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A TEEATISE ^"^^^ 
 
 ON THE LAW EELATING TO THE 
 
 CAEEIAGE OF GOODS BY SEA. 
 
 BY 
 
 THOMAS GILBERT OARYEE, M.A., 
 
 OF IINOOLN'S dot and the IUDDIB TEMTLE, 
 ONE OF BER MAJESTY'S COUNSEL. 
 
 THIRD EDITION. 
 
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 Sato f wWisl^m, 
 
 1900. 
 
B^^^/ 
 
 LONDON : 
 FEINTED BY 0. T. EOWOETH, QBBAT NEW BTEEET, PETTEE lAUE — E.O. 
 
k\: 
 
 
 PREFACE. 
 
 Though the cases decided since the Second Edition, 
 was published have been very numerous, they have, as 
 was to be expected, been mainly illustrations of old 
 points rather than decisions upon new ones. But here 
 and there some important decisions, altering or modi- 
 fying views formerly taken, or giving points of new 
 departure, have occurred. The case of Tharsis Co. v. 
 Morel (1891, 2 Q. B. 647) is an instance. 
 
 A numerous group of cases has dealt with the various 
 forms of clauses by which shipowners limit their respon- 
 sibility for negligence, and for failure of seaworthiness. 
 Some of these deal with the new questions raised by 
 the Act, passed in the United States of America in 1893, 
 known as the Harter Act : a Statute which now forms 
 an important fact in the trade to and from the United 
 States. I have to thank my friend Mr. J. Paekek Kirlin, 
 of the New York Bar, for very valuable assistance in 
 collecting the American cases upon the Act. It will be 
 
 found that upon that, and also upon other portions of 
 
 a 2 
 
IV • PEEFACfi. 
 
 the subject, a considerable number of cases from the 
 Federal Courts of the U.S. are cited in this Edition. 
 
 Upon stoppage in transitu the case of Cahn v. Pockett's, 
 &c. Co. (1899, 1 Q. B. 643) is important, as being the 
 first case to throw much-needed light upon some obscure 
 clauses of the Sale of Goods Act, 1893, and as indicating 
 a departure from the old law of the subject. I have 
 ventured respectfully to criticise and doubt the correct- 
 ness of the decision upon that point. 
 
 My thanks are due to my friend Mr. Michael Brett, 
 for his help in preparing this Edition, more particularly 
 in connection with the enlargement of the Index. 
 
 I had the permission of the late Master of the Eolls 
 (Lord Esher) to dedicate this Edition to him. Unhap- 
 pily I can now do that only to his memory. His 
 influence upon English maritime law has been very 
 great ; and much of what has been written here has 
 been derived from the many instructive judgments 
 which he gave, throughout his long judicial career, upon 
 the subjects with which the book is concerned. 
 
 T. G. C. 
 
 2, Gabden Couet, Temple. 
 May, 1900. 
 
( ^ ) 
 
 CONTENTS. 
 
 — ♦ — 
 
 PAQE 
 
 Table of Cases cited ix 
 
 Table op Statutes cited Ixix 
 
 Part I. 
 THE CONTRACT. 
 
 OHAPTEE I. 
 
 Uesponsibility op Caeriers by Sea at Common Lav, and by 
 
 Statute 1 
 
 OHAPTEE n. 
 The Employment of the Ship 37 
 
 CHAPTEE in. 
 Caebiage in a General Ship 54 
 
 CHAPTEE IV. 
 ■Contracts by Charter Party 139 
 
VI CONTENTS. 
 
 CHAPTEE V. 
 
 PAGE 
 
 Bills of Lading GivErr on Shipments in a chabteeed Ship .... 177 
 
 ■ CHAPTER VI. 
 
 On the Constbuction of the Conteact ; and the Effect of 
 Customs of Teade ■ 196 
 
 CHAPTEE VII. 
 
 Effect of Poeeign Lavs 231 
 
 Part II. 
 THE VOYAGE. 
 
 CHAPTEE VIII. 
 
 Peocebdinq to the Poet op Loading — Dissolution op the 
 
 Conteact , 248 
 
 CHAPTEE IX. 
 The Loading _ _ 281 
 
 CHAPTEE X. 
 
 Peocbeding on the Voyage — Poets op Eefuge 329 
 
CONTENTS. VU 
 
 , OHAPTEE XI. 
 
 :pA(JE 
 Saltagb and "Weeok ." 368 
 
 CHAPTEE XI-I. 
 Geneeal Average 402 
 
 Part III. 
 THE DELIVERY. 
 
 OHAPTEE XIII. 
 
 The Discharge — "Warehottses-g 497 
 
 OHAPTEE XIY. 
 
 To WHOM SHOTJIiD DeLITBRT BE MADE 535 
 
 OHAPTEH XV. 
 Stoppage in transitu 569 
 
 CHAPTEE XVI. 
 Freight 613 
 
 OHAPTEE XVII. 
 Demtjbeage 687 
 
Vm COIfTENTS. 
 
 CHAPTEE xvnr. 
 
 FAQE 
 
 The SHTPO-vraEa's Liens fob Fbeight, Dead Feeight and 
 
 Demuebage 751 
 
 CHAPTEE XIX. 
 
 Eemedies of Peeightees — In eem against the Ship — Against 
 Colliding Ships ■ 781 
 
 CHAPTEE XX. 
 The Measure op Damages 809 
 
 Appendix A 841 
 
 „■ B 849 
 
 „ C 853 
 
 D 861 
 
 INDEX 877 
 
( ix ) 
 
 TABLE OF CASES CITED. 
 
 A. 
 
 SECT. 
 
 Abbott v. Batea, 43 L. J. C. P. 150 ; 45 L. J. C. P. 117 ; 33 L. T. 491 ; 24 
 W. K. 101 171 
 
 Aberdeen^Glen Line S.S. Co. v. Maoken, (1899) 2 I. R. 1 614, 615 
 
 Aboidofe %. Oppenheimer, 10 Q. B. D. 295 ; 30 W. R. 429 : 62 L. J. Q. B. 
 
 1 ; 47 L. T. 325 ; 31 "W. R. 57 697 
 
 Acatos V. Burns, 3 Ex. D. 282 ; 47 L. J. Ex. 566 ; 26 W. K. 624. .97, 278, 279, 
 
 295, ,298, 299, 300, 727 
 Aooomao, The, 15 P. D. 208 ; 63 L. T. 118 ; 59 L. J. Adm. 91 ; 39 W. R. 
 
 133 79, 91, 101, 148, 208 
 
 Aohard v. Ring, 31 L. T. 647 390 
 
 Acton V. Castle Mail Packets Co., 73 L. T. 158 ; 1 Com. Ca. 135 24, 111 
 
 Adam v. Morris, 18 Sess. Ca. (4th), 153 78, 91, 101, 293 
 
 Adams v. Hall, 37 L. T. 70 130 
 
 Adams v. Newbigging, 34 Ch. D. 682 ; 13 A. C. 308 ; 57 L. J. Ch. 1066 ; 
 
 69 L. T. 267 133 
 
 Adams v. Royal Mail S. Packet Co., 28 L. J. C. P. 33 ; 5 C. B. N. S. 492 252, 
 
 617 
 Adamson v. Newcastle S.S. Freight Insurance Co., 4 Q. B. D. 462 ; 48 
 
 L. J. Q. B. 670 ; 41 L. T. 160 ; 27 W. R. 818 236 
 
 Addison v. Oandasequi, 2 Sm. L. C. 369 ; 4 Taun. 374 127 
 
 ^olus, The, L. R. 4 A. & E. 29 ; 42 L. J. Adm. 814 ; 28 L. T. 41 ; 21 
 
 W. R. 704 337, 338 
 
 African Merchants v. British and Foreign Marine Ins. Co., L. R. 8 Ex. 154 ; 
 
 42 L. J. Ex. 60 ; 28 L. T. 233 ; 21 W. R. 484 286 
 
 Afrioano, The, (1894) P. 141 ; 63 L. J. P. 125 ; 70 L. T. 250 684 
 
 Agins V. Great Western Colliery Co., (1899) 1 Q. B. 413 ; 68 L. J. Q. B. 
 
 312 ; 80 L. T. 140 731 
 
 Aglaia, The, 13 P. D. 160 ; 67 L. J. Adm. 106 ; 59 L. T. 528 ; 37 W. R. 
 
 256 332, 337 
 
 Ahkang v. Australian S. Nav. Co., 9 Vict. L. R. 171 101 
 
 Aid, The, 1 Hagg. 83 331 ' 
 
 Aira Force S.S. Co. ■„. Christie, 9 T. L. R. 104 App. B. 
 
 Aitchison v. Lohre, 4 A. C. 755 ; 49 L. J. Q. B. 123 ; 41 L. T. 323 ; 28 
 
 W. R. 1 393, 394, 423 
 
 Aitken v. Bmsthausen, (1894) 1 Q. B. 773 259, 262, 720, 721 
 
 Akerblom v. Price, 7 Q. B. D. 129 : 60 L. J. Q. B. 629 ; 44 L. T. 837 ; 29 
 
 W. R. 797 ; 4 Asp. M. C. 441 337,341,392,396 
 
 Akerman v. Humphrey, 1 C. & P. 63 634 
 
 Aktieselkab HeUos v. Ekman, (1897) 2 Q. B. 83 ; 66 L. J. Q. B. 538 ; 76 
 
 L. T. 637 250, 462, 463, 612 
 
 Alacrity, 11 R. I. D. M. 123 373o 
 
 Albion, The, Lush. 282 340 
 
 Aloook V. Smith, (1892) C. 238 ; 61 L. J. Ch. 161 ; 65 L. T. 335 .... 211, 301 
 
 Aldrich v. Cooper, 8 Ves. 382 318 
 
 Alert, The, 61 Fed. Rep. 504 231 
 
 Alexander v. Dowie, 25 L. J. Ex. 281 ; 1 H. & N. 152 34 
 
 Alexander v. Malcolmson, Ir. Rep. 2 0. L. 621 67 
 
 Alexander v. Simms, 23 L. J. Ch. 721 ; 6 D. M. & G. 67 590, 692, 696 
 
X TABLE OF CASES CITED. 
 
 SECT. 
 
 Alexander v. Vanderzee, L. E. 7 C. P. 530 : 20 W. B,. 871 166 
 
 Alexander Laiireuoe, 10 R. I. D. M. 147 ; 11 R. I. D. M. 41 273o 
 
 Alexandra, The, 14 L. T. 742 ; 14 W. E. 466 78 
 
 Alexiadi ». Robinson, 2 F. & P. 679 466 
 
 Alfen, The, Swabey, 189 344 
 
 Alfred, The, 50 L. T. 511 ; 5 Asp. 214 327 
 
 Alhambra, The, 6 V. D. 68 : 50 L. J. Adm. 36 ; 43 L. T. 636 ; 29 W. R. 
 
 655 226, 448, 449, 450, 457, 458, 460 
 
 Alina, The, 6 Ex. D. 227 ; 49 L. J. Adm. 40 ; 42 L. T. 517 ; 29 W. E. 94 122, 
 ' 693, 695 
 
 Aline, The, 1 W. Eob. Ill 317 
 
 AUany. Gripper, 2 C. & J. 218; 2 Tyr. 217 513, 619 
 
 AUan V. Johnstone, 19 Sess. Ca. (4th ser.), 364 44, 612, 631 
 
 Allan V. Sundius, 31 L. J. Ex. 307 ; 6 L. T. 359 ; 1 H. & C. 123 . . 121, 164, 
 
 183, 190 
 
 AUday v. Great Western Ry. Co., 34 L. J. Q. B. 5 ; 11 L. T. 267; 13 
 
 W. R. 43 ; 5 B. & S. 903 ; 11 Jur. N. S. 12 110 
 
 Allen V. Coltart, 11 Q. B. D. 782 ; 52 L. J. Q. B. 686 ; 48 L. T. 944 ; 31 
 
 W. R. 841 450, 455, 603, 639 
 
 Allen 41. Garbutt, 6 Q. B. D. 165 ; 50 L. J. Q. B. 141 ; 29 W. E. 287 ; 4 
 
 Asp. M. C. 620u 693 
 
 Allen V. Smith, 31 L. J. C. P. 306 ; 6 L. T. 459 ; 10 "W. R. 646 ; 11 W. R. 
 
 440 ; 12 G. B. N. S. 638 ; 9 Jur. N. S. 230, 1284 6^0 
 
 Allerton Co. v. Falk, 6 Asp. M. C. 287 252, 257 
 
 Allianoa, The, 64 Fed. Rep. 871 80, 103, 373b, 445 
 
 Allison V. Bristol Marine Ins. Co., 1 A. C. 209 ; 34 L. T. 809 ; 24 W. R. 
 
 1039 562, 564, 569, 663 
 
 Alne Holme, The, (1893) P.' 173, 62 L. J. P. 51 ; 68 L. T. 862 268 
 
 Alsager v. St. Katharine's Dock Co., 15 L: J. Ex. 34 ; 14 M. & W. 794 . . 661 
 
 Alston V. Herring, 25 L. J. Ex. 177 ; 11 Ex. 822 277, 612a 
 
 Altair, The, (1897) P. 106 ; 66 L. J. P. 42 ; 76 L. T. 263; 8 Asp. 224. .339, 346, 
 
 347 
 
 Alvena, The, 74 Fed. Eep. 252 ; 79 Fed. Eep. 973 103d 
 
 Alves V. Hodgson, 7 T. R. 241 ; 2 Esp. 528 213 
 
 AmaUa, The, 32 L. J. Ad. 191 ; 8 L. T. 805 ; 12 "W. R. 24 ; 1 Moo. P. C. C. 
 
 N. S. 471; B. & L. 151; 9 Jur. N. S. 1111 26, 697 
 
 American,, The, and the Syria, L. E. 6 P. C. 127 ; 43 L. J. Ad. 30 ; 31 
 
 L. T. 42 ; 22 W. E. 927 707 
 
 Amerique, The, L. E. 6 P. C. 468 ; 31 L. T. 864 ; 23 W. R. 488 346 
 
 Amies v. Stevens, 1 Str. 127 9 
 
 Amos V. Temperley, 8 M. & W. 798 605 
 
 Audalina, The, 12 P. D. 1 ; 56 L. T. 171 ; 35 W. R. 336 317, 691 
 
 Andalusian, The, 3 P. D. 182 ; 47 L. J. Ad. 65 ; 39 L. T. 204 ; 27 W. E. 
 
 172 24, 26 
 
 Anders Knape, The, 4 P. D. 213 ; 48 L. J. Ad. 53 ; 40 L. T. 684 337 
 
 Anderson v. Clark, 2 Bing. 20 61 
 
 Anderson v. Hillies, 21 L. J. C. P. 180 ; 12 0. B. 449 ; 16 Jur. 819 585 
 
 Anderson ». Ocean S.S. Co., 10 A. C. 107 ; 13 Q. B. D. 651 ; 54 L. J. Q. B. 
 
 192; 52L. T. 441; 33W. E. 433; 5 Asp. M. C. 202.... 328, 341, 347, 349, 
 
 364, 391, 443 
 
 Andrew v. Moorhouse, 5 Taun. 435 ; 1 Marsh. 123 67, 562, 563 
 
 Andrews v. Mellish, 6 Taun. 496 ; 2 M. & S. 27 ; 16 East, 312 285 
 
 Aneroid, The, 2 P. D. 189 ; 47 L. J. Ad. 15 ; 36 L. T. 448 701 
 
 AngeUt;. Duke, L. E. 10 Q. B. 174; 44 L.J. Q. B. 78 ; 32 L. T. 26, 320. . 164 
 
 Angler v. Stewart, I Cab. & Ell. 357 .'. 671a 631 
 
 Anglo-African Co. v. Lamzed, L. E. 1 C. P. 226 ; 36 L. J. C P 145 • 13 
 
 L. T. 796; 14 W. E. 477 ; 12 Jur. N. S. 294 ; 1 H. & R. 216 .....'... 272 
 
TABLE OF CASES CITED. XI 
 
 SECT. 
 
 Anglo- Argentine, &o. Agency r. Temperley Shipping Co., (1899) 2 Q. B. 
 403, 68 L. J. Q. B. 900 ; 81 L. T. 296 366, 405, 413, 419 
 
 Annapolis, The, 5 L. T. N. S. 37 ; Lush. 295 339 
 
 AnnapoUs, The, 30 L. J. Ad. 201 ; 4 L. T. N. S. 417 ; Lush. 295. . 30, 31, 707 
 Annie, The, 12 P. D. 50 ; 56 L. J. Adm. 70 ; 56 L. T. 600 ; 35 W. R. 
 
 366 331, 360 
 
 Anonymous, 12 Mod. 447 663 
 
 Ansett V. Marshall, 27 L. J. Q. B. 118 ; 17 Jur. 114 ; 1 B, 0. C. 147 .... 719 
 
 ApoUo, The, 1 Hagg. 306 38, 44 
 
 Aquila, The 1 C. Rob. 46 332, 355 
 
 Arayo v. Currell, 1 Louis Rep. 628 206 
 
 Argentina, The, L. R. 1 A. & E. 370 ; 16 L. T. 743 489 
 
 Argentino, The, 13 P. D. 61, 191 ; 14 A. C. 519 ; 68 L. J. Ad. 1 ; 37 W. R. 
 
 210 720, 728 
 
 Armstrong v. Stokes, L. R. 7 Q. B. 698 ; 41 L. J. Q. B. 253 ; 26 L. T. 872 ; 
 
 21 W. R. 52 62 
 
 Amo, The, 72 L. T. 621 ; 8 Asp. M. C. 5 308, 655 
 
 Arrospe v. Barr, 18 So. L. R. 411 ; 8 Sess. Ca. (4th), 602 161, 161a 
 
 Arthur v. Barton, 6 M. & W. 138 , 310 
 
 Asfar V. BlundeU, (1895) 2 Q. B. 196 ; (1896) 1 Q. B. 123 ; 65 L. J. Q. B. 
 
 138 ; 73 L. T. 648 ; 1 Comm. Ca. 71 ; 185 649 
 
 Ashoroft V. Crow Orchard CoUiery Co., L. R. 9 Q. B. 540 ; 43 L. J. Q. B. 
 
 194 ; 31 L. T. 266 ; 22 W. R. 825 614, 626, 628 
 
 Ashendon v. London, Brighton and South Coast Ry., 5 Ex. D. 190 ; 42 
 
 L. T. 686 ; 28 W. R. 511 ; 44 J. P. 203 103, 110 
 
 Ashforth V. Redford, L. R. 9 C. P. 20 ; 43 L. J. C. P. 57 166 , 
 
 Ashmole v. Wainwright, 2 Q. B. 837 ; 2 G. & D. 217 ; 6 Jur. 729 680 
 
 Ashmore ». Cox, (1899) 1 Q. B. 436 ; 68 L. J. Q. B. 72 256 
 
 Assicurazioni Generali ». S.S. Bessie Morris Co., (1892) 1 Q. B. 671 ; 2 
 
 Q. B. 652; 61 L. J. Q. B. 764; 67 L. T. 218 302, 303 
 
 Aste V. Stumore, 1 Cab. & EU. 319 466 
 
 Atkinson v. Cotesworth, 3 B. & C. 647 ; 6 D. & R. 652 ; 1 C. & P. 339 ... . 689 
 
 Atkinson v. Great Western Ins. Co., 27 L. T. 103 100 
 
 Atkinson v. Ritchie, 10 East, 530 23, 82, 237, 271 
 
 Atkinson ». Stephens, 21 L. J. Ex. 329 ; 7 Ex-. 667 ; 1 H. & C. 170 ; 8 Jur. 
 
 N. S. 720 320 
 
 Atkinson v. "WoodaU, 31 L. J. M. C. 174 ; 6 L. T. 361 ; 10 "W. R. 671 ... . 324 
 
 Atlantic Mutual Ins. Co. v. Bird, 2 Bos. 195 560 
 
 Atlantic Mutual Ins. Co. v. Huth, 16 Ch. D. 474 ; 44 L. T. 67 ; 29 W. R. 
 
 387 298, 300, 301 
 
 Atlas, The, 2 Hagg. 53 312 
 
 Atlas, The, 31 L. J. Ad. 210 ; 10 W. R. 850 ; 16 Moo. P. C. C. 329 ; 8 Jur. 
 
