; 28 L. J. Ex. 273 ; 7 W. R. 545 ; 5 Jiir., N. S. 550) 42, 334 Hicks V. Shield (7 E. & B. 633 ; 26 L. J. Q. B. 205 ; 3 Jur., N. S. 715). ....... 322 323 Higgins V. Senior (8 M. & W. 834) '36 Hill V. Scott ( (1895) 2 Q. B. 713 ; 65 L. J. Q. B. 87 ; 73 L.T. 458; 8 Asp. M. C. 109 ; 1 Com. Cas. 200 ; IIT.L. R. 534) 198, 200 V. Wilson (4 C. P. D. 329; 48 L. J. C. P. 764; 41 L. T. 412 ; 4 Asp. Mar. C. 198) . . . 260, 279, 333 HiUs V. Sughrue (15 M. & W. 253) . . 123, 124, 126, 306 Hillstrom v. Gibson (8 Sc. Sess. Cas. 3rd Ser. 463 ; 22 L. T. 248 ; 3 Asp. Mar. C, 0. S. 362) . . . 110, 111, 130 Hine v. Free (2 Com. Cas. 149) 60, 240 Hingston v. Wendt (1 Q. B. D. 367 ; 45 L. J. Q. B. 440 ; 34 L. T. 181 ; 24 W. R. 664 ; 3 Asp. Mar. C. 126) . 258, 355 Hoare v. Dresser (7 H. L. C. 290 ; 28 L. J. Ch. 611 ; 7 W. R. 374; 5 Jur., N. S. 371) 170 Hochster v. De la Tour (2 E. & B. 678 ; 22 L. J. Q. B. 455 ; 17 Jur. 972) 129, 284 Hodgson V. Loy (7 T. R. 440) 174 Hogarth v. Leith Seed Co. ( (1909) Sess. Cas. 955 ; 46 Sc. L. R. 593) 21, 25 V. MiUer ( (1891) App. Cas. 48 ; 60 L. J. P. C. 1 ; 64 L. T. 205 ; 16 Sc. Sess. Cas. 4th Ser. 559 ; 7 Asp. M. C. 1). 341 Holland v. Pritchard (12 T. L. R. 480) 338 Hollinside, The ( (1898) P. 131 ; 67 L. J. Ad. 45 ; 46 W. R. 639 ; 3 Com. Cas. 100 ; 14 T. L. R. 258) . . . .339 Holman v. Dasnieres (2 T. L. R. 480, 607) . . . 125, 128 V. Peruvian Nitrate Co. (5 Sc. Sess. Cas. 4th Ser. 657) 26, 41, 301 Hoop, The (1 C. Rob. 196) 12 Hopper No. 66 {see Steam Hopper No. 66). Hopper V. Burness (1 C. P. D. 137 ; 45 L. J. C. P. 377 ; 34 L. T. 528 ; 24 W. R. 612 ; 3 Asp. Mar. C. 149). . 263, 271, 333, 335 Horlock V. Beal ( (1916) 1 A. C. 486 ; 85 L. J. K. B. 602 ; 21 Com. Cas. 201 ; 114 L. T. 193 ; 32 T. L. R. 251) . 13, 95, 96, 97 Horncastle v. Farran (3 B. & Aid. 497 ; 2 Stark. 590) . . 358 xl TABLE OF CASES. PAGE Horsley v. Price (11 Q. B. D. 244 ; 52 L. J. Q. B. 603 ; 49 L.T. 101 ; 31 W. K. 786; 5Asp. Mar. C. 106) . . . 110 Line v. Roecliling ( (1908) Sess. Cas. 866 ; 45 Sc. L. R. 691 ; 16 Sc. L. T. 83) . . 111,114,225,300,301 Hough r. Athya (6 Sc. Sess. Cas. 4tli Ser. 961) . . .303 ■ V. Manzanos (4 Ex. D. 104 ; 48 L. J. Ex. 398 ; 27 W. E. 536) 33, 35 Hoiilder v. General Steam Navigation Co. (3 F. & F. 170) . 284 285 1'. Weir( (1905)2K.B. 267 ; 74L. J. K. B. 729 ; 92 L. T. 861 ; 10 Com. Cas. 228 ; 21 T. L. R. 503 ; 10 Asp. M. C. 81) 301, 304 Houston V. Sansinena (68 L. T. 567 ; 7 Asp. M. C. 311) . 203, 213 Hovill V. Stephenson (4 C. & P. 469) .... 133, 137 How t'. Kirchner (11 Moore, P. C. 21) . . . . 322,356 Howard v. Shepherd (9 C. B. 297 ; 19 L. J. C. P. 249). 192, 290 V. Tucker (1 B. & Ad. 712) ... 61, 353, 354 Howden v. Nutfield S.S. Co. (3 Com. Cas. 56 : 14 T. L. R. 172) 426 Howitt t\ Paul&Co. (5 Sc. Sess. Cas. 4th Ser. 321) . 56,320 Hoyland v. Graham (1 Com. Cas. 274 ; 12 T. L. R. 166) . 344 r. Ralli (unreported, 1898) 79 Hubhersty v. Ward (8 Ex. 330 ; 22 L. J. Ex. 113) . 60, 61, 69 Hudson V. Bilton (6 E. & B. 565 ; 26 L. J. Q. B. 27 ; 2 Jur., N. S. 784) 243, 244 V. British and Foreign Ins. Co. {see Leitrim, The). V. Clementson (18 C. B. 213 ; 25 L. J. C. P. 234) . 130 V. Ede (L. R. 3 Q. B. 412 ; 37 L. J. Q. B. 166 ; 18 L. T. 764 ; 16 W. R. 940 ; 3 Asp. Mar. C, 0. S. 114). 26, 125, 126, 130, 131 - V. Hill (43 L. J. C. P. 273 ; 30 L. T. 555 ; 2 Asp. Mar. C. 278) 87, 91, 102, 366, 369 Hull S.S. Co. t'. Lamport (23 T. L. R. 445) . . . 113,121 Hulthen v. Stewart ( (1903) App. Cas. 389 ; 72 L. J. K. B. 917 ; 88 L. T. 702 ; 8 Com. Cas. 297 ; 19 T. L. R. 513 ; 9 Asp. M. C. 285) 307, 308, 311, 313 Humberston, In re (De Gex, 262 ; 8 Jur. 675) . . .173 Humble v. Hunter (12 Q. B. 310 ; 17 L. J. Q. B. 350) . Humfrey v. Dale (7 E. & B. 266 ; 26 L. J. Q. B. 137 ; 5 Jur. N. S.'lOl) Hunter v. Fry (2 B. & Aid. 421) - V. Xorthern Ins. Co. (13 App. Cas. 717 ; 15 Sc. Sess C. 4th Ser. (H. L.) 72) - V. Prinsep (10 East, 378). 243 335 Huntsman, The ( (1894) P. 214 ; 70 L. T. 386 : 7 Asp. M. C 431) ........ 38 Hurst V. Usborne (18 C. B. i44 ; 25 L. J. C. P. 209) '. 76, 91 Hutchings v. Nunes (1 Moore, P. C, N. S. 243 ; 9 L. T. 125 10 Jur., N. S. 109) 175 Hutchinson v. Guion (5 C. B., N. S. 149 ; 28 L. J. C. P. 63 ; 4 Jur., N. S. 1149) 98,99,137 V. Tatham (L. R. 8 C. P. 482 ; 42 L. J. C. P. 260 ; 29 L. T. 103 ; 22 W. R. 18) . 23, 25, 31, 32, 34, 35, 37 29 25 132 TABLE OF CASES. xli PAGE Huth V. Lamport (16 Q. B. D. 735 ; 55 L. J. Q. B. 239 ; 54 L. T. 633 ; 34 W. E. 386 ; 5 Asp. Mar. C. 593) . . 277, 278 Hiitton V. Bragg (7 Taunt. 14 ; 2 Marsh. 339) ... 7 I. Ida, The (32 L. T. 531 ; 2 Asp. Mar. C. 551) . . 145, 146 Imperial Bank v. London and St. Kath.'s Docks (5 Ch. D. 195 ; 46 L. J. Ch. 335 ; 36 L. T. 233) . . . 175, 180 Imperial Ottoman Bank v. Cowan (31 L. T. 336 ; 21 W. R. 770 ; 2 Asp. Mar. C. 418) 170 Inchmaree, The (see Thames and Mersey Co. v. Hamilton). Indomitable, The (Swa. 446 ; 5 Jur., N. S. 632) . . .264 Industrie, The ( (1894) P. 58 ; 63 L. J. Ad. 84 ; 70 L. T. 791 ; 42 W. R. 280 ; 7 Asp. M. C. 457) . 16, 17, 19, 259, 318, 331 Inglis V. Buttery (3 App. Cas. 553) 27 V. Stock ( 10 App. C. 263 ; 54 L. J. Q. B. 582 ; 52 L. T. 821 ; 33 W. R. 877 ; 5 Asp. Mar. C. 422) . . .173 V. Usherwood (1 East, 515) 183 Ingram v. Services Maritimes ( (1913) 1 K. B. 538 ; 82 L. J. K. B. 374 ; 18 Com. Cas. 109 ; 108 L. T. 304 ; 57 S. J. 375 ; 29 T. L. R. 274) 84, 210, 232 V. (C. A.) ( (1914) 1 K. B. 541 ; 83 L. J. K. B. 382 ; 19 Com. Cas. 105 ; 109 L. T. 733 ; 12 Asp. M. C. 387 ; 30 T. L. R. 79) 229 Innisfallen, The (L. R. 1 A. & E. 72 ; 35 L. J. Ad. 110 ; 12 Jur., N. S. 653 ; 2 Asp. Mar. C, 0. S. 470) . . 43, 44 Internationale Guano, &c. v. Macandrew ( (1909) 2 K. B. 360 ; 78 L. J. K. B. 691 ; 100 L. T. 850 ; 14 Com. Cas. 194 ; 11 Asp. M. C. 271 ; 53 S. J. 504 ; 25 T. L. R. 529) . 251, 254 Inverkip S.S. Co. v. Bunge ( (1917) 1 K. B. 31 ; 22 Com. Cas. 147) 297 lonides v. Pender (L. R. 9 Q. B. 531 ; 27 L. T. 244 ; 2 Asp. Mar. C. 266) 230 V. Universal Marine Insurance Co. (14 C. B., N. S. 259; 32 L. J. C. P. 170 ; 1 Asp. Mar. C, 0. S. 353) . 218 Iredale v. China Traders Co. ( (1900) 2 Q. B. 515 ; 69 L. J. Q. B. 783 ; 83 L. T. 299 ; 5 Com. Cas. 337 ; 16 T. L. R. 484 ; 9 Asp. M. C. 119) 273,274 Ireland v. Livingston (L. R. 5 H. L. 395 ; 41 L. J. Q. B. 201 ; 27 L. T. 79 ; 1 Asp. Mar. C. 389) .... 166, 175 Ironsides, The (Lush. 458 ; 31 L. J. Ad. 129 ; 6 L. T. 59 ; 1 Asp. Mar. C, 0. S. 200) 194 Irvine V. Clegg (1 Bing. N. C. 53 ; 4 M. & Scott, 572) . . 136 Isberg V. Bowden (S Ex. 852 ; 22 L. J. Ex. 322) . . .345 Isis S.S. Co. V. Bahr Behrend (3 Com. Cas. 325) . . . 128 V. ( (1900) A. C. 340 ; 69 L. J. Q. B. 660; 82 L. T. 571 ; 9 Asp. M. C. 109 ; 5 Com. Cas. 277) 125, 132 Istok, The, and Drughorn, In re (7 Com. Cas. 190 ; 18 T. L. R. 603) 342 Italian State Railways v. Bitzas (Lloyd's List, Feb. 16, 1917) 343 xlii TABLE OF CASES. J. PAGE Jackson r. Charnoek (8 T. K. 509) 276 V. Isaacs 3 H. & N. 405 ; 27 L. J. Ex. 392) . . 322 V. Nicliol (5 Bing. N. C. 508 ; 7 Scott, 577) . . 187 V. Union Marine Ins. Co. (L. K. 10 C. P. 125 ; 42 L. J. C. P. 284 ; 23 W. K. 169 ; 2 Asp. Mar. C. 435) . 91, 92, 94, 96, 102, 219 Jacobs V. Credit Lyonnais (12 Q. B. D. 589 ; 53 L. J. Q. B. 156; SOL. T. 194; 32 W. R. 761) 16 Jaederen,The( (1892)P. 351 ; 61L. J. Ad. 89) . . 284,295, 311 312 JamesCook, The (1 Edw. 261) ' 14 V. Griffin (2 M. & W. 623) .... 183, 185. 187 Janentzkvf. Langridge (1 Com.Cas. 90 ; IIT. L. E.468) . 68, 149 Janson v. Driefontein Co. ( (1902) App. Cas. 484 ; 71 L. J. K. B. 857 ; 87 L. T. 372 ; 7 Com. Cas. 268 ; 18 T. L. E. 796) 12 Jaques t'. Wilson (7 T. L. R. 119) 114 Jardine Matheson & Co. v. Clyde S.S. Co. {(1910) 1 K. B. 627 ; 79 L. J. K. B. 634 ; 102 L. T. 462 ; 11 Asp. M. C. 384; 15 Com. Cas. 193; 26 T.L.R. 301) . . 132,133,134 Jenkins v. Great Central Rv. ( (1912) 1 K. B. 1 ; 81 L. J. K. B.24; 17 Com. Cas. 32 ; 106 L. T. 565 ; 12Asp. M. C. 154; 28 T. L. R. 61) 238 ■ V. Hutchinson (13 Q. B. 744 ; 18 L. J. Q. B. 274 ; 13 Jxir., N. S. 673) 30, 31, 35 Jenkyns v. Brown (14 Q. B. 496 ; 19 L. J. Q. B. 286 ; 14 Jur. 505) 171 V. Usborne (7 M. & G. 678 ; 8 Scott, N. R. 505 ; 13 L. J. C. P. 196) 175, 194 Jennesen v. Secretary of State for India ( (1916) 2 K. B. 702 ; 22 Com. Cas. 1) 148 Jessel V. Bath (L. R. 2 Ex. 267 ; 36 L. J. Ex. 149 ; 15 W. R. 1041) 60, 69, 144, 145, 330 Jesson V. Solly (4 Taunt. 52) ... . 315, 316, 317 Job V. Langton (6 E. & B. 779 ; 26 L. J. Q. B. 97 ; 3 Jur., N. S. 109) 274 Johnson v. Chapman (19 C. B., X. S. 563 ; 35 L. J. C. P. 23 ; 2 Asp. Mar. C, 0. S. 404) 134, 269, 270 Johnston v. Benson (4 Moore. 90) 208 V. Hogg (10 Q. B. D. 432 ; 52 L. J. Q. B. 343 ; 48 L. T. 435 ; 31 W. R. 768 ; 5 Asp. Mar. C. 51) . . . 218 V. Saxon Queen Co. (108 L. T. 564 ; 12 Asp. M. C. 305) 104 55 L. J. Q. B. 162 ; . 129, 284 . 342 . 264 Johnstone v. Milling (16 Q. B. D. 460 54 L. T. 629) .... Jolly V. Young (1 Esp. 187) . Jonathan Goodhue, The (Swa. 355) Jones V. Adamson (1 Ex. D. 60 ; 45 L. J. Ex. 64 : 35 L. T. 287 ; 3 Asp. Mar. C. 253) 113,367 V. Green ( (1904) 2 K. B. 275 ; 73 L. J. K. B. 601 ; 90 L. T. 768 ; 9 Com. Cas. 20 ; 9 Asp. M. C. 600) . 123, 124, 307 V. Holm (L. R. 2 Ex. 335 ; 36 L. J. Ex. 192 ; 16 L. T. 794 : 16 W. R. 62 ; 2 Asp. Mar. C, 0. S. 551) . . . 132 TABLE OF CASES. xJiii PAGE Jones V. Hough (5 Ex. D. 115 ; 49 L. J. Ex. 211 ; 42 L. T. 108 ; 4 Asp. Mar. C. 248) 66, 67, 375 • V. Jones (8 M. & W. 431) 184 V. Moore (4 Y. &C. 351) . 287 Joseph Thorley, Ltd. v. Orchis S.S. Co. ( (1907) 1 K. B. 660 ; 76 L. J. K. B. 595 ; 96 L. T. 488 ; 12 Com. Cas. 251 ; 23 T. L. R. 338 ; 10 Asp. M. C. 431) ... 85, 251, 254 Joyce V. Swann (17 C. B., N. S. 84) . . . . 170, 171 Juno, The ( (1916) P. 169) 335 K. Karberg v. Blythe ( (1916) 1 K. B. 495 ; 85 L. J. K. B. 665 ; 21 Com. Cas. 174 ; 114 L. T. 152 ; 13 Asp. M. C. 235 ; 32 T. L. R. 186) 96, 167 Karnak, The (L. R. 2 P. C. 505 ; 38 L. J. Ad. 57 ; 21 L. T. 159 ; 17 W. R. 1028 ; 3 Asp. Mar. C, 0. S. 276) . 17, 245, 248, 249. 263, 265 Kasan, The (B. & L. 1 ; 32 L. J. Ad. 97 ; 9 Jur., N. S. 234) 194 Katherine, The (30 T. L. R. 52) 244 Kathleen, The (L. R. 4 A. & E. 269 ; 43 L. J. Ad. 39 ; 31 L. T. 204 ; 23 W. R. 350 : 3 Asp. Mar. C. 367) . 332, 334 Katy, The ( (1895) P. 56 ; 64 L. J. Ad. 49 ; 71 L. T. 709 ; 43 W. R. 290 ; 7 Asp. M. C. 346 ; 11 T. L. R. 116) . 300, 303 Kay V. Field (10 Q. B. D. 241 ; 52 L. J. Q. B. 17 ; 47 L. T. 423 ; 4 Asp. Mar. C. 588) 123, 124, 125 V. Wheeler (L. R. 2 C. P. 302 ; 36 L. J. C. P. 180 ; 16 L. T. 66 ; 15 W. R. 495 ; 2 Asp. Mar. C, O. S. 465) . 219, 223, 224 Kearon v. Pearson (7 H. & N. 386 ; 31 L. J. Ex. 1 ; 10 W. R. 12) 123, 124, 125 V. Radford (11 T. L. R. 226) 24 Keighley Maxted v. Diirant ( (1901) App. Cas. 240 ; 70 L. J. K. B. 662 ; 84 L. T. 777) 33, 175 Keith V. Burrows (2 App. C. 636 ; 2 C. P. D. 163 ; 46 L. J. C. P. 801 ; 37 L. T. 291 ; 25 W. R. 831 ; 3 Asp. Mar. C. 481) 43, 336. 350, 351 Kell V. Anderson (10 M. & W. 498 ; 12 L. J. Ex. 101) . . 115, 119 Kemp V. Baerselmann ( (1906) 2 K. B. 604) ... 3 f. Canavan (Ir. Rep. 15 C. L. 216) . . . .178 V. Clark (12 Q. B. 647 ; 17 L. J. Q. B. 305 ; 12 Jur. 676) 353, 354 V. Talk (7 App. C. 573 ; 52 L. J. Ch. 167 ; 47 L. T. 454 ; 31 W. R. 125 ; 5 Asp. Mar. C. 1) . 173, 176, 177, 178, 179, 181, 187, 188, 359 V. Ismay Imrie (14 Com. Cas. 202 ; 100 L. T. 996) . 185, 186, 187 Kendal v. Marshall (11 Q. B. D. 356 ; 52 L. J. Q. B. 313 ; 48 L. T. 951 ; 31 W. R. 597) .... 182, 185, 186 Kennedy v. Gonveia (3 D. & R. 503) . Kern v. Deslandes (10 C. B., N. S. 205 ; 30 L Asp. Mar. C, O. S. 156) . Keroula, The (11 P. D. 92 ; 55 L. J. Ad. 45 Asp. Mar. C, N. S. 23) . 353 J. C. P. 297; 1 45, 46, 54, 357 55L. T. 61 ; 6 43, 44 xliv TABLE OF CASES. PAGE Kerswil] v. Bishop (2 C. & J. 529 ; 2 Tvr. 602) . . .350 Kev V. Cotesworth (7 Ex. 595 ; 22 L. J. Ex. 4) . . .170 Kidston v. Mouceau (7 Com. Cas. 82 ; 86 L. T. 556) . 80, 91 King V. Hinde (Ir. L. R. 12 C. L. 113) . . . 130, 131 Kingsland, The ( (1911) P. 17 ; 80 L. J. P. 33 ; 16 Com. Cas. 18; 105L. T. 143; 27T. L. R. 74). . . . 311,313 Kinloch v. Craig (3 T. R. 783 ; 4 Bio. P. C. 47) . . 173, 175 Kirchner v. Venus (12 Moore, P. C. 361 ; 7 W. R. 455 ; 5 Jur., N. S. 395). . . 20, 25, 54, 318, 319, 322, 346, 355, 356 Kirk V. Gibbs (1 H. & N. 810 ; 26 L. J. Ex. 209) . 10, 123 Kish V. Cory (L. R. 10 Q. B. 553 ; 44 L. J. Q. B. 205 ; 32 L. T. 670 ; 23 W. R. 880 ; 2 Asp. Mar. C. 593) . 147, 150, 152, 153 155 156 157 159 V. Taylor ( (1912) A. C. 604 ; (1910) 2 K. B. 309 ;' 81 ' L. J. K. B. 1027 ; 17 Com. Cas. 355 ; 106 L. T. 900 ; 12 Asp. M. C. 217 ; 56 S. J. 518 ; 28 T. L. R. 425) . 57, 85, 213, 252, 267, 375 Kitts I'. Atlantic Transport Co. (7 Com. Cas. 227 ; 18 T. L. R. 739) 69 Kleinwort v. Cassa Marittima (2 App. C. 156 ; 36 L. T. 118 ; 25 W. R. 608 ; 3 Asp. Mar. C. 358) . . 246, 249, 263, 265 V. Shephard (1 E. & E. 447 ; 28 L. J. Q. B. 147 ; 7 W. R. 227 ; 5 Jur., N. S. 863) 218 Knight V. Cambridge (cited 8 East, 135) . . . .230 — S.S. Co. V. Fleming (25 R. (Sess. Cas.) 1070 ; 35 So. L. R. 834) 284, 295 Knutsford S.S. Co. v. Tillmans ( (1908) App. Cas. 406 ; 77 L. J. K. B. 977 ; 99 L. T. 399 ; 13 Com. Cas. 334 ; 24 T.L. R. 786; 11 Asp. M. C. 105) . . 107,108,209,211 Kopitoff V. Wilson (1 Q. B. D. 377 ; 45 L. J. Q. B. 436 ; 34 L. T. 677 ; 24 W.-R. 706 ; 3 Asp. Mar. C. 163) . . 82, 83, 87 Krall V. Burnett (25 W. R. 305) . . . .20, 24, 319, 320 Krellr. Henry ((1903) 2 K. B. 740; 72 L. J. K. B. 794; 89 L. T. 328; 19T. L. R. 711) 96,97 Kreuger v. Blanck (L. R. 5 Ex. 179 ; 39 L. J. Ex. 160 ; 23 L. T. 128 ; 18 W. R. 813 ; 3 Asp. Mar. C, 0. S. 470) . 132 Kriiger v. Moel Tryvan S.S. Co. ( (1907) App. Cas. 272 ; 76 L. J. K. B. 985; 97 L. T. 143; 13 Com. Cas. 1; 23 T. L. R. 677 ; 10 Asp. M. C. 465) 50,65 Kruuse v. Drynan (18 Sc. Sess. C. 1110) . . 123, 127, 311 L. Lackington v. Atherton (7 M. & C. 360 ; 8 Scott, N. R. 38 ; 13 L. J. C. P. 140 ; 8 Jur. 407) 180 La Com- v. Donaldson (1 Sc. Sess. Cas. 4th Ser. 912) . .115 Laertes, The (12 P. D. 187 ; 57 L. J. Ad. 108 ; 57 L. T. 502 ; 36 W. R. Ill ; 6 Asp. Mar. C. 174) . 85, 90, 210 Laing v. Holloway (3 Q. B. D. 437 ; 47 L. J. Q. B. 512 ; 26 W. R. 769) 302 Lamb v. Kaselack (9 Sc. Sess. Cas. 4th Ser. 482) . . .159 Laming v. Seater (16 Sc. Sess. Cas. 4th Ser. 828) ... 43 Landauerr. Craven ( (1912)2 K. B. 94 ; 17 Com. Cas. 193) . 166 TABLE OF CASES. xlv PAGE Langfond S.S. Co. v. Canadian Forwarding Co. (96 L. T. 559 ; 10 Asp. M. C. 414) 343 LanghamS.S. Co. i;. GaUagher( (1911)2Ir. Rep. 348) . 225,308, 314 Larrinaga v. Green ( (1916) 2 Ir. Rep. 126) .... 112 Larsen v. Sylvester ( (1908) App. Cas. 295 ; 13 Com. Cas. 328; 24 t. L. R. 640; 11 Asp. M. C. 78) . . 211,212 Laurel, The (B. & L. 191 ; 33 L. J. Ad. 17 ; 9 L. T. 457 ; 13 W. R. 352 ; 1 Asp. Mar. C, 0. S. 405) . . . 265 Laurie v. Douglas (15 M. & W. 746) . .202,204,221,224, 231, 233, 236 Laveroni v. Drury (8 Ex. 166 ; 22 L. J. Ex. 2 ; 16 Jur. 1024) 219, 223 Law V. British Am. Tobacco Co. ( (1916) 2 K. B. 605 ; 85 L. J. K. B. 1714 ; 21 Com. Cas. 350 ; 115 L. T. 612) . 167 Law Guarantee Soc. v. Russian Bank ( (1905) 1 K. B. 815 ; 74 L. J. K. B. 577 ; 92 L. T. 435 ; 10 Com. Cas. 159 ; 21 T. L. R. 383; 10 Asp. M. C. 41) 44 Lawrence V. Aberdein (5 B. & Aid. 107) . . . 221,223 Lawson v. Burness (1 H. & C. 396 ; 10 W. R. 733) . 21, 130, 131 Leach v. Royal Mail Co. (16 Com. Cas. 143 ; 104 L. T. 319) . 65, 295 Leask v. Scott (2 Q. B. D. 376 ; 46 L. J. Q. B. 576 ; 36 L. T. 784 ; 25 W. R. 654 ; 3 Asp. Mar. C. 469) . . .179 Leather v. Simpson (L. R. 11 Eq. 398 ; 40 L. J. Ch. 177 ; 24 L. T. 286 ; 19 W. R. 431 ; 1 Asp. Mar. Co). . . 169 Lebeau v. General Steam Navigation Co. (L. R. 8 C. P. 88 ; 42 L. J. C. P. 1 ; 27 L. T. 447 ; 21 W. R. 146 ; 1 Asp. Mar. C. 435) 144, 146 Lecky v. Ogilvy (3 Com. Cas. 29) 166 Leduc V. Ward (20 Q. B. D. 475 ; 57 L. J. Q. B. 379 ; 58 L. T. 908 ; 36 W. R. 537 ; 6 Asp. Mar. C. 290) . 15, 45, 47, 48, 49, 54, 55, 74, 163, 192, 194, 210 250 252 253 Leech v. Glynn (6 T. L. R. 306) . . . . ' . ' 70^ 337 Leeds v. Wright (3 B. & P. 320 ; 4 Esp. 243) . . .185 Leer v. Yates (3 Taunt. 387) 57, 316 Leidemann v. Schultz (14 C. B. 38 ; 23 L. J. C. P. 17 ; 18 Jur. 42) 21, 129, 130 Leitrim, The ( (1902) P. 256 ; 71 L. J. P. 108 ; 87 L. T. 240 ; 8 Com. Cas. 6 ; 18 T. L. R. 819 ; 9 Asp. M. C. 317) . 273, 279 Lennard v. Robinson (5 E. & B. 125 ; 24 L. J. Q. B. 275 ; 1 Jur., N. S. 853) 30, 35 Lennard's Co. v. Asiatic Co. ( (1915) A. C. 407 ; (1914) 1 K. B. 419 ; 84 L. J. K. B. 1281 ; 20 Com. Cas. 283 ; 113 L. T. 195 ; 31 T. L. R. 294) 228, 420 Leo, The (Lush. 444 ; 31 L. J. Ad. 78 ; 6 L. T. 58 ; 1 Asp. Mar. C, O. S. 200) 281 Leonard v. Leyland (18 T. L. R. 727) 84 Leonis S.S. Co. v. Rank (No. 1) ( (1908) 1 K. B. 499 ; 77 L. J. K. B. 224 ; 13 Com. Cas. 136 ; 24 T. L. R. 128) . 112, 113, 114, 115, 117, 118, 121, 243 V. (No. 2) (99 L. T. 513 ; 13 Com. Cas. 295; 24T.L. R. 749; 11 Asp. M.C. 142) . . 211,225,300 xlvi TABLE OF CASES. Lepla V. Rogers ( (1893) 1 Q. B. 31 ; 68 L. T. 584) Leptir, The (52 L. T. 768 ; 5 Asp. Mar. C. 411) . Leslie v. Guthrie (1 Bing. N. C. 697 ; 1 Scott, 683) V. Wilson (3 B. & B. 171 ; 6 Moore, 415) PAGE . 363 332, 334 . 349 . 242 Letchford v. Oldham (5 Q. B. D. 538 ; 49 L. J. Q. B. 458 ; 28 W. R. 789) 222 Letricheux v. Dunlop (19 Sc. Sess. Cas. 209) . . 204, 208 Leuw V. Dudgeon (L. R. 3 C P. 17 n. ; 37 L. J. C. P. 5 ; 17 L. T. 145 ; 16 W. R. 80 ; 3 Asp. Mar. C, 0. S. 3) . 209, 232 Levy V. Costerton (4 Camp. 389 ; 1 Stark. 212) . . .86 Lewen v. Suasso (cited Arnould, 9th ed. sects. 839, 852) . 230 Lewis V. M'Kee (L. R. 4 Ex. 58 ; 38 L. J. Ex. 62 ; 19 L. T. 522 ; 17 W. R. 325 ; 3 Asp. Mar. C, 0. S. 174) . 9, 192, 352 354 V. Marshall (7 M. & G. 729 ; 8 Scott, N. R. 846 ; 13 ' L. J. C. P. 193 ; 8 Jur. 848) .... 24, 319, 320 Leyland S.S. Co. v. Norwich Union ( (1916) 1 K. B. 873 ; 33 T. L. R. 228) 206 Lickbarrow v. Mason (5 T. R. 683 ; 1 Smith's L. C. 12th ed. 726) 161, 162, 164, 174, 178 Liddard v. Lopes (10 East, 526) 332, 333 Lidgett V. Perrin (11 C. B., N. S. 362) . . . . 319,320 LiUev V. Doubleday (7 Q. B. D. 510 ; 51 L. J. Q. B. 310 ; 44 L. T. 814) 135, 251 Lilly V. Smales ( (1892) 1 Q. B. 456 ; 40 W. R. 544) . . 34 V. Stevenson (22 Sess. Cas. 4th Ser. 278) . . 296, 299 Limerick S.S. Co. v. Coker (33 T. L. R. 103). . 49, 52, 347 Lindsay v. Gibbs (22 Beav. 522 ; 28 L. J. Ch. 692 ; 4 Jur., N. S. 779) 349 V. Klein ( (1911) A. C. 194 ; (1911) Sess. Cas. H. L. 9 ; 80 L. J. P. C. 161 ; 104 L. T. 261 ; 48 Sc. L. R. 326) . 87 LiptontJ. Jescott Steamers (1 Com. Cas. 32 ; 11 T. L. R. 539). 8, 198 Lishman v. Christie (19 Q. B. D. 333 ; 56 L. J. Q. B. 538 ; 57 L. T. 552 ; 35 W. R. 744 ; 6 Asp. Mar. C. 186) . 61, 62, 68, 330 Lister v. Van Haansbergen (1 Q. B. D. 269 ; 45 L. J. Q. B. 495 ; 24 W. R. 395 ; 3 Asp. Mar. C. 145) . . 148, 152 Litt V. Cowley (7 Taunt. 169 ; Holt, N. P. 338) . . 182, 188 Little V. Stevenson ( (1896) A. C. 108 ; 74 L. T. 529 ; 8 Asp. M. C. 162) 123 Liver Alkali Co. v. Johnson (L. R. 7 Ex. 267 ; 9 Ex. 338 ; 43 L. J. Ex. 216; 31 L.T. 95; 2 Asp. Mar. C. 332). . 198,200 Liverpool Co. v. Wilson (L. R. 7 Ch. 507 ; 41 L. J. Ch. 498 ; 26 L. T. 717 ; 20 W. R. 665) 350 Lizzie, The (L. R. 2 A. & E. 254 ; 19 L. T. 71 ; 3 Asp. M. C, 0. S. 150) 263 Lloyd V. Gen. Iron Screw Coll. Co. (3 H. & C. 284 ; 33 L. J. Ex. 269 ; 10 L. T. 586 ; 12 W. R. 882 ; 2 Asp. Mar. C, 0. S. 32) 220, 223 V. Guibert (L. R. 1 Q. B. 115 ; 35 L. J. Q. B. 74 ; 13 L. T. 602 i 12 W. R. 953 ; 2 Asp. Mar. C, 0. S. 283) . 16, 17, 18, 19 Lockhart v. Palk (L. R. 10 Ex. 132 ; 44 L. J. Ex. 105 ; 33 L. T. 96 ; 23 W. R. 753 ; 3 Asp. Mar. C. 8) . 148, 150, 151, 152, 158, 159 TABLE OF CASES. xlvii PAGE Lockie v. Craggs (7 Cora. Cas. 7 ; 86 L. T. 388 ; 9 Asp. M. C. 296) 211 Lockwood V. Wood <6 Q. B. 50) 21 Loeschmann V. Williams (4 Camp. 181) .... 182 LoMen V. Calder (14T. L. R. 311) 62 London Joint Stock Bank v. British & Amsterdam Co. (16 Com. Cas. 102 ; 104 L. T. 143). . . . 190, 191, 286 and Midland Bank v. Nielsen (1 Com. Cas. 18) . 264 and Northern Co. v. Central Argentine Ry. (108 L. T. 527 ; 12 Asp. M. C. 303) 207, 306 and N. W. R. v. Bartlett (7 H. & N. 400 ; 31 L. J. Ex. 92 ; 5 L. T. 399 ; 10 W. R. 109) . . . .183 Traders Co. v. General Mercantile Co. (30 T. L. R. 493) 121 Transport Co. v. Trechman ( (1904) 1 K. B. 635 ; 73 L. J. K. B. 253 ; 90 L. T. 132 ; 9 Com. Cas. 133 ; 9 Asp. M. C. 518). . . 329, 337 Longford, The (6 P. D. 60 ; 50 L. J. Ad. 28 ; 44 L. T. 254 • 29 W. R. 491 ; 4 Asp. M. C. 385) 280 Love t;. Rowtor S.S. Co. ( (1916) 2 A. C. 527) . 26,27,300, 301, 304, 309 Lucas V. De la Cour (1 M. & S. 249) 29 V. Nockells (4 Bing. 729 ; 2 M. & P. 783) . . <3, 356 Luke V. Lyde (2 Burr. 883) 326, 332 Lyall V. Hicks (27 Beav. 616) 265 Lyderhorn Co. v. Duncan {see Sailing Ship Lyderhorn Co., &c.). Lvle V. Corporation of Cardiff (69 L. J. Q. B. 93 ; 5 Com. 'Cas. 87 ; 81 L. T. 642) . . . 298, 305, 308, 311, 359 — V. ( (1900) 2 Q. B. 638 ; 69 L. J. Q. B. 889 ; 83 L. T. 329 ; 5 Com. Cas. 397 ; 9 Asp. M. C. 128) 308, 310, 311, 313, 314 Lyon V. MeUs (5 East, 428) 83, 202 Lyons V. Hoffnung ( 15 A. C. 391 ; 59 L. J. P. C. 79 ; 63 L. T. 293; 6 Asp. M. C. 551) 182,185,186 M. M'Andrew v. Adams (1 Bing. N. C. 29 ; 4 M. & Scott, 517) . 91, 93 102 MacAndrew v. Chappie (L. R. 1 C. P. 643 ; 14 L. T. 556 ; 14 ' W. R. 891 ; 2 Asp. Mar. C, 0. S. 339) . 73, 80, 82, 91, 93 Macbeath v. Haldimand (1 T. R. 172) .... 37 M'CaU V. Houlder (66 L. J. Q. B. 408 ; 76 L. T. 469 ; 2 Com Cas. 129 ; 8 Asp. M. C. 252 ; 13 T. L. R. 280) . . 272 M'Ewan v. Smith (2 H. L. C. 309 ; 13 Jur. 265) . . .180 McFadden v. Blue Star Line ( (1905) 1 K. B. 697 ; 74 L. J. K. B. 423 ; 93 L. T. 52 ; 10 Com. Cas. 123 ; 21 T. L. R. 345 ; 10 Asp. M. C. 55) . . . . 83, 84, 90, 221, 430 M'Intosh V. Sinclair (Ir. R. 11 C. L. 456) . 115, 119, 243, 298 Mclver v. Tate Steamers ( (1903) 1 K. B. 362 ; 72 L. J. K. B. 253; 88L. T. 182; 8 Com. Cas. 124 ; 19 T. L. R. 217 ; 9 Asp. M. C. 362) 83, 89, 245 Mackenzie v. Rowe (2 Camp. 482) ..... 143 Mackill V. Wright (14 App. C. 106) . . 14, 16, 27, 77, 78 xlviii TABLE OF CASES. PAGE Mackrell v. Simond (2 Chit. 666) 318 Maclav v. Brethertou (unreported, Sept. 30. 1898) . . 400 ~ V. Spillers (6 Com. Cas. 217 ; 17 T. L. R. 391) . 307, 310 McLean v. Fleming (L. R. 2 H. L. Sc. 128 ; 25 L. T. 317 ; 1 Asp. Mar. C. 160) , 27, 60, 61, 69, 158, 357, 360, 374, 375 Magnus v. Buttemer (11 C. B. 876; 21 L. J. C. P. 119 ; 16 Jur. 480) 222 Major V. Grant (7 Com. Cas. 231 ; 18 T. L. R. 742). . 284, 292, 294 394 r. White (7 C. & P. 41) ' 137 Manchester Canal Co. i-. Horlock ( (1914) 1 Ch. 453) . . 27 S. & L. Ry. Co. V. Brown (8 App. Cas. 703 ; 53 L. J. Q.B. 124; 50L. T. 281 ; 32 W. R. 207) . . . 238 Trust V. Furness, Withv & Co. ( (1895) 2 Q. B. 539 ; 44 W. R. 178 ; 8 Asp. M. C. 57 ; 1 Com. Cas. 39 11 T. L. R. 530) 4, 6, 50, 52. 56, 59 Manfield v. Maitland (4 B. & A. 582) .... 323, 324 Manor, The ( (1907) P. 339 ; 77 L. J. P. 10 ; 96 L. T. 871 ; 10 Asp. M. C. 446) 44 Maori King, The v. Hughes ( (1895) 2 Q. B. 550 ; 65 L. J. Q. B. 168 ; 44 W. R. 2 ; 8 Asp. M. C. 65 ; 1 Com. Cas. 104; 11 T. L. R. 550) . . . 83,84,85,88,207,386 Marathon, The (40 L. T., N. S. 163 ; 4 Asp. Mar. C. 75, 82, 83, 136, 195 Marechal Suchet, The ( (1911) P. 1 ; 80 L. J. P. 51 ; 103 L. T. 848; 11 Asp. M. C. 553 ; 26T. L. R. 660) . . 83 Maria Jane, The (14 Jur. 857) Marianne, The ( (1891) P. 180 ; 60 L. J. Ad. 39 ; 64 L. T 539 ; 7 Asp. Mar. C. 34) Mariposa, The ( (1896) P. 273 ; 65 L. J. Ad. 104 ; 75 L. T 54 ; 45 W. R. 191 : 8 Asp. M. C. 159 ; 12 T. L. R. 518). Mark Lane, The (15 P. D. 135 ; 63 L. T. 468 ; 39 W. R. 47 6 Asp. M. C. 540) Marpesia, The (L. R. 4 P. C. 212 ; 26 L. T. 333 ; 8 Moore P. C, N. S. 468 ; 7 Asp. M. C 155) .... Marquand v. Banner (6 E. & B. 232 ; 25 L. J. Q. B. 313 ; 2 Jur., N. S. 708) 49, 346, 348 Marriott v. Yeoward ( (1909) 2 K. B. 987 ; 101 L. T. 394 ; 14 Com. Cas. 279 ; 53 S. J. 790 ; 25 T. L. R. 755) . . 9, 232 Marsh r. Redder (4 Camp. 257) 352 Marshal of Marshalsea's Case (Y. B. 33 Hen. 6, cited Holmes, 177) 202,215 Marshall v. Bolckow Yaughan (6 Q. B. D. 231 ; 29 W. R. 792) 299, 303 1-. De la Torre (1 Esp. 367) .... 299,306 Martineaus v. Roval Mail Co. (17 Com. Cas. 176 ; 106 L. T. 638 ; 12 Asp. M. C. 190 ; 56 S. J. 445 ; 28 T. L. R. 364) . 63, 145, 146 Marwood v. Taylor (6 Com. Cas. 178 ; 17 T. L. R. 565) . 337 Mary Thomas, The (12 T. L. R. 511) . . . . 114, 243 Marzetti v. Smith (49 L. T. 580 ; 1 C. & E. 6 ; 5 Asp. Mar. C. 166) 21, 291, 293, 394, 395, 397 Mashiter v. BuUer (1 Camp. 84) 320 Massey v. Heynes (21 Q. B. D. 330 ; 57 L. J. Q. B. 521 ; 59 L. T. 470;'36 W, R. 834) 377 281 40 280 281 214 TABLE OF CASES. xlix PAGE Mathilda, The (48 L. T. 771 ; 5 Asp. Mar. C 75). . . 41 Matthews v. Gibbs (30 L. J. Q. B. 55 ; 3 L. T. 551 ; 7 Jur., N. S. 186 : 1 Asp. Mar. C, 0. S. 14) ... 262, 326 t;. Hopkins (1 Sid. 244) 202 Matzoukis v. Priestman ( (1915) 1 K. B. 681 ; 84 L. J. K. B. 967 ; 20 Com. Cas. 252) 208 Mavro v. Ocean Marine Ins. Co. (L. R. 10 C. P. 414 ; 44 L. J. C. P. 229 ; 32 L. T. 743 ; 23 W. R. 758 ; 2 Asp. Mar. C. 590) 279 Mawson v. Beyer ( (1914) 1 K. B. 304 ; 83 L. J. K. B. 290 ; 19 Com. Cas. 59 ; 12 Asp. M. C. 423 ; 109 L. T. 973). . 303 Max V. Roberts (12 East, 89) 250 Maxima, The (39 L. T. 112 ; 4 Asp. Mar. C. 21) . . . 43 Meade King v. Jacobs ( (1915) 2 K. B. 640 ; 84 L. J. K. B. 1133 ; 20 Com. Cas. 288 ; 113 L. T. 298 ; 31 T. L. R. 316) 341 Mechan v. N. E. Ry. Co. ( (1911) Sess. Cas. 1348 ; 48 Sc. L. R. 987) 187 Medeiros v. Hill (8 Bing. 231 ; 1 M. & Scott, 311 ; 5 C. & P. 182) 13, 91, 93, 256 Mediterranean Co. v. Mackay ( (1903) 1 K. B. 297 ; 72 L. J. K. B. 147) 62, 330, 331 Meiklereid v. West (1 Q. B. D. 428 ; 45 L. J. M. C. 91 ; 34 L. T. 353 ; 24 W. R. 703 ; 3 Asp. Mar. C. 129) . . 7 Mein V. Ottman (6 F. (Sess. Cas.) 276) . . . 208,301,303 Melhuish v. Garrett (4 Jur., N. S. 943) . . . 329, 330 Melrose Abbey, The (14 T. L. R. 202) 304 Mendl v. Ropner ( (1913) 1 K. B. 27 ; 82 L. J. K. B. 75 ; 18 Com. Cas. 29 ; 107 L. T. 699 ; 12 Asp. M. C. 268) .14, 15, 209 Mentz Decker v. Maritime Co. (15 Com. Cas. 17) . . . 230 Mercantile Exch. Bank v. Gladstone (L. R. 3 Ex. 233 ; 37 L. J. Ex. 130 ; 18 L. T. 641 ; 17 W. R. 11 ; 3 Asp. Mar. C, O. S. 87) 63, 64, 177 S.S. Co. V. Tyser (7 Q. B. D. 73 ; 29 W. R. 790 ; 5 Asp. Mar. C. 6«.) 207 Merchant Prince, The ( (1892) P. 179 ; 67 L. T. 251 ; 8 T. L. R. 430) 214 Banking Co. v. Phoenix Bessemer (5 Ch. D. 205 ; 46 L. J. Ch. 418; 36L. T. 395; 25 W. R. 457) . 174,181,182 Shipping Co. v. Armitage (L. R. 9 Q. B. 99 ; 43 L. J. Q. B. 24 ; 29 L. T. 97, 809 ; 2 Asp. Mar. C. 185). 328, 329, 336 Trading Co. v. Univ. Marine Ins. Co. (cited at ~ 220 14 L. R. 9 Q. B. 596) Mercurius, The (1 Rob. 80) Meredith, The (10 P. D. 69 ; 52 L. T. 520 ; 5 Asp. Mar. C 400) Merryweather v. Pearson ( (1914) 3 K. B. 587 ; 83 L. J K.B. 1678; 19 Com. Cas. 402) Mersey Mutual Assn. v. Poland (15 Com. Cas. 205) Steel Co. V. Naylor Benzon (9 App. Cas. 434 ; 53 L. J Q. B. 497 ; 51 L. T. 637 ; 32 W. R. 989) . Messageries Co. v. Baines (7 L. T., N. S. 763 ; 11 W. R. 322 1 Asp. Mar. C, O. S. 285) 42 338 243 284 42 1 TABLE OF CASES. PAGE Metcalfe v. Britannia Iron Works (2 Q. B. D. 423 ; 46 L. J. Q. B. 443 ; 36 L. T. 451 ; 25 W. R. 720 ; 3 Asp. Mar. C. 407) 106, 107, 332, 334 V. Thompson (8 T. L. R. 706) . . .22, 309 Metropolitan Water Board v. Dick Kerr (33 T. L. R. 242) 92, 96 Meyer v. Dresser (16 C. B., N. S. 646 ; 33 L. J. C. P. 289 ; 10 L. T. 612 ; 12 W. R. 983 ; 2 Asp. Mar. C, 0. S. 27) . 20, 25, 67, 68, 69, 319, 330, 331 V. Sanderson (32 T. L. R. 428) 342 V. Shape (5 Taunt. 74) 165 Meyerstein v. Barber (L. R. 2 C. P. 38 ; 15 L. T. 355 ; 36 L. J. Q. B. 48 ; 15 W. R. 173 ; affirmed in Exch. Ch. 16 L. T. 569 ; 15 W. R. 998) 290, 359 Michael v. Hart ( (1902) 1 K. B. 482) 369 Michenson v. Begbie (6 Bing. 190 ; 3 M. & P. 442) . 347, 348 Milan, The (Lush. 388 ; 31 L. J. Ad. 105 ; 5 L. T. 590 ; 1 Asp. Mar. C, 0. 8. 185) 282 Milburn v. Jamaica Co. ( (1900) 2 Q. B. 540 ; 69 L. J. Q. B. 860 ; 83 L. T. 321 ; 5 Com. Cas. 346 ; 16 T. h. R. 515 ; 9 Asp. M. C. 122) 66, 67, 267 Miles, Ex parte (15 Q. B. D. 39 ; 54 L. J. Q. B. 566) . 182, 185, 186 Millar v. Taylor ( (1916) 1 K. B. 402) 93 Miller v. Borner ( (1900) 1 Q. B. 691 ; 89 L. J. Q. B. 429 ; 82 L. T. 258 ; 5 Com. Cas. 175; 9 Asp. M. C. 31) . 132,133 V. Law Accident Co. ( (1903) 1 K. B. 712 ; 72 L. J. K. B. 428 ; 88 L. T. 369 ; 8 Com. Cas. 161 ; 9 Asp. M. C. 386) 216, 218 V. Potter (3 Sc. Sess. C. 105) 264 V. Woodfall (8 E. & B. 493 ; 27 L. J. Q. B. 120 ; 4 Jur., N. S. 302) 334 Milvain v. Perez (3 E. & E. 495 ; 30 L. J. Q. B. 90 ; 3 L. T. 736 ; 9 W^ R. 269 ; 1 Asp. Mar. C, 0. S. 32) . 147, 151, 153 Milverton S.S. Co. v. Cape Town Gas Co. (2 Com. Cas. 281) . 118, 211 Mirabita v. Imp. Ott. Bank (3 Ex. D. 164 ; 47 L. J. Ex. 418 ; 38 L. T. 597 ; 3 Asp. Mar. C. 591) . 165, 168, 169, 170, 172 Miramichi, The ( (1915) P. 71 ; 84 L. J. P. 105 ; 31 T. L. R. 72) 166 Missouri S.S. Co., In re (42 Ch. D. 321 ; 58 L. J. Ch. 721 : 61 L. T. 316 ; 6 Asp. Mar. C. 264 ; 37 W. R. 696) . 16, 18, 429 Mitchel t;. Ede (11 A. & E. 888 ; 3 P. & D. 513) . . . 182 MitcheU v. Darthez (2 Bing. N. C. 555 ; 2 Scott, 771) . 332, 334 V. L. & Y. Rv. Co. (li. R. 10 Q. B. 256 ; 44 L. J. Q. B. 107 ; 33 L. T. 161 ; 23 W. R. 853) . . . .269 V. Scaife (4 Camp. 298) . . .53, 54, 57, 61, 64, 67 — V. Steel ( (1916) 2 K. B. 610 ; 85 L. J. K. B. 1747 22 Com. Cas. 63 ; 115 L. T. 606) .... 98, 100 Mitcheson v. McoU (7 Ex. 929 ; 21 L. J. Ex. 323) . 131, 134, 135 Moakes v. Nicolson (19 C. B., N. S. 290 ; 34 L. J. C. P. 273 ; 12L. T. 573) 171,183 Modena, The (16Com. Cas. 292) 57 Modern Co. v. Duneric Co. ( (1917) 1 K. B. 370 ; 115 L. T. 535 ; 22 Com. Cas. 125 ; 33 T. L. R. 55) . . 94, 341, 343 TABLE OF CASES. li PAGE Modesto V. Dupre (7 Com. Cas. 105 ; 86 L. T. 560 ; 18 T. L. R. 351 ; 9 Asp. M. C. 297) .... 113,120 Moel Tryvan S.S. Co. v. Kriiger (see Kriiger v. Moel Tryvan S.S. Co.). V. Weir ( (1910) 2 K. B. 844 ; 79 L. J. K. B. 898 ; 15 Com. Cas. 307 ; 103 L. T. 161 ; 11 Asp. M. C. 469) 103 Mogul S.S. Co. V. MacGregor ( (1892) A. C. 25 ; 61 L. J. Q. B. 295 ; 66 L. T. 1 ; 40 W. R. 337 ; 56 J. P. 101 ; 8 T. L. R. 182 ; 7 Asp. M. C. 120) 40 Moliere S.S. Co. v. Naylor, Benzon & Co. (2 Com. Cas. 92 ; 13 T. L. R. 187) 300 MoUer v. Jecks (19 C. B., N. S. 332) 298 Moller V. Living (4 Taunt. 102) 338 Mollett V. Robinson (L. R. 5 C. P. 656) (see Robinson v. Mollett) 20 Monsen v. Macfarlane ( (1895) 2 Q. B. 562 ; 65 L. J. Q. B. 57 ; 73 L. T. 548 ; 1 Com. Cas. 51 ; 8 Asp. M. C. 93 ; 11 T. L. R. 561) 3,113,114,120,297 Montana, The (129 U. S. Rep. 397) 429 Montgomery v. Foy, Morgan & Co. ( (1895) 2 Q. B. 321 ; 43 W. R. 691 ; 8 Asp. M. C. 36 ; 11 T. L. R. 512) . . 294 V. Hutcbins (94 L. T. 207 ; 10 Asp. M. C. 223). 370 V. Indemnity Co. ((1902) 1 K. B. 734; 71 L. J. K. B. 467 ; 86 L. T. 462 ; 7 Com. Cas. 120 ; 18 T. L. R. 479 ; 9 Asp. M. C. 289) 267 Montova v. London Assurance Co. (6 Ex. 458) . . . 219 Montrosa, The ( (1917) P. 1 ; 33 T. L. R. 33) . 379, 380, 406 Moorcock, The (14 P. D. 64) 97 Moore v. Harris (1 App. C. 318 ; 45 L. J. P. C. 55 ; 34 L. T. 519 ; 24 W. R. 887 ; 3 Asp. Mar. C. 173) . 18, 27, 70, 209, 295 t'. Hoppers (2B. &P., N. R. 411) . . . .241 Moorsom v. Greaves (2 Camp. 626) .... 13, 340 V. Kymer (2 M. & S. 303 ; 3 Camp. 549 n.) . . 352 V. Page (4 Camp. 103) 136 Moran v. Jones (7 E. & B. 523 ; 26 L. J. Q. B. 187 ; 3 Jur., N. S. 663) 276 Morgan v. Castlegate S.S. Co. ((1893) A. C. 38: 62 L. J. P. C. 17 ; 68 L. T. 99 ; 41 W. R. 349 ; 9 T. L. R. 139) . 245 V. Griffith (L. R. 6 Ex. 70 ; 40 L. J. Ex. 46 ; 23 L. T. 783 ; 19 W. R. 957) 72 Morison v. Gray (2 Bing. 260 ; 9 Moore, 484) . . .175 Morris v. Levison (1 C. P. D. 155 ; 45 L. J. C. P. 409 ; 34 L. T. 576 ; 24 W. R. 517 ; 3 Asp. Mar. C. 171) . 132, 133 V. Oceanic Co. (16 T. L. R. 533) . « . .209 Morrison v. Parsons (2 Taunt. 407) . . . . 346, 349 V. Shaw Savill ( (1916) 2 K. B. 783 ; 22 Com. Cas. 81; 115L. T. 508; 32 T. L. R. 712). 135,213,251,253,254 Morritt, In re (18 Q. B. D. 222 ; 66 L. J. Q. B. 139 ; 56 L. T. 42; 35 W. R. 277) 189 Mors le Blanch v. Wilson (L. R. 8 C. P. 227 ; 42 L. J. C. P. 70 ; 28 L. T. 415 ; 1 Asp. Mar. C. 605) . . 290, 291, 359 Morse v. Slue (Sir T. Raym. 220 ; 2 Keb. 886 ; 2 Lev. 69 ; 1 Vent. 190 ; 1 Mod. 85) 202 lii TABLE OF CASES. PAGE Mount Park S.S. Co. v. Grey (The Shipping Gazette, March 12, 1910) 84 Mount Vernon, The (64 L. T. 148 ; 7 Asp. Mar. C. 32). . 38 Mouse's Case (12 Coke Rep. 63) 266 Muddle V. Stride (9 C. & P. 380) 240 Mudie V. Strick (100 L. T. 701 ; 14 Com. Cas. 135, 927 ; 53 S. J. 400 ; 25 T. L. R. 453 ; 11 Asp. M. C. 235) . 209, 212, 225 Murphy v. Coffin (12 Q. B. D. 87 ; 32 W. E. 616 ; 5 Asp. Mar. C. 531 w.) 113,116,120 Murray v. Currie (L. R. 6 C. P. 24 ; 40 L. J. C. P. 26 ; 23 L. T. 557 ; 19 W. R. 104 ; 3 Asp. Mar. C, 0. S. 497) . 137, 138, 141 N. Nathan v. Giles (5 Taunt. 557 ; 1 Marsh. 226) . . .165 National Bank v. Morris ( (1892) A. C. 287 ; 61 L. J. P. C. 32; 66 L. T. 240) 176, 178 of Scotland v. Dewhurst (1 Com. Cas. 318) . 38 Naylor v. Taylor (9 B. & G. 718 ; M. & M. 205) ... 13 Neill V. Ridley (9 Ex. 677) 134 Neish V. Graham (8 E. & B. 505 ; 27 L. J. Q. B. 15 ; 4 Jur., N. S. 49) 356 Nelson v. Association, &c. (43 L. J. C. P. 218) . . .356 V. Dahl (12 Ch. D. 568 (see Dahl v. Nelson) ) . 102, 105, 106, 112, 113, 115, 117, 283, 284 • V. Dundee East Coast S.S. Co. ( (1907) Sess. Cas. 927 ; 44 Sc. L. R. 661 ; 15 Sc. L. T. 38) 103, 365 — V. Nelson (Damage) ( (1908) App. Cas. 16 ; 77 L. J. K. B. 82 ; 97 L. T. 812 ; 13 Com. Cas. 104 ; 24 T. L. R. 114 ; 10 Asp. M. C. 581) .... 15, 82, 209, 210 V. (Demurrage) ((1908) App. Cas. 108; (1907)2K.B. 705; 77 L. J. K. B. 456 ; 98 L. T. 322 ; 13 Com. Cas. 235 ; 24 T. L. R. 315 ; 11 Asp. M. C. 9) . 301, 302, 304 V, (Net invoice cost) ( (1906) 2 K. B. 804 ; 11 Com. Cas. 305) 209,372 Nepoter, The (L. R. 2 A. & E. 375 ; 38 L. J. Ad. 63 ; 22 L. T. 177 ; 18 W. R. 49 ; 3 Asp. Mar. C, 0. S. 355). 196,227, 228 Nesbitt V. Lushington (4 T. R. 783) .... 216, 217 New Line S.S. Co. v. Bryson ( (1910) Sess. Cas. 409 ; 47 Sc. L. R. 346; (1910) 1 Sc. L. T. 150) 337 Newali V. Royal Exchange S.S. Co. (33 W. R. 868, 1 T. L. R. 178, 490) .... 22, 130, 134, 135, 239, 247, 266, 269, 270 Newberry v. Colvin (1 CI. & Fin. 283 ; 7 Bing. 190) . . 6, 7 Newman and Dale, In re ( (1903) 1 K. B. 263 ; 72 L. J. K. B. 110; 87 L.T. 614; 8 Com. Cas. 87; 9 Asp. M.C. 351) . 203, 213 V. Lamport ( (1896) ] Q. B. 20 ; 65 L. J. Q. B. 102 ; 73 L. T. 473 ; 8 Asp. M. C. 76 ; 1 Com. Cas. 161 ; 12 T. L. R. 18) 244 Newport, The (Swa. 335) 305, 332 Newsom v. Thornton (6 East, 17) . . . ,. .175 I TABLE OF CASES. liii PAGE Nicliolls I'. Le Feuvre (2 Bing. N. C. 81 ; 2 Scott, 146) . 185 Nichols V. Marsland (2 Ex. D. 1 ; 46 L. J. Ex. 174 ; 35 L. T. 725 ; 25 W. R. 173) 205, 214 V. Moore (1 Sid. 36) 202 Nicholson v. AVilliams (L. R. 6 Q. B. 632 ; 40 L. J. M. C. 159 ; 1 Asp. Mar. C. 67) 243 Nickoll V. Ashton ( (1901) 2 K. B. 126 ; 70 L. J. K. B. 600 ; 84 L. T. 804 ; 6 Com. Cas. 150 ; 9 Asp. M. C. 209) . 79, 96, 102, 369 Nielsen v. Neame (1 C. & E. 288) 130, 337 V. Wait (16 Q. B. D. 67 ; 55 L. J. Q. B. 87 ; 34 W. R. 33 ; 5 Asp. Mar. G. 553) . . 23,109,110,111,115,119, 243, 298, 300, 301 Niemann v. Moss (29 L. J. Q. B. 206 ; 6 Jur., N. S. 775) . 299, 300, 303 Nifa, The ( (1892) P. 411 ; 69L. T. 56; 41 W. R. 572) . 16, 20 24 27 128 Nitrate Producers Co. v. Wills (21 T. L. R. 699) . '. ' . ' 3 Nobel V. Jenkins ( (1896) 2 Q. B. 326 ; 65 L. J. Q. B. 638 ; 8 Asp. M. C. 181 ; 1 Com. Cas. 436 ; 12 T. L. R. 522) . 106, 216, 217, 255 V. Rea (2 Com. Cas. 293) 277 Nolisement v. Bunge ( (1917) 1 K. B. 160; 22 Com. Cas. 135) ... . . 66, 125, 297, 375 Norden 8.S. Co.>. Dempsey (1 C. P. D. 654 ; 45 L. J. C. P. 764) 22, 26, 113, 114, 120 Norfolk, &c., Co. v. Virginia, &c., Co. ( (1913) A. C. 52 ; 82 L. J. K. B. 389) 386 Norman v. Binnington (25 Q. B. D. 475 ; 59 L. J. Q. B. 490 ; 63 L. T. 108 ; 6 T. L. R. 418 ; 38 W. R. 702 ; 6 Asp. M. C. 528) .... 15, 210, 231, 233, 235, 239 North- West Rubber Co. and Huttenbach, In re ( (1908) 2 K. B. 907; 78L. J. K. B. 58) 21 North Star, The (Lush. 45 ; 29 L. J. Ad. 73) . . . 278 Noi-thfield S.S. Co. v. Compagnie des Gaz ( (1912) 1 K. B. 434 ; 81 L. J. K. B. 281 ; 17 Com. Cas. 74 ; 12 Asp. M. C. 87) 112,211 Northmoor S.S. Co. v. Harland & Wolff ( (1903) 2 Jr. Rep. 657) 20, 24, 128 Northumbria, The (Interest) (L. R. 3 A. & E. 6 ; 39 L. J. Adm. 3; 21 L. T. 681) 371,421 (Negligence clause) ( (1906) P. 292 ; 75 L. J. P. 101 ; 95L. T. 618; lOAsp. M. C. 328). . 56,57,59, 240 Norway, The (3 Moore, P. C, N. S. 245 ; 13 L. T. 50 ; B. & L. 226, 377, 404 ; 2 Asp. Mar. C, 0. S. 254). 16, 20, 23, 196, 221, 240, 277, 319, 328, 330, 331, 358 Notara v. Henderson (L. R. 7 Q. B. 225 ; 41 L. J. Q. B. 158 ; 26 L. T. 442 ; 20 W. R. 443 ; 3 Asp. Mar. C, 0. S. 419) . 199, 202, 205, 231, 244. 257, 258, 325 Nottebohn v. Richter (18 Q. B. D. 63 ; 56 L. J. Q. B. 33 ; 35 W. R. 300) 128, 141, 142, 208 Notting Hill, The (9 P. D. 105 ; 53 L. J. Ad. 56 ; 51 L. T. 66 ; 32 W. R. 764 ; 5 Asp. Mar. C. 241) . . . 371,372 Nova Scotia Co. v. Sutherland Co. (5 Com. Cas. 106) . . 343 ]iv TABLE OF CASES. PAGE Nugent V. Smith (1 C. P. D. 19, 423 ; 45 L. J. C. P. 697 ; 34 L. T. 827 ; 25 W. E. 117 ; 3 Asp. Mar. C. 198) . 198, 199, 200, 201, 205, 214 Nuova Raffaellina, The (L. R. 3 A. & E. 483 ; 41 L. J. Ad. 37 ; 24 L. T. 321 ; 1 Asp. Mar. C. 16) . . 40, 364, 379 Nyhohn, Ex parte. In re Child (43 L. J. Bk. 21 ; 29 L. T. 634 ; 22 W. R. 174 ; 2 Asp. Mar. C. 165) . 322, 356, 357 0. Oakville S.S. Co. v. Holmes (5 Com. Cas. 48 ; 48 W. R. 152 ; 16T. L. R. 54) 300 Obev, The (L. R. 1 A. & E. 102 ; 12 Jur., N. S. 817) . . 420 Ogden V. Graham (1 B. & S. 773 ; 31 L. J. Q. B. 26 ; 5L. T. 396 ; 10 W. R. 77) 104 Ogg V. Shuter (1 C. P. D. 47 ; 45 L. J. C. P. 44 ; 33 L. T. 492 ; 24 W. R. 100 ; 3 Asp. Mar. C. 77) . . 168, 169, 171 Ogle V. Atkinson (5 Taimt. 759 ; 1 Marsh. 323) . . .170 Oglesby v. Yglesias (E. B. & E. 930 ; 27 L. J. Q. B. 356). 34, 36, 147, 151 Ogmore v. Borner (84 L. T. 360 ; 6 Com. Cas. 104 ; 17 T. L. R. 328 ; 9 Asp. M. C. 189) . . .116, 117, 308 Ohlsen v. Drummond (4 Dougl. 356) .... 73, 75 Ohrloff V. Briscall (L. R. 1 P. C. 231 ; 4 Moore, P. C, X. S. 70 ; 2 Asp. Mar. C, 0. S. 390 ; 35 L- J. P. C. 63 ; 14 L. T. 873 ; 15 W. R. 202) 137, 141, 227 Okehampton. The { (1913) P. 173 ; 83 L. J. P. 5 ; 18 Com. Cas. 320; llOL. T. 130; 12 Asp. 428 ; 29T. L. R.428) . 50, 347 Oliver v. Colven (27 W. R. 882) 293. 294 • V. Fielden (4 Ex. 135 ; 18 L. J. Ex. 353) . 79, 80, 121 OHvier, The (Lush. 484 ; 31 L. J. Ad. 137 ; 6 L. T. 259 ; 1 Asp. Mar. C, 0. S. 214) 263 OlHve V. Booker (1 Ex. 416 ; 17 L. J. Ex. 21) . . 79, 80, 81 Omoa Coal and Iron Co. v. Huntley (2 C. P. D. 464 ; 37 L. T. 184 ; 25 W. R. 675 ; 3 Asp. Mar. C. 501) . . . 6 Onward, The (L. R. 4 A. & E. 38 ; 42 L. J. Ad. 61 ; 28 L. T. 204 ; 21 W. R. 601 ; 1 Asp. Mar. C. 540) . 246, 247, 248, 249, 263, 264, 265 Oostzee Stoomvart Maats v. Bell (11 Com. Cas. 214; 22 T. L. R. 643) 56, 62, 337 Oppenheim v. Eraser (34 L. T. 524 ; 3 Asp. Mar. C. 146) . 73, 75, 79 V. Russell (3 B. & P. 42) 177 Oquendo, The (38 L. T. 151 ; 3 Asp. Mar. C. 558) . 205, 222, 223 Orchis, The (15 P. D. 38 ; 59 L. J. Ad. 31 ; 62 L. T. 407 ; 38 W. R. 472 ; 6 Asp. M. C. 501) 43 Orient Co. v. Brekke ( (1913) 1 K. B. 531 ; 82 L. J. K. B. 427 ; 18 Com. Cas. 101 ; 108 L. T. 507) . . . .166 Oriental, The (Wallace v. Fielden) (7 Moore, P. C. 398 ; 3 W. Rob. 243) 263, 265 S.S. Co. V. Trior ( (1893) 2 Q. B. 518 : 63 L. J. Q. B. 128 ; 69 L. T. 577 ; 42 W. R. 89 ; 7 Asp. M. C. 377). 66, 322, 325, 375 I TABLE OF OASES. Iv PAGE Orpheus Co. v. Bovill (114 L. T. 750) 302 Osgood V. Groning (2 Camp. 466) 332 Ouston V. Hebden (1 Wils. 101) 42 P. Packwood v. Union Castle Co. (20 T. L. R. 59) . .210, 233 Paice V. Walker (L. R. 5 Ex. 173 ; 39 L. J. Ex. 109 ; 22 L. T. 547 ; 18 W. R. 789) 34 Palace S.S. Co. v. Gans Line ( (1916) 1 K. B. 138 ; 85 L. J. K. B. 415 ; 21 Com. Cas. 270 ; 32 T. L. R. 207) . . 104 Palmer D. Naylor (10 Exch. 382) 227 V. Zarifi (37 L. T. 790 ; 3 Asp. Mar. C. 540) . . 315 Panama, The (L. R. 3 P. C. 199 ; 39 L. J. Ad. 37 ; 23 L. T. 12 ; 18 W. R. 1011 ; 3 Asp. Mar. C, 0. S. 416) . . 263 Pandorf v. Hamilton (17 Q. B. D. 670 ; 6 Asp. Mar. C. 212) . 198, 220 Panmure, Ex parte (24 Ch. D. 367 ; 53 L. J. Ch. 57 ; 32 W. R. 236) 34 Papayanni v. Grampian S.S. Co. (1 Com. Cas. 448 ; 12 T. L. R. 540) 267, 271 Parana, The (2 P. D. 118 ; 36 L. T. 388 ; 25 W. R. 596 ; 3 Asp. Mar. C. 220, 399) 371, 372, 373 Park V. Duncan (25 Sess. Cas. 4th Ser. 528 ; 35 Sc. L. R. 378) . 67, 86 Parker t'. James (4 Camp. 112) ...... 365 V. Potts (3Dow. H. L. C. 23; 15 R. R. 1) . . 86 V. S. E. R. (2 C. P. D. 416 ; 46 L. J. C. P. 768 ; 36 L. T. 540 ; 25 W. R. 564) 8 V. Winlow (7 E. & B. 942 ; 17 L. J. Q. B. 49 ; 4 Jur., N. S. 84) 35, 106, 107, 110, 113, 118 Parsons v. New Zealand Co. ( (1901) 1 K. B. 548 ; 78 L. J. K. B. 404 ; 84 L. T. 218 ; 6 Com. Cas. 41 ; 9 Asp. M. C. 170) 68, 143, 146, 209, 405 Patria, The (L. R. 3 A. & E. 436 ; 41 L. J. Ad. 23 ; 24 L. T. 849 ; 1 Asp. Mar. C. 71) . . . . 53, 54, 55, 194,222, 255, 256, 327, 331 Patten v. Thompson (5 M. & S. 350) . . . 175, 178, 191 Paynter v. James (L. R. 2 C. P. 348 ; 18 L. T. 449 ; 17 W. R. 768 ; 3 Asp. Mar. C, 0. S. 76) 339 Pearlmoor, The ( (1904) P. 286 ; 73 L. J. P. 50 ; 90 L. T. 319 ; 20 T. L. R. 199 ; 9 Asp. M. C. 540). 227, 228, 231, 240 Pearson v. Goschen (17 C. B., N. S. 353; 33 L. J. C. P. 265; lOL. T. 758; 12W. R. 1116; 2 Asp. Mar. C, 0. S. 63) 27, 357, 358, 374, 375 Pease v. Gloahec (L. R. 1 P. C. 219 ; 35 L. J. P. C. 66 ; 15 L. T. 6 ; 15 W. R. 201 ; 2 Asp. Mar. C, 0. S. 394) . 178, 191 Pederson v. Lotinga (28 L. T., 0. S. 267 ; 5 W. R. 290) . 148, 152, 361 Peek V. Larsen (L. R. 12 Eq. 378 ; 40 L. J. Ch. 763 ; 25 L. T. 580 ; 19 W. R. 1045 ; 1 Asp. Mar. C. 163) . . 51, 53, 358 V. North Staffs. Ry. Co. (10 H. L. C. 473 ; 32 L. J. Q. B. 241 ; 8 L. T. 768 ; 11 W. R. 1023) . . • .237 Peel f. Price (4 Camp. 243) 8,74 Peninsular and Oriental Co. v. Leetham (32 T. L. R. 153) . 285, 288, 404 Ivi TABLE OF CASES. Peninsular and Oriental Co. v. Shand (3 Moore, P. C., N 272 ; 12 L. T. 808 ; 2 Asp. Mar. C, 0. S. 244) Pentland, The (13 T. L. E. 430) . Perez v. Alsop (3 F. & F. 188) .... Peter der Grosse, The (1 P. D. 414 ; 34 L. T. 749 ; I Mar. C. 195) Petersen v. Dunn (1 Com. Cas. 8). . . . V. Freebody ( (1895) 2 Q. B. 294 ; 65 L. J. 12 ; 44 W. K. 5 ; 8 Asp. M. C. 55 ; 11 T. L. K. 459) Petrocochino v. Bott (L. E. 9 C. P. 355 ; 43 L. J. C. P 30 L. T. 840 ; 2 Asp. Mar. C, N. S. 310) . S. PAGE 18 84 357 Phelps V. Comber (29 Ch. D. 813 ; 54 L. J. Ch. L. T. 873 ; 33 W. E. 829 ; 5 Asp. Mar. C. 428) . Asp. 144, 146 . 305 Q. B. 23, 127 214 ; 21, 285, 288, 394, 395, 397 1017 ; 52 . 173, 188, 360 Phelps, James & Co. v. Hill ( (1891) 1 Q. B. 605 ; 60 L. J. Q. B. 382 ; 64 L. T. 610 ; 7 T. L. E. 319 ; 7 Asp. M. C. 42) 247, 248, 250, 255, 257 PhiUips f. Barber (5 B. & Aid. 161) 221 V. Clark (2 C. B., N. S. 156 ; 26 L. J. C. P. 168 ; 3 Jur., N. S. 467) 227 V. Edwards (3 H. &N. 813; 28 L. J. Ex. 52) . . 8 t'. Eodie (15 East, 547) .... 155,359,374 Phosphate Co. t\ Eankin (21 Com. Cas. 248 ; 115L. T. 211). 210, 211, 216 Phyn V. Eoyal Exchange Co. (7 T. E. 505) . . . .231 Pickering v. Barkley (Styles, 132) . . . . 221. 226 Pickernell v. Jauberry (3F. &F. 217) . . . 45,46,64,67 Pickup V. Thames and Mersey Co. (3 Q. B. D. 594 ; 47 L. J. Q. B. 749 ; 39 L. T. 341 ; 4 Asp. M. C. 43) . . . 87 Pieve Superiore, The (L. E. 5 P. C. 482 ; 43 L. J. Ad. 20 ; 30 L. T. 887 ; 22 W. E. 777 ; 2 Asp. Mar. C. 319) . 194, 195 Pike V. Ongley (18 Q. B. D. 708 ; 56 L. J. Q. B. 373 ; 35 W. E. 534) 29, 30, 32, 34, 35, 37 Pink V. Fleming (25 Q. B. D. 396 ; 59 L. J. Q. B. 559 ; 63 L. T. 413 ; 6 T. L. E. 432 ; 6 Asp. M. C. 554) . 206. 219, 223 Pipon t;. Cope (1 Camp. 434) 230 Pirie v. Middle Dock Co. (44 L. T. 426 ; 4 Asp. Mar. C 388) 267. 273, 274, 278 Place V. Potts (5 H. L. C. 383 ; 24 L. J. Ex. 225) . . 346 Plummer v. Wildman (3 M. vfc S. 482) 275 Pole V. Cetcovitch (9 C. B., N. S. 430 ; 30 L. J. C. P. 102 3 L. T. 438 ; 9 W. E. 279 ; 1 Asp. Mar. C, 0. S. 2). . 255 Polenghi v. Dried Milk Co. (92 L. T. 64 ; 10 Com. Cas. 42 53 W. E. 318 : 21 T. L. E. 118) .... Pollitzer v. S.S. Cascapedia (2 T. L. E. 413). Pontida, The (9 P. D. 177 ; 51 L. T. 849 ; 5 Asp. Mar. C. 330) 167 394 246, 265 181 393 Pooley V. a. E. Ey. Co. (34 L. T. 537) Port of London Authority v. Cairn Line (18 Com. Cas. 72) Porter v. Freudenberg ( ("1915) 1 K. B. 857). . . 11, 12 Porteus V. Watnev (3 Q. B. D. 534 : 47 L. J. Q. B. 643 ; 39 L. T. 195 ; 27 W. E. 30 ; 4 Asp. Mar. C. 34) . 56, 58, 304. 314. 316, 317 Portsmouth, The (see Thomas v. Portsea S.S. Co.). I TABLE OF CASES. Ivii PAGE Postlethwaite v. Freeland (5 App. Cas. 599 ; 49 L. J. Ex. 630 ; 42 L. T. 845 ; 28 W. R. 833 ; 4 Asp. Mar. C. 302) . 22, 117, 123, 124, 129, 130, 283, 304, 307, 308, 309, 310, 313 Pothonier v. De Mattos (E. B. & E. 461 ; 27 L. J. Q. B. 260 ; 4 Jiir., N. S. 1034) 350 Potter V. Burrell ( (1897) 1 Q. B. 97 ; 66 L. J. Q. B. 63 ; 75 L. T. 491 ; 45 W. R. 145 ; 8 Asp. M. C. 200 ; 13 T. L. R. 26) 210, 252, 304 V. New Zealand Shipping Co. (1 Com. Cas. 114 ; 11 T. L. R. 502) 77, 130, 133 Powell V. Hyde (5 E. & B. 607 ; 25 L. J. Q. B. 65 ; 2 Jur., N. S. 87) 218 Power «J. Wliitmore (4 M. & S. 141) 275 Price V. Livingstone (9 Q. B. D. 679 ; 53 L. J. Q. B. 118 ; 47 L. T. 629 ; 5 Asp. Mar. C. 13) 243, 244 V. Noble (4 Taunt. 123) 272 V. Union Lighterage Co. ( (1904) 1 K. B. 412 ; 72 L. J. K. B. 374 ; 88 L. T. 428 ; 9 Com. Cas. 120 ; 9 Asp. M. C. 398) 201, 209, 231 Priestly v. Fernie (3 H. & C. 977 ; 34 L. J. Ex. 172 ; 13 L. T. 208 ; 13 W. R. 1089 ; 2 Asp. Mar. C, 0. S. 281) . 242 Primula. The ( (1894) P. 128 ; 63 L. J. Ad. 118 ; 70 L 253 ; 42 W. R. 527 ; 7 Asp. M. C. 429) . Princess, The (70 L. T. 388 ; 7 Asp. M. C. 432) Pringle v. Dixon (2 Com. Cas. 38) V. MoUett (6 M. & W. 80) . 321 66, 375 . 38 125 Prinz Heinrich, The ( (1897) 14 T. L. R. 48) . . . 226 ( (1888) 13 P. D. 31 ; 57 L. J. Ad. 17 ; 58L. T. 593; 36 W. R. 511 ; 6 Asp. M. C. 273) . . 280 Produce Brokers Co. v. Furness Withy (17 Com. Cas. 165 ; 106L. T. 636; 12 Asp. M. C. 188; 28T. L. R. 329) . 294 V. OlympiaCo. ( (1916) 1 A. C. 314 ; 85 L. J. K. B. 160 ; 21 Com. Cas. 320 ; 114 L. T. 94 ; 32 T. L. R. 115) 20, 22, 25 Progreso, The (50 Fed. Rep. 835) 103 Prosperino Palasso, The (29 L. T. 622 ; 2 Asp. Mar. C, N. S. 158) 145 Pugsley V. Ropkins ((1892) 2 Q. B. 184; 61 L. J. Q. B. 645 ; 67 L. T. 369 ; 40 W. R. 596 ; 8 T. L. R. 622) . . 380 Pust V. Dowie (5 B. & S. 20 ; 34 L. J. Q. B. 127 ; 8 L. T. 244 ; 13 W. R. 459 ; 1 Asp. Mar. C, 0. S. 333) . 23, 73, 75, 78, 129, 130, 338 Pyman v. Burt (1 C. & E. 207) 61, 62, 68 V. Dreyfus (24 Q. B. D. 152 ; 59 L. J. Q. B. 13 ; 61 L. T. 724 ; 6 Asp. M. C. 444) 114 Hull and Barnsley Co. ( (1915) 2 K. B. 729 ; 84 L. J. K. B. 1235 ; 20 Com. Cas. 259 ; 112 L. T. 1103 31 T. L. R. 243) 233 Pyrennee, The (B. & L. 189) 280 Q. Quarman v. Burnett (9 L. J. Ex. 308 ; 6 M. & W. 499 ; 4 Jur. 969) 140 Queensland Nat. Bank v. P. & 0. Co. ( (1898) 1 Q. B. 567 ; 67 L. J. Q. B. 402 ; 78 L. T. 67 ; 3 Com. Cas. 51 ; 14 T. L. R. 166 ; 8 Asp. M. C. 338) . . .83, 85, 88, 227 Iviii TABLE OF CASES. PAGE Quilpue V. Brown ( (1904) 2 K. B. 264 ; 73 L. J. K. B. 596 ; 90 L. T. 765 ; 9 Com. Cas. 264 ; 9 Asp. M. C. 596) . 116, 307, 308 19 T. L. R. 590 ; 82, 83, 88, 90, 1 Com. Cas. 66, 299, E. Rae V. Hackett (12 M. & W. 724 ; 13 L. J. Ex. 216) . 75, Raeburn v. Buiness (1 Com. Cas. 22 ; 11 T. L. R. 399) . Raisbv, The (10 P. D. 114 ; 54 L. J. Ad. 65 ; 53 L. T. 56 : 33 W. R. 938 ; 5 Asp. Mar. C. 473) .... 277, Ralli V. Paddington S.S. Co. (5 Com. Cas. 124) . 51, 53, 321, Ramdas I'. Amerchand (L. R. 43 Ind. App. 164) . Ramlall v. Lyncli (12 East, 179 ; 2 Camp. 352) 113, 305, Rathbone r. Mclver ( (1903) 2 K. B. 378 ; 72 L. J. K. B. 703 ; 89 L. T. 370 ; 8 Com. Cas. 303 9 Asp. M. C. 467) Rayner v. Condor Co. ( (1895) 2 Q. B. 289 80 ; 8 Asp. M. C. 43) V. Godmond (5 B. & Aid. 225) Ravnes v. Ballantyne (14 T. L. R. 399) .... Red '■ R." S.S. Co. v. Allatini (103 L. T. 86 ; 14 Com. Cas. 82, 303 ; 15 Com. Cas. 290 ; 26 T. L. R. 261": 11 Asp. M. C. 434). . . 56, 59, 294, 328, 336. 358, 364, 375, Red Sea, The ( (1896) P. 20 ; 65 L. J. Ad. 9 ; 70 L. T. 253 ; 44 W. R. 306 ; 8 Asp. M. C. 102 ; 12 T. L. R. 40) . Reddall v. Union Castle Co. (84 L. J. K. B. 360 ; 20 Com. Cas. 86; 112 L. T. 910) 186, Rederiaktieselskabet Superior v. Dewar and Webb ( (1909) 2 K. B. 998 ; 78 L. J. K. B. 1100 ; 101 L. T. 371 ; 14 Com. Cas. 320; 11 Asp. M. C. 295 ; 25 T. L. R. 821) . 152, Redman v. Wilson (14 M. & W. 476 ; 14 L. J. Ex. 333 ; 9 Jur. 714) Reg. V. Citv of London Court (12 Q. B. D. 115 ; 53 L. J. Q. B. 28 ; 51 L. T. 197 ; 32 W. R. 291 ; 5 Asp. Mar. C. 283) V. Judge of CitT of London Court ( (1892) 1 Q. B. 273 ; 61 L. J. Q. B. 337 • 66 L. T. 135 ; 40 W. R. 215 ; 8 T. L. R. 191 ; 7 Asp. Mar. C. 140) V. Sadlers' Co. (10 H. L. C. 404 ; 2 F. & F. 294) . V. Southend Countv Court (13 Q. B. D. 142 ; 53 L. J. Q. B. 423 ; 32 W. R. 754) .... 379, 406, Reid V. Hoskins (6 E. & B. 953 ; 26 L. J. Q. B. 5 ; 3 Jur., N. S. 238) 11, 128, Reindeer S.S. Co. v. Forslind (13 Com. Cas. 214 ; 24 T. L. R. 529) Reischer v. Borwick ( (1894) 2 Q. B. 548) . Renee Hyaffil, The (32 T. L. R. 660) . Renpor, The (8 P. D. 115 : 52 L. J. Ad. 49 ; 48 L. T 31 W. R. 640 ; 5 Asp. Mar. C. 98) . . . . 245, Repetto V. Millar's, &c., Co. ( (1901) 2 K. B. 306 ; 70 L. J. K. B. 561 ; 84 L. T. 836 ; 6 Com. Cas. 129 ; 9 Asp. M. C. 215) 42, 242. Repubhc of Bolivia i'. IndemnitvCo. ( (1909) 1 K. B. 785 ; 78 L. J. K. B. 596 ; 100 L. T. 503 ; 14 Com. Cas. 156 ; 25 T. L. R. 254 ; 11 A.sp. M. C. 218) 105 38 280 358 181 306 210 375 222 203 418 321 187 360, 361 205 407 380 176 407 129 343 206 236 280 345 226 TABLE OF CASE 8. lix Restitution Co. v. Pirie (61 L. T., N. S. 330 6 Asp. M. C. 428) Reynolds v. Jex (7 B. & S. 86 ; 34 L. J. Q. B 968) V. Toralinson ( (1896) 1 Q. B. 586 496 ; 74 L. T. 591 ; 8 Asp. M. C. 150) PAGE 6 T. L. R. 50 ; . 142, 144, 297 251 ; 13 W. R. 53, 55, 63, 64, 67 65 L. J. Q. B. 23, 104, 108, 111, 115, 119 {see Forest Co. v. Iberian Rhymney Co. v. Iberian Ore Co Co.). Rialto, The ( (1891) P. 175 ; 60 L. J. Ad. 71 ; 64 L. T. 540 7 Asp. M. C. 35) Rich V. kneeland (Cro.'jac. 330 ;' Hob. 17) . Richardson v. Goss (3 B. & P. 119) ■ V. Rowntree ( (1894) A. C. 217 ; 63 L. J. Q. B 283 ; 70 L. T. 817 ; 7 Asp. M. C. 482 ; 10 T. L. R. 335) and Samuels, In re ( (1898) 1 Q. B. 261 ; 66 L. J. Q. B. 868 ; 77 L. T. 479 ; 3 Com. Cas. 79 ; 8 Asp. M. C. 330 ; 14 T. L. R. 5) . . . . 125, 208 281 202 177 9 211, 225 Riggall V. G. C. Ry. Co. (101 L. T. 392 ; 14 Com. Cas. 259 ; 11 Asp. M. C. 303 ; 53 S. J. 716 ; 25 T. L. R. 754) . 238, 239 Ripley v. M'Clure (4 Ex. 345 ; 18 L. J. Ex. 419) . . .284 ■ — t;. Scaife (5B. &C. 167; 7D. & R. 818) . Ritchie V. Atkinson (10 East, 295) 331 Roberts v. Brett (11 H. L. C. 337 ; 34 L. J. C. P. 241 ; 12 L. T. 286 ; 13 W. R. 587 ; 2 Asp. Mar. C, 0. S. 226) . 102 Amazon Tug Co. (7 Q. B. D. 598 ; 51 L. J 46 L. T. 146 ; 30 W. R. 308 ; 4 Asp. Mar. C Robertson v. Q. B. 68; 496) . V. Ewer (1 T. R. 127). - V. French (4 East, 130) - V. Jackson (2 C. B. 412 15 L. J. C. 83 230 15 P. 28 ; 10 26, 130, 131 40 Jur. 98) V. Wait (8 Ex. 299 ; 22 L. J. Ex. 209) Robey v. OUier (L. R. 7 Ch. 695 ; 27 L. T. 362 ; 20 W. R. 956 ; 1 Asp. Mar. C. 413) 360 Robinson v. British Aluminium Co. ( (1915) not reported) . 298 V. Davison (L. R. 6 Exch. 269) .... 96 V. Knights (L. R. 8 C. P. 465 ; 42 L. J. C. P. 211 ; 28 L. T. 820 ; 21 W. R. 683 ; 2 Asp. Mar. C. 19) . 328, 329 V. Macdonnell (5 M. & S. 228 ; 2 B. & A. 134) . 349 . V. Mollett (L. R. 7 H. L. 802 ; 44 L. J. C. P. 362 ; 33 L. T. 544) 20, 25 V. Price (2 Q. B. D. 295 ; L. T. 354 ; 25 W. R. 469 ; 3 Asp 46 L. J. Mar. C. B. 551 407) . 271,272, 273 36 271, Rockett V. Chippingdale ( (1891) 2 Q. B. 293 ; 60 L. J. Q. B 782 ; 64 L. T. 641 ; 7 T. L. R. 515) .... Rodenacker v. May (6 Com. Cas. 37) . Rodger v. Comptoir d'Escompte (L. R. 2 P. L. J. P. C. 30 ; 21 L. T. 33 ; 17 W. R. 469 ; C, 0. S. 271) Rodgers v. Forrester (2 Camp. 483) Rodney, The ( (1900) P. 112 ; 69 L. J. P. 29 ; 16T. L. R. 183; 9 Asp. M. C. 39) . 378 . 311 C. 393 ; 38 3 Asp. Mar. . 179, 185, 194 310, 312 82 L. T. 27 ; . 235, 236, 430 Ix TABLE OF CASES. Rodocanachi v. 255; 31 L. T PAGE Elliott (L. R. 9 C. P. 518 ; 43 L. J. C. P. 239 ; 2 Asp. Mar. C. 319) . . . 216,217 V. Milbimi (18 Q. B. D. 67 ; 56 L. J. Q. B. 202 ; 56 L. T. 594 ; 35 W. R. 241 ; 6 Asp. Mar. C. 100) . 2, 8, 9, 45, 47, 48, 49, 64, 204, 213, 322, 324, 347, 358, 370, 372 Roebuck, The (31 L. T. 274 ; 2 Asp. Mar. C. 387) . . 255 Roelandts v. Harrison (9 Ex. 444 ; 23 L. J. Ex. 169) . 243, 244 Rogers v. Hunter (M. & M. 63 ; 2 C. & P. 601) . . . 56 Rohlv. Parr (1 Esp. 444) 221 Rona, The (51 L. T. 28 ; 5 Asp. Mar. C. 259) . . 85, 86, 89 (7 P. D. 247) 195, 406 Ronneberg v. Falkland I. Co. (17 C. B., N. S. 1 ; 34 L. J. C. P. 34 ; 10 L. T. 530 ; 12 W. R. 914 ; 2 Asp. Mar. C, 0. S. 30) 305 Rookwood, The (10 T. L. R. 314) 125 Roper V. Johnson (L. R. 8 C. P. 167 ; 42 L. J. C. P. 65 ; 28 L. T. 296 ; 21 W. R. 384) 369 Ropner v. Ronuebeck (84 L. J. K. B. 392 ; 20 Com. Cas. 95; 112 L. T. 723) 92, 225 V. Stoate Hosegood & Co. (92 L. T. 328 ; 10 Com. Cas. 73 ; 21 T. L. R. 245 ; 10 Asp. M. C. 32) . 21, 22, 309, 400 Rose V. Bank of Australasia ( (1894) A. C. 687 ; 63 L. J. Q. B. 504 ; 70 L. T. 422 ; 7 Asp. M. C. 445) . . 257, 274 Rosevear China Clay Co.. Ex parte (11 Ch. D. 560 ; 48 L. J. Bk. 100 ; 40 L. T. 730 : 27 W. R. 591 ; 4 Asp. Mar. C. 144) 5, 183, 185 Rosin, &c., Co. v. Jacobs (15 Com. Cas. Ill ; 102 L. T. 81 ; 11 Asp. M. C. 363 ; 54 S. J. 268 ; 26 T. L. R. 259) . 201, 231 Ross V. Hunter (4 T. R. 33) 230 Rotch V. Edie (6 T. R. 413) 216 Roth V. Tayssen (1 Com. Cas. 240, 306) . . . .369 Rotherfield S.S. Co. v. Tweedy (2 Com. Cas. 84) . . 3, 328 Roiith V. Macmillan (2 H. & C. 750 ; 33 L. J. Ex. 38 ; 9 L. T. 541 : 12 W. R. 381 ; 1 Asp. Mar. C, O. S. 402) . 76 Rowe V. Pickford (8 Taunt. 83 ; 1 Moore. 526) . . 183, 185 Rowland S.S. Co. v. Wilson (2 Com. Cas. 198 ; 13 T. L. R. 459) 27, 300 Rowson V. Atlantic Transport Co. ((1903) 2 K. B. 666; 72 L. J. K. B. 811 ; 89 L. T. 204 ; 9 Com. Cas. 33 ; 19 T. L. R. 668 ; 9 Asp. M. C. 458) .... 236, 430 Royal Exchange Co. v. Dixon (12 App. Cas. 11 : 56 L. J. • Q. B. 266 ; 56 L. T. 206 ; 35 W. R. 461 ; 6 Asp. Mar. C. 92) . . . . 22, 130, 134, 135, 213, 239, 266, 270 V. Sjoforsakrings Vega ( (1902) 2 K. B. 384 ; 7 Cora. Cas. 205 ; 9 Asp. M. C. 329) * . . .16 Royal Mail Co. v. Bank of Rio (19 Q. B. D. 362 ; 36 W. R. 105; 57 L. J. Q. B. 31) 267,274 t'. Macintvre (16Com. Cas. 231) . . .139 and River Plate Co., In re ( (1910) 1 K. B. 600 ; 79 L. J. K. B. 673 ; 102 L. T. 333 ; 11 Asp. M. C. 372 ; 15 Com. Cas. 124) 302 Ruck V. Hatfield (5 B. & Aid. 632) .... 170, 182 Runciman v. Smvth (20 T. L. R. 625) 57 TABLE OF CASES. Ixi PAGE Runquist v. Ditchell (2 Camp. 556 n. ; 3 Esp. 64) . . 8 Rusden v. Pope (L. R. 3 Ex. 269 ; 37 L. J. Ex. 137 ; 18 L. T. 651 ; 16 W. R. 1122 ; 3 Asp. Mar. C, 0. S. 91) . 350 RusseU V. Griffith (2 F. & F. 118) 127 V. Niemaun (17 C. B., N. S. 163 ; 34 L. J. C. P. 19 ; 10 L. T. 786 ; 13 W. R. 93 ; 2 Asp. Mar. C. 0. S. 72). 56, 57, 215 Russian S. Nav. Co. v. De Silva (13 C. B., N. S. 610) . 21, 23, 319 Ryan v. Ridley (8 Com. Cas. 105 ; 19 T. L. R. 45) . . 