 N. S. 753 ; Lush, 518 ; 1 Asp. M. C. 236 ; 6 L. T. N. S. 434 325, 346 
 
 Atlas, The, 3 C. Rob. 299 656 
 
 Atlas, The, 93 TJ. S. 302 704 
 
 Attorney-General for Hong Kong v. Kwok-a-Sing, L. R. 5 P. C. 179 ; 42 
 
 L.J. P. C. 64; 29 L. T. 114; 12 Cox, C. C. 566 94 
 
 Atwood V. SeUar, 4 Q. B. D. 342 ; 5 Q. B. D. 286 ; 49 L. J. Q. B. 615 ; 
 
 42 L. T. 644 ; 28 W. R. 604 191, 302, 305, 366, 404, 406, 412, 413 
 
 Aubert v. Gray, 32 L. J. Q. B. 50 ; 3 B. & S. 163 ; 7 L. T. 469 ; 9 Jur. 
 
 N. S. 714 ; 1 Asp. Mar. C. 264 82 
 
 August, The, (1891) P. 328; 60 L. J. P. 57 211, 297 
 
 Augusta, The, 1 Dods. 283 314 
 
 Augusta, The, 57 L. T. 326 ; 6 Asp. M. C. 161 31 
 
 Austin Friars, The, 71 L. T. 27 ; 6 R. 739 221, 612 
 
 Australasian Ins. Co. v. Jackson, 33 L. T. 286 99 
 
XU TABLE OF CASES CITED. 
 
 SECT. 
 
 Australasian Steam Nav. Co. v. Morse, L. R. 4 P. C. 222 ; 27 L. T. 257 ; 
 
 20W. E. 728; 8 Moo. P. C. C. N. S. 482 295, 297, 299 
 
 Avery v. Bo-srden, 25 L. J. Q. B. 49 ; 26 L. J. Q. B. 3 ; 3 Jur. N. S. 238 ; 
 
 6 E. & B. 963 236, 238, 270 
 
 Avon S.S. Co. V. Leask, 18 Seas. Ca. (4th), 280 615, 632 
 
 Aztecs, The, 21 L. T. 797 332 
 
 B. 
 
 Backhouse v. Snead, North Carolina, 1 Murph. 173 17 
 
 Baersehnan ». BaUey, (1895) 2 Q. B. 301 ; 64 L. J. Q. B. 707 ; 72 L. T. 
 
 677 68, 101, 165 
 
 Bahia, The, Br. & L. 38 ; 12 L. T. 145 ; 14 W. E. 411 ; 11 Jur. N. S. 90. . 687 
 
 Bailey v. De Creapigny, L. E. 4 Q. B. 180 ; 38 L. J. Q. B. 98 23, 237 
 
 BailUe v. Moudigliani, Ahbott (5th), 313 ; (Uth), iv. 98 669 
 
 Baines v. Swainson, 32 L. J. Q. B. 281 ; 8 L. T. 636 ; 11 "W. E. 945 ; 4 B. 
 
 &S. 270 604 
 
 Baker v. Paine, 1 Ves. 456 193 
 
 Baldwins. L. C. & D. Ey. Co., 9 Q. B. D. 582 13, 16, 714, 725 
 
 Baldwin v. SnUivan Timber Co., 142 N. Y. 279 249 
 
 Ballan v. Joly, 6 Times E. 345 287 
 
 BaUey v. De Arroyave, 7 A. & E. 919 ; 3 N. & P. 114 221 
 
 Baltimore, The, 2 Dods. 132 344 
 
 Banner, Ex parte, Tappeubeok, In re, 2 Ch. D. 278 ; 45 L. J. B. 73 ; 34 
 
 L. T. 199 ; 24 W. E. 476 492, 495, 525 
 
 Bannerman v. White, 31 L. J. C. P. 28 ; 4 L. T. 740 ; 9 W. E. 784 ; 10 
 
 C. B. N. S. 844 ; 8 Jur. N. S. 282 134, 164 
 
 Bannister ». Breslauer, L. E. 2 C. P. 497 ; 36 L. J. C. P. 195 ; 15 L. T. 
 
 418 ; 15 W. E. 840 647, 667 
 
 Barber v. Meyerstein, L. E. 4 H. L. 317 ; L. E. 2 C. P. 38, 661 ; 39 L. J. 
 
 C. P. 187 ; 22 L. T. 808 ; 18 "W. E. 1041 466, 474, 480, 481, 487, 498, 
 
 601, 603 
 
 Barbour jj. S. E. Ey. Co., 34 L. T. 67 14 
 
 Barclay v. CucuUa y Gana, 3 Doug. 389 3 
 
 Barcore, The, (1896) P. 294 ; 75 L. T. 168 12, 586 
 
 Barker v. Highley, 32 L. J. C. P. 270 ; 9 L. T. 228 ; 11 W. E. 968 ; 15 
 
 C. B. N. S. 27 ; 10 Jur. N. S. 391 36, 37 
 
 Barkers. Hodgson, 3 M. & S. 267 23, 216, 229, 237, 247, 265, 611, 616 
 
 Barker v. M'Andrew, 34 L. J. C. P. 191 ; 12 L. T. 459 ; 13 W. E. 779 ; 18 
 
 C. B. N. S. 769 ; 11 Jur. N. S. 637 148, 227 
 
 Barnard v. Adams, 10 Hew. 270 389 
 
 Barnard v. Eaber, (1893) 1 Q. B. 340 '. . , . 136, 174 
 
 Barraolough v. Brown, (1897) A. C. 616 ; 66 L. J. Q. B. 672 ; 76 L t' 
 
 797 ; 360 
 
 Barret ». Dutton, 4 Camp. 333 , 611 630 
 
 Barrie v. The Peruvian Corporation, 2 Com. Ca. 60 150 
 
 Barrow, Ex parte, Worsdell, In re, 6 Ch. D. 783 ; 46 L. J. B. 71 • 36 L T 
 
 325 ; 25 W. E. 466 '. . .' 517 
 
 Barrow v. Coles, 3 Camp. 92 488 533 
 
 Barrow v. Dyster, 13 Q. B. D. 635 ; 51 L. T. 573 ; 33 W. R. 199 ' 196 
 
 Bartlett v. Pentland, 10 B. & C. 760 184 185 139 
 
 Barton ». Walliford, Comb. 56 86 
 
 Barwick v. Bumyeat, 36 L. T. 250 ; 25 W. E. 395 [ 651 
 
 BastifeU t!. Lloyd, 31 L. J. Ex. 413 ; 10 W. E. 721 ; 1 H. & 0. 388...".".'.' 453 
 
 '623, 625 
 
 Bates V. Todd, 1 Moo. & E. 106 gg 
 
 Batson v. Donovan, 4 B. & A. 21 ^723 
 
1 
 
 TABLE OP CASES CITED. Xlll 
 
 SECT. 
 
 Eatut V. Hartley, L. E.. 7 Q. B. 594 ; 41 L. J. Q. B. 273 ; 26 L. T. 968 ; 
 20W. E. 899 469 
 
 Baumwoll, &o. d. Pumeas, (1891) 2 Q. B. 310 ; (1892) 1 Q. B. 253 ; (1893) 
 A. C. 8 37, lu, 163, 164, 157, 173 
 
 Baumwoll, &o. v. Gilehrest. (See Baumwoll, &o. 1/. Eurneas.) 
 Baxendale v. Gr. E. Ey. Co., L. E. 4 Q. B. 244 ; 38 L. J. Q. B. 137 ; 14 
 W. E. 458 29, 74, 76 
 
 Baxendale v. L. C. & D. Ey. Co., L. E. 10 Ex. 35 ; 44 L. J. Ex. 20 ; 32 
 
 L. T. 330; 23 "W. E. 167 718, 731 
 
 Bayley v. M. S. & L. Ey. Co., L. E. 8 C. P. 148 ; 42 L. J. C. P. 78 : 28 
 
 L. T. 366 707 
 
 Beaoonafield, The, 168 U. S. 303 704 
 
 Beale v. Thompaon, 4 East, 540 ; 3 B. & P. 405 ; 2 M. & S. 249 242 
 
 Beataon i'. Howarth, 6 T. E. 631 285 
 
 Beatson v. Schenck, 3 East, 233 573 
 
 Beohuanaland Exploration Co. v. London Trading Bank, (1898) 2 Q. B. 
 
 608 ; 67 L. J. Q. B. 986 ; 79 L. T. 270 194 
 
 Beeswing, The, 63 L. T. 554 ; 6 Aap. Mar. C. 484 114 
 
 Behn v. Bumess, 32 L. J. Q. B. 204 ; 8 L. T. 207 ; 11 W. E. 496 ; 3 B. & 
 
 S. 751 ; 9 Jur. N. S. 620 135, 136, 137, 143, 144, 177 
 
 ■^ Belcher v. Capper, 4 M. & G. 502 ; 2 Soott, N. E. 257 116, 662 
 
 ^ Beldon v. Campbell, 20 L. J. Ex. 342 ; 6 Ex. 816 310, 349 
 
 Belfast & BaUymena Ey. Co., The v. Keya, 9 H. L. C. 356; 4 L. T. N. S. 
 
 841 ; 9 W. E. 793 ; 8 Jur. N. S. 367 729 
 
 Belfort, The, 9 P. D. 216 ; 63 L. J. P. 88 ; 51 L; T. 271 ; 33 W. E. 171 ; 
 
 5 Asp. M. C. 291 120 
 
 Bell V. Kymer, 3 Camp. 545 ; 1 Marsh. 146 ; 6 Taun. 477 603 
 
 BeU V. Puller, 2 Taun. 285 ; 12 East, 496 (n.) 552, 721 
 
 Bell V. Eeid, 1 M. & S. 726 243 
 
 Benlarig, The, 14 P. D. 3 ; 68 L. J. Adm. 24 ; 60 L. T. 238 ; 6 Aap. Mar. C. 
 
 360 326, 333, 334 
 
 Bennett v. P. & O. S. Nav. Co., 18 L. J. C. P. 85 ; 6 C. B. 775 ; 16 C. B. 
 
 29 ; 6 D. & L. 387 ; 13 Jur. 347 3, 4 
 
 Benson v. Blunt, 1 Q. B. 870 ; 1 G. & D. 449 ; 10 L. J. N. S. Q. B. 333. . 612 
 
 Benson v. Chapman, 2 H. L. C. 696 ; 13 Jur. 969 ; 8 C. B. 950 302 
 
 Benson v. Duncan, 18 L. J. Ex. 169 ; 17 L. J. Ex. 238 ; 14 Jur. 218 ; 3 
 
 Ex. 644 86, 302, 320, 407 
 
 Benson v. Hippius, 4 Bing. 445 ; 1 M. & P. 246 ; 3 C. & P. 186 639 
 
 Benson ». Schneider, 7 Taun. 273 ; 1 Moo. 21, 76 ; Holt, 416 . . 182, 198, 263, 266 
 Bentsen v. Taylor, (1893) 2 Q. B. 274 ; 63 L. J. Q. B. 15 ; 69 L. T. 487 . . 136, 
 
 143, 177 
 
 Benwell Tower, The, 72 L. T. 664 595, 597 
 
 Bereaford v. Montgomery, 34 L. J. C. P. 41 ; 10 L. T. 814 ; 12 W. E. 1060 ; 
 
 17 C. B. N. S. 379 ; 10 Jur. N. S. 823 475, 477 
 
 Bergheim v. G. E. Ey. Co., 3 C. P. D. 221 ; 47 L. J. C. P. 318 ; 38 L. T. 
 
 160 ; 26 W. E. 301 3, 6 
 
 Bergatrom v. MiUa, 3 Eap. 36 242 
 
 Berkeley v. Watling, 7 A. & E. 29 ; 6 L. J. N. S. K. B. 195 ; 2 N. & P. 
 
 178 69 
 
 Bemalv. Pirn, 1 Gale, 17 657 
 
 Bernard v. Aaron, 9 Jur. N. S. 470 49 
 
 Bemdtson v. Strang, L. E. 3 Ch. 688 ; 37 L. J. Oh. 665 ; 19 L. T. 40 ; 16 
 
 W. E. 1025 507, 611 
 
 Bemers, The, 1 W. Eob. 204 243 
 
 Bemina, The, 12 P. D. 36 ; 13 A. C. 1 ; 58 L. T. 423 ; 55 L. J. Adm. 65 ; 
 
 36W. E. 870; 6 Asp. Mar. C. 257 26, 304, 704 
 
 Best V. Saunders, M. & M. 208 ; 3 M. & E. 4 587 
 
 C. — C. b 
 
XIV TABLE OF CASES CITED. 
 
 SECT. 
 
 Bethell v. Clark, 19 Q. B. D. 553 ; 20 Q. B. D. 615 ; 67 L. J. Q. B. 302 ; _ 
 
 57 h. T. 627; 36 W. K. 185, 611; 6 Asp. Mar. C. 346 511, olb, 5d0 
 
 Betsey Caines, The, 2 Hagg. 28 '^28 
 
 Betts V. Buroh, 28 L. J. Ex. 267 ; 4 H. & N. 506 ; 1 P. & E. 485 722 
 
 Beynon v. Godden, 3 Ex. D. 263 ; 39 L. T. 82 ; 26 W. E. 672 ; 48 L. J. 
 
 Ex. 80 690, 595, 597 
 
 Biceard v. ShepKerd, 14 Moo. P. 0. 471 ; 5 L. T. 504 19b 
 
 Biddulpli «. Bingham, 30 L. T. 30 , 69 
 
 Bilbao, The, 3 L. T. 338 ; Lush. 149 708 
 
 Birch «. Depeyster, 4 Camp. 386 ; 1 Stark. 210 168 
 
 Bird V. Brown, 19 L. J. Ex. 154 ; 14 Jur. 132 ; i Ex. 786 . . 125, 519, 625, 529 
 
 Birkley ». Presgrave, 1 East, 220 362, 371, 374, 386, 396, 443 
 
 Birley v. Gladstone, 3 M. & S. 205 ; 2 Mer. 401 647, 658, 669 
 
 BirreU v. Dryer, 9 A. C. 345 ; 51 L. T. 130 ; 5 Asp. Mar. C. 267 . . . .167, 169, 
 ■^ ' ■ > i- 171,172 
 
 Bishop t!. Ware, 3 Camp. 360 461 
 
 Black v. -Rose, 2 Moo. P. C. C. N. S. 277 ; 11 L. T. N. S. 31 ; 12 W. E. 
 
 1123; 10 Jur. N. S. 1009 546, 655, 657 
 
 Blaokett v. Eoyal Exchange Ass. Co., 2 C. & J. 244 ; 2 Tyr. 266 . . 172, 182, 196 
 
 Blake v. Belfast Discount Co., 6 L. E. Ir. 410 604 
 
 Blakey v. Dixon, 2 B. & P. 321 542, 662 
 
 Blakie v. Stembridge, 6 C. B. N. S. 894, 911 ; 29 L. J. C. P. 212 ; 28 L. J. 
 
 C. P. 329 ; 36 L. T. 670 ; 8 W. E. 239 ; 5 Jur. N. S. 1128 ; 6 Jur. N. S. 
 
 825 48, 274 
 
 Blanohard v. Page, 8 Gray, 281 61 
 
 Blanche, The, 58 L. 692 ; 6 Asp. Mar. C. 272 40 
 
 Blanchet v. Powells Llantifit Collieries Co., L. E. 9 Ex. 74 ; 43 L. J. Ex. 
 
 60 ; 30 L. T. 28 ; 22 W. E. 490 70, 550, 581 
 
 Blanok v. Solly, 1 B. Moore, 631 ; Holt, 564 237, 543 
 
 Blanshard, In re, 2 B. & C. 244 ; 3 D. & E. 177 , 38 
 
 Blasoo V. Fletcher, 14 C. B. N. S. 147 ; 32 L. J. C. P. 284 ; 9 L. T. 169 ; 
 
 11 W. E. 997 ; 9 Jur. N. S. 1105 74, 307, 554 
 
 Bleck V. BaHeras, 29 L. J. Q. B. 261 ; 6 Jur. N. S. 1243 ; 3 E. & E. 203. . 634 
 Blenheim, The, 10 P. D. 167 ; 54 L. J. Adm. 81 ; 53 L. T. 916 ; 34 W. E. 
 
 154 ; 5 Asp. Mar. C. 622 309, 719 
 
 Bhght V. Page, 3 B. & P. 295 (u.) 150, 208, 216, 247, 255, 270, 611, 718 
 
 Blower V. G. W. Ey. Co., L. E. 7 C. P. 655 ; 41 L. J. C. P. 268 ; 27 L. T. 
 
 883 ; 20 W. E. 776 .~ 12 
 
 Blyth V. Smith, 12 L. J. C. P. 203 ; 7 Jur. 948 ; 6 Scott, N. E. 360 ; 5 M. 
 
 & G. 405 731 
 
 Boardman v. Sill, 1 Camp. 410 (n.) 679 
 
 Bodley v. Eeynolds, 8 Q. B. 779 ; 16 L. J. Q. B. 219 ; 10 Jur. 310 728 
 
 Bohtlingk V. Inglis, 3 East, 381 ; S. C, nom. Boehtlinok v. Schneider, 
 
 3E3p. 58 511, 512, 531 
 
 Bold Buccleuch, The, 7 Moo. P. C. 267 698, 700 
 
 Bolton V. L. & T. Ey. Co., L. E. 1 C. P. 431 ; 36 L. J. C. P. 137 ; 13 L t' 
 
 764 ; 14 W. E. 430 ; 12 Jur. N. S. 317 518 
 
 Bona, The, (1896) P. 125 ; 64 L. J. P. 62 ; 71 L. T. 870 ; 7 Asp. 557 .".383, 386 
 
 Bonaparte, The, 8 Moo. P. C. 469 ; 3 W. Eeb. 298 -. 299 316 
 
 Bond V. The Superb, 1 Wallace Junior, 356 413a 
 
 Booker v. Pooklington S.S. Co., (1899) 2 Q. B. 690 ; 69 L J Q B 10 ■ 
 
 81L-T. 524 '...'.App. B. 
 
 Boone v. Eyre, 1 H. Bl. 273, cited 6 T. E. 573 ; 2 W. Bl. 1312 231 
 
 Bommann v. Tooke, 1 Camp. 377 219 
 
 Berries v. Hutchinson, 34 L. J. C. P. 169 ; U L. T. 771 ■ 13 W T? .SRfi ■ 
 
 18 C. B. N. S. 445 ; 11 Jur. N. S. 267 ......'.....'. 714 
 
 Borrowman v. Wilson, 7 T. L. E. 416 455 476 479 
 
TABLE OF CASES CITED. XV 
 
 BBOT. 
 
 Boson V. Sandford, 2 Salk. 440 ; Carth. 58 36, 38, 47 
 
 Botany Worsted Mills v. Knott, 76 Fed. Rep. 582 ; 82 Fed. Eep. 471 103a, 
 
 103d, 103e 
 
 Bottomley v. Forbes, 5 Bing. N. 0. 121 ; 6 Soott, 866 169, 197, 679 
 
 Boucher v. Lawson, Rep. temp. Hardwioke, 85 216 
 
 Boucher v. Noidstrom, 1 Taun. 568 48 
 
 Bourne v. Seymour, 24 L. J. C. P. 202 ; 16 C. B. 337 ; 1 Jur. N. S. 1001 . . 251 
 Bowes ■„. Shand, 2 A. C. 455 ; 2 Q. B. D. 112 ; 1 Q. B. D. 470 ; 46 L. J. 
 
 Q. B. 561, 201 ; 36 L. T. 857, 161 ; 25 W. R. 730 166, 169, 171 
 
 Bowring V. Thebaud, 56 Fed. Rep. 520 144 
 
 Boyce v. Bayliffe, 1 Camp. 58 717 
 
 Boyd V. Mangles, 18 L. J. Ex. 273 ; 3 Ex. 387 696 
 
 Boyd i>. Moses, 7 "Wall. (U. S.) 316 279 
 
 Bradbum v. a. "W. Ry. Co., L. R. 10 Ex. 1 ; 44 L. J. Ex. 9 ; 31 L. T. 464 ; 
 
 23 "W. R. 468 730 
 
 Bradford v. Williams, L. R. 7 Ex. 259 ; 41 L. J. Ex. 164 ; 26 L. T. 641 ; 
 
 21 W. R. 782 235 
 
 Bradley «. Duuipace, 31 L. J. Ex. 210 ; 32 L. J. Ex. 22 ; 6 L. T. 356 ; 1 H. 
 