167 S. Sack V. Ford (13 C. B., N. S. 90 ; 32 L. J. C. P. 12 ; 9 Jur., N. S. 650) 139, 140 Sailing Ship Garston v. Hickie {see Garston S. Co., &c.). Lyderhorn v. Duncan ( (1909) 2 K. B. 929 ; 101 L. T. 295 ; 14 Com. Cas. 293 ; 79 L. J. K. B. 105 ; 11 Asp. M. C. 291 ; 25 T. L. R. 739) . . 27, 121, 122, 135 St. Cloud, The (B. & L. 4 ; 8 L. T., N. S. 54 ; 1 Asp. Mar. C, 0. S. 309) ... 50, 137, 195, 196, 197, 372 St. Enoch Co. v. Phosphate Co. ( (1916) 2 K. B. 624; 21 Com. Cas. 192) 106, 256, 335 St. Helena, The ( (1916) 2 A. C. 625 ; 115 L. T. 465 ; 32 T. L. R. 726) 335 Salacia, The (32 L. J. Ad. 43 ; 8 L. T. 91 ; 11 W. R. 189 ; 1 Asp. Mar. C, 0. S. 322) 323, 351 Salomons t7. Nissen (2 T. R. 674) 179 Saltburn, The ( (1892)P. 333; 69L. T. 88). . . .378 Salvesen v. Guy (13 Sc. Sess. Cas. 4th Ser. 85) . . . 159 V. Rederi Nordstjernan ( (1905) App. Cas. 302 ; 74 L. J. P. C. 96 ; 92 L. T. 575) 34 Samuel v. West Hartlepool Co. (11 Com. Cas. 115 ; 12 Com. Cas. 203) 49, 50, 52, 347 San Roman, The (L. R. 5 P. C. 301 ; 42 L. J. Ad. 46 ; 28 L. T. 381 ; 21 W. R. 393 ; 1 Asp. Mar. C. 347, 603) . 19, 45, 46, 255, 256 Sandeman v. Scurr (L. R. 2 Q. B. 86 ; 36 L. J. Q. B. 58 ; 15 L. T. 608 ; 15 W. R. 277 ; 2 Asp. Mar. C, 0. S. 446) . 4, 5, 7, 49, 51, 136. 137, 138, 140 V. Tyzack & Branfoot Co. ((1913) A. C. 680; (1913) Sess. Cas. H. L. 84 ; 83 L. J. P. C. 23 ; 109 L. T. 580 ; 29 T. L. R. 694) 288 Sanders v. Jenkins ( (1897) 1 Q. B. 93 ; 66 L. J. Q. B. 40 ; 2 Com. Cas. 12) 114, 118 V. Maclean (11 Q. B. D. 327 ; 52 L. J. Q. B. 481 ; 49 L. T. 462; 31 W. R. 698; 5 Asp. Mar. C. 160) . 170,173 V. VanzeUer (4 Q. B. 260 ; 11 L. J. Q. B. 241) . 315, 347, 352, 353, 354 Sanguinetti v. Pacific Steam Co. (2 Q. B. D. 238 ; 46 L. J. Q. B. 105 ; 35 L. T. 658 ; 25 W. R. 150 ; 3 Asp. Mar. C. 300) .... 135, 147, 148, 151, 155, 156, 159, 297 Santa Anna, The (32 L. J. Ad. 198) 196 Sargant v. East Asiatic Co. (21 Com. Cas. 344 ; 32 T. L. R. 119) 253, 372, 373 Ixii TABLE OF CASES. PAGE Sargent v. Morris (3 B. & Aid. 277) 242 Sarpedon, Cargo ex (3 P. D. 28 374 ; 3 Asp. Mar. C. 509) . Sassoon v. Western Assce. Co. ( i P. C. 231 ; 17 Com. Cas. 274 M. C. 206). Satanita, The ( (1897) A. C. 59 ; 337 ; 8 Asp. M. C. 190) 37 L. T. 505 ; 27 W. E. 280 1912) A. C. 561 ; 81 L. J. 106 L. T. 929 ; 12 Asp. . 220, 222 66 L. J. P. 1 ; 75 L. T. 229, 420 Saunders V. Drew (3 B. & Ad. 445) 322 Saville v. Campion (2 B. & Aid. 503) 6 Savona, The ( (1900) P. 2.52 ; 69 L. J. P. 95 ; 49 W. R. 303) 93, 257, 260 Saxon S.S. Co. v. Union S.S. Co. (83 L. T. 106 ; 69 L. J. Q. B. 907 ; 5 Com. Cas. 381 ; 16 T. L. R. 527 ; 9 Asp. M. C. 114) 297. 302, 363, 365 Scaife v. Tobin (3 B. & Ad. 523) 279 Scaramanga v. English (1 Com. Cas. 99) . . . 366, 367 V. Marquand (53 L. T. 810 ; 5 Asp. Mar. C. 506) 280 Stamp (5 C. P. D. 295 ; 49 L. J. C. P. 674 42 L. T. 840 ; 28 W. R. 691 ; 4 Asp. Mar. C. 295) 82, 250, 253 Schilizzi v. Derry (4 E. & B. 873 ; 24 L. J. Q. B. 193 ; 1 Jiir., N. S. 795) 106, 107 Schloss y. Heriot (14C. B., N. S. 59) 267 Schmaltz v. Avery (16 Q. B. 655 ; 20 L. J. Q. B. 228 ; 15 Jur. 291) 30, 31, 32, 34, 36 Schmidt v. Royal Mail S.S. Co. (45 L. J. Q. B. 646 ; 4 Asp. Mar. C. 217 n.) . . 207. 229, 239, 241, 268, 270, 271, 421 Schotsmaus v. L. & Y. R. 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) 182, 183 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. 577) .... 274, 275 V. McKellar (7 E. & B. 704 ; 26 L. J. Q. B. 281 ; 3 Jur., N. S. 1320) 53 Schwann, The ( (1909) App. Cas. 450 ; 78 L. J. P. 112 ; 101 L. T. 289 ; 53 S. J. 696 ; 11 Asp. M. C. 286 ; 47 Sc. L. R. 558 ; 25 T. L. R. 742) ....... 84 Scotson V. Pegg (6 H. & N. 295 ; 30 L. J. Ex. 225 ; 3 L. T. 753 ; 9 W. R. 280) 315 Scott V. Foley Aikman (5 Com. Cas. 53 ; 16 T. L. R. 55) . 85, 363 ^^ Pettit (3 B. & P. 469) 183 Scottish Navigation Co. v. Souter ( (1917) 1 K. B. 222 ; 22 Com. Cas. 154 ; 33 T. L. R. 70) . . . 92, 95, 96, 97 Scout, The (L. R. 3 A. & E. 512 ; 41 L. J. Ad. 42 ; 26 L. T. 371 ; 20 W. R. 617 ; 1 Asp. Mar. C. 258) . . .281 Scovell V. Bevan (19 Q. B. D. 428 ; 56 L. J. Q. B. 604 ; 36 W. R. 301) 379, 406 Scrutton v. Childs (36 L. T. 212 ; 3 Asp. Mar. C. 373) . 26, 27 Sea Ins. Co. v. Carr ( (1901) 1 K. B. 7 ; 69 L. J. Q. B. 954 ; 83 L. T. 517; 6 Com. Cas. 11 ; 9 Asp. M. C. 138). . . 384 Sea S.S. Co. v. Price Walker (8 Com. Cas. 292 ; 19 T. L. R. 519) 21, 23, 307, 309, 400 TABLE OF CASES. Ixiii PAGE Searle v. Lund (90 L. T. 529 ; 20 T. L. R. 390 ; 9 Asp. M. C. 557) ......... 203 213 Seeger v. Dutliie (8 C. B., N. S. 45 ; 30 L." J. C. P. 65 ; 9 ' W. R. 166 ; 1 Asp. Mar. C, 0. S. 3). . . 75, 79, 345 Self V. L. B. & S. C. R. {42 L. T. 173) 71 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. 48) 56, 59, 314 Seville Co. ^;. Colvils (15 Sc. Sess. Cas. 4tli Ser. 616) . 82,85 Sewell V. Burdiek (10 App. C. 74 ; 54 L. J. Q. B. 156 ; 52 L. T. 445 ; 33 W. R. 461 ; 5 Asp. Mar. C. 376) . 8, 45, 161, 163, 164, 165, 178, 189, 190, 192, 193, 195, 197, 354 Shadforth V. Cory (32 L. J. Q. B. 379; 8 L. T. 736; 11 W. R. 918 ; 1 Asp. Mar. C, 0. S. 363) . . . .120 V. Higgin (3 Camp. 385) 79 11, 12 5 Com. Cas. 21 ; 3, 114, 297 Ex. 278) . 347, 348 32 80 L. T. 283). 237 . 131 . 123, 125 352 ShafiEenius v. Goldberg ( (1916) 1 K. B. 284) Shamrock S.S. Co. ?'. Story (81 L. T. 413 16 T. L. R. 6 ; 8 Asp. M. C. 590) . Shand v. Sanderson (4 H. & N. 381 ; 28 L. J Sharman v. Brandt (L. R. 6 Q. B. 720 ; 40 L. J. Q. B. 312 19 W. R. 956) Sharp V. Gibbs (1 H. & N. 801) . Shaw V. G. W. Ry. Co. ( (1894) 1 Q. B. 373 , Savill V. Aitken (1 C. & E. 195) . Sheila, The ( (1909) P. 31 n.) Shepard v. De Bernales (13 East, 565) . Shepherd v. Harrison (L. R. 5 H. L. 116; 40 L. J. Q. B. 148 ; 24 L. T. 857 ; 20 W. R. 1 ; 1 Asp. Mar. C. 66) . 165, 168, 169, 171 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. 544) . 267, 272, 273, 274 Shield V. Wilkins (5 Ex. 304 ; 19 L. J. Ex. 238) . . 108, 109 Shields v. Davis (6 Tannt. 65 ; 4 Camp. 119) . . 329, 345 Shillito, The (3 Com. Cas. 44) 68 V. Biggart ( (1903) 1 K. B. 683 ; 72 L. J. K. B. 294 ; 88 L. T. 426 ; 8 Com. Cas. 137 ; 19 T. L. R. 313 ; 9 Asp. M. C. 396) 350 Shipton t'. Thornton (9 A. &E. 314; 1 P. &;D. 216) . 260,261, 262 326 Anderson v. Harrison ( (1915) 3 K. B. 676 ; 84 L. J. ' K. B. 2137 ; 31 T. L. R. 598) 96 Shirwell v. Shaplock (2 Chit. 397) 291 Short V. Simpson (L. R. 1 C. P. 248 ; 33 L. J. 0. P. 147 ; 13 L. T. 674 ; 14 W. R. 307 ; 2 Asp. Mar. C, 0. S. 307) . 163, 188 193 Shiibrick v. Salmond (3 Burr. 1637) ' 103 Sibson V. Barcraig Co. (24 vSess. Cas. 4th Ser. 91). . . 40 Sickens v. Irving (7 C. B., N. S. 165 ; 29 L. J. C. P. 25 ; 6 Jur., N. S. 200) 41 Sieveking v. Maas (6 E. & B. 670 ; 25 L. J. Q. B. 358 ; 2 Jur., N. S. 515) 105 Simraonds v. White (2 B. & C. 805) .... 277, 279 Siordet I'. Hall (4 Bing. 607 ; 1 M. & P. 561) . . 207,215 Sir John Jackson, Ltd. v. Owners of S.S. Blanche (see Steam Hopper No. 66, The). Ixiv TABLE OF CASES. Sjoerds v. Luscombe (16 East, 201) Skandinav, The (51 L. J. Ad. 93). PAGE 312, 313 21, 129, 338 Sleigh V. Tyser ( (1900) 2 Q. B. 333 ; 69 L. J. Q. B. 626 ; 82 L. T. 804; 5Com. Cas. 271 : 9 Asp. M. C. 97) . . . 135 Slubey v. Hevward (2 H. Bl. 504) 184 Smackman v. General St. Nav. Co. (98 L. T. 396 ; 13 Com. Cas. 196; 11 Asp. M. C. 14) 210,232 Smailes v. Evans (33 T. L. E. 233) 340 V. Hans Dessen (95 L. T. 809 ; 12 Com. Cas. 117 ; 10 Asp. M. C. 319) .... 290, 292, 293, 298, 417 SmaU V. Moates (9 Bing. 574 ; 2 M. & Scott, 674) . 45, 46 Smidt V. Tiden (L. K. 9 Q. B. 446 ; 43 L. J. Q. B. 199 : 30 L. T. 891 ; 22 W. K. 913) 347, 353 Smith V. Bedouin Navigation Co. ( (1896) A. C. 70 ; 65 L. J. P. C. 8 ; 12 T. L. E. 65) 60, 144, 240 • ■!;. Dart(14Q.B.D. 105 ; 54 L. J. Q. B. 121 ; 52 L. T. 218 ; 33 W. E. 455 ; 5 Asp. Mar. C. 360) . 79, 81, 82, 102 103 213 — t). Drummond (1 C. & E. 160) . . . . ' .' 8 T. Goss (1 Camp. 282) 177,185 V. King, The (33 T. L. E. 159) 253 -y. Kirby (1 Q.B.D. 131 ; 24W. E. 207) . 364,371,421 V. M'Guire (3 H. & N. 554 ; 1 F. & F. 199) . 33, 365, 368 V. Plumer (1 B. & Aid. 575) .... 344, 345 V. Pyman ( (1891) 1 Q. B. 742 ; 60 L. J. Q. B. 127 63 L. T. 642 ; 39 W. E. 318 ; 7 Asp. M. C. 7) . . 322, 325 V. Eosario Nitrate Co. ( (1894) 1 Q. B. 174 ; 70 L. T. 68; 7 Asp. M. C. 417) 125,204,217 • V. Shepherd (Abbott, 14th ed., pp. 473, 578) . . 206 • V. Sieveking (5 E. & B. 589 ; 24 L. J. Q. B. 257) . 54, 56, 314, 315 V. Tregarthen (56 L. J. Q. B. 437 ; 57 L. T. 58 ; 35 W. E. 665 ; W. N. (1887) 124 ; 6 Asp. Mar. C. 137). 68, 370, 373 V. Wilson (6 M. & S. 78 ; 8 East, 437) . . 125, 127 Smitton v. Orient Co. (96 L. T. 848 ; 12 Com. Cas. 270 ; 23 T. L. E. 359 ; 10 Asp. M. C. 459) . . . 228. 420, 421 Smurthwaite v. Hannay ( (1894) App. Cas. 494; 63 L. J. Q. B. 737 ; 71 L. T. 157) 287 V. Wilkins (11 C. B., N. S. 842 ; 31 L. J. C. P. 214 ; 7 L. T. 65 ; 10 W. E. 386 ; 1 Asp. Mar. C, 0. S. 198, 244) 192, 354 Soares V. Eahn (3Moore, P. C. 1) 265 Soblomsten, The (L. E. 1 A. & E. 293 ; 36 L. J. Ad. 5 ; 15 L. T. 393 ; 15 W. E. 591 ; 2 Asp. Mar. C, 0. S. 436) . 245, 246, 260, 326, 327, 332, 333 Societa Ungherese v. Hamburg, &c., Co. (17 Com. Cas. 216 106 L. T. 957 ; 12 Asp. M. C. 228) .... V. Tvser (8 Com. Cas. 25) Societe Anonyme v. Scholefield (7 Com. Cas. 114) Maritime v. Venus Co. (9 Com. Cas. 289) Nouvelle v. SpiUers ( (1917) 1 K. B. 865 ; 33 T. L. E 189) Sodergren v. Flight (6 East, 622) .... 244 77 133 385 274 357 TABLE OF CASES. Ixv PAGE South American Syndicate v. Federal Co. (100 L. T. 270 ; 14Com.Cas.228; 25T. L. R.272 ; 11 Asp. M. C. 195) . 210 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). 136, 339 Southcote V. Bennett (4 Rep. 83 b ; Cro. Eliz. 815) . . 202 Southgate, The ( (1893) P. 329) 236 Southwell V. Bowditch (1 C. P. D. 374 ; 45 L. J. C. P. 630 ; 35 L. T. 196 ; 24 W. R. 275) 34, 37 Spaight V. Farnworth (5 Q. B. D. 115 ; 59 L. J. Q. B. 346 ; 42 L. T. 296 ; 28 W. R. 508 ; 4 Asp. Mar. C. 251) . 331, 336, 337 Spalding V. Ruding (6 Beav. 376 ; 15 L. J. Ch. 374) . . 179 Sparrow v. Paris (7 H. & N. 594 ; 31 L. J. Ex. 137 : 5 L. T. 799 ; 8 Jur., N. S. 391) 365 Spence v. Chodwick (10 Q. B. 517 ; 16 L. J. Q. B. 313 ; 11 Jur. 872) 215, 222 ■ V. Union Marine Co. (L. R. 3 C. P. 427 ; 37 L. J. C. P. 169 ; 18 L. T. 632 ; 16 W. R. 1010 ; 3 Asp. M. C, 0. S, 82) 287, 288, 289, 290 Spencer's Case ( (1583) cited 1 Smith, L. C, 12th ed. p. 62). 42 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. 365) . . 264, 265 Stainbank v. Shepard (13 C. B. 418; 22 L. J. Ex. 341; 17 Jur. 1032) 264 Staniforth v. Lyall (7 Bing. 169 ; 4 M. & P. 829). . 365, 366 Stanton v. Austin (L. R. 7 C. P. 651 ; 41 L. J. C. P. 218) . 122 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. 23) . 27, 83 85 87 Steam Hopper No. 66, The ( (1908) App. Cas. 126; 77 L. J. P. 84 ; 98 L. T. 464 ; 24 T. L. R. 384 ; 11 Asp. M. C. 37) 5, 421 Steamship Den of Airlie Co., &c. {sef Den of Airlie Co., &c.). Steel V. Lester (3 C. P. D. 121 ; 47 L. J. C. P. 43 ; 37 L. T. 642 ; 26 W. R. 212 ; 3 Asp. Mar. C. 537) . . . 6, 41 ■ V. State Line Co. (3 App. C. 72 ; 37 L. T. 333 ; 3 Asp. Mar. C. 516) 82, 84, 87, 199, 232 Young r. Grand Canary Co. (90 L. T. 729 ; 9 Com. Cas. 275; 20 T. L. R. 542) ..... 300,312 Steele v. Dixon (3 Sc. Sess. Cas. 4th Ser. 1003) ... 38 Stein ?;. County Co. (115 L. T. 215) 167 Steinman v. Angier Line ( (1891) 1 Q. B. 619 ; 60 L. J. Q. B. 425 ; 63 L. t. 613 ; 39 W. R. 392 ; 7 T. L. R. 398 ; 7 Asp. M. C. 46) 139. 226 Stella, The ( (1900) P. 161 ; 69 L. J. P. 70 ; 82 L. T. 390 ; 16 T. L. R. 306 : 9 Asp. M. C. 66) . . . . 238, 421 Stephens v. Harris (57 L. J. Q. B. 203 ; 36 W. R. 185 : 6 Asp. Mar. C. 192 ; 57 L. T. 618) . . . 124, 125, 127. 224, 225 V. Macleod (19 Sc. Sess. Cas. 4th Sor. 38) . US, 131 V. Wintringham (3 Com. Cas. 169). . 20, 23, 127, 331 Stephenson 7'. Crant (33 T. L. R. 174) 385 Stettin, The (14 P. D. 142 ; 58 L. J. Ad. 81 ; 61 L. T. 200 ; 38 W. R. 96 ; 6 Asp. Mar. C. 395) .... 18, 286 Ixvi TABLE OF CASES. PAGE Stevenson v. York (2 Chit. 570) 299, 306 Stewart v. Greenock Ins. Co. (2 H. L. C. 159 ; 1 Macq. H. L. 382) 42, 349 V. Merchants' Ins. Co. (16 Q. B. D. 619 ; 55 L. J. Q. B. 81 ; 53 L. T. 892 ; 5 Asp. Mar. C. 506) . . 14, 26 i;. Rogerson (L. R. 6 C. P. 424) . . . .116 V. West India Co. (L. R. 8 Q. B. 362 ; 42 L. J. Q. B. 191 ; 28 L. T. 742 ; 21 W. R. 953 ; 2 Asp. Mar. C. 32) . 271, 279 Stindt V. Roberts (5 D. & L. 460 ; 17 L. J. Q. B. 166 ; 12 Jur. 518) 315 Stock V. Inghs {see Inglis v. Stock). Storer V. Gordon (3 M. & S. 308) 11 Stornoway, The (51 L. J. Ad. 27 ; 46 L. T. 773 ; 4 Asp. Mar. C. 529) 51, 358 Stott V. Marten ( (1916) 1 A. C. 304 ; 85 L. J. K. B. 97 ; 2lGom. Cas. 144; 114L. T. 91; 13 Asp. 200; 32 T. L. R. 85) 220 Strahan v. Gabriel (12 Ch. D. 590) .... 113, 120 Straker v. Kidd (3 Q. B. D. 223 ; 47 L. J. Q. B. 365 ; 26 W. R. 511 ; 4 Asp. Mar. C. 34 n.) .... 57, 316 Strano; v. Scott (14 App. Cas. 601 ; 59 L. J. P. C. 1 ; 61 L. t. 597 ; 6 Asp. M. C. 419) . . 252, 267, 269, 277, 278 Strass V. Spillers ( (1911) 2 K. B. 759 ; 80 L. J. K. B. 1218 ; 16 Com. Cas. 166 ; 104 L. T. 284) 167 Strathlorne S.S. Co. v. Baird ( (1913) Sess. Cas. 956) . 20, 24, 26 Stringer v. English and Scottish Ins. Co. (L. R. 5 Q. B. 599 ; 39 L. J. Q. B. 214 ; 22 L. T. 802 ; 18 W. R. 1201 ; 3 Asd. Mar. C, 0. S. 440) 216 Stroms Bruks Aktiebolag v. Hntcliinson ( (1905) App. Cas. 515 ; 74 L. J. P. C. 130 ; 93 L. T. 562 ; 11 Com. Cas. 13 ; 21 T. L. R. 718 ; 10 Asp. M. C. 138) . . 364,366,367 Strong V. Hart (6 B. & C. 160 ; 2 C. & P. 55) . . . 352 Strugnell v. Friedriclisen (12 C. B., N. S. 452 ; 9 Jur., X. S. 77) 132 Stuart V. British and African Navigation Co. (2 Asp. M. C. 497 ; 32 L. T. 257) 252, 262 Stumore t'. Breen (12 App. Cas. 698 ; 56L. J. Q. B. 401) . 40, 65, 68 Suart V. Bigland (not reported) 319, 339 V. Haigh (9 T. L. R. 488) 34 Sully V. Duranty (3 H. & C. 270 ; 33 L. J. Ex. 319) . . 305 Sultan, Cargo ex (Swa. 504 ; 5 Jur., N. S. 1060) . . 263, 264, 265 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. 453) . 260, 266, 274, 275, 276 Swainston v. Garrick (2 L. J. Ex., X. S. 255) . . 136, 138 Swan V. Barber (5 Ex. D. 130 ; 49 L. J. Ex. 253 ; 42 L. T. 490 ; 28 W. R. 563 ; 4 Asp. Mar. C, X. S. 264). 336, 347, 360 Sweeting v. Darthez (14 C. B. 538 ; 23 L. J. C. P. 131 ; 18 Jur. 958) 299, 306, 339 Symons v. Darknoll (Palmer, 523) 202 TABLE OF CASES. Ixxiii PAGE Wiener v. Wilsons, &c. (15 Com. Cas. 294 ; 103 L. T. 168 ; 11 Asp. M. C. 413) 209, 210 AViggins v. Johnston (14 M. & W. 609 ; 15 L. J. Ex. 202) . 41 Wi^glesworth v. Dallison (1 Dougl. 201, and 1 Smith, L. C. 12th ed. 613) 21 Wilhelm Schmidt, The (25 L. T. 34 ; 1 Asp. Mar. C. 82) . 19, 255 256 WilUams v. African S.S. Co. (1 H. & N. 300) . . . ' 421 -v. Agius ((1914) A. (I 510; 83 L. J. K. B. 715; 19 Com. Cas. 200 ; 110 L. T. 865 ; 30 T. L. R. 351) 370, 372 V. Canton Ins. Co. ( (1901) App. Cas. 462 ; 70 L. J. K. B. 962 ; 85 L. T. 317 ; 6 Com. Cas. 256 ; 9 Asp. M. C. 247) 149 V. Dobbie(ll So. Sess. Cas. 4thSer. 982). . 145,240 V. East India Co. (3 East, 192) .... 98 V. London Assurance (1 M. & S. 318 ; 14 R. R. 441) 278 V. Naamlooze, &c. (21 Com. Cas. 253) . . . 224 Williamson v. Hine ( (1891) 1 Ch. 390 ; 60 L. J. Ch. 123 ; 63 L. T. 682 ; 39 W. R. 239 ; 6 Asp. M. C. 559) . . 38, 40 Willis V. Palmer (7 C. B., N. S. 340 ; 29 L. J. C. P. 194 ; 8 W. R. 295 ; 6 Jiir., N. S. 732) 350 Wilmshurst v. Bowker (7 M. & G. 882 ; 8 Scott, N. R. 571 ; 12 L. J. Ex. 475) 170 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). 272, 273 V. Gabriel (4 B. & S. 243 ; 8 L. T. 502 ; 11 W. R. 803 ; 1 Asp. Mar. C, 0. S. 346) 350 t^. Hicks (26 L. J. Ex. 242) 369 V. Kymer (1 M. & S. 157) 353, 354 V. London S. N. Co. (L. R. 1 C. P. 61 ; 2 Asp. Mar. C, 0. S. 279) . . 291, 294 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, 86 V. Tennants ( (1917) 1 K. B. 208 ; 85 L. J. K. B. 1320; 114L. T. 878; 32 T. L. R. 573) . . . .211 V. Wilson (L. R. 14 Eq. 32 ; 41 L. J. Ch. 423 ; 26 L. T. 346 ; 20 W. R. 436 ; 1 Asp. Mar. C. 265) . . 349, 351 and Coventry v. Thoresen's Linie ( (1910) 2 K. B. 405 ; 79 L. J. K. B. 1048 : 15 Com. Cas. 262 ; 103 L. T. 112 ; 54 S. J. 655; 26T. L. R. 546) . . . 123,296, 305, 307 Winkfield, The ( (1902) P. 42 ; 71 L. J. P. 21 ; 85 L. T. 668 ; 9 Asp. M. C. 259) 241 Wiseman v. Vandeputt (2 Vern. 202) 173 Witted V. Galbraith ( (1893) 1 Q. B. 577 ; 41 W. R. 395 ; 9 T. L. R. 300) 378 Witzler v. Collins (35 Am. Rep. 327) 144 Wood V. Atlantic Transport Co. (5 Com. Cas. 121) . 192, 283 V. Jones (7 D. & R. 126) 175 Woodlev V. Michell (11 Q. B. 1). 47 ; 52 L. J. Q. B. 325 ; 48 L. T. 599 ; 31 W. R. 651 ; 5 Asp. Mar. C. 71) . . 219, 221, 223 W^oodhff's Case (Moore, 462, Owen, 57) . . . .202 Ixxiv TABLE OF CASES. PAGE WooUey v. Reddelien (5 M. & G. 316 ; 12 L. J. C. P. 142 ; 7 Jur. 930) 105 Worms V. Storey (11 Ex. 427 ; 25 L. J. Ex. 1) . 86, 89, 231 Wright V. Marwood (7 Q. B. D. 62 ; 50 L. J. Q. B. 643 ; 45 ■ L. T. 297; 29 W. R. 673; 4 Asp. Mar. C. 451) . 134,269, 270 V. New Zealand Co. (4 Ex. D. 165 ; 40 L. T. 413 ; 4 Asp. Mar. C. 118) 116, 310 Wulfsberg v. Weardale Co. (85 L. J. K. B. 1717 ; 115 L. T. 146) 343 Wyllie V. Harrison (13 Sc. Sess. Cas. 4tli Ser. 92). . 311,313 X. Xantho, The (12 App. Cas. 503 ; 55 L. T. 203 ; 56 L. J. Ad. 146; 35 W. R. 23; 6 A.sp. Mar. C. 207) . 145,199,202,204, 205, 206, 219, 220, 221, 222, 223, 240, 282 Y. Yarmouth, The ( (1909) P. 293 ; 79 L. J. P. 1 ; 101 L. T. 714 ; 11 Asp. M. C. 331 ; 25 T. L. R. 746) . . 228, 420 Yates V. Mennell (8 Taunt. 302 ; 2 Moore, 294) . . .339 V. Railston (2 Moore, 294) 339 Yeoman v. The King ( (1904) 2 K. B. 429 ; 73 L. J. K. B. 905 ; 9 Com. Cas. 269 ; 20 T. L. R. 524) . . . .301 Young V. Jarrah Co. (4 Com. Cas. 96) . . . . 335, 365 V. Moeller (5 E. & B. 775) .... 315, 354 Yrazu v. Astral S.S. Co. (9 Com. Cas. 100 ; 20 T. L. R. 153) . 208 Yuilly. Scott Robson( (1908) 1 K.B. 270; 13 Com. Cas. 166) 167 Z. Zeta, The ( (1892) P. 285 ; 61 L. J. P. 100 ; 40 W. R. 535 ; 8 T. L. R. 552 ; 7 Asp. M. C. 64) 378 Zeus, The (13 P. D. 188 ; 59 L. T. 344 ; 37 W. R. 127 ; 6 Asp. Mar. C. 312) 379, 407 Zillah r;. Midland Ry. Co. (19 T. L. R. 63) . . . 283,312 Zinc Corporation v. Hirsch ( (1916) 1 K. B. 541 ; 85 L. J. K. B. 565 ; 21 Com. Cas. 273 ; 114 L. T. 222 ; 32 T. L. R. 232) 13 Zwilchenbart v. Henderson (9 Ex. 722 ; 23 L. J. Ex. 234) . 347, 348 TABLE OF CASES. Ixxi PAGE Waikato, The ( (1899) 1 Q. B. 56 ; 68 L. J. Q. B. 1 ; 79 L. T. 326 ; 4 Com. Cas. 10 ; 8 Asp. M. C. 442). 15, 82, 83, 85, 88, 207, 210 Wait V. Baker (2 Ex. 1 ; 17 L. J. Ex. 307) . . .166, 169, 170, 172 Wake V. Harrop (1 H. & C. 202 ; 31 L. J. Ex. 451 ; 7 L. T. 96 ; 10 W. K. 626 ; 1 Asp. Mar. C, 0. S. 247) . . 29, 30 Walford v. Galindez (2 Com. Cas. 137 ; 13 T. L. R. 293). 241, 271, 277, 279 Walker V. Maitland (5 B. & Aid. 171) . . . . .205 Walkers ami Shaw, In re ( (1904) 2 K. B. 152 ; 73 L. J. K. B. 325 ; 90 L. T. 454 ; 9 Com. Cas. 174 ; 20 T. L. R. 274) 21 Wall V. Rederiaktiebolaget Luggude ( (1915) 3 K. B. 66; 84 L. J. K. B. 1663 ; 21 Com. Cas. 132 ; 31 T. L. R. 487) . 364 Wallace v. Fielden (7 Moore, P. C. 398 ; 3 W. Rob. 243) . . 263, 265 Walley v. Montgomery (3 East, 585) 170 Walshe v. Provan (8 Ex. 843 ; 22 L. J. Ex. 355) . 41, 63, 345 Walthew v. Mavrojani (L. R. 5 Ex. 116 ; 39 L. J. Ex. 81 ; 22 L. T. 310 ; 3 Asp. Mar. C, O. S. 382) . . 267, 274, 275 Ward V. Felton (1 East. 507) 353,354 V. Weir (4 Com. Cas. 216 ; 15 T. L. R. 383) . . 40 Waring V. Cox (1 Camp. 369) 191 Warkworth, The (9 P. D. 145 ; 53 L. J. Ad. 65 ; 49 L. T. 715 ; 33 W. R. 112 ; 5 Asp. Mar. C. 326) . . 235, 420 Warren v. Peabody (8 C. B. 800 ; 19 L. J. C. P. 43 ; 14 Jur. 150) 136, 339, 365 Wastwater S.S. Co. v. Neale (86 L. T. 266 ; 9 Asp. M. C. 282). 52, 347 Waterloo, The (2 Dod. 433) 281 Watkins v. Cottell ( (1916) 1 K. B. 10 ; 85 L. J. K. B. 287 ; 114 L. T. 333; 32 T. L. R. 91) . . • . . . 201 V. Rymill (10 Q. B. D. 178 ; 52 L. .J. Q. B. 121 ; 48 L. T. 426; 31 W. R. 337) 9,53,352 Watson, Ex parte (5 Ch. D. 35 ; 46 L. J. Bk. 97 ; 36 L. T. 75 ; 25 W. R. 489 ; 3 Asp. Mar. C. 396) . 173, 183, 185, 186 V. Borner (5 Com. Cas. 377) . . . 113, 116, 308 t;. Clark(l Dow. H. L. C. 336; 14 R. R. 73) . . 86 V. Merryweather (18 Com. Cas. 294 ; 108 L. T. 1031) 342 V. Shankland (L. R. 2 H. L. So. 304 ; 29 L. T. 349 ; 2 Asp. Mar. C. 115) 323 Brothers v. Mysore Manganese Co. (15 Com. Cas. 159 ; 102 L. T. 169 ; 11 Asp. M. C. 364 ; 54 S. J. 234 ; 26 T. L. R. 221) 210,302 Watts v. Mitsui ( (1917) A. C. 227 ; 33 T.L. R. 262) . 217,364 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. 573) . 10, 11 Wavertree S.S. Co. v. Lowe ( (1897) A. C. 373 ; 66 L. J. P. C. 77 ; 76 L. T. 576 ; 8 Asp. M. C. 276 ; 13 T. L. R. 419) 279 Webber v. (\. W. Ry. (4 H. & C. 582 ; 34 L. J. Ex. 170 ; 12 L. T. 498 ; 13 W. R. 755) 69 Webster V. Bond (1 C. &E. 338) 208 Wegener v. Smitli (15 C. B. 285 ; 24 L. J. C. P. 25) 56, 314, 315 Ixxii TABLE OF CASES. PAGE AVegueliu v. CeUier (L. R. 6 H. L. 286 ; 42 L. J. Ch. 758 ; 22 W. R. 26) 336, 350 Wehiier v. Dene S.S. Co. ( (1905) 2 K. B. 92 ; 74 L. J. K. B. 550 ; 10 Com. Cas. 139 ; 21 T. L. R. 339) .' 4, 49, 52, 343, 346, 347, 348, 361 Weidner v. Hoggett (1 C. P. D. 533 ; 35 L. T. 368) . . 34 Weir V. Dobell ( (1916) 1 K. B. 722 ; 85 L. J. K. B. 873 ; 21 Com. Cas. 296) 367, 370 V. Giivin ( (1900) 1 Q. B. 45 ; 69 L. J. Q. B. 168 : 81 L. T. 687 ; 5 Com. Cas. 40 ; 9 Asp. M. C. 7) . 133, 322, 331 V. Pirie(No. l)(3Com. Cas. 263) . ... 3,57 V. (No. 2) (3 Com. Cas. 271). . . . 3,57 V. Richardson (3 Com. Cas. 20 ; 14 T. L. R. 80) . 311, 313 V. Union S.S. Co. ( (1900) App. Cas. 525; 69 L. J. Q. B. 809 ; 82 L. T. 91 ; 5 Com. Cas. 363 ; 9 Asp. M. C. Ill) 136 Weis V. Credit Colonial, &c. ( (1916) 1 K. B. 346 ; 85 L. J. K. B. 533 ; 21 Com. Cas. 186; 114L. T. 168). . . 167 Wentworth v. Outliwaite (10 M. & W. 436 ; 12 L. J. Ex. 172) 173, 184 West Cock, The ( (1911) P. 23 ; 80 L. J. P. 97 ; 104 L. T. 736; 55 S. J. 329; 27 T. L. R. 301) .... 83 West Hartlepool Co. v. Tagart Beaton (8 Com. Cas. 133 ; 19 T. L. R. 251 ; 9 Asp. M. C. 381) . . . .50, 54, 68 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. 341) 205,220 Western Electric Co. v. G. E. R. ( (1914) 3 K. B. 554 ; 83 L. J. K. B. 1326 ; 19 Com. Cas. 301 ; 111 L. T. 29 ; 30 T. L. R. 416) 238 S.S. Co. V. Amaral Sutherland & Co. ( (1914) 3 K. B. 55 ; 83 L. J. K. B. 1201 ; 19 Com. Cas. 272 ; 111 L. T. 113; 30T. L. R. 492) 297,386 WestoU V. Carter (3 Com. Cas. 112 ; 14 T. L. R. 281) . . 425 Westport Coal Co. v. McPhail ( (1898) 2 Q. B. 130 ; 67 L. J. Q. B. 674 ; 78 L. T. 490 ; 46 W. R. 566 ; 3 Com. Cas. 140 ; 8 Asp. M. C. 378 ; 14 T. L. R. 388) . . .231 Westzintlms, In re (5 B. & Ad. 817) . . . .178,179 Whinney v. Moss S.S. Co. (15 Com. Cas. 114 ; 102 L. T. 177 ; 11 Asp. M. C. 381 ; 54 S. J. 291 ; 26 T. L. R. 272) . 9, 361 White V. Furness ( (1895) A. C. 40 ; 64 L. J. Q. B. 161 ; 72 L. T. 157 ; 7 Asp. M. C. 574 ; 11 T. L. R. 129) . 353, 354 v. Granada S.S. Co. (13 T. L. R. 1) . . . 252, 254 I'. Parkin (12 East, 578) 15 V. Turnbull, Martin & Co. (3 Com. Cas. 183; 78 L. T. 726 ; 8 Asp. M. C. 406 ; 14 T. L. R. 401) . . 40 V. Winchester (13 Sc. Sess. Ca.s. 4th Ser. 524) . 298, 305 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. 531) 271 Whitehead v. Anderson (9 M. & W. 518 ; 11 L. J. Ex. 157) . 175, 184. 187, 188 Whittal V. Rahtkins ( (1907) 1 K. B. 783 ; 76 L. J. K. B. 538 ; 96 L. T. 885 ; 12 Com. Cas. 226 ; 23 T. L. R. 346 ; 10 Asp. M. C. 471) 244,301 TABLE OF CASES. Ixix PAGE Tillett V. Cwm Avon (2 T. L. R. 675) . . . . 310, 316 Tillmaiis v. Knutsford S.S. Co. ( (1908) 1 K. B. 185 ; (1908) 2 K. B. 385 {see also Knutsford S.S. Co. v. Tillmaus) ) 50, 347 TindaU v. Taylor (4 E. & B. 219 ; 24 L. J. Q. B. 12 ; 1 Jiir., N. S. 112) 319 Tonnelier v. Smith (2 Com. Cas. 258 ; 77 L. T. 277 ; 8 Asp. M. C. 327 ; 13 T. L. R. 560) 343 Tonnevald v. Finn Friis ( (1916) 2 K. B. 551 ; 85 L. J. K. B. 1758 ; 21 Com. Cas. 354 ; 115L. T. 311). . . .218 Torbryan, The ( (1903) P. 194 ; 72 L. J. P. 76 ; 89 L. T. 265 ; 9 Com. Cas. 1 ; 19 T. L. R. 625 ; 9 Asp. M. C. 450) . 124, 209, 210, 232 TovitengiJ. Hubbard (3 B. &P. 291) 91 Towse V. Henderson (4 Ex. 890 : 19 L. J. Ex. 163) . 89, 136 Traae and Lennard, In re ( (1904) 2 K. B. 377 ; 77 L. J. K. B. 553 ; 90 L. T. 407 ; 9 Com. Cas. 235 ; 20 T. L. R. 394 ; 9 Asp. M. C. 553) . . . 208, 210, 233, 234, 341 Travers v. Cooper ( (1915) 1 K. B. 73 ; 83 L. J. K. B. 1787 ; 20Com. Cas. 44; 111 L. T. 1088 ; 30T. L. R. 703). . 201 Trayes v. Worms (see Frayes v. Worms). Tredegar Co. v. Hawthorn (18 T. L. R. 716) . . . 369 Tregelles v. Sewell (7 H. & N. 574) 166 TregUav. Smith (1 Com. Cas. 360) .... 108,111 Trent and Mersey Navigation Board v. Ward (3 Esp. 127 ; 4Dougl. 287) ' 202 Trindade V. Levy (2 F. &F. 441) 109 Trinity House v. Clark (4 M. & S. 288) . • . . . 5, 7 Tronson v. Dent (8 Moore, P. C. 419) . 241, 242, 247, 257, 259 Tucker v. Humphrey (4 Bing. 156) . . . . .191 TuUy 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. 368) . 85, 88. 91, 93 V. Terry (L. R. 8 C. P. 679 ; 42 L. J. C. P. 240 ; 29 L. T. 36 ; 2 Asp. Mar. C. 61) . . . 145, 330, 337, 338 Turgot, The (11 P. D. 21 ; 54 L. T. 276 ; 34 W. R. 552 ; 5 Asp. Mar. C. 548) 244, 245 Turnbull v. Cruickshank (7 F. (Sess. Cas.) 265) . . 208, 302 Turner v. Bannatyne (91 L. T. 618 ; 9 Com. Cas. 306 ; 20 T. L. R. 782 ; 9 Asp. M. C. 495) 302 V. Barlow (3 F. & F. 946) .... 341, 342 V. Haji Goolam ( (1904) App. Cas. 826; 74 L. J. P. C. 17 ; 91 L. T. 216 ; 20 T. L. R. 599 ; 9 Asp. M. C. 588) 50, 52, 66, 347, 349 V. Trustees of Liverpool Dock (6 Ex. 543 ; 20 L. J. Ex. 393) 169, 170, 171, 172, 336 Tyne, &c., Co. v. Leach ( (1900) 2 Q. B. 12 ; 69 L. J. Q. B. 353 ; 5 Com. Cas. 155 ; 16 T. L. R. 197) . 299 Tyrer v. Hesskn- (86 L. T. 697 ; 7 Com. (^as. 166 ; 18 T. L. R. 589 ; 9 Asp. M. C. 292) 73, 81, 343 U. Ulysses, Cargo ox, The (13 P. D. 205; 6 Asp. Mar. C. 353) . 280 Undaunted, TIk; (IIP. D. 46 ; 55 L. J. Ad. 24 ; 54 L. T. 542 ; 34 W. R. 686 ; 5 Asp. Mar. 0. 580) . . 83, 85 United States v. Pellv (4 Com. Cas. 100 ; 47 W. R. 332 ; 15 T. L. R. 166) . ^ 14 Ixx TABLE OF CASES. PAGE United States Co. v. G. W. R. ((1916) 1 A. C. 189; 85 L. J. K. B. 1 ; 21 Com. Cas. 105 ; 113 L. T. 886 ; 31 T. L. R. 561) 177, 361 Unwin v. Wolselev (1 T. R. 674) 37 Upperton v. Union Castle Co. (9 Com. Cas. 50 ; 89 L. T. 289 ; 9 Asp. M. C. 475 ; 19 T. L. R. 687) ... 86, 88, 210 UrsulaBright Co. iJ. Ripley (8 Com. Cas. 171) . . .335 N. S. 270 ; 28 L. J. C. P. 229 Valente v. Gibbs (6 C. B 5 Jur., N. S. 1213) Yalieri v. Boyland (L. R. 1 C. P. 382 ; 35 L. J. C. P. 215 L. T. 362 ; 14 W. R. 637 ; 2 Asp. Mar. C, 0. S. 336) Vall6e V. Bucknall (16 T. L. R. 362) .... Valpy V. Gibson (4 C. B. 837 ; 16 L. J. C. P. 241) Van Baggen v. Baines (9 Ex. 523 ; 23 L. J. Ex. 213) . Casteel v. Booker (2 Ex. 691 ; 18 L. J. Ex. 9) Eijck V. Somervile ((1906) App. Cas. 489; 75 P. C. 67 ; 95 L. T. 161 ; 22 T. L. R. 715 ; 10 Asp. 263 14 79 171, L. J M. C 102 68 231 185 , 80 182 (1891) 178) . 175, 17 C, 0. S. 261) J. Adm. 103 ; 59 L. T 1 Vandespar v. Duncan (8 T. L. R. 30 ; W. N Vertue v. Jewell (4 Camp. 31) Victor, The (Lush. 72 ; 2 Asp. Mar Victoria, The (13 P. D. 125 ; 57 L 728 ; 6 Asp. M. C. 335) . Village Belle, The (30 L. T. 232 ; 2 Asp. Mar. C. 228) . VincentelU V. Rowlett (16 Com. Cas. 310) . Vindobala, The (14P. D. 50 ; 58 L. J. Ad. 51 ; 60 L. T. 65 6 Asp. Mar. C. 376 ; 37 W. R. 409) .... Virginia Carohua Co. v. Norfolk, &e., Co. (Fire) ( (1912) K. B. 229 ; 81 L. J. K. B. 129 ; 17 Com. Cas. 6 ; 105 L. T. 810 ; 12 Asp. M. C. 82) . . . . 228, 229, V. (Unseawor thiness) (17 Com. Cas. 277; 107 L. T. 320; 56 S. J 722 • 28 T L R 513) Vivien'ne, Tlie (12 P. D. 185 ; 56 L. J. Ad'. 107 ; 57 L. T 316 ; 36 R. 110 ; 6 Asp. Mar. C. 178) VUerboom v. Chapman (13 M. & W. 230 ; 13 L. J. Ex. 384 8 Jur. 811) 259, Vogemann v. Bisley (2 Com. Cas. 81 ; 13 T. L. R. 172) V. Zanzibar Co. (7 Com. Cas. 254) Vortigern, The ( (1899) P. 140 ; 68 L. J. P. 49 ; 80 L. T. 382 ; 4 Com. Cas. 152 ; 8 Asp. M. C. 523) . 83, 85, 86, 245, 271, 272 W. Wade V. Cockerline (10 Com. Cas. 115 ; 53 W. R. 420 ; 21 T. L. R. 296) 84, 208, 209, 237, 269 Wagstaff V. Anderson (5 C. P. D. 171 ; 49 L. J. C. P. 485 ; 42 L. T. 720 ; 28 W. R. 856 ; 4 Asp. Mar. C. 290) . 35, 45, 52, 259 347 Wahlberg v. Young (45 L. J. C. P. 783 ; 24 W. R. 846 ; 4 ' Asp. M. C. 27) • . . . 420 422 133 179 281 422 124 167 42 420 84 42 333 339 341 , 89, I TABLE OF CASES. Ixvii T. PAGE Tagart Beaton v. Fisher ( (1903) 1 K. B. 391 ; 72 L. J. K. B. 202 ; 88 L. T. 451 ; 8 Com. Cas. 133 ; 9 Asp. M. C. 381) . 361 Talca, The (5 P. D. 169 ; 29 W. R. 123 ; 4 Asp. Mar. C. 226). 42 Tamplin (F. A.) Co. v. Anglo-Mexican Co. ( (1916) 2 A. C. 397 ; 85 L. J. K. B. 1589 ; 21 Com. Cas. 299 ; 115 L. T. 315; 32T. L. R. 677) 94,95,96 Tamvaco v. Lucas (31 L. J. Q. B. 296 ; 1 B. & S. 185 ; 1 E. & E. 581 ; 6 L. T. 697) 167 V. Simpson (L. R. 1 C. P. 363 ; 35 L. J. C. P. 196 ; 14 L. T. 893 ; 14 W. R. 376 ; 2 Asp. Mar. C, 0. S. 249, 383) 322, 356, 358 V. Timothy (IC.&E. 1) 201 Tancred v. Delagoa Bay Co. (23 Q. B. D. 239 ; 58 L. J. Q. B. 459 ; 61 L. T. 229 ; 38 W. R. 15) 349 Tanner v. Phillips (42 L. J. Ch. 125 ; 27 L. T. 480 ; 21 W. R. 68 ; 1 Asp. Mar. C. 448) 323, 351 V. Scovell (14 M. & W. 28 ; 14 L. J. Ex. 321) . . 184 Tapley v. Martens (8 T. R. 451) 352 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. 501) . 113, 117, 118, 120, 305 Tarrabochia v. Hickie (1 H. & N. 183 ; 26 L. J. Ex. 26) . 80, 82, 91 93 Tasmania,The(13P. D. 110; 57 L. J. Ad. 49 ; 59 L. T. 263 ; 6 Asp. Mar. C. 305) 5, 282 Tate V. Hyslop (15 Q. B. D. 368 ; 54 L. J. Q. B. 592 ; 53 L. T. 581) 201 V. Meek (2 Moore, 278 ; 5 Asp. Mar. C. 487). . . 339 Tatham v. Hodgson (6 T. R. 656) . . . . .223 Tattersall v. Nat. S.S. Co. (12 Q. B. D. 297 ; 53 L. J. Q. B. 332 ; 50 L. T. 299 ; 5 Asp. Mar. C. 206) . 83, 88, 90, 209, 232 Taubman v. Pacific S.S. Co. (26 L. T. 704 ; 1 Asp. Mar. C. 336) 207 Taylor v. Budgett (not reported, 1886) .... 400 V. Caldwell (3 B. & S. 826 ; 32 L. J. Q. B. 164 ; 8 L. T. 356; 11 W. R. 726) 94,95,96 V. Clay(9Q. B. 713; 16 L. J. Q. B. 44 ; UJur. 277). 113, 367 V. Dunbar (L. R. 4 C. P. 206 ; 38 L. J. C. P. 178 17 W. R. 382) . . . . • . . . 206, 219, 223 V. Liverpool S.S. 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. 275) 209, 226 --- V. Perrin (H. L., not reported) 56 Temperley S.S. Co. v. Smyth ( (1905) 2 K. B. 791 ; 47 L. J. K. B. 876 ; 93 L. T. 471 ; 10 Com. Cas. 301 ; 21 T. L. R. 739 ; 10 Asp. M. C. 123) 57 Temple v. Runnalls (18 T. L. R. 822) . 22, 130, 308, 310, 311 Termagant, The (19 Com. Cas. 239 ; 30 T. L. R. 377) . . 71 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. 214) . 10, 11, 104, 255, 256, 326, 327 Thames, The (63 L. T. 353 ; 6 Asp. Mar. C. 536) . . 43 Ixviii TABLE OF CASES. PAGE Thames and Mersey Insurance Co. v. Hamilton (12 App. C. 484 ; 56 L. J. Q. B. 626 ; 57 L. T. 695 ; 36 W. R. 337 ; 6 Asp. Mar. O. 200) 206, 219, 220, 224 Tharsis Sulplmr Co. v. Culliford (22 W. R. 46) . . . 51 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. 106) . . . 113, 116, 117, 118, 120, 298 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. 147) . 115, 119, 305 Thin V. Liverpool, Brazil Co. (18 T. L. R. 226) ... 62 V. Richards ( (1892) 2 Q. B. 141 ; 62 L. J. Q. B. 39 ; 66 L. T. 584 ; 40 W. R. 617 ; 8 T. L. R. 571) . 83, 85, 86, 89 Thomas v. Brown (4 Com. Cas. 186) 201 t;. Clarke (2 Starkie, 450) 132 V. Harrowing ((1915) A. C. 58; 83 L. J. K. B. 1662 ; 19 Com. Cas. 454 ; 111 L. T. 653 ; 12 Asp. 532 ; SOT. L. R. 611) 328,329 V. Lewis (4 Ex. D. 18 : 48 L. J. Ex. 7 : 39 L. T. 669 27 W. R. Ill ; 4 Asp. Mar. C. 51) . . . . 37, 38, 41 Portsea S.S. Co. ( (1912) A. C. 1 ; 105 L. T. 257 55 S. J. 615 ; 12 Asp. M. C. 23) 57 V. Rhymney Ry. Co. (L. R. 6 Q. B. 266 ; 40 L. J. Q. B. 89 ; 24 L. T. 145 ; 19 W. R. 477) .... 69 Thompson v. Brown (7 Taunt. 656 ; 1 Moore, 358) . . 15 V. Dominy (14 M. & W. 403 ; 14 L. J. Ex. 320) . 192 V. Gillespy (5 E. & B. 209 ; 24 L. J. Q. B. 340) . 243, V. Palmer ( (1893) 2 Q. B. 80 ; 62 L. J. Q. B. 244 502 ; 69 L. T. 366 ; 42 W. R. 22) 377 V. Small (1 C. B. 328 ; 14 L. J. C. P. 157) . . 356 V. Trail (5 B. & C. 36 ; 2 C. & P. 334) . 142, 183, 319 V. White (1898, unreported) . . . .294 V. Whitmore (3 Taunt. 227) . . . .222 Thomson t'. Davenport (9 B. & C. 78 ; 2 Smith, L. C. 12th ed. p. 355) 36 Thorley v. Orchis S.S. Co. (see Joseph Thorley, Ltd., &c.) Thorman v. Burt (C. & E. 56 ; 5 Asp. Mar. C. 563 ; 54 L. T. 349) 60, 62, 68 V. Dowgate S.S. Co. ((1910) 1 K. B. 410; 79 L. J. K. B. 287 ; 102 L. T. 242 ; 11 Asp. M. C. 481 ; 15 Com. Cas. 67) 3,114,120,212,297 Thornton v. Fairlie (8 Taunt. 354 ; 2 Moore, 397) . . 332 Thorogood v. Bryan (8 C. B. 115 ; IS L. J. C. P. 336) . . 282 Thorsa, The ( (1916)P. 257) 84,86,88,232 Thorsen v. M-Dowall (19 Sc. Sess. C. 743) . . . .293 Thrift V. Youle (2 C. P. I). 432 ; 46 L. J. C. P. 402 ; 36 L. T. 114; 3 Asp. Mar. C. 357) 227,228 Thrunscoe, The ( (1897) P. 301 ; 77 L. T. 407 ; 46 AV. R. 175; 8 Asp. M. C. 313; 13 T. L. R. 566) . . .221 Thyatira, The (8 P. D. 155 ; 58 L. J. Ad. 85 ; 49 L. T. 409 ; 32 W. R. 276 ; 5 Asp. Mar. C. 147, 178) . . . .323 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) . 176, 178, 189, 196, 286 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. IT ) J = indorsees of bill of lading. P = purchaser of goods shipped. J i = ships. V = unpaid vendor of goods shipped. W = agent of such a vendor. X = port of loading. Y = port of call, or of refuge. Z = port of discharge. J THE CONTEACT OF AFFREIGHTMENT. SECTION I. Nature and Construction of the Contract. Article 1. — Nature of the Contract. When a shipowner 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 affreightment, 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 charterparty (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 document is usually signed before any steps are taken under the contract it contains. When the agreement is to carry goods which form only (a) As to stamps on charters, see 54 & 55 Vict. c. 39, ss. 15, 49-51 ; Appen- dix III. Charters made entirely abroad can be stamped within two months of their receipt in this country. The Belfori (1884), 9 P. D. 215. Bills of lading made abroad need not be stamped at all. See post, p. 407. Charterparty : in mediaeval Latin, carta partita, an instrument written in duplicate on a single sheet and then divided by indented edges, so that each part fitted the other, whence the term " indenture " ; only now used for this particular kind of shipping document ; the first use given in Murray is in 1539. Formerly a charterparty was made by deed. " A charterparty is usually under seal." (Chitty on Pleading, 1816, Vol. III., p. 93.) Still earher, " Charterparties .... are made before Notaries or Scrivenors," Malynes, Lex Mercatoria (1686), p. 99. 2 BILLS OF LADING part of the intended cargo of the ship, the contract of affreightment as to each parcel of goods shipped may also be expressed in a charterparty, but is more usually evi- denced in a document called a hill of lading (b), which serves also as a receipt by the shipowner, acknowledgmg that the goods 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 ship- ment of which it is a receipt ; and by statute such an indorsement will also confer on the indorsee the same rights and liabilities as if the contract evidenced in the bill of lading were originally made with him (c). The charterer with whom the shipowner enters into the contract of affreightment may intend 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 (d). 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 circum- stances, 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 (e). Note 1. — A form of contract came into use some years ago on the Danube called a Berth-note. It varies in form very much, but (b) Also once called a bill of loading ; the first use given in Murray is in 1599. A bill of lading, like a charterparty, used to be by " Indenture." See an example of 1538 (" This bylle indented and made, etc.") in Marsden, Select Pleas of the Admiralty Court (Selden Society, 1892), Vol. I., p. 61. (c) See Section V., post. Articles 57, 58, 75. (d) See Article 18, post ; and Rodocanachi v. Milburn (1886), 18 Q. B. D. 67. (e) See Articles 18, 19, post. J CHAETEBPABTIES. 3 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 profit. A singularly involved specimen of this document came before the Court in S.S. Rother- field V. Tweedy (/), and was held to make the broker a charterer. Ships in the Australian trade are put on the berth by loading brokers, whose rights and duties are not very clearly defined (^r). 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 char- terer than obtains from the colliery who are to supply the cargo a contract to load the ship on certain terms ; this guarantee is sometimes addressed to the charterer, sometimes to the ship- owner {h). 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 {i) ; 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 as to how much of the colliery guarantee is incorporated in the charter. In Weir v. Pirie (1st case) (k), the arbitration clause in the guarantee was held to be incorporated in the charter ; but on a difierent charter in Clink v. Hickie Borman {I), the arbitration clause was held not to be incorporated, as also in cases where the question was not as to loading, but as to complete refusal to load (m). Note 2.- — A contract may be of such a nature as that one party may be entitled to perform his obligations under it vicariously («), or it may be of such a nature that he must perform them per- sonally (o). A charterparty, as regards the shipowner's obliga- tions, is of the latter class (p). Article 2. — Nature and Effect of a Charterparty. A charter may operate as a demise or lease of the ship itself, to which the services of the master and crew may or (/) (1897), 2 Com. Cases, 84. (g) See Nitrate Producers Co. v. Wills (1905), 21 Times L. R. 699 (H. L.). (A) As to what is good tender of a colliery guarantee, see Dohell v. Green (1900), 1 Q. B. 526. As to loading on terms of " usual colliery guarantee " at Grimsby, see Shamrock S.S. Co. v. Storey (1899), 5 Com. Cases, 21. {i) Monsen v. Macfarlane (1895), 2 Q. B. 562; Thorman v. Dowgate S.S. Co. (1910), IK. B. 410. (k) (1898), 3 Com. Cases, 263. (I) (1898), 3 Com. Cases, 275. (m) Weir v. Pirie (2nd case) (1898), 3 Com. Cases, 271. (n) British Wagon Co. v. Lea (1880), 5 Q. B. D. 149. Such a contract is sometimes said to be " assignable," a word more accurately limited to the right to transfer the rights, not the obligations, of a contract. (o) Kemp V. Baerselmann (1906), 2 K. B. 604. (p) Dimech v. Corlclt (1858), 12 Moo. P. C. 199 at p. 223 ; Fratelli Sorren- tino V. Buerger (1915), 3 K. B. 307. In the latter case the shipowner 1—2 4 EFFECTS OF may not be superadded. The charterer here becomes for the time the owner of the vessel ; the master and crew become to all intents his servants, and through them the possession of the ship is in him (q). Or it may be that all that the charterer acquires by the charter is the right to have his goods conveyed by a par- ticular vessel, and, as subsidiary thereto, to have the use of the vessel and the services of the o^vner's master and crew. In this case, notwithstanding the temporary right of the charterer to have his goods loaded and conveyed in the vessel, the ownership and also the possession of the ship remain in the original owner, through the master and crew, who continue to be his servants. If the owner's master, by agreement of the owner and charterer, acquires authority to sign bills of ladmg on behalf of the latter, he nevertheless remains in all other respects the servant of the owner, and such agreement may not free the owner from liability on bills of lading signed by the master (r). Note. — ^The modern tendency is against the construction of a charter as a demise or lease (s). The cases of demise are old cases, and their authority has been somewhat shaken by modern succeeded because upon the facts it was found that he was ready to perform personally and not vicariously. (q) Sandeman v. Scurr (1866), L. R. 2 Q. B. 86, 96. The language in the text is that of Cockburn, C.J. Lord Esher in Baumvoll v. Gilchrest (1892), 1 Q. B. at p. 259, prefers to put it thus : — " the question " (whether an owner was liable for acts of the captain of his ship) " depends, where other things are not in the way, upon tliis : whether the owner has by the charter, where there is a charter, parted with the whole possession and control of the ship, and to this extent, that he has given to the charterer a power and right independent of him, and without reference to him to do what he pleases with regard to the captain, the crew, and the management and employment of the ship. That has been called a letting or demise of the ship. The right expression is that it is a parting with the whole possession and control of the ship." Cf. per Lopes, L.J., at p. 26L This view is approved by the House of Lords in the same case ; (1893), A. C. 8. Cf. also Wehner v. Dene S.S. Co. (1905), 2 K. B. 92. (r) Sandeman v. Scurr (1866), L. R. 2 Q. B. 86, 96 ; Baumvoll v. Gilchrest it Co. (1893), A. C. 8 ; Manchester Trust v. Furness, Withy ) Per Walton, J., ubi supra, at p. 125 ; Baumvoll v. Gilchrest (1893), A. C. 8 ; Marquand v. Banner (1856), 6 E. & B. 232, as explained in Gilkison v. Middhton (1857), 2 C. B., N. S. 134. (.s) Per Walton, J., uhi supra, at p. 126 ; per Channell, J., in Wehner v. Dene S.S. Co. (1905), 2 K. B. at p. 98 ; Baumvoll v. Gilchrest, v. s. ; Sandeman v. Scurr (1866), L. R. 2 Q. B. 86 (C.A.). Cf. Limerick S.S. Co. v. Coker (1916), 33 T. L R. 103 50 CHABTEB AXD contains a clause that the captain shall sign bills of lading as agent for the charterers, against shippers who do not know of the clause (t). Where there is a time charter with a clause that the captain shall sign bills of lading as presented without prejudice to the charter, the result ordinarily is that though the contract between the time charterer and sliip- owner is not affected, the shipowner cannot repudiate the terms of the bill of lading against the shipper (u). In some cases there will be no contract with the shipo"WTier, but only with the charterer (x) ; in others, a contract with the ship- owner who can look for indemnity to the charterer {y). Knowledge or ignorance of the sliipper of the terms of a charter is relevant in the following ways. If by the terms of a charter the master has no authority to sign a bill of lading in a particular form, which otherwise would be within the general authority of a master, but yet signs such a bill, the shipowner will be bound by it to a shipper ignorant of the terms of the charter, but not bound to a shipper who knew of those terms (2). The burden of proving the shipper's knowledge of the terms of the charter will be upon the shipowner (a), and a clause in the bill of lading, " all conditions as per charter," wiU not give the shipper constructive notice of such provisions (6). Shippers cannot be required to accept bills of lading in (0 Manchester Trust v. Funiess, Withy db Co. (1895), 2 Q. B. 539. (u) Turner v. Haji Goolam (1904), A. C. 826. [x) Samuel v. West Hartlepool Co. (1906), 11 Com. C. 115. This may well be so where the charterers are proprietors of a hne of steamers and issue a biU of lading in the form of their line signed by themselves ; c/. The Oke- hampton (1913), P. 173. (y) As in Kruger v. Moel Tryvan Ship Co. (1907), A. C. 272; Elder Dempster v. Dunn (1909), 15 Com. Cas. 49. But the charterer's signature may make a contract with the owner — as in Tillmanns v. Knutsford (1908), 1 K. B. 185 ; while the master, though the owner's servant, may bind the charterer and not the owner : Harrison v. Huddersfield (1903), 19 Times L. R. 386. (2) This is an apphoation of the principle that secret limitations of a general authority do not affect a third party relying on the general authority. (o) Tlie St. Cloud (1863), B. & L. 4. (b) Manchester Trust v. Furness Withy tfc Co. (1895), 2 Q. B. 539, at pp. 545, 547, 549. See also West Hartlepool Co. v. Tagart, Beaton d: Co. (1902), 18 Times L. R. 358 at p. 360. BILL OF LADING. 51 accordance with the charter, if such charter involves unusual or onerous terms of which they were ignorant, but can demand their goods back, if shipped, at the ship's expense (c). Case 1. — ^A. chartered a ship to C. to sail to X., and load from C's agent there, cargo to be stowed at merchant's risk and expense. The captain to sign bills of lading if required at any rate of freight, without prejudice to the charter. At X. goods were shipped by shippers who knew nothing of the charter, under a bill of lading signed by the master. Held, that the shippers could sue A., the master having signed as his agent (d). Case 2. — A. had purchased a ship for the purpose of seUing it to C. under an agreement which provided for payment of part of the purchase-money down and part at the expiration of a charter of the same date. Under this charter A. agreed to let, and C. to hire the steamer, for four months ; charterer to provide and pay for provisions, and wages of captain, officers, engineers, and crew, owner to pay insurance and maintain steamer in an efficient condi- tion during service, charterer to provide and pay for coal, port charges, etc. Payment for use and hire of vessel at £750 per month. Owner has option of appointing chief engineer to be paid by charterer, owner to have lien on cargoes for freights due under charter. C. appointed and paid captain, officers, and crew. A. appointed chief engineer. A. was registered as owner and managing owner. F. shipped goods on board, in ignorance of the charter, and received bills of lading, signed by the captain and a broker employed by charterer. In an action, against A. by F., on bills of lading — Held, that A. having parted with the possession and control of the vessel, the captain was not his servant so as to bind him by his signature to the bill of lading (e). Case 3. — A. chartered the Ferndene to C. by a time charter, not a demise of the vessel, the captain to be under the orders of the charterers as to employment, and the charterers agreeing to indem- nify the owners from all consequences that might arise from the captain signing bills of lading. C. sub-chartered the vessel to O., who contracted with F. for the shipment of goods, for which the ■captain then signed bills of lading at the freight arranged between (c) Peek V. Larsen (1871), L. R. 12 Eq. 378; The Stornoway (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. R. 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 : Armstrong v. Allan (1892), 8 T. L. R. 613. But contrast Ralli v. Paddington S.S. Co. (1900), 5 Com. Cases, 124, in which shippers, who knew of the existence of a charter, were held not entitled to demand their goods back from the master on his refusing to sign bills of lading except at the chartered rate of freight, which was higher than that contracted for by shippers with the charterers. (d) Sandeman v. Scurr (1866), L. R. 2 Q. B. 86. See also The Figlia Maggiore (1868), L. R. 2 A. & E. 106. (e) BaumvoU v. Gilchrest (1893), A. C. 8. 4—2 52 CHABTEB AND 0. and F. Held, the bills of lading constituted a contract between A. and F. (/). Case 4. — A. chartered the Bombay to C. by a time charter, not a demise: C. sub -chartered to O., who knew of the charter. 0. shipped cargo under bills of lading signed by the master at the sub- charter freight. A. claimed a lien on the cargo for time charter hire. Held, that A. was bound or prevented by the issue of the bill of lading from claiming a lien for more than the sub-charter hire (g). Case 5. — A. chartered the LindenJiall to C. by a time charter ; C. made a freight contract with F. for the carnage of oil at a named freight, C.'s form of bill of lading to be used. F. shipped oil, and received bills of lading signed by the captain on C.'s form and at the contract rate of freight. Held, the contract in the bill of lading was between F. and C, not A. (Ji). Case 6.- — A ship was chartered with a clause, " In signing bills of lading it is expressly agreed that the captain shall only do so as the agent for the charterers ; and the charterers hereby agi'ee to indemnify the owners from all consequences and liabilities, if any, that may arise from the captain signing bills of lading or otherwise complying with the same." In other respects the master was the servant of the owners, in whom under the charter the possession and control of the ship remained. The master signed bills of lading containing the clause, " they paying freight and all other conditions as per charter." A claim was made by the shippers on the shipowners under the bill of lading. It was not proved that the shippers knew of the clause in the charter above quoted. Held, that the shippers were entitled to sue the shipowners and were not affected by constructive notice of the terms of the charter (i). Case 1.- — On June 24, C, brokers, wrote to F., " We now beg to offer you room in ship i?." On June 26, F. accepted this, and an agreement was drawn up between F. and " C. acting for A., owners of the J?." On June 25, C. and D. jointly had chartered the R. from A., paying a lump freight, their liability to cease on loading. The master signed bills of lading, and on the voyage sold the goods. Held, that F.'s remedy was against A. and not against C. {k). Case S. — C. chartered a ship from A. and put it up as a general ship. F. put goods on board in ignorance of the charter. The captain refused to sign bills of lading except in terms of the charter, which gave the shipowner liens for demurrage and freight under the charter, and refused to deliver up the goods. Held, that shippers who had shipped in ignorance of the charter were entitled to demand their goods back rather than be bound by the provi- (/) Wehner v. Den^ S.S. Co. (1905), 2 K. B. 92 ; cj. Wastwater S.S. Co. V. Neale (1902), 86 L. T. 266 ; and Limerick S.S. Co. v. Coker (1916), 33 T. L. R. 103. (g) Turner v. Haji Goolam (1904), A. C. 826. The judgments appear to decide that the bills of lading were contracts between A. and 0. ; but the decision can be supported on the ground that there was no contract between A. and 0. giving a hen on his goods for time charter freight. [h) Samuel v. West Hartlepool S. Nav. Co. (1906), 11 Com. C. 115. (i) Manchester Trust v. Furness, Withy cb Co. (1895), 2 Q. B. 539 (C.A.). (k) Wagstaffy. Anderson (1880), 5 C. P D. 171 (C.A.), BILL OF LADING. 53 sions of the cliarter, and that the owners were bound to redeliver them free of any claim for lien or charges (l). Case 9. — C. chartered a ship from A. and put it up as a general ship. F. shipped goods in it, in which 0. had a right of property, and F. was enabled to ship those goods through the negligence of E., the master, in signing bills of lading for them. At the end of the voyage, E., with A.'s approval, delivered the goods to G., consignees under the bill of lading, in spite of O.'s demand for the goods. Held, that though E. in signing bills was probably acting as charterer's agent, yet, in delivering the goods at the port of discharge with A.'s approval, he was acting as A.'s agent, and A. was therefore liable to an action by 0. (m). (c.) Indorsee frojn Shipper. If a bill of lading given by a shipowner or his agent {n) to the shipper, whether charterer or not, and differing in its terms from the charter, comes into the hands of G., a bond fide holder for value of such bill of lading (o). I. If G. is ignorant of the terms of the charter, the ship- owner will be bound by the bill of lading {jp), even though his agent had no authority to sign it, provided that such bill is on its face within the ordinary authority of a master or broker (g), and that the difference in terms has not been obtained by fraud of any previous holder (r). II. If G. is aware of the terms of the charter, the ship- owner will not be liable to G. for a bill signed by his agent beyond any authority conferred by such charter {s). (I) Peek v. Larsen (1871), L. R. 12 Eq. 378. The question would seem to be whether the shippers were, or should in reason have been, aware of the terms of the charter. See Watkins v. Rymill (1883), 10 Q. B. D. 178 ; RalU v. Paddington 8.8. Co. (1900), 5 Com. Cases, 124. (m) 8chuster v. McKellar (1857), 7 E. & B. 704. F. could only have sued E. or C. under the bill of lading ; and, if A. had demised the ship to C, O. could only have sued C. ; but as there was no demise, and O. did not sue in contract under the bill of lading, but in tort, A. was liable to 0. (n) Cf. Baumvoll v. Gilchr est (1893). A. C. 8. (o) But where G. had before indorsement the property in the goods represented by the bill of lading, which was taken by the charterer as B.'s agent, the bill of lading was held only a receipt, and G. was bound by the charter : Belaurier v. Wyllie (1889), 17 Sc. Sess. C. 167, et ante, p. 49. (p) The Patria (1871), L. R. 3 A. & E. 436 ; Gilkison v. Middleton (18.57), 2 C. B., N. S. 1 34 ;but see note on p. 47, ante, on difficulties where the shipper is charterer. (q) Grant v. Norway (1851), 10 C. B. 655, at pp. 687, 688 ; Cox v. Bnice (1886), 18 Q. B. D. 147 ; Reynolds! v. Jex (1865), 7 B. & S. 86. And see Article 20, post, and note thereto, p. 65. (r) Mitchell v. 8caife (1815), 4 Camp. 298. («) The shipowner in such a case must prove that the bill of lading holder did know of the terms of the charter. See Case 6 (The Draupner). infra. See also Harrison v. H udders field (1903), 19 Times L. R. 386, and Article 20, infra. 54 CHABTEB AND III. In any case the terms of the charter will not be incorporated in the bill of lading without a plain expres- sion in the bill of lading of the intention to do so {t), neither will the indorsee be bound by verbal negotiations with the shipper not embodied in the bill of lading (u). 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 signed a bill of lading only con- taining 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 princes," 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. and G. were ignorant (x). Case 2. — A ship was chartered by C. 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. £196." C. indorsed the bill for value to G. fi^eW, 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 (y). 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 consideration of such advance the master loaded goods from D., giving a bill of lading, " shipped by D., to be delivered to (0 GJiappd V. Comfort (1861), 10 C. B., N. S. 802; Fry v. Mercantile Bank of India (1866), L. R. 1 C. P. 689 ; Sinith v. Sieveking (1855), 4 E. & B. 945. " Where a charter is entered into, the special provisions of that charter are binding 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 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 for any of its terms expressly incorporated in the bill of lading. And see post, Article 19. (u) Leduc V. Ward (ISm), 20 Q. B. D. 475. (.r) The Patria (1871), L. R. 3 A. & E. 436. Otherwise if F. had shipped through C, the charterer, as his agent. Delaurier v. Wyllie (1889), 17 Sc. Sess. C. 167. (y) Gilkison v. Middleton (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. Deslandes (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 per Cockburn, 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. See also }Yest Hartlepool Co. v. Tagart, Beaton & Co. (1902), 18 Times L. R. 358 ; 8 Com. Cas. 133 (C.A.). BILL OF LADING. 