 &C. 621 69, 71, 469 
 
 Bradley v. Goddard, 3 F. &T. 638 124, 612, 644 
 
 Bradley «. Waterhouse, M. & M. 154 ; 3 C. & P. 318 14 
 
 Bradshaw v. Irish N. W. Ry. Co., 21 W. R. 581 ; 7 Ir. R. C. L. 252 473 
 
 Bradshaw v. L. & Y. Ry. Co., L. R. 10 C. P. 189 ; 44 L. J. C. P. 148 ; 31 
 
 L. T. 847 717 
 
 Bramley v. Chesterton, 2 C. B. N. S. 1144 ; 27 L. J. C. P. 23 ; 3 Jur. N. S. 
 
 1104 731 
 
 Branckelow S.S. Co. v. Lamport, (1897) 1 Q. B. 570 ; 66 L. J. Q. B. 382 . . 613, 
 
 631 
 
 Brandao v. Bamett, 12 CI. & F. 787 ; 3 C. B. 519 192 
 
 Brandt «. Bowlby, 2 B. & Ad. 932 488, 727 
 
 Brankelow S.S. Co. v. Canton Ins. Office, (1899) 2 Q. B. 178 ; 68 L. J. 
 
 a. B. 811 ; 81 L. T. 6 161, 650 
 
 Branley v. S. E. Ry. Co., 12 C. B. N. S. 63 ; 31 L. J. 0. P. 286 ; 9 Jur. 
 
 N. S. 329; 6L. T. 458 4, 2-15 
 
 Branaton, The, 2 Hagg. 3 (n.) , 336 
 
 Brantford City, The, 29 Fed. Rep. 373 103a 
 
 Brass v. Maitland, 26 L. J. Q. B. 49 ; 2 Jur. N. S. 710 ; 6 E. & B. 471. . . . 97, 
 
 278, 279 
 
 Bremner v. BurreU, 4 Sess. Ca. (4th), 934 623 
 
 Brenda S.S. Co. v. Green, (1900) 1 Q. B. 518 ; 4 Com. Ca. 209 462, 463 
 
 Brereton v. Chapman, 7 Biug. 569 ; 5 M. & P. 526 199, 623, 625 
 
 Breslauer v. Barwick, 36 L. T. 62 130 
 
 Brice v. Bannister, 3 Q. B. D. 569 ; 47 L. J. Q. B. 722 ; 38 L. T. 739 ; 26 
 
 W. R. 670 696 
 
 Briddon v. G. N. Ey. Co., 28 L. J. Ex. 51 ; 32 L. T. O. S. 94 285 
 
 BrigeUa, The, (1893) P. 189 ; 62 L. J. P. 81 ; 69 L. T. 834 374c, 436 
 
 Brig Fittler, The, Ang. Car. s. 301 182, 460 
 
 Brig Mary, The, 1 Sprague, 17 376, 409, 413a, 438 
 
 Brig Nestor, The, 1 Sumner, 78 698 
 
 Briggs V. Merchant Traders, &o. Association, 18 L. J. Q. B. 178 ; 13 Q. B. 
 
 167; 13 Jur. 787 353, 393 
 
 Brind v. Dale, 2 Moo. & Rob. 80 ; 8 C. & P. 327 4 
 
 Bristol and Exeter Ry. Co. v. Collins, 29 L. J. Ex. 51 ; 7 H. L. Cas. 194 ; 
 
 5 Jur. N. S. 1367 107 
 
 Bristol and West of England Bank v. Midland Ry. Co., (1891) 2 Q. B. 662 ; 
 
 66 L. T. 234 62, 66a, 601 
 
 52 
 
XVI TABLE OP CASES CITED. 
 
 SECT. 
 
 Bristow V. SequeTine, 5 Ex. 275 ; 3 C. & K. 64 ; 19 L. J. Ex. 289 ; 14 Jur. 
 
 674 213 
 
 Bristow V. -Wiitmore, 31 L. J. Ch. 467 ; 9 H. L. 391 ; 4 L. T. 622 ; 9 "W. E. 
 
 621; 8 Jur. N. S. 291 589 
 
 British Columbia Saw Mill v. Nettleship, L. E. 3 0. P. 499 ; 37 L. J. C. P. 
 
 235; 18L. T. 291; 16 "W". R. 1046 68, 251, 714, 716, 724 
 
 British King, The, 89 Fed. Eep. 872 lOSd, 103e 
 
 British Linen Co. v. Drummond, 10 B. & 0. 903 697 
 
 British Shipowners Co. v. Grimond, 3 Sess. Ca. (4th), 968 468 
 
 Broad V. Thomas, 7 Bing. 99 ; 4 M. & P. 732 ; 4 C. & P. 338 121 
 
 Broadhead v. Yule, 9 Sess. Ca. (3rd), 921 ; 8 So. L. R. 604 124 
 
 Broadhurst ». Columbian Ins. Co., 9 Johns. (N. T.) Eep. 9 389 
 
 Brodie v. Howard, 17 C. B. 109 ; 25 L. J. C. P. 67 ; 1 Jur. N. S. 1209. ... 34 
 
 Brooke i>. Pickwick, 4 Bing. 218 ; 12 Moo. 447 6 
 
 Brounoker v. Soott, 4 Taun. 1 47, 589, 643 
 
 Brown v. Byrne, 23 L. J. Q. B. 313 ; 18 Jur. 700 ; 2 C. L. E. 1599 ; 3 E. 
 
 & B. 703 196, 197, 584 
 
 Brown v. Graoey, D. & K. N. P. 41 (n.) : 205 
 
 Brown i). Hare, 27 L. J. Ex. 272 ; 29 L. J. Ex. 6 ; 4 H. & N". 822 ; 8 Jur. 
 
 N. S. 711 ; 7 W. E. 619 ; . .492, 494 
 
 Brown v. Hodgson, 2 Camp. 36 ; 4 Taun. 189 61 
 
 Brown v. Hunt, 11 Mass. 46 570 
 
 Brown «). Johnson, Car. & M. 440 224, 249 
 
 Brown v. Johnson, 10 M. & W. 331 ; 11 L. J. Ex. 373. .613, 623, 624, 625, 631 
 Brown v. M. S. & L. Ey. Co., 9 Q. B. D. 230 ; 10 Q. B. D. 260 ; 8 A. C. 
 
 703; 63 L. J. Q. B. 124 ; 50 L. T. 281 ; 32 "W. E. 207 ; 48 J. P. 388. .103, 110 
 Brown v. MuUer, L. E. 7 Ex. 319 ; 41 L. J. Ex. 214 ; 27 L. T. 272 ; 21 
 
 W. E. 18 719 
 
 Brown v. North, 22 L. J. Ex. 49 ; 8 Ex. 1 575, 592 
 
 Brown v. Powell Coal Co., L. E. 10 C. P. 562 ; 44 L. J. C. P. 289 ; 32 L. T. 
 
 621 ; 23 W. E. 649 70, 152, 161, 581 
 
 Brown v. Stapyleton, 4 Bing. 119 ; 12 Moore, 334 420 
 
 Brown v. Tanner, L. E. 3 Ch. 597 ; 37 L. J. Ch. 923 ; 18 L. T. 624 ; 16 
 
 W. E. 882 41,553, 592, 595, 697, 666 
 
 Bruce v. Nicolopulo, 24 L. J. Ex. 231 ; 11 Ex. 129 . . i 148 
 
 Brunei, The, (1900) P. 24 ; (1899) P. 45 26 
 
 Bryans v: Nix, 4 M. & W. 775 ; 1 H. & H. 480 486, 500 
 
 Bryden v. Niebuhr, 1 Cab. & Ell. 241 651 
 
 Brunner v. Webster, 5 Com. Ca. 167 82 271 
 
 Buckle V. Knoop, L. E. 2 Ex. 125, 333 ; 36 L. J. Ex. 223 ; 16 L. T. 571 • 
 
 15 W. E. 999 169, 184, 197, 677, 579 
 
 Buckley v. Gross, 3 B. & S. 674 ; 32 L. J. Q. B. 129 ; 7 L. T. 743 • 11 W E 
 
 465 ; 9 Jur. N. S. 986 .' ', _ _' 505 
 
 Budgett V. Binnington, 25 Q. B. D. 320 ; (1891) 1 Q. B. 35 ; 60 L. J Q B 
 
 1; 39W. E. 131 229,258, 611, 6i2a', 616 
 
 Bullen V. Denning, 5 B. & 0. 842 ; 8 D. & E. 657 , 172 
 
 Buller V. Fisher, 3 Esp. 67 85 
 
 Buller V. Plunket, 30 L. J. Ch. 641 ; 4 L. T. 737 ; 1 J. & H. 441 . . . ." " ." ." ', 596 
 
 Bulman v. Dickson, (1894) 1 Q. B. 179 268 624b 628 
 
 Bunch V. G. "W. Ey. Co., 17 Q. B. D. 285 ; 13 A. C. 31 ; 55 Ij.S. Q B 427 ■' 
 
 65 L. T. 9 ; 34 W. E. 574 7! ...!!. .' 6 
 
 Bunney v. Poyntz, 4 B. & Ad. 568 ; 1 N. & M. 229 .'.".'.'.'.'.'627 679 
 
 Burdick v. Sewell. (See Sewell v. Burdick.) 
 
 Burges v. Wiokham, 33 L. J. Q. B. 17 ; 3 B. & S. 669 ig 
 
 Burgon V. Sharpe, 2 Camp. 529 ^, 
 
 Burke v. S. E. Ey. Co., 6 C. P. D. 1 ; 49 L. J. 0. P. 107 • '41" L "t'WI '■ 
 
 28W. E. 306; 44 J. P. 283 ..'..*. T!'. ,.'.!; !.' Ill 
 
TABLE OF CASES CITED. xvii 
 
 SECT. 
 
 Burmester v. Hodgson, 2 Camp. 488 614 
 
 Bum V. Herlofson, 6 Asp. 126 590 
 
 Burngtt V. BouoET 9 C. & P. 620 121 
 
 Burrell v. Simpson, 4 Sess. Ca. (4th Series) 177 26 
 
 Burrill v. Grossman, 69 Fed. Rep. 747 i . . . 611, 650 
 
 Burrows v. March Gas Co., L. R. 6 Ex. 67 ; L. R. 7 Ex. 96 : 39 L. J. Ex. 
 
 ' 33; 41 L. J. Ex. 46; 22 L. T. 24; 26 L. T. 318; 30 "W. R. 493 717 
 
 Burton v. EngUsh, 12 Q. B. D. 218 ; 10 Q. B. D. 426 ; 53 L. J. Q. B. 133 ; 
 
 82 L. J: Q. B. 386 ; 48 L. T. 730 ; 31 W. R. 566 ; 49 L. T. 768 ; 32 W. R. 
 
 655 ; 6 Asp. M. C. 187 15, 80, 103, 105, 172, 364, 373h, 373o, 380 
 
 Barton v. Pinkerton, L. R. 2 Ex. 340 ; 36 L. J. Ex. 137 ; 17 L. T. 15 ; 15 
 
 W. R. 1139 246, 717 
 
 Bushire, The, 52 L. T. 740 ; 6 Asp. 416 , . 705 
 
 Butler v. Wooloot, 2 N. R. 64 ' 654 
 
 Byrne v. Pattison, Ahhott (5th), 335 ; (11th), iv. 8, 9 659 
 
 Byrne v. Schiller, L. R. 6 Ex. 20, 319 ; 40 L. J. Ex. 40, 177 ; 23 L. T. 741 ; 
 
 25 L. T. 211 ; 19 W. R. 161, 1114 303, 662, 565 
 
 C. S. Buller, The, L. R. 4 A. & E. 238 ; 31 L. T. 549 ; 23 W. R. 113 .... 24 
 
 Cachapool, The, 7 P. D. 217 ; 46 L. T. 171 ; 4 Asp. M. C. 602 30, 31 
 
 CafEarini v. Walker, Ir. R. 10 C. L. 250 448, 629 
 
 Caffin r. Aldridge, (1895) 2 Q. B. 366, 648 ; 1 Com. Ca. 130, 181 ; 64 L. J. 
 
 Q. B. 736 ; 65 L. J. Q. B. 85 ; 73 L. T. 426 262, 286 
 
 Cahn V. Pockett's, &c. Co., (1899) 1 Q. B. 643 ; (1898) 2 Q. B. 61 ; 68 L. J. 
 
 Q. B. 515 ; 80 L. T. 269 ; 8 Asp. 616 504, 536 
 
 Cairo, The, L. R. 4 A. & E. 184 ; 43 L. J. Ad. 33 ; 30 L. T. 536 ; 22 W. R. 
 
 742 329 
 
 Calabar, The, L. R. 2 P. C. 238 ; 19 L. T. 768 32 
 
 Calder vj Dohell, L. R. 6 C. P. 486 ; 40 L. J. C. P. 224 ; 25 L. T. 129 ; 19 
 
 W. R. 978 127, 132 
 
 Calderou v. Atlas Co., 170 U. S. 271 103b 
 
 Caldwell v. Ball, 1 T. R. 205 503 
 
 Caledonia, The, 157 U. S. 124 17, 79, 102a, 725, 726 
 
 Cambrian, The, 76 L. T. 604 334 
 
 Camden v. Cowley, 1 W. Bl. 417 193 
 
 Camellia, The, 9 P. D. 27 ; 53 L. J. Ad. 12 ; 50 L. T. 126 ; 32 W. R. 495 ; 
 
 5 Asp. M. C. 197 333 
 
 CammeU v. Sewell, 27 L. J. Ex. 447 ; 29 L. J. Ex. 350 ; 6 Jur. N. S. 918 ; 
 
 8 W. R. 630 ; 5 H. & N. 728 211, 301 
 
 Campbell v. Thompson, 1 Stark. 490 320, 586, 698 
 
 Campion v. Colvin, 3 Bing. N. C. 17 ; 3 Soott, 338 ; 2 Hodges, 116 ... . 656, 674 
 Canada Shipping Co. v. British Shipowners' Mutual Protection Assoc, 22 
 a. B. D. 727 ; 23 Q. B. D. 342 ; 68 L. J. Q. B. 462 ; 61 L. T. 312 ; 38 
 
 W. R. 87; 6 Asp. Mar. C. 388 26, 101 
 
 Canada, The, 13 T. L. R. 288 43, 44, 156, 161, 162, 599 
 
 Candy «). M. Ry. Co., 38 L. T. 226 724 
 
 Cannan v. Meabum, 1 Bing. 243, 466 ; 2 Moo. 633 26, 297, 300, 305 
 
 Canova, The, L. R. 1 A. & E. 56 ; 12 Jur. N. S. 628 347 
 
 Capella, The, (1892) P. 70 ; 66 L. T. 388 ; 7 Asp. 158 346 
 
 Capper v. Forster, 3 Bing.~N. C. 938 ; 3 Soott, 129 ; 3 Hodges, 177 263 
 
 Capper v. Wallace, 6 Q. B. D. 163 ; 49 L. J. Q. B. 360 ; 42 L. T. 130 ; 28 
 
 W. R. 424 44, 151, 226,449, 452, 457 
 
 Card V. Hine, 39 Fed. Rep. 818 ; 232 
 
 Card i>. Hope, 2 B. & C. 661 36 
 
Xnu TABLE OF CASES CITED. 
 
 SECT. 
 
 Cargo ex Argos, L. K. 5 P. C. 134 ; 28 L. T. 745 ; 21 W. R. 707 ; 42 L. J. 
 
 Ad. 49...... 295,296,459, 544,693,694,695 
 
 Cargo ex Capella, L. E. 1 A. & E. 356 ; 16 L. T. 800 342, 346 
 
 Cargo ex Galam, 33 L. J. Ad. 97 ; 9 1,. T. 650 ; 12 W. R. 495 ; 2 Moo. P. 
 
 C. N. S. 216 ; 10 Jtir. N. S. 477 307, 319, 394, 442, 445, 554, 668, 698 
 
 Cargo ex Honor, L. R. 1 A. & E. 87 ; 35 L. J. Ad. 113 ; 16 W. R. 10 ; 12 
 
 Jur. N. S. 773 , . 332 
 
 Cargo ex Laertes, 12 P. D. 187 ; 57 L. J. Adm." 108 ; 67 L. T. 502 ; 36 
 
 W. R. Ill; 6A8p. Mar. C. 174 79, 102, 342 
 
 Cargo ex Olivier, 31 L. J. Ad. 137 ; Lush. 484 ; 6 L. T. 259 316 
 
 Cargo ex Sarpedon, 3 P. D. 28 ; 37 L. T. 505 ; 26 W. R. 374 324 
 
 Cargo ex Schiller, 2 P. D. 146 ; 1 P. D. 473 ; 36 L. T. 714 ; 35 L. T. 97 ; 
 
 46 L. J. Ad. 9 330, 331, 352, 366, 394 
 
 Cargo ex Sultan, Swa. 504 ; 5 Jur. N. S. 1060 296, 313, 316 
 
 Cargo ex XJIysses, 13 P. D. 205; 58 L. J. Adm. 11; 6 Asp. Mar. C. 
 
 354 336 
 
 Cargo ex "Woosung, 1 P. D. 260 ; 44 L. J. Ad. 45 ; 33 L. T. 394 ; 25 W. R. 1 ; 
 
 36 L. T. 8 ; 3 Asp. 50 332, 347 
 
 Cargo per Maori King v. Hughes, (1896) 2 Q. B. 660 ; 64 L. J. Q. B. 744 ; 
 
 73 L. T. 141 , 19a, 79, 102a 
 
 Cargo per "Waikato v. New Zealand S.S. Co., (1898) 1 Q. B. 646 ; (1899) 1 
 
 Q. B. 56 ; 68 L. J. Q. B. 1 ; 79 L. T. 326 102a, 166 
 
 Carib Prince, The, 170 U. S. 665 17, 79, 102a, 103, 103o 
 
 Carishrook, The, 15 P. D. 98 ; 69 L. J. Adm. 37 ; 62 L. T. 843 ; 38 W. R. 
 
 543 624b 
 
 Carl XV., The, (1892) P. 132, 324 ; 61 L. J. P. Ill 30 
 
 Carlton S.S. Co. v. Castle, &o. Co., 2 Com. Ca. 173 ; (1897) 2 Q. B. 485 ; 
 
 (1898) A. G. 486 ; 67 L. J. Q. B. 795; 78 L. T. 661.. 249, 261, 615, 624b, 628 
 Carmichael r. Liverpool Sailing Ship Owners' Assoc, 19 Q. B. D. 242 ; 66 
 
 L. J. a. B. 428 ; 67 L. T. 850 ; 35 W. R. 793 ; 6 Asp. Mar. C. 184. .26, 101 
 Carnegie v. Conner, 24 Q. B. D. 46 ; 59 L. J. Q. B. 22 ; 61 L. T. 691 ; - 
 
 6 Asp. M. C. 477 141a 
 
 Carr v. Jackson, 21 L. J. Ex. 137 ; 7 Ex. 382 128 
 
 Carr ii. Wallaohian Petroleum Co., L. R. 1 C. P. 636 ; L. R. 2 C. P. 468 ; 
 
 36 L. J. C. P. 236 ; 16 L. T. 460 ; 15 W. R. 874 566 
 
 Carrier Dove, The, 2 Moo. P. C. N. S. 243 ; Br. & L. 113 322 
 
 Carron Park, The, 16 P. D. 203 ; 59 L. J. Adm. 74 ; 63 L. T. 356 .. 79, 101, 148, 
 
 342, 373c 
 Carter v. Crick, 28 L. J. Ex. 238 ; 4 H. & N. 412 171 
 
 Case *. Davidson, 5 M. & S. 79 ; 2 B. & B. 379 ; 5 Moore, 116 ; 8 Price, 
 
 642 691, 600 
 
 Cassaboglou v. Gibb, 9 Q. B. D. 220; 11 Q. B. D. 797; 51 L. J. Q. B. 
 '693 ; 52 L. J. Q. B. 638 ; 47 L. T. 98 ; 48 L. T. 850 ; 32 W. R. 138 • 46 
 
 J. P. 668 495 
 
 Castel V. Trechmann, 1 Cab. & EU. 276 454 550 
 
 CasteUaiu v. Preston, 11 Q. B. D. 380 ; 62 L. J. Q. B. 366 ; 49 L. T. 29 ; 
 
 31 W. R. 699 '702 
 
 Castlegate, The, (1893) A. C. -38 ; 62 L. J. P. C. 17 ; 68 L. T. 99 ; 7 Asp 
 
 284 589, 601, 696, 699, 707, App. B. 
 
 Castlegate S.S. Co. v. Dempsey, (1892) 1 Q. B. 54, 854 ; 61 L. J. Q. B. 620 • 
 
 66L.T. 742; 7 Asp. 186 614,'615a 
 
 Castrique v. Lnrie, L. R. 4 H. L. 414 ; 39 L. J. C. P. 350 ; 23 L T 48 • 
 
 19W.R. 1 ;.,;...; 597 
 
 Catharine Chabners, The, 32 L. T. 847 , gg gg 274 
 
 Catley v. "Wintringham, 1 Peake, N. P. C. 202 4g2 
 
 Catling, Ex parte, Chadwiok, In re, 29 L. T. 431 , 513 
 
 Cato, The, 35 L. J. Ad. 116 ".'..".".'.'!!'.' 343 
 
 Cato D. Irving, 21 L. J. Ch. 6.75 ; 6 De G. & S. 210 ',".'.' ggo' 595 
 
TABLE OF CASES CITED. XIX 
 
 SECT. 
 
 Cator V. Great Western Ins. Co. of New York, L. R. 8 0. P. 552 ; 42 L. J. 
 
 0. P. 266 ; 29 L. T. 136 ' 90 
 
 Caughey v. Gordon, 3 C. P. D. 419 ; 27 W. E. 50 , 587 
 
 Oawthron ». Triokett, 33 L. J. 0. P. 182 ; 9 L. T. 609 ; 12 "W. E. 311 ; 15 
 
 C. B. N. S. 754 47, 589, 602, 638, 643 
 
 Cella, The, 13 P. D. 82 ; 57 L. J. Adm. 55 ; 59 L. T. 125 ; 26 "W. E. 
 
 640 684, 700 
 
 Celtic King, The, (1894) P. 175 ; 63 L. J. P. 37 ; 70 L. T. 652 41a 
 
 Chapman v. G. "W. Ry. Co., 6 Q. B. D. 278 ; 49 L. J. Q. B. 420 ; 42 L. T. 
 
 252 ; 28 W. E. 666 ; 44 J. P. 363 474 
 
 Chapman v. Eoyal Netherland S. Nav. Co., 4 P. D. 157 ; 48 L. J. Ad. 449 ; 
 
 40 L. T. 433 ; 27 "W. E. 554 704 
 
 Chappel V. Comfort, 10 C. B. N. S. 802 ; 31 L. J. C. P. 58 ; 4 L. T. 448 ; 
 
 9 W. E. 694 ; 8 Jur. N. S. 177 63, 162, 637, 670, 671 
 
 Charles, The, L. E. 3 A. & E. 636 ; 26 L. T. 594 ; 21 W. E. 13 348 
 
 Charles AmeHa, The, L. E. 2 A. & E. 330 ; 38 L. J. Ad. 17 ; 19 L. T. 
 
 429 698 
 
 Charleton v. Cotesworth, E. & M. 175 587 
 
 Charlotte WyKe, The, 2 W. Eob. 495 324, 332, 351 
 
 Charlton, The, 73 L. T. 49 ; 72 L. T. 198 ; 11 E. 825 30, 31 
 
 Charpentier v. Dunn, 15 Sc. L. E. 726 226, 449 
 
 Chartered Mercantile Bank of India v. Netherland India S. NaT. Co., 9 
 Q. B. D. 118 ; 10 Q. B. D. 621 ; 52 L. J. Q. B. 220 ; 48 L. T. 646 ; 31 
 W. E. 445 ; 5 Asp. M. 0. 66 ; 47 J. P. 260 . . 56, 77, 88, 93, 101, 102, 210, 
 
 704, 705, 709 
 Chasoa, The, L. E. 4 A. & E. 446 ; 44 L. J. Ad. 17 ; 23 L. T. 838 . . 87, 88, 
 
 94, 99 
 
 Chase v. Westmore, 5 M. & S. 180 ; 2 Marsh. 346 654 
 
 Chatenay v. Brazilian Submarine Telegraph Co., (1891) 1 Q. B. 79 ; 39 W. 
 
 E. 65 ; affirming, 63 L. T. 276 203, 212 
 
 Chattahoochee, The, 173 U. S. 540 103f, 704 
 
 Chaurand i>. Angerstein, 1 Peake, 61 , 169 
 
 Chavasse, Ex parte, Grazebrook, In re, 34 L. J. Ch. 17 ; 4 De G. & S. 655; 
 
 11 Jut. N. S. 400 ; 12 L. T. 249 ; 13 W. E. 627 245, 246 
 
 Cheerful, The, 11 P. D. 3 ; 55 L. J. Adm. 5 ; 54 L. T. 56 ; 34 W. E. 307 ; 
 
 6 Asp. M. C. 525 327, 333 
 
 Chetah, The, D. E. 2 P. C. 206 ; 38 L. J. Adm. 1 ; 19 L. T. 621 ; 17 W. E. 
 
 233 ; 6 Moore, P. C. C. N. S. 278 333 
 
 Chinnery v. Blackbume, 1 H. Bl. 117 (n.) ; 3 Dougl. 391 592, 595 
 
 Chioggia, The, (1898) P. 1; 66 L. J. P. 174; 77L.T.472; 8 Asp. 362. .317, 318 
 Christie V. Lewis, 2 B. & B. 410 ; 5 Moo. 211. .114, 161, 599, 655, 662, 676, 681 
 Christoffersen v. Hansen, L. E. 7 Q. B. 509 ; 41 L. J. Q. B. 217 ; 26 L. T. 
 
 647 ; 20 W. E. 626 649 
 
 Christy v. Eow, 1 Taun. 300 240, 296, 307, 568, 607 
 
 Chrystal v. Elint, 28 Fed. Eep. 472. (See The Irrawaddy) 436 
 
 Chundersein v. Eyan, 6 L. T. 559 504 
 
 Cito, The, 7 P. D. 5 ; 51 L. J. Adm. 1 ; 45 L. T. 663 ; 30 W. E. 836 ; 4 
 
 Asp. M. C. 468 307, 308, 556 
 
 City Bank «. Barrow, 5 A. C. 664; 43 L. T. 393 ». 504 
 
 City of Cambridge, The, L. E. 5 P. C. 451 ; L. E. 4 A. & E. 161 ; 43 L. J. 
 
 Ad. U ; 30 L. T. 439 ; 22 W. E. 578 30, 31, 32 
 
 Citv of Chester, The, 9 P. D. 182 ; 53 L. J. Ad. 90 ; 51 L. T. 486 ; 33 "W. 
 
 E. 104 332, 345 
 
 City of Lincoln, The, 15 P. D. 15 ; 59 L. J. Adm. 1 ; 62 L. T. 49 ; 38 
 
 •W-.E.345 .! 714, 717 
 
 City of Mecca, The, 5 P. D. 28 ; 6 P. D. 106 ; 60 L. J. Ad. 53 ; 44 L. T. 
 
 760 ; 4 Asp. M. C. 412 697 
 
 City of Peking, The, 15 A. C. 438 ; 59 L. J. P. C. 88 ; 63 L. T. 722 721 
 
 Clacevich v. Hutcheson, 25 So. L. E. 11 ; 15 Sess. Ca. (4th) 11 183, 462 
 
XX TABLE OF CASES CITED. 
 
 SECT. 
 
 Clan Maodonald, The, 8 P. D. 178 ; 52 L. J. Ad. 89 ; 49 L. T. 408 ; 32 W. 
 
 B. 154 • 461,475, 478 
 
 Clark t). BamweU, 12 How. 272 (U. S.) 13, 86 
 
 Clark V. Chambers, 3 Q. B. D. 327 ; 47 L. J. Q. B. 427 ; 38 L. T. 454 ; 26 
 
 W. R. 613 ''■' 
 
 Clarke v. Dunraven, Earl of. (See The Satanita.) 
 
 Clegg V. Levy, 3 Camp. 166 213 
 
 Clendaniel v. Tuckerman, 17 Barb. 184 544 
 
 CHfiEord V. Hunter, M. & M. 103 ; 3 C. & P. 16 18 
 
 Clifford V. Watts, L. E. 5 C. P. 577 ; 40 L. J. C. P. 36 ; 22 L. T. 717 ; 18 
 
 "W. B. 925 255 
 
 CHfton, The, 3 Hagg. 117 344 
 
 CUnk V. Hickie (1), 3 Com. Ca. 276 258o 
 
 Clink V. Hiokie (2), 4 Com. Ca. 292 ; 3 Com. Ca. 280 258b, 258o 
 
 Clink V. Eadford, (1891) 1 Q. B. 625 648, 649, 666, 667 
 
 CUpsham v. Virtue, 13 L. J. Q. B. 2 ; D. & M. 343 ; 5 Q. B. 265 ; 8 Jur. 
 
 32 230 
 
 Closmadeuo ». Carrel, 25 L. J. C. P. 216 ; 2 Jur. N. S. 474 ; 18 C. B. 36. . 120 
 
 Clyde Nav. Co. v. Barclay, 1 A. C. 790 ; 36 L. T. 379 32 
 
 Clymeue, The, (1897) P. 295 ; 66 L. J. P. 152 ; 76 L. T. 811 30 
 
 Coates V. Eailton, 6 B. & C. 422 ; 9 D. & B. 593 520 
 
 Cobban v. Downe, 5 Esp. 41 68, 251 
 
 Cochran v. Eetberg, 3 Esp. 121 169, 613 
 
 Cochrane v. Gilkison, 16 Sess. Ca. (2nd)-548 312 
 
 Cock V. Taylor, 13 East, 399 ; 2 Camp. 587 603 
 
 Cockbume v. Alexander, 18 L. J. C. P. 74 ; 6 C. B. 791 196, 263, 267 
 
 Cockey v. Atkinson, 2 B. & A. 460 448 
 
 Coggs V. Bernard, 2 Ld. Eaym. 909 ; 1 Sm. L. C. 199 2 
 
 Cohen v. S. E. Ey. Co., 2 Ex. D. 253 ; 1 Ex. D. 217 ; 46 L. J. Ex. 417 ; 
 
 46 L. J. Ex. 298 ; 36 L. T. 130 ; 35 L. T. 213 ; 25 W. E. 476 108, 212 
 
 Cohn V. Davidson, 2 Q. B. D. 455 ; 46 L. J. Q. B. 305 ; 36 L. T. 244 ; 25 
 
 W. B. 369 21, 291 
 
 Cole V. Meek, 33 L. J. C. P. 183 ; 9 L. T. 653 ; 12 "W. B. 349 ; 15 C. B. 
 
 N. S. 795 265 
 
 Cole V. North Western Bank, L. E. 10 C. P»,254 ; 44 L. J. C. P. 233 ; 32 
 
 L. T. 733 ; 22 W. B. 861 490 
 
 Coleman v. Lambert, 5 M. & W. 602 604 
 
 Coleman v. Biches, 24 L. J. C. P. 125 ; 1 Jur. N. S. 596 ; 16 C. B. 104; 
 
 3 C. L. B. 795 69 
 
 CoUard v. S. E. Ey. Co., 30 L. J. Ex. 393 ; 4 L. T. N. S. 410 ; 9 W. B. 
 
 697 ; 7 H. & N. 79 ; 7 Jur. N. S. 960 726 
 
 CoKma, The, 82 Fed. Eep. 666 103d 
 
 CoUeni). Wright, 26 L.J. Q. B. 147; 27 L. J. Q. B. 215 ; 3 Jur. N. S. 363; 
 
 4 Jur. N. S. 357 ; 8 E. & B. 647 129, 731 
 
 ColUer, The, L. E. 1 A. & E. 83 ; 12 Jur. N. S. 789 .'.....' 343 
 
 . CoUina ji. Lamport, 34 L. J. Ch. 196; 11 L. T. 497; 13 W. E. 283; 11 
 
 Jur. N. S. 1, ' 40, 692 
 
 Colombus, The, 3 W. Bob. 158 yjg 
 
 Colt V. M'Mechan, 6 Johns. 160 g 
 
 Columbian Ins. Co. v. Ashby, 13 Peters (U. S.) 331 387, 389, 434, 436, 437 
 
 Columbus, The, 80 L. T. 203 ; 8 Asp. 488 _' 30 
 
 Colvin V. Newberry, 1 CI. & E. 283 112, lie, 153, 165, 159 
 
 Commercial S.S. Co. v. Boulton, L. B. 10 Q. B. 346 ; 44 L. J. Q. B. 219 • 
 
 33 L. T. 707 ; 23 W. B. 854 ; 3 Asp. M. C. Ill ." 613' 631 
 
 CompanhiadeNayigacioalaPleohaii. Brauer, 168 (U. S.) 104..77 87 99* 103 
 
 Cosnor V. Smythe, 5 Taun. 654 27o' 630 
 
TABLE OF CASES CITED. xxi 
 
 SECT. 
 
 Consett, The, 5 P. D. 229 ; 49 L. J. P. 24 ; 42 L. T. 33 728 
 
 Constable's Case, 6 Coke's Eep. 106 355 
 
 Constanoia, The, 2'W.Eob. 487; 10 Jur. 846. .211, 317, 318, 320, 394, 445, 485 
 
 Cook V. Jennings, 7 T. E. 381 '. 307, 547 
 
 Coombs V. Bristol & Exeter Ry. Co., 27 L. J. Er. 401 ; 3 H. & N. 510 . . . . 61 
 Cooper, Ex parte, McLaren, In re, 11 Ch. D. 68 ; 48 L. J. Bk. 49 : 40 L. T. 
 
 105; 27W. R. 518 615, 525 
 
 Cooper V. BeU, 34 L. J. Ex. 161 ; 12 L. T. 466 ; 3 H. & 0. 722 510 
 
 Cope V. Cordova, 1 Eawle, 203 469 
 
 Cope V. Doherty, 27 L. J. Ch. 600 ; 4 Jur. N. S. 699 ; 4 Kay & J. 367 ; 2 
 
 Dea. & J. 614 24, 26, 697 
 
 Cope V. Vallette Dry Dock Co., 119 U. S. Rep. (12 Davis) 625 322 
 
 Copenhagen, The, 1 C. Rob. 289 666, 559 
 
 Copin V. Adamson, L. R. 9 Ex. 345 ; 1 Ex. D. 17 ; 43 L. J. Ex. 461 ; 31 
 
 L. T. 242 ; 22 W. R. 658 ; 45 L. J. Ex. 15 ; 33 L. T. 33 ; 24 W. R. 85. . 697 
 
 Coriolanus, The, 15 P. D. 103 ; 59 L. J. Adm. 59 ; 63 L. T. 844 336 
 
 Cork DistiUeries Co. v. Or. S. W. Ry. Co., L. R. 7 H. L. 269; 8 Ir. E. C. L. 
 
 334 61, 484 
 
 Corkling v. Massey, L. R. 8 C. P. 392 ; 42 L. J. C. P. 153 ; 28 L. T. 636 ; 
 21 W. E. 680 143 
 
 Cormack v. Gladstone, 11 East, 347 285 
 
 Corry v. Robinson, Stevens on Stowage (5th), 153, 671 281 
 
 Cory V. Burr, 8 Q. B. D. 313 ; 9 Q. B. D. 463 ; 8 A. C. 393 ; 51 L. J. Q. B. 
 
 468 ; 52 L. J. Q. B. 657 ; 47 L. T. 181 ; 49 L. T. 78 ; 31 W. R. 894 ; 4 
 
 Asp. M. C. 559 : 5 Asp. M. 0. 109 .- 99 
 
 Cory V. Stewart, 2 Times L. E. 608 41 
 
 Cory V. Thames Ironworks Co., L. R. 3 Q. B. 181 ; 37 L. J. Q. B. 68 ; 17 
 
 L. T. 495 ; 16 "W. E. 457 714 
 
 Coulthurst V. Sweet, L. R. 1 C. P. 649 36, 37, 577, 582 
 
 " County of Lancaster " S.S. v. Sharp, 24 Q. B. D. 158 ; 59 L. J. Q. B. 22 ; 
 
 61 L. T. 692 605, 639 
 
 Courtney v. Cole, 19 Q. B. D. 447 ; 66 L. J. M. C. 141 ; 67 L. T. 409 ; 36 
 
 W. E. 8 30 
 
 Couturier v. Hastie, 5 H. L. C. 673 ; 25 L. J. Ex. 253 ; 2 Jur. N. S. 1241 . 137 
 Coupe Co. V. Maddick, (1891) 2 Q,. B. 413 ; 60 L. J. Q. B. 676 ; 65 L. T. 
 
 489 112 
 
 Coventina, The, 52 Eed. Eep. 156 ; 82 
 
 Coventry®. Gladstone, L. E. 6 Eq. 44 ; 37 L. J. Ch. 492 ; 16 W. E. 837. . 614 
 
 Coventry v. G. E. Ey. Co., 11 Q. B. D. 776 ; 52 L. J. Q. B. 694 69 
 
 Ooverdale «. Grant. (See .Grant v. Coverdale.) 
 
 Covington iJ. Eoberts, 2 B. & P. N. E. 378 383 
 
 Cowasjee v. Thompson, 5 Moo. P. C. 165 ; 3 Moo. Ind. App. 422 60, 511 
 
 Cowdenbeath Coal Co. v. Clydesdale Bank, 22 Sess. Ca. (4th) 682 487, 511 
 
 Cox V. Bruce, 18 Q. B. D. 147 ; 56 L. J. Q. B. 121 ; 57 L. T. 128 ; 35 "W. E. 
 
 207 ; 6 Asp. Mar. C. 152 , 63, 69a 
 
 Cox V. L. & N. W. Ey. Co., 3 E. & P. 77 14 
 
 Cox 1). May, 4 M. & S. 152 360,351, 352, 365, 394 
 
 Coxe V. Harden, 4 East, 211 ; 1 Smith, 20 492 
 
 Craig V. Delargy, 16 Sc. L. E. 751 ; 6 Sess Ca. (4th) 127 63, 73, 78 
 
 Craigs, The, 6 P. D. 186 ; 29 W. R. 446 345 
 
 Cranston v. MarshaU, 5 Ex. 395 ; 19 L. J. Ex. 340 61 
 
 Craihie, The, (1897) P. 178 ; 66 L. J. P. 93 ; 76 L. T. 534 26, 27 
 
 Craven ». Ryder, 6 Taun. 433; Holt, 100; 2 Marsh. 127 60, 491, 534 
 
 Crawford «>. Wilson, 1 Com. Ca. 154, 277 -...2588, 626 
 
 Crawshay v. Eades, 1 B. & C. 181 ; 2 D. & E. 288 515, 619 
 
 Crawshay v. Homfray, 4 B. & A. 50 '...,. 654 . 
 
XXll TABLE OF CASES CITED. 
 
 BEOT. 
 
 Creadon, The, 54 L. T. 880 27 
 
 Gressington, The, (1891) P. 162; 60 L. J. Adm. 25 87, 101 
 
 Crew V. Great Western S.S. Co., 4 Times R. 148 ; W. N. 1887, 161 . , . , . . 82 
 
 Crockett v. Dodge, 3 Fairf. 190 369 
 
 Crookewif *. Fletcher, 26 L. J. Ex. 153 ; 1 H. & N. 893 149, 219 
 
 Crooks V. Allan, 5 Q. B. D. 38 ; 49 L. J. Q. B. 201 ; 41 L. T. 800 ; 28 
 
 "W. K. 304 ; . 66, 80, 106, 373b, 442 
 
 Cropper v. Cook, L. R. 3 C. P. 194 ; 16 W. R. 696 184, 190 
 
 Crosby v. Fitoh, 12 Conn. 410 290 
 
 Cross V. Eglin, 2 B. & Ad. 106 171 
 
 Cross ». PagUano, L. E. 6 Ex. 9 ; 40 L. J. Ex. 18 ; 23 L. T. 420 ; 19 W. R 
 
 159 123, 173 
 
 Crouch V. Credit Fonoier of England, L. R. 8 Q. B. 374; 42 L. J. Q. B. 
 