55 Older, 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 {z). 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 unloading 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 did not clearly show that the conditions as to demurrage in the charter were incorporated in the bill of lading, G. was not liable (a). Case 5.- — F. shipped goods on A.'s vessel, and took a bill of lading, setting out that the vessel was lying at X. and bound for Z. , with liberty to call at any ports in any order. F. knew that the ship was going to Z. by way of Y. , which was altogether out of the course of a voyage from Z. to X. F. indorsed the bill of lading to I. The ship proceeded to Y., and was lost on the way. Held, that I. was not prevented from recovery for the deviation, by F.'s knowledge of the course of the voyage, such knowledge not being embodied in the bill of lading (6). Case 6. — F. agreed to sell certain goods to P. on c.i.f. terms. The contract of sale provided " tonnage to be engaged on the terms of the annexed charter." There was annexed a form of charter which contained a negligence clause. F. chartered a steamer to carry the goods by a form of charter containing a negligence clause. The goods were shipped, and the captain executed a bill of lading which did not contain a negligence clause. P. became indorsee of the bill of lading. Some of the goods were lost on the voyage owing to negligent navigation. P. sued the shipowner upon the bill of lading for short delivery. Held, that there was prima facie evidence that P. knew of the contents of the charter effected by F., and that therefore the shipowner was not liable (c). Article 19. — Incorporation of Charter in Bill of Lading. Where the holder of a bill of lading for goods shipped on a chartered vessel is either a shipper other than the char- terer, whether aware of the charter or not {d), or an (2) Reynolds v. J ex (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), 13T. L. R. 238. (a) Chappel v. Comfort (1861), 10 C. B., N. S. 802. (b) Leduc v. Ward (1888), 20 Q. B. D. 475. (c) The Draupner (1909), P. 219; (1910), App. Cas. 450. The Courts below held that the shipowner had not discharged the onus of proving know- ledge of the terms of the charter in the shipper. The House of Lords held that he had. (d) The Patria (1871), L. R. 3 A. & E. 4.36. But where the charterer took a bill of lading in his own name, but as agent for F., the real owner of the goods, to whom he indorsed the bill of lading, F. was held bound by the charter, though the bill of lading did not refer to it. Delaurier v. Wyllie (1889), 17 Sc. Sess. C. 167, and sec p. 49, ante. 56 CHABTEB AND assignee of such bill for value, even from the charterer (e), the stipulations of the charter on any particular point will not be incorporated into the bill of lading without a plain expression in the bill of lading of the intention to do so {/). Where such an intention plainly appears it will be adopted ; thus the clause " freight and all other conditions as per charter " will incorporate into the bill of lading all conditions in the charter to be performed by the consignee of the goods (g) applicable to and consistent with the character of the bill of lading {h), or relevant to his right to take delivery of the cargo {i), but not inapplicable or in- sensible conditions (j), or clauses of the charter which would alter express stipulations in the bill of lading (k) or which are not conditions to be performed by the con- signee (g). Under such a clause holders of the bill of lading have been held liable for charterparty demurrage at the port of loading (l) or at the port of discharge (m), bound by a (e) Fry v. Mercantile Bank of India (1866), L. R. 1 C. P. 689. (/) Chappel V. Comfort (1861), 10 C. B., N. S. 802; Smith v. Sieveldng <185o), 4 E. & B. 945 ; Wegener v. Smith {1^5^. 15 C. B. 285. (g) Serrainov. Campbell (IH91), 1 Q. B. 283 ; following Russell v. Niemann (1864), 17 C. B., N. S. 16.3, at p. 177, and dicta in Taylor v. Perrin (1883) {unreported decision of the House of Lords) ; Delaurier v. Wyllie (1889). 17 So. Sess. C. 167. Diederichsen v. Farquharson (1898), 1 Q. B. 151 (C.A.), Manchester Trust v. Furness, Withy (1895), 2 Q. B. 539 (C.A.). See the latter case at pp. 545, 547, 549, as to the doctrine of constructive notice in mercan- tile transactions. See also The Draujyner (ubi supra), and The Northumbria (1906), P. 292. (h) Porteus v. Watney (1818), 3 Q. B. D. 534, at p. 542 (C.A.) ; Gardner v. Trechmann (1884), 15 Q. B. D. 154 (C.A.). Bowitt v. Paul (1878), 5 Sc. Sess. C, 4th Ser. p. 321, where the words " paying freight as per charter " were held to incorporate a stipulation for the payment to the captain of a gratuity for " good delivery." (i) Fast Yorkshire S.S. Co. v. Hancock (1900), 5 Com. Cases, 266. (j) Gullischen v. Stewart (1884), 13 Q. B. D. 317 (C.A.) ; Bryden v. Niebuhr (1884), 1 C. & E. 241 ; but see Barwick v. Burnyeat (1877), 36 L. T. 250, and Note, ante, p. 47. (k) Gardner v. Trechmann (1884), 15 Q. B. D. 154 (C.A.). See Ca.se 9 (Red. R. S.S. Co. v. Allatini), infra, and see Oostzee Stoomvart v. Bell (1906). 11 Com. Cas. 214, following The Emmy (Shipping Gazette, 9 Aug. 1905), for a difificult case as to the consistency of charterparty and bill of lading. (I) Gray v. Carr (1871), L. R. 6 Q. B. 522. (m) Porteus v. Watney (1878), 3 Q. B. D. 534 (C.A.) ; disapproving Rogers v. Hunter (1827), M. & M. 63 ; Dobson v. Droop (1830), M. & M. 441 ; gucere, whether the charter would not be satisfied by the charterers receiving £10 per diem from one shipper, though in justice such shipper should have a right, which he has not in law, to require contribution from other shippers. BILL OF LADING. 57 clause in the charterparty giving a lien for dead freight {n), and entitled to the benefit of a clause that the ship should discharge in the dock ordered by charterers (o), but the cesser clause {'p), or arbitration clause {q), or clauses as to the liability of the shipowner, such as the exceptions in the charter (r), or a clause that the captain shall sign bills of lading as agent of the charterer and not of the shipowner, will not be incorporated in the bill of lading (s). Note. — 'The phrase " he paying freight according to the charterparty " is at least as old as 1539 {t). Case 1. — C. chartered a ship from A. , " the ship to have a lien on cargo for freight 70s. per ton ... to be paid on unloading of the cargo." C. shipped part of the cargo under a bill of lading con- taining a clause, " freight for the said goods payable in Z. as per charter," and indorsed the bill for value to I. Held, that against I. the shipowner had a lien only for the freight due for the goods included in the bill of lading, and not a lien for the whole chartered freight {u). See also Straher v. Kidd (1878), 3 Q. B. D. 223; Leer v. Yates (1811), 3 Taunt. 387; Harman v. Gandolph (1815), Holt, N. P. 35. See note to Article 135 on p. 316. (n) Kish V. Taylor (1912), A. C. 604, at p. 614. (o) East Yorkshire S.S. Co. v. Hancock (1900), 5 Com. Cases, 266. (p) See note {j), p. 56, ante. (q) Thomas v. Fortsea S.S. Co. (1912), A. C. 1, following Hamilton v. Mackie (1889), 5 Times L. R. 677. For cases as to the incorporation of the arbitration clause in a colliery guarantee into the charter, see Weir v. Pirie (1898), 3 Com. Cases, 263, 271; Clink v. Hickie, Barman cfc Co. (1898). 3 Com. Cases, 275. In Temperley S.S. Co. v. Sm.yth (1905), 2 K. B. 791, an arbitration clause as to demurrage at the port of loading in a charter with a cesser clause was held incorporated in a bill of lading given to the charterers, and Runciman v. Smyth (1904), 20 Times L. R. 625, was over- ruled. Hamilton v. Mackie {supra) was said to depend on the special terms of the clause and upon the fact that the bill of lading holder was not the charterer. As to the right of the charterer to claim arbitration under a charter when he has indorsed and assigned a bill of lading issued under it, see Den of Airlie S.S. Co. v. Mitsui (1912), 17 Com. Cas. 116. (r) Russell v. Niemann (1864), ubi sujyra. Exceptions in the charter may be incorporated by apt words in the bill of lading, e.g. " All other conditions and exceptions as per charterparty," or '" all other conditions (including negligence clause) as per charter" (c/. The Northumhria (1906), P. 292). For a special case in which under such a clause the printed excep- tions in the charter were held not to be incorporated, see The Modena (1911), 16 Com. Cas. 292. {s) Note (g), supra. (t) See bill of lading of that date in Marsden, Select Pleas of the Admiralty Court (Selden Society, 1892), Vol. I., p. 89. Other examples dated 1541 and 1.544 appear »6«/ v. Reddelieti (1843), 5 M. & G. 316 ; Bae v. Hackett (ISU), 12 M. & W. 724. (y) Sieveking v. Maas, vide supra. Lord Campbell's remarks in this case seem inconsistent with Rae v. Hackett, vide supra, where charterer's failure to name a port was held to justify the shipowners in proceeding ; but there the port to be named was the port of loading, in this case, the port of dis- charging ; and all it was necessary to decide was that the shipowner was not hable to an action for proceeding without orders. I have, however, altered Lord Campbell's " should " to " might," to cover the two cases. (z) Dahl V. Nelson (1881), L. R. 6 App. C. 38. See also Nelson v. Dahl (1879), 12 Ch. D. 568, especially at p. 591. 106 80 NEAR A8 SHE ship is engaged (a). Thus in tidal rivers or harbours she is usually bound to wait till ordinary spring tides (6) ; in ice- bound rivers or seas, till the ice melts (c) ; in case of delay by fulness of docks, a time reasonable from a commercial point of view {d). If wholly imexpected circumstances, such as a war or a blockade, intervene, the clause will not protect the master in delivering at the nearest safe port and claiming his freight, though such a course may be a reasonable one for him to take (e). Case 1. — ^A ship was chartered to proceed '' to the Z. Docks, or so near thereto as she can safely get." She reached the dock gates on August 4 ; hut the docbs were quite full, though application had heen made on the ship's behalf on July 16, and at least five weeks would elapse before the ship could be discharged. Heldy that the shipowner was bound to wait a reasonable time to go into the docks, but that if he could only go in by waiting an unreason- able time, he was entitled to call upon the charterer to take delivery outside the dock gates at charterer's expense. Held, also, that the delay required to enter the docks in this case was unreasonable (d). Case 2. — A ship was chartered to proceed to a berth within certain limits in the port of Plymouth, or " so near as she could safely get." She could not at neap tides get to the berth named,, but could at spring tides. She arrived at neap tides. Held, that (a) Per Lord Blackburn, 6 App. C. p. 54 : " What would be the effect on the object of the contract, and the damage to each party caused by the delay ? " Per Brett, L.J., 12 Ch. D. p. 593 : " Notice must be taken of what the particular adventure in each case is." (6) Parker v. Winlow (1857), 7 E. & B. 942 ; Bastifell v. Lloyd (1862), 1 H. & C. 388. Schilizzi v. Derry (1855), 4 E. & B. 873. Cf. The Curfew (1891), P. 131. It apparently will not alter the case if the low tides occur in the middle of the ship's loading time, so that she has to go away and return to complete her loading. Carlton S.S. Co. v. Castle Mail Co. (1898), A. C. 486. (c) Schilizzi v. Derry, vide supra, at p. 886 ; Metcalfe v. Britannia Iron Worl-s (1877), 2 Q. B. D. 423 ; and see per Brett, L.J., 12 Ch. D. at p. 593. (d) Dahl V. Nelson (\8^\), 6 App. C. 38. (e) Castel Latfa v. Trechman (1884), 1 C. & E. 276. Cf. St. Enoch Co. v. Phosphate Co. (1916), 2 K. B. 624. But this is now frequently provided for by express clauses. See Nobel v. Jenkins (1896), 2 Q. B. 326, and note, p. 107. But if there is no prospect of the removal of the obstacle within a reasonable time, the master or shipowner can throw up the contract ; Geipel V. Smith (1872), L. R. 7 Q. B. 404. In that case he will still have the duty of providing for the cargo in the way most beneficial to its owner (see Articles 95, 101), and he will be entitled to recover any expenses incurred in so doing : Cargo ex Argos (1813), L. R. 5 P. C. 134, and Articles 101, 138, post. What is the nearest safe port must be a question of fact in each case ; cf. East Asiatic Co. v. Tronto Co. (1915), 31 T. L. R. 543. It does not, of course, follow that the nearest safe port, though possibly the most convenient to the- shipowner, is the port most beneficial to the cargo -owner. CAN SAFELY GET. 107 she must wait till spring tides ; the delay by tides in a tidal harbour being in the ordinary and regular course of navigation ( / ). Case 3. — Ship chartered, "' to Galatz, or so near thereto as she should safely get." She reached the mouth of the Danube, ninety-five miles from G., on November 5, but there was not then enough water to enable her to cross the bar ; she remained there tin December 11, when the anchorage was no longer safe, and she accordingly proceeded to Odessa, the nearest safe port. There was water enough on the bar on January 7. Held, there had been no performance of the charter ; the rising of the Danube at the beginning of the year being a well-known incident in Danube navigation, the master was bound to wait. The vessel was bound to get within the ambit of the port before discharging, though she might not reach the actual harbour (g). Case 4. — Charter " to Taganrog, or so near as she could safely get and deliver the cargo afloat." On arriving at Kertch, three hundred miles by sea, seven hundred by land, from T., the ship was prevented by ice from entering the Sea of Azof. She claimed under the clause to deliver at Kertch. Held, this was not a delivery under the charter, the obstruction being only temporary, and such as must be incident in every voyage to a frozen sea {h). Case 5. — Charter " to Taganrog, or so near as she may safely get." Owing to Turkish blockade the ship was unable to reach T., and accordingly proceeded to Constantinople, the nearest safe port, and claimed to deliver her cargo there. Held, not a delivery under the charter, the clause being intended to meet the case of the ship not being able absolutely to get to the very place or dock stipulated, but not enabling- the vessel to go to any port to which under the circumstances it is a reasonable course for the master to go (i). Note. — The question of the disposition of the cargo on bills of lading or charters, where the vessel is prevented from reaching her port of destination, is now often dealt with by clauses of this kind : — " In case of the blockade or interdict of the port of destination, or if without such blockade or interdict the enter- ing of the port of discharge should be considered unsafe by reason of war, infectious disorder, quarantine disturbances, ice, or from any other cause (k), the master to have the option of landing the goods at any other port he may consider safe, at shipper's risk and expense, when the ship's responsibility shall cease ; " or : — '* when the navigation of the continental ports is (/) Parker v. Winlow (1857), 7 E. & B. 942. See also Bastifell v. Lloyd (1862), 1 H. & C. 388. Per Bramwell, B., " it would be different if there were only one or two tides in the year." (g) Schilizzi v. Derri/ (1855), 4 E. & B. 873. Lord Campbell, p. 886, com- pared detention by insufficient water to detention by ice. {h) Metcalfe v. Britannia Iron Works (C.A.) (1877), 2 Q. B. D. 423. It is doubtful whether the conclusion of fact here would now be arrived at. (i) Castel v. Trechman (ISS4), 1 C. & E. 276 (Stephen, J.), see note (e), ante. (k) To which phrase the doctrine of ejusdem generis must be ajipUed. Knutsford v. Tillmans (1908), App. Gas. 406. 108 SO NEAR AS SHE obstructed by ice (Z), the goods to be landed at the nearest avail- able port at the risk and expense of the consignor, such delivery being considered final ; " or : — '' should hostilities render it unsafe for the steamer or her cargo to proceed to the port of destination, she has liberty to discharge her cargo at any near available port, and there end her voyage, giving shippers due notice of such fact." This power is sometimes given the master " in case of appre- hension of such prevention, or in case of war or hostilities ren- dering the further prosecution of the voyage in the opinion of the master (?) or owners unsafe." Without such clauses as these, though the master might delay or deviate to avoid danger, he could not land the goods or give up the intention of proceeding to the original port of destination, at any rate till such delay had ensued as to defeat the commercial purpose of the adven- ture ; semble, even then he would not be entitled to freight ; though he might be entitled to the expenses of delivery. (See Articles 138, 139, 143.) Article 37.—" Safely.'' " Safely," means " safely, as a laden ship " (m). The ship therefore is not bound to load part of her cargo in the port, and then take on board outside the port the part of the cargo she could not safely load in port {n). Neither is she bound to unload before reaching the port, to enable herself to proceed to a port she could not reach in safety at her laden draught of water (o). Case 1. — ^A ship was chartered " to a safe port as ordered, or as {I) " Obstruction " or " inaccessibility " in such a clause must arise from obstacles that prevent the port being reached except after inordinate delay. And the " opinion of the master " must be justified by the facts. Where on a voyage from England to Vladivostock the ship was delayed for three days by ice, upon which the master went to Nagasaki, but just after he turned back the ice cleared away so that ships could get into 'N^adivostock, it was held that the shipowners were not protected under the clause " Should a port be inaccessible on account of ice ... or should entry at a port be deemed by the master unsafe in consequence of war, disturbance, or any other cause, it shall be competent for the master to discharge at some other safe port." Knutsford v. Tillmans, ubi supra. (m) Shield V. Wilkins (1850), 5 Ex. 304. (w) The Alhambra (1881), 6 P. D. 68 (C.A.). Shield v. Wilkins (1850), 5 Ex. 304. See also Hayioii v. Invin (1879), 5 C. P. D. 130 (C.A.). She may in a tidal harbour be bound, after commencing loading on one spring tide, to wait till the next spring tide to complete it. Carlton S.S. Co. v. Castle Mail Co. (1898), A. C. 486. (o) Shield V. Wilkins, vide supra ; Erasmo Treglia v. Smith''s Timber Co. {1896), 1 Com. Cases, 360, a charter to discharge at Sutton Bridge ; Reynold-^ V. Tomlinson (1896), 1 Q. B. 586 (Gloucester and Sharpness) ; Hall v. Paul (1914), 19 Com. Cas. 384 (King's Lynn). CAN SAFELY GET. 109 near thereto as she can safely get, and always lie and discharge afloat." The ship was ordered to Lowestoft, where the vessel could not " lie always afloat," without previously discharging some of her cargo outside the port. Held, that the shipowner was not bound to go to such a port, but only to one where the vessel on her laden draught of water could always lie afloat safely (p). Case 2. — A ship was chartered to X., " or so near thereto as she can safely get." X. is a bar-harbour ; the ship was loaded inside the bar as deep as the water on the bar would allow, and the charterer then required her to complete her loading at her own expense outside the bar. Held, that the ship was not required by the charter to do so, for she could not be said to " safely get " to a place from which she could not safely get away with a full cargo, and her going inside the bar was therefore only for the charterer's accommodation. According to the terms of the charter, she need not have crossed the bar at all {q). Case 3. — A vessel was chartered to proceed " to a safe port, or as near thereto as she can safely get, and deliver same ... to discharge as customary with all possible dispatch, cargo to be taken from alongside ship at merchant's risk and expense." She was ordered to Z., but could get no nearer than Y. The shipowner claimed to deliver enough at Y. to lighten his vessel, at charterer's expense ; the charterer set up a custom at the port of Z. that the ship must get to Z. at her own expense. Held, that the custom was inconsistent with the contract, and the charterer must pay the expense of lightening (r). Note 1. — At all times of the tide and always afloat. — This clause- will relieve the ship of the duty of waiting in a tidal river or harbour till the tide serve her to proceed to the dock or wharf where she is to discharge : under it the charterer will be re- quired to name a loading or discharging berth, where she can lie " always afloat at all times of the tide." The clause " always afloat " alone will not justify a vessel in declining to go to a berth where she cannot lie continuously always afloat, if she can (p) The Alhambra, vide supra. {q) Shield v. Wilhins, vide supra. If she had not crossed the bar, the charterer must have borne the expense of loading outside by Ughters r Trindade v. Let'?/ (1860), 2 F. & F. 441 ; but if, having gone inside, she had loaded a full cargo, and been obhged to unload to get out, she must have paid the expense of loading outside, and must carry the full cargo to earn her freight. General Steam Navigation Co. v. Slipper (1862), 11 C. B., N. S. 493. Where a vessel chartered to load always afloat in a dock could do so, but could not leave the dock except at spring tides : — Held, that she was bound to load in the dock and wait for spring tides, and was not entitled to go to another dock when partly loaded and require the charterers to lighter her cargo to her. The Curfew (1891), P. 1.31. (r) Hayton v. Irwin (1879), 5 C. P. D. 130. There was no express decision that the ship was bound to proceed to Z. after hghtening. It is submitted that she was not, if Y. was outside the port of Z. {The Alhambra (1881), 6 P. D. 68), and if Y. was in the port of Z. the lay-days would begin to count from her readiness to unload at Y., in the absence of any custom of the port, Nielsen v. Wait (1885), IG Q. B. D. 67. 110 so NEAB AS SHE CAN SAFELY GET, do so partly before and partly after neap tides (s). So where the ship is chartered " to load as customary always afloat at such wharf or anchorage as the charterers may direct," and the char- terers direct her to a wharf where she can load part of her cargo afloat, but will afterwards require to load the rest of her cargo from lighters at an anchorage (that being a customary method of loading in the port), the charterers commit no breach of the charter {t). Case. — A ship was chartered to Z., " or so near thereto as she may safely get, at all times of tide and always afloat." She arrived at Y. on September 5, but the tides would not allow her to proceed to Z., " always afloat," till September 9. Held, that the vessel had " arrived at Z.," for purposes of demurrage, on Sep- tember 5 [u). If chartered "to load always afloat," and she is ordered to a berth where she can lie always afloat, but which she can only get to and from at certain times of tides, she is bound to wait for suitable tides (x). Note 2. — A dock as ordered on arriving, if sufficient Water. Case. — A ship was chartered to proceed to Z. to discharge in " a dock as ordered on arriving, if sufficient water, or so near thereto as she may safely get, always afloat." On arriving at Z. she was ordered to the C. dock, but there was not for foiu- weeks sufficient water in the C. dock. Held, that there must be " suffi- cient water " in the dock when the order is given, and that, if there is not, the ship is not bound to discharge in the dock named (y). Note 3. — The Scots cases Hillstrom v. Gibson (2) and Dickinson v. Martini (a), which follows Hillstrom v. Gibson, and certain dicta in the English cases of Capper v. Wallace (6) and Nielsen v. Wait (c), cannot be accepted as sound. They are inconsistent with the decision in The Alhambra (d) and subsequent cases in which The Alhambra has been followed. The Alhambra in effect decides that where the ship is to go to " a safe port," it must be a port to which she can go as a loaded (s) Carlton S.S. Co. v. Castle Co. ( 1898), A. C. 486. In that case, however, the ship was chartered to load in Senhouse Dock. The Superior Courts did not say what was to happen to her during the time when she would have taken the ground if she stayed in the dock ; and it is doubtful whether the decision would apply to a case where " a safe berth " was to be named. Perhaps the ship must wait outside tiU after the first neap tides. (/) Aktieselkabet Ingleicood v. Millar (1903), 8 Com. Cas. 196. (u) Horsley x. Price (1882), 11 Q. B. D. 244. AVithout the clause " at all times of the tide," the ship must have waited at her own expense till the 9th Parser v. Winlow (1857), 7 E. & B. 942. (.r) The Cwr/ezr (1891). P. 131 : see note (q), supra. (y) Allen v. Co/to7 (1883), 11 Q. B. D. 782. (2) (1874), 8 Sess. Cas., 3rd Ser. 463. (a) (1874), 1 Sess. Cas., 4th Ser. 1185. (6) (1880), 5 Q. B. D. 163. (c) (1885), 14 Q. B. D. 516. (rf) (1881), 6 P. D. 68. WHERE TEE CABBYING VOYAGE BEGINS. Ill ship, and the master is not bound to discharge part of his cargo short of the destination, in order, with a lighter draft, to get to that destination and discharge the remainder. Hillstrom v. Gibson and Dickinson v. Martini are inconsistent with this. In Capper v. Wallace (e) (decided the year before The Alhambra) the Court, on the authority of Hillstrom v. Gibson, say that it is the duty of the master so to lighten his ship. In Nielsen v. Wait (/) (in which The Alhambra was not cited) there is a dictum of Pollock, B., based upon Hillstrom v. Gibson, to the same effect. The Alhambra has since been followed and approved in several English cases, viz. : Reynolds v. Tomlinson (g), Erasyno Treglia v. Smith's Timber Co. (h), and in Hall Brothers v. Paul{i), and the principle it lays down may now be considered as firmly estab- lished {h). Article 38. — Loading under a Charter. — Duty of Shipowner. At the port of loading the rights of the shipowiier and the obligations of the charterer as regards loading the cargo will begin when : — (1) The ship is at the place where she is bound to be ready for cargo (Article 39), or, if there is the provision in the charter, and the circumstances justify its apphcation, " so near thereto as she can safely get." (Articles 36, 37, 39.) (2) The ship is, so far as she is concerned, ready to load. (Article 40.) (3) The charterer has notice of the above facts, (Article 41.) When these conditions are fulfilled the vessel is " an arrived ship," and the lay-days, or days allowed the ship for loading, begin {I). (e) 5 Q. B. D. at p. 166. (/) 14 Q. B. D. at pp. 522, 523. (g) (1896), 1 Q. B. 586. {h) (1896), 1 Com. Cas. 360. (/) (1914), 19 Com. Cas. 384. Sankey, J., there expressly disapproves of Hillstrom v. Gibson and the dicta in Capper v. Wallace, and in Nielsen v. Wait. {Ic) In pre\-ious editions of this work the conflict of these cases has been discussed in much greater detail in the equivalent of this note. In view of the repeated affirmation of the principle of The Alhambra, the elaboration of the point seems no longer necessary. [1) By express provision of the charter the lay-days for loading or dis- charging may begin at some arbitrarily selected point, e.g. " when the vessel is reported at the Custom House," Horsley Line v. Boechling (So. (1908), Sess. 112 WEEBE THE CABBY IS G In some cases upon the happening of the above three events the charterer will also be bound to load the cargo. In other cases the charterer mil be bound to load the cargo only when : — (4) The ship is at the place at which the charterer is bound to load the cargo. (Article 39.) In other words, of the above events ( 1 ) may coincide with (4), or may precede it. The above principles as to the rights and obhgations as to loading at the port of loading are the same as regards discharge at the port or place of discharge except that (3) " Notice of readiness " is not necessary at the port of discharge. (See Article 124.) Article 39. — Where the ship must he ready to load. — Where the charterer is hound to load. As mentioned in Article 38, one must distinguish (1) : — the place at which the ship becomes an '" arrived ship " under the charter, so that her lay-days begin, from (2) : — the place at which the charterer is bound to put the cargo on board the ship. These two points depend in every case upon the terms of the charter. They may coincide, or the first may precede the second, as appears below (m). I. If the charter is to proceed to a specified and actual " loading spot " {n), i.e. a named wharf, or a specific berth, at a quay, or within a dock, then (1) : — the sliip will only be an " arrived ship "' when she gets to the named " spot," and (2) : — the charterer will only be bound to load the Cas. 866). Cj. ^^orthfield Co. v. Compagnie des Gaz (1912), 1 K. B. 434. " Reporting day," which is commonly referred to in such clauses {e.g. " reporting day not to count "), refers to the entry of the ship at the Customs. Unless justified as an exception to the rule upon its special facts, Larrinaga V. Green (1916), 2 Ir. Rep. 126, seems to be wrong as to this. (m) The leading cases on this topic are Nehon v. Dahl (1879), 12 Ch. D. 568, and Leonis Co. v. Rank (1908), 1 K. B. 499. (n) Cf. Kennedy, L. J., as to this phrase, Leonis Co. v. Rank {ubi supra), at p. 521. VOYAGE BEGINS. 113 ship when she gets to the named spot : (i.e. the two points coincide) (o). The position is the same if the charter is to proceed to a wharf or quay or berth, " to be named by the charterer," the effect of this provision being as if the berth " named " was actually specified in the charter {p). II. If the charter is to proceed to a named dock {i.e. an area containing several possible " loading spots "), or to a dock " as ordered " or " to be named " (q), then (1) : — ^the ship will, in the absence of any custom of the port regu- lating the matter, be an " arrived " ship when she gets inside the specified dock and is, so far as she is concerned, ready to load (r), but (2) : — the charterer will be entitled (o) Brett, L. J., Nelson v. Dahl {ubi supra), at pp. 581, 582, 584 ; Strahan v. Gabriel (not reported, cited 12 Ch. D. at p. 590) ; Watson v, Borner (1900), 5 Com. Gas. 377. Mere arrival in fact at the berth is not enough ; the ship must be there by permission of the authorities, if any, and of right. Good v Isaacs (1892), 2 Q. B. 555. Cf. Hull S.S. Co. v. Lamport (1907), 23 T. L. R. 445, where the ship was prepared to go to the named berth, and it was vacant, but the authorities would not allow her to go to it by reason of part of the cargo consisting of explosives. The charterers were liable for the cost of lighterage to the named berth. (p) Tharsis Co. v. ifweZ (1891), 2 Q. B. 647 ; Murphy v. Coffin (1883), 12 Q. B. D. 87 ; Good v. Isaacs (1892), 2 Q. B. 555 ; Bulman v. Fenwick (1894), 1 Q. B. 179; Modesto v. Dupre (1902), 7 Com. Cas. 105; Aktieselskabet Inglewood v. Millar's (1903), 8 Com. Cas. 196. Cf. Hull S.S. Co. v. Lamport (1907), 23 T. L. R. 445. where the berth " to be named " under the charter was named in the bill of lading. Parker v. Winh (1857), 7 E. & B. 942, if rightly decided, must have fallen within this principle. See Leonis Co. V. Rank (1908), 1 K. B., at p. 514. The Carisbrook (1890), 15 P. D. 98, was wrongly decided and is overruled by Tharsis Co. v. Morel (ubi supra). Where the charter is "to proceed to a ready quay berth as ordered," the charterer will on the ship's arrival be bound to name a berth then ready for loading, and will be liable for damages for delay in doing so ; Harris v. Marcus Jacobs (1885), 15 Q. B. D. 247. As to damages for not loading " in regular turn," see Jo?ies v. Adamson (1876), 1 Ex. D. 60; Taylor v. Clay (1846), 9 Q. B. 713. (q) Tapscott v. Balfour (1872), L. R. 8 C. P. 46. It is " precisely as if that dock had been expressly named in the charter originally," ibid, at p. 52. Cf. Norden S. Co. v. Dempsey (1876), 1 C. P. D. 654 at p. 655. (r) Tapscott v. Balfour [ubi supra) ; Randall v. Lynch (1810), 2 Camp. 352 ; Brett, L.J., Nelson v. Dahl (1879), 12 Ch. D. 568, at pp. 581, 582, 584. Davies v. McVeagh (1879), 4 Ex. D. 265, if rightly decided, must be under this principle. See Brett, L.J., 12 Ch. D. at p. 590. In Monsen v. McFar- lane (1895), 2 Q. B. 562, the charter was " to proceed to a customary loading place in the Dock as required by charterers." If this had stood alone the case would have fallen under I. above and been governed by Tharsis Co. V. Morel (ubi supra). But the charter went on " to be loaded as per coUiery guarantee." By the colliery guarantee the undertaking was " to load in 15 days after the ship is ready in dock at G." It was held that the guarantee was incorporated, that the ship was therefore to be " ready in dock," and the case was governed by the principle of Tapscott v. Balfour [ubi supra). See 114 WHEBE THE CABBYING to select the actual berth at which he will load the ship and he is not bound to load her till she gets there (s). In this case the two points do not coincide {t). But in such a case by the custom of the port the ship may not be an " arrived " ship until she has got, not merely into the area of the named dock, but also into a berth where loading can take place \\athin that dock (u). III. The same rule apphes, mutatis mutandis, where the charter is to proceed to a " port," or to " a port as or- dered " (v), or other area larger than the " dock " dealt with in II. In the same way (1) : — the ship is, subject to the effect of custom, an arrived ship when she gets within the named port or area (x), and (2) : — ^the charterer can select the actual berth or " loading spot " at which he is to do the loading {y). But as the area of a " port " is vague (2), the application of this rule is subject to the limitation that it is not enough also Thormayi v. Doivgate S.S. Co. (1910), 1 K. B. 410, in which Monsen v. McFarlane was followed and Shamrock S.S. Co. v. Storey (1898), 4 Com. Cas. 80, distinguished. (s) The Felix (1868), L. R. 2 A. & E. 273. That the charterer has this right to select the actual loading berth does not have the same result as if the charter was expressly " to proceed to a berth as selectei^by the charterer " (see above under I.) ; see Leonis Co. v. Rank (1908), 1 K. B. at pp. 515, 516. Sanders v. Je7ikins (1897), 1 Q. B. 93, seems to have been wrongly decided upon an assumption to the contrary of this. (t) They might, if the dock were so small a basin that to be inside it would be to be alongside the onlv berth within it. (u) Norden S.S. Co. v. be7npsey (1876), 1 C. P. D. 654. It is possible that under such a custom the two points still would not coincide, e.g. the shi|f may by the custom be " arrived " by getting into some proper berth within the dock, but the charterer may desire and require her to load at another. This point does not seem to have arisen. (v) Brown v. Johnson (1842), 10 M. & W. 331 ; Thiis v. Byers (1876), 1 Q. B. D. 244. (x) Leonis Co. v. Rank (1908), 1 K. B. 499 ; Pyinan v. Dreyfus (1889), 24 Q. B. D. 152 ; Jaques v. Wilson (1890), 7 T. L. R. 119. See also Brovm v. Johnson (1842), Car. & M. 440, for a compUcated question (left to the jiu-y) as to what was the selected port for loading. By the express terms of the charter the time for loading may begin at an arbitrary point without regard to the rules here laid down. Thus where the ship was " to proceed to Savona — and there deliver — time to discharge to begin on being reported at custom house," it was held that the time began on reporting at custom house, even though the ship at that time was not j'et within the limits of the port of Savona. Horsley Line v. Roechling, Sc. (1908), Sess. Cas. 886. (y) The Felix (1868), L. R. 2 A. & E 273 ; Pyman v. Dreyftis {ubi supra) ; The Mary Thomas (1896), 12 T. L. R. 511. (z) " For instance Gravesend is part of the port of London," per Lord Abinger, Broum v. Johnson (1842), 10 M. & W. at p. 334. VOYAGE BEGINS. 115 to make her " arrived " for the ship to have got merely into the legal or fiscal limits of the port. She must have got to that part, or some part, of the port, in which the loading of vessels does take place, i.e. she must in a business sense have got to the port as a place where she is to be loaded [a). And again the custom of the port may prevent her from being an "arrived " ship when she is merely within the port in its business sense (b). It may by custom be necessary for her to have arrived in some particular part (c), or in a dock (d), or in some particular dock (e), within the port. Where the charter provides that the ship shall proceed to a berth, or dock, or port, " or so near thereto as she can safely get," the point where the ship becomes " an arrived ship " in each of the foregoing three cases may be not the actual named point but the substituted point " near thereto " under the provision (/ ). The circumstances in which the shipowner is entitled to go to such substituted point have been discussed in Articles 36 and 37, supra. Where the charterer has the right to select, under the foregoing rules, the place to which the ship must proceed (a) Brett, L.J., Nelson v. Dahl, 12 Ch. D. at p. 582,—" If a larger port be named the usual place in it at which loading ships he." Cf. Cargo ex Argos (1873), L. R. 5 P. C. at p. 160 ; and cf. Kennedy, L.J., Leonis Co. v. Bank (1908), 1 K. B., at p. 519. See also La Cour v. Donaldson (1874), 1 So. Sess. Cas. 4th Ser. 912 ; Bremner v. Burrell (1877), 4 Sc. Sess. Cas. 4th Ser. 934 ; Caffarini v. Walker (IS16), Ir. Rep. 10 C. L. 250 ; M'Intosh v. Sinclair (1877), It. Rep. 11 C. L. 456. (b) " It may ... be open to a charterer to prove . . . that there is a recognised and established custom of the port not to treat a ship as an arrived ship until she reaches a particular spot." Per Kennedy, L.J., Leonis Co. V. Rank (1908), 1 K. B. at p. 520. Proof as regards a foreign port of the rules of the law of the country as a whole, differing from the English law as to an arrived ship, will not suffice to support an allegation of such a custom ;. Anglo-Hellenic Co. v. Dreyfus (1913), 108 L. T. 36. (c) Brereton v. Cha'pman (1831), 7 Bing. 559 ; Kell v. Anderson (1842), 10 M. & W. 498 ; Thiis v. Byers (1876), 1 Q. B. D. 244. (d) Broivn v. Johnson ( 1842), 10 M. & W. 331. In that case " it must have been assumed or proved that the usual place of unloading ships in the port of Hull was in a dock," Brett, L.J., Nelson v. Dahl, 12 Ch. D. at p. 586. (e) Nielsen v. Wait (1885), 16 Q. B. D. 67. But evidence of such a custom may be inadmissible as being inconsistent with the terms of the charter, Reynolds v. Tomlinson (1896), 1 Q. B. 586. In the latter case Nielsen v. Wait was distinguished, but it is difficult to reconcile it with The Alhambra (1881), 6 P. D. 68. See Note 3 to Article 37, supra. (f ) Whether the ship has become " an arrived ship " by reaching such a substituted point may involve a doubtful and difficult question of fact. Cf. The Fox (1914), 83 L. J. (P.) 89. 116 WEEBE THE CABBYIXG in order that she may be an " arrived " ship, he must exer- cise his right of selection reasonably. He need not select, in the interests of the shipowner, a place that is then free and accessible (g), so long as he selects one that is likely to be free in a reasonable time (A). In determining what is a reasonable selection of a place of loading by the charterer it is material to consider how far access to it is prevented or delayed " by obstacles caused by the charterer or in consequence of the engagements of the charterer." For if the ship is prevented by such causes " the lay-days com- mence to coimt as soon as the ship is ready to load, and would, but for such obstacles or engagements, begin to load at that place " (i). If the charterer will not name any berth he will be Hable for any damages occasioned by his refusal or delay (k). When the ship has become an " arrived " ship, but the charterer has still the right to select the berth at which he will load her, it does not much matter how or when he exercises his selection of the berth for loading : any delay will be at his risk of paying demurrage or damages for detention. Note. — There is probably no region of the English case law in ig) Murphy v. Coffiyi (1883), 12 Q. B. D. 87 ; Tharsis Co. v. Morel (1891), 2 Q. B. 647. See as to colHery guarantees Dobell v. Green (1900), 1 Q. B. 526 (C.A.). (h) Per Bowen, L.J., Tharsis Co. v. Morel (vbi supra), at p. 652. In Bulman v. Fenwick (1894), 1 Q. B. 179, 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 that is so blocked that the obstacle cannot be removed in a time consistent with the commercial adventure. 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. Castle Mail Co. (1898), A. C. 486. If the owner, without waiting for the charterer to select a berth, proceeds to one of his own choice he must bear the expense of proceeding to the one selected, if selected reasonably, by the charterer ; The Felix (1868), L. R. 2 A. & E. 273. (i) Per Kennedy, J., Aktieselskabet Inglewood v. Millar s (1903), 8 Com. Cas. 196, at p. 201. See also Watson v. Borner (1900), 5 Com. Cas. 377 ; Ogmore v. Borner (1901), 6 Com. Cas. 104. But see also and contrast Harrowing v. Dupre' (1902), 7 Com. Cas. 157; Quilpue v. Broivn (1904), 2 K. B. 264 (C.A.). The unsatisfactory cases, Ashcroft v. Crow Orchard Co. (1874), L. R. 9 Q. B. 540 ; and Wright v. New Zealand Co. (1879), 4 Ex. D. 165, might conceivably be explained upon this principle, but probably they should be considered to have been wrongly decided. See post, note to Article 132-133. (k) Stewart v. Rogerson (1871), L. R. 6 C. P. 424. VOYAGE BEGINS. 117 which it is more difficult to reconcile all the decisions to be found in the books than that which is the subject of the fore- going article. The principles involved have been reviewed at intervals (notably in 1879 in Nelson v. Dahl (l), in 1891 in Tharsis Co. V. Morel {m), and in 1908 in Leonis Co. v. Rank {n) ), and they appear to be now settled in the manner stated in the above article. That many cases can be found which at first sight, or even after exhaustive examination, seem inconsistent with these rules must be admitted. It seems unnecessary to follow the various heroic efforts made to explain or reconcile such cases at various times and by various judges. It will suffice to indicate a few of the more important ones. 1. The Carishrook (o) was wrongly decided, and is overruled by Tharsis Co. v. Morel (w). The Scotch case of DalV Orso v. Mason (p) seems to be erroneous for similar reasons {q). 2. Davies v. McVeagh (r) is to be explained in accordance with the view of Brett, L.J., in Nelson v. Dahl {s), as a decision in accordance with Tapscott v. Balfour (t), the charter being treated as one to load in the Wellington Dock, and not as one to load at the High Level in the W. Dock ; and the dicta of Bramwell, L.J., which put the risk of delay in arriving at a berth under the latter form of charter on the shipowner and not on the charterer, are to be treated as overruled (w). 3. Ashcroft v. Crow Colliery Co. (x), which Bramwell, L.J., in Davies v. McVeagh (r), professed to follow, is wrong, if it holds that lay-days begin before arrival at the place named for load- ing. It may possibly but very unsatisfactorily be explained, as by Lord Blackburn (y) and Brett, L.J. (s), as a decision on the extent of the charterer's liabilities and not as to the time when they began ; but it is submitted that the most satisfactory way of dealing with it is to treat it as a decision that where the only obstacle to the ship's reaching her berth is the previous liabilities of the charterer or his agents which would require unreasonable (0 12 Ch. D. 568. (m) (1891), 2 Q. B. 647. (n) (1908), 1 K. B. 499. (o) (1890), 15 P. D. 98. (p) (1876), 3 Sc. Sess. Cas. 4th Ser., 419. (q) See Tharsis Co. v. Morel (1891), 2 Q. B. at p. 653. (r) (1879), 4 Ex. D. 265. («) 12 Ch. D. 589. (0 (1872), L. R. 8 C. P. 46. (u) See Tharsis v. Morel (1891), 2 Q. B., at pp. 650, 651. (x) (1874), L. R. 9Q. B. 540. (y) In Postlethwaite v. Freeland (IS80), 5 App. Cas., at p. 622. It has been otherwise explained by Barnes, J., in Ogmore v. Bonier (1901), 6 Com. Cases, 104, as a case depending solely on its particular facts in which the Court " construed the particular contract as imposing an absolute obHgation to load the vessel with the usual dispatch of the port, and that it was immaterial to consider whether the delay occurred inside or outside the dock." See also 118 WEE BE THE CABBTIXG waiting, the lay-days begin when the ship is ready to proceed there (2). 4. The Scotch case of Stephens v. Macleod (a), 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 {semhle 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 {h). 5. Parker v. Winlo (c) is wrong, unless it is to be explained as suggested in Leonis v. Rank {d). 6. Sanders v. Jenkins (e) is wrong, unless there was some proof of custom which is not apparent in the report. It was decided upon an admission of counsel, rightly made in view of The Felix (/), the effect of which admission seems to have been misapprehended by the Court {g). 7. Milverton v. Cape Town Gas Co. {h) seems doubtful, unless (i.)it^was a case of a charter to proceed to a dock, or (ii.)itwas a charter to a port, but there was some custom of the port making arrival in dock necessary. The facts are not very clear. 8. 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 particular place of loading specified in or named vmder the charter, is dis- countenanced by the decision in Tharsis Co. v. Morel {i), on the clause '*■ with all dispatch as customary," approving Tapscott v. Balfour (6), a case of fixed lay-days, and approved in Good v. Isaacs (jf), on the clause '"as fast as steamer can deliver as customary." Case 1 (A;). — A ship was chartered to take coals to London, the per Bigham, J., in Harrowing y. Dupre {1902), 7 Com. Cases, 157. This view, it is submitted, is inconsistent with the cases cited above. (2) See footnote (i), supra. (a) (1891), 19 So. Sess. C. 38. (b) (1872), L. R. 8 C. P. 46. (c) (1857), 7 E. & B. 942. (d) (1908), 1 K. B., atp. 514. (e) (1897), 1 Q. B. 93. (/ ) (1868), L. R. 2 A. & E. 273. {g) See Leonis v. Rank (1908), 1 K. B., at pp. 515 — 516. (h) (1896), 2 Com. Cas. 281. ♦ ) (1891), 2 Q. B., at pp. 650, 651. 0) (1892), 2Q. B. 555. (A-) As the law as to loading and unloading on this point is identical, with VOYAGE BEGINS. 119 vessel to be delivered in five working days : she entered the port of L. at Gravesend 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 (1). 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 for loading and discharging the cargo." The steamer was ordered to Gloucester and arrived at Sharpness, within the port of Gloucester, 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 vesselfe 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. (m). Case 3. — A ship was chartered to proceed to any dock at Z., as ordered by charterers, and there load coal in the ugual and custo- mary 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 charterers' agent having already three vessels in the dock, she was not admitted till July 11, and could not get under the tips till July 22. Held, that the lay-days commenced on July 11, and that the words the exception that no notice of readiness to unload is required, we have cited cases as to unloading in support of these propositions. {I) Kelt V. Anderson (1842), 10 M. & W. 498. The case of Ford v. Cotes- worth (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 proceeded to Callao, the usual port of discharge for L., but was prevented from discharging for seven days by acts of the Govern- ment ; and it was held that if there had been a time fixed for the discharge it would have begun on arrival at the usual place of discharge, but that, as there was no fixed time, reasonable diUgence only was required, and the delay from the time of arrival was not unreasonable under the circumstances. In Thiis 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 Brereton v. Chapman (1831), 7 Bing. 559. (w.) Nielsen v. Wait (1885), 16 Q. B. D. 67 (C.A.), where the 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 hghtened, 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'Intosh v. Sinclair (1877), 11 Ir. L. K. C. L. 460 ; Caffarini v. Walker (1876), 10 Ir. L. R. C L. 250. 120 WHEBE THE CABBY IN G VOYAGE BEGINS. " load in the usual and customary manner " referred to the manner and not the place of loading («). Case 4.-^A ship was chartered to " proceed 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 dispatch 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 some time. Held, that the obligation of the charterers did not commence till the vessel was in berth (o). Case 5. — ^A vessel was chartered to proceed to H., cargo to be discharged at usual fruit berth, as fast as steamer could 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 char- terers 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 (j)). (jase 6. — ^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 chaa-terer 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 (q). Case 7. — ^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 dis- charge." 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 (r). Case 8. — ^A ship was chartered to proceed to a customary loading-place in the K. 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 coUiery 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 loading-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 charterers (s). (n) Tapscott v. Balfour (1872), L. R. 8 C. P. 46. See also Shadforth v. Cory (1863), 32 L. J. Q. B. 379. In *S'.^. Norden v Dempsey (1876), 1 C. P. J). 654, a custom for timber ships at Liverpool that the lay-days should begin on reaching a particular place in the dock, was proved and held binding. (o) Tharsis Co. v. Morel (1891), 2 Q. B. 647 ; 3Iode.sto v. Dupre (1902), 7 Com. Cases, 105. (p) Good V. Isaac^^ (1892), 2 Q. B. 557. (q) Strahan v. Gabriel (1879), per Brett, L.J., 12 Ch. D. 590. (r) Murphy v. Coffin (1883), 12 Q. B. D. ^7.' (s) Monsen v. Macfarlane (1895), 2 Q. B. 562; cf. Thorman v. Dowgate S.S. Co. (1910), 1 K. B. 410. EEADINESS TO LOAD. 121 Case 9. — Charter to proceed to a safe port as ordered, and there load. Ship ordered to Bahia Blauca. She arrived at B. B. aud anchored off the pier, and gave notice of readiness. Charterers desired her to load alongside the pier, to which, after considerable delay, she proceeded. Held, that lay-days began when the ship was ready off the pier, and not merely when she got alongside (<). Case 10. — A ship was chartered to load a cargo including machinery and explosives and to proceed to B. and there deliver her cargo at customary discharging places named by charterers' agents, according to the custom of the port ; charterers authorised to sign bills of lading for cargo, and owners to abide by all the conditions thereof ; cargo to be brought to and taken from along- side at charterers' expense. By the bill of lading, cargo was to be discharged at consignees' wharf at B., provided same was available, otherwise lighters to be provided by the consignees. At B. the consignees' wharf was available, but a ship with explosives on board was only allowed to discharge at the X. wharf, and the consignees' cargo had therefore to be lightered from the X. wharf to their own wharf. Held, that the shipowners were entitled to recover from the charterers the expense of this lightering which the shipowners had paid (u). Article 40. — Readiness to load. A ship to be ready to load must be completely ready in all her holds, so as to afford the charterer complete control of every portion of the ship available for cargo (x). She must also in the absence of special stipulation have obtained all papers and permits necessary for loading (?/). But the degree of necessary readiness of the ship for her part is relative to that of the charterer or the consignees (t) Leonis Co. v. Bank (1908), 1 K. B. 499 (u) Hull S.S. Co. V. Lamport (1907), 23 T. L. R. 445. {x) Groves, Maclean & Co. v. Volkart (1884), I C. & E. 309; Oliver v. Fielden (1849), 4 Ex. 135 ; Bailey v. De Arrayave (1837), 7 A. & E. 919. A ship may be " ready to load " cargo (maize) though part of her previous cargo (coals) is on deck intended for use as bunkers ; London Traders' Co. v. General Mercantile Co. (1914), 30 T. L. R. 493. In practice the ship is considered "ready to load" though stiffening ballast, or cargo used for stiffening the ship, has yet to be put on board her. But to be " ready for stiffening " is not to be " ready to load." Sailing Ship Lyderhorn v. Duncan (1909), 2 K. B. 929. A steamer may take her bunkers before proceeding to her loading port, and is not necessarily restricted to bunkers for the chartered 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). But usually she must not have more bunkers than are required by the char- tered voyage ; Darling v. Raehurn (1907), 1 K. B. 846. In Hick v. Tweedy (1890), 63 L. T. 765, under a clause " Charterers have option of cancelHng 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. (y) The Aiislin Friars (1894), 10 T. L. R. 633. 122 NOTICE OF BEADINE8S TO LOAD. for theirs. Therefore the ship need not be absolutely ready {e.g. by having all her gear fixed up for the work) at a time when the charterer or consignees are not in a posi- tion to do any of their part of the work, so long as the ship can be absolutely ready as soon as they are (2). Case 1. — A ship was cliartered with a power to the charterers ta cancel the charter if the ship were not ready to load on or before May 31. On that day she had only discharged two of her holds^ and was not completely discharged till the middle of the next day. Held, the charterers were entitled to cancel (a). Case 2. — A ship under charter " to be ready to load on or before midnight 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 (b). Case 3. — A ship was under charter to load nitrate after dis- charging an outward cargo of coal. She was to have stiffening supplied by charterers on receipt of forty-eight hours' notice of readiness to receive it. Charterers to have the right to cancel if ship not ready to load cargo on or before noon of 31st January. On 27th January the ship had discharged enough coal to need stiffening, and the captain gave notice to the charterers, requiring 700 tons of stiffening. The balance of the coal cargo could not have been discharged by noon of 31st January. Held, that the charterers were entitled to cancel (c). Article 41. — Notice to Charterer of Readiness to load. The shipowner must give notice to the charterer 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 direct to the S. dock, and there load in the usual and customary manner. In an action by shipowner against charterers 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 : she arrived at A. with a cargo on owner's account. Her (2) Armement Deppe v. Robinson, Lloyd's List, 27 Feb., 1917. Qxtery if the doctrine of Budgett v. Binnington (1891), 1 Q. B. 35, applies before the ship is ready, ibid. (a) Groves, Maclean er Lord Bramwell, 10 App. C, at p. 105. (r) Sewell v. Burdick (1884), 10 App. C. 74, and see Article 58. (s) (1855), 18 & 19 Vict. c. Ill, vide post, Appendix III. (t) 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 v. Ward (1888), 20 Q. B. I). 476. Where the property does not pass by the indorsement, as in the case where the goods were before shipment the property of the indorsee, and the shipper and indorser his agent, the indorsee does not acquire by the indorsement any right to sue on the contract evidenced by the bill of lading (Delaurier v. Wyllie (1889), 17 So. Sess. C, 4th Ser. 167, as to the iron). Contrast the decision in the same case as to the coals, the property in which did pass to the indorsee by the indorsement. Semble, that, as to the iron, the owner might be undisclosed principal on the bill of lading. (u) (1861), 24 Vict. c. 10, § 6, vide post. Article 77, and Appendix III. (v) See Article 59. (x) See Article 60. 11-a 164 EFFECTS OF the price unpaid, known as the right of Stoppage in transitu {y). 2. To pass the property on certain conditions, as on the acceptance of bills of exchange for the price (z). 3. To effect a mortgage of the goods as security for an advance (a). 4. To effect a pledge of the goods for the same pur- pose (6). 5. To pass no property at all in the goods (c). Note. — The decision in Sewell v. Burdick (d) 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 there is no general rule that indorsement passes the whole legal property in the goods, as had been strongly con- tended by Brett, M.R. (e), in the Court below, and in Glyn, Mills & Co. V. East and West India Docks (/). In the light of this decision, the special verdict in Lickbarrow v. Mason (g), which recites that '' the property is transferred by indorsement," must be read " the property which it was the intention to transfer is transferred " {h) ; and many obiter dicta on the subject, such as the statement of Lord Hatherley in Barber v. Meyerstein {i), 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 {i), that the transfer of the bill of lading for value " passes the absolute property in the goods," must be taken as overruled, or strictly limited to the circumstances of the particular case (k). Article 59. — Intention to transfer the ivhole Property by Indorsement of the Bill of Lading. Property in goods at sea may be completely passed by indorsement and delivery of the bill of lading imder which they are shipped, in exchange for payment of the price. (y) See Articles 63-71. (2) See Articles 61, 62. (a) See Article 72. (6) See Article 73. (c) See Article 74. (d) (1884), lOApp. C. 74. (e) 13 Q. B. D., at p. 167. (/ ) (1880), 6 Q. B. D., at p. 480c (g) (1794), 5 T. R. 683. 01) As suggested by Lord Selbome, 10 App. C, at p. 80. (i) (1870), L. R. 4 H. L. 325, 335. (Ic) See 10 App. C, at pp. 81, 104. IND0B8EMENT. 165 Note 1. — The question of property in goods shipped is not of great importance to the shipowner, as he is safe in deUvering to the holder of the first bill of lading duly presented, if he has no notice or knowledge of other claims {I), while if he has such knowledge, though probably in strict law he must either deliver at his peril to the rightful claimant, or interplead (m), 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 we have not gone minutely into the numerous cases on this subject. An exhaustive discussion of them will be found in Benjamin on Sale, 5th ed., pp. 375-401, and a summary of the results at p. 400. Part of this summary has been approved by the House of Lords (m), and a similar summary is to be found in the judgment of Cotton, L. J., in Mirahita v. Ottoman Bank (o). Note 2. — The property in goods shipped under a bill of lading may be passed without indorsement of such bill {p), and it would seem that subsequent indorsement of the bill of lading to a dif- ferent person will have no ef?ect in passing the property, unless the circumstances of the case warrant the application of the Factors Act. Whether a subsequent indorsement to a person who has already by a contract of sale acquired property in the goods will give that person contractual rights under the bill of lading seems doubtful. Delaurier v. Wyllie (q) decides that indorse- ment of a bill of lading covering goods that were before shipment the property of the indorsee, the shipper and indorser being his agent, does not give the indorsee any rights in the contract evidenced by the bill of lading differing from the actual contract under which the goods were shipped. This, however, does not cover such a case as the following : — ^Goods the property of A. shipped by him on Jan. 1 under a bill of lading to his order ; on Jan. 10 A. sells the goods afloat to B., under such terms that the property in them passes immediately to B. ; on Jan. 30 A. in- dorses the bill of lading to B. It seems doubtful on the strict wording of the Bills of Lading Act (" to whom the property . . . shall pass upon or by reason of . . . such indorsement ") whether (I) Ghjn Mills v. West India Dock Co. (1882), 7 App. C. 591 ; see Article 125. (m) Per Lord Blackburn, 7 App. C, at p. 611. {n) Shepherd v. Harrison (1871), L. R. 5 H. L. 116, at p. 127. (o) (1878), 3 Ex. D., at p. 172. (p) Meyer v. Sharpe (1813), 5 Taunt. 74 ; Nalfian v. Giles (1814), 5 Taunt. 658. The ordinary operation of the law as to the sales of goods which trans- fers the property in them is not affected by the existence of a bill of lading relating to those goods, by the indorsement of which, as one of the methods recognised by that law, the property may be passed. {Cf. Parke, B., Bnjans V. Nix (1839), 4 M. & W. 775, at pp. 790, 791.) And, in truth, " property does not pass by indorsement of the bill of lading, but by the contract in pursuance of which the indorsement is made." Per Lord Bramwell, Sewell V. Burdick (1884), 10 A. C, at p. 105. iq) (1889), 17 Sc. Sess. C. 167. 166 C.I.F. B. acquires contractual rights against the shipowner under the bill of lading : though apparently, if on Jan. 31 B. indorsed the bill to C. in pursuance of a contract of sale c.i.f., C. would acquire such rights. Note 3. — In a contract for the sale of goods upon " c.i.f." terms, the seller performs his part by shipping goods of the contractual description (r) on board a ship bound to the con- tractual destination (s), and tendering, within a reasonable time after shipment {t), to the purchaser the shipping documents, the goods during the voyage being at the risk of the purchaser {u). In such a contract of sale of " unascertained goods " {x) the property probably passes to the purchaser only when the bill of lading is indorsed to and accepted by him {y). It has been held by a very eminent legal arbitrator, under such a contract, that there was an " unconditional appropriation " by the seller (under Eule 5 (1) of sect. 18 of the Sale of Goods Act, 1893) by the trans- mission of a detailed descriptive invoice to the purchaser some time before tender of the bill of lading and its acceptance by him without demur, and that upon the subsequent receipt of the bill of lading the purchaser could not reject the goods as not being of the contractual description. If this be correct such a set of circumstances seems to give a commercial probability to the hypothetical case discussed in note 2 above, viz. would any rights under the bill of lading pass by its indorsement to the indorsee, who already owned the goods ? " Shipping documents " in such a contract of sale means a bill or bills of lading {z) and a policy of insurance {a) reasonably covering the value of the goods, though not necessarily their (r) Harland and Wolff v. Burstall (1901), 6 Com. Cases, 113. (s) Lecky v. Ogih-ie (1897), 3 Com. Cases, 29 (the two Tripolis). The seller must pay any expenses necessary to secure delivery at the contractual destination, e.g. lighterage at the port of discharge in addition to the ocean freight. Acme Wood Co. v. Sutherkmd (1904), 9 Com.- Cas. 170. (t) Groom v. Barber (1915), 1 K. B. 316. (w) Tregelles v. Seivell (1862), 7 H. & N. 574; Groom v. Barber, uhi supra. [x) Sale of Goods Act, 1893, §§ 16-18. (y) Wait V. Baker (1848), 2 Exch. 1 ; The Miramichi (1915), P., at p. 78. If the bill of lading is indorsed to the buyer and posted to him, probably the property would pass on its being put into the post. Cf. Badische Anilin V. Basle Co. (1898), A. C, at pp. 203, 204. There are, however; dicta to the effect that the property passes upon shipment of the goods. See Ireland V. Livingston (1872), L. R. 5 H. L., at p. 409 ; Biddell v. E. Clemens Horst Co. (1911), 1 K. B., at p. 956. Cf. Groom v. Barber (1915), 1 K. B., at p. 324. Though the property passes payment mav by the terms of the contract be postponed. Dupont v. British S. Afr. Co". (1901), 18 Times L. R. 24. {z) The bill or bills of lading must probably cover the whole transit of the goods from the port of shipment to the port of arrival. Landauer v. Craven (1912), 2 K. B. 94. Cf. Co.v v. Malcolm (1912), 2 K. B. 107, note. (a) He must tender a pohcv even if the goods have arrived in safety. Orient Co. v. Brekke (1913), 1 K. B. 531. . SALES. 167 whole value at the destination (b). The policy to be tendered must be " upon the terms current in the trade " (c) as regards such points as the perils insured against and the quantum {e.g. as to f.p.a. franchise) covered. A similar test (d) applies to any question as to the propriety of the bill of lading tendered, e.g. as to the nature of the vessel, its route, or the terms of carriage. The best way of approaching the consideration of all questions on c.i.f. sales is to realise that this form of the sale of goods is one to be performed by the delivery of documents representing the goods (e), i.e. of documents giving the right to have the goods deliverecl or the possible right, if they are lost or damaged, of recovering their value from the shipowner or from underwriters. It results from this that various rules in the Sale of Goods Act, 1893, which is primarily drafted in relation to the sale and delivery of goods on land, can only be applied to c.i.f. sales mutatis mutandis (/). And there may be cases in which the buyer must pay the full price for delivery of the documents, though he can get nothing out of them, and though in any intelligible sense no property in the goods can ever pass to him, i.e. if the goods have been lost by a peril excepted by the bill of lading, and by a peril not insured by the policy, the bill of lading and the policy yet being in the proper commercial form called for by the contract (g). Under a c.i.f. contract, " payment against shipping documents," the price is due upon, or within a reasonable time after, tender of the documents {h), irrespective of the arrival of the ship (i), and notwithstanding that the buyer has had no opportunity of inspecting the goods to ascertain whether they are in accordance with the contracts (k). {&) Tamvaco v. Lucas (1861), 1 B. & S. 185. See also Burstall v. Grimsdale (1906), 11 Com. Cas. 280, and Strass v. SpilUrs (1911), 2 K. B. 759. A.s to insurance against " all risks " see Yivill v. Scott Robson (1908), 1 K. B. 270, and Vincentelli v. Rowlett (1911), 16 Com. Cas. 310. As to liability of vendor if policies turn out to be invalid or worthless, see Cantiere Meccanico v. Constant (1912), 17 Com. Cas. 182, 188, 192. (c) Per Hamilton, J., Biddell v. E. Clermns Horst Co. (1911), 1 K. B., at p. 220. {d) Cf. Burstall v. Grimsdale (1906), 11 Com. Cas. 280. If the seller has to pay advance freight on shipment, he should presumably insure the advance freight by a separate poUcy which he keeps himself, and intimate to the buj^er that on the an-ival of the ship the amount of the advance freight should be paid to the seller in place of payment of freight to the shipowner. (e) The difference between Scrutton, J., in Karberg v. Blythe (1915), 2 K. B., at p. 388, and Bankes, L.J., and Warrington, L.J., S. C. (1916), 1 K. B. 495, is one of language rather than of substance. (/) Cj. E. Ch^nens Horst Co. v. Biddell (1912), A. C. 18. [y) Groom v. Barber (1915), 1 K. B. 316; Weis v. Credit Co. (1916), 1 K. B. 346 ; see also Law v. Brit. Am. Tobacco Co. (1916), 2 K. B. 605. (h) If the buyer refuses to pay, the seller's claim against him is for damages for breach of contract, not for the price. Stein v. County Co. (1916), 115 L. T. 215. (i) Ryan v. Ridley (1902), 8 Com. Cas. 105. See also Polenghi v. Dried Milk Co. (1904), 10 Com. Cas. 42. {k) E. Clemen-s Horst v. Biddell (1912), A. C. 18. 168 UNPAID VENDORS SECURITIES. Article 60. — Unpaid Vendor's Securities. Where goods are shipped by a vendor, in pursuance of his buyer's order, for dehvery to the buyer, such shipment 2)rimd facie passes the property to the buyer, dehvery to the ship being equivalent to dehvery to him (l). 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 dehverable 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.) Reserving to himself the jus disponendi (o). (II.) Conditional indorsement of the bill of lading (p). Article 61. — Reservation 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 to himself the power of 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 propertj^ to the pur- (Z) Shepherd v. Harrison (1871), L. R. 5 H. L. 116, at p. 127; and see Article 68. (m) Vide -post. Article 63. (w) Ex parte Baimer (1876), 2 Ch. D. 278, at p. 288. (o) See Article 61. ip) See Article 62 ; and also Sale of Goods Act, 1893, § 19. (q) Shepherd v. Harrison (1871), L. R. 5 H L. 116 : Mirabita v. Ottoman Bank (1878), 3 Ex. D. at p. 172 ; Ogg v. Shuter {\%15). 1 C. P. D. 47 ; Gabar- ron V. Kreeft (1875), L. R. 10 Ex. 274 : see Sale of Goods Act, 1893, § 19, s.s. 1, 2. EE8EBVATI0N BY UNPAID VENDOR. 169 chaser (r), unless thiQ jus disporiendi 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. Shuter {t) shews that it is more than a vendor's lien. The judgment in Mirabita v. Ottoman Bank (u) declines to decide between the last two alternatives, but the language of Cotton, L. J., in the same case 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 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 {z). 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). But if being in possession of the (r) Mirabita v. Ottoman Bank, vide supra. (s) Wait V. Baker (1848), 2 Ex. 1. (0 (1875), 1 C. P. D. 47. (u) (1878), 3 Ex. D. 164. (x) 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. iy) Shepherd v. Harrison (1871), L. R. 5 H. L. 116. (2) 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. Simpson (1871), L. R. 11 Eq. .398 ; Baxter v. Chapman (1874), 29 L. T. 642. (a) Shepherd v. Harrison ( 187 1 ), L. R. 5 H. L. 1 16. See also Sale of Goods Act, 1893, § 19, s.s. 3, and Cahn v. PocketVs S.S. Co. (1899), 1 Q. B. 643. 170 CONDITIONAL indorsed bill of lading he transfers it by indorsement to an innocent holder for value, that holder obtains under the Factors Act, 1889, a good title to the goods, though the vendee has not accepted the bill of exchange (6). Li case (II.) he cannot obtain the bill of lading from the bank unless he satisfies the bank's claim for advances (c) ; but if, before the bank realises the goods to satisfy its claim, the vendee tenders the amount claimed, the pro- perty in the goods will at once pass to him {d), and he will be entitled to the bill of lading, unless the jus disj^cmeyidi has been reserved by the vendor with some other intention than that of securing the contract price (e). The vendee is not entitled to require deHvery of all copies of the bill of ladmg before accepting bills of ex- change, if the copy tendered is in fact effectual to pass the property ; nor, semhle, can he claim that they shovdd 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 dispatch (/). In all these cases the vendor, by reserving the jus disponendi, is jyrimd facie presumed to intend to retain the property in the goods {g), and the burden For special facts under which the consignee who had received bills of lading was held not bound to accept bills of exchange drawn against them, see Deppermait v. Hvhhersly (1852), 17 Q. B. 766 ; for special facts in which the consignee was held to be bound, see Imperial Ottoman Bank v. Coivan (1874), 31 L. T. 336 ; Hoare v. Dresser (1859), 7 H. L. C. 290. (b) Calm \. Pockett's S.S. Co. (1899), 1 Q. B. 643. (c) Turner v. Trustees of Liverpool Docks (1851), 6 Ex. 543. (d) Mirabila v. Ottoman Bank (1878), 3 Ex. D. 164. (e) Wait V. Baker (1848), 2 Ex. 1. See also Barber v. Taylor (1839), 5 M. & W. 527 ; Gilbert v. Guignon (1872), L. R. 8 Ch. 16. (/) Sanders v. Maclean (1883), 11 Q. B. D. 327. (g) The property and possession in goods shipped has been held to be transferred to the vendee on the facts of the followins; cases : — Walley v. Montgomery (1803), 3 East, 585 ; Coxe v. Harden (1803), 4 East. 211 ; Ogle v. Atkinson (1814), 5 Taunt. 759 ; Wilms/nirst v. Bouker (1844), 7 M. & G. 882 ; Key v. Cotesicorth (1852), 7 Ex. 595 ; Joyce v. Sivann (1864), 17 C. B.,. N. 8. 84 ; Castle v. Playford (1872), L. R. 7 Ex. 98 : Ex parte Banner (1876), 2 Ch. D. 278 ; Mirabita v. OUoman 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 v. Ryder (1816), 6 Taunt. 433 ; Ruck V. Hatfield (1822). 5 B. & Aid. 632 ; Brandt v. Boivlby (1831), 2 B. & Ad. 932 ; Ellershaw v. Magniac (1843), 6 Ex. 570 ; Wait v. Baker (1848), 2 Ex IND0B8E3IEN T. 171 of disproving this intention lies on those who dispute it (h). 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 his 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. i-efused to accept the bill of ex- change, 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 shipowners. Meanwhile, W. obtained delivery of the cotton under the second bill of lading. Held, that W.'s action reserved to him the jus disponendi, 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 (i). 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. Wliile 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 (h). Case 3. — V. shipped guano to P., as the result of a correspond- ence, 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 shipment to pass the property to P., and had not intended to keep the guanb 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 (l). Case 4. — ^V. sold potatoes to P. , payment to be by cash against bill of lading, and took a bill of lading, deliverable to V. or order. The ship arrived on Jan. 26. W., the agent of V., presented on Jan. 27 the bill of lading to P., who refused to accept the bill of 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 imtil P. paid or tendered cash against the bill of lading, the possession {qucere property) was in W., with a power to sell the goods (m). 1 ; Van Casteel v. Booker (1848), 2 Ex. 691 ; Jenkyns v. Brown (1849), 14 Q. B. 496 ; Turner v. Trustees of Liverpool Docks (1851), 6 Ex. 543 ; Moakes V. NicoUon (1865), 19 C. B.. N. S. 290 ; Falke v. Fletcher (1865), 18 C. B., N. S. 403 ; Shepherd v. Harrison (1871), L. R. 4 H. L. 116 ; Oqq v. Shuter (1875), 1 C. P. D. 47 ; Gabarron v. Kreeft (1875), L. R. 10 Ex. 274. ih) Joyce V. Swann (1864), 17 C. B., N. S. 84. (i) Shepherd v. Harrison (1871), L. R 5 H. L. 116. See also Barrow v. Coles (1811), 3 Camp. 92, and Cahn v. Pocketfs S.S. Co. (1899), 1 Q. B. 643. (k) Ex parte Banner (1876), 2 Ch. D. 278. (0 Joyce V. Swann (1864), 17 C. B., N. S. 84. (m) 6(j PERILS, 213 exceptions interfere with the operation of express conditions pre- cedent, such as a " cancelling clause " {u). The exceptions further only apply to goods stowed in the usual carrying places, and not to goods improperly stowed on deck (x). As regards the effect of deviation upon exceptions, see Article 99, infra {y). As regards the effect of unseaworthiness causing fire upon the shipowner's statutory immunity under sect. 502 of the Merchant Shipping Act, 1894, see Article 87, infra. As regards the time during which the exceptions apply and their relation to the burden of proof, see Article 91. Note 5. — Exceptions in charterparties stand on a different footing from those in bills of lading. 1. The exceptions in the bill of lading only apply to exone- rate the shipowner or carrier ; exceptions in the charter apply to exonerate both shipowner and charterer (2), though the shipowner's liability for carriage, where the charterer is also the shipper (a), is usually much restricted by the subsequent bill of lading, as against subsequent indorsees for value. 2. The exceptions in the charter are much more concise than those in a bill of lading ; — " The act of God, the King's enemies, fire, and all and every dangers and accidents of the seas, rivers, and navigation, of whatever nature or kind soever during the said voyage always excepted " ; — being a very usual form. 3. Where the cargo is one in great demand, as in coal char- ters, or is brought from places inland, as nitrate, ore, or oil, there is frequently a further set of exceptions applying to the clauses as to loading and demurrage, e.g. '" any time lost through riots, strike, or stoppage of factory or factories or other hands connected with the working or delivery of the said patent fuel or coals, or by reason of accident to the factories or machinery or obstruction in the canal or dock, or from any cause beyond the personal control of shippers, is not to be computed as part of the loading da vs." 187, and cases in Articles 28, 29. See also Houston, v. Sansinena (1893), 68 L. T. 567 (H.L.) ; Searle v. Lund (1903), 19 Times L. R. 509. (m) Smith V. Dart (1884), 14 Q. B. D. 105; but see Donaldson v. Little (1882), 10 So. Sess. Cases, 413. {x) Royal Exchange S. Co. v. Dixon (18S0), 12 App. C. 11. (y) The leading authority is Morrison v. Shaw Sauill (1916), 2 K. B. 783. See also and contrast The Europa (1908), P. 84, approved in Kish v. Taylor (1912), A. C. 604, for the difference between unseaworthiness and deviation. It may be summarised by saying that exceptions do not affect liabiUty for loss caused by unseaworthiness ; but deviation affects the operation of exceptions by sweeping them out of the contract. As to deviation caused by unseaworthiness see Kish v. Taylor, ubi supra. (z) Barrie v. Peruvian Corporation (1896), 2 Com. Cases, 50. But see In re Newman v. Dale (1903), 1 K. B. 262, in which the previous case, though followed, was doubted by Bigham, J. And see Braemount S.S. Co. v. Weir (1910), 15 Com. Cas. 101, in which Barrie v. Peruvian Corporation was distinguished. (a) See Rodocanachi v. Milburn (1886), 18 Q. B. D^ 67, and Article 18 (a). 214 ACT OF GOD. Article 80. — Act of God. The exception " act of God " includes any accident as to which the shipowner can shew that it is due to natural causes, directly and exclusively, without human interven- tion, and that it could not have been prevented by any amount of foresight, pains, and care, reasonably to be expected from him (6). A stricter view than this was taken by Brett and Denman, JJ., in the Court below (c), but was negatived by the Court of Appeal, Mellish, L.J., saying : " I think that in order to prove the cause of the loss was irresistible, it is not necessary to prove that it was absolutely impossible for the carrier to prevent it, but that it is sufficient to prove that by no reasonable precaution under the circumstances could it have been prevented." This view is supported by Nichols v. Marsland (d), in which the jury found that a flood was " so great that it could not reasonably have been anticipated, though if it had been anticipated the effect might have been prevented," and the Court of Appeal held that such a flood was an " act of God." Collision by neghgence of another ship, and '" pirates," appear to be " perils of the sea," but not " acts of God." On the other hand, the exception "' act of God " appears to cover such causes of loss as frost, lightning, &c., which are not perils peculiar to the sea (e). Case 1. — A., a common carrier between L. and A., took on board amareofF.'s. No bill of lading was signed. Partly by more than ordinarily bad weather, partly by the conduct of the mare, without any negligence by A.'s servants, the mare was seriously injured. Held, that A. was not liable for injuries resulting from these causes, which he could not by reasonable care and foresight have pre- vented, and which therefore came under the exception to a carrier's liability, of damage resulting from the act of God ( / ). Case 2.- — Goods were shipped under a bill of lading excepting the " act of God." The vessel having to start the next morning, the captain filled his boiler overnight, and, frost coming on, the tubes burst, damaging the goods. Held, that the negligence of the (b) Per James, L J., in 2iugent v. Smith (1876), 1 C. P. D. at p. 444 ; see also Cockburn, C.J., at pp. 437, 438, Mellish, L.J., at p. 441. Cf. The Marpesia, L. R. 4 P. C. 212, and for discussions of " inevitable accident," The Merchant Prince (1892), P. 179; The Albano (1892), 8 T. L. R. 425. In this case it appears that the principle of the Glendarroch (1894), P. 226, that the shipowner need not negative neghgence, but the goods owner must affirmatively prove it, does not apply. (c) 1 C. P. D. at p. 34. (d) (1876), 2 Ex. D. 1. (e) See Article 83, post. As to the history of the phrase " act of God," see 0. W. Holmes' Common Law, p. 202, and note (a), p. 202, supra. (/) Nugent v. Smith (1876), 1 C. P. D. 19, 423. KING'S ENEMIES. 215 captain excluded the exception, though frost was an " act of God " (g). Article 81. — The King's Enemies. This exception refers to the enemies of the sovereign of the shipowner (h). It probably only refers to states re- cognised as at war with the sovereign, and not to pirates or traitorous subjects (i), or to states at peace with the sovereign (k). Note. — A few bills of lading add the exception " the enemies o ^ or of the ruler of the place the steamer may be in." QucBre whether the original exception also refers to the enemies of the sovereign of the shipper. Probably not, for : (1) The shipowner would hardly need to stipulate for protection against what would be a vice of the goods themselves (l) : (2) As the Declaration of Paris protects enemies' goods in neutral vessels, it is not probable that such an exception would have much application, as the shipper's enemy could not delay the neutral ship, while if the goods were contraband, the vice in the goods themselves would free the shipowner from liability. Case 1. — F., merchants in Russia, shipped wheat in a ship belonging to A., a subject of the Duke of Mecklenburg, to be carried to England under a bill of lading containing an exception " the King's enemies." The Duke was at war with Denmark, and the ship was captured by the Danes. Held, that the exception certainly included enemies of the shipowner's sovereign, and the shipowner was therefore freed (h). Case 2. — F. shipped goods under a bill of lading, excepting " the Queen's enemies." Ship and goods were confiscated by the Spanish Courts for violations of the revenue laws, Spain being at peace with England. Held, that such confiscation did not come within the exception (n). (g) Siordet v. Hall (1828), 4 Bing. 607. Rats causing a leak are not " act of God" : Dale v. Hall (1750), 1 Wils. 281. Sed quaere, whether, on prin- ciple if the shipowner could shew that no care or diligence reasonably to be expected of him could prevent there being some rats on a ship, he would not bring himseK within the exception. [h) Ru-ssell V. Niemann (1864), 17 C. B., N. S. 163. (i) See the Marshal of Marshalsea'' s Case, and comments thereon. Holmes' Common Law, pp. 177, 201. Forivard v. Pittard (1785), 1 T. R. 27, per Lord Mansfield, p. 34. {k) Spence v. CJiodwick (1847), 10 Q. B. 517. (I) See per Willes, J., arguendo, in Russell v. Niemann, ubi supra, at p. 171. in) Spence v. CJwdwick, v. s. It would be a " seizure " under an insurance policy : Cory v. Burr (1883), 8 App. C. at p. 405. 216 BESTEAINTS OF PEINCES. Article 82. — Arrests or Restraints of Princes, Rulers, and Peoples (o). This exception applies to forcible interferences by a state or the government of a country taking possession of the goods by a strong hand, such as arrest, embar- goes (2)), or blockades {q) ; to the operation of the common law, as to trading with the enemy, upon the outbreak of war (r) ; to government action for other purposes, indi- rectly resulting in the detention of the goods {s) ; to state prohibition of discharge, either temporarily, as in quaran- tine, or permanently, as where a cargo becomes tainted, and so "within a prohibition against import {t) ; to the decrees of a Prize Court after capture {u) ; or to embar- goes imposed by the government of the shipowner {x) ; or to the risk of such proceedings {y). It does not apply to ordinary legal proceedings in the courts of a state with their result (2;), to the ordinary operation of the local law at a port of call, known to the shipowner at the time the goods were shipped (a), nor to the proceedings of a number of people not professing to act legally or bj^ government authority" (6). It does not apply to restrictions on navigation as to sea routes imposed by a belligerent for the safety of shipping, nor to the threats of an arbitrary belligerent which suggest danger to neutral ships (c). Nor does it apply where the (o) " Revolutions, riots, or emeutes " are occasionally added. (p) Botch V. Edie (1795), 6 T. R. 413. ■ {q) Geipel v. Smith (1872), L. R. 7 Q. B. 404. (r) British & For. Co. x. Sunday (1916), 1 A. C. 650. (.«) Eodocanachi v. Elliott (1874), L. R. 9 C. P. 518. (t) Miller v. Law Accident Ins. Co (1903), 1 K. B. 712 (C.A.). Cf. British d- For. Co. V. Sanday, ubi supra. (u) Stringer v. English tt Scottish Marine Ins. Co. (1870), L. R. 5 Q. B. 599. (x) Auhert v. Gray (1861), 3 B. & S. 163. iy) NobeVs Explosives v. Jenkins (1896), 2 Q. B. 326 ; Phosphate Co. v. Rankin (1915), 21 Com. Cas. 248. As to the amount of risk necessary, compare Miller v. Law Accident Ins. Co. (supra) with Brunner v. Webster (1900), 5 Com. Cases, 167. (2) Finlay v. Liverpool d: G. W. Co. (1870), 23 L. T. 251 ; Crew, Widgery & Co. V. G. W. Steamship Co., W. N. (1887), 161. (a) Ciampa v. British India Co. (1915), 2 K. B. 774. (6) Nesbitt V. Lushington (1792), 4 T. R. 783. (c) Bolckow, Vaughan ct- Co. v. Compania Minera (1916), 32 T. L. R. 404. BESTEAINTS OF PRINCES. 217 seizure of the ship results from the negligence of the ship- owner or his agents in taking on board cargo of such description as occasions the seizure (d). The exception may apply to matters preventing the cargo from arriving at the port of loading (e). Case 1. — Goods were insured (/) from Japan to London via Marseilles — ;- Southampton, by a line of steamers whose practice was to send goods by land from Marseilles to Boulogne via Paris. One of the risks insured against was " arrests, restraints, and detainments of all kings, princes, and peoples." On arriving at Paris the goods were detained by the siege of Paris by the Germans, though not by any express order dealing with the goods. Held, a peril insured against (g). Case 2. — A ship chartered to load nitrate at Iquique, with an exception of '' restraints of princes and rulers, political disturb- ances or impediments, during the said voyage always mutually excepted," was detained : (1) by civil war at the port of loading preventing loading ; (2) by civil war preventing cargo coming down to such port ; (3) by seizure by one faction to compel pay- ment of export dues already paid to the other faction. Held, that all three causes were within the exception (e). Case 3. — F. shipped goods under bill of lading excepting " acts or restraints of princes or rulers." The goods were detained by an order of the state of New York in a civil action. Held, not to come within the exception (h). Case 4. — Goods were insured against " arrests, restraints, and detainments of all kings, princes, and peoples." The vessel was seized by a tumultuous mob, and the goods taken out of her. Held, not within the perils insured against, as " peoples " mean *' the governing power of the country " {i). Case 5. — Goods were shipped from London to Japan on a bill of lading excepting " restraint of princes." They were contraband of war. On arrival at Hong Kong war broke out between China and Japan, and there was well-founded fear of capture if the ship proceeded. Held, that delivery in Japan was prevented by a restraint of princes within the exception (fc). Case 6. — ^A cargo of cattle on a voyage from London to Buenos Ayres became infected with disease during the voyage, and their landing was thereupon prohibited by an administrative order (rf) Dunn V. Currie (1902), 2 K. B. 614. (e) iSmith v. Eomrio Nitrate Co. (1894), 1 Q. B. 174 : see Article 42. (/) We have used insurance cases, as illustrations, when the different principles of construction do not affect the case. {g) Rodocanachi v. Elliott (1874), L. R. 9 C. P. 518. (A) Finlay v. Liverpool ) The Freedom (1811), L. R. 3 P. C. 594, 603 ; see also The Figlia Mag- giore (1868), L. R. 2 A. & E. 106. Where goods properly stowed putrefy through extraordinary delay caused by bad weather, semble, that the ship- owner 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 Barcore (1896), P. 294. Such damage would not be a peril of the sea, for which underwriters would be Uable; see Taylor v. Dunbar (1869), L. R. 4 C. P. 206 ; Tatham v. Hodgson, v. s. ; Fink v. Fleming (1890), 25 Q. B. D. 296. 224 STRIKES. Case 7. — Goods were shipped with an exception " all and every the dangers and accidents of the seas and navigation." \^Tiile 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 (q). 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. Heldy not a loss by perils of the sea (r). 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 rat-catcher, was found to have taken every precaution. Held, that such damage by rats was not a peril of the sea or of navigation (s). 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 {t). 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 [u). 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 {x). Article 84. — Strikes. A " strike " is " a general concerted refusal by workmen to work in consequence of an alleged grievance " (y). The exception " strikes or lock-outs " covers refusals of men or masters to carry on work or business by reason of and iq) Laurie v. Douglas (1846), 15 M. & W. 746 ; see The Accomac (1890), 15 P. D. 208 ; cf. Devaux v. J' Alison (1839), 5 Bing., N. C. 519, as criticised by Lord HerscheU, 12 App. C. 497. (r) The Chasca (1875), L. R. 4 A. & E. 446. (s) Kay V. Wheeler (1867), L. R. 2 C. P. 302. Cf. Godolphin, " A view of the Admiral Jurisdiction," 1685 : " The master . . . may not sail without one cat or more in his vessel." So Malynes, Lex Mercatoria (1686), p. 102 : The master " must answer for any harm which Rats do in a Ship to any Merchandise for want of a Cat." So earher in a charterparty of " the Anne of Hull " of June 10, 1532, it is provided that the shipowner shall supply " a doge and a cat with all other necessaryes." Marsden, Select Pleas of the Admiralty Court (Selden Society, 1892), Vol. I., p. 37. (t) Hamilton v. PandorJ (1887), 12 App. C. 518. (m) Cullen V. Butler (1816), 5 M. & S. 461, as corrected by Lord HerscheU, 12 App. C. 509. {x) Thames Ins. Co. v. Hamilton ; The Inchmaree (1887), 12 App. C. 484 ; Hamilton v. PandorJ, v. s. iy) Per Sankey, J., Williams v. Naamlooze, etc. (1915), 21 Com. Cas., at p. 257. The " grievance " in that case was the crew's objection to face the dangers of German mines and submarines. The suggestion in Stephens V. Harris (1887), 56 L. J. Q. B. 516, that the grievance must be as to the rate of wages, is too narrow. Ibid. PIRATES, BOBBERS, THIEVES. 225 incidental to labour disputes (z). It does not cover dis- missals of men to save expense (a) or men leaving work for fear of disease (6). The employer must use reasonable exertions to carry on his business and obtain men (c). Strikes preventing cargo from commg to the port of loading may be within the exception (d). An exception of " strike preventing loading " will not entitle the charterer to decline to load by reason of a strike of the crew which may delay the ship's sailing (e). An exception of " strikes," expressed to be mutually binding, will not absolve the charterer from paying hire for time during which he has been prevented by a strike from employing the ship (/ ). Article S5.— Pirates, Robbers by Land or Sea, Thieves. Piracy is " robbery and depredation on the sea or navi- gable rivers, etc., or by descent from the sea upon the (z) Richardson v. Samuel (1898), 1 Q. B. 261, at pp. 267, 268. As to the phrase " general strike," see Aktieselskabet Shakespeare v. Ekrnan (1902), 18 Times L. R. 605. In Re Allison and Richards (1904), 20 Times L. R. 584, it was held that delay through colhers taking an unauthorised hoHday was within the exception, " time lost through strikes, lock-outs, or any other cause beyond the charterers' control." In Gordon Co. v. Moxey (1913), 18 Com. Cas. 170, it was held that " stoppage " of work by a strike may extend beyond the actual ending of the strike, e.g., where coUiers cannot in fact resume the getting of coal for some days after they are willing to resume work. But " stoppage " in such a clause means an entire absence of output, and not merely a deficiency, however great : Aktieselskabet Adalands v. Whitaker (1913), 18 Com. Cas. 229 Where a ship moored end on to a quay was not discharged owing to a declaration of the Presidents of two Co-opera- tive Societies of labour (pubhshed some months before and since acted on) that vessels were not to be discharged while so moored, the delay was held not to be within an exception of " hands striking work." Horsley Line v. Roechling (Sc. (1908), Sess. Cas. 866). As to an exception of " strike of any class of workmen essential to the discharge," see Langham S.S. Co. v. Gallagher (1911), 2 Ir. Rep. 348 ; and Dampskibsselskabet Svendborg v. Love (1915), Sess. Cas. 543. (a) Richardson v. Samuel, vide supra. (b) Stephens v. Harris (1887), 56 L. J. Q. B. 516. Cf. also Mudie v. Strick (1909), 14 Com. Cas. 137. (c) Bidman v. Fenwick (1894), 1 Q. B. at p. 185. A charterer cannot rely on delay from a strike, if by having made a proper contract with the suppliers of the cargo the delay could have been avoided : Dampskibsselskabet Danmark v. Poulsen (1913), Sess. Cas. 1043. id) The Alne Holme (1893), P. 173. See also Leonis Co. v. Rank (No. 2) (1908), 13 Com. Cas. 161, 295. (e) Ropner v. Ronnebeck (1914), 20 Com. Cas. 95. (/) Brown v. Turner Brightman (1912), A. C. 12; c/. Aktieselskabet Lina v TurnbuU (1907), Sess. Cas. 507. s.c.p. 15 226 PIRATES, BOBBERS, THIEVES. coast, by persons not holding a commission from an established civilised state " {g). The exception " robbers " refers to robbers by violence external to the ship {h), and does not include secret theft {i). The exception " thieves " refers to thieves external to the ship (i). 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 delivery ; there was no evidence to show 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 certainlv not within the exceptions), the shipowner was liable (I). Case 2. — Goods were shipped from P. to London, under excep- tions, " 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 ship- owner was liable {h). Case 3. — Groods were shipped under exceptions ..." pirates, robbers, or thieves of whatever kind, whether on board or not, by land or sea." Goods were stolen after shipment by one of the stevedore's men employed by the ship. Held, the exception did not apply to thefts committed by men in the service of the ship (m). Note. — Loss by pirates has been held a peril of the sea {n), and if this is still the law the advantage of the additional exception " pirates " is not very great. It, however, relieves the shipowner of the burden of proving that the loss was not caused by his [g) The defimtion of the Oxford English Dictionary. See Republic of Bolivia v. Indemnity (1909), 1 K. B. 785. (h) De Rothschild v. Royal Mail Co. (1852), 7 Ex. 734. The phrase " assailing thieves " is sometimes used. (i) Taylor v. Liverpool S.S. Co. (1874), L. R. 9 Q. B. 546. Cf. The Prinz Heinrich (1897), 14 Times L. R. 48. {k) Semble, that if the shipowner had proved theft by the crew, i.e. prima facie barratry, the onus of proving negHgence of the owner or master would then be on the shipper. (Z) Taylor v. Liverpool S.S. Co. (1874), L. R. 9 Q. B. 546. (m) Steinman v. Angier Line (1891), 1 Q. B. 619. Some of the large lines have now widened their exceptions to meet this. (n) So decided as long ago as 1648 in Pickering v. Barclay (Styles, 132), and in other old cases. Qucere if the decision is consistent with modern definitions of perils of the sea (see Article 83, supra). LEAKAGE, BREAKAGE, ETC. 227 negligence (o). Mutinous seizure by the passengers has been held " piracy " under an insurance policy (p). 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 (?)• Article 86. — Loss or Damage from Leakage (r), Breakage, Heat, Sweat, Rust, etc. 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, etc. It does not by itself protect him from liability for damage resulting from negligent stowage (s) (though it throws the burden of proving such negligence on the shipper) (t), nor from liabihty for damage to goods from the leakage, etc., of other goods {u). Case 1. — Goods were shipped, " to be free of breakage, leakage, or damage." On 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 (t). Case 2. — Sugar was shipped " not liable for leakage." It was damaged by leakage from other sugar which accumulated owing (o) Czech V. General Steam Co. (1867), L. R. 3 C. P. 14. (p) Palmer v. Naylor (1854), 10 Exch. 382. (q) Queensland Bank v. P. & 0. Co. (1898), 1 Q. B. 567. (r) An attempt to limit " leakage " to " ordinary leakage," said by the •custom of trade to be one per cent., failed in Ohrloff v. Briscall (1866), 4 Moore, P. C, N. S. 70, 77. (a) Philips V. Clark (1857), 2 C. B., N. S. 156, see per Willes, J. See also The Pearlmoor (1904), P. 286. (0 Czech V. General 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. (u) 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 effects from other goods." 15—2 228 FIBE. 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 (x). Case 3. — Palm-baskets and barrels of oil were shipped " not accountable for rust, leakage, or breakage." The oil leaked and damaged the palm-baskets. Held, the exception only covered the leakage of the oil, and not the damage to the baskets by such leakage (y). Case 4. — Maize was shipped under a bill of lading containing inter alia exceptions of '" loss or damage . . . arising from sweating . . . decay . . . heat." The maize was damaged by becoming heated on the voyage, which was due to improper stowage. Held, that the shipowners were liable (z). Article 87. — Fire. By sect. 502 of the Merchant Shipping Act, 1894 (a), a shipowner is not liable for any loss of or damage to goods by reason of fire on board (6), if the loss happens without his actual fault or privity. If a shipowner seeks to rely upon the protection of this section the onus is upon him to prove that the loss was without his fault or privity (c). If the " shipowner " is a corporation the fault or privity must be that of its managing authority (d) — i.e. the board of dnectors of a company (e), or the managing owner (/ ). The exemption under this section is not conditional upon the fulfilment of the implied warranty of seawor- thiness {g). Therefore proof that the fire was caused by unseaworthiness will not deprive the shipowner of the (x) The Nepoter (1869), L. R. 2 A. & E. 375. Case 3 shews that the exception did not cover the damage by leakage, even without accumulation. {y) 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 v. Williatris (1890), 7 T. L. R. 37- (2) The Pearlmoor (1904), P. 286. (a) See Appendix III., p. 420. (b) " Damage bv reason of fire " includes damage by smoke and bv water used to put out fire. The Diamond (1906), P. 282. (c) Lennard's Co. v. Asiatic Co. (1915), A. C. 706. Cf. S. C. in C. A. (1914), 1 K. B., at pp. 432, 433, 436. (d) " Of the person who is really the directing mind and will of the corporation, the very ego and centre of the personaUty of the corporation," per Haldane, L.C., Lennard's Co. v. Asiatic Co. (1915), A. C, at p. 713. (e) Smitton v. Orient Co. (1907), 12 Com. Cas. 270; cf. The Yarmouth (1909), p. 293. (/) Lennard's Co. v. Asiaiic Co. (1915), A. C. 706. {g) Virginia etc. Co. v. Norfolk etc. Co. (1912), 1 K. B. 229. FIBE. 229 statutory protection, as it would deprive him of the benefit of an exception of " fire " in his bill of lading. A shipowner can contract himself out of the benefit of this section {h). Where therefore goods are shipped under a bill of lading which contains an exception of " fire," and which also contains an express or implied promise to be liable for loss due to unseaworthiness, the shipowner has been held to have agreed to be liable for loss or damage from fire caused by unseaworthiness, and thereby to have waived the benefit of the section (*). But such an agree- ment will only be inferred from some special undertaking in the bill of lading to be liable for fire caused by unsea- worthiness : it will not be inferred merely from (a) the insertion of " fire " as an excepted peril, and (b) the exist- ence of the implied warranty of seaworthiness, in the bill of lading {k). An exception of " fire " is very commonly inserted in bills of lading. In view of the provision of the statute this is unnecessary (Z), and in some cases, as will be seen, its insertion actually increases the liabilities of the ship- owner. If a fire results from spontaneous combustion, due to the dangerous condition of the goods, of which the shipowner could not reasonably know, the statute or the exception " fire " will protect him, but shippers of other goods damaged will have their remedy against the shippers of the dangerous goods (m). Fire caused bv lightning will be an " act of God." {h) Cf. The Satanita (1897), A. C. 59. (i) Virginia, etc. Co. v. Norfolk, etc. Co. (1912), 1 K. B. 229. (k) Ingram v. Serviced Maritimes (1914), 1 K. B. 541. (I) The statute only deals with " hre on board." Where a bill of lading covers goods elsewhere than on board {e.g. in craft, or on quay during tran- shipment) an exception of " fire " may be desirable to supplement the protection of the statute. The danger to the shipowner of inserting the exception (as shewn by the Virginia Carolina case {vbi supra) ) may be avoided by adding a clause — " Nothing in this bill of lading shall be deemed in any way to hmit or affect the operation of § 502 of the Merchant Shipping Act, 1894." (to) See ante. Article 31. Neither the exception " fire on board," nor the provision of § 502 of the Merchant Shipping Act, reheves the shipowner from the habihty for general average contribution to the owner of goods damaged by water used in extinguishing a fire on board. Schmidt v. Royal Mail Co. 230 BAEBATRT. Article 88. — Barratry of Master or Mariners. This exception covers any wiKul act of wrong doing 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 circumstances that they could not reasonably have been prevented by the owner or the master (n). 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 appointing a drunken or incapable captain (o), will not come under the exception " barratry " (p). Negligence, even amounting to reckless carelessness, will not constitute barratry ; there must be an intention to injure the ship or goods (q). The following acts are barratrous : — Boring holes in a ship to scuttle it (r) ; illegal trading with the enemy, or smuggling (s) ; intentional breach of port rules so that the ship is forfeited or detained {t) ; intentional breach of blockade without owner's authority {u) ; fraudulent deviations from course (x). (1876), 45 L. J. Q. B. 646. GreensUelds v. Stephens (1908), App. Cas. 431. ( ji) For the captain to deviate from his proper voyagfe for purposes of his own profit may constitute barratry. Meniz Decker di Co. v. Maritime Co. (1909), 15 Com. Cas. 17. (o) See per Brett, L.J., 10 Q. B. D., at p. 532. (p) Amould on Marine Insurance, 8th ed., §§ 838-857 ; Lord Hardwicke, in Lewen v. Suasso there cited ; Lord Ellenborough, in Earle v. Rowcroft (1806), 8 East, at p. 139 ; Atkinson v. G. W. Insurance Co. (1872), 27 L. T. 103 (Am.). {q) Channel], J., Briscoe v. Powell (1905), 22 Times L. R. 128, at p. 130. The recklessness presumably may be so great as to be in itself evidence of intention. See the discussion of " wilful misconduct " in Forder v. G. W. Railway (1905), 2 K. B. 532. (r) Th£ Chasca (1875), L. R. 4 A. & E. 446 ; lonides v. Pender (1873), 27 L. T. 244. («) Earle v. Rowcroft (1806), 8 East, 126; Havelock v. Hancill (1789), 3 T. R. 277 ; Pipon v. Cope (1808), 1 Camp. 434. (t) Knight v. Cambridge, cited 8 East, 135; Robertson v. Ewer (1786), 1 T. R. 127. (u) Goldschmidt v. Whilmore (1811), 3 Taunt. 508. (x) Ross V. Hunter {1190), T. R. 33 ; Mentz Becker d: Co. v. Maritime Co. (1909), 15 Com. Cas. 17. XEGLIGENCE OF SEBVANTS. 231 The following acts are not barratrous : — Deviation, unless accompanied by fraud or crime (y) ; failure to observe rules of navigation, without fraud, though such failure is by statute to be taken as wilful default (z) ; stowing goods on deck, in spite of shipper's remonstrance (a). Article 89. — Negligence of the Master, Mariners, and other Servants of the Shipowner (6). The tendency of the Courts is to construe this and similar exceptions strongly against the shipowner (c) ; they will not protect him from the consequences of his own personal negligence {d), as in negligently appointing a drunken or incompetent captain, or in negligently giving orders that no pilot should be employed (e). But where the master is himseK owner or part owner, and is sued as such, the exception " negligence of the master " will protect him as to his negligence as master, though not as to his negligence as owner (/). (y) Earle v. Rowcroft, vide supra ; Phyn v. Royal Exchange Co. (1798), 7 T. R. 505. (2) Grill V. General Colliery Co. (1866), L. R. 1 C. P. 600, at p. 610. (a) Atkinson v. G. W. Insurance Co. (Am.) (1872), 27 L. T. 103. (b) This exception assumes various forms. See note 3 at the end of this article. (c) Price v. Union Lighterage Co. (1904), 1 K. B. 412. The Pearlmoor (1904), P. 286. Cf. footnote (h), supra, p. 82, and cases there cited. See also note 2 at the end of this article. Cf. also Rosin, etc. Co. v. Jacobs (1909), 14 Com. Cas. 78. In the last case the principle was recognised, but the decision reversed by the C. A. and H. L. (14 Com. Cas. 247, 15 Com. Cas. 111). So where a charter for live-stock e.xcepted negligence and unsea- worthiness in a general exceptions clause, and in another part it was provided that the ship should provide water for the cattle, it was held by Mathew, J., that the exceptions did not operate to excuse a failure to fulfil the positive agreement to provide water : Vallee v. Bucknall (1900), 16 T. L. R. 362. But an exception Umiting habihty beyond a certain amount may apply although the loss is caused by negligence : Baxter^ s Co. v. Royal Mail Co. (1908), 2 K. B. 656. {d) For a case where the shipowner was held personally liable for negU- gence, see City of Lincoln v. Smith ( 1904), A. C. 250. For a case that failed, Anglo-Argentine Co. v. Westoll (1904), A. C. at p. 255. (Reported also The Times, May 15, 1900.) (e) Per Brett, L.J., 10 Q. B. D. 532; Norman v. Binninglon (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. (/) Westport Coal Co. v. Macphail (1898), 2 Q. B. 130. 232 NEGLIGENCE OF SEBVANTS. This exception will not apply, unless clearly worded to that effect, to relieve the shipowner from the consequences of a breach of his implied undertaking (g) that the ship should be seaworthy at starting (h). Where an exception of negligence of the shipowner's servants is clearly expressed, full effect will be given to it, so that even the most culpable recklessness on their part will not render him liable (i). Case 1. — Cargo was shipped under an exception, " negligence or default of master or mariners or others performing their duties." Through careless stowage by master and crew the cargo was damaged. Held, the exception freed the shipowner from liability {k). Submitted, that it would not have done so, if the stowage had made the shif) unseaworthy at starting (l). Case 2. — Sugar was shipped under an exception of " loss from any act, neglect, or default of the pilot, master, or mariners in navigating the ship " . . . " the captain, officers, and crew of the vessel in the transmission of the goods, as between the shipper and the ship, 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 stevedore, was not within the exception (m). ig) Steel v. State Line Co. (1878), 3 App. C. 72 ; and Article 29. (h) See Article 29, .supra. See also The Glenfruin (1885), 10 P. D. 103 ; where, though " accidents to machinery " were excepted in the bill of lading, loss caused by the breaking of a crankshaft through a latent flaw, not dis- coverable by diligence on the part of the shipowner, was held not within the exception ; Tattersall v. Natioyial 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. So an exception of "neglect . . . of stevedores or servants . . . in loading, stowing, or other- wise," was held not to protect the shipowner where bad stowage constituted unseaworthiness. Ingram v. Services Maritimes (1913), 1 K. B. 538. But see The TJmsa (1916), P. 257. (i) Briscoe v. Powell (1905), 22 Times L. R. 128. Cf. The Torbryan (1903), P. 35, 194. So in Marriott v. Yeoward (1909), 2KB. 987, it was held that even felonious acts by a servant of the shipowner were covered by " any act, neglect, or default, whatsoever " of servants, etc. (k) See note (/(), ante. (l) The Duero (1869), L. R. 2 A. & E. 393. (w) Hayn v. CulUford (1878), 3 C. P. D. 410; 4 C. P. D. 182. Cf. The Ferro (1893), P. 38, where the words were " navigation or management," and the stevedore's negligent stowage was held not to come within them on both of the grounds taken in Hayn v. CulUford. The expression " loss by negUgence of servants " has been held to protect the shipowner from a claim by the cargo-owner, where the goods were by the neghgence of iiis servants delivered to the wrong consignee. Srnackman v. General Steam Co. (1907), 13 Com. Cas. 196. NEGLIGEXCE ; ONUS OF PEOOF. 