 183 ; 29 L. T. 269 ; 21 "W. R. 946 194 
 
 Crouch V. G. W. Ry. Co., 27 L. J. Ex. 346 ; 26 L. J. Ex. 418 ; 3 Jur. 
 
 N. S. 796 ; 2 H. & N. 491 473 
 
 Crouch V. L. & N..W. Ry. Co., 23 L. J. C. P. 73 ; 18 Jur. 148 ; 14 C. B. 
 
 265 ; 7 RaUw. Cas. 717 ; 2 C. L. R. 188 4, 730 
 
 Crow V. Armstrong, Stevens on Stowage (5tli), 607 272 
 
 Crow V. Falk, 15 L. J. Q. B. 183 ; 8 Q. B. 467 ; 10 Jur. 374 , 148 
 
 Crozier v. Smith, 1 M. & G. 407 ; 1 Scott, N. R. 338 550, 670 
 
 Crystal, The, (1894) A. C. 508 ; 63 L. J. P. 146 ; 71 L. T. 346 360 
 
 CuUen V. Butler, 5 M. & S. 461 ; 1 Stark. 138 ; 4 Camp. 289 86 
 
 Cullen V. Enowles, (1898) 2 Q. B. 380 ; 67 L. J. Q. B. 821 35 
 
 Cumbrian, The, 57 L. T. 206 ; 6 Asp. M. C. 151 352 
 
 Cuming V. Brown, 9 East, 506 ; 1 Camp. 104 538 
 
 Cunard v. Hyde, 29 L. J. Q. B. 6 ; 27 L. J. Q. B. 408 ; 5 Jur. N. S. 408 ; 
 
 E. B. &E.670; 6 Jur. N. S. 14 237, 282 
 
 Cunard v. Van Oppen, 1 P. & F. 176 121 
 
 Cunliffe ». Whitehead, 3 Bing. N. C. 829 ; 6 Scott, 31 ; 6 D. P. C. 63 ; 3 
 
 Hodges, 182 487 
 
 Cunningham v. Collier, 4 Doug. 233 130 
 
 Cunningham v. Colvils, 26 So. L. R. 249 ; 16 Sess. Ca. (4th) 295 18, 79, 144 
 
 Cunningham v. Dunn, 3 C. P. D. 443 ; 48 L. J. C. P. 62 ; 28 L. T. 631 227, 
 
 228, 229, 247, 265, 616 
 
 Cunningham v. Guthrie, 26 Sc. L. R. 208 , , 64, 66a 
 
 Curfew, The, (1891) P. 131 167, 249,271, 297 
 
 Curling v. Long, 1 B. & P. 634 242, 547 
 
 Currie v. M'Knight, (1897) A. C. 97 ; 66 L. J. P. C. 19 ; 75 L. T. 457 ; 
 
 8 Asp. 193 698, 707 
 
 Curtis V. Williamson, L. R. 10 Q. B. 67 ; 44 L. J. Q. B. 27 ; 31 L. T 678 • 
 23 W. R. 236 ; 132 
 
 Cusaok V. Robinson, 30 L. J. Q. B. 261 ; 4 L. T. 506 ; 9 W. R. 735 ; 1 B & S 
 299 ; 7 Jur. N. S. 642 617 
 
 Outhbert v. Gumming, 11 Ex. 406, 24 L. J. Ex. 198, 310 ; 1 Jur. N. S. 686. . 169 
 
 182, 198, 265, 266 
 Cutler V. North London Ry. Co., 19 Q. B. D. 64 ; 66 L. J. Q B 648 ■ 56 
 
 L. T. 639 ; 36 W. R. 674 '.....'. .6, 110 
 
 Cybele, The, 2 P. D. 224 ; 3 P. D. 8 ; 47 L. J. Ad. 86 ; 37 L.' T." 773 • 26 
 
 W. R. 345 '...332 
 
 Czech 11. Gen. S. Nav. Co., L. R. 3 C. P. 14 ; 37 L. J. G P 3 • 17 L T 
 
 246 ; 16 W. R. 130 '...'..... 77, 78, 95 
 
 D. 
 
 Dabney v. New England, &o. Co., 14 Allen (Mass.) 300 3741, 
 
 _ Da Costa r. Edmonds, 4 Camp. 142 ; 2 Chitt. 227 " jgo 
 
TABLE OF CASES CITED. xxiii 
 
 SECT. 
 
 Da Costa v. Newnham, 2 T. R. 407 392, 403, 405 
 
 Dahl V. Nelson (see Nelson v. Dahl) 240, 450, 462, 619, 623, 625, 628 
 
 DaMn v. Oxley, 33 L. J. C. P. 119 ; 10 L. T. 268 ; 12 W. R. 567 ; 15 C. B. 
 
 N. S. 646 ; 10 Jur. N. S. 655 644, 549, 576 
 
 Dalbeattie SS. Co. i). Card, 57 Fed. Rep. 304 621 
 
 Dale V. Hall, 1 Wils. 282 3, 5, 10 
 
 DairOrso ». Mason, 4 Sess. Ca. (4th) 419 460, 624b, 628 
 
 Dalton V. Irwin, 4 C. & P. 289 .' 121 
 
 Dalyell v. Tyrer, 28 L. J. Q. B. 52 ; 5 Jur. N. S. 335 ; E. B. & E. 899 114 
 
 Daniels v. Harris, L. R. 10 C. P. 1 ; 44 L. J. 0. P. 1 ; 31 L. T. 408 ; 23 
 
 "W. R. 86 19, 281 
 
 Dannebrog, The, L. R. 4 A. & E. 386 ; 44 L. J. Ad. 21 ; 31 L. T. 759 ; 23 
 
 W. R. 419 688 
 
 Danube and Black Sea Ry. Co. i-. Xenos, 31 L. J. C. P. 284 ; 5 L. T. 527 ; 
 
 10 W. R. 320 ; 13 C. B. N. S. 825 ; 8 Jur. N. S. 439 270 
 
 Danzig, The, 32 L. J. Ad. 164 ; 9 E. T. 236 ; B. & L. 112 686 
 
 D'Aro V. L. & N. W. Ry. Co., L. R. 9 C. P. 325 ; 30 L. T. 763 : 22 W. R. 
 
 919 103 
 
 Daring, The, L. R. 2 A. & E. 260 ; 37 L. J. Ad. 29 445 
 
 DarreU v. Tibbitts, 5 Q. B. D. 560 ; 50 L. J. Q. B. 33 ; 42 L. T. 797 ; 29 
 
 W. R. 66; 44 J. P. 695 702 
 
 Davidson v. Burnand, L. R. 4 C. P. 117 ; 38 L. J. C. P. 73 ; 19 L. T. 782 ; 
 
 17 W. R. 121 . . . . '. 91 
 
 Davidson ». Gwynne, 12 East, 381 151, 176, 177, 231, 268, 447 
 
 Davies v. MoVeagh, 4 Exch. 268; 48 L. J. Exeh. 686; 28 W. R. 143. .623, 624 
 
 Davis V. Bowsher, 5 T. R. 488 192 
 
 Davis «. Garrett, 6 Bing. 716; 4 M. & P. 540 16, 287 
 
 Davis V. James, 5 Burr. 2680 61 
 
 Davis V. Johnston, 4 Sim. 539 38 
 
 Davisi!. L. &N. W. Ry. Co., 32L. T. O. S. 148 : 718 
 
 Davis V. Reynolds, 4 Camp. 267 ; 1 Stark. 115 500, 634 
 
 Dawes v. Peek, 8 T. R. 330 ; 3 Esp. 12 61 
 
 Dean v. Hogg, 10 Bing. 345 ; 4 M. & Scott, 188 114 
 
 Dean v. Hornby, 23 L. J. Q. B. 129 ; 18 Jur. 623 ; 3 E. & B. 180 ; 2 C. 
 
 L. R. 1519 89 
 
 De Bay, The, 8 A. C. 559 ; 52 L. J. P. C. 67 ; 49 L. T. 414 344, 345 
 
 De Cuadra v. Swann, 16 C. B. N. S. 772 302 
 
 Dederer v. Delaware Ins. Co., 2 Wash. C. C. 61 99 
 
 Deeze, Ex parte, 1 Atk. 228 192 
 
 Defeel V. BrocHebauk, 3 Bligh. 561 ; 4 Price, 36 221 
 
 De Hart ». Stevenson, 1 Q. B. D. 313 ; 45 L. J. Q. B. 675 ; 24 W. R. 
 
 367 35 
 
 De la Vega v. Vianna, 1 B. & Ad. 284 697 
 
 Delaurier v. WyUie, 27 So. L. R. 148 ; 17 Sess. Ca. (4th) 167 66a, 67, 
 
 160, 705 
 
 Delaware, The, 14 Wall. 579 ; 161 XT. S. 459 56, 103f, 164, 281 
 
 Delta, The, 1 P. D. 393; 46 L. J. P. Ill; 35 li. T. 376; 25 W. R.46.... 697 
 
 De Mattos v. Gibson, 28 L. J. Ch. 498 ; 4 De G. & J. 276 39 
 
 Denholm v. Halmoe, 26 So. L. R. 112 69, 206 
 
 Dent V. Smith, L. R. 4 Q. B. 414 ; 38 L. J. Q. B. 144 ; 20 L. T. 868 ; 17 
 
 W. R. 646 89 
 
 De Rothschild v. Royal Mail S. Packet Co., 21 L. J. Ex. 273 ; 7 Ex. 734 . . 86, 94 
 
 De SUvale i". Kendal, 4 M. & S. 37 303, 562, 564 
 
 Deslandes v. Gregory, 29 L. J. Q. B. 93 ; 30 L. J. Q. B. 36; 8 W. R. 585; 
 
 2 E. & E. 602 ; 6 Jur. N. S. 651 62, 128 
 
XXI V TABLE OF CASES CITED. 
 
 SECT. 
 
 De Vaux v. Salvador, 4 A. & E. 420 ; 6 N. & M. 713 ; 1 H. & "W. 761 ; 5 
 
 L. J. K. B. N. S. 134 406 
 
 De Wutz V. Hendricks, 2 Bing. 314 ; 9 Moore, 586 216 
 
 Dewell V. Moxon, 1 Taun. 390 43 
 
 Diana, The, 1 "W. Bob. 131; 5 0. Bob. 67 .....32, 643 
 
 Dick V. Badart, 10 Q. B. D. 387 ; 48 L. T. 391 ; 5 Asp. M. C. 49 ; 47 
 
 J. P. 422 464 
 
 Dick V. Lmnsden, 1 Peake, N. P. C. 189 .' . 600, 634 
 
 Dickenson v. Jardine, L. E. 3 C. P. 639 ; 37 L. J. C. P. 321 ; 18 D. T. 717; 
 
 16 W. R. 1169 196, 416 
 
 Dickinson v. Kitchen, 8 E. & B. 789 40 
 
 Dickinson v. Lano, 2 E. & F. 188 61, 187, 602, 638 
 
 Dickinson v. Martini, 1 Sess. Ca. (4th) 1185 629 
 
 Dickson V. Buchanan, 13 Sc. L. fl. 401 649 
 
 Dickson «;. Gt. N. By. Co., 18 Q. B. D. 176 4, 110 
 
 Dictator, The, (1892) P. 304 684, 698 
 
 Diederichsen v. Farquharson, (1898) 1 Q. B. 160 ; 67 L. J. Q. B. 103 ; 77 
 
 L. T. 543 ; 8 Asp. 333 156, 160 
 
 Dimech v. Corlett, 12 Moo. P. C. 199 143, 177, 230, 270, 718, 720, 722 
 
 Dirks V. Richards, Car. & M. 626 ; 4 M. & G. 574 ; 6 Scott, N. B. 534 ; 6 
 
 Jur. 562 679 
 
 Dixon V. Baldwen, 5 East, 175 522 
 
 Dixon V. Heriot, 2 F. & P. 760 144 
 
 Dixon e. MetropoUtan Board of Works, 7 Q. B. D. 418; 60 L. J. Q. B. 
 
 772 ; 45 L. T. 312 ; 30 "W. E. 83 ; 46 J. P. 4 8 
 
 Dixon V. Reid, 5 B. & A. 597 ; 1 D. & R. 207 99 
 
 Dixon V. Royal Exchange Shipping Co., Times, 20th Dec, 1884 ; Times, 
 
 19th May, 1885 (see Royal Exchange Shipping Co. v. Dixon) . . 15, 77, 281, 379 
 Dixon ». Sadler, 6 M. & W. 405; 8 M. & W. 895; 9 L. J. N. S. Ex. 48,. 18, 19b 
 
 Dixon V. Tates, 6 B. & Ad. 313 ; 2 N. & M. 177 517 
 
 Dobbin v. Thornton, 6 Esp. 16 639, 643 
 
 Dobell V. Green, (1900) 1 Q. B. 526 ; 4 Com. Ca. 85 257b, 258o 
 
 DobeU •!). Rossmore, (1895) 2 Q. B. 408 ; 64 L. J. Q. B. 777 ; 73 L. T. 
 
 74 103d 
 
 Dobell V. Watts, 7 T. L. R. 426, 622 608. 
 
 Dobson V. Droop, M. & M. 441 ; 4 C. & P. 112 640, 642 
 
 Dobson D. Wilson, 3 Camp. 480 ; 395^ 445 
 
 Dodson V. Wentworth, 12 L. J. C. P. 69 ; 6 Jur. 1066 ; 4 M. & G. 1080; 5 
 
 Scott, N.R. 821 517 
 
 Domett V. Beckford, 5 B. & Ad. 621 602 
 
 Don V. Lippman, 6 CI. & F. 1 , 697 
 
 Donaldson, The J. P., 167 U. S. 599 .".',"374b 
 
 Donaldson v. Forster, Abbott (5th) 208 , 262 
 
 Donaldson v. Little, 10 Sess. Ca. (4th) 413 148 
 
 Doolan v. M. Ry. Co., 2 A. C. 792 ; 37 L. T. 317 ; 25 W. R. 882 28, 29, 
 
 108,' 116 
 Dormont v. Fumess Ry. Co., 11 Q. B. D. 496 ; 52 L. J. Q. B. 331 ; 49 
 
 L. T. 134; 47 J. P. 711 '....360 
 
 Dorothy Foster, The, 6 C. Rob. 88 !!'.".."."."!*. 361 
 
 Douglas, The, 7 P. D. 151 ; 61 L. J. Ad. 89; 47 L. T. 502; 30 W. R. 692*; 
 
 5 Asp. M. C. 15 _' 3gQ 
 
 Douglas V. Cooksey, Ir. Rep. 2 Eq. 311 gig 
 
 Douglas V. Kemble, 3 Bing. 383 ; 11 Moo. 251 g03 
 
 Douglas V. RuBseU, 4 Sim. 524 ; 1 Mylue & K. 488 , 595 
 
TABLE OF CASES CITED. XXV 
 
 SECT. 
 
 Dowse, The, L. R. 3 A. & E. 135 ; 39 L. J. Ad. 46 ; 22 L. T. 627 ; 18 
 W. R. 1008 693 
 
 Dowthorpe, The, 2 W. Rob. 73 317 
 
 Dracaohi v. Anglo-Egyptian Nav. Co., L. R. 3 0. P. 190 ; 37 L. J. C. P. 
 
 71; 17L. T. 472; 16 W. R. 277 66, 497 
 
 Dresser v. Bosanquet, 32 L. J. Q. B. 57, 374 ; 11 W. R. 849 ; 9 Jur. N. S. 
 
 458 ; 4 B. & S. 460 192 
 
 Drew t). Bird, M. & M. 156 602 
 
 Drinkwater v. The Brig Spartan, Parsons' Shipping, Vol. I., pp. 174— 177. . 663 
 
 Druid, The, 1 W. Rob. 391 707 
 
 Dry V. Boswell, 1 Camp. 329 49 
 
 Duokett V. Satterfield, L. R. 3 C. P. 227 ; 37 L. J. C. P. 144 .... 169, 182, 265 
 
 Duero, The, L. R. 2 A. & E. 393 ; 38 L. J. Ad. 69 ; 22 L. T. 37 68, 101 
 
 Dufe V. Iron, &o. Co., 19 Seas. Ca. (4th) 199 714 
 
 Dufouroet v. Bishop, 18 Q. B. D. 373 ; 57 L. J. Q. B. 497 ; 56 L. T. 633 ; 
 
 6 Asp. Mar. C. 109 , 666 
 
 Duke of Manchester, The, 2 W. Rob. 470 ; 6 Moo. P. 0. 90 346 
 
 Dumfries, The, Swab. 63 709 
 
 Dunbeth, The, (1897) P. 133 ; 66 L. J. P. 66 ; 76 L. T. 668 16, 286 
 
 Duncan v. Dundee, Perth and London Shipping Co., 15 Sc. L. R. 429 ; 5 
 
 Sess. Ca. (4th) 742 324a, 352 
 
 Duncan v. Topham, 18 L. J. C. P. 310 ; 8 C, B. 255 466 
 
 Dunlop V. BaUour, (1892) 1 Q. B. 507 ; 61 L. J. Q. B. 354 ; 66 L. T. 
 
 455 614, 648, 649, 667 
 
 Donlop V. Lambert,- 6 CI. & P. 600 61 
 
 Durham City, The, 14 P. D. 85 ; 58 L. J. Adm. 46 ; 61 L. T. 339 ; 6 Asp. 
 
 M. C. 411 572, App. B. 
 
 Duthie V. HUton, L. R. 4 C. P. 138 ; 38 L. J. C, P. 93 ; 19 L. T. 286 ; 17 
 
 W. R. 55 545, 549 
 
 Dutton V. Powles, 30 L. J. Q. B. 169 ; 31 L. J. Q. B. 191 ; 6 L. T. 224 ; 
 
 10 W. R. 408 ; 1 Asp. M. C. 9 . . . : 284 
 
 Dwina, The, (1892) P. 58 ; 61 L. J. P. 71 ; 66 L. T. 862 346 
 
 E. 
 
 E. A. Shores, The, 73 Feb. Rep. 324 103e 
 
 Earl of AucHand, The, 30 L. J. Ad. 121 ; 5 L. T. 458 ; 10 W. R. 124 ; 
 
 Lush. 387 ; 15 Moo. P. C. C. 384 30 
 
 Earle v. Rowecroft, 8 East, 126 99 
 
 East India Co. v. Tod, 1 Brown's P. C. 405 104 
 
 Edenbridge, Owners of, v. Green. (See The Rutland.) 
 
 Edenmore, The, (1893) P. 79; 69 L. T. 230 344 
 
 Edie V. East India Co., 2 Burr. 1226 ; 1 ,W. Bl. 295 188, 191, 487 
 
 Edmond, The, 29 L. J. Ad. 76 ; 30 L. J. Ad. 128 ; Lush. 57, 211 .... 314, 689 
 
 Edward Hawkins, The, 31 L. J. Ad. 46 ; 15 Moo. P. C. 486 333 
 
 Edward Oliver, The, L. R. 1 A. & E. 379 ; 36 L. J. Ad. 13 ; 16 L. T. 575. .317 
 
 Edwards v. Brewer, 2 M. & W. 376 619, 527 
 
 Edwards ». Sherratt, 1 East, 604 14 
 
 Elbinger, &o. v. Claye, L. R. 8 Q. B. 313 62 
 
 Elbinser-Actiengesellsohaft, &c. d. Armstrong, L. R. 9 Q. B. 473 ; 43 L. J. 
 
 Q. 1.211; 30L. T. 871; 23 W. R. 127, 714, 715,716 
 
 Eleanora Charlotta, The, 1 Hagg. 156 324 
 
 EKn The, 8 P. D. 39, 129 ; 61 L. J. Ad. 77; 52 L. J. Ad. 45 ; 49 L. T. 
 