233 Case 3. — A ship was chartered to proceed to X., and there load ■sugar, the shipowners not to be responsible " for any act, neglect, or default, whatsoever of their servants during the said voyage." During the loading one of the engineers negligently left 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 the charter, and that the exceptions exempted the shipowner from liability («). 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 ordinaiy 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 navi- gating the ship, or in the ordinary course of the voyage, and the exceptions did not apply (o). Case 5. — Cargo was carried mider 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 other- wise." The goods were damaged while the ship was being loaded, l)y negligence of the shipowner's men. Held, that the exception protected the shipowner from liability (p). Case 6. — A cargo was shipped under the exceptions, " 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 (g). Note 1. — Onus of Proof . — If when loss or damage has occurred the goods-owner proves facts as to the cause of the loss which are •consistent with negligence on the part of the shipowner or his servants, but such evidence leaves it in doubt whether the actual cause of the loss or damage was such negligence, the onus is upon the shipowner to prove that the loss was not due to negligence (r). Note 2. — Upon the question whether general words do, or do not, protect a contractor from liability for negligence there have been two lines of cases, — the railway cases and the ship cases, (n) The. Catron Park (1890), 15 P. D. 203. (o) 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 So. Sess. C. 569. (p) Norman v. Binnington (1890), 25 Q. B. D. 475; see Baerselman v. Bailey (1895), 2 Q. B. 301, where one passage at the end of the judgment in Norman v. Binnington is disapproved ; see also Dc Clermont v. General Steam Navigation Co. ( 1891), 7 T. L. R. 187, and Packwood v. Union Castle Oo. (1903), 20 Times L. R. 59. (q) The Cressinglon (1891), P. 152: so if the sea- water was negligently admitted to the wrong tank by the engineer. Blackburn v. Liverpool Co. (1902), 1 K. B. 290. (r) Travers v. Cooper (1915), 1 K. B. 73. Cf. Pi/man v. Hull prima facie case to this effect, the shipper must then disprove it {I) 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 ser- vants, where negligence is not one of the excepted perils (m), or unseaworthiness {n), where unseaworthiness is not excepted, or that there has been a deviation (o) ; and unless he can prove one of these, the shipowner will be protected {p). Exceptions in the bill of lading will not affect the rights and liabilities of shipper and shipowner as to general gation Co. (1891), 7 T. L. R. 187 ; and see note 3 to Article 89, p. 234, ante. (g) The non-arrival of the ship is not evidence of negligence at all. Boyson V. Wilson (1816), 1 Stark. 236. (h) The Xantko (1886), 2 Times L. R. 704. Lord Herschell's remarks in 12 App. C. at p. 512, were not approved bj' the C. A. in The Glendarroch (1894), P. 226. Where goods are dehvered damaged, see, as to the burden of proof, Article 52. (0 See Baxter's Leather Co. v. Boyal Mail Co (1908), 1 K. B. 796, 2 K. B. 626. See also, as to onus of proof of negUgence, note 1 on p. 233. (k) Smith V. Bedouin Co. (1896), A. C. 70. Harrowing 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 satisfactorj- evidence to displace the statement of shipment in the bill of lading ; such evidence must shew not merely that the goods may not have been shipped, but that in fact they were not : (1896), A. C. at p. 79. If the biU 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. (I) As to the onus of proof see The Northumbria (1906), P. 292. (m) The Glendarroch (1894), P. 226. Cf. The Pearlmoor (1904), P. 286, where an exception " not Hable for heating or for any other damage " was held not to protect the shipowner against heating caused by neghgent stow- age. But where the bill of lading provides for a Umitation of the amount of liabiUty it may avail the shipowner in case of a loss due to negligence, but not in case of one due to unseaworthiness. Baxter's Leather Co. v. Boyal Mail Co. (1908), 2 K. B. 626. (n) See Article 29, and Article 79, note 4, p. 212. (o) See Article 99, infra. (p) The Norway (1865), 3 Moore, P. C, N. S. 245 ; Muddle v. Stride (1840), 9 C. & P. 380 ; Czech v. General Steam Co. (1867), L. R. 3 C. P. 14. See also Willia7ns v. Dobbie (1884), 11 Sc. Sess. Cases, 4th Ser. 982 ; Cunningham v. Colvils (1888), 16 Sc. Sess. Cases, 4th Ser. 295. WHO CAN SUE AND BE SUED. 241 average contributions (q), unless they are clearly intended to do so (r). 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. Held, that unless the shipper proved negligent navigation causing the stranding, the shipowners succeeded (s). Case 2. — Goods were shipped, " to be free from leakage or damage." On 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 (<). Article 92. — Who can sue for Failure to carry Goods safely I. In tort, there can sue : — All who have any proprietary interests in the goods, 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 (w). The nominal shipper cannot sue in tort if he ships merely as agent for the real owner {x). II. In contract, there can sue : — (1) The shipper, unless he acted merely as agent for another, in which case the principal can sue {y), the agent cannot {x). (2) Any person to whom by indorsement and delivery of the bill of lading, or by indorsement followed (q) Schmidt v. Royal Mail S.S. Co. (1876), 45 L. J. Q. B. 646 ; Crooks v. ^toH(1879), 5Q. B. D. 38. (r) As in Watford v. Galindez (1897), 2 Com. Cases, 137. A clause nega- tiving contribution is not uncommon in Italian and Greek charters. (6) The Glendarroch (1894), P. 226. (t) Czech V. General Steam Co. (1867), L. R. 3 C. P. 14 ; Craig v. Delargy (1879), 6 So. Sess. Cases, 4th Ser. 1269. (u) Coleman v. Lambert (1839), 5 M. & W. 502, at p. 505 ; Tronson v. Dent (1853), 8 Moore, P. C. 419. As to bailees, not Uable over to their bailor, see The Winkfkld (1902), P. 42 : in which case it is very doubtful whether the alleged bailee had possession at all. ix) Moore v. Hoppers (1807), 2 B. & P. N. R. 411 : sed cf. The Winkfield. (y) Anderson v. Clark (1824), 2 Bing. 20 ; Fragano v. Long (1825), 4 B. & C. 219. 242 WHO CAN BE SUED. by delivery of the goods, the absolute property in the goods has passed {a). (3) The consignee named in the bill of lading if the property has passed to him by such consign- ment (a). Article 93. — Who can be sued for Negligent Carriage of the Goods. I. The shipowner. — (1) In tort, if he is or was in posses- sion of the goods by his agents, there being no charter amounting to a demise (6) ; (2) in 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 posses- sion of the goods, his charter amounting to a demise (6) ; (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 (c). 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 (d). (a) 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. Dent (1853), 8 Moore, P.' C. 419 ; Sargent y. Morris (1820), 3 B. & A. 277. (b) See Article 2 ; and cf. Baumvoll v. Gilchrest (1893), A. C. 8. (c) But apparently the master, if sued on a biU of lading signed by himself merely as agent for charterers, cannot be sued in contract : see per Bigham, J., in Bepetto v. Millars (1901), 6 Com. Cases, at p. 135. "The master therefore could not be sued, and it follows as a consequence that he cannot sue." (d) Priestly v. Fernie (1865), 3 H. & C. 977; Leslie v. Wilson (1821), 6 Moore, Ex, 415. ( 243 ) SECTION VII. The Performance of the Contract. — The Voyage. Article 94. — " Final Sailing " (a). A VESSEL has finally sailed when she has left her port of loading (or her last port of call in the United Kingdom) (6), ready for her voyage, with the purpose of proceeding on her voyage, and without any intention of coming back(c). 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 " (c). 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 {d). The term " port " is to be taken in its business, popular, and commercial sense (c), and not in its legal definition for revenue or pilotage purposes (e). (a) Whether a vessel has " finally sailed " may be of importance as to the payment of " advance freight." (b) "' Saihng " in insurance cases, where there is a warranty to sail before a particular day, has been held to be " breaking ground," i.e. leaving her moorings ready for sea, though not leaving port ; see Parke, B., in Roelandts V. Harrison (1854), 9 Ex. at p. 456 ; Arnould, 8th ed., §§ 647-653. See also Mersey Mutual v. Poland (1910), 15 Com. Cas. 205. (c) Price v. Livingstone (1882), 9 Q. B. D. 679 ; Roelandts v. Harrison (1854), 9 Ex. 444 ; S.S. Garston v. Hickie (1885), 15 Q. B. D. 580 ; approved by Lord Watson in Hunter v. Northern Ins. Co. (1888), 13 App. C. at p. 733 ; Leonis Co. v. i?anfc (1908), 1 K. B. at pp. 519 ei seq. ; Hall Bros. v. Pawi (1914), 19 Com. Cas. 384. " 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 Mary Tfiomas (1896), 12 T. L. R. 511. (d) Thompson v. Gillespy (1855), 5 E. & B. 209 ; Hudson v. Bilton (1856), 6 E. & B. 565. (e) On the other hand, in Caffarini v. Walker (1876), 10 Ir. L. R. C. L. 250, and M'Intosh v. Sinclair (1877), 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 Nicholson 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 16—2 244 MASTERS AUTHORITY " Port Charges " include all charges a vessel has to pay before she leaves a port, and therefore light dues, where such are claimable ( / ), but the term does not include pilotage dues (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 Penarth, 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 her owners to an advance of one-third of the freight (h). Case 2. — A ship being loaded and cleared, came into the roads and cast anchor three miles from X. 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 deficiencies were supplied. Held, she had not finally sailed (i). Article 95. — Master's Authority on the Voyage. The master on a 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 a certain space of water, and shipowners are submitting to that jurisdiction, that is the strongest e\-idence that that space of water is accepted as the commercial port." Cf. Goodbody v. Balfour (1899), 5 Com. Cases, 59, as to the port of Manchester. (/) Newman v. Lamport (1896), 1 Q. B. 20. {g) Whittal v. Rahtkem (1907), 12 Com. Cas. 226. Cf. Societa Ungherese v. Hamburg S. A. Ges. (1912), 17 Com. Cas. 216. As to "dock dues," see The Katherine (1913), 30 T. L. R. 52. (A) Price v. Livingstone (1882), 9 Q. B. D. 679. In Roelandis v. Harrison, V. s., and S.S. Garston v. Hickie (1885), 15 Q. B. D. 580, the port was also the port of Cardiff, the ship in each case was ready to sail, and on her way to sea, but had not got outside the commercial port. (i) Thompson v. Gillespy (1855), 5 E. & B. 209 ; see also Hudson x. Bilton (1856), 6 E. & B. 565. (k) The Turgoi (1886), 11 P. D. 21 ; The Beeswing (1885), 53 L. T. 554. {1} The Hamburg (1864), B. & L. 253, see p. 272 ; The Gratitudine (1801), 3 C. Rob. 240 ; Nofara v, Henderson (1872), L. R. 7 Q. B. 225 ; Assicurazioni V. Bessie Morris S.S. Co. (1892), 2 Q. B. 652 (C. A.), et post. Article 101. {m} See Australasian Steam Navigation Co. v. Morse (1872), L. R. 4 P. C. 222 ; and Articles 102, 104. ON THE VOYAGE. 245 money on bottomry (n), salvage agreements (o), tranship- ment ip), jettison {q), deviation or delay {r), the power to 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 saihng where it is in the interest of the owners that the ship should sail {t} ; he is the agent of the charterers for providing those necessaries for the voyage which are by the charter to be paid for by the charterers, e.g. coal (w) ; but in this case he is agent of the shipowners to see that the steamer starts with a sufficient supply of coal and is thus seaworthy. Cf. Mclver v. Tate Steamers {x) and The Vortigern (y). The duty of protecting the interests of the cargo owner may devolve upon the master, from his possession of the goods (2) ; 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 (a), as in salvage agreements (6), sale (c), borrowing {») See The Karnak (1869), L. R. 2 P. C. 505, and Articles 105, 106, post. (0) The Benpor (1883), 8 P. D. 115, and Article 121. (p) The Soblomsten (1866), L. R. 1 A. & E. 293, and Article 103. ' (q) Burton v. English (1883), 12 Q. B. D,218, and Article 107. (r) See Articles 99, 100. (s) The Turgot (1886), 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. Wendelin (1886), 2 Times L. R. 240. (m) The Beeswing (1885), 53 L. T. 554; Morgan v. Casilegate S.S. Co. (1893), A. C. 38. (z) (1903), 1 K. B. 362. (y) (1899), P. 180. (2) Cf. Hansen v. Dunn (1906), 11 Com. Cas. 100. (a) The Gratitudine (1801), 3 C. Rob. 240, and see Articles 96, 97, 98. (b) The Benpor (1883), 8 P. D. 115, and Article 121. (c) See Australasian Steam Navigation Co. v. Morse (1872), L. R. 4 P. C, 222, and Articles 102, 104. 246 MASTEB'S AVTEOEITY money on respoyidentia (d), transhi23ment (e), drying or conditioning goods ( / ), jettison (g), delay or deviation (h). The master is always the appointed agent for the ship ; he is in special cases of necessity the involuntary agent for the cargo owner; but the foundation of his authority is the prospect (h) 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 unless it cannot profitably be carried further. He may not repair the ship at the sole expense of the cargo without reason- able prospect of benefit to such cargo, and such a prospect would not exist in the case of goods not injured by delay (^). Article 96.- — Master's Authority, whence 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 for the action : (Art. 97). 2. The impossibihty of communicating with his prin- cipals, 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 (d) The Onward (1873), L. R. 4 A. & E. 38 ; Eleinwort v. Cassa Marittima (1877), 2 App. C. 159, and Articles 104-106. (e) The Soblomsten (1866), L. R. 1 A. & E. 293, and Article 103. (/) Article 101. {g) Burton v. English (1883), 12 Q. B. D. 218, and Article 107. {h) 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. C. 696, at p. 720. (i) The Omvard, v. s., at pp. 57, 58 ; see also per Brett, M.R., and Bowen, L.J., in ThePontida (1884), 9 P. D. at p. 180; The Gratitudine (1801), 3 C. Rob. at pp. 257, 261. ON THE VOYAGE. 247 adventure (k). The mere fact that the master acts in good faith is not sufficient (1). Thus, if money can be obtained from tlie 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 (m). 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 commer- cial necessity for the sale will arise ; but if the goods can be carried on and delivered in a merchantable state, though damaged, the master will not be justified in selling {n). 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 (o) ; if no such necessity exists (p), or if the necessity arises from wrongfrd acts or omissions on the part of the shipowner {q), or if the captain professes to act for the shipowner (r), he will be treated as the agent of the shipowner (s). Article 98. — Communication with Owners. The master, before dealing with the cargo in a manner not contemplated in the contract must, if possible {t), communicate with the owners of the cargo as to what should be done. For the master's authority to bind the (k) The Onward, L. R. 4 A. & E. 38, at p. 58 ; Atlantic Insurance Co. v. Huth (1880), L. R. 16 Ch. D. 474, at p. 481. CJ. Phelps, James y hostile ( / ) Glynn v. Margetson (1893), A. C. 351 ; White v. Granada Co. (1896), 13 Times L. R. 1. {g) Joseph Thorley v. Orchis Co. (1907), 1 K. B. 660. (h) Internationale Guano, etc. v. Macaiidreiv (1909), 2 K. B. 360. (i) Morrison v. Shaw Savill (1916), 2 K. B. 783. PEB3II8SIBLE DEVIATION. 255 capture, pirates, icebergs, or other dangers of navigation, or where ship or cargo have been damaged and repairs or reconditioning are necessary (k), he will be justified in reasonable delay to ascertain the nature of the danger, and reasonable delay or deviation to avoid or repair (k) it, or to consult his owners, if communication with them is possible (Z). It is not necessary that the danger should be common to ship and cargo : it will be sufficient if it affects either of them (m). 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 {71) ; if it is unrea- sonable, 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 (o). 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 (p). Case 1. — A Prussian ship with a contraband cargo was chartered from X. to an English port for orders ; thence to any safe port in England or the continent between Havre and Hamburg ; she (k) Cf. Phelps, James dh Co. v. Hill (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 dela}' or deviate, even if one of the objects of such action is reconditioning of cargo : sed qucere ; and see Article 98, ante, note (y), p. 248. (I) The Teutonia (1872), L. R. 4 P. C. 171, at p. 179; Nobel v. Jenkins (1896), 2 Q. B. 326 ; The San Roman (1873), L. R. 5 P. C. 301 ; The Wilhelm Schmidt (1871), 25 L. T. 34 ; The Express (1872), L. R. 3 A. & E. 597 ; The Heinrich (1871), L. R. 3 A. & E. 424 ; Pole v. Cetcovitch (1860), 9 C. B., N. S. 430. Where the danger was foreseen by the shipowner, who after considera- tion gave his master orders to pursue a certain course, the master had no power to deviate from that course in consequence of that danger : The Roebuck (1874), 31 L. T. 274. (m) The Teutonia, vide supra. (n) See, however. The Patria (1871), L. R. 3 A. & E. 436, at p. 464, on which see note (r), post : contra, see Castel v. Trechman (1884), I C. & E. 276. (0) See Articles 28, 30, and see Article 99 as to the nature of his claim for damages. (p) The Teutonia, vide post. 256 PEBMIS8IBLE DEVIATION. 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 Trance 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 informed that war between France and Prussia, imminent from the 10th of June, had been declared on the 19th. Held, that putting back to the Downs to obtain information and the delay on the r9th were justifiable, and that the goods owners could not obtain their goods at Dover with- out payment of fuU freight (q). Case 2. — Coffee was shipped on a German ship, under a bill of lading, containing only an exception of perils of the seas, from America to Hamburg. Near Falmouth the master was informed that war had broken out between France and Germany, and he accordingly put into F. on August 23. Hamburg was then blockaded by the French Fleet, and remained blockaded till September 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 freight 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 deliver the cargo. Held, that the master's delay (of fifty days, September 18 to November 7), was unreasonable, and his refusal either to proceed to H. or to deliver the cargo, a breach of the contract (r) ; and that the goods owners were therefore entitled to the cargo. Case 3. — Goods were shipped at 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 (?) The Teutonia ( 1872), L. R. 4 P. C. 171. The San Boman, The Heinrich, The Exjyress, and The Wilhelm Schmidt, note {l) -supra, all arose out of similiar circumstances, and in effect decided that reasonable apprehension of capture justifies delay or de\-iation. The latter part of the decision in The Teutonia can be supported either on the groiuid 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 pajTnent of full freight ; or on the ground that as the 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. And see St. Enoch Co. v. Phosphate Co. (1916), 2KB. 624. (r) The Patria (1871), L. R. 3 A. & E. 436. It is difiicult to understand this case, as the same judge had held a longer delay from similar causes reasonable in other cases : {e.g. San Eoman, 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 freight, which, however, would not prove that he was entitled to them without any payment of freight on the ground of unreasonable delay. Sir R. Philhmore suggested that on the refusal of the master to proceed to H. the goods owners were entitled to their goods on pajTuent of a 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. Medeiros 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. DUTY TO TAKE CAME OF GOODS. 257 weather. The captain communicated with the shipowners at Bristol, who ordered him to return there. He did not communi- cate 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 cargo 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 found 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 (s). 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 venti- lation, pumping, or saving goods which accident has exposed to danger (t). 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 hability, and the shipowner will be liable {u) for any neglect of such duty by the master {t). The place, the season, the extent of the deterioration, the opportunities at hand, the interests of other persons is) Phelps, James cfc Cn. v. Hill (1891), 1 Q. B. 605. See note (y),p. 248. (0 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; Austral- asian Navigation Go. v. Morse (1872), L. R. 4 P. C. 222. Cf. Garriock v. Walker (1873), 1 Sc. Sess. Cases, 4th Ser. 100; Adam v. Morris (1890), 18 Sc. Sess. Cases, 153 ; Phelps, James d- Co. v. Hill (1891), 1 Q. B. 605 ; Hansen v. Dunn (1906), 11 Com. Cas. 100. The master is entitled to esti- mate the extent of delay to the adventure by the probabihties of the case, and if he is justified by them in not incurring the delay, he will not after- wards be held Hable because his expectations are falsified by events : The Savona (1900), P. 252. For a discussion, whether in case of wreck of the ship, the shipowners may charge for the services of agents in saving, con- ditioning, and forwarding the goods, see Bose v. Bank of Australasia (1894), A. C. 687. {u) This is not, like the authority to tranship, a power for the benefit of the shipowner only, to secure his freight : De Cuadra v. Swann (1864), 16 C. B., N. S. 772. 8. c.-p. 17 258 3IASTEB'S POWER in the adventure whom it might be unfair to delay for the sake of that part of the cargo in peril, all the cir- cumstances affecting risk, trouble, delay, and incon- venience, must be taken into account. The performance of the duty cannot be insisted 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 {v). 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 {v). Semble, the master will have a lien on the goods for any expenses incurred in the performance of such duty (x). Case 1. — 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 F. for the master's failure to dry the beans (?/). Case 2. — A ship carrying a cargo of maize from the Plate to Port Elizabeth, put into Cape Town in a damaged condition. The captain communicated with his owners, with underwriters on ship, freight, and cargo , and with owners of cargo . Unreasonable delay ensued while it was being considered whether the ship should be repaired to continue the voyage, be towed with the cargo, or the cargo transhipped to earn freight, and owing to the conflict of interests in these various courses, the cargo was damaged by being kept on board during this delay. Held, that the shipowner was liable to the cargo owners for the damage (z). Article 102. — Master's 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 communi- cate with the cargo owner and receive his instructions, (v) See note (t), p. 2.57, ante. (x) Hingston v. Wendt (1876), 1 Q. B. D. 367. See per Blackburn, J., at p. 373. (y) Notara v. Henderson (1872), L. R. 7 Q. B. 225. (2) Hansen v. Dunn (1906), 11 Com. Cas. 100. TO SELL GOODS. 259 will be bound to sell them (a). 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 destina- tion (6). Case 1. — Maize was shipped on a voyage from X. to Z. ; at Y., an intermediate 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 be 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 opportunity for communicating with the owner. 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 (c). Case 2. — The ship i?., with a mixed cargo of metal and perishable articles, was wrecked, on AprU 19, in Algoa Bay, fifty miles from Port Elizabeth. The Consul there, on April 22, advised the cap- tain 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 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 (d). (a) Australasian S. Nav. Co. v. Morse (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 ; Vlierhoom V. Chapman (1844), 13 M. & W. 230, and see Articles 97, 98. As to Germaa law, see The August (1891), P. 328 ; The Industrie (1894), P. 58. (6) Atlantic Insurance Co. v. HutJi (1880), v. s. at p. 481. As to the persoa liable for unjustifiable sale by master, see Wagstaff v. Anderson (1879), 4 C. P. D. 283, and Articles 2, 93. (c) Acatos V. Burns (1878), 3 Ex. D. 282. See also Atistralasian S. Nav. Co. V. Morse (1872), L. R. 4 P. C. 222, cited ante, Article 98, Case 3, p. 250. (d) 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 invaUd by Enghsh law, it could not have been rescinded, though the captain would be responsible to the owners of the cargo for an improper sale : Cammell v. Sewell ( 1860), 5 H. & N. 728. 17—2 260 MASTERS POWER Article 103. — Masters Power of Transhipment. Where an English vessel (e) in which goods are shipped is hindered by an excepted peril from completing the con- tract 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 an excepted peril renders 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 (/). Where the shipowner is prevented from completing the contract voyage, by a peril which cannot be overcome in a reasonable time, or damage which cannot be repaired at a reasonable expense, he is not bound either to repair or tranship (g) ; though, if he elects to do neither, he must hand over his cargo to the cargo owner (h) 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 tran- shipping the goods into another vessel to be forwarded thither {i), and he may delay the transit a reasonable time for either of these purposes (k). If he spends an (e) See Article 7 ; The Bahia (1864), B. & L. 292 ; The Express (1872), L. R. 3 A. & E. 597. (/) Assicurazioni v. Bessie Morris S.S. Co. (1892), 1 Q. B. at p. 581 ; in C. A. (1892), 2 Q. B. 652. See also The Savona (1900), P. 252. (g) In Shi'pton x. Thornton (1838), 9 A. & E. 314, the point was much dis- cussed whether it was not the duty, as well as the right, of the master to tranship the goods, if opportunity offered. The point was not determined, and does not seem to have been expressly decided, except by Kemiedy, J., in a dictum in Hansen v. Dunn (1906), 11 Com. Cas. 100, at p. 102. And on general principles (see Article 30), it would seem that there is no such duty. {h) See per Bowen, L.J., in Svendsen v. Wallace (1884), 13 Q. B. D. at p. 88. (i) See per Lawrence, J., in Cook v. Jennings (1797), 7 T. R. 381, at p- 385, and per Lindley, J., in Hill v. Wihon (1879), 4 C. P. D. 329, at p. 333 ; De Cuadra v. Swann (1864), 16 C. B., N. S. 772. (k) The Bahia (1864), B. & L. 292 ; The Soblomsten (1866), L. R. 1 A. & E. 293 ; Carqo ex Galam (1863), B. & L. 167 ; The Gratihidine (1801), 3 C. Rob. 240; Shipton v. Thornton (1838), 1 P. & D. 216, 231, et seq. TO TRANSHIP GOODS. 261 unreasonable time in making up his mind which course to adopt, and the cargo is damaged during the delay, the shipowner will be liable for the damage to the cargo owner (l). 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 transhipment was effected by the shipowner at a smaller freight (m). Semble, that the master cannot, without express authority, bind the cargo owner to more unfavourable terms in the contract of transhipment, as by wider exceptions (/i), or to pay a larger freight than that originally contracted for, unless communication with the cargo owner is 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 (o). If the hindrance of the ship's voyage is not caused by an excepted peril, 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 (p). Note. — In many bills of lading (especially through bills of lading and bills issued by regular steamship lines) there is an express provision that the shipowner shall have liberty to tranship and forward the goods " by any other line " (q), or " by any other steamer or steamers." The terms of such clauses vary consider- ably, but there is not usually much doubt as to their meaning. Where in such a clause there was liberty to tranship and forward " at ship's expense but at shipper's risk," it was held that the phrase " at shipper's risk " applied only to the process (I) Hansen v. Dunn (1906), 11 Com. Cas. 100. (m) Shipton v. TJiorntoyi, vide supra ; The Bernina (1886), 12 P. D. 36. (n) The Bernina (1886), 12 P. D. 36. (o) Gihhs V. Grey (18.57), 2 H. & N. 22, where it was held that the master had no power to bind the consignee to ship a full cargo, or, semble, to pay a higher freight than that current at the time ; and see Cargo, ex Argos (1873), L. R. 5 P. C. 134, at p. 165; Shipton v. Thornton, vide infra, at p. 234. ip) Shipton V. Tlwrnlon, vide infra ; The Bernina, vide infra. (q) Which phrase does not mean that the substituted ship must be a " liner." Hadji AH Akbar v. Anglo-Arabian Co. (1906), 11 Com. CasJ 219. 262 POWER TO EAISE 3I0XEY. of transhipment, and did not supersede the general provisions of the bill of lading as to the transit after transhipment to the destination ()■). 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 Z. at a freight which, together with pro 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 (s). Case 2. — A shipowner carried goods under a contract of affreight- ment 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 tran- shipped 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 could not bind the cargo owner by more onerous exceptions, and was therefore liable for the loss (t). 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 (x). Article 104. — Master's Power 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 com- municated with, omits to give any instructions whatever. Money may be so raised either : ( 1 . ) by a sale of part of (r) Stuart v. British and African Co. (1875), 32 L. T. 257. (s) Shipton V. Tliornton (1838), 1 P. & D. 216. See Matthews v. Gibbs (1860), 30 L. J. Q. B. 55. (t) The Bernina (1886), 12 P. D. 36. {x) Assicurazioni v. Bessie Morris S.S. Co. (1892), 2 Q. B. 652. BOTTOMBY. 263 the cargo {y) ; 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 indemnity 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 (z). (2.) By a loan on the special security of the cargo, analogous to a bottomry bond (z). Article 105. — Bottomry. By English law (a) 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 are necessary in the interests of the cargo (6), 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 (c), or when, a proper communication {d) of the necessity of raising money by bottomry having been mad© to the cargo owner, he has omitted to send any instruc- tions to the master (e). (y) See Hopper v. Burness (1876;, 1 C. P. D. 137, and Articles 97, 98. (2) See Article 143 on Freight.'^ This contract is sometimes known as respondentia, on which see Busk v. Fearon (1803), 4 East, 319; Glover v. Black (1763), 3 Burr. 1394 ; The Sultan (1859), Swabey, 504. (a) The law by which the powers of the 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. (b) 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; Dymoml v. Scott (1877), 5 Sc. Sess. C, 4th Ser. 196. When the master 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 imphed 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 v. Bessie Morris S.S. Co. (1892), 1 Q. B. at p. 575. (c) The Onward, v. s. ; The Bonaparte (1853), 8 Moore, P. C. 459 ; The Hamburg, 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. (d) As to what is a proper communication, see Kleinwort v. Cassa Marit- lima of Genoa (1877), 2 App. C. 156 Th tOtmard v. s ; The Bonaparte^ v. s., and Article 98. (e) The Bonaparte, vide supra. 264 BOTTOMRY. 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 shipowner {g). If there is a maritime risk involved, the absence of maritime interest, and the presence of collateral stipulation as to repayment, or the insurance of the loan, do not prevent the instrument from being a valid bottomry bond (h). Deviation from the voyage described in the bond with- out consent of the lender makes the sum advanced at once payable (i). Case. — A., owner of the ship E., lying at X., gave B. the following document : " In consideration of N. advancing me. A., £600 for necessaries supplied to the ship H.B., I undertake to return them the whole amount so advanced me with interest and charges on the return of the E. from her present voyage. B. is also authorised to cover the said amount advanced me by insur- ance 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, vizr either the personal liability of A. if the ship returned, or the policy of insurance if she were lost {k). Article 106. — Conditions justifying Bottomry. Whether there is necessity for raising money on the cargo by bottomry must depend on whether any arrange- ment more beneficial to the cargo than the raising of (/) The Indomitable (1859)^ Swabey, 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 pledged : 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 proportionate part of the sum secured by the bond : The Sultan, vide supra. Freight to be earned on a subsequent vovage is not the subject of bottomry : The Staffordshire (1872), L. R. 4 P. C. 194. (g) 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 invahdate the bond : The Omvard, vide supra ; The Staffordshire, vide supra. Cf. Miller v. Potter, v. s. ; The Haahet (1899), P. 295. (h) The Haabet (1899), P. 295 ; The Dora Forster (1900), P. 241. {i) London d- Midland Bank v. Neilsen (1895), 1 Com. Cases, 18. (^•) The Heinrich Bjorn, vide supra. BOTTOMBT. 265 money on it to enable the voyage to be prosecuted, can be made (l). The foundation of the master's authority to bind the cargo is the prospect that such a course will be the one most beneficial to the cargo owner (m). Thus if the master could obtain money on his personal credit, or that of the shipowner (n), or if there is an agent of the shipowner within reach, whom he has not consulted (o), his authority to bind the cargo by bottomry will not arise. The question will not only be, was there a neces- sity 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 {p). Where communication with the cargo owner is reason- ably 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 (g). If the cargo owner asks for further information the master has no right to act until he has supplied such further information, if such further information should have been supplied at first (r). {1} The Karnak (1869), L. R, 2 P. C. 505. The money may be raised to free the cargo from arrest for salvage : The Sultan (1859), Swabey, 504. (m) The Onward, L. R. 4 A. & E. 38. (k) Soares v. Rahn (1838), 3 Moore, P. C. 1 ; Heathorn v. Darling (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. (o) 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 invahd, if they refused to advance 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. (p) The Pontida (1884), 9 P. D. 177. As to various items for which bottomry may be justified, see The Glenmanna (1860), Lush. 115; The Edmond (1861), Lush. 211. {q) Wallace v. Fielden (1851), 7 Moore, P. C. 398; The Omvard, L. R. 4 A. & E. 38. {r) Kleinwort v. Cassa Marittima (1877), 2 App. C. 156. 266 GENERAL AVERAGE. Article 107. — Jettison. The captain's authority to jettison goods properly stowed arises in cases of necessity (t, p. 295. {i) In through bills of lading from the United States there commonly appears, " Party to be notified- — ■ — .'" Where the name of the consignee is inserted in this space there is an obligation upon the shipowner to give notice to him of the arrival of the goods. E. Clemens Horst Co. v. Norfolk, etc., Co. (1906), 11 Com. Cas. 141. (j) Cf. sect. 11 of the Canadian Water Carriage of Goods Act, 1910, infra, p. 437. (k) Harman v. Mant (1815), 4 Camp. 161 ; Harman v. Clarke (1815), 4 Camp. 159 ; Nelson v. Dahl (1879), per Brett, L. J., 12 Ch. D. at p. 583 ; and cf. Major v. Grant (1902), 7 Com. C. 231. (I) Houlder v. General Steam Navigation Co. (1862), 3 P. & P. 170 ; Bradley V. Goddard (1863), 3 P. & F. 638 ; Earman v. Clarke, vide supra. UNLOADISO AND DELIVERY. 285 the goods were not landed till October 29. The consignees pleaded : (1) no notice of anival : Held, unnecessary (m) ; (2) that the ship was wrongly entered in the custom-house as Die Treiie instead of The Treue : Held, that an entry by the shipowner 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 (n). 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 wei'e 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 (q). Unloading according to custom of port of discharge, see Articles 45 and 133. Demurrage in unloading, see Section IX. Article 125. — Duty of Master as to Delivery at Port of Discharge. In the absence of statutory provisions (p), customs of the port of discharge (q), or express stipulations in the charter or bill of lading, the master on the arrival of the ship at its destination must allow the consignee a reason- able time to receive the goods, and cannot discharge his liability by landing them immediately on the ship's arrival (r). The holder of the biU of lading, who presents it at a (m) In Moulder v. General Steam Navigation Co., vide supra, an attempt to prove a custom to give notice to consignees failed. (n) Harman v. Clarke, vide supra. (o) Bradley v. Goddard (1863), 3 P. & F. 638 ; and see p. 127, note (Ic). {p) Such as Merchant Shipping Act, 1894, §§ 492-501 ; Article 127, and Appendix III. {q) Vide customs of the leading ports in the United Kingdom, in Appen- dix II. In London, for example, delivery to the dock authority is, as regards the ship's liability, equivalent to delivery to the consignee. Petrocochino v. Bott (1874), L. R. 9 C. P. 355. Cf. Grange v. Taylor (1904:), 9 Com. Cas. 223, where the bills of lading were for undivided portions of a bulk cargo, the whole of which was deUvered to the Dock Company, and the shipowner was held under no obligation to divide up the portions correctly. Cf. P. dk 0. Co. V. Leetham (1915), 32 T. L. R. 153, as to a custom of Hull. (r) Bourne v. Gatliff (1844), 11 Gl. & Pin. 45, at p. 70. This article will apply to all ports where there are statutory regulations or customs of the port ; for an English port without customs, see Fowler v. Knoop (1879), 4 Q. B. D. 299. 286 U^iLOADIXG AXD BELIVEEY. reasonable time, is entitled, in the absence of custom to the contrary, to have the goods delivered to him direct from the ship, existing liens being satisfied (s). If a person claims the goods as entitled to them, but is unable to produce the bill of lading, the captain can, of course, deliver them to him on his giving security, or an indemnity, against possible adverse claims by others. In some cases it may be so reasonable for the shipowner to do this, that he cannot claim demurrage for delay resulting from his refusal to do it {t). The shipowner or master is justified in delivering the goods to the first person who presents to him a bill of lading {u), making the goods deliverable to him, though that bill of lading is only one of a set, provided that he has no notice of any other claims to the goods, or knowledge of any other circumstances raising a reasonable suspicion that the claimant is not entitled to the goods {x). If he has any such notice or knowledge he must deliver at his peril to the rightful owner {y), or must interplead (2)- He is not entitled to deliver to the consignee named in the bill of lading, without the production of the bill of lading, and does so at his risk if the consignee is not in fact entitled to the goods (a). Such delivery by the master will not affect the property («) Erichsen v. Barkworth (1858), 3 H. & N. 601, at p. 616. (t) Carlberg v. Wemyss Co. (1915), Sess. Cas. 616. (u) If he delivers without having the bill of lading produced {e.g. to the consignee named in the captain's copj') he of course runs the risk of being liable to some holder of the bill of lading by assignment or pledge from the consignee. C'f. London Joint Stock Bank v. Amsterdam Co. (1910), 16 Com. Cas. 102. Therefore in any such case he should take a sufficient indemnity, or security, from the person to whom he delivers without production of the bill of lading. (x) Glyn, Mills See also Horsley Line v. Roechling (Sc.) (1908), Sess. Cas. 866. BEMUBEAGE. 301 Sundays and holidays excepted. — This provision excepts Sundays and holidays from the lay-days, even though work is done upon them, unless some actual agreement to count them as lay-days is proved. This agreement will not be inferred from the fact that work is done [d). Xeither a wet day. nor the usual half-holiday on Saturday, is included in the phrase " general or local holidays " (e). Working days means all days on which work is ordinarily done at the port, excluding Sundays and holidays (/ ). It is immaterial that on one of them the charterer is prevented from loading, imless the cause of delay is covered by an exception {g). E^-i- dence of custom is admissible to explain the meaning of '" working day '"' (li). The number of hours in a working day on which a ship must load must be settled by the custom of the port, or express agreement {/). Cargo to he discharged at the average rate of not less than tons per day. — Such a clause, where the tonnage of the cargo, di^*ided by the average rate of discharge, gives a fraction over a day, does not allow the charterer the whole of the last day. It is doubtful how the fraction is to be computed, probably by the proportion of hours used to the hours in the working day ; but it is arguable that the charterer is only entitled to the number of days, and cannot claim the fraction over (k). " One running day for every 400 tons up to 2800 tons, and for all quantities in excess 500 tons per day,'' a rule laid down for all ships by the London Corn Trade Association, and incorporated in a charterparty. Held, that with a cargo of 3800 this meant ((f) Xehon t. yelson (1908), App. Ca.?. 108, overruling Moulder v. Weir 1905), 2 K. B. 267, Whittal t. Rahtkens (1907), 1 K. B. 783, and Branckdow V. Lamport (1907), 1 K. B. 787, note. (e) Lovi V. RoiL-tor Co. (1916), 2 A. C. 527, at p. 536. (/) .Vie/-se« V. Wait (1885), 16 Q. B. D. at p. 71. Cj. Mein v. Ottman (1904), 6 P. (Sess. Cas.) 276. [g) Holman v, Peruvian 2s Urate Co. (1878), 5 Sc. Sess. C, -ith. Ser. 657 ; where a "surf dav " was held a working dav. But contrast British tb Mexican Co. v. Lockett (1911), 1 K. B. 264. (h) British ct Mexican Co. v. Lockett, ubi supra, overruling Bennetts v. Brown (1908), 1 K. B. 490. (k) Yeoman v. The King (1904), 2 K. B. 429. Cargo 2364 tons ; rate 210 tons a dav = 11 davs ^^5. The charterer was heldnot entitled to claim 12 days. Cf. Horsley Line v. Roechling (Sc.) (1908), Sess. Cas. 866. In Moulder v. Weir (1905), 2 K. B. 267, upon a similar clause Channell, J., held that it related primarily to the number of days not hours, and if the calcula- tion gave a fraction of a day at the end the charterer was entitled to a whole day. He distinguished Yeoman v. The King on the ground that there was in that case a provision for payment of demurrage per day " and prorata," which made the case an exception to the rule. But ( 1) if the rate is 100 tons a day and the cargo is 950 tons, and if he has ten days to discharge, surely the charterer discharges at the average rate of 95 tons a day, not 100 as agreed, and (2) the Court of Appeal in deciding Yeoman v. The King do not appear to have rested their decision merelj- on the provision as to payment " pro rata." 302 BEMUEBAGE. the 400 tons rate for the first 2800 tons, and the 500 tons rate for the balance, and that it did not provide two separate rates for the whole contents of steamers under and over 2800 tons respectively [l). Per ivorhing day of twenty-four hours : Held to mean that each twenty-four hours on which work was done was to count as a conventional day, though the hours might be on several days (m). It does not mean such a period of time as includes in it twenty-four ordinary working hours of the port {n). Colliery ivorhing days means all days on which the colliery works in normal times and under normal circumstances, exclud- ing Sundays and hoUdays, such as Mabon's Day in South Wales, which are not port holidays. It includes days on which the colliery would work ordinarily, but does not work owing to a strike (o). Weather worhing days means days on which the weather allows working. The Court has applied the working rule of computa- tion that if any substantial quantity of work is done, the day should be counted as a whole or half day, according as the time substantially exceeds half a day or not {p). It is now usual, especially in the case of steamers, to stipulate for demurrage at so much per hour. Where " dispatch money " was to be paid at lOs. per hour on any time saved in loading or discharging, and four days were saved, it was held that they were to be taken as of twenty-four, and not of twelve, hours each, the " dispatch money " being payable on the time saved, or running hours, and not on the working hours [q). The clause " Sundays and fete days excepted " has been held to apply both to dispatch money and lay-days (r), and therefore where the [I) Turner v. Bannatyne (1903), 9 Com. Cas. 83, 306. (m) Forest S.S. Co. v. Iberian Ore Co. (1899), 5 Com. Cases, 83. Cf. Watson Brothers v. Mysore Manganese Co. (1910), 15 Com. Cas. 159. But " per working day of twenty-four consecutive hours" was held to mean twenty-four actually consecutive hours whether by day or night. Turnhull V. Cruickshank (1905), 7 P. (Sess. Cas.) 791. (n) Orpheus Co. v. BoviU (1916), 114 L. T. 750. (o) Saxon Ship Co. v. Union S.S. Co. (1900), 5 Com. Cases, 381. The length of the working day or holiday is usuallj- defined bj- the colliery guarantee. But under such a document the artificial extension of non- working days was held only to applj' to lay-daj-s, and not to demurrage days. Saxon v. Union, v. s., overruling Clink v. Hickie Borman, No. 2 (1898), 4 Com. Cases, 292. (p) Branckelow S.S. Co. v. Holt (1897), 1 Q. B. 570. (q) Laing v. Holloway (1878), 3 Q. B. D. 437. (r) The Glen Devon (1893), P. 269 ; approved, dissentiente Fletcher Moulton, L.J., by the Court of Appeal m Nelson v. Nelson (1907), 2 Q. B. 705. The House of Lords did not discuss this point, and the head-note in (1908), A. C- 108, is inaccurate. In In re Royal Mail Co. and River Plate Co. (1910), 1 K. B. 600, where by the charter dispatch money was to be paid for " each running day saved," Bray, J., distinguished The Glen Devon and foJlowed Laing v. Holloway {v. s.). Bray, J., also expressed his agreement with the dissentient judgment of Fletcher Moulton, L. J., in Nelson v. Nelson, holding DEMUEBAGE. 303 •charterer, by speed in loading, dispatched the ship four days ■earlier than he was bound to do by the charter, but of the four days two were " Sundays or holidays," which were excepted from the lay-days, he was only allowed dispatch money on two days. He €0uld not save days to which he was not entitled as lay-days by the charter. Case 1. — ^A ship chartered " to load and discharge as fast as the ship can work, but a minimum of seven days to be allowed mer- chants, and ten days on demurrage over and above the said laying days." Held, that from the context, " days " meant " working," not " running " days. The ship came into dock on Tuesday evening at 5 p.m., reached her berth on Wednesday, at 8 a.m., and continued unloading till 8 P.M. She began again at 4 a.m., on Thursday, and finished at 8 A.M. Held, she was liable for two days' demurrage (the lay- days having been exhausted at the port of loading) (s). Case 2. — By charter seven running days were allowed for discharging ; the vessel arrived on Saturday and was cleared by 10 A.M., when she gave notice of readiness to discharge. The charterers at first declined to receive cargo, but afterwards received it from 1 p.m. to 4 p.m., when work stopped. Held, that charterers' conduct amounted to an agreement that Saturday should be counted as a lay-day, though they were not otherwise bound to take discharge on that day at all (i). Case 3. — A ship was chartered "to be loaded in X. in fourteen days, and to be discharged, weather permitting, at not less than twenty -five tons per working day, holidays excepted." Held, that the days for loading must be taken as " running days," the days for unloading as working days {u). Case 4. — A charter provided : " Cargo to be loaded and dis- charged as fast as steamer can receive and deliver during working liours. If longer detained £12 per diem demurrage." Held, that saving of time at the port of discharge could not be set off against delay at port of loading (x). Case o.^A charter provided : " Ship to be loaded in nine working days . . . loading time to count from 6 a.m. after ship is ready . . . steamer to work day and night if required to do so." Held, that " working day " meant a day of twelve hours from 6 a.m., and not a day of twenty-four hours, and that the ship was on demurrage from 6 p.m. on the ninth day {y). that The Glen Devon was wrongly decided. See also Mawson v. 5eyer (1914), 1 K. B. 304, in which the foregoing cases are discussed. (s) Commercial S.S. Co. v. BouUon (1875), L. R. 10 Q. B. 346 ; Hough v. Athya (1879), 6 Sc. Sess. C, 4th Ser. 961, {i) The Katy(lS9o), P. 56. (it) Niemann v. Moss (1800), 29 L. J. Q. B. 206. {x) Avon S.S. Co. v. LeasA; (1890), 18 Sc. Sess. G. 280 ; following MarshalVs Case (1880), 6 Q. B. D. 231. {y) Mein v. Ottman (1904), 6 F. (Sess. Gas.) 276. 304 TO LOAD OB USLOAD Article 131. — Charterer's Undertaking : — To load or unload in a fixed Time. If by the terms of the charter the charterer has agreed to load or unload within a fixed period of time (z), that is an absolute and unconditional engagement, for the non- performance of which he is answerable, whatever be the nature of the impediments which prevent him from performing it (a), unless such impediments are covered by exceptions in the charter (6), or arise from the fault of the shipowner or those for whom he is responsible (c). (;) The effect is the same, if the days can be calculated, as where the rate of loading or discharge per day is fixed ; but in Dobell v. ^Yatts (1891), 7 T. L. R. 622, a clause, " Cargo to be loaded as fast as vessel can receive in ordinary working hours, and to be received as customary as fast as steamer can deliver in ordinarj- working hours — not less than one hundred standards a day loading or discharging," was held by the C. A. not a clause obliging the charterer to receive one hundred standards a day, and so fixing the number of lay-days, but a clause for the benefit of charterers only. See also Love v. Rowtor Co. (1916), 2 A. C. 527, where a printed form of charterparty for discharge in a reasonable time was by written words turned into one for a fixed time. In consequence a reference in the print to " cus- tomarv discharge " was neglected as insensible and inapplicable. Cf. Baird V. Price Walker (1916), 115 L. T. 227. (a) Per Lord Selbome in Po-^fkthivaite v. Freeland (1880), 5 App. C. 599, at p. 608. For a striking example of the absolute nature of the obligation see Porteus V. Tfainej/ (1878), 3 Q. B. D. 223, 534. In Potter v. Burrell (IS^l), 1 Q. B. 97, under a charter for a series of ships " as nearly as possible a steamer a month," to be loaded in a fixed time ; owing to excepted perils, two steamers arrived at the same time and could not with the resources of the port be loaded in the fixed time. Held, by the C. A., that as the shipowner was not liable for the delay, the charterer was not excused by it. See, however, Nehon v. Xelson (1908), App. Gas. 108, where a similar question was differently decided. The head-note of the report is inadequate and inaccurate. Potter v. Burrell does not appear to have been cited. For the provision " two vovages per month, fortnightly," see The Melrose Abbey (1898), 14 T. L. R. 202. (6) See note at end of this article. For an illustration of this, see Granite S.S. Co. V. Ireland (1891), 19 Sc. Sess. C. 124, where the excepted peril occurred, but did not prevent the discharge of the ship, only the removal of its cargo from the quay when discharged. See also Aktieselkabet Argentina v. Von Laer (1903), 19 Times L. R. 151. (c) Budgett v. Binnington (1891), 1 Q. B. 35 ; Benson v. Blunt (1841), 1 Q. B. 870 ; The Anna (1902), 18 T. L. R. 25 ; Hansen v. Donaldson (1874), 1 Sc. Sess. C, 4th Ser. 1066, where discharge was impeded by the insufficiency of the shipowner's crew. Where loading or discharge is a joint operation, it follows from Budgett v. Binnington that the inability of the shipowner to do his part will only excuse the charterer when it is oidy that which prevents the charterer from doing his share of the work. In Harris v. Best (1893), 68 L. T. 76, delay was caused by restowing some cargo that had shifted, and restowing other cargo to enable fresh cargo to be properly stowed. The stevedore was employed and paid by the owners. Held, the charterers were not liable for demurrage for this delay, the stevedore being the owner's servant. In Houlder v. Weir (1905), 2 K. B. 267, it was held that where IN FIXED TIME. 305 Thus, after the ship is ready to load or unload at the agreed place (d), the charterer will not, in the absence of express exceptions, be released from his contract by delay resulting from the crowded state of the docks (e), bad weather (/), or ice preventing loading (g), insufficient supply of cargo (h), lawful (i) orders of the authorities at a foreign port (k), or strikes of persons for whom the shipowner is not responsible, even though the shipowner is prevented by the same cause from performing his share of the work (l) ; and when there is a provision for demur- rage, the charterer (at the price of paying the demurrage) can insist on the ship remaining for a reasonable time to complete loading (w). On the other hand, the char- terer is entitled to keep the ship the whole of the lay- days though he could have loaded her in less time (n). the charterer was delayed towards the end of the discharge by reason of the shipowner's necessary operation of taking in ballast to stiffen the ship, the charterer was liable for demurrage during that delay. The decision seems doubtful. The proper exercise by the shipowner of a lien on the cargo does not prevent his claiming demurrage for the time during which the exercise of the lien stops the discharge. Lyle S.S. Co. v. Cardiff (18Q9), 5 Com. Cases, 87. (d) See Articles 36, 39, ante, and Tharsis Co. v. Morel (1891), 2 Q. B. 647. (e) Randall v. Lynch (1810), 2 Camp. 352 ; Brown v. Johnson (1843), 10 M. & W. 331 ; Tapscott v. Balfour (1872), L. R. 8 C. P. 46. Where, however, the charter provided for discharge, "in regular turn with other vessels at the average rate of 30 tons a day," and the commencement of the discharge was delayed by the vessel having to wait her turn according to the custom of the port, the charterer was held not liable for the delay. The Cordelia (1909), P. 27. (/) Thiis V. Byers (1876), 1 Q. B. D. 244. (g) Barret v. Button (1815), 4 Camp. 333. (h) See Article 42. (i) Illegal orders of the authorities will not protect the charterer, who has his remedy against them : Bessey v. Evans (1815), 4 Camp. 131 ; Gosling v. Higgins (1808), 1 Camp. 450 ; The Newport (1858), Swabey, 335. Compare the principle involved in Evans v. Bullock (1877), 38 L. T. 34 ; Ronneberg v. Falkland Islands Co. (1864), 17 C. B., N. S. 1 ; Sully v. Duranty (1864), 3 H. & C. 270 ; and Article 4, on Illegality. (k) Barker v. Hodgson (1814), 3 M. & S. 267; Blight v. Page (1801), 3 B. & P. 295, note, cited also at 4 Camp. 334, by Gibbs, C.J., who was counsel in it. Where a ship otherwise ready to load is prevented from loading by quarantine, the lay-days stipulated in the charter will not begin to run till the quarantine has expired: White v. Winchester (1886), 13 Sc. Sess. C, 4th Ser. 524. The Austin Friars (1894), 10 Times L. R. 633. (I) See ante (c), p. 304. (m) Wilson d: Coventry v. Thoresen (1910), 2 K. B. 405. Qucere whether, in the absence of any provision for demurrage, he can similarly insist at the price of paying damages for detention. Ibid. (n) Petersen V. Dunn (1895), 1 Com. Cases, 8. 8.0. p. 20 306 TO LOAD OB UXLOAD The provisions of the charter as to fixed days must be limited to the ports to which they expressly refer (o), and a reasonable time wiU be allowed for loading or unloading at ports not expressly provided for (p). Note. — The occurrence of an obstacle preventing loading or .unloading, which is within an exception, does not excuse the char- terer absolutely, but only in so far as it in fact prevents him from fulfilling his contract. Thus, in ElswicJc S.S. Co. v. Montaldi {q), where the charterer, who had to discharge at an average rate of 500 tons a day, was behind his time, and then a strike occurred, delaying, but not preventing, the discharge, Bigham, J., held the charterer excused only to the extent to which the strike delayed the discharge of that cargo which, had the charterer used due diligence before, would have remained on board at the time when the strike occurred (r). Case 1. — A ship was chartered to unload in the London Docks, forty days being allowed as lay-days ; owing to the crowded state of the docks the vessel was detained forty-one days over the lay- days. Held, that the charterer was liable for delay (s). Case 2. — A ship was chartered to load at London, with thirty running days ; owing to frost the loading of the ship was pre- vented. Held, the charterer was liable for the delay {t). Case 3. — A ship was chartered to load at X., with sixty running days ; while there, owing to an infectious disease on shore, communication between the ship and shore was forbidden by the local government. Held, the charterer was liable for delay {ti). Case 4. — A ship was chartered to load barley at a Russian port, with thirty running days for loading and unloading ; the Russian government forbade the export of barley (x). Held, the charterer was liable for failure to furnish a cargo (y). Case 5. — A charter to discharge at Bristol allowed a fixed number of days for discharging. The custom at Bristol was that discharge was the joint act of the charterer and shipowner. Discharge was prevented by a strike of labourers, which prevented (o) Marshall^. De la Torre (1795), 1 Esp. 367 ; Stevenson v. York (1790), 2 Chit. 570. (p) Sweeting v. Darthez (1854), 14 C. B. 538. See also Fowler v. Knoop (1878), 4 Q. B. D. 299. (q) (1907), 1 K. B. 626. (r) Cf. London <& Northern Co. v. Cent. Arg. By. (1913), 108 L. T. 527 ; Central Arg. Ry. v. Marwood (1915), A. C. 981. (s) Randalls. Lynch (1810), 2 Camp. 352. (<) Barret v. Button (1815), 4 Camp. 333. (m) Barker v. Hodgson (1814), 3 M. & S. 267. (a;) Compare with this Hills \. Sughrue (1846), 15 M. & W. 253, where the shipowner who had contracted to procure and carry a cargo of guano was held liable for not loading such a cargo, though there was no guano to load. This case seems quite inconsistent with Clifford v. Watts (1870), L. R. 5 C. P. 577. {y) Blight v. Page (1801), 3 B. & P. 295, note ; see Article 4 : Illegality. IN EEASONABLE TIME. 307 both shipowner and charterer from performing their part of the discharge. Held, that as the charterer was not prevented from discharging by the fault of the shipowner or persons for whom the shipowner was responsible, he was not excused for delay beyond the fixed lay-days {z). Articles 132 and 133. — To load or unload — In Reasonable Time — According to the Custom of the Port — As customary — With Customary Dispatch. If no fixed time for loading (or unloading) is stipulated in the charter the law implies an agreement on the part of the charterer to load or discharge the cargo within a reasonable time (a), and, so far as there is a joint duty in loading or unloading, that the merchant and ship- owner shall each use reasonable diligence m performing his part (6). In the absence of express provisions, there is an absolute luidertaking on the part of the charterer to have cargo ready to load (c), and a reasonable time for loading then begins {d). On a like principle, at the other end of the voyage, what is in question is the reasonable time for (2) Budgett v. Binnington (1891), 1 Q. B. 35. (a) Hick V. Raymond {\%^'i), A. C. 22. Per Lord Selborne in Postlethivaite V. Freeland (1880), 5 App. C. at p. 608. The time is unfixed whenever there is not a definite time expressed or implied (as in Article 131). The obligation is the same whether the charter is altogether sUent as to the time, as in Hick V. Raymond, v. s. ; or stipulates for " customary dispatch," as in Postle- thivaite V. Freeland, v. s. ; or " as fast as steamer can deliver " (Good v, Isaacs (1892), 2 Q. B. 555 ; or both the last phrases (Hulthen v. Stewart (1903), App. Gas. 389) ; or, " as fast as master shall require " (Sea S.S. Co. V. Price (1903), 8 Com. Gas. at p. 296). Discharge with more than customary dispatch can be secured by such words as " to be discharged continuously, any custom of the port to the contrary notwithstanding." Maclay v Spillers (1901), 6 Gom. Gases, 217. Of. Crown S.S. Co. v. Leitch (Sc.) (1908), Sess. Gas. 506. " Forthwith " = without unreasonable delay. Hudson v. Hill (1874), 43 L. J. G. P. 273 ; Forest Oak Co. v. Richard (1899), 5 Com. Cases 100. (h)'Ford v. Cotesworth (1870), L. R. 4 Q. B. at p. 137; 5 Q. B. 544; Cunningham v. Dunn (1878), 3 C. P. D. 443 (G.A.). (c) And exceptions, unless clearly expressed otherwise, apply only to the actual loading, not to the procuring of cargo to be loaded. See Article 42; and c/. Dampskibsselskabet Danmark v. Poulsen (1913), Sess. Gas. 1043. (d) Ardan S.S. Co. v. Weir (1905), A. G. 501, which apparently overrules Jones V. Green (1904), 2 K. B. 275. The analogous case of Barque Quilpue v. Brown (1904), 2 K. B. 264, turns on knowledge by the shijiowner of the method of loading. See also Article 42, supra. And see Wilson v. Thoresen (1910), 2K. B. 405. 20—2 308 REASONABLE discharge. Therefore difficulties in getting the cargo away to an ulterior destination after the actual discharge are not to be taken into account (e). " A reasonable time " means reasonable under the cir- cumstances then existing, other than self-imposed inabili- ties of either shipowner or charterer (/), and should be estimated with reference to the means and facilities then available at the port, the course of business at the port (g), the customary methods employed at the port, and the character of the port with regard to tides and other^vdse (h). Thus where a strike at the port of loading or discharge prevents a diligent consignee from doing his part of the work with reasonable exertions on his part, he will not be liable for the consequent delay (g). This obligation to load or unload in a reasonable time ' imports, without express reference, a stipulation that the work shall be done in the manner customary in the port (i). But an express provision, " according to the custom of the port," or " with customary dispatch," or " as customary," (e) Langham S.S. Co. v. Gallagher (1911), 2 Ir. Rep. 348; Dampskibs- sehicabet Svendborg v. Love (1915), Sess. Cas. 543. ( / ) But this limitation does not make the charterers liable for delay arising from the previous engagements, not of the charterers or their agents, but of the consignees to whom the charterers have sold the cargo : Watson v. Earner (1900), 5 Com. Cases, 377 ; Ogmore v. Borner (1901), 6 Com. Cases, 104. Nor does it extend to a case in which delay is due to the engagements of the charterers or shipowners themselves, when those engagements are reasonably made in the normal carrying on of their business, and do not create such an exceptional state of circumstances as the parties to the charter on signing it carmot be taken to have contemplated : Harrowing v. Dupre {IQd-I), 7 Com. Cases, 157; Quilpue v. Broum (1904), 2 K. B. 264. See also Aktieselkabet Ingkwood v. Millar's Karri (1903), 8 Com. Cas. 196. The proper exercise of a lien by the shipowner does not prevent his recovering demurrage for the delay caused by the exercise of the lien : Lyle Co. v. Cardiff (1SQ9), 5 Com. Cases, 87. (g) Hick V. Raymond (1893), A. C. 22 : per l,ovd Qelhovne ia. Postlethwaite V. Freeland (1880), 5 A. C. at p. 609 ; Hulthen v. Stewart (1903), App. Cas. 389 ; The Arne (1904), P. 154. (h) Carlton S.S. Co. v. Castle Mail Co. (1898), A. C. 486. (i) See per Lord Blackburn, Postlethwaite v. Freeland (1880), 5 A. C. at p. 613 ; A. L. Smith, L.J., Lyle v. Carrf^j^f (1900), 2 Q. B. at p. 643 ; CoUins, M.E,., Temple v. Runnalls (1902), 18 Times L. R. at p. 823. Lord Herschell thought otherwise: Hick v. Raymond (1893), A. C. at p. 30. But if the charterer has not got cargo ready to load he cannot escape liability for ensuing delay by an allegation that he has done his best to load under a charter to load in the " usual and customary manner." Ardan S.S. Co. v. Weir (1905), A. C. 501. DISPATCH. 309 though usually unnecessary (j), is very commonly in- serted {k). In consequence, every impediment arising out of that custom or practice which the charterer or shipowner could not have overcome by the use of any reasonable diligence {I) ought to be taken into con- sideration (m). The express stipulations and the implied obligation as to customary dispatch refer to the customary manner of discharge, and only indirectly to the time usually occupied in discharging in such customary manner (w). " Custom," or " customary," does not mean " custom " in the strict legal sense, but a settled and established practice of the port (o). Note. — A series of very numerous cases seems now to have established that in all cases in which an undefined period is allowed for loading or discharge, the obligation is the same, viz. to do it in a reasonable time, and that what is a reasonable time depends on both (1) the existing circumstances of the port {i.e. as opposed to the normal circumstances), and (2) the customary methods of the port {p). (j) An express reference to " the custom of the port" may, however, impose on the charterer a greater obligation than would rest upon him if there were no such words — e.g. if by the custom of the port he is bound to do something which in the existing conditions of the port he cannot in fact do even with the exercise of reasonable diligence. Thus in Aktieselkabet Hekla v. Bryson (1908), 14 Com. Cas. 1, Bray, J., says (at p. 2), " The main dispute was whether the obligation of the defendants was to provide a suitable berth ready for the vessel on her arrival, and to have ready a clear quay space or sufficient bogies, or merely an obligation to use their best endeavours to provide such berth, quay space or bogies." And he decided, by reason of the custom which he found established, that the former was the obligation. {k) On the other hand, if the charter is expressly one for discharge in a fixed time a reference in its printed form to " customary dispatch " is insensible and inapplicable. Love v. Rowtor Co. (1916), 2 A. C. 527. (Z) Carali v. Xewos (1862), 2 F. & F. 740 : the shipowner had contracted to forward goods by foreign steamer, but missed the last steamer of the season ; he had discharged according to the custom of the port, but could by diligence have expedited the discharge of these goods so as to catch the steamer. Held, that he was liable for the delay, apparently on the ground that he had not used what was due diligence under the circumstances. (m) See the various cases referred to in the note. (n) Dunlop v. Balfonr (1892), 1 Q. B. at p. 520 ; Casilegate S.S. Co. v. Dempsey, ihid., at pp. 861. 862 ; Metcalfe v. Thompson {\m2), 18 Times L. R. 706. CJ. Sea S.S. Co. v. Price (1903), 8 Com. Cas. 292 ; and Ropner v. Stoate Ho.segood dh Co. (1905), 10 Com. Cas.73. (o) Per Lord Blackburn, approving Lord Coleridge in Postlethwaite v. Freeland (1880), 5 A. C. at p. 616. See Article 8, ante. (p) If the measure of reasonable time could be based upon ideal methods or circumstances of the port, without taking account of its actual methods or circumstances, the time for discharge would be merely a matter of calcula- 310 REASONABLE That the obligation, where no time was fixed, was to do the work in a reasonable time, may be considered to have been settled as long ago as 1810 in Burmester v. Hodgson {q) and Rodger s v. Forrester (q). And indeed it is the ordinary rule of law that where a contract fixes no time for performance, it must be in a reasonable time (r). But it has needed a long series of decisions to establish that a reasonable time depends on the cir- cumstances mentioned above as (1) and (2) ; and this necessity had arisen from the disturbing effect, in the current of authority, of a few cases such as Ashcroft v. Crow Colliery Co. (s), and Wright V. New Zealand Shipping Co. {t), especially the latter. In both these cases the charterer seems to have done all that was reason- able, having regard to the existing (abnormal) circumstances of the port, but of necessity not all that he might have done under normal circumstances, and in both cases he was held liable for demurrage. Many ingenious attempts have been made to recon- cile the two cases with the other authorities (u), but to admit that they were wrongly decided seems to be the true refuge from the difficulty, and one which, in view of the sure establishment of the right principle, is now innocuous. That the customary methods in use in the port are to be taken into account, though there is no express reference to custom in the contract, seems to follow from the principle that all the existing circumstances of the port are to determine the extent of the obli- gation, and appears to be now established by authority (x), although doubts upon the point have been suggested (y). The obligation, therefore, upon the charterer or consignee, where no fixed time for discharge is mentioned, is, in all cases, that the ship is to be discharged as quickly as is consistent with the manner in which every vessel going to the port is discharged (2), and the tion, and would be, by implication, a fixed or ascertainable time. Cf. footnote (z) on p. 304. (q) 2 Camp. 483 and 489. Those cases seem also to imply that the custom of the port fixes what is reasonable. (r) Cf. Lord Watson, Hick v. Raymond (1893), App. Cas. 22, at p. 32. (s) (1874), 9 Q. B. 540. (t) (1879), 4 Ex. D. 165. (u) As to Ashcroft v. Crow Colliery Co. {v. s.), see note 3 to Article 39, supra, p. 117. Wright v. New Zealand Co. {v. s.) (which was followed by a Divisional Court in Tillett v. Cwm Avon (1886), 2 Times L. R. 675) is discussed in Postlethwaite v. Freeland (1880), 5 App. C. at pp. 609, 617, in Hick v. Raymond (1893), App. C. at p. 32, and by Bigham, J., in Lyle v. Corporation of Cardiff (1S99), 5 Com. Cases, 87, at pp. 89 and 92. The best explanation seems to be that of A. L. Smith, L.J., in Lyle v. Cardiff (1900), 2 Q. B. at p. 645 — " In my judgment it is not now law." (x) Per Lord Blackburn, Postlethwaite v. Freeland (1880), 5 App. Cas. at p. 613 ; A. L. Smith, L.J., Lyle v. Cardiff {\900), 2 Q. B. at p. 643 ; CoUins, M.R., Temple v. Runnalls (1902), 18 Times L. R. at p. 823. (y) Lord HerscheU, Hick v. Raymond (1893), App. C. at p. 30. Cf. Bigham, J., Lyle v. Cardiff (1899), 5 Com. Cases, at p. 92. Fowler v, Knoop (1878), 4 Q. B. D. 299, seems to involve a similar implication. (2) Contrast Maclay v. Spillers (1901), 6 Com. Cases, 217, iii which the limitation to customary methods was excluded by express provisions. DISPATCH. 311 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 (a). It follows that, with such an obliga- tion in a charterparty or a bill of lading, there is no advantage in inserting exceptions affecting the obligation as to discharge {e.g. a strike clause), though this is commonly done (6). The question to be answered is : — " Did the charterers do, under the circumstances, all that could be reasonably expected of them ? " (c). 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 are full (d) ; 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 does not supply such trucks (e) ; or where, the customary method being to discharge on to the dock, quays, or into lighters, the quays are overcrowded, and lighters, owing to a strike of lightermen, are unobtainable (/) ; or even where the charterer, being the only shipper in the port, and using carts as a customary method to convey cargo to the quay, finds a scarcity of carts from their being otherwise employed (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 consignee, and the work is delayed, without fault of the charterer or consignee, by a strike of the dock company's men (A), or the crowded state of the dock quays (i), the charterer or consignee is not liable for (a) Per Lord Esher in Castlegate S.S. Co. v. Dempsey (1892), 1 Q. B. at p. 859. As to the liability for " self-imposed inabilities," see note (/), p. 308. (6) Cf. Hulthen v. Stewart (1903), A. C. 389. (c) Per Collins, M.R., in Hulthen v. Stewart (1902), 2 K. B. at p. 205. Put more brief! 5% the obhgation on the charterers is " to do their best." Per Bigham, J., Lyk v. Cardiff (1899), 5 Com. Cases, at p. 94. But it must be their best, and where there are alternative methods of discharge the char- terers must use all available methods and exhaust all efforts to effect the discharge. Per Mathew, J., Rodenacker v. May (1901), 6 Com. Cases, 37, at p. 40. (d) Good V. Isaacs (1892), 2 Q. B. 555. (e) Wyllie\. Harrison {\^8o), 13 So 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. 1110; cf. Granite S.S. Co. v. Ireland (IS'dl), 19 Sc. Sess. C. 124 (a case of fixed days). See also Lyle v. Cardiff (1900), 2 Q. B. 638. (/) Hulthen v. Stewart (1903), App. Gas. 389. Contrast Rodenacker v. Ji/ay (1901), 6 Com. Cases, 37, where lighters might by reasonable efforts have been obtained. (g) Temple v. Runnalls (1902), 18 Times L. R. 822. (h) Castlegate S.S. Co. v. Dempsey (1892), 1 Q. B. 854. (i) The Jaederen (1892), P. 351. Weir v. Richardson (1897), 3 Com. Cases, 20 ; The Kingsland (1911), P. 17. 312 REASONABLE the delay. But if the consignees of a cargo are the harbour authorities, they cannot excuse themselves, qua consignees, for delay in discharge, on the plea of orders given or difficulties created by themselves, qua harbour authorities (k). Case 1. — G. were consignees of cargo under a bill of lading specifying no time for delivery ; during the delivery a strike occurred ; the shipowners were ready to do their part of the work ; but Gr., though using all diligence, could not do theirs. Held, that they were only bound to discharge in a reasonable time, having regard to the existing circumstances ; and, having used all diSgence themselves, were not liable for the delay caused by the strike (I). Case 2. — A ship was chartered to discharge in London, the charter containing no provisions as to the time of unloading. Owing to the crowded state of the docks, the ship, though dis- charged in her turn, was delayed forty days beyond the usual time for discharge of such ships when the docks are not over- crowded. Held, that the charterer was not liable, both parties having used reasonable diligence to get the ship discharged (m). Case 3. — A ship was chartered to load a cargo at Valencia, without any stipidation as to time of loading. The law of Spain forbids vessels with military stores on board to load at Spanish ports. The charterer and shipowner were aware at the time of making the charter that the vessel intended to carry military stores. The ship arrived at V. with military stores on board and was refused permission to load. Held, that neither party was liable to an action, as each, having used reasonable diligence to avoid the danger, was prevented by the act of a superior power (n). Case 4. — ^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 (o). (k) Zillah Y. Midland Railway Co. (1903), 19 Times L. R. 63 ; but compare Harrowing v. Dupre (1902), 7 Com. Cases, 157 ; and note (/), p. 308. (l) Hick V. Raymond (1893), A. C. 22. (m) Burmester v. Hodgson (1810), 2 Camp. 488. So explained in Ford v. Cotesworth, 2>ost. The case is also discussed in Hick v. Rodocanachi (1891), 2 Q. B. 626, at pp. 635, 642. Cf. (1893), A. C, p. 22. (n) Cunningham v. Dunn (1878), 3 C. P. D. 443 (C.A.), following Ford v. Cotesworth (1870), L. R. 5 Q. B. 544. These two cases are reconcilable with such cases as Barker v. Hodgson (1814), 3 M. & S. 267, and Blight v. Page (1801), 3 B. & P. 294, note, cited in the last article, by the presence in the latter class of cases of a definite time for loading or unloading : see per Martin, B., in Ford v. Cotesworth., vide supra. See also Sjoerds v. Luscombe (1812), 16 East, 201. The parties may have expressly provided for such cases by the charter, as in Adamson v. Newcastle Insurance Association (1879), 4 Q. B. D. 462, where there was a clause " in case of war, blockade, or prohibition of export, preventing loading, this charter to be cancelled," and it was held that the occurrence of these events cancelled the charter, without any express election by either party. See also »S^eeZ Young v. Grand Canary Co. (1904), 9 Com. Cas. 275, for a question arising on an obscurely worded cajicelling clause. (o) Rodgers v. Forrester (1810), 2 Camp. 483; cf. The Jaederen (1892), DISPATCH. 313 Case 5. — 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 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, he was not liable for demurrage (p). Case 6. — A ship was chartered to unload " in 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 diligence in performing his part ; and the intervention of superior, authority, which could not have been avoided by any diligence, excused both parties (g). Case 7. — ^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 (r). Case 8. — ^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 warehouses 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 dis- charge did not begin till March 11. Held, as the delay arose without fault of the consignee and in the customary manner of discharge, he was not liable (s). Case 9. — A vessel was chartered to discharge in London, " the cargo to be discharged with customary steamship dispatch as fast as the steamer can deliver during the ordinary working hours of the respective ports, but according to the custom of the respective ports." She was ordered to the Surrey Dock, which was very crowded, and delay was caused by scarcity of quay berths and lighters. The charterers used all reasonable means to expedite the discharge. Held, they were not liable for demurrage (t). Case 10. — -A vessel was chartered to discharge at Cardiff, " with P. 351, where the clause was " as fast as ship can deliver," and she could not get to a quay. See also Hulthen v. Stewart (1903)i, Apj). Cas. 389. (p) Postlethwaite v. Freeland (1880), 5 App. C. 599. Iq) Ford v. Cotesworth (1870), L. R. 5 Q. B. 549. The remarks of Baron Martin shew that this decision must be limited to cases where no fixed time for loading has been stipulated for : see note (n), p. 312, ante-; see also Sjoerds v. Luscombe (1812), 16 East, 201. (r) Castlegate S.S. Co. v. Dempsey (1892), 1 Q. B. 854. Cf. Weir v. Richardson (1897), 3 Com. Cases, 20, and The Kingdand (1911), P. 17. (5) Good V. Isaacs (1892), 2 Q. B. 555 ; cf. Wyllie v. Harrison (1885), 13 Sc. Sess. C. 92 ; Lyle v. Cardijf (1900), 2 Q. B. 638. («) Hulthen v. Stewart (1903), App. Cas. 389. 314 WHO ABE LIABLE all dispatch as customary." The custom of Cardiff is to discharge cargo in trucks on the quay. The trucks are provided by certain railways, with one of which the charterers arranged for waggons, but owing to a stress of work at the port, the supply of waggons failed, and the ship was delayed. The chai-terers did their best. Held, they were not liable for demuiTage {u). Case 11. — A vessel was chartered to discharge at Granton " with customary dispatch," with a provision that time should not count during delay caused by a strike of any workmen essen- tial to the discharge. There was a strike in the charterers' yard, to which they would have taken the cargo in railway waggons from the quay. There was no strike at the quay and no lack of railway waggons, but the railway company, fearing detention of the waggons at the yard, would not supply them except for conveying cargo direct to purchasers. Delay in discharge resulted. Held (1), that the charterers had not discharged with customary dispatch ; (2), that there was no strike of workmen essential to the discharge (x). Article 134. — Who are liable for Demurrage on a Charter. Where there is a charter containing express stipulations as to demurrage, there will be liable on it, for demur- rage : — (1.) The charterer (y), unless (A.) he has been freed by the cesser clause (2;) ; or (B.) he has been freed by a new contract on the bill of lading (a). (2.) The parties to the bill of lading, if the charterparty stipulations as to demurrage are expressly incorporated in the bill of lading (6) ; or persons taking goods without protest under such bill of lading (c). (See also Article 135.) Case 1. — A ship was chartered with the usual stipulations for freight, demurrage, and a cesser clause. The charterers shipped the cargo themselves, and accepted bill of lading, making the goods deliverable to themselves, at port of discharge, " they paying freight and all other conditions as per charter." In an action by (u) Lyle V. Cardiff (\%Q()), 2 Q. B. 638. (\i-f Dampskibssehkahet Svendborg v. Love (1915), Sess. Cas. 543. Of. Laugham S.S. Co. v. Gallagher (1911), 2 Ir. Eep. 348. {y) See the eases on charterparty freight. Article 144. (2) See Article 54 ; cf. Hick v. Rodocanachi (1891), 2 Q. B. 626. (a) Oullischen v. Stewart (1884), 13 Q. B. D. 317. (b) They were held to be incorporated in Porteus v. Watnetj (1878), 3 Q. B. D. 535 ; Wegener v. Smith (1854),, 15 C. B. 285 ; Gray v. Carr (15.71), L. R. 6 Q. B. 522 ; not to be incorporated in Chappel v. Comfort (1861), 10 C. B., N. S. 802 ; Smith v. Sieveking (1855), 4 E. & B. 945. See as to words incorporating the charter : Serraino v. Campbell (1890), 25 Q. B. D. 501. (c) *S.,S'5 Comity of Lancaster v. Sharpe (1889), 24 Q. B. D. 158. FOB DEMVBEAGE. 315 shipowners against charterers as consignees under the bill of lading, for demurrage at the port of discharge, Held, that they were liable, as the bill of lading only incorporated those clauses of the charter which were consistent with its character as a bill of lading, and therefore, though it incorporated the provisions as to demurrage, did not incorporate the cesser clause {d). Case 2. — C. chartered a ship from A., to pay a named freight, sixteen lay-days and demurrage at £2 per day. 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 unloading in London." G. was sued by A. for demurrage. Held, that as the bill of lading did not clearly shew that the conditions as to demurrage in the charter were incorporated in the bill of lading, G. was not liable (e). Case 3. — Under a bill of lading of goods deliverable to G., " he paying for said goods as per charter, with primage and average accustomed," G. was held not liable for demurrage at the port of loading, due under the charter ( / ). Case 4. — C. chartered a ship from A., " fifty running days to be allowed for loading, and ten days on demurrage over and above the said laying days at £8 per day," the owner to have a lien for demurrage ; there was a cesser clause. C. shipped goods under a bdl of lading, "to be delivered as per charter to G., he i)aying freight and all other conditions or demurrage as per charter." The ship was detained at her port of loading ten days on demur- rage, and eighteen days besides. A. claimed a lieu against G, for demurrage, and damages for detention. Held, that G. was liable for the demurrage, but not for the damages for detention, which were not clearly included in the bill of lading (g). Article 135. — Who are liable for Demurrage on a Bill of Lading. Where there is an express stipulation as to demurrage contained in a bill of lading, demurrage due under it will be payable : — (1.) By the shipper or consignor (h) ; (2.) By every person presenting such bill of lading and demanding delivery under it (i), if the jury find from such demand an agreement in fact to pay it (/) ; (d) Gullischenv. Stewart (1884), 13 Q. B. D. 317 (e) Chappel v. Comfort (1861), 10 C. B., N. S. 802. (/ ) Smith V. Sieveking (1855), 4 E. & B. 945. (Sr) Gray v. Carr (1871), L. R. 6 Q. B. 522. (h) Cawthron v. Trickett (1864), 15 C. B., N. S. 754. (i) Per Cave, J., in Allen v. Coltart (1883), 11 Q. B. D. 782, at p. 785; Palmer v. Zarifi (1877), 37 L. T. 790 ; Dobbin v. Thornton (1806), 6 Esp. 16 ; Jesson V. Solly (1811), 4 Taunt. 52 ; Stindt v. Roberts (1848), 5 D. & L. 460 ; Young v. Moeller (1855), 5 E. & B. 755 ; Wegener v. Smith (1854), 15 C. B. 285 ; on which cases see per Lord Selbome, 10 App. C, p. 89. That such delivery i^ good consideration for a promise to pay demurrage, see Scotson V. Pegg (1861), 6 H. & N. 295 ; Benson v. Hippius (1828), 4 Bing. 455. {j) Sanders v. Vanzelkr (1843), 4 Q. B. 260. But not where the person 316 WHO ABE LIABLE (3.) Under the Bills of Lading Act {k), by every con- signee named in the biU of lading to whom the property has passed by such consignment, or indorsee to whom the property has passed, either by indorsement, or by indorse- ment followed by delivery. There is contained in every bill of lading an implied contract by the consignor to miload the goods in a reason- able time (I) ; on this contract the consignee named in the bill of lading, and an indorsee to whom the property has passed by the indorsement, will be, and the person taking dehvery under such bill of lading may be, liable (m). On this implied contract the shipowner and not the master is entitled to sue (n). Note. — If there are a number of bills of lading, each stipulating for a fixed number of lay-days, and a fixed sum for demurrage, or each incorporating such stipulations from a charterparty, can the shipowner proceed against each of the indorsees or consignees and recover the whole amount from each ? The cases of Leer v. Yates (o), Btraker v. Kidd {p), and Porteus v. Watney (q) appear to shew that he can. This result, at first sight (r), seems so outra- geous that much doubt upon the point has naturally been expressed. In the case of a demurrage clause incorporated from presenting the bill at the same time repudiates any liability for demurrage under it or a charter incorporated in it. S.S. County of Lancaster v. Sharpe <1889), 24 Q. B. D. 158. {k) 18 & 19 Vict. c. Ill (Appendix III.) ; see also Alkn v. Coltart, vide supra, and Article 75. (l) Fouier v. Knoop (1878), 4 Q. B. D. 299 ; The Clan Macdonald (1883), 8 P. D. 178 ; Tillett v. Cu-7n Avon (1886), 2 Times L. R. 675. 18 & 19 Vict. 0. 111. The effect is to render the earlier cases, such as Evans v.Forster (1830), 1 B. & Ad. 118, of doubtful authority. (m) Foivler v. K7ioop (1878), 4 Q. B. D. 299. (n) Brouncker v. Scott (1811), 4 Taunt. 1; Evans r. Forster (1830), 1 B. & Ad. 118 ; Cawthron v. Trickett (1864), 15 0. B., N. S. 754, where the master, who was a part owner and managing owner, was held entitled to sue the consignor on the implied contract. The master, however, may sue on an express contract in the bill of lading for demurrage, as he can for freight. Jesson v. Solly (1811), 4 Taunt. 52 ; and see Article 147. (o) (1811), 3 Taunt. 387. {p) (1878), 3 Q. B. D. 223. (?) (1878), 3 Q. B. D. 223, 534. (r) There are considerations, however, which are pertinent on the side of the shipowner. If a charterer ships a cargo with an obligation in the charterparty as to its discharge in a certain time, and then, for the conve- nience of the charterer, many bills of lading for small parcels are issued, the shipowner (especially if there is the usual cesser clause) may have no practical means of enforcing his right to have the steamer discharged in proper time, if he be limitedras against each holder of a bill of lading, to his default in taking delivery of his own parcel. FOB DEMUBBAGE. 317 a charterparty there would seem to be a way out of the difficulty by holding that each holder of the bill of lading has undertaken that the stipulation of the charterparty shall be fulfilled, i.e. that the shipowner shall receive the sum {e.g. £10 a day) named therein, and if the shipowner has received this from one consignee, another can contend that the obligation of the charterparty has been fulfilled so as to absolve him. This was a suggestion of Thesiger, L.J. (s), though it was not supported by the other members of the Court of Appeal. But if there is a separate con- tract expressed in each bill of lading — so many lay-days for discharge, and so much per day for demurrage — it is very difficult to see any escape from the liability of each and every holder or consignee for the whole amount. Case 1. — Goods were shipped under a bill of lading, with a memorandum, " ship to be cleared in sixteen days, and £8 per day demurrage to be paid after that time." Held, that the consignee taking delivery of goods under such a bill of lading was liable to pay the demurrage (t). Case 2. — A bill of lading, containing clauses as to demurrage, was pledged to I. for advances. I. took delivery of the goods under the bill of lading. Held, that I. was not liable under the Bills of Lading Act to pay demurrage merely by reason of the pledge of the bill of lading, but that he became liable by taking delivery of the goods under it (u). Case 3. — C. chartered a ship from A., " to be discharged as fast as the custom of the port would allow," and took bills of lading for the cargo, which did not refer to demurrage. There was no custom of the port of discharge. G., the consignee, had sold the beneficial interest in the goods to P., and gave a delivery order in his favour. Held, that G., as consignee, was liable on the implied contract in the bill of lading under the Bills of Lading Act (x). (s) 3 Q. B. D., at p. 540. (t) Jesson V. Solly (1811), 4 Taunt. 52. (u) Allen V. Coltart (1883), 11 Q. B. D. 782. (x) Fowler v. Knoop (1878), 4 Q. B. D. 299. f 318 ^ SECTION X. Freight. Article 136. — Freight ; what it is. " Freight," in the ordinary mercantile sense, is the reward payable to the carrier for the carriage and arrival of the goods in a merchantable condition (a), ready to be delivered to the merchant (6). The true test of the right to freight is the question whether the service in respect of which the freight was contracted to be paid has been substantially performed (c), or, if not, whether its performance has been prevented by the act of the cargo-owner {d). Under a simple contract to pay freight (6) no freight is payable if the goods are lost (e) on the voyage (/ ), or for (a) Asfar v. Blundell (1896), 1 Q. B. 123. (b) The definition of the Judicial Committee in Kirchner v. Ve7i2is (1859), 12 Moore, P. C. 361, at p. 390, is, " Freight is the reward payable to the carrier for the safe carriage and deliverj' of goods." But Dakin v. Oxley (1864), 15 C. B., N. S. 646 (see p. 665), shews that safe carriage in the sense of delivery of goods in good condition is not necessary, and cases like Cargo ex Argos (1873), L. R. 5 P. C. 134, and Cargo ex Galam (1863), B. & L. 167, shew that actual delivery of goods is not essential, readiness to deliver sufficing. (c) Per Willes, J., DaUn v. Oxley (1864), 15 C. B., N. S. 646, at p. 664; Kirchner v. Venus (1859), 12 Moore, P. C. 361, at p. 390, and Section XL, on Lien, post. Cf. The Industrie (1894), P. 58. (d) Cargo ex Argos, vide supra ; Cargo ex Galam, vide supra ; and Article 139. (e) A guarantee of a gross freight of £900 will be payable if the freight is less than £900, though the vessel is lost on the voyage, as the breach occurs at the port of loading : Carr v. Wallachian Co. (1867), L. R. 2 C. P. 468. ( / ) As to whether a charter includes one voyage or two, so that freight is payable for a part of the chartered services, though the ship is lost in per- forming the other part ; see Mackrell v. Simond (1776), 2 Chit. 666. The clause " ship lost or not lost " is now very usual. This clause only refers to losses through excepted perils : G. Indian Railway Co. v. Tumbull (1885), 53 L. T. 325. Sometimes the clause " freight to be considered earned, ship FBEIQHT. 319 any other reason, except the fault of the merchant alone (g), are not delivered at the port of destination (h). From the signing and delivery of bills of lading (i) while the goods are in course of carriage without unreason- able delay, and until they are delivered to the merchant, the master of the ship has a lien on them for the freight due for such carriage, and cannot be compelled to part with them tiU such freight is paid and the bills of lading delivered up (j). These incidents to freight exist by rule of law, and do not need a bill of lading or other written contract between the parties to support them, though they may be excluded by such a written contract (j). The term " freight " will be presumed to have its ordinary mercantile meaning (k), unless evidence is found in the charter or bill of lading, which negatives this, or raises an ambiguity, when oral evidence may be given as to the intention of the parties (l). lost or not lost, at any stage of the entire transit," is found in through bills of lading ; see Article 22. (g) See Article 139. (h) See note (c), p. 318, ante. (i) Tindall v. Taylor (1854), 4 E. & B. 219, at p. 227 ; Thompson v. Trail (1826), 2 Car. & P. 334. And see Article 150, on Liens, post. {)) Dakin v. 0.r% (1864), 15 C. B., N. S. 646, at p. 664 ; Kirchner v. Venus (1859), 11 Moore, P. C. 368, at p. 390. It would perhaps be more accurate to say that during the voyage the master is entitled to keep the goods because by his contract he is entitled to carry them and earn freight, and that when he has performed the voyage and earned the freight he is entitled to hold them under the lien that then arises to enforce payment of the freight. (k) Krall v. Burnett (1877), 25 W. R. 305 ; Lewis v. Marshall (1844), 7 M. & G. 729 ; Blakeij v. Dixon (1800), 2 B. & P. 321. This will allow the introduction of usages of the particular trade, or practices of merchants creating rights between the parties to a contract in respect of some matter which is not in terms provided for by the contract ; see per Willes, J., in Meyer v. Dresser (1864), 16 C. B., N. S. 646, at p. 662, and Article 8, ante. So Broum v. Byrne (1854), 3 E. & B. 703 ; where a custom at Liverpool as to discount from freight was held binding. See also Russian Steam Naviga- tion Co. V. De Silva (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. Venus, vide supra, evidence of custom as to freight was held inadmissible on the groimd 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 quaere ; and see note, ante, p. 25. 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. (I) Lidgett v. Perrin (1861), 11 C. B., N. S. 362; Andrew v. Moorhouse (1814), 5 Taunt. 435; and see Article 8. 320 FBEIGET. Case 1. — Goods were shipped under a bill of lading witli the words " Freight payable in London." Evidence was tendered that by the custom of the steam shipping trade this meant '" freight payable in advance in London." Held, inadmissible, the word " freight " being well understood, and there being no words here to qualify it (to). Case 2.- — Evidence tendered to shew that the term " freight " in a charter, which also refened to " passage money," included the passage money of steerage passengers. Held, inadmissible {n). Case 3. — Goods were shipped under a bill of lading, which was not produced 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 {p). By the master's agreement with the shipowner, primage may and usually does belong to the shipowner ; 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 shipowner by the mer- chant : part of it is sometimes allowed to the merchant's shipping agent by the shipowner as his remuneration, being in efiect a sort of commission. It is very rare to find a master receiving primage at the present day. Average accustomed meant " petty average," which was also a gratuity to the captain. " Petty average " is even more obsolete than " primage." Blount, Law Dictionary, 1670 (cited in Murray, N. E. D.), says : " Average is a little Duty which those Merchants who send goods in another Man's ship, do pay to the Master of it, for his care over and above the Freight,; for in Bills of Lading it is expressed — ' Paying so much Freight for the said Goods, with Primage and Average accustomed ' " (r). (m) Krall v. Burtiett, vide supra. See also MasMter v. Buller (1807), 1 Camp. 84, criticised by Brett, J., in Allison's Case, 1 App. C. at p. 218. (n) Lewis v. Marshall (1844), 7 M. & G. 729. (o) Lidgettv. Perrin (1861), 11 C. B., N. S. 362, distinguishable from Krall v. Burnett by the special facts. (p) Charleton v. Cotesworth (1825), R. & M. 175 ; Best v. Saunders (1828), M. & M. 208. See Hoicitt v. Paul (1878), 5 Sc. Sess. C, 4th Ser. 321. {q) Caughey v. Gordon (1878), 3 C. P. D. 419. (r) In Malynes, Lex Mercatoria (1686), p. 100, is a variant phrase: " With Primage and Petilodeminage." The latter word, according to the N. E. D., meant "Petty Lodemanage," and " Lodemanage " meant " Pilotage." But MaljTies (ibid., p. 102) says : " Primage and Petilode- minage to the Master for the use of his Cables to discharge the goods." Still earher the phrase was more elaborate: "And all stowage, lowaige, wyndage, pety lodmanage, and averages accustomyd shalbe taken and borne uppon all the goods lade in the said shypp this present viage" (charterparty dated Julv 3, 1531, printed in Marsden, Select Pleas in the Court of Admiralty (Selden Society, 1892), Vol. I., at p. 37). ADVANCE FREIGHT. 321 yote 2.- — Freiglit 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. 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 sliipowners usually protect them- selves thus : " Any difference between charter and bill of lading freight 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 insur- ance ; if in charterer's favour, by captain's draft, payable three da5^s after ship's arrival at port of discharge " (s). 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 nor 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 (t) or otherwise, such payment will be treated as an advance of freight, or as a loan, according to the intention. (s) See Ralli v. Paddington S.S. Co. (1900), 5 Com. Cases, 125. (t) Under a clause " Cash for disbursements to be advanced at port of loading on accoimt of freight not exceeding £150 in all," the charterer is not entitled to advance the maximum sum named if the shipowner prefers to find the cash himself. The Primula (1894), P. 128 ; see also The Red Sea (1896), P. 20. 322 ADVANCE FREIGHT. of the parties, as expressed iii the documents {u). A stipu- lation that it shall be paid " subject to insurance," or " less insurance," will indicate that the payment is an advance of freight (x). If it is an advance of freight, it must be paid, though the goods are after the due date of payment (y), but before payment, lost by excepted perils, and it will not be re- coverable from the shipowner if the goods are after payment so lost (2;). It will be recoverable if the goods are not lost by excepted perils (a), 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 (6). 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 (c). (w) Allison V. Bristol Marine Insurance Co. (1876), 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. (x) Allison V. Bristol Co. (1876), 1 App. C. at p. 229; Hicks \. 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 ; Frayes V. Worms (1865), 19 C. B., jST. S. 159, in which it was held that general average on advaaice freight was to be paid by the charterer. {y) 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. Pyman (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. Girvin <& Co. (1900), 1 Q. B. 45, 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. (z) Anonymous Case (1684), 2 Shower, 283 ; De Silvale v. Kendall (1815), 4 M. & S. 37 ; Byrne v. Schiller (1871), L. R. 6 Ex. 20, 319 ; Saunders v. Drew (1832), 3 B. & Ad. 445. For the explanation of this rule, which is peculiar to EngUsh law, and probably arose from the long voyages of the East India trade, see Brett, J., at 1 App. C. 223. (a) G. Indian Peninsular R. Co. v. Turnhull (1885), 53 L. T. 325. Rodo- canachi v. Milburn (1886), 18 Q. B. D. 67 ; Dufourcet v. Bishop (1886), 18 Q. B. D. 373, in which the advance freight was in eflfect recovered as part of the damages for non-deliverj' of the goods. (6) Ex parte Nyholm, in re Child (1873), 29 L. T. 634. Cf. Smith v. Pyman (1891), 1 Q. B. 742, on the wording " one -third freight, if required, to be advanced." (c) How 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. ADVANCE FREIGHT. 323 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 (d). If the payment in advance is regarded as a loan by the shipper to the shipowner, whether on security of the freight or not (e), 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 (/ ). A payment of advance freight is a payment on account of the whole sum which would otherwise be payable on the cargo delivered at destination ; it is not to be treated as the total of proportionate advances of the agreed freight upon each ton of goods shipped (g). Case 1. — Goods were shipped under a charter " to be delivered on being paid freight £5 per ton dehvered . . . Cash for ship's disbursements to be advanced to the extent of £300, free of interest, but subject to insurance . . . The freight to be paid on unloading and right delivery of cargo as follows, in cash, less two months' interest at 5 per cent., and 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, shewed conclusively that the advance was for freight, and not as a loan, and therefore could not be recovered, though the ship was lost {h). 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. (d) Tanner v. Phillips (1872), 42 L. J. Ck. 125; The Salacia (1862), 32 L. J. Adm. 43, and see Article 147, s. vii. (e) It may not involve a set-off against the freight. (/) Watson V. Shankland (1873), L. R. 2 H. L. Sc. 304; Ilanfield v. Maitland (1821), 4 B. & Aid. 582 ; Allison v. Bristol Marine Insurance Co. (1876), 1 App. C. 229, 253. (g) Allison v. Bristol Mar. Ins. Co. (1876), 1 App. Cas. 209. I.e. if 500 tons are shipped at a freight of £2 a ton, and if £500 is paid as advance freight, and if on the voyage 250 tons are lost by an excepted peril, the shipowner must deliver the remaining 250 tons without receiving any payment for freight. He caimot say the £500 was an advance of £1 upon each ton shipped, and therefore claim £250 as the balance due on the 250 tons delivered. On the other hand, if 400 tons are lost on the voyage the char- terer cannot claim repayment of £300 of the advance of £500 : which seems not quite logical but is the law. {h) Hicks V. Shield (1857), 7 E. & B. 633. See also Allison v. Bristol Insurance Co., vide supra ; and for a curious case of advance freight, see The Thyatira (1883), 8 P. D. 155. 21—2 324 ADVANCE FREIGHT. and cost of insurance from freight on settlement thereof, and the remainder on right delivery of the cargo at port of discharge, in cash . . . the master to sign bill of lading at any current 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 coiild 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 (i). Case 3. — Goods 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 Jiily 12, and was lost through the negligence of her master on July 19, the loss being known on July 21 ; on July 26 the freighter paid four-fifths of freight 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 (k). Case 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 ship'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 shipowner whatever the result of the voyage, and consequently not insurable by the charterer (l). Case 5. — Goods were shipped imder a charter, " SuflBcient 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 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 C.'s damage was the amount he woxild have to receive, less the amount he would have to pay, on arrival of the goods (m). 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 imder no liability to pay advance freight till requirement by the shipowner, and that this (i) Byrne v. Schiller (1871), L. R. 6 Ex. 20, 319. That the shipowners ■would have no lien for such a difference without an express agreement, is shewn by Gardner v. Trechmann (1884), 15 Q. B. D. 154. (k) G. Indian Pen. B. Co. v. Turnbull (1885), 53 L. T. 325. (/) Manfield v. Maitland (1821), 4 B. & Aid. 582. (to) Rodocanachi v. Milburn (1886), 18 Q. B. D. 67. See Dufourcet v. Bishop (1886), 18 Q. B. D. 373. BACK FREIGHT. 325 requirement could not be made when the voyage could not be performed (»). 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 reaching such port (o), 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 {p), 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 " back freight " {q). 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 Havre, transhipped the oil into lighters in the harbour, unloaded the rest of the cargo, reshipped the oil and brought it back to X. 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 Havre (g). Dead Freight. See Article 161, post. (w) Smith V. Pyinan (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 biU 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. (o) Semble, that the shipowner can here also recover similar expenses and back freight incurred in interests of cargo owner ; vide Notara v. Henderson <1870), L. R. 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 : Heslop v. Jones (1787), 2 Chit. 550. (p) Article 103. (q) Cargo ex Argos (1873), L. R. 5 P. C. 134, setthng the doubt of Mansfield, C.J., in Christy v. Row (1808), I Taunt. 300, at p. 316. See Article 126. 326 FULL FREIGHT. Article 139. — Shipowner's Right 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 {r), at the port of destination (s), or is ready to deliver them, but the consignee does not take delivery within a reasonable time {t). 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 {u). 3. Where, the necessity of transhipment having arisen, he has transhipped, and so caused the goods to be deli- vered, even though at a less freight than that originally contracted for [x). 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 {y), or in requiring delivery of the goods at an intermediate port (z), or in refusing to name a safe port to which the ship can proceed, and enter {a). Case 1. — F. shipped cement under a bill of lading : " Freight to be paid within three days after the arrival of ship before the deli- very of any portion 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 upon 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 (b). (r) Asfar v. Blundell (1896), 1 Q. B. 123. (s) Delivery need not be to the consignee, if it is in a manner approved by him : see Fenwick v. Boyd (1846), 15 M. & W. 632. (t) Dutkie V. Hilton (1868), L. R. 4 C. P. 138, at p. 143 ; Cargo ex Argos (1873), L. R. 5 P. C. 134 ; and per Lord Mansfield, in Luke v. Lyde (1759), 2 Burr. 883. (u) Vide Article 140. (:r) 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. (y) Cargo ex Argos (1873). L. R. 5 P. C. 134. {z) The Bahia (1864), B. & L. 292 ; Cargo ex Galam (1863), B. & L. 167 ; The Soblomsten (1866), L. R. 1 A. & E. 293 ; Li(ke v. Lyde (1759). 2 Burr. at p. 888. (a) The Teutonia (1872), L. R. 4 P. C. 171. (b) Dufhie v. Hilton (1868), L. R. 4 C. P. 138 ; Asfar v. J5/wnrfeH(1896), 1 Q. B. 123 (dates). LUMP FEEIGHT. 327 Case 2. — F. shipped petroleum on A.'s ship to be delivered at Havre, to be taken by F. witliin 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 (c). 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 certificate 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 (d). Case 4. — C. chartered A.'s ship to carry a cargo from X. to Z. Unknown to A. there was a respondentia 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. (e). 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 ship was discharged from the necessity of completing her voyage, and the shipowner was entitled to full freight at Dover ( / ). Article 140. — Lump 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 is (c) Cargo ex Argos (1873), L. R. 5 P. C. 134. (d) The Bahia (1864), B. & L. 292. If the goods owner tenders full freight at an intermediate port, the master is bound to deliver ; The Patria (1863), L. R. 3 A. & E. 436. Blasco v. Fletcher (1863), 14 C. B., N. S. 147, turns on a special authority from the master. (e) Cargo ex Galam (1863), B. & L. 167. See also The Soblomsten (1866), L. R. 1 A. & E. 293. ( O The Texiioma (1872), L. R. 4 P. C. 171. 328 LUMF FREIGHT. not delivered. If any goods are shipped, some must be delivered to entitle the shipowner to lump freight {g). If there is a charterparty for a cargo at a lump freight, and bills of lading for separate parcels provide that freight shall be payable as per charterparty, each holder of a biU of lading will be liable for such proportion of the lump freight as his parcel bears to the whole cargo shipped (k). The delivery of some of the goods which entitles the shipowner to the whole lump freight may be deUvery (a) in the chartered ship, or (if the use of such substituted method is permissible in the circumstances and under the charterparty) (b) in a substi- tuted ship, or (c) by other means, e.g. by carting them to the port of destination from the wreck of the chartered ship {i). In >S'.