 87; 31W.R.736 317 
 
 Eliza, The, 3 Hagg. 87 601 
 
XXVI TABLE OF CASES CITED. 
 
 SECT. 
 
 Eliza Cornish, The, 1 Sp. Ecc. & Ad. 36 ; 17 Jur. 738 -. 301 
 
 Eliza Lines, The, 61 Ped. Rep. 308 308, 373b, 445, 654, 561, 651 
 
 Elizabeth and Jane, The, 1 W. Eob. 278 38 
 
 Ella Constance, The, 33 L. J. Ad. 191 344 
 
 Ellen V. Topp, 20 L. J. Ex. 241 ; 6 Ex. 424 : 15 Jur. 451 177 
 
 EUershaw ». Magniac, 6 Ex. 670 492 
 
 Elliott V. Lord, 48 L. T. 642 ; 52 L. J. P. C. 23 ; 5 Asp. M. C. 63 . . . .252, 617 
 
 Elhott V. Eossell, 10 Johns. (N. Y.) 1 3, 5 
 
 EUis V. Hunt, 3 T. R. 464 , 509 
 
 EUis V. Turner, 8 T. E. 531 287 
 
 Emancipation, The, 1 W. Eob. 124 312 
 
 Emerald, The, (1896) P. 192 ; 65 L. J. P. 69 ; 74 L. T. 645 360 
 
 EmiHen Marie, The, 32 T. L. 436 ; 44 L. J. Ad. 9 ; 2 Asp. M. C. N. S. 
 
 514 63, 69, 70, 71, 152, 166,467, 468, 686, 696 
 
 Emily, The (In re Meyer), 74 Fed. Eep. 881 103g, 292a 
 
 Emma, The, 3 W. Eob. 151 ; 34 L. T. 742 344, 350, 394 
 
 Empire of Peace, The, 39 L. J. Ad. 12; 21 L. T. 763 310, 314 
 
 Empire Transp. Co. v. Philadelphia, &c. Co., 77 Fed. Eep. 919 612a, 616 
 
 Empress Eugenie, The, JiUsh. 138 719 
 
 Empusa, The, 5 P. D. 6 : 48 L. J. Ad. 36 ; 41 L. T. 383 ; 28 W. E. 263. . 27 
 Energie, The, L. E. 6 P. C. 306 ; 44 L. J. Ad. 25 ; 32 L. T. 679 ; 23 W. E. 
 
 932 476, 476, 680 
 
 England, The, 12 P. D. 32 ; 66 L. J. Adm. 115 ; 66 L. T. 896 ; 35 W. E. 
 
 367 36, 38 
 
 Eolides, T^he, 3 Hagg. 367 718 
 
 Erasmo Treglia v. Smith's Timber Co., 1 Com. Ca. 360 449,' 455, 466, 644 
 
 Erato, The, 13 P. D. 163 345 
 
 Eriohsen v. Barkworth, 27 L. J. Ex. 472 ; 28 L. J. Ex. 95 ; 3 H. & N. 601 ; 
 
 894 ; 5 Jur. N. S, 617 156, 609, 644, 683 
 
 Erskine v. Adeane, L. E. 8 Ch. 756 ; 42 L. J. Ch. 835 ; 29 L. T. 234 ; 21 
 
 W. R. 802 164 
 
 Esposito V. Bowden, 27 L. J. Q. B. 217 ; 24 L. J. Q. B. 10 ; 7 El. & Bl. 
 
 763 ; 3 Jur. N. S. 1209 23, 237, 239, 243 
 
 Etona, The, 64 Fed. Eep. 880 ; 71 Fed. Rep. 895 103e 
 
 Ettrick, The, 6 P. D. 127 ; 50 L. J. Ad. 65 ; 54 L. T. 399 ; 4 Asp. M. C. 
 
 465 346, 354, 359, 373a, 373b 
 
 E. U., The, 1 Sp. E. 63 325, 326, 333, 334 
 
 Eugenie, The, L. E. 4 A. & E. 123; 29 L. T. 314; 21 W. E. 957 317 
 
 Euripides, The, 71 Fed. Eep. 728 88 
 
 Euterpe S.S. Co. i;. Bath, 2 Com. Ca. 196 475 
 
 Evans v. Bullock, 38 L. T. 34 731 
 
 Evans v. Foster, 1 B. & Ad. 118 643 
 
 Evans V. Hutton. 12 L. J. C. P. 17 ; 6 Jur. 1042 ; 4 M. & G. 954 ; 2D. N. S. 
 
 600 ; 6 Scott N. E. 670 23 
 
 Evans V. Martlett, 1 Ld. Eaym. 271 61 
 
 Everard v. Kendall, L. E. 6 C. P. 428 ; 39 L. J. C. P. 234 ; 22 L. T 408 ■ 
 
 18 W. R. 892 .'693 
 
 Ewbank v. Nutting, 7 C. B. 797 294, 300, 727 
 
 Exeter, The, 1 C. Eob. 174 ; 2 C. Rob. 261 ' 317 
 
 Exeter Carrier, The, cited 2 Ld. Eaym. 866 652 
 
 Express, The, L. E. 3 A. & E. 597 ; 41 L. J. Ad. 79 ; 26 L. T. 956 . ,209, 289 
 
TABLE OF CASES CITED. XXVU 
 
 F. 
 
 SECT. 
 
 Eairbridge v. Pace, 1 C. & K. 317 249, 621 
 
 Faitt V. East India Co., 4 B. & A. 630 152, 655, 658, 674 
 
 Faithful, The, 31 L. J. Ad. 81 310 
 
 FaUc, Ex parte, Kiell, la re, 14 Ch. D. 446 ; 42 L. T. 780 ; 28 "W. E. 785 ; 
 
 4 Asp. M. C. 280 541 
 
 Falke v. Fletcher, 34 L. J. C. P. 146 ; 13 W. E. 346 ; 11 Jur. N. S. 176 ; 
 
 18C. B. N. S. 403 69,269 
 
 Falkner v. Earle, 32 L. J. Q. B. 124 ; 7 L. T. 672 ; 11 W. B. 307 ; 3 B. & 
 
 S. 360 ; 9 Jur. N. S. 847 196 
 
 Fanohou, The, 5 P. D. 173 ; 60 L. J. Ad. 3 ; 42 L. T. 483 ; 29 W. E. 
 
 339 40, 41 
 
 Farina v. Home, 16 M. & W. 119 ; 16 L. J. Ex. 73 501 
 
 Famell v. Thomas, 5 Bing. 188 ; S. 0. nom. Palmer v. Thomas, 2 M. & P. 
 296 612 
 
 Famley Hall, The, 46 L. T. 216 ^ 344 
 
 Farrant v. Barnes, 31 L. J. 0. P. 137 ; 11 C. B. N. S. 553 ; 8 Jur N. S. 
 
 868 . , 278 
 
 Farrar v. Adams, Buller N. P. 69 12 
 
 Favourite, The, 2 "W. Bob. 256 ; 6 L. T. 773 332 
 
 Fawkes v. Lamh, 31 L. J. Q. B. 98 ; 8 Jur. N. S. 386 130, 131, 183 
 
 Fay V. Alliance Ins. Co. , 16 Gray, 455 544 
 
 Fearon v. Bowers, 1 H. Bl. 364 (n.) 502 
 
 Featherston v. Wilkinson, L. E. 8 Ex. 122 ; 42 L. J. Ex. 78 ; 28 L. T. 
 
 448 ; 21 W. E. 422 723 
 
 Feise v. Wray, 3 East, 93 496, 625, 527 
 
 Felix, The, L. E. 2 A. & E. 273 ; 37 L. J. Ad. 48 ; 18 L. T. 687 ; 17 W. E. 
 
 102 64, 249, 460, 688 
 
 Fenton v. Dublin S. Packet Co., 8 A. & E. 836 ; 1 P. & D. 103 114 
 
 Fenwick i>. Boyd, 16 M. & "W. 632 -. 553 
 
 Fenwiok». Eobinson, 3 C. & P. 323 423, 424 
 
 Fenwick v. Sohmalz, L. E. 3 C. P. 313 ; 37 L. J. C. P. 78 ; 18 L. T. 27 ; 
 
 16W. E. 481 252, 253, 257a, 268 
 
 Ferguson, Ex parte, L. E. 6 Q. B. 280 ; 40 L. J. Q. B. 106 ; 24 L. T. 96 ; 
 
 19 W. E. 746 24 
 
 TeiTO, The, (1893) P. 38 ; 62 L. J. P. 48 ; 68 L. T. 418 ; 7 Asp. 309. . 101, 103e 
 FigHa Magffiore, The, L. E. 2 A. & E. 106; 37 t. J. Ad. 62; 18 L. T. 
 
 632 ....:.... 66, 164,691 
 
 Finlay v. Liverpool & Great "Western S.S. Co., 23 L. T. 251 . .67, 83, 483, 491 
 
 Firefly, The, Swab. 240 348 
 
 Fisher v. Calder, 1 Com. Ca. 456 69b 
 
 Fisher v. Val de Travers Asphalte Co., 1 C. P. D. 511 ; 45 L. J. C. P. 479 ; 
 
 36 L. T. 366 731 
 
 Five Steel Barges, 15 P. D. 142 ; 69 L.. J. Adm. 77 ; 63 L. T. 499 ; 39 
 
 W. E. 127 324a, 339, 362 
 
 Flamborough, The, 69 Fed. Eep. 470 103d 
 
 Flaveno v. Bennett, 11 East, 41 505 
 
 Fleece, The, 3 W. Bob. 278 351, 352 
 
 Fleet V. Merton, L. E. 7 Q. B. 126 ; 41 L. J. Q. B. 49 ; 26 L. T. 181 ; 20 
 
 W. B. 97 131. 196 
 
 Fletcher v. Alexander, L. E. 3 0. P. 375 ; 37 L. J. C. P. 193 ; 18 L. T. -! 
 
 432; 16 W. E. 803 415, 416, 418, 440 
 
 Fletcher v. Braddiok, 2 B. & P. K. E. 182 114 
 
 Fletcher v. Gillespie, 3 Bing. 636 ; 11 Moo. 547 260, 261, 463 
 
XXviii TABLE OF CASES CITED. 
 
 SECT.- 
 
 Fletcher v. IngHs, 2 B. & A. 315 87 
 
 Fletcher v. Tayleur, 25 L. J. 0. P. 66 ; 17 C. B. 21 714 
 
 Flora, The, L. B. 1 A. & E. 45 ; 35 L. J. Ad. 15 ; U L. T. 192 601 
 
 Florence, The, 16 Jur. 672 ••• ^35 
 
 Flying Fish, The, 34 L. J. Ad. 113 ; 12 L. T. 619 718 
 
 Fortes v. Cochrane, 2 B. & C. 448 ; 3 D. & B. 679 214 
 
 Ford V. Cotesworth, L B. 5 Q. B. 544 ; L. K. 4 Q. B. 127 ; 10 B. & S. 991 ; 
 39 L. J. Q. B. 188 ; 23 L. T. 165 ; 18 W. R. 1169 . . 150, 180, 227, 228, 229, 
 
 462, 615, 616 
 
 Forest S.S. Co. ». Iberian Iron Ore Co., 5 Com. Ca. 83 631 
 
 Forshaw v. Chabert, 3 B. & B. 158 ; 6 Moo. 369 18 
 
 Forster v. Bates, 12 M. & W. 226 125 
 
 Fortuna, The, Bdw. Ad. 56 556 
 
 Forward v. Pittard, 1 T. K. 27 2, 8 
 
 Foster?!. Colby, 28 L. J. Ex. 81 ; 3 H. & N. 705 152, 661, 668 
 
 Foster v. Frampton, 6 B. & C. 107 ; 9 D. & E.. 108 ; 2 C. & P. 469 513 
 
 Fowler v. Knoop, 4 Q. B. D. 299 ; 48 L. J. Q. B. 333 ; 40 L. T. 180 ; 27 
 
 W. K. 299 . : 64, 636, 640 
 
 Fox V. Nott, 30 L. J. Ex. 260 ; 6 H. & N. 637 66, 602 
 
 Fragano v. Long, 4 B. & C. 219 ; 6 D. & R. 283 61, 68, 251 
 
 France v. Gaudet, L. E.. 6 Q. B. 199 ; 40 L. J. Q. B. 121 ; 19 W. E. 622. . 714, 
 
 728 
 Francesco D.Massey, L. E. 8 Ex. 101 ; 42 L. J. Ex. 76 ; 21 W-E. 440. .647, 667 
 
 Francis and EUza, The, 2 Dods. 117 335 
 
 Franconia, The, 3 P. D. 164 ; 39 L. T. 57 ; 27 W. E. 128 , 26 
 
 Eraser v. Marsh, 13 East, 238 ; 2 Camp. 617 45 
 
 Eraser v. Telegraph Construction Co., L. R. 7 Q. B. 566; 41 L. J. Q. B. 
 
 249; 27L. T. 373; 20 "W. E. 724 66, 139 
 
 Eraser v. Witt, L. E. 7 Ex. 64 ; 19 L. T. 440 ; 17 W. E. 92 611 
 
 Frayea v. "Worms. (See Trayes ». Worms.) 
 
 Frazer v. Cuthbertson, 6 Q. B. D. 93 ; 60 L. J. Q. B. 277 ; 29 W. E. 396. . 34, 
 
 36, 37 
 
 Frederick, The, 1 W. Eob. 16 ; 1 Hagg. 211 337 
 
 Frederick Molke, The, 1 C. Kob. 85 244 
 
 Freedom, The, L. E. 3 P. C. 594 ; 24 L. T. 452 ; 38 L. J. Ad. 25 . . 13, 16, 66, 
 
 73, 75, 86, 88, 90, 95, 690 
 
 Freeman v. East India Co., 5 B. & A. 617 ; 1 B. & E. 234 301 
 
 Freeman v. Bead, 4 B. & S. 174 ; 10 Jur. N. S. 149 ; 8 L. T. 468 ; 11 W. E. 
 
 802 671a 
 
 Freeman v. Taylor, 8 Bing. 124 ; 1 M. & Scott, 182 144, 231 
 
 French v. Gerber, 1 C. P. D. 737 ; 2 C. P. D. 247 ; 46 L. J. C. P. 320 ; 36 
 
 L. T. 350 ; 25 W. E. 355 649, 650 
 
 French v. Newgass, 3 C. P. D. 163 ; 47 L. J. C. P. 361 ; 38 L. T. 164; 26 
 
 W. E. 430 140 
 
 Frey, The, 92 Fed. Eep. 667 103a, 103d, 103e 
 
 Frost V. Knight, L. R. 7 Ex. Ill ; L. E. 6 Ex. 322 ; 41 L. J. Ex. 78 ; 26 
 
 L. T. 77 ; 20 W. E. 471 719 
 
 Fry V. Chartered Mercantile Bank, L. R. 1 C. P. 689 ; 35 L. J. C. P. 306 ; 
 
 14L. T. 709; 14 W. R. 920 156, 668, 669 
 
 Fulham, The, (1899) P. 261 ; 68 L. J. P. 75 ; 81 L. T. 19 ; 8 Asp. 659 329 
 
 FuUagsen v. WaUord, 1 Cab. & EU. 198 578 
 
 Furness v. Eorwood, 77 L. T. 95 ; 2 Com. Ca. 223 252, 267, 267a 
 
 Furness v. Tennant, 66 L. T. 635 265, 272 
 
 Furness v. White, (1895) A. C. 40 ; (1894) 1 Q. B. 483 ; 63 L. J. Q. B. 267 ;' 
 
 70 L. T. 463 476, 603 
 
 FusiKer, The, 34 L. J. Ad. 25 ; 3 Moo. P. C. N. S. 61 ; 12 L. T. 186 • 13 
 W. R. 592 ; 11 Jur. N. S. 289 329, 331, 360 
 
TABLB OF CASES CITED. XXIX 
 
 a. 
 
 SECT. 
 
 Gabarron v. Ereeft, L. R. 10 Ex. 274 ; 44 L. J. Ex. 238 ; 33 L. T. 365 ; 
 
 24 W. R. 146 485, 492 
 
 Gabay v. Lloyd, 3 B. & C. 793 ; 6 D. & R. 641 89, 185 
 
 Gadd V. HougKton, 1 Ex. D. 357 ; 46 Li J. Ex. 71 ; 35 L. T. 222 ; 24 
 
 W. R. 975 130 
 
 Gaetano and Maria, The, 7 P. D. 137 ; 61 L. J. Ad. 67 ; 46 L. T. 835 ; 30 
 
 W. R. 766; 4 Asp. M. C. 470 42, 211, 213, 301, 310 
 
 Gage V. Libby, 14 Alien, 261 376, 378, 413a 
 
 Gage V. TirreU, 9 AUen, 299 (Mass.) 3, 5, 74 
 
 Gairdner v. Senhouse, 3 Taun. 16 285 
 
 Galatea, The, Swab. 349 ; 4 Jur. N. S. 1064 338, 339 
 
 Gandy v. Gandy, 30 Ch. D. 57 ; 7 P. D. 168 ; 51 L. J. Adm. 41 ; 46 L. T. 
 
 607 ; 30 W. R. 673 ; 691 
 
 Gardiner ». Maofarlane, 26 So. L. R. 492; 16 Sees. Ca. (4tli) 664.. 648, 649, 667 
 
 Gardiner v. Maofarlane (2), 20 Sess. Ca. (4th) 414 257a, 267b, 258a, 614 
 
 Gardner v. Cazenove, 26 L. J. Ex. 17 ; 1 H. & N. 423 592 
 
 Gardner ». Trechmann, 15 Q. B. D. 164 ; 54 L. J. Q..B. 515 ; 63 L. T. 518 ; 
 
 6 Asp. M. C. 558 153, 160, 656, 663, 668, 669 
 
 Garrett v. Melhuish, 4 Jur. N. S. 943 549 
 
 Garriock v. Walker, 1 Sess. Ca. {4th) 100 295 
 
 Garside v. Trent, &o. Nav. Co., 4 T. R. 681 472 
 
 Garston Co. v. HioMe, 15 Q. B. D; 580 ; 53 L. T. 795 ; 5 Asp. M. C. 499. . 448, 
 
 567 
 Garston Co. ». HicHe (2), 18 Q. B. D. 17 ; 86 L. J. Q. B. 38 ; 56 L. T. 879 ; 
 
 36W. R. 33 84, 88a, 160, 686 
 
 Garton v. Bristol and Exeter Ry. Co., 30 L. J. Q. B. 273 ; 7 Jur. K. S. 
 
 1234 ; 1 B. & S. 112 ; 9 W. R. 734 4 
 
 Gas iloat "Whitton No. 2, (1897) A. C. 337; (1896) P. 42 ; (1895), P. 301 ; 
 
 66 L. J. P. 99 ; 76 L. T. 663 ; 4 Asp. 110 24, 322, 366 
 
 Gatliffe v. Bourne, 4 Bing. N. C. 314 ; 3 M. & G. 643 ; 7 M. & G. 860 ; 11 
 
 CI. &F. 45; 5 Scott, 667 467, 468,. 471 
 
 Gauntlet, The, 3 W. Rob. 82 314 
 
 Gazelle, The, 2 W. Rob. 279 609 
 
 Gee V. L. & T. Ry. Co., 30 L. J. Ex. 11 ; 3 L. T. 328; 9 "W. R. 103 ; 6 
 
 H. &N. 211 714, 716 
 
 Geipel v. Smith, L. R. 7 Q. B. 404 ; 41 L. J. Q. B. 163 ; 26 L. T. 361 ; 20 
 
 W. R. 332 82, 160, 232, 233, 246 
 
 Gemma, The, (1899) P. 285 ; 68 L. J. P. 110 ; 81 L. T. 379 684 
 
 General Iron Screw Collier Co. v. Schurmanns, 29 L. J. Ch. 877 ; 4 L. T. 
 