>S'. Heathfield v. Rodenacher {k) a ship was guaranteed by owners to carry 2600 tons dead weight ; and the charterer con- tracted 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 qucere. In S.S. Rotherfield v. Tiveedy (l), 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 4250 tons. " Owners guarantee steamer can carry"4:250 tons dead weight." The ship carried a full cargo of 3950 tons, which with bunkers made up the 4250 tons guaran- teed. Held, freight was only payable on 3950 tons. Both these cases seem to strike out of the charters part of their provisions. Case 1. — A ship was chartered to load a full cargo, proceed to Z., and tliere deliver the same on being paid " a lump freight of (g) The Norivay (1865), 3 Moore, P. 0., N. S. 245 ; Robinson v. Knights 1 1873), L. R. 8 C. P. 465 ; Merchant Shipping Co. v. Armitage (1873), L. R. 8 C. P. 469 ; L. R. 9 Q. B. 99. Dr. Lushington in The Xorivay, 12 L. T. 56, had expressed the opmion that where short deliverj' of goods was not due to excepted perils, the freighter might deduct pro rata freight for the goods not delivered, though he could not deduct their value, nor could he deduct the freight if the short delivery were due to excepted jjerils. The Judicial Committee, reversing him on the question of fact, held that the short dehvery was due to excepted perils, but also said : " We do not mean to express an opinion that even if the jettison and sale had been attributable to the negligence of the master there ought to be a deduction. Perhaps, in this case, the proper remedy of the shipper would have been by a cross- action." Coleridge, C.J., expresses a doubt whether this is correct in Merchant Shipping Co. v. Armitage, at L. R. 9 Q. B. p. 107. Most of the cases as to lump freight are considered in Thomas v. Harrowing S.S. Co. (1915), A. C. 58, (h) Brightman v. Miller (1908), Shipping Gazette, June 6, 1908 ; c/. and contrast Red. " R." S.S. Co. v. Allatini (1908), 14 Com. Cas. 82, 303. (i) Thomas v. Harroiving S.S. Co. (1915), A. C. 58. (k) (1896), 2 Com. Cases, 55. (l) (1897), 2 Com. Cases, 84. FULL FBEIGHT. 329 £315." On the voyage, part 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 (to). Case 2. — A ship was chartered to load a full cargo, and proceed to Z. and discharge there. " A lump sum freight of £5000 to be paid after entire discharge and right delivery of the cargo in cash." Part of the cargo was during the voyage lost by fire. Held, that on delivery of the remainder of the cargo the shipowner was entitled to £5000 (n). Case 3. — A ship was chartered to load a full cargo of pit props and carry them to Z. at a lump sum freight. There was an excep- tion of "perils of the seas." AVlien nearly arrived at Z. the ship was driven ashore and wrecked. Part of the cargo was collected on the beach, and the shipowner had it carted to the dock at Z. Held, that the shipowner was entitled to recover the whole lump sum freight (o). Article 141. — Full Freight for Delivery of Damaged Goods, or for Short Delivery. The shipowner will be entitled to full freight : — 1, If he is ready to deliver in substance at the port of ■destination the goods loaded, though in a damaged condi- tion. The freighter will not be entitled to make a deduc- tion from the freight for the damage, but will have a separate cause of action for it, if it was not caused solely by excepted perils, or by the vice of the goods themselves. The question is whether the substance delivered is identical commercially with the substance loaded, though it may have deteriorated in quality (p). Case 1. — Coal shipped under a charter had by the negligence of the master so deteriorated in quality as not to be worth its freight. The charterer therefore abandoned it to the shipowner and claimed to be discharged from freight. Held, he was not entitled to abandon, and was liable for the whole freight, his remedy being by cross-action (q). Case 2. — Dates shipped 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 unmer- (m) Robinson v. Knights (1873), L. R. 8 C. P. 465. (m) Merchant S. Co. v. Armitage (1873), L. R. 9 Q. B. 99. Compare and contrast the effect of similar words where freight was not a lump freight. London Transport Co. v. Trechman (1904), 1 K. B. 635. (o) Thomas v. Harrowing S.S. Co. (1915), A. C. 58. (p) Dakin v. Oxhy (1864), 15 C. B., N. S. 646, per Willes, J., at pp. 664 ■et seq. ; Melhuish v. Garrett (1858), 4 Jur., N. S. 943 ; Shields v. Davis (1815), 6 Taunt. 65 ; Asfar v. Blundell {\Sm), 1 Q. B. 123. (q) Dakin v. Ozley, vide supra. 330 ON SHORT DELIVEBT. chantable 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 (r). 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 (s). Statements of contents or weight contained in the bill of lading are binding against the shipper or consignee for the purposes of freight, if the goods are delivered as received (t). Case 1. — A bill of lading shewed 300 tons to be shipped at a lump sum freight ; only 217 tons were delivered. On proof that no more had been loaded ; held, that the whole lump sum freight was due {u). 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, either on 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 2266 quarters were delivered. Held, that the shippers were liable to pay on the bill of lading amount (v). (r) Asfar v. Blundell (1896), 1 Q. B. 123. Quaere whether this decision, was right ; the consignees took the cargo and sold it for £2400. Perhaps they could not have been compelled to take dehvery, but, if they did, it is submitted they ought to pay freight. The distinction between Melhuish V. Garrett, vide supra, and Duthie v. Hilton (1868), L. R. 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 presumably that the substance there was some- thing 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 substantially arrived." {s) Davidson v. Givynne (1810), 12 East, 381 ; Blanchet v, Powell (1874), L. R. 9 Ex. 74 ; Meyer v. Dresser (1864), 16 C. B., N. S. 646 ; The Norway (1865), 3 Moore, P. C, N. S. 245 ; Jessel v. Bath (1867), L. R. 2 Ex. 267. By express agreement the cargo owner may have a right to deduct the cost of cargo short dehvered from the freight, as in S.S. Garston v. Hickie, Borman & Co. (1886), 18 Q. B. D. 17, where the clause was : " less cost of cargo delivered short of bill of lading quantity." (0 Tully V. Terry (1873), L. R. 8 (J. P. 679. See also Covas v. Bingham (1853), 2 E. & B. 836. They may by agreement be made binding as against the shipowner : Lishman v. Christie (1887), 19 Q. B. D. 333, where the clause was : " the bUl of lading to be conclusive eWdence of the quantity- received, as stated therein." Cf. Mediterranean Co. v. Mackay (1903), 1 K. B. 297 ; and Crossfield v. Kyle S.S. Co. (1916), 2 K. B. 885. (u) Blanchet v. Powell (1874), L. R. 9 Ex. 74. (v) Tully V. Terry, vide supra. See also Jessel v. Bath (1867), L. R. 2 Ex. 297. FREIGHT PRO RATA. 331 Article 142. — Freight pro rata /or Short Delivery. If the shipowner, contracting to load a full cargo, only loads and carries part of it (x), or if, having loaded a full cargo, he only delivers part of it, he will, in the absence of a stipulation for lump freight (y), only be entitled to freight pro rata on the quantity delivered ; and the freighter can counter-claim for short delivery not solely caused by excepted perils, or by the vioe of the goods themselves {z). Note. — Where, after shipment, part of a cargo is burnt, there being an exception of fire, the shipper is reUeved from replacing 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 freight or per ton {a). Case. — A ship was cliartered 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 pro rata on the quantity delivered, and the freighter had a cross-action for failure to load a complete cargo {x). Article 143. — Freight pro rata /or Delivery short of Place of Destination. If the contract is governed by English law (c), where the shipowner delivers the goods to the merchant short of the port of destination, he can only claim freight proportional (x) Ritchie v. Atkinson (1808), 10 East, 295. (y) WiUes, J., suggests in Dakin v. Oxley, vide infra, 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. Stephens v. Winiringhatn (1898), 3 Com. Cases, 169. (z) Dakin v. Oxley (1864), 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. D. 115 ; Mediterranean Co. v. Mackay (1903), 1 K. B. 297 ; as to Fr'ench law, see Blanchet v. Powell (1874), L. R. 9 Ex. 74 ; as to Prussian law and usage,, see Meyer v. Dresser (1864), 16 C. B., N. S. 646. (a) Aitken Lilburn v. Ernsthausen (1894), 1 Q. B. 773 (C.A.) ; Weir v. Girvin & Co. (1900), 1 Q. B. 45 (C.A.). (c) For a foreign ship under English charter, see The Industrie (1894), P. 58 ; The Pairia (1871), L. R. 3 A. & E. 436. 332 FREIGHT to the amount of voyage completed, laiown as freight pro rata itineris peracti, or freight pro rata, if an express or implied agreement to that effect exists with the mer- chant (d). 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 (e). To justify a claim for pro rata freight there must be such a voluntary acceptance of the goods by their owner, at a port short of their final destination, or such a dealing, or neglect to deal with them there, as to raise a fair infer- ence that the further carrying of the goods, (the shipowner having a right to carry them further), was intentionally dispensed with by the goods-owner (/ ). Thus where the goods are arrested, and the goods-owner, knowing of their arrest, takes no step to release them, and allows them to be sold, a claim ior pro rata freight arises (g). But where the shipowner has no longer a right to carry on, as where he abandons the ship and cargo (h), or where he delays repairs or transhipment beyond a reasonable time, the goods-o^vner, who receives his goods, will not thereby give the shipowner any claim for freight pro rata (i). (d) Osgood V. Groning (1810), 2 Camp. 466 ; The Newport (1858), Swabey, 335 ; Luke v. Lyde (1759), 2 Burr. 882 ; Dakin v. Oxley (1864), 15 C. B., N. S. 646, at p. 665. (e) The Sohlomsfen (1866), L. R. 1 A. & E. 293 ; Cook v. Jennings (1797), 7 T. R. 381 ; Metcalfe v. Brit. Iron Works (1877), 2 Q. B. D. 423 ; Thornton V. Fairlie (1818), 8 Taunt. 354. ( / ) Osgood V. Groning, vide supra ; The Newport, vide supra ; Christy v. Row (1808), 1 Taunt. 299 ; Liddard v. Lopes (1809), 10 East, 526 ; Mitchell V. Darthez (1836), 2 Bing. N. C. 555. (gr) The Soblomsten (1866), L. R. 1 A. & E. 293 : Lord Mansfield's remark in Luke v. Lyde (1759), 2 Burr. 882, at p. 888, that " If the merchant aban- dons all, he is excused freight, and he may abandon all though the}' are not all lost," must be read with the comments of Willes, J., in Dakin v. Oxley (1864), 15 C. B., N. S. 646, at p. 665, who substitutes " decline to accept " for " abandon ; " in which case the goods-owner, by declining to accept his goods short of the place of destination at pro rata freight, will compel the master either to carry or send them on at the full freight (see Articles 103, 138, 139), or to give them up to their owner there, without requiring any freight. (h) Tlie Cito (1881), 7 P. D. 5. If the shipowner, having abandoned ship and cargo so as to put an end to the contract of affreightment, afterwards regains possession from salvors, he will not thereby revive the contract or regain any right to freight : The Arno (1895), 8 Asp. M. C. 5. (i) The Kathleen (1874), L. R. 4 A. & E. 269 ; The Cito (1881), 7 P. D. 5 (C.A.) ; The Leptir (1885), 52 L. T. 768 ; The Arno, v. s. PEO BAT A. 333 A sale by the master, though justifiable in the interests of the cargo, gives him no claim for pro rata freight, if the goods-owner has not been consulted, whether such consul- tation was possible or not (^•), or, having been consulted, has not acquiesced (Z). Case 1. — A ship was chartered from X. to Z., but was prevented from reachmg Z. by " restraints of princes." The consignees requested the master to deliver at Y. into their lighters, and he delivered part of the cargo there. Held, that freight j)ro rata was due for the part of the cargo delivered at Y. (m). Case 2. — A chartered vessel on the voyage became disabled, and was on October 2 towed into an English port, where she and the cargo were arrested in a salvage suit on October 7. The master took the necessary steps to defend the suit, but on October 24 abandoned the vessel ; the owners of the cargo had been informed of the suit, and of the probable sale of the cargo, but gave no instructions. The cargo was sold by the order of the Court. Held, that the owners of the cargo by their inaction had waived their right to have the voyage completed at a time when the master had not lost his right to tranship, and that the cargo owners were therefore liable to pay pro rata freight {n). 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 p»o rata (o). 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 complete her voyage. The captain proposed to discharge the cargo ; the consignees 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 con- signees, who gave the captain a receipt for it, but declined to {k) Vlierboom v. Chapman (1844), 13 M. & W. 230 ; Hopper v. Burness (1876), 1 C. P. D. 137 ; Acatos v. Burns (1878), 3 Ex. D. 282 (C.A.). (l) Hill V. Wilson (1879), 4 C. P. D. 329. To render himself liable to pro rata freight, the goods -owner, having had an oiJtion of having the goods sent on to their destination, or of accepting them at the intermediate port, must accept the goods at the intermediate port : Hill v. Wilson, at p. 335. See also Blasco v. Fletcher (1863), 14 C. B., N. S. 147. Semble, however, that while the captain must protect the interests of the goods, he should also protect the interests of the ship, and should not let the goods go without the payment of pro rata freight. (m) Christy v. Roiv (1808), 1 Taunt. 299. (n) The Soblomsten (1866), L. R. 1 A. & E. 293. Semble, 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. (o) Liddard v. Lopes (1809), 10 East, 526. 334 FREIGHT PEG BAT A. pay freight. Held, that the shipowner was not entitled to full ireight, for he had not completed the voyage, nor to pro rata •freight, for there was no express or implied contract to pay it (p). 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 damage and put into ¥., where the ship and one- third of the cargo were abandoned. The captain left for Eng- land, leaving instructions with the vice-consul to forward the remainder of the goods to Z., and they were forwarded. Held, that C. was liable to pay freight pro r«fa from Q. to Y. ; that he was not liable for freight from X. to Q. ; nor could the ship- owner claim freight from Y. to Z., as the vice-consul and captain in their combined action had acted as agents of C. and not of the shipowner (g). Case 6. — A ship on a voyage to Z. was, owing to perils of the sea, abandoned by her crew. She was foimd derelict by another ship, which brought her into an Enghsh port. Held, that upon satis- fying the cargo's liability to the salvors the cargo owners were entitled to their goods without payment of any freight, the con- tract of affreightment being at an end by justifiable abandonment of the ship, and the shipowner having therefore no right to carry on by transhipment (r). Case 7. — ^A ship Lennard's Co. v. Asiatic Co., ubi supra. APPENDIX III. 421 taken in or put on board his ship are lost or damaged by reason of fire (I) on board the ship (m) ; or (ii.) where any gold, silver, diamonds, watches (»), jewels, or precious stones taken in or put on board his ship (o), the true nature and value (p) 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 (q). 503. (r) — (1.) The owners (s) of a ship, British or foreign, shall not where all or any of the following occurrences take place without their actual fault or privity (t) ; (that is to say), (a.) Where any loss of life or personal injury is caused to any person being carried in the ship ; (b.) Where any damage or loss is caused to any goods, merchandise or other things whatsoever {u), on board the ship ; (c.) Where any loss of life or personal injury is caused to any person carried in any other vessel by reason of the improper navigation of the ship ; (d.) Where any loss or damage is caused to any other vessel, or to any goods, merchandise, or other things whatsoever on board any other vessel, by reason of the improper navigation of the ship ; be liable to damages beyond the following amounts (v) ; (that is to say), (Z) See Article 87, supra, p. 228. This includes damage by smoke, and by water used to put out a fire : The Diamond (nbi supra). {m) This does not free the shipowner from liability for general average contribution for damage caused by water used to extinguish fire : Schmidt V. Royal Mail S.S. Co. (1876), 45 L. J. Q. B. fi46, approved, Greenshields v. Stephens (1908), 1 K. B. 51 (C.A.), (1908), App. Cas. 431. The equivalent of this provision as to fire on board was first enacted by the statute 26 Geo. 3, c. 86. It was prompted by the decision in 1785 of Forward v. Pittard, 1 T. R. 27. It is singular that no case arose upon the provision from 1786 until The Diamond (tibi supra) in 1906. (n) A jury found that " watch movements " were not " watches " within this section. (o) Personal effects of a passenger on a ship, if of the specified character, are within this provision ; Smitton v. Orient Co. {uhi supra). (p) Cf. Williams v. African S.S. Co. (1856), 1 H. & N. 300; where a description, " 248 ounces of gold dust," was h^ld bad, as not stating value ; and Gibhs v. Potter (IS42), lO'M. & W. 70, where the description " 1338 hard dollars " was held good. (q) The equivalent of this provision as to jewellery, etc., was first enacted by the statute 7 Geo. 2, c. 15. (r) This section is amended by sect. 1 of the Merchant Shipping (Liability, etc.) Act, 1900, printed infra. (s) By sect. 71 of the Mijrchant Shipping Act, 1906 (6 Edw. 7, c, 48), it is provided that " owners " in this section is to include " any charterer to whom the ship is demised." In The Steam Hopj)er, No. 66 (1908). App. Cas. 126 (a case that began before the amending Act was passed), the House of Lords held that " owners " in the above sect. 503 did incluu'^ a charterer by demise, so that the amendment by the Act of 1906 was unnecessarj'. {t) See note (k), p. 420, ante. (u) Which includes passengers' luggage. The Stella (1900), P. 161. (v) To which must be added interest on the amounts from the date of the occurrence ; see The Northumhria (1869), L. R. 3 A. & E. 6 ; Smith v. Kirby (1875), 1 Q. B. D. 131. 422 APPE^^DIX III. (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 (x) ; and (ii.) in respect of loss of, or damage to, vessels, goods, merchan- dise, 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 (y). (2.) For the purposes of this section — (a. ) The tonnage of a steamship shaU be her gross tonnage without deduction on account of engine room (z) : 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 aj)pren- tices and appropriated to their use which is certified under the regulations scheduled to this Act with regard thereto. (b.) Where a foreign ship has been or can be measured according to British law, her tonnage, as ascertained by that measurement 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 laAv, 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 section, 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 eveiy such loss of life, personal injury, 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. (x) The claimants for loss of life are alone entitled against £7 part of the £15. And they have a claim pari passu with the claimants for loss of cargo against the £8. The Victoria (1888), 13 P. D. 125; see also The Crathie (1897), P. 178. (y) Where, a ship having been in collision, her owners have got a decree in a limitation action, and have consented to judgment for the damage sus- tained by the other ship, the owners of cargo on either ship are not bound by the amount so fixed as the claim of the other ship, and maj^ prove in claiming on the fund that it was excessive. Van Eijck v. Somerville (1906), App. Cas. 489. (2) The words in italics are amended by sect. 69 of the Merchant Shipping Act, 1906 (6 Edw. 7, c. 48), so as to read — " registered tonnage with the APPENDIX III. 423 PART X. 633. An owner or master of a ship shall not be answerable to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot, acting in charge of that ship within any district where the employment of a qualified pilot is compulsory by law (a). 63 & 64 Vict. c. 32. — Merchant Shipping (Liability of Ship- owners AND Others) Act, 1900. 1. The limitation of the liability of the owners of any ship set by sect. 503 of the Merchant Shipping Act, 1894, in respect of loss of or damage to vessels, goods, merchandise, or other things, shall extend and apply to all cases where (without their actual fault or privity) any loss or damage is caused to property or rights of any kind, whether on land or on water, or whether fixed or moveable, by reason of the improper navigation or management (b) of the ship. addition of any engine room space deducted for the purpose of ascertaining that tonnage." (a) By sect. 15 of 2 & 3 Geo. 5, c. 31, it is provided that this section shall be repealed as from January 1, 1918, or as from such earlier date as may be fixed by an Order in Council. No such Order in Council has as yet been issued. (6) As to the words " navigation or management," which are also used in section 3 of the Harter Act, see pp. 234-237, supra. ( 424 ) APPENDIX IV. General Average. York-Antwekp Rules, 1890. Jettison of Deck 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 by Jettison 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 shaU be made for damage to such portions of the ship and bulk cargo (a), or to such separate packages of cargo, as have been on fire. Cutting away 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 circimi- stances are such that if that course were not adopted she would inevitably 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 aU other cases where a ship is intentionally run on shore for (a) " Portion of . . . bulk cargo " does not mean the whole contents of one hold or cargo space, but only such part of the contents as has in fact been on fire. Green-shields v. Stephens, C.A. (1908), 1 K. B. 51. APPENDIX IT. 425 the common safety, the consequent loss or damage shall be allowed as general average (b). 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 h(;r 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, caroo, 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 sliip, 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 when 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 incurredj, and the loss or damage sustained thereby, shall be admitted as general average. Cargo, Ship's Materials, and Stores bvrm for Fuel. IX. Cargo, ship's materials, and stores, or any of them, neces- sarily 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 Refuge, etc. 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 circum- stances, 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 leavmg (c) such port or place, consequent upon such entry or return, shall likewise be admitted as general average. (b). — The cost of discharging cargo from a ship, whether at a port or place of loading, call, or refuge, shall be admitted as general (b) See also Austin Friars Co. v. SpiUers d: Balers (1915), 3 K. B. 586. (c) These words do not include the expenses of breaking ice in the approaches to the port. Westoll v. Carter (1898), 3 Com. Cases, 112. 426 APPENDIX ir. 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 aU storage charges on such cargo, shall likewise be so admitted. But when the ship is condemned, or does not proceed on her original voyage, no storage expenses incurred after the date of the ship's condemnaf tion, or of the abandonment of the voyage shall be admitted as general average. (d). — If a ship 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 thence 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 PoH of Eefuge, etc. XI. 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 rule 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 {d). But when the ship is condemned or does not proceed on her original voyage, the wages and main- tenance 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 Bepairs. XIII. In adjusting claims for general average, repairs to be allowed in general average shall be subject to the following deduc- tions 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 1 All repairs to be allowed in full, except 1 year old painting or coating of bottom, from which one- (A.) (third is to be deducted. (d) Where, 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 anj' of the monthly hire they have paid. Eoicdeii V. Xutfield S.S. Co. (1898), 3 Com. Cases, 50. APPENDIX IV. 427 Between 1 and 3 years (B.) Between 3 and 6 years (C.) Between 6 and 10 years (D.) Between 10 and 15 years (E.) Over 15 years (F.) f One-third to be deducted off repairs to and I renewal of woodwork of hull, masts, and spars, furniture, upholstery, crockery, metal, and glassware, also sails, rigging, ropes, sheets, and hawsers (other than wire and chain), awnmgs, I covers, and painting. . . I One-sixth to be deducted off wire nggmg, wire ropes and wire hawsers, chain cables and chains, donkey engines, steam winches and connexions, steam cranes and connexions ; [ other repairs in full. Deductions as above under Clause B, except ) that one-sixth be deducted off ironwork ot masts and spars and machinery (inclusive ot ', boilers and their mountings). / Deductions as above under Clause C, except that one-third be deducted off ironwork of J masts and spars, repairs to and renewal ot all 1 machinery (inclusive of boilers and their mountings), and all hawsers, ropes, sheets, and \rigging. / One-third to be deducted off all repairs and ) renewals, except ironwork of hull and cement- ) ing and chain cables, from which one-sixth to I be deducted. Anchors to be allowed in full. Generally ( One-third to be deducted oft' all repairs and renewals. Anchors to be allowed in full. One- ( sixth to be deducted off chain cables. f The deductions (except as to provisions and I stores, machinery, and boilers) to be regulated i by the age of the ship, and not the age of the I particular part of her to which they apply. j No painting bottom to be allowed if the bottom -; has not been painted within six months pre- vious to the date of accident. No deduction to be made in respect of old material which is repaired without being repjaeed 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 ongmal 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 only. 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 the cost of a weight equal to the 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. 428 APPENDIX IV. In the case of ships generally, In the case of all ships, the expense of straightening bent iron- work, 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 Repairs. 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 ^OOd. '; , Amount to be made good for Cargo lost or damaged hy Sacrifice. XVI. The amoimt to be made good as general average for damage or loss of goods sacrificed shall be the loss which the owner of the goods has sustained thereby, based on the market values at the date of the arrival of the vessel or at the termination of the adventure. , i ' Contributory Values. XVII. The contribution to a general average shall be made upon the actual values of the property at the termination of the adven- ture, 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 such 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. Adjustment. XVIII. Except as provided in the foregoing rules, the adjust- ment shall be drawn up in accordance with the law and practice that would have governed the adjustment had the contract of affreightment not contained a clause to pay general average according; to these rules. ( 429 ) APPENDIX V. The United States Act of Congress, 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 carrying 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 English 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 nuU 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 wiU be desirable, however, for shipowners to make the point clear in their charters and bills of lading by inserting in prominent 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 [b). In that case, however, 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, therefore, that a clause like that suggested above, expressirig the intention of the parties to be governed by English law, would prevent the application of the United States Statute. It may be noted, how- ever, that the Statute says that negligence clauses " shall not be lawful." This can hardly, however, apply to contracts made in England. The adoption of the suggested clause will probably, therefore, (a) (1889), 42 Ch. D. 321. (6) 129 U. S. Rep. 397* 430 APPENDIX V. protect the shipowner both in English and United States Courts, but the judicial interpretation of this very important Act requires careful attention. 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 connexion with the carriage of projjerty. 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 transporting merchandise or property from or between ports of the United States and foreign ports to insert in any bill of lading or shipping document 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 loading, 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 (c). § 2. That it shall not be lawful for any vessel transporting mer- chandise 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, [to] (rf) 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 sea- worthy and properly manned, equipped, and supplied (e), neither the vessel, her owneV 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 the said vessel (c). (c) See for a discussion by the English Courts of these clauses, Dobell v. S S Ro.^s7nore (1895). 2 Q. B. 408 ; The Glenochil (1896), P. 10 ; The Rodney (1900), P. 112 ; Rou-son v. Atlantic Transport Co. (1903). 2 K. B. 666 (C.A.), where regulation of the temperature in the refrigerating chambers was held " management of the vessel," partly on the ground that the refrigerating machinery also cooled the ship's provisions. (d) This word " to " ought apparently to be inserted. It does not appear in official copies of the original Act. (fe) The absolute warranty of seaworthiness is not, by the incorporation of the Harter Act. negatived, and a mere warranty to use due diligence to make the ship seaworthy substituted. McFadden v. Blue Star Line (1905), 1 K. B. 697. " The incorporation of sect. 3 does nothing more than give immunity in respect of loss resulting from certain specified causes in the course of the voyage, provided the shipowner has exercised due diligence to make the ship seaworthy. The reference to due diligence is a mere qualification upon that immunity ; it is not a Umitation of the obligation under the warranty." Channell, J., ibid, at p. 707. APPENDIX V. 431 nor shall the vessel, her owner or owners, charterers, agents, 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 representative, 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, and such document shall be prima, 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 Government 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 Revised 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 transportation 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. ( 432 ) APPENDIX VI. Australian, New Zealand, and Canadian Acts. The American Harter Act has been imitated by the Parliaments of the Commonwealth of Australia, of New Zealand, and of the Dominion of Canada. The Australian Act (sect. 7) and the Canadian Act (sect. 12) impose a penalty on any master or agent who issues a bill of lading containing terms declared by the Acts to be illegal. As the issue of a bill of lading by a captain or agent in an Australian or Canadian port would be an act done within the Australian or Canadian jurisdiction, the efiect of this is that the Acts have to be incorporated in bills of lading issued in Australia or Canada in the same way as the Harter Act (by reason of sect. 5 of that Act) is incorporated in bills of lading issued in the United States. The New Zealand Act does not contain any equivalent clause imposing a penalty on the issue of bills of lading in contravention of the Act. It does declare (sect. 300) that certain provisions in a bill of lading shall be illegal (a), and this presumably would have effect in any proceedings before a New Zealand Court upon a bill of lading signed in New Zealand. But if a bill of lading were issued in New Zealand by the captain of a British ship containing terms declared to be illegal by sect. 300 (and there is nothing to prevent that happening), and it is sued upon in this country, the Court, presumably, would disregard the New Zealand Act, just as it would disregard the Harter Act if the captain of a British ship issued a bill of lading in th"e United States that did not incorporate the Harter Act. In the experience of the editors bills of lading are usually signed in New Zealand without any reference to, or incorporation of, the New Zealand Act. Sea Cakriage of Goods Act (1904) (Australia). Be it enacted by the King's Most Excellent Majesty, the Senate, and the House of Eepresentatives of the Commonwealth of Australia, as foUows : — 1. This Act may be cited as the Sea Carriage of Goods Act, 1904. 2. This Act shall commence on the 1st January, One thousand nine hundred and five. 3. In this Act " goods " includes every description of wares, merchandise, and things, except live animals. 4. — (1.) This Act shall apply only in relation to ships carrying goods from any place in Australia to any place outside Australia, or (a) See also sect. 9 of the Act No. 37 of 1911. APPENDIX VI. 433 from one State to another State, and in relation to goods so carried, or received to be so carried, in those ships. (2.) This Act shall not apply to any bill of lading or document made before the Thirtieth day of June, One thousand nine hundred and five, in pursuance of a contract or agreement entered into before the Seventeenth day of November, One thousand nine hundred and four. 5. Where any bill of lading or document contains any clause, covenant, or agreement whereby — {a) the owner, charterer, master, or agent of any ship, or the ship itself, is relieved from liability for loss or damage to goods arising from the harmful or improper condition of the ship's hold, or any other part of the ship in which goods are carried, or arising from negligence, fault, or failure in the proper loading, stowage, custody, care, or delivery of goods received by them or any of them to be carried in or by the ship ; or [h) any obligations of the owner or charterer of any ship to exercise due diligence, and to properly man, equip, and supply the ship, to make and keep the ship seaworthy, and to make and keep the ship's hold, refrigerating and cool chambers and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation, are in any wise lessened, weakened, or avoided ; or (c) the obligations of the master, officers, agents, or servants of any ship to carefully handle and stow goods, and to care for, preserve, and properly deliver them, are in any wise lessened, weakened, or avoided, that clause, covenant, or agreement shall be illegal, null and void, and of no effect (6). 6. All parties to any bill of lading or document relating to the carriage of goods from any place in Australia to any place outside Australia shall be deemed to have intended to contract according to the laws in force at the place of shipment, and any stipulation or agreement to the contrary, or purporting to oust or lessen the jurisdiction of the Courts of the Commonwealth or of a State in respect of the bill of lading or document, shall be illegal, nidi and void, and of no effect. 7. The owner, charterer, master, or agent of a ship shall not — {a) insert in any bill of lading or document any clause, cove- nant, or agreement declared by this Act to be illegal, or (&) make, sign, or execute any bill of lading or document containing any clause, covenant, or agreement declared by this Act to be illegal. Penalty : One hundred Pounds. 8. — ( 1.) In every bill of lading with respect to goods, a warranty (h) A bill of lading incorporated by a " clause paramount " the provisions of this Act. It also contained a clause providing (inter alia) that " any latent defects in the hull and tackle shall not be considered unseaworthiness, provided the same did not result from want of due diligence of the owners, or any of them, or of the ship's husband or manager." Held, that this clause was not rendered null and void by sect. 5 of the Act so as to prevent the shipowner relying on it as a defence. Charlton <£• BagsJiaw v. Zaw (1913), Sess. Cas. 317. Sed quaere. B.C. p. 28 434 APPENDIX VI. Bliall be implied that the ship shall be, at the begianing of the voyage, seaworthy in all respects and properly manned, equipped, and supplied. (2.) In every bill of lading in respect to goods, unless the con- trary intention apj)ears, a clause shall be implied whereby, if the ship is at the beginning of the voyage seaworthy in all respects and properly manned, equipped, and supplied, neither the ship nor her owner, master, agent, or charterer shall be responsible for damage to or loss of the goods resulting from — (a) faults or errors in navigation, or (b) perils of the sea or navigable waters, or (c) acts of God, or the King's enemies, or (d) the inherent defect, quality, or vice of the goods, or (e) the insufficiency of package of the goods, or ( / ) the seizure of the goods under legal process, or Ig) any act or omission of the shipper or owner of the goods, his agent, or representative, or (h) saving or attempting to save life or property at sea, or (i) any deviation in saving or attempting to save life or property at sea. New Zealand. — Act No. 178 of 1908 (c). 1. The Short Title of this Act is — " The Shipping and Seamen Act, 1908." 2. — (1.) This Act . . . applies to all British ships registered at, trading with, or being at any place within the jurisdiction of New Zealand, and to the owners, masters, and crew thereof, except (d) as hereinafter provided. PART XI. Liability of Shipowners. 293. If the owner of any ship transporting merchandise or property to or from any port in New Zealand exercises due diligence to make the ship in all respects seaworthy and properly manned, equipped and supplied, neither the ship, her owners, charterers, or agent shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the manage- ment (e) of the ship, nor shall the ship, her 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 thing 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 representative, or from saving or attempting to save life or property at sea, or from any deviation in rendering such service. 300. — (1.) Where any bill of lading or shipping document contains — (a) Any clause, covenant, or agreement whereby the manager, (c) This Act repeals and re-enacts, in almost identical terms, an earlier Act. No. 96 of 1903. (d) The exception is as regards His Majesty's ships and ships belonging to the Government of New Zealand. (e) As to the words " navigation " and " management " see pp. 234-237, supra. APPENDIX VI. 435 agent, master, or owner of any ship, or the ship itself* shall be relieved from liability for loss or damage, arising from the harmful or improper condition of the ship's hold, negligence, fault, or failure in proper loading, stowage, custody, care, or proper delivery of any and all lawful merchandise or property committed to its or their charge ; or {b) any covenant or agreement whereby the obligations of the owners of the ship to exercise due diligence to properly equip, man, provision, and outfit the ship, to make the hold of the ship fit and safe for the reception of cargo, and to make her 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 the same, are in any wise lessened or avoided — such clause, covenant, or agreement shall be null and void and of no effect, unless the Court before which any question relating thereto is tried shall adjudge the same to be just and reasonable (/). (2.) This section shall not apply to the transportation of live animals. 302. — (1.) The agents in New Zealand of any ship not registered in New Zealand shall be deemed to be the legal representatives of the master and owner of the ship after the departure of the ship from the port at which she was discharged for the purpose of receiving and paying claims for short delivery or pillage of cargo, and the amount of any such claim may be recovered from such agents in any Court of competent jurisdiction : Provided that it shall be lawful for such agents, by notice in writing delivered to the Collector not later than twenty-four hours before the departure of any ship, to decline to accept any responsi- bility under this section in respect of that ship, in which case the master and some other person approved by the Collector shall, before the ship is allowed her clearance, enter into a joint and several bond in a sum not exceeding the value of her cargo, as shown by the ship's papers, for the payment of any sum which, together with costs, may be recovered against the agents of such ship. (2.) No proceedings for the recovery of any claim under this section shall be taken unless notice of the claim is given to the agents not later than fourteen days after the delivery of the cargo in respect of which the claim is made. 303. Every bill of lading issued by the manager, agent, master, or owner of a ship, and signed by any person purportiag to be authorised to sign the same, shall be binding on the master and owner of the ship, as if the bill of lading had been signed by the master. 304. Nothing in this Part of this Act shall be construed to lessen or take away any liability to which any master or seaman, being also owner or part owner of the ship to which he belongs, is subject in his capacity of master or seaman, or, except the last preceding section, to extend to any British ship which is not recognised as a British ship within the meaning of this Act. ( / ) As to the .similar provision in sect. 7 of the Railway and Canal Traffic Act, 1854, see pp. 237-238, supra. 28—2 436 APPENDIX VI. New Zealand. — Act No. 37 of 1911. {Shipping and Seamen Amendment Act, 1911.) § 9. Air parties to any bill of lading or other document relating to the carriage of goods from any place in New Zealand to any place outside New Zealand shall be deemed to have intended to contract according to the laws of New Zealand in force for the time being, and any stipulation or agreement to the contrary, or pur- porting to oust or restrict the jurisdiction of the Courts of New Zealand in respect of that bill of lading or document, shall be null and void. Canada — Water-Carriage of Goods Act (1910). 9 & 10 Edw. 7, c. 61. 1. This Act may be cited as The Water-Carriage of Goods Act. 2. In this Act, unless the context otherwise requires : — (ff) " goods " includes goods, wares, merchandise and articles of any kind ichfttsoever, except live animals, and lumber, deals, and other articles usually described as " wood- goods " (g); (b) " ship " includes every description of vessel used in navigation not propelled by oars ; (c) " port " means a place where ships may discharge or load cargo. 3. This Act applies to ships carrying goods from any port in Canada to any other port in Canada, or from any port in Canada to any port outside of Canada, and to goods carried by such ships, or received to be carried by such ships. 4. Where any bill of lading or similar document of title to goods contains any clause, covenant or agreement whereby — (a) the owner, charterer, master, or agent of any ship, or the ship itself, is relieved from liability for loss or damage to goods arising from negligence, fault, or failure in the proper loading, stowage, custody, care or delivery of goods received by them or any of them to be carried in or by the ship ; or (b) any obligations of the owner or charterer of any ship, to exercise due diligence to properly man, equip, and supply the ship, and make and keep the ship seaworthy, and make and keep the ships hold, refrigerating and cool chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage and preservation, are in any wise lessened, weakened or avoided ; or, (c) the obligations of the master, ofl&cers, agents, or servants of any ship to carefully handle and stow goods, and to care for, preserve, and properly deliver them, are in any wise lessened, weakened or avoided ; such clause, covenant or agreement shall be illegal, null and void. {(j) The definition in this paragraph in the original Act was repealed, and the above words in italics were substituted, by an amending Act of 1911 (1 & 2 Geo. 5, c. 27, § 1). I APPENDIX VI. 437 and of no effect, unless such clause, covenant or agreement is in accordance with, the other provisions of this Act. 5. Every bill of lading, or similar document of title to goods, relating to the carriage of goods from any place in Canada to any place outside of Canada shall contain a clause to the effect that the shipment is subject to all the terms and provisions of, and all the exemptions from liability contained in, this Act ; and any stipulation or agreement purporting to oust or lessen the juris- diction of any Court having jurisdiction at the port of loading in Canada in respect of the bill of lading or document, shall be illegal, null and void, and of no effect. 6. If the owner of any ship transporting merchandise or property from any port in Canada exercises due diligence to make the ship in all respects seaworthy and properly manned, equipped and supplied, neither the ship nor the owner, agent or charterer shall become or be held responsible for loss or damage resulting from faults or errors in navigation or in the management of the ship, or from latent defect. 7. The ship, the owner, charterer, agent or master shall not be held liable for loss arising from fire, dangers of the sea, or other navigable waters, acts of God or public enemies, or inherent defect, quality or vice of the thing 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 attemjpting to save life or property at sea, or from any deviation in rendering such service, or other reasonable deviation, or from strikes, or for loss arising without their actual fault or privity or without the fault or neglect of their agents, servants or employees. 8. The ship, the owner, charterer, master or agent shall not be liable for loss or damage to or in connection with goods for a greater amount than one hundred dollars per package, unless a higher value is stated in the bill of lading or other shipping document, nor for any loss or damage whatever if the nature or value of such goods has been falsely stated by the shipper, unless such false statement has been made by inadvertence or error. The declara- tion by the shipper as to the nature and value of the goods shall not be considered as binding or conclusive on the ship, her owner, charterer, master or agent. 9. Every owner, charterer, master or agent of any ship carrying goods, shall on demand issue to the shipper of such goods a bill of lading showing, among other things, the marks necessary for identification as furnished in writing by the shipper, the number of packages or pieces, or the quantity or the weight, as the case may be, and the apparent order and condition of the goods as delivered to or received by such owner, charterer, master or agent ; and such bill of lading shall be prima facie evidence of the receipt of goods as therein described. 10. (h) 11. When a ship arrives at a port where goods carried by the ship are to be delivered, the owner, charterer, master or agent of the ship shall forthwith give such notice as is customary at (h) The whole of this section is repealed by the amending Act of 1911 (1 & 2 Geo. 5, c. 27, § 2). 438 APPENDIX VI. the port, to the consignees of goods to be delivered there, that the ship has arrived. 12. Every one, who, being the owner, charterer, master or agent of a ship, — {a) inserts in any bill of lading or similar document of title to goods any clause, covenant or agreement declared by this Act to be illegal ; or makes, signs, or executes any bill of lading or similar document of title to goods containing any clause, covenant or agreement declared by this Act to be illegal ; without incorporating verbotim, in conspicuous type, in the same bill of lading or similar document of title to goods, section four of this Act ; or (ft) refuses to issue to a shipper of goods a bill of lading as provided by this Act ; or, (c) refuses or neglects to give the notice of arrival of the ship required by this Act ; is liable to a fine not exceeding one thousand dollars, with cost of prosecution : and the ship may be libelled therefor in any Admiralty District in Canada within which the ship is found. (2.) Such proportion of any penalty imposed under this section as the Court deems proper, together with full costs, shall be paid to the person injured, and the balance shall belong to His Majesty for the public uses of Canada. 13. Every one who knowingly ships goods of an inflammable or explosive nature, or of a dangerous nature, without before shipping the goods making full disclosure in writing of their nature to, and obtaining the permission in writing of, the agent, master or person in charge of the ship, is liable to a fine of one thousand dollars. 14. Goods of an inflammable or explosive nature, or of a dan- gerous nature, shipped without such permission from the agent, master or person in charge ot the ship, may, at any time before delivery, be destroyed or rendered innocuous, by the master or per son in charge of the ship, without compensation to the owner, shipper or consignee of the goods ; and the person so shipping the goods shall be liable for all damages directly or indirectly arising out of such shipment. 15. This Act shall not apply to any bill of lading or similar document of title to goods made pursuant to a contract entered into before this Act comes into force. 16. This Act shall come into force on the first day of September, one thousand nine hundred and ten. INDEX. [For many common terms, see under the title " Words and Phrases of Common Occurrence.'") A 1, meaning of, in charter, 76 Abandonment of ship, and pro rata freight, 332, 334 if possession regained from salvors, 332 of warehoused goods, 294 "About," 133 Accident preventing loading, meaning of, 124, 125, 209, 210, 211, 213 inevitable, 214 unavoidable, 210 Accidents, 209 ACT OF GOD, historical origin of exception, 202 meaning of, 214 shipowner must shew absence of negligence, 214, 215 does not include rats or vermin, 215, 223 includes fire caused by lightning, 214, 229 relation of, to perils of the sea, 214, 220 carrier not liable for, 198, 201, 202, 214 charterer by demise not liable for loss of a ship by, 8 Adjustment of general average contribution, when and where made, 279 Admiralty Court, who can sue in, and when, 194-197, 376, 378, 379, 380 payment of freight into, when good, 346 Admiralty Jurisdiction Act, effect of indorsement of bill of lading under, 194-197 Advance Freight : see Freight, Advance Advances to ship, whether freight or loan, 321-323, 345 ADVICE NOTE, as evidence of terms of shipment, 9 for goods forwarded to ship, 391 AFFREIGHTMENT, CONTRACT OF, definition of, 1 parties to, 29-71 when contained in charter, 1 when contained in bill of lading, 2, 8, 45, 49, 50, 53 440 INDEX. AFFREIGHTMENT, CONTRACT OF— eontinued. in charter and bill of lading combined, 2, 8, 44, 45, 50, 53, 314 in through bill of lading, 69, 70 effect of indorsement of bill of lading on, 68, 161-165, 189-197 contained in cards, bills, representations by carrier's agent, 8, 9, 19 construction of, 14-28 by what law construed, 16 illegality of, by English law, 10, 11 illegality of, by foreign law, 10, 11 owner adopting, must adopt all terms of, 64 representations and undertakings in, 19, 72 conditions precedent in, 72-81 conditions implied in, 82-100 effect of delay in performance of. 91-98 effect of deviation on, 212, 213, 250, 251 effect of unseaworthiness on, 82-90 carrier's liability under, 198 effect of excepted perils in, 203-206, 239, 240 exceptions in, how construed, 203, 207-213, 231, 233, 234, 239, 240 who can sue for breach of, 194-197, 241 who can be sued for breach of, 242 who can sue on, in Admiralty Court, 194-197 damages for breach of, 363-375 and see Bill of Lading ; Charterpartt. Afloat, always, 109 AGENT, when prmcipal bound by, 32 when personally liable, 33-36 when liable by estoppel, 33 when he may claim as principal, 33, 34 whether if other party looked to supposed principal, 32 effect of cesser clause on his personal liability, 35, 36 without the authority he professes, 34 classes of, for shipowner, 37 for undisclosed j)rincii3al, 36 for Crown, 37 for charterer, position of, when holder of bill of lading, 45 effect of signature of, without qualification, 33 form of signature to avoid liability, 33 for merchants, as, effect of signature, 22 when principal ratifies the contract, 33 for charterer, effect of signature as, 33 by telegraphic authority, 34 for shipowner, may lend on bottomry, 265 All Conditions as per Charter, 50 All other Conditions as per Charter, 50, 56 Alongside, oral evidence explaining, 15, 20, 127, 128 cargo to be brought, 127, 128 Alterations in contract, effect of, 28 Always afloat, 109, 110 INDEX. 