 138; 8W. R. 732; IJ. & H. 180; 6 Jur. N. S. 883 24, 697 
 
 General Palmer, The, 2 Hagg. 176 338 
 
 General S. Nav. Co. v. British and Colonial S. Nav. Co., L. R. 3 Ex. 330 ; 
 
 L. R. 4 Ex. 238 ; 38 L. J. Ex. 97 ; 20 L. T. 681 ; 17 W. R. 741 30, 31 
 
 General S. Nav. Co. ®. Slipper, 31 L. J. C. P. 185 ; 6 L. T. 641 ; 10 W. R. 
 
 316 ; 11 C. B. N. S. 493 ; 8 Jur. N. S. 821 260 
 
 Georg Dumois, The, 88 Fed. Rep. 537 103o 
 
 George Dean, The, Swab. 290 362 
 
 Geraldes v. Donison, Holt, 346 576 
 
 Gertrude, The, 30 L. J. Ad. 130 324 
 
 Gibbons v. Buisson, 1 Bing. N. C. 283 ; 1 Scott, 133 544 
 
 Gibbes, Ex parte, 1 Ch. D. 101 ; 45 L. J. Ch. 10 ; 33 L. T. 479 ; 24 W. R. 
 
 298 517 
 
 Gibbon 0. Mendez, 2 B. & Aid. 17 670 
 
 Gibbon v. Paynton, 4 Burr. 2298 729 
 
 C— C. G 
 
XXX TABLE OF CASES CITED. 
 
 SECT. 
 
 Gibbs V. Charleton, 26 L. J. Ex. 321 43 
 
 Gibbs V. Grey, 26 L. J. Ex. 286 ; 3 Jur. N. S. 543 ; 2 H. & N. 22 . . . .305, 306 
 
 Gibbs V. Potter, 11 L. J. Ex. 376 ; 6 Jur. 586 ; 10 M. & "W. 70 24 
 
 Gibson J). Carruthers, 8 M. & W. 320 506 
 
 Gibson V. Crick, 31 L. J. Ex. 304 ; 6 L. T. 392 ; 10 W. E. 527 ; 1 H. & C. 
 
 142; 2F. &F. 766 121, 190 
 
 Gibson v. Ingo, 6 Hare, 112 689, 590, 595 
 
 Gibstai V. Small, 4 H. L. Cas. 353 ; 17 Jur. 1131 ; 1 0. L. E. 363 18 
 
 Gibson v. Sturge, 24 L. J. Ex. 121 ; 3 0. L. K. 421 ; 1 Jur. N. S. 259 ; 10 
 
 Ex. 622 676, 579 
 
 Gifford V. Dishington, 8 So. L. E. 665 271 
 
 Gilbert v. Gnignon, L. E. 8 Ch. 16 ; 27 L. T. 733 ; 21 W. E. 281 ... .489, 503 
 . GiUdson v. Middleton, 26 L. J. C. P. 209 ; 2 C. B. N. S. 134 . . 156, 660, 663, 668 
 
 Gill«!. Browne, 53 Fed. Eep. 394,, 197, 223 
 
 Gill V. M. S. & L. Ey. Co., L. E. 8 Q. B. 186 ; 42 L. J. Q. B. 89 ; 28 L. T. 
 
 587; 21 W. E. 525 77, 107 
 
 Gillespie v. Thompson, 6 E. & B. 477 (n.) ; 2 Jur. N. S. 712 86, 95, 273 
 
 GiUingham v. Dempsey, 12 S. & E. 188 (U. S.) ; Ang. Carr. ... 482 727 
 
 Gilroy v. Price, (1893) A. C. 56 ; 68 L. T. 302 ; 7 Asp. 314 18, 79, 102a 
 
 Gladstone v. Birley, 2 Mer. 401 ; 3 M. & S. 205 547, 658, 659 
 
 Glaholm v. Hays, 10 L. J. C. P. 98 ; 2 M. & G. 257j 2 Scott, K. E. 471 ; 
 
 1 Wm. Saund. 564 .' 219 
 
 Glamorgansbire, The, 13 A. C. 454 ; 59 L. T. 572 ; 6 Asp. Mar. C. 344 . . 702 
 Glanystwyth, (1899) P. 118 ; 68 L. J. P. 37 ; 80 L. T. 204 ; 8 Asp. 513 . . 30 
 
 Glascott V. Lang, 2 PhilHps, 310 316 
 
 Glasgow Packet, The, 2 "W. Eob. 306 346 
 
 Glassington v. Eawlins, 3 East, 407 ■ 571a 
 
 GleadeU v. Thompson, 11 Siokels N. T. E. 194 101 
 
 Gledstanes v. Allen, 12 C. B. 202 , 151, 161, 672 
 
 Glendarrooh, The, (1894) P. 226 ; 63 L. J. P. 89 ; 70 L. T. 344 78 
 
 GlendeTon, The, (1893) P. 269 ; 62 L. J. P. 123 613, 633 
 
 Glenduror, The, L. E. 3 C. P. 589 ; 24 L. T. 499 344 
 
 Glenfruin, The, 10 P. D. 103 ; 54 L. J. Ad. 49 ; 52 L. T. 769 ; 33 W. R. 
 
 826 17, 79, 342 
 
 Glengaber, The, L. E. 3 A. & E. 534 ; 41 L. J. Ad. 84 ; 27 L. T. 386 ; 21 
 
 W. E. 168 342, 346 
 
 Glengamock, «S:o. Co. v. Cooper, 22 Sess. Ca. (4th) 672 250 
 
 Glengyle, The, (1898) A. C. 519 ; (1898) P. 97 ; 67 L. J. P. 87 ; 78 L. T. 
 
 801 344 
 
 Glenmanna, The, Lush. 115 296 
 
 Glenochil, The, (1896) P. 10 ; 65 L. J. P. 1 ; 73L. T.416 58.91,101, 
 
 103b, 103e 
 
 GUddon v. Brodersen, 1 Cab. & EU. 197 121 
 
 GUddon v. Peek, Times, July 7th, 1885 520 
 
 Glover v. L. & S. "W. Ey. Co., L. E. 3 Q. B. 25 ; 37 L. J. Q. B. 57 ; 17 
 
 L.T. 139 : ....718 
 
 Glyn V. East and West India Dock Co., 7 A. C. 591 ; 62 L. J. Q. B. 146 ; 
 
 47 L. T. 309 ; 31 W. E. 206 ; 4 Asp. M. 0. 580 ; 6 Q. B. D. 475 ; 50 
 
 L. J. Q. B. 62 ; 43 L. T. 584 ; 29 W. E. 316 55, 66, 469, 480, 482, 486, 
 
 498, 602 
 Glynn v. Margetson, (1893) A. C. 351 ; affirming (1892) 1 Q. B. 337 ; 62 
 
 L.J. Q.B.466; 69 L.T.I ......!... .16, 173, 286, 292a 
 
 Godard v. Gray, L. E. 6 Q. B. 139 ; 40 L. J. Q. B. 62 ; 24 L. T. 89 ; 19 
 
 W. E. 348 g97_ ^22 
 
 Godwin V. Francis, L. E. 6 C. P. 295 ; 39 L. J. C. P. 121 ; 22 L. T.' 338 . .' 731 
 Goff V. Clinkard, 1 Wils. 281 , , . . , , 47 48 251 
 
TABLE OF CASES CITED. XXXI 
 
 SECT. 
 
 Golding, Davis & Co., Ex parte, Knight, In re, 13 Ch. D. 628 ; 42 L. T. 
 
 270; 48W. R. 481 511,641 
 
 Groldsmidt v. Whitmore, 3 Taun. 507 99 
 
 Good V. Isaacs, (1892) 2 Q. B. 655 ; 61 L. J. Q. B. 649 ; 67 L. T. 450 ... . 614, 
 
 614a, 619a, 623 
 Good V. London S.S. Owners Association, L. E. 6 0. P. 563 ; 20 W. R. 
 
 33 26, 101 
 
 Goodbody v. Balfour, 4 Com. Ca. 119 ; 5 Com. Ca. 69 ; 80 L. T. 188 ; 8 
 Asp. 503 567 
 
 Goodwin v. Robarts, L. R. 10 Ex. 337 ; 1 A. C. 476 ; 45 L. J. Ex. 748; 35 
 L. T. 179 ; 24 W. R. 987 194, 533 
 
 Gordon v. G. "W. Ry. Co., 8 Q. B. D. 44 ; 61 L. J. Q. B. 58 ; 46 L. T. 509 ; 
 26 W. R. 230 .103 
 
 Gordon v. Powis, 8 T. L. E. 397 621 
 
 Gorgier v. Mieville, 3 B. & C. 45 194 
 
 Gorris v. Scott, L. R. 9 Ex. 125 ; 43 L. J. Ex. 92 ; 30 L. T. 431 ; 22 W. R. 
 575 , 20 
 
 Gorrisseu v. Perrin, 27 L. J. C. P. 29 ; 2 C. B. N. S. 681 ; 3 Jur. N. S. 
 
 867 169 
 
 Gosling V. Higgins, 1 Camp. 461 23 
 
 Goss V. Lord Nugent, 6 B. & Ad. 58 ; 2 N. & M. 28 164 
 
 Gouda, Ex parte, 20 "W. E. 981 513 
 
 Gould V. Oliver, 2 M. & G. 208 ; 4 Bing. N. C. 134 ; 2 Scott, N. R. 241. . 182, 
 
 281, 379 
 
 Governor Raffles, The, 2 Dod. 14 335 
 
 Govett V. Radnidge, 3 East, 62 35 
 
 Graoie v. Palmer, 8 Wheat. 605 652 
 
 Grampian S.S. Co. v. Carver, 9 T. L. R. 210 , 221 
 
 Granger ». Dent, M. & M. 475 221 
 
 Granite City S.S. Co. v. Ireland, 19 Sess. Ca. (4th) 124 619a 
 
 Grant v. Coverdale, 9 A. C. 470 ; 11 Q.. B. D. 543 ; 53 L. J. Q. B. 462 ; 51 
 
 L. T. 472 ; 32 W. R. 831 ; 6 Asp. M. C. 353 173, 252, 257, 617 
 
 Grant v. Maddox, 16 L. J. Ex. 227 ; 15 M. & "W. 737 ; 15 L. J. Ex. 104. . 169 
 Grant v. Norway, 20 L. J. C. P. 93 ; 10 C. B. 665 ; 16 L. T. O. S. 604 ; 
 
 15 Jur. 296 42, 43, 69, 152 
 
 Gratitudine, The, 3 C. Rob. 240 15, 294, 305, 310, 311, 318 
 
 Gravesend Barge Case, The, 1 Roll. Eep. 79 . . , 15 
 
 Gray v. Carr, L. R. 6 Q. B. 522 ; 40 L. J. Q. B. 267 ; 25 L. T. 215 ; 19 
 
 W. E. 1173 160, 173, 637, 645, 648, 666, 669, 671 
 
 Gray v. Christie, 5 T. L. E. 577 App. B. 
 
 Great Eastern, The, L. E. 2 A. & E. 88 ; 17 L. T. 667 114 
 
 Great Indian Peninsula Rail. Co. v. Tumbull, 53 L. T. 325 ; 33 W. R. 874 ; 
 
 5 Asp. Mar. C. 465 562, 566, 727 
 
 G. N. Ry. Co. v. Swaffield, L. E. 9 Ex. 132 ; 43 L. J. Ex. 89 ; 30 L. T. 
 
 562 295, 683 
 
 G. W. Ey. Co. V. Bagge, 15 Q. B. D. 625 ; 54 L. J. Q. B. 699 ; 53 L. T. 
 
 225 ; 34 W. R. 45 61, 602 
 
 G. W. Ry. Co. V. Blake, 31 L. J. Ex. 346 ; 8 Jur. N. S. 1013 ; 7 H. & N. 
 
 987 ; 10 W. E. 388 107 
 
 G. W. Ey. Co. (/. Bunch, 12 Q. B. D. 215 ; 13 A. C. 31 ; 57 L. J. Q. B. 
 
 361; 58L. T. 128; 36 W. E. 785 3, 6 
 
 G. W. Ry. Co. V. McCarthy, 12 A. C. 218 ; 56 L. J. P. C. 33 ; 56 L. T. 
 
 582 ; 35 W. R. 429 110 
 
 G. W. Ry. Co. V. Redmayne, L. R. 1 C. P. 329 ; 35 L. J. C. P. 123 ; 14 
 
 ■W.R.206; 12 Jur. N. S. 692 ; 1H.&R.97.... 724 
 
 G. R. Booth, The, 171 U. S. 450 88, 89, 91 
 
 Grebert-Borgnis v. Nugent, 15 Q. B. D. 85 ; 54 L. J. Q. B. 511. ,714, 715, 716 
 
 c2 
 
XXXll TABLE OF CASES CITED. 
 
 SECT. 
 
 Green r. Bartlett, 32 L. J. C. P. 261 ; 8 L. T. 503 ; 11 W. R. 834 ; 14 C. B. 
 
 N. S. 681 121 
 
 Green v. Briggs, 17 L. J. Cli. 323 ; 12 Jnr. 326 ; 6 Hare, 396 34, 590 
 
 Green ». Elmslie, Peake, N. P. 278 89 
 
 Green v. Kopke, 18 C. B. 549 ; 25 L. J. C. P. 297 ; 2 Jur. N. S. 1049 .... 52 
 
 Greeves v. "West India Co., 22 L. T. 615 ; 20 L. T. 914 107, 562 
 
 GreU v. Lery, 9 L. T. 721 ; 16 C. B. N. S. 73 ; 10 Jur. N. S. 210 ; 12 
 
 W. E. 378 214 
 
 Grey v. Butler's Wharf, 3 Com. Ca. 67 *S1 
 
 Grieve v. Konig, 17 Sc. L. R. 325 ; 7 Sess. Ca. (4th) 521 69a 
 
 GriU V. General Iron Screw Collier Co., L. R. 1 C. P. 600 ; L. K. 3 C. P. 
 
 476 ; 35 L. J. C. P. 321 ; 37 L. J. C. P. 205 ; 18 L. T. 485 ; 16 W. R. 
 
 796 ; 12 Jur. N. S. 727 77, 87, 99 
 
 GrieseU «;. Bristowe, L. R. 3 C. P. 112; L. R. 4 C. P. 36 ; 38 L. J. C. P. 
 
 10; 19L. T. 390; 17 "W. R. 123 184, 185, 190 
 
 Groves ». Volkart, 1 Cab. & EU. 309 221 
 
 Guadaloupe, The, 92 Fed. Rep. 670 103d, 103e 
 
 GuUdhall, The, 58 Fed. Rep. 796 103a 
 
 Guion V. Trask, 29 L. J. Ch. 337 ; 8 W. R. 266; 6 Jur. N. S. 185 ; 1 D. F. 
 
 & J. 373 689, 590 
 
 Gullischen v. Stewart, 11 Q. B. D. 186 ; 13 Q. B. D. 317 ; 62 L. J. Q. B. 
 
 648 ; 49 L. T. 198 ; 31 W. R. 745 ; 53 L. J. Q. B. 173 ; 50 L. T. 47 ; 
 
 32 W. R. 763; 6 Asp. M. C. 200 ,160, 607, 637, 651 
 
 Gumm ». Tyrie, 33 L. J. Q. B. 97 ; 34 L. J. Q. B. 124 ; 4 B. & S. 680 ; 
 
 6B. &S. 299 574, 592 
 
 Gunn V. Bolokow, L. R. 10 Ch. 491 ; 44 L. J. Ch. 732 ; 32 L. T. 781 ; 23 
 
 W. R. 739 504, 678, 679 
 
 Gunu V. Roberts, L. R. 9 C. P. 331 ; 43 L. J. C. P. 233 ; 30 L. T. 424 ; 22 
 
 W. R. 652 316 
 
 Gunnestad v. Price, L. R. 10 Ex. 65 ; 44 L. J. Ex. 44 ; 32 L. T. 499 ; 23 
 
 W. R. 470 693, 696 
 
 Gurney v. Behrend, 23 L. J. Q. B. 265 ; 18 Jur. 856 ; 3 El. & Bl. 622. .488, 489 
 
 Guataf, The, 31 L. J. Ad. 207 ; 6 L. T. 660 ; Lush. 506 317, 698 
 
 Guy Mannering, The, 7 P. D. 132 ; 61 L. J. Ad. 67 ; 46 L. T. 906 ; 30 
 
 W. R. 835; 4 Asp. M. C. 683 31, 32 
 
 H. 
 
 Haabet, The, (1899) P. 295 ; 68 L. J. P. 121 ; 81 L. T. 463 312 
 
 Hadgraft v. Hewith, L. R. 10 Q. B. 350 ; 44 L. J. M. C. 140 ; 32 L. T 
 720; 23 W. R. 911 30 
 
 Hadley v. Baxendale, 9 Exoh. 341 ; 23 L. J. Ex. 179 ; 18 Jur. 358 ; 2 
 
 C. L. R. 517 713 
 
 Hadley v. Clark, 8 T. R. 269 23 242 
 
 Hagedom v. Whitmore, 1 Stark. 157 89 
 
 Hahn v. Corbett, 2 Bing. 205 gg 
 
 Haigh V. Royal Mail S. Packet Co., 62 L. J. Q. B., 640 ; 48 L T 267 • 5 
 
 Asp. M. C. 47, 189; 49 L. T. 802; 48 J. P. 230 .'.. m 
 
 Haillei). Smith, 1 B. & P. 563 !'.'."."..'.'.'.'.'. 497 
 
 Hales ■<;. L. & N. "W. Ry. C, 4 B. & S. 66 ; 32 L. J. Q. B. 292 ; 8 L t' 
 
 421; 11W.R.856 .; ........" 714 
 
 Hall V. Janson, 4 E. & B. 500 ; 24 L. J. Q. B. 97 ; 1 Jur. N. S. 671 ; 2 
 
 C. L. R. 737 190^ 403, 410 
 
 Hall V. N. E. Ry. Co., L. R. 10 Q. B. 437 ; 44 L. J. Q. B. 164 ; 33 L T 
 
 306 ; 23 W. R. 860 *_'. ,...'..; io7 
 
 Hallett V. Bousfield, 18 Ves. 187 4^2 
 
TABLE OF CASES CITED, XXXllX 
 
 SECT. 
 
 HaUett V. 'Wigrain, 19 L. J. C. P. 281 ; 9 C. B. 680 302, 320, 407 
 
 Halley, The, L. E. 2 P. C. 193 ; 37 L. J. Ad. 33 ; 18 L. T. 879 ; 16 W. E. 
 
 998 , 30, 31, 710 
 
 Haly 1). Goodson, 2 Mer. 77 38 
 
 Hamburg, The, 32 L. J. Ad. 161 ; 33 L. J. Ad. 116 ; 10 L. T. 206 ; 12 
 
 W. E. 628 ; 2 Moore P. 0. N. S. 289 ; B. & L. 263 ; 10 Jur. N. S. 600 . . 295, 
 
 299, 302, 305, 311, 316 
 
 Hamilton v. Bavis, 5 Burr. 2732 355 
 
 Hamilton v. Mackie, 6 Times Eep. 677 160 
 
 Hamilton v. Pandorf, 12 A. 0. 618 ; 17 Q. B. D. 670 ; 16 Q. B. D. 629 ; 
 
 57 L. J. Q. B. 24 ; 57 L. T. 726 ; 36 W. E. 369 84—88 
 
 Hamlyn & Co. v. Talisker Distillery, (1894) A. C. 202 ; 71 L. T. 1 204 
 
 Hammond «'. Bussey, 20 Q. B. D. 79 ; 57 L. J. Q. B. 58 . . . .714, 715, 718, 731 
 
 Hammond v. Eeid, 4 B. & Aid. 72 286 
 
 Hand v. Baynes, Whart. 204 290 
 
 Hankow, The, 4 P. D. 197; 48 L. J. Ad. 29 ; 40 L. T. 335 30 
 
 Hanna, The, L. E. 1 A. & E. 285 ; 36 L. J. Ad. 1 ; 16 L. T. 334 ; 15 W. E. 
 
 263 30 
 
 Hannibal, The, L. E. 2 A. & E. 63 ; 37 L. J. Ad. 12 335 
 
 Hansen v. Donaldson, 1 Sess. Ca. (4th) 1066 462, 612, 612a 
 
 Hansen v. Harrold, (1894) 1 Q. B. 612; 63 L. J. Q. B. 744; 70 L. T. 
 
 475 , 161, 648, 649, 650 
 
 Hanson v. Eoyden, L. E. 3 C. P. 47 ; 37 L. J. C. P. 66 ; 17 L. T. 214 ; 16 
 
 "W. E. 205 42, 179 
 
 Hardy v. Eyle, 9 B. & 0. 603 571a 
 
 Harman v. Anderson, 2 Camp. 243 • S17 
 
 Harman v. Clarke, 4 Camp. 159 465, 621 
 
 Harman ». Gandolph, Holt, N. P. C. 35 640 
 
 Harman v. Mant, 4 Camp. 161 466, 621 
 
 Harper «. McCarthy, 2 B. & P. N. E. 288 611, 613 
 
 Harratt v. Wise, 9 B. & C. 712 ; 4 M. & E. 621 246 
 
 Harries v. Edmonds, 1 C. & K. 686 270, 719, 720 
 
 Harrington, The, 13 P. D. 48 360 
 
 Harriot, The, 1 W. Eob. 439 335 
 
 Harris ». Best, 68 L. T. 76; 7 Asp. 272 265, 274 
 
 Harris v. Dreesman, 23 L. J. Ex. 210 254, 267b 
 
 Harris v. G. "W. Ey. Co., 1 Q. B. D. 515 ; 46 li. J. Q. B. 729 ; 34 L. T. 
 
 647; 25W. E. 63 HI 
 
 Harris ». Haywood; 14 So. L. E. 605 '. i 612 
 
 Harris v. Jacobs, 15 Q. B. D. 247 ; 54 L. J. Q. B. 492 626, 667 
 
 Harris v. Paokwood, 3 Taun. 264 4 
 
 Harrison v. Bank of Australasia, L. E. 7 Ex. 39 ; 41 L. J. Ex. 36 ; 25 L. T. 
 
 944; 20 W. E. 385 368, 384 
 
 Harrison v. Garthome, 26 L. T. 508 ; 20 "W. E. 722 148, 149 
 
 Harrison v. Wright, 13 Bast, 343 722 
 
 narrower v. Hutchinson, L. E. 4 Q. B. 623 ; L. E. 5 Q. B. 684 ; 39 L. J. 
 
 Q. B. 229 ; 22 L. T. 684 ; 10 B. & S. 469 448 
 
 Harrowing v. Katz, 10 T. L. E. 115, 400 69 
 
 Hart ». Middleton, 2 C. & K. 9 571a 
 
 Hartfort v. Jones, 1 Ld. Eay. 393 ; 2 Salk. 654 322, 324 
 
 Hartley v. Hitchcock, 1 Stark. 408 678 
 
 Hastiags v. Pearson, (1893) 1 Q. B. 62 ; 62 L. J.' Q. B. 75 ; 67 L. T. 653. . 604 
 Hathesing v. Laing, L. E. 17 Eq. 92 ; 43 L. J. Ch. 233 ; 29 L. T. 734 . . 60, 
 
 186, 197 
 
 Havelook n. Geddes, 10 East, 555 .303, 570, 672 
 
 Havelock v. HanciU, 3 T. E. 277 99 
 
XXXIV TABLE OF CASES CITED. 
 
 SECT. 
 
 Hawes v. S. E. Ey. Co., 52 L. T. 514 ; 54 L. J. Q. B. 174 . . . ;i6, 61, 725, 726 
 
 Hawkins v. Cardy, Carthew, 466 ; 1 Salk. 65 191 
 
 Hay v. LeNeve, 2 Shaw, S. C. App. 395 704 
 
 Hayes t). South Wales Ey. Co., 9 Ir. 0. L. E. 474 107 
 
 Havn V. CoUiford, 3 C. P. D. 410 ; 4 C. P. D. 182 ; 48 L. J. C. P. 372 ; 40 
 
 L. T. 536 ; 27 W. E. 541 48, 67, 101, 154, 158, 691 
 
 Haynes D. Halliday, 7 Bing. 687 182, 266 
 
 Hayton v. Irwin, 5 0. P. D. 130 ; 41 L. T. 666 ; 28 W. E. 666 . . 196, 225, 468 
 Heame v. Garton, 28 L. J. M. C. 216 ; 33 L. T. 256 ; 5 Jur. N. S. 648 ; 2 
 
 El. & El. 66 • 278 
 
 Heathfield S.S. Co. v. Eodenaoher, 1 Com. Ca. 446 ; 2 Com. Ca. 55 . .261, 583a 
 
 Hebe, The, 2 W. Eoh. 146 310 
 
 Hebe, The, 2 W. Eob. 246 , 337 
 
 Hector, The, 8 P. D. 218 ; 52L. J. Ad. 61; 48L. T. 890; 31W. E. 881.. 704 
 Hedley d. Pinkney & Sons S.S. Co., (1892) 1 Q. B. 68 ; 61 L. J. Q. B. 179 ; 
 
 66 L. T. 71 ; 7 Asp. 135 -. 18, 19, 103d 
 
 Heffield v. Meadows, L. E. 4 C. P. 595 ; 20 L. T. 746 167 
 
 Heinekey v. Earle, 28 L. J. Q. B. 79 ; 6 W. E. 687 ; 4 Jur. N. S. 848 ; S 
 
 E. & B. 410 518 
 
 Heinrioh, The, L. E. 3 A. & E. 424 ; 24 L. T. 914 11,81 
 
 Heinrich Bjorn, The, 11 A. C. 270 ; 10 P. D. 44 ; 8 P. D. 161 ; 62 L. J. 
 
 Ad. 83 ; 49 L. T. 406 ; 32 W. E. 279 ; 6 Asp. M. C. 1 317, 699, 700, 706 
 
 Helby v. Matthews, (1894) 2 Q. B. 262 ; (1895) A. C. 471 ; 63 L. J. Q. B. 
 
 677 ; 70 L. T. 837 504 
 
 Helen, The, L. E. 1 A. & E. I ; 34 L. J. Ad. 2 ; 14 W. E. 136 ; 11 Jur. 
 
 N. S. 1025 246 
 
 Helen and George, The, Swabey, 368 348 
 
 Helene, The (see Ohrloffi v. Brisoal) . 
 
 Henderson v. Comptoir d'Esoompte de Paris, L. E. 5 P. C.-263 ; 42 L. J. 
 
 P. C. 60 ; 29 L. T. 192 ; 21 W. E. 873 497 
 
 Henderson v. Shankland, (1896) 1 Q. B. 525; 1 Com. Ca. 252, 333; 66 L. J. 
 
 Q. B. 340; 74L. T. 238 421, 422 
 
 Henderson v. Stevenson, L. E. 2 H. L. (S. C.) 470 ; 32 L. T. 709 Ill 
 
 Heriz V. Eiera, 11 Sim. 318 216 
 
 Herman v. Eoyal Exchange Shipping Co., 1 Cab. & Ell. 413 158 
 
 Hero, The, 2 Dods. 139 '. 310 
 
 Hestia, The, (1895) P. 193 ; 64 L. J. P. 82 ; 72 L. T. 364 348 
 
 Heugh V. Esoombe, 4 L. T. 517 : 51, 67 
 
 Heugh V. L. N. & W. Ey. Co., L. E. 6 Ex. 51 ; 39 L. J. Ex. 48 ; 21 L. T. 
 
 676 473 
 
 Hewison v. Guthrie, 2 Bing. N. 0. 755 ; 2 Hodges, 61 ; 3 Scott, 298 .... 679 
 
 Hewsons, The, L. E. 6 P. C. 134 693 695 
 
 Heyman v. Parish, 2 Camp. 149 gg 
 
 Hibbert «. Owen, 2 E. & E. 502 124 167 
 
 Hibbs V. Eoss, L. E. 1 Q. B. 534 ; 35 L. J. Q. B. 193 ; 15 L. T. 67 • 14 
 W. E. 914; 12 Jur. N. S.'812 .'... 45 
 
 Hick V. Eaymond, (1893) A. C. 22 (see Hick 11. Eodooanaohi) . 
 
 Hick v. Eodooanaohi, (1891) 2 Q. B. 626; (1893) A. C. 22 ; 61 L J Q B 
 42 ; 65 L. T. 300 180, 227, 466, 614, 616, 616, 619, 630, 683 
 
 Hick V. Tweedy, 63 L. T. 765 130, I30a, 197, 221, 615, 718 
 
 Hickie v. Eodocanachi, 28 L. J. Ex. 273 ; 7 W. E. 645 ; 5 Jur. N. S. 660 • ' 
 
 4 H. & N. 455 ' ' ggg 
 
 Hiokox V. Buckingham, 18 Howard, 182 ' 696 
 
 Hicks V. PaHngton, Moore, 297 393 ogg 
 
 Hicks V. Shield, 26 L. J. Q. B. 206 ; 3 Jur. N. S. 715 ; 7 E. & B. 633. . . .' 564 
 Higginbotham v. G. N. Ey. Co., 2 F. & F. 296 ; 10 "W. E. 358 .,., 14 
 
TABLE OF CASES CITED. XXXV 
 
 SECT. 
 
 Highlander, The, 2 W. Eob. 109 38 
 
 Hm». Idle, 4 Camp. 327 612, 616, 639 
 
 Hill V. Kitching, 15 L. J. C. P. 251 ; 3 0. B. 299 121 
 
 Hill V. Scott, (1895) 2 Q. B. 371, 713 ; 1 Com. Ca. UO, 200 ; 65 L. J. Q. B. 
 
 87; 73L. T. 458 3, 53, 106,666, 730 
 
 Hill V. Wnaon, 4 C. P. D. 329 ; 48 L. J. C. P. 764 ; 41 L. T. 412. . . .302, 307, 
 
 416, 424, 427, 647, 561 
 
 HiUs V. Evans, 31 L. J. Ch. 457 ; 6 L. T. 90 168 
 
 HiUs V. London Assurance Co., 5 M. & W. 569 378 
 
 Hills V. Snghrue, 15 M. & W. 263 265 
 
 Hillstrom v. Gibson, 22 L. T. 248 ; 8 Sess. Ca. (3rd) 263 449, 467 
 
 Hinde «•. LiddeU, L. E. 10 Q. B. 265 ; 44 L. J. Q. B. 105 ; 32 L. T. 449 ; 
 
 23 "W. R. 650 714, 723 
 
 Hine v. New York & Bermudez Co., 68 Fed. Eep. 920; 73 Fed. Eep. 352. . 103o 
 
 Hine v. Perkins, 66 Fed. Eep. 996 ; 50 Fed. Hep. 434 614a 
 
 Hingston v. Wendt, 1 Q. B. D. 367 ; 45 L. J. Q. B. 440 ; 34 L. T. 664 ; 
 
 24W. R. 664 295, 353, 429, 444 
 
 Hiort «i. Bott, L. R. 9 Ex. 86 ; 43 L. J. Ex. 81 ; 30 L. T. 25 ; 22 W. R. 
 
 414 469 
 
 Hiort V. L. & N. W. Ry. Co., 4 Ex. D. 188 ; 48 L. J. Ex. 545 ; 40 L. T. 
 
 674 ; 27 "W. R. 778 ; 38 L. T. 424 730 
 
 Hoare v. Graham, 3 Camp. 57 164 
 
 Hobbs V. Hannan, 3 Camp. 93 100 
 
 Hobbs V. L. & S. W. Ry. Co., L. R. 10 Q. B. Ill ; 44 L. J. Q. B. 49 ; 32 
 
 L. T. 352 ; 33 W. R. 620 717 
 
 Hodgkinson v. Femie, 26 L. J. C. P. 217 ; 2 C. B. N. S. 416 ; 3 Jur. N. S. 
 
 818 114 
 
 Hodgson V. Loy, 7 T. R. 440 606, 516, 527 
 
 Hodgson V. Malcolm, 2 B. & P. N. R. 336 89 
 
 Hoey V. Felton, 31 L. J. C. P. 105 ; 5 L. T. 354 ; 10 W. R. 78 ; 11 C. B. 
 
 N. S. 142; 8 Jut. N. S.-764 717 
 
 Hoffnung, The, 6 C. Rob. 231 242 
 
 Hogarth v. Miller (1891), A. C. 48 ; 16 Sess. Ca. (4th) 599 ; 26 So. L. R. 
 
 459 572, App. B. 
 
 Holderness v. CoUinson, 7 B. & C. 212 ; 1 M. & R. 56 192 
 
 Holderness v. Shackels, 8 B. & C. 612 ;' 3 M. & R. 25 590 
 
 HoU V. Pincent, 6 Moo. 228 121 
 
 Hollins V. Fowler, L. R. 7 H. L. 757 ; L. R. 7 Q. B. 616 ; 44 L. J. Q. B. 
 
 169 ; 33 L. T. 73 ; 20 W. R. 168 469 
 
 Hollinside, The, (1898) P. 131 ; 67 L. J. P. 46 582 
 
 Hohuan v. Dasnieres, 2 Times L. R. 607 250 
 
 Hobnan v. Peruvian Nitrate Co., 6 Sess. Ca. (4th) 657 ; 15 So. L. R. 349. . 44, 
 
 169, 197, 613 
 
 Holmann. "Wade, Times, May 11th, 1877 463 
 
 Hoist V. Pownall, 1 Esp. 240 514, 523 
 
 Holt V. Collyer, 16 Ch. D. 718 ; 50 L. J. Ch. 311 ; 45 L. T. 214; 29 W. R. 
 
 502 ; 45 J. P. 456 169, 170 
 
 Hong Kong, &c. Banking Co. v. Baker, 7 Bom. H. C. R. 186 ...... 83, 86, 474 
 
 Hoop, The, 1 C. Rob. 196 238, 243 
 
 Hooper v. L. & N. W. Ry. Co., 50 L. J. Q. B. 103 ; 43 L. T. 670 ; 25 
 
 "W. R. 241 ; 45 J. P. 223 107 
 
 Hope, The, 3 C. Rob. 215 324a 
 
 Hope, The, 28 L. T. 287 317 
 
 Hope V. Hope, 26 L. J. Ch. 417 ; 3 Jur. N. S. 464 ; 8 D. M. & G. 731 . . . . 214 
 Hopper V. Barness, 1 C. P. D. 137 ; 45 L. J. C. P. 377 ; 34 L. T. 528 ; 24 
 
 W. R. 612 , 307, 320, 547, 561 
 
XXXVl TABLE OF CASES CITED. 
 
 SECT. 
 
 Hornby «. CardweU, 8 Q. B. D. 329 ; 51 L. J. Q. B. 89 ; 45 L. T. 781 ; 30 
 
 W. R. 263 731 
 
 Homcastle v. Farran, 3 B. & A. 497 ; 2 Stark. 590 679 
 
 Home V. Midland Ey. Co., L. R. 7 C. P. 583 ; L. E. 8 C. P. 131 ;' 42 L. J. 
 
 C. P. 59; 28L. T. 312; 21 W. R. 481 716 
 
 Horsley v. Baxter, 20 Seas. Ca. (4th) 333 78 
 
 Horsley v. Price, 11 Q. B. D. 244 ; 25 L. J. Q. B. 603 ; 49 L. T. 101 ; 31 
 
 W. R. 841 455, 466 
 
 Horsley i". Rush, 7 T. R. 209 42, 119 
 
 Hotham v. East India Co^, 1 T. R. 638 ; 1 Doug. 272 174, 178, 549 
 
 Hough V. Athya, 16 So. L. R. 553 ; 6 Seas. Ca. (4th) 961 631 
 
 Hough V. Head, 64 L. J. Q. B. 294 ; 55 L. J. Q. B. 43 ; 52 L. T. 861 ; 53 
 
 L. T. 809; 33 W. K. 458; 34 W. R. 160; 6 Asp. M. C. 505 93, 572 
 
 Hough V. ManzanoB, 4 Ex. D. 104 : 48 L. J. Ex. 398 ; 27 W. R. 536 . . 128, 130 
 
 Houlder v. Gen. Steam Nar. Co., 3 E. & F. 170 465, 466, 683 
 
 Houston V. Sansinena, 68 L. T. 567 ; 7 Asp. 311 ; 66 L. T. 246 147 
 
 Hovill V. Stephenson, 4 C. & P. 469 272, 274 
 
 How i>. Kixchner, 11 Moo. P. C. 21 663 
 
 Howard v. Shepherd, 19 L. J. Q. B. 249 ; 9 C. B. 297 467 
 
 Howard v. Tucker, 1 B. & Ad. 712 69, 606, 663 
 
 Howdenj). S.S. Nutfield Co., 3 Com. Ca. 56 App. B. 
 
 HoweU V. Coupland, L. R. 9 Q. B. 462 ; 1 Q. B. D. 258 ; 46 L. J. Q. B. 
 
 147 ; 33 L. T. 832 ; 24 W. R. 470 256 
 
 Huhbersty ». Ward, 22 L. J. Ex. 113 ; 8 Ex. 330 69 
 
 Hudson V. Baxendale, 27 L. J. Ex. 93 ; 2 H. & N. 576 14, 473 
 
 Hudson «. Bilton, 26 L. J. Q. B. 27 ; 2 Jur. N. S. 784 ; 6 E. & B. 566 . . 220, 567 
 
 Hudsbn v. Clementson, 25 L. J. C. P. 234 ; 18 C. B. 213 620, 626 
 
 Hudson V. Ede, L. R. 2 Q. B. 566; L. R. 3 Q. B. 412 ; 36 L. J. Q. B. 273; 
 
 37 li. J. Q. B. 166 ; 16 L. T. 698 ; 18 L. T. 764 ; 16 W. R. 490 ; 16 W. R. 
 
 nil ; 8 B. & S. 631, 640 182, 252, 257, 257b ' 
 
 Hudson V. HiU, 43 L. J. C. P. 273 ; 30 L. T. 565 ...'... 144, 148, 218, 232, 720 
 Hugill V. Masker, 22 Q. B. D. 364 ; 58 L. J. Q. B. 171 ; 60 L. T. 774 ; 37 
 W. R. 390 504 
 
 Hull Dock Co. V. Brown, 2 B. & Ad. 43 448 
 
 Humble v. Hunter, 17 L. J. Q. B. 360 ; 12 Q. B. 310 127 
 
 Humfrey v. Dale, 26 L. J. Q. B. 137 ; 27 L. J. Q. B. 390 ; E. B & E 
 
 1004 ; 5 Jur. N. S. 191 131 igg 
 
 Hunt !;. Ward, 3 T. R. 467 *.*.'.".'....' 517 
 
 Hunter v. Fry, 2 B. & A. 421 141 261 
 
 Hunter v. MoGown, 1 Bligh. 673 24 
 
 Hunter v. Northern Mar. Ins. Co., 13 A. C. 717 ; 15 Seas. Ca. (4th) 72. .448 567 
 
 Hunter v. Potts, 4 Camp. 203 , gg 
 
 Hunter v. Prinsep, 10 East, 378 307 547 561 
 
 Hurry v. Royal Exchange Assurance Co., 2 B. & P. 430 ; 3 Esp. 289 462 
 
 Hurst V. Usbome, 25 L. J. C. P. 209 ; 18 C. B. 144 140 277 ' 232 
 
 Hutohings ». Nunes, 9 L. T. N. S. 125 ; 1 Moo. P. C. C. N S 243 ■ lo' 
 
 Jur.N. S. 109 ■..■....:618, 529 
 
 Hutchinson v. Guion, 28 L. J. C. P. 63 ; 4 Jur. N. S. 1149 ; 6 0. B N S 
 
 „^*^ 13, 97,' 272, 274, 277 
 
 Hutchinson v. Tatham, L. R. 8 C. P. 482 ; 42 L. J C P 260 • 29 T T 
 
 103; 22W.R. 18 '...'.....'.... ..131 196 
 
 Hutchison ». Eaton, 13 Q. B. D. 861 ; 51 L. T. 846 ".".'.'.'.*.", '130 
 
 Huth «. Lamport, 16 Q. B. D. 442, 735; 65 L. J. Q. B. 239; 64 LT '663'• 
 34 W. R. 386 ■ ' ^^2 
 
 Hutton V. Bragg, 7 Taun. 14 ; 2 Marsh. 339 gg'g ggg 
 
 Hutton «), Warren, 1 M. & W. 466 ; 2 Gale, 71 ". ' jgj 
 
TABLE OF CASES