441 Ambiguity in contract, how construed, 15, 20 when construed by custom, 19-26 America, Harter Act, 90, 145, 235, 429 Anchor in the Port, now at, 81 Antiquarian Notes, 1, 2, 57, 85, 97, 133, 145, 160, 202, 206, 224, 266, 320, 336, 337, 364, 389 Arbitration Clauses, of colliery guarantee, whether incorporated in charter, 3, 57 of charter, whether incorporated in bill of lading, 57 power of arbitrator to find custom, 22 Arrest of goods on voyage, effect of, on freight, 332 Arrests and Restraints of Princes, Rulers, and Peoples, 216-218 Arrival at loading port, probable, how to be notified, 105, 122, 123 at port of discharge, no need to notify, 112, 284 at Liverpool, meaning of, 22 non-anival of ship, no evidence of negligence, 145, 240 of goods, evidence of negligence, 145, 240 "Arrived " ship, 111-116, 283 "As customary," 307,308 " As fast as steamer can deliver," 118, 307, 313 Assignability of charterparty, 3, 42 Assignee, of share in ship, bound by charter, 42 bare, of bill of lading, cannot sue in Admiralty Court, 195, 196, 197 Assignment of Freight, effect of, 349 who can sue on, 349, 350 effect of notice of, 349 to be earned, good, 349 mortgagee of ship and assignee of freight, 350 Assist vessels in all situations, leave to, 252 Assortment, goods landed for, position of, by statute, 292, 293 At all Times of the Tide and always afloat, 109 *' At any ports in any order," 252, 254 At Charterer's Risk, 199, 237 At Merchant's Risk, 237, 266, 269 At Ovs^ner's Risk, 208, 250 At Ship's Risk, 141-144, 208 Attachment of goods, how affected by stoppage in transitu, 178 Australia, Sea Carriage of Goods Act, 432 Authorities, orders of, effect of, on clauses as to lay-days, 305 Average days for loading and discharge, liberty to, 300 meaning of " reversible," 300 Average : with primage and average accustomed, 320 442 INDEX. AVERAGE, GENERAL, what is, 266 in the case of fire on board, 229, 271, 424 effect of exceptions on claims for, 239, 267, 268, 271 foreign clauses negativing contribution, 241 what expenses of saving shipowners may claim, 257, 258, 275 sacrifice may be real, and voluntary, 267 conditions supporting contribution in, 267 where ship and cargo belong to same owner, 267 loss of time not made good to any interest, 273 sacrifices, classes of, 268 jettison of cargo, 268-270 deck cargo, 269, 270 pouring water on cargo, 271 burning cargo as fuel, 271 sacrifices of ship or tackle, 272, 273 voluntary stranding, 272 voluntary damage to property of third party, 275 sacrifice of freight, 273 if due to ship's unseaworthiness, 271, 272 expenditures, classes of, 268, 274, 275 on ship, 274 in port of refuge, 275, 276 where resort to port of refuge is occasioned by unsea- worthiness, 252, 267 warehousing cargo in port of refuge, 275, 276 imloading and reloading cargo in port of refuge, 275, 276 pilotage and port dues in port of refuge, 276 York-Antwei-p rules as to port of refuge expenses. Appen- dix IV., 424 Rules of practice of Association of Adjusters, 276, 277 lien for, 276 captain, duty of, to collect, 276 clause exempting him from duty, 277 captain's refusal to give materials for calculating, breach of duty by, 196, 277 how x^aid by cargo owners, 277, 278 bond, nature of, 277 who can sue for, 278 who are liable for, 278 consignee's liability for, 279 shipper's liability for, 279 clause exempting goods but not shipper, 277 how adjusted, 279 chartered freight on round voyage, 278 " if any, to be adjusted according to British custom," 279 shipowner need not employ average adjuster, 279 York-Antwerp rules as to, 268, 269, 277, 279, 424 Average, Petty, meaning of, 320 Average Stater, shipowner not bound to employ, 279 Back Freight, what is, 325 Ballast, shipowner to supi^ly, 86, 135, 136 may be freight-paying goods, 136 ship not ready to load till ballasted, 121, 122, 135 time for ballasting and demurrage, 305 INDEX. 443 Bank, bill of lading presented through, 169, 170 Bankruptcy preventing supply of cargo, 121 what is, to give rise to stoppage in transitu, 176j Barnacles, delay by, due to restraint of princes, 204 Barratry, not a peril of the sea, 222 of captain and crew, 230 what acts are barratrous, and what not, 230, 231 deviation for the master's ends may be, 230, 231 . negligence, however reckless, is not, 230 Bearer, indorsement of bill of lading to, 161 Belfast, custom as to discharge of timber, 20, 24, 128 Belligerent : see National Character ; War. Berth-note, 2, 3 its intention and effect, 3 lump freight under Danube, 328 Bill of Exchange, and conditional indorsement of bills of lading, 169-173 payment by, and stoppage in transitu, 173, 174 holders of, drawn against cargo, have no lien on cargo, 359, 360 BILL OF LADING, definition of, 2, 8 how far a negotiable instrument, 162 perhaps truly so in regard to stoppage in transitu, 162 stamps, necessary for, 1 ; Appendix III., 407, 408 as evidence of contract of affreightment, 2, 8-11 issue of, does not cancel obligations under charterparty, 44 when signed, 2, 8 practice to issue a set, 160 how filled up and signed in London, Aj^pendix 11. , 391, 392 by whom signed, 8, 160 authority of master or broker to sign, 60-65 owner may remain liable where master is chai'terer's agent to sign, 4, 5, 6, 49-51 modern practice as to, 8, 9, 160 printed forms of, 8, 26, 64, 65 statutory liability of persons signing, 68 effect of signature of, 160 where there is a charter, 2, 4, 8 differing from or contradicting charter, 44-59 differing from charter, indorsee of, 49-53 when charter is incoi-pomted in, 2, 8, 50, 55-57, 314 where there is a charter, whom the holder can sue, 44-59 parties to, 44-55 when agent personally liable on, 33 position of holder of, wlien agent for charterer, 45 shipper under, who is not charterer, 49-53 captain's authority to sign, where there is a charter, 63-67, 346, 347 captain's authority to sign, where there is no charter, 62, 63 beyond authority of master, effect of, 60, 61, 63, 64 444 INDEX. BILL OF LADING— couimwed. as presented by charterers, master to sign, 50, 51, 65, 66, 67, 347 captain only to sign as agent for tlie charterers, 52 at any rate of freight, master to sign, 45, 46, 50, 51, 65, 66, 67 charterer's duty to present for signature, 66, 125, 375 liability for damages for delay in presenting, 66, 325, 375 construction of, 14-16 construction, by what law, 16-19 illegality of contract in, 10-13 construction of, by customs, 19-26 stipulations as to loading or unloading in, how construed, 129 conditions precedent in, 72, 73 repudiation of contract in, for breach of conditions prece- dent, 73 conditions implied in, 72 seaworthiness under, 82-85 exceptions as to seaworthiness in, 88, 89, 90 reasonable dispatch under, 91-93 frustration of adventure under, 91 delay or deviation under, 212, 213, 250 given to holder of mate's receipt, 141 ; Appendix II., 392 may be given without mate's receipt, 141 stamps on, eifect of, 9 contents of, when binding on shipper, 8-10 'prima facie evidence that goods were shipped, 60 burden of disproving lies on shipowner, 60 when conclusive evidence by statute, and of what and between whom, 68, 69 two for same goods, 60, 61 signed for goods not shipped, 60-62 evidence of quantity, how displaced, 60, 240 and disputed tallies, 60, 240 conclusive evidence clause, 61, 62, 330 evidence to displace required from shipowner, 240 effect of description of goods va, 61, 63, 144-146 clean, 141, 144 inaccuracies in, effect ot, in unloading, 290, 291 statements as to goods in, effect of, on freight, 330 carrier's liability under, 198 commencement of ship's liabilitv under, 142, 143, 208 and excepted perils, 203-213, 239 list of exceptions in, 207-211 and policies of insurance, different construction of, 205, 206 rule as to ejusdem generis, 211, 212 burden of proof where goods lost or damaged, 240 and general average, 239, 267, 268, 271 holder of, has right to delivery of goods, 285, 286 when shipowner mav safelv deliver to first person presenting, 165, 286 delivery of goods to other than holder of, 286 when holder of, does not claim delivery, 290, 291 and delivery order, 179-181 parties to, when liable for demurrage in charter, 56, 57, 314 who are liable for demurrage on, 315 person taking delivery imder, liable for demurrage on, 314, 315 INDEX. 445 BILL OF LADmG— continued. indorsee of, liable for demurrage in, 315, 316 whether each indorsee liable for whole, 316, 317 freight under, 319, 321, 340 freight due in exchange for bills of lading, 321 freight on bill of lading quantity less 2 per cent. , 339 persons taking delivery under, their liability to freight, 353, 354 indorsee of, when liable for freight, 354 lien on, to broker or shipping agent, 360 holder of, when liable to lien for charterparty freight, 56, 57, 358 consignee under, position of, 193-197, 358 forms of bills of lading. Appendix L, 389 See Bill of Lading, Indorsement of ; Bills of Lading Act ; Bill of Lading, through. BILL OF LADING, INDORSEMENT OF, effects of, 2, 8, 69, 70, 162-164 kinds of, 161, 163, 164 how effected, 161 after wrongful deliveiy of goods, 163, 165, 191 when it transfers property absolutely, 164 when it transfers property conditionally, 169-171 when it does not transfer property at all, 191 property may pass without, 165 effect of, in c.i.f. sales, 166, 167 acting as a mortgage, 189 acting as a pledge, 189, 190 jus disponendi, reservation of, 168-169 conditional, 169-173 to bank, with bill of exchange, 169, 170 conditional, vendee under, 169, 170 conditional, vendee cannot require all parts of, 170 effect of, on stoppage in transitu, 178, 179 effect of, under Bills of Lading Act, 68, 192, 193 and suits under Admiralty Jurisdiction Act, 194-197 to bare assignee, his rights, 195-197 second, effect of, on contract, 191 and liability for demurrage, 315-317 and liability for freight, 319, 321, 353, 354 and liens for freight in charter, 358 restrictive indorsement, when affecting captain, 9 BILL OF LADING, THROUGH, nature of, 69, 70 for sea and land carriage, 69, 70 whom contract in, is with, 69 freight on, how payable, 69, 70, 321 incorporation of ocean bill of lading, 70, 162 freight for inland transit under, 69, 70, 318, 319, 355, 361, 362 and subordinate bills of lading, 70, 162 notification to consignee under, 284 clause as to failure to notify, 210 BILLS OF LADING ACT, 68, 70, 163, 192, 195, 196, 242, 316, 317, 353, 354, 405^ 446 INDEX. Blank, indorsement of bill of lading in, 161 Blockade, effect on contract by English law, 13, 14, 92, 94, 106 effect of International Law, 14 clauses as to, 107, 211, 312 is an arrest of princes, 216 breaking, when barratry, 230 justifies delay or deviation, 255, 256 effect on time freight, 340 BOTTOMRY, captain's power to borrow on, 245, 262, 263 what is necessity for, 246, 264 there must be maritime risk in, 264 must not be an advance on personal credit, 264 deviation without consent from voyage in bond, 264 amount of, 265 communications with owners as to, 247, 265 what can be pledged in, 264 loss of cargo under, 264 agent of shipowner may lend on, 265 obligee of bond, payment of freight to, good, 346 Breach of representations and conditions, oral or written, 19, 72 of contract, when final, 128, 284 of duty by master under Admiralty Jurisdiction Act, what is, 196 Breakage, exception of, 227 Breakdown of Machixery, 208, 212, 340, 341 Bristol, practice at port. Appendix II., 399 custom of port, 306, 400 Broken Stowage, 134 BROKER, position of, as agent of shipowner, 38, 39 his work with regard to ship, 39 his commission, 40 " on completion of loading," 40 under charter " to arrive," 40 commission on " all hire earned," 40 right to sue for commission, 40, 379 whether agent to accept revocation of charter, 38 is agent to effect charter, 38 classes of, 39 when a party to charter, 33-36 his representations, part of contract, 8, 19, 72, 75 power of captain to employ, 41 authority to sign bill of lading, 60-64, 68, 160 statutory liability of, signing bill of lading, 68, 69 payment of freight to, 39, 344, 345 his lien on bill of lading, 360 Bullion, implied warranty of fitness to carry, 83, 88, 227 INDEX. 447 Bunker Coal, may be taken before loading, 121 whether charterer or owner to supply, 245, 341 unseaworthiness from insufficiency, 83, 245, 271 only take coal for chartered voyage, 121, 133 unless by custom not so restricted, 121, 133 Burden of Proof, when goods are damaged or lost, 240 Burden, Sriip's, when condition precedent, 76-78 Cabins, charterer's right to carry passengers and goods in, 131, 135 CALL, LIBERTY TO, as excepted peril, 210 must be interpreted according to adventure, 252, 253 does not authorise unnecessary deviation, 252, 253 " at any ports in any order," 252, 253 Canada, Water Carriage of Goods Act, 436 Cancelling Clause, 80, 81, 93, 103, 121, 213, 312, 365, 367, 370 when option must be declared under, 103 does not operate after ship on demurrage, 299 Capable of being covered by Insurance, Damage, 209, 210, 234, 268 Capacity op Srtip, when condition precedent, 75, 76-78 statements as to, effect of, 72, 75, 132, 328 dead weight, 76, 78 CAPTAIN, working ship for share of profits, 6, 41 position of, abroad, effect of telegraph on, 41, 65 power to effect or vary charters, 41 power to employ broker, 41 power to settle accounts abroad, 41 ordinary authority of, 64, 65 to sign bills of lading as agent for charterer, 49-51, 62, 63, 64 when cannot make freight payable in advance, 64, 67 to sign bills of lading as presented, 50, 51, 65, 66, 67 to sign bills of lading without prejudice to charter, 45, 46, 50,51,65,66,67 when must sign personally, 66 '■ at current or any rate of freight," 67 authority to sign bill of lading, 60-67 authority where there is a charter, 63-67 authority where there is no charter, 62, 63 signing bills of lading for goods not on board, 60, 61 liability as to quality marks in bill of lading, 63, 68 liability of his owners for statements in bill of lading, 63, 64 signing second bill for same goods, 60 signing bill of lading beyond his authority, 63 signing bill of lading, statutory liability of, 68, 69 signing bill of lading, as agent for whom, 49-51, 346, 347 position under charter not a demise, 4, 346, 347 position under charter amounting to a demise, 4, 346 bound to stow skilfully, 136, 137 power to shift cargo once loaded before sailing, 137 or to land cargo to stow other cargo, 137 448 INDEX. CAVT Am~3ontinued. barratry of, 231 negligence of, exception of, 231 exception of his negligence when owner or part-owner, 231 appointment of incompetent or drunken, 231 when can be siied for damage to goods, 242 breach of duty within Admiralty Act, what is, 196 his authority on voyage, 244 authority conferred by shipment, 17, 244, 245, 246 when agent for shipowner, 245, 246 when agent for cargo-owner, 245, 246 when agent for charterer, 245 necessity as ground for his authority, 246 when he should communicate with owners before acting, 247, 255, 258 when he should use telegraph, 249 when he may delay or deviate on voyage, 254-257 duty to take care of goods on voyage, 257 power to sell damaged cargo, 258 power to tranship, 260 power to raise money on cargo, 262 power as to bottomry, 263 power of jettison, 266, 268 duty to collect general average from cargo, 276 lien for general average, 276, 277 bound to furnish particulars of general average to cargo- owners, 196, 277 " not bomid to collect salvage from cargo, 277, 280 his duty in unloading, 285 duty on receiving notice of stoppage in transitu, 189 when affected by restrictive indorsement, 9 his duty to deliver, 285, 286, 287 not bound to separate up bulk cargo, 283, 285 when goods mixed and unidentifiable, 287 and conflicting claims for goods, 286 must deliver to right claimant, or interplead, 165, 286 may dispute holder's property, 286 not bound to unload, unless bill of lading produced, 286, 290 position of, if no bill of lading produced, 286, 290 when may land and warehouse goods, 290, 291 retains his lien by warehousing, 290, 293 his position, if consignee does not take goods, 290, 291 when may refiise delivery of goods, 286, 290 cannot sue for demurrage, 316, 345 his authority to receive freight, 345 effect of payment of freight to, before it is due, 345 when freight payable to, 345 when can sue on contract implied from delivery of goods, 345 cannot retain freight as against shipowners, 345 no lien on freight for wages, etc., 345 how may waive lien for freight, 358 how may enforce lien for freight, 359 in case of breach of contract, must seek other employment, 365, 366, 368 Captain to sign Bills of Lading at ant Kate of Freight, 45, 46, 50, 51, 65, 66, 67, 347 INDEX. 449 Capture and Seizure, 218 deviation to avoid, 255 after sailing, effect of, 127 apprehension of, may excuse completion of voyage, 216, 217 defined, 218 CARGO, charterer's liability for dangerous, 98 or for cargo that involves delay of ship, 98, 100 charterer's duty to provide, 123-127 failure of charterer to provide, 123, 124 non-existence of, effect on charter, 124 causes preventing transmission to the port of loading, 124, 125 causes preventing loading of, 125 tendered, must reasonably comply with charter, 125 short supply of, 124, 305 to be brought alongside, 127, 128 full and complete, 131-134 meaning of, 131, 132 full and complete does not include passengers, 131 where goods destroyed by fire after shipment, 132, 133, 331 who may fill up after destruction by fire, 132, 133, 331 if less than carrying capacity, 132 coming from inland, special exceptions for, 124, 125, 213 " ready to receive " not necessarily in loading-berth, 121, 122 must be ready at ordinary, not unexpected, times, 123 shipment of cargo of customary nature, 125, 131 where to be stowed, 134, 135 shifting, landing, and restowing cargo once loaded, 137 marks on, errors in, 63, 68, 143, 209 shipowner to stow properly, 13b, 137 employment of stevedore to stow, 137, 138-141 not shipped, bill of lading signed for, 60 shipper may be excused by restraint ot princes, 217 non-arrival in ship, evidence of breach of contract, 240 and (probably) evidence of negligence, 240 on non-arrival, where onus of proof lies, 240 captain's duty to take care of, on voyage, 257 lien for expenses in preserving, 258 captain's power to sell damaged, 258 transhipment of, 260 captain's power to raise money on, 262 captain's power to sell, to raise money, 262, 263 and bottomry and respondentia, 263, 264 pledged without authority, 265 what can be bottomried, 264 loss of, when bottomried, 264 jettison of, 266, 268 and general average, 268 ; Appendix IV., 424 general average, sacrifice of, 268, 271 damaged by water to extinguish fire, 271, 421, 424 burnt as fuel, 271 damaged by water during repairs to propeller, 272 warehousing of, and general average, 275, 276 unloading and reloading in port of refuge, 275, 276 ; and Appendix IV., 425 s r p 29 450 INDEX. CARGO — continued, when liable for salvage, 280 liable for life salvage, 280 shipowner's lien on, for salvage expenditure, 258, 281, 355 no duty to exercise this lien for salvors, 277, 280 only liable for freight, in case of collision, 281 not liable for damage, in case of collision, 281 charterer's duty to j)rovide for discharge of, 283 shipowner not bound to separate bulk cargo, 283, 285 mixed and unidentifiable, rights of consignees as to, 287 not taken by consignee at port of discharge, 290,291, 325, 326 abandonment of, after warehousing, 294 landed for assortment, 292, 293 ; Appendix II., 395 entered for overside delivery, 292 ; Appendix II., 394, 395 damaged, claims for, when to be made, 209, 295 damaged, freight for, 326, 329, 330, 332 cannot be abandoned when not worth freight, 329, 332 if lost, when freight payable for, 318, 321, 322, 328, 330 short delivery, clause to deduct value from freight, 330 othei-wise no such right of deduction, 330 shrinking or swelling, freight for, 336 belonging to shipowner, freight for, 336 on ship's account, no lien on, for freight, 36 lien for freight, 355-359 no lien to holders of bill of exchange drawn against it, 359, 360 damages to, how assessed, 370-373 profits on, when included in damages, 371, 372 damages for failure to load, 364-366 damages for shutting out cargo, 101, 365, 366 Cargo, Deck, 134, 135, 266 and general average, 269, 270 See Deck Cargo. CARGO-OWNER, captain's duty to, 244, 245, 257, 258 when captain is agent for, 244, 245 when captain should communicate with, 247-250 and deviation or delay on voyage, 250 and transhipment, 260 and cargo sold to raise money, 258, 262 and cargo pledged without authority, 263, 265 and jettison, 266, 269, 270 captain must furnish particulars of general average to, 196, 277 and general average, 266, 269, 271 when he can sue for general average, 278 has no lien on ship for general average, 278 when liable for general average, 279 when liable for salvage, 280 when and whom he can sue for collision, 281, 282 not liable for collision, 281 not claiming cargo, 290, 291 how far lighterman is his agent, 141, 293 when liable for freight pro rata, 331-335 and see Consignee ; Shipper. INDEX. 451 CARRIER, aa agent for vendee, 183, 187 liability for goods carried, 198 shipowners who are not, their liability, 198-203 whether lighterman is, 200, 201 warehouseman who undertakes lighterage, 198, 200 his lien, how affected by stoppage in transitu, \11 his lien, effect of end of transit on, 187 refusal to deliver, effect on stoppage in transitu, 182 wrongful delivery and stoppage in transitu, 181 ending transit by agreement with vendee, 183, 187, 188 Cart Note, Appendix II., 391 Cash Receipts, not documents of title, 180 Cattle, regulations preventing arrival at port of loading, 126 or preventing delivery at port of discharge, 217, 218, 268, 272 general average sacrifice of , 268, 272 freight on fodder for, 338 Causa proxima and Causa remota, 204, 206 Causes beyond Charterer's Control as excepted perils, 211 Certificate of surveyor, proof of seaworthiness, 135, 210 Cesser Clause and agent's liability, 35, 36 not incorporated in bill of lading, 57, 58 may be inoperative, if no effective lien given, 66, 147 and even if charterparty specifies form of bill of lading, 148 effect of, 146-149 co-extensive with lien, 147 when charterer is consignee, 148 common form of, 147 and demurrage, 149-159 CHARTERPARTY, definition of, 1 etymology of word, 1 when signed, 1 stamps on, 1 ; Appendix III., 407 assignability, or vicarious performance of, 3, 42 when a demise or lease of ship, 3-7 rarely in modem times, 4 effects of a demise, 3, 4, 5, 49, 53, 141, 195, 242, 278, 281, 346, 347, 348, 421 illegality of, 10-13 construction of, 14-28 by what law construed, 16-19 when construed in the light of customs. 15, 19-26, 243 variation of, by parol evidence, 15, 20, 25 explanation of, by parol evidence, 20, 22, 29 alterations in, effect of, 28 printed forms of, how construed, 26, 27 rule as to ejusdem generis, 211, 212 parties to, 29-71 who are principals in, 29-32 statement as to parties in, when final, 29 when agent binds his principal, 32, 33 29—2 452 INDEX. CHARTS RP ART Y—coHfi«ifefZ. when agent personally liable as principal, 33-36 liability of agent for undisclosed principal, 36 agents for Crown not personally liable, 37 power of managing owner to effect or vary, 38 powers of broker to effect, 38, 39 powers of captain to effect, 41 powers of mortgagor to effect, 43 who are bound by, 42-44 when binding on part-owner, 42 when binding on purchaser, 42 when binding on mortgagee, 43 whom shipper under, can sue, 44-45 position of shipper who is not charterer, 49-53 representations and undertakings in, 19, 72-100 repudiation of, 73-75 conditions implied in, 82-100 undertaking of seaworthiness in, 82-90, 212, 213 operation of charter before loading, 101 loading under. 111, 112, 123, 128 when ship is ready to load under, 112, 121 notice of readiness to load under. 111, 122 loading under, and exceptions, 123, 124, 125, 213 cargo tendered must comply with, 125 relations of shipper, shipowner, and charterer as to stowage under, 136-141 exceptions in, how construed, 203, 213, 240 unloading under, 283 who is liable for demurrage under, 314 who bound by lien for freight in, 357, 358, 359 forms of charterparties. Appendix I., 389 and see Charterer ; Demurrage ; Freight ; Loading ; Unloading ; Voyage, &c. CHARTER AND BILL OF LADING, 1, 2, 8, 44-59 when they differ, 45, 47-49 indorsee of bill of lading differing from charter, 53-55 when one incorporated in other, 55-59, 314, 358 Charter and Sub-charter, position of shipper, 49-53 Charter, other Conditions, as per, 46, 50, 56-59 Charter, Time, seaworthiness in, 86 freights in, 340-343 clauses in, 340-343 provision for cessation of hire, 340, 341 no cessation unless so provided, 341 meaning of "month," 341, 342 expiration and re-delivery, 342, 343 inaccuracy of term " re -delivery," 4 mode of payment of hire, 343 withdrawal of ship for non-pavment, 343 lien for hire due, 343, 361 Charter, without Prejudice to, 45, 46, 51, 65, 66, 67, 347, 348 Chartered Freight : see Freight. Chartered Voyage and carrjing voyage, 101 INDEX: 453 CHARTEREE, definition of, 1 position of, under demise charter, 3-7, 141, 195, 242, 278, 281, 346, 347, 421 position of, under charter not a demise, 3-7, 346, 347 who is also a shipper, position of, 44-49 when liable to shippers of goods, 49-53 duty not to ship dangerous cargo, 98, 99 or cargo involving delay to ship, 98, 100 duty to present bill of lading for signature, 66, 125, 296 liability for delay in such presentation, 66, 325, 375 duty to name place of loading, 113, 114, 116, 120 entitled to receive notice of ship's readiness to load. 111, 122 duty to furnish cargo, 123-127 when excused from loading, 124, 125 prevented from bringing cargo to port of loading, 125 obligation to load, when fulfilled, 124, 125 damages for failing to load cargo, 364-370 to provide full and complete cargo, 131-134 to provide broken stowage, 134 and passengers in cabins, 131, 135 position as to stowage, 136-141 whether stevedore is servant of, 138-141 and cesser clause, 146-159 who is consignee, and cesser clause, 148 when can be sued for damage to goods, 242 captain's power to bind, on voyage, 245 when can sue for general average, 278 when liable for general average on ship or freight, 278 when has lien for general average, 278 when entitled to salvage earned by chartered ship, 5, 281 duty to provide for discharge of cargo, 283 not entitled to notice of readiness to discharge, 112, 284 agreeing to load or unload in fixed time, 296, 304 when time not fixed, 307-314 may keep ship all her lay-days, 296 not excused by illegal orders of authorities, 305 when liable for demurrage, 314 freight, when payable to, 346-349 Charterer, Bills of Lading as presented by, 50, 65, 66, 67, 347, 348 Charterer, Freight to be collected by, 339 Charterer's Agent, consigned to, free of Commission, 127 Chartering Broker, 38, 39 C.I.F. = a price covering cost, freight, and insurance, 55, 166 effect of sale c.i.f. before shipment, 165, 166 performance of such contract of sale, 166, 167 performed by tendering documents, 167 when property passes thereunder, 166 when price payable, 167 " shipping documents " thereunder, 166 what is proper bill of lading under, 167 advance freight under bill of lading, 167 what is proper policy to tender, 167 454 INDEX. C.I. P. — continued. what transit bill of lading must cover, 166 assignment of policies under, 167 " all risks " policies under, 167 liability of vendor if policy invalid, 167 seller pays all expenses of delivery, 166 seller's remedy on buyer's refusal, 167 applicability of Sale of Goods Act, 167 Civil Wab ; c/. War, preventing loading, may excuse charterer, 216, 217 preventing arrival of cargo for loading, 217 Claims for cargo damaged, when to be made, 209, 295 Class of ship on register, condition precedent, 75, 76 Clean Bill of Lading, 141, 144 Clean Receipt, 141, 144 ; Appendix II., 392 Clearances, failure to procure, 125, 127 when procured by charterers, 127 Coal, ordered by master, who liable for, 245 See also Bunker Coal. Coal Cargo, special exceptions for, 213 Collateral Warranty, 19, 72 Collected by Charterers, Freight to be, 324 Colliery Guarantee, 3, 113, 120, 297, 302 how it works, 3, 113 how far incorporated in charter, 3, 57, 113 delay before reaching berth under, 113 " to load on conditions of," 297 what is usual guarantee at Grimsby, 3 Colliery Working Day, 302 Collision, exception of, 223 when a peril of the sea, 219, 221, 223 cargo not liable for damage by, 281 cargo-owner may recover damages, 281, 282 liability for, under demise charter, 5, 281 Commercial Court, 381-388 establishment of, 381 rules constituting, 381-383 procedure of, 383-388 Commercial purpose of vovage, frustration of, 82, 91, 92, 93, 94, 95-97, 260 Commission, consigned to charterer's agents, free of, 127 See also Broker. Commission Agent may stop in transitu, 175 Commixtio, when doctrine applies to unidentifiable cargo, 287-289 INDEX. 455 Communication by captain with owners, when necessary, 246, 247 with goods owner, when necessary, 247-250 Compulsory Pilotage, 198, 423 present law to be altered on 1st January, 1918, .423 Conclusive Evidence Clause, 61, 62, 330 Condition, Shipped in good, 63, 144, 145 Conditional Indorsement, effect of, 169 Conditions, Implied, in contract, 82-100 Conditions Precedent in Charter, 72-81 when oral representation may be treated as, 19, 72 effect of waiver, 73 repudiation for breach of, 73-75 functions of Court and jury as to, 73 statements, as to ship's register, when, 75 ship's tonnage, when, ^6 ship's name, when, 79 ship's national character, when, 79 ship's whereabouts, when, 79-81 ship's time of loading or sailing, when, 79, 80 Conditions Precedent in Bill of Lading, 72 Consideration, what necessary for indorsement defeating stop- page in transitu, 178, 179 no, for indorsement of bill, effect of, 191 Consigned to Charterer's Agents free of Commission, 127 CONSIGNEE, holding bill of lading, statutory position of, 68, 193-197 who is also charterer, effect of cesser clause, 148 his position in Admiralty Court, 194-197 can sue in tort for negligent carriage, 196, 241 can sue in contract for negligent carriage, 195, 241, 242 when liable for general average, 279 cannot be called on to accept goods before ship's arrival, 283 entitled to reasonable time to receive goods, 285 not claiming cargo, 290, 291 right to delivery direct from ship, 286 where goods are landed for assortment, 292, 293 where goods are entered as overside goods, 292 disputing charges of landing, 293 demanding goods, when part landed, 291 how far lighterman is agent of, 141, 293 not having property, cannot be sued, 294 not having property, cannot counterclaim, 294 when liable for demurrage, 314, 315, 316 preventine delivery of goods, 290, 291, 325, 326, 332 when must pay freight, 353, 354, 357, 358 taking delivery under bill of lading, to pay freight, 353, 354, 358 who is cargo-owner, 353 when bound by lien for freiglit in charter, 357, 358 general, in France, 344 Consignor : see Shipper ; Cargo-owner. 456 INDEX. Construction of contract of affreightment, 14-28 of printed conditions on passenger tickets, 9 provinces of Coiirt and of jury, 15, 73 by what law, 16-19 by law of ship's flag, 16-19 form of contract, effect of erasure, 26, 27, 28 effect of whole document to be considered, 15 consideration of deleted passages, 27 writing and printing, 26, 27 size of type of different parts, 15 Eule as to ejttsdem generis, 211, 212 Constructive Notice, in mercantile documents, 50, 56 Constructive Total Loss, after previous damage, 272 Contact with other Goods, 136, 227 Contraband, 13, 14 Contract of Affreightment : see Affreightment. Contractus, Lex Loci, 16 Convenient Speed, to proceed with, 80-81 Co-owners, remedies against managing owner, 37, 38 Coppered, A 1, 81 CouNTT Courts, Jurisdiction of, 379, 380 Court, province of, in construction of contract, 15, 73 Covered by Insurance, Damage capable of being, 209, 210, 234, 268 Craft, risk of, 208 Cranes and dock companies : Appendix II. Crew, position under demise charter, 3, 7 under charter not a demise, 4, 5, 6 by whom engaged and discharged, 39 barratry of, 222, 230, 231 negligence of, 230 Crime of master or crew, when barratry, 230 Cross-bunker, stowage in, 132, 134 Crown, charters by agents for, 37 Custom, effect of, in construction of contract, 15, 19-26, 319 evidence of, when admissible, 19-26, 319 marks of binding, 21 means settled usage, 22, 129, 130, 309 law of foreign country does not constitute, 21, 115 arbitrator has power to find, 22 cannot explain well-known terms, 20, 24, 319 when they bind persons ignorant of them, 26 test as to repugnancy, 25 of port of loading, 23. 129 of port of discharge, 23, 24, 129 in relation to payment of freight, 335, 337, 353 INDEX. 457 Custom — continued. as affecting place for loading or discharge, 113, 114, 115, 119, 120, 121 wliether one shipper in port can create, 22, 130 effect of " contracting out " on, 22 "any custom to the contrary notwithstanding," 20, 23, 127, 307 See also Belfast, Bristol, Glasgow, Gloucester, Grimsby, Hull, Leith, Liverpool, London. Customary Dispatch, 119, 120, 121, 307 Customary Manner, 119, 120, 124, 125, 127, 307, 309 Customary Turn, 130, 131, 305 D.W.C. = dead-weight capacity, 76-78, 132 Damage, meaning of, 209 Damage capable of being covered by Insurance, 209, 210, 234, 268 Damage, Ship, 210 Damage to Cargo, who can sue for, 241 who can be sued for, 242 limitation of liability for, 371 ; Appendix IIL, 420-422 claims arising out of, 295 by water and general average, 271, 421, 424 by discharaing to repair ship, 275, 276 effect of, oil freight, 329-330 carrier's liability for, 198 onus of proof as to, 240 measure of damages, 370-372 Damages, rule of, 363 for breach of oral agreement including contract, 19, 72, 75 for goods shut out, loss of profit on, 101, 365, 366 interest on freight deposited under invalid claim, 294 for not presenting bill of lading, 66, 325, 375 for goods not shipped, 364 for failure to deliver goods, 370 for delivery of goods damaged, 370 may include advance freight, 322 for failure to load a cargo, 364 when no other ship available, 366 mitigation of damages, 297, 298, 367-370 penalty clause in charters, 364, 365 to cargo, how assessed, 370-373 "not to exceed invoice cost," &c., 209, 372 for not signinsT bills of lading, 375 limitation of, by statute, 198, 371, 420-422 limitation action, 371 and see Freight, Dead. Damages for Detention : see Detention. Dangerous Goods, implied contract not to ship without notice, 98, 99 includes goods involving delay to ship, 98, 100 what will be notice of, 98, 99 and see Appendix IIL, 415, 416 458 INDEX. Day, normal meaning of 300 meaning in demurrage clauses, 300-303 part of, counted as whole, 300, 302, 342 part of, counted as half, 302 Sundays and holidays, 301 working days, 301, 302 working-day of twenty-four hours, 302 working-day of twenty-four consecutive hours, 302 colliery working, 302 weather working, 302 running, 300, 302 length of, usually defined in colliery guarantee, 302 surf day, 301 to average days for loading and discharge, 300 Dead Freight : see Freight, Dead. Dead Weight, 76-78, 132 " per ton D.W.C. as above," 133, 328 Deck Cargo, when proper, 134, 135 custom to load, 22, 134 effect of carrying without authority, 134, 266, 269, 270 similar to effect of deviation, 134 carrying, not barratry, 231 and general average, 269, 270 in coasting trade, 269 in timber trade, 270 Delay in contract, effect of, 91-98, 212, 250-252 captain's power to, on voyage, 254, 255 cargo that involves delay to ship, 98, 100 war assumed to involve abnormal, 92 but not so strikes, 92 Delivered, Freight payable by Net Weight, 337 freight payable on intake measure of quantity, 337 freight payable on delivery per ton shipped, 337 DELIVERY OF GOODS, to whom shipowners may safely make, 165, 286 captain need not give notice of readiness, 112, 284 when bill of lading not available, 286 effect of, by shipowner, 286, 287 shipowner's duty when conflicting claims for, 286 " as fast as steamer can deliver," 119, 120, 307 " as fast as master shall require," 307 " as customary," 308 " according to the custom of the port," 307, 308 oral evidence explaining, 19-24, 127, 128, 130, 131 effect of wrongful, on stoppage in transitu, 181 what is to prevent stoppage in transitu, 183, 184 to forwarding agent, effect of, on stoppage intransitu, 184, 185 when goods mixed and unidentifiable, 287-289 expense incidental to, as of fresh bags, 295 contract to pav demurrage, implied from, 314, 315 what earns freight, 318, 326, 327, 329 in manner approved by consignee, 326 of timber at Grimsby, freight due on complete, 331 to person who has deposited freight, 294 INDEX. 459 DELIVERY OF GOOT)^— continued. damaged, effect of, on freight, 329, 330 short, effect of, on freight, 330, 331 short-shipped, effect of, on freight, 330, 331 short of destination, effect of, on freight, 331-335 when concurrent with payment of freight, 339 contract to pay freight, implied from, 347, 352, 353, 354 to consignee, contract implied from, 314, 315, 347, 352, 353 freight due before or after, no lien for, 356 without payment of freight, waives lien, 358, 359 Delivery Order, as document of title, 180, 181 and bill of lading, 180, 181 Demise of Ship, when charter is, 3-7 rarely in modern times, 4 position under, of charterer, captain, crew, 4, 5, 141 effects of construction of charter as, 4, 5, 49, 53, 141, 195, 242, 278, 281, 346, 347, 421 hirer not liable for ship's loss by act of God, 8 DEMURRAGE, what is, 149-151, 296 stipulations benefit charterer as well as shipowner, 296 charterer may detain ship at price of paying demurrage, 296, 305 distinguished from damages for detention, 150, 151, 296, 299 query if charterer may detain ship at price of damages for detention, 296, 305 when disputed, and operation of cesser clause, 152-159 when payable, 298 effect of exceptions on liability for, 302, 303, 306 how calculated, 299 " per like hour," " per like day," 299 clauses as to, when applied to loading and unloading, 299, 300 under charter, who liable for, 56, 58, 314 under bill of lading, who liable for, 315 and cesser clause, 149-159 at port of loading, 149-152 due to need of restowing cargo, 304 due to necessity of taking stiffening,. 305 who can sue on implied contract to pay, 316 contract to pay when implied from delivery, 314, 316 no lien for, at common law, 360 lien for, by express agreement, 149-159, 361 customary for lighters in London, Appendix II., 392 DESCRIPTION OF GOODS, effect of "weight and contents, etc., unknown," 60, 144, 145 Despatch: see Dispatch. Detention, Damages for, what are, 296 from nature of cargo, 98, 100 from delay in presenting bills of lading for signature, 66, 125 375 when payable, 296, 299 distinguished from demurrage, 150, 151, 296 demurrage rate is 'prima facie measure, 299 460 IXDEX. Detention, Damages for — continued. and cesser clause, 149-159 no lien for, at common law, 360 lien for, by express agreement, 361 Detention by ice, 108, 208, 305, 341 by railways, 208 Deviation, implied contract to proceed without, 82, 212, 250 when captain may make, 250, 254 when occasioned by unseaworthiness, 213, 252 when not barratry, 231 to save life allowed, 250 to save property, when allowed, 250 towage is, 250 communication with sliii) in distress is not, 250 effect on exceptions, 213, 250, 251 damage occurring on, liability for, 251 delay to prevent damage to cargo not a, 254, 255 its effect on bottomry bond, 264 its effect as to claim for freight, 251 similarity of unauthorised carriage on deck, 134 Diligence, implied contract to use due, 82, 91-97 DISBURSEMENTS, advances for, whether freight or loan, 321-323 Dischaege : see Unloading. Dispatch Money, how calculated, 300, 302 Dispatch, usual, in Loading, 125-127, 307 Dispatch, usual, in Discharging, 125-127, 307 charterer may keep ship all her lay-days, 296 " to be discharged with all," 307 DISTRESS, PORT OF, law as to powers of master in, 17, 18, 263 Dock, as ordered on arriving, 113, 119, 120, 121 " ready in dock," 121 Dock Dues and Charges, how paid. Appendix 11. , 391 Dock Warrant, effect of, 180 Docks, if full, position of shipowner, 106, 112-116, 305, 311 in London, practice of. Appendix II., 390 and stevedores. Appendix II.. 392 their cranes, liability for. Appendix II., 392 damage in, when a peril of the sea, 221 Document of Title, meaning of, 180 Dunnage, 86, 135, 136 owner may supply cargo as, 136 Ejusdem generis, rule as to, 211, 212 Embargo, effect of, on contract, 92, 94, 95-97, 106, 340 an arrest of princes, 216 effect of, on time-freight, 340 INDEX. 461 Employment of ship, by wliom settled, 38, 39 Enemies, King's, 215, 218 Engagement of Goods in ship, effect of, 101 and discharge of crew, by whom, 39 of freight, 38, 39 entry and clearance of vessel, by whom, 39 Equipment of Ship, by whom directed, 39 Erasures in charter or bill of lading, 26-28 erasures after signature, 28 Error in Judgment by master, 209 Estoppel, "shipped in good order," 145 EXCEPTED PERILS, 203, 206-213 in charter, 203, 204, 206, 213 apply before loading, 102, 124, 125, 213, 239 when they cover failure to load, 124, 125 only apply within scope of charter, 239, 240 are for benefit of both shipowner and charterer, 203, 213 unless intended only to protect one, 203 not incorporated in bill of lading, 57, 58, 59 in hill of lading, 203, 206-213 history of, 201, 202 and express provisions in charter, 203 list of those judicially interpreted, 207-211 burden of proof as to, 219, 240 effect of deck stowage on, 134, 239, 266 their relation to implied undertakings, 82, 212, 250, 251 effect on liability for demurrage, 302, 305, 306 do not apply when ship on demurrage, 299 unless clearly worded so to apply, 299 relation to " ship lost or not lost," 318 as to seaworthiness, 59, 82, 85, 88, 89, 90, 210 and unreasonable delay, 82, 94, 250, 251 Explosives, shipment of, 86, 98, 99 and see Appendix III., 415 Evidence, how far admissible to explain contract, 15, 16, 20, 21 » 25, 29, 319, 320 F.O.B. = free on board, the goods then being at the risk of the purchaser, 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, 180, 181 Faults in Management, what is included in, 234-237 Final Sailing, 243 Fire on Board, 207, 228, 229, 271 FIRE, goods lost after shipment before sailing through, 132, 133, 322, 331 assessment of damages after, 365 462 INDEX. FIRE — continued. on board and general average, 207, 229, 271, 421 exception of, 207, 229, 271 danger of inserting exception in bill of lading, 229 method of avoiding such danger, 229 exception under Merchant Shipping Act, 228, 421 not dependent on fidfilment of warranty of seaworthiness, 228 onus of proving absence of fault or privity, 228, 420 whose fault or privity in case of a Corporation owning ship, 228, 420 shipowner may contract himself out of exemption, 229, 420 but only by clear contract to that effect, 229 " damage by reason of " includes smoke and water damage, 228, 421 caused by unseaworthiness, 228, 229 caused by lightning, is act of God, 229 Fitness for Cargo : see Seaworthiness. Fixed Time, to be loaded in, 304 charterer may keep ship all her lay-days, 296, 305 to discharge in, 304 Flag, Law of Ship's, as law of construction, 16-19, 263 Force majeure, 208 Foreign Ship under English charter, 16-19, 331 Forms of charterparties and bills of lading. Appendix I., 389 Forthwith, 102, 307 Forwarding Agent, delivery to, and stoppage in transitu, 183, 184-186 Forwarding Cargo and general average, 274 France, general consignee in, 344 "certificate of innavigabUity " in, 327 " Vice propre " as to a ship, 198 Fraud, avoiding charter, 72 efeect on bill of lading, 68, 69, 191, 192 Free of Commission, 127 FREIGHT, definition of, 1, 318 may not be explamed by usage, 20, 23, 24, 319, 320 does not include passage-money, 24, 320 when earned, 318, 322, 325, 326, 327, 329, 331 not payable if goods lost, 318 merchantable condition as test of right to, 318, 326, 329, 330 oral evidence to explain, when admitted, 20, 23, 24, 319, 320 on full and complete cargo per ton d.w.c, 328 mode of payment, to be fixed bv custom, 20, 23, 25. 319, 331, 335, 337, 353 under English charter of foreign ship, 17, 331 for cargo belonging to shipowner, 336 amount of, how calculated, 335-338 INDEX. 463 FREIGHT— continued. "per ton gross weiglit delivered," 59, 337 "per ton shipped payable on delivery," 337 "per intaken Gotlienbiu'g standard," 337 amount of, where goods shrink or swell on voyage, 336, 337 and hydraulic presses, 337 alternative, 339 payable after arrival before delivery, 326 lump sum freight, 327-329 reasonable sum payable if none agreed, 335, 350 on fodder carried for cattle, 338 consignee may ascertain what goods are on board, 339 when payable, 339 payment of, and delivery of goods, concurrent, 339 complete delivery as condition precedent, 329 when shipowner entitled to, 339 in case of stoppage in transitu, 189 "to be collected by charterers," 339 " to pay out of freight collected," 319, 339 clauses as to, in time and voyage charters, 320, 321, 322, 323, 324, 326, 328, 330, 336, 337, 338, 340-343 clauses as to, in bills of lading, 320, 321, 325, 326, 330, 336, 337, 338 to whom payable, 344 when payable to shipowner, 344 shipowner may give authority to collect, 344 master's or broker's authority to collect, 38-41, 345 payment to master or broker, when good, 38-41, 345, 346 payment before due, effect of, 345 when payable to captain, 345 when payable to third person, 346 payment of, to obligee of bottomry bond, good, 346 payment of, into Court of Admiralty, when good, 346 when payable to charterer, 346 assignment of, effect of, 349 assignee of share of ship entitled to, 349 when payable to mortgagee of ship, 350 when payable to mortgagor of ship, 350 when underwriters on ship entitled to, 42, 334, 349 by whom payable, 351-354 when payable on contract implied from taking delivery of goods, 353, 354 implied contract to pay, by shipper, 352 when shipper freed from contract to pay, 352 consignee, when liable to pay, 353 indorsee of bill of lading, when liable for, 354 vendor stopping in transitu, when liable for, 189 where cargo transhipped, 264, 326 under through bill of lading, 69, 70, 318, 319 how affected by blockade, embargo, bad weather, delay for repairs, 340 guarantee of, when ship lost, 318 when payable, " ship lost or not lost," 318, 321, 324 general average, sacrifice of, 273 and general average expenses in port of refuge, 274, 275 person entitled to, and general average, 278 464 INDEX. FREIGRT— continued. chartered freight on round voyage, 278, 318 free, authority to master to carrv, 64 stop for. Appendices II., III., 393, 418, 419 release for, Appendix II., 396 lien for, by common law, 319, 355-358 lien for, under demise, charter, 4 due on delivery of goods, lien for, 355 due after delivery of goods, no lien for, at common law, 356 lien for, on what goods, 357 lien for, for what amount, 357 lien for, how waived, 358 lien for, how maintained, 359 taking payment of, by biU, waives lien, 358 delivery without payment of, waives lien, 359 in charter, lien for, against whom, 358 release for, 396 when goods may be sold to release lien for, 294, 359, 419, 420 FREIGHT, ADVANCE, what is, 321 is advance of total freight, 323 or loan, which a payment is, 321, 322, 345 insurance of, 322 common stipulations as to, 321, 322-324 due on signing bills of lading, 321, 375 payable in advance "if required," 322, 324 payable three days after sailing, 322 on cargo burnt, 322 if ship lost, 322 when recoverable, 322 and final sailing, 243 , no lien for, at common law, 322, 356 lien for, by express agreement, 322, 361 in c.i.f. sales, 167 Freight, Back, what is, 325 Freight, Dead, what is, 374 no lien for, at common law, 359 lien for, by express agreement, 361 Freight-Xote as evidence of terms of shipment, 8 FREIGHT, FULL, when shipowner is entitled to, 326 earned when shipowner is ready to deliver, 326, 328, 329 how earned if there is a lump sum as freight, 327-329 earned by means of transhipment, 326 due when shipper prevents delivery, 325, 326 for goods delivered damaged, when payable, 329, 330 earned, if all goods shipped delivered, 329, 330 in full for the voyage, 339 Freight, Lump, what is, 327 when earned by shipowner, 328, 329 what method of delivery entitles to, 328 and bills of lading for parcels, 59, 328 INDEX. 465 FREIGHT, PRO RATA, when payable lor short delivery, 331 when payable for delivery short of destination, 331-335 not payable without special agreement, 332 agreement to pay, from what implied, 332 effect of arrest of goods on, 332 effect of sale of goods on, 333 and detention by ice, 333 when ship abandoned, 332, 334 in prize cases, 335 Freight and all other Conditions as per Charter, 50, 56 Freight to be collected by Charterers, 339 Freight' IN full for Voyage, 339 Freight under Time Charter : see Charter, Time. Freight, highest, on same Voyage, 339 Freight payable in London, 23, 320, 340 on bill of lading quantities less two per cent., 339 Freight payable on Net Weight delivered, 337 per ton gross weight shipped payable on delivery, 337 Freight payable on Intake Measure of Quantity delivered, 337 per ton delivered, in German law, 17 Freight, at any Rate of. Master to sign Bills of Lading, 45, 46, 50, 51, 65, 66, 67, 347, 348 at current or any rate, 67 From Ship's Tackles, 127, 209, 295, 394 Frost, an act of God, 214, 220 not a peril of the sea, 220 preventing loading, 124, 125 affecting wet cargo, 132 Frustration of Adventure, 80, 82, 91, 92, 93, 94, 95-97, 252, 260, 340 legal principle involved in phrase, 13, 92, 95-96 application to time charterparty, 96-98, 340 Fuel, Cargo used as, and General Average, 271, 425 Full and complete Cargo, 131-134 with guaranteed dead-weight capacity, 328 Full Reach of the Vessel, 134 General Average : see Average. Glasgow, Practice of: see Appendix II., 401 Gloucester, custom of port, 108, 119, 298 God, Act of : see Act of God. Gold, silver, diamonds, watches, jewellery, or precious stones, liabUityfor, 198, 421 Good Condition, shipped in, 63, 144-146 466 INDEX. Goods : see Cargo. do not include passengers' luggage, 407 Goods Owner : see Cargo Owner. Gothenburg Custom, as per, 337 Government Action, preventing loading, 123, 126, 210, 305 when an arrest of "princes,"' 216, 217 Government Pass, for loading, 123 Grimsby, customs of port of, 20, 127, 331 Ground, taking the, when a peril of the sea, 222 Gunpowder, stowage of, 86, 98 Handbills as part of contract of affreightment, 8 Harter Act (U.S.A.), 90, 145, 235 ; and Appendix V., 429 Heat, exception of, 227 Highest freight on same voyage, 339 Here : see Charter, Time. Holidays, Sundays and, excepted, 298, 299, 300, 301, 302 Saturday afternoon not within general holidays, 301 a wet day not a holiday in itself, 301 Hours, meaning of, in demurrage clauses, 301, 302 how coimted, 301, 302 Hull, practice of port of : see Appendix II., 402 custom as to wood cargoes, 404 custom as to grain cargoes, 404 Hydraulic Presses and freight, 337 Ice, preventing loading or unloading, 124, 125, 126, 305 port inaccessible on account of, 108 causing delay after loading is completed, 125 and pro rata freight, 333 expense of breaking, not G. A. expense, 425 detention by, 208 Icebergs, a peril of the sea, 221 justify delay or deviation, 255 Icebound Ports, duty of ship loading or discharging at, 107, 108 Illegal Acts, when barratry, 230, 231 orders of authorities do not excuse charterer, 305 Illegality by English law, 10-13 by foreign law, 10, 312 seizure by revenue officers, prima facie proof of, 11 as affecting charterer's refusal to load, 124, 126 when freight recoverable on ground of, 325 IMPLIED CONTRACTS, in contract of affreightment, 82-101 effect of breaches of, 82, 85 effect of breach as to statutory exemption by reason of fire, 228 INDEX. 467 IMPLIED CONTRACTS— con gross landing weight, 337 he or they paying freight, 57 highest freight on same voyage, 339 hinder or prevent, 211 if reasonable means have been taken, etc., 90 if required, 322, 324 if sufficient water, 110 immediately, 102 improper opening of valves, 209 in all (March) (May), 80, 122 in customary turn, 122, 125 in full for the voyage, 339 in good condition, 144 in regular turn, 113, 118, 130, 131, 305, 367 in the usual time, 307 in the usual manner, 307 in turn to deliver, 131 inaccessible (port), 108 indorsement in blank, 161 indorsement in full, 161 inevitable accident, 214 inherent vice, 198 injurious effects of other goods, 207, 227 intake measure, weight, etc., 337 intermediate port, 253 King's enemies, 198, 202, 215, 218 lawful merchandise, 133 lay-days to count, 152 494 INDEX. WOEDS AND PHRASES OF COMMON OCCURRENCE— continued. leakage, 227 less advances in cash, 356 line, liner, 261 loading, 21 loading excepted, 152 lost or not lost, 70, 318, 321, 322 Mabon's day (7iow obsolete), 302 navigation, 219, 234-237 navigation and management, 234-237 necessaiy, 40, 246, 338 necessary ordinary expenses, 351 net invoice price of goods, 209, 372 net weight, 337 not later than all (March), 80 now at anchor in the port, 81 now at sea, 80 now on the stocks, 80 now sailed or about to sail, 80 obstructions, 108, 211 on intake measure of quantity delivered, 337 on gross weight at Queen's beam, 25 on net weight delivered, 337 on or before, 81 on owners account, 351 on signing bills of lading, 321, 322, 375 opinion of the master, in the, 108 or other cause, etc., 211-212 other conditions as per charter, 50, 56, 58, 59 otherwise, 210 party to be notified, 284 pay out of freight collected, 319 payable according to intake measure, 337 payable in London, 23, 320, 321, 324, 340 payable per ton d.w.c, as above, 133, 328 paying freight as per charter, 57, 315 penalty for non-performance of this agreement, 363 penalty proved damages not exceeding freight, 364 per ton gross weight delivered, 59, 337 perils of the seas, 219-224 pilferage, 227 port charges, 244 prevent or hinder, 211 preventing or delaying loading, discharge, 125 primage and average accustomed, with, 320 proceed with all convenient speed, 79-81 proceed to a port and there load, 101, 104, 114 proceed to a dock and there load, 113 proceed to a ready quay berth, 112 proceed to a safe port, 104 proceed to a port as ordered, 104, 114 quality unknown, 144 ready in dock, 121 ready to load, 121, 122, 298 ready for stiffening, 121 INDEX. 495 WORDS AND PHRASES OF COMMON OCCURRENCE— continued. ready to receive cargo, 80, 121, 122 ready to receive cargo in all May, 80 reasonable time, 308 reporting day not to count, 112 restraint of princes, 124, 216 "reversible," 300 right delivery of cargo, 329 risk of craft, 208 risks of steam navigation, 207, 219 running day, 300-303 safe port, 104 safely, 108 ship damage, 210 ship lost or not lost, 70, 318, 321, 322 shipping documents, 166 so near as she can safely get, 105-108, 1 15 spiles, 207 steamer a month, a, 304 stoppage at collieries, 225 strikes, 224 Sundays and holidays excepted, 300-303 surf -day, 24, 301 suspend, suspension, 12, 343 sweat, 227 taken on board, 62 telegraphic authority, 34 thieves, 225 " to arrii e," 40 to bearer, 161 to be addressed to charterer's agents, 285 to be collected by charterer, 339 to be discharged 'with all convenient dispatch, 307 to load in days, 304 to load in regular turn, 113, 118, 130, 131, 305, 367 to load on conditions of colliery guarantee, 57, 113, 120 297 to order, 161 ' to pay out ot freight collected, 319, 339 to sail before — — , 79 to sail with all convenient speed, 80 to sign bills of lading as presented, 50, 51, 65-67 " two voyages per month, fortnightly," 304 ullage, 207 unavoidable, 89, 210 unavoidable accidents and hindrances, 125, 210 unseaworthiness, 86 " usual colliery guarantee," 3 usual dispatch, 112, 113, 114, 307 value unknown, 69, 144, 145 vice prop re, 198 weather working day, 20, 302 weight unknown, 144, 338 wilful misconduct, 230 with all convenient speed, 80 with all dispatch, 307 496 INDEX. WORDS AND PHRASES OF COMMON OCCURRENCE— conUniied. without prejudice to charter, 45, 46, 50, 51, 65-67, 347 workmen essential to discharge, 225 WoKKiNG Days, and lay-days, 300-303 weather, 20, 302 working day of twenty-four hours, 302 working day of twenty-four consecutive hours, 302 colliery, 302 Worms, whether a peril of the seas, 221 Wreckers, a peril of the seas, 221 Written : see Printed. York-Antwerp Rules, 268, 269, 277, 279 ; Appendix IV., 424 THE END. THE WHITEPRIARS PRESS, LTD., LONDON AND TOSBRIDGB. LAW LIBRARY IJNIVERSITY OF CALIFORNIA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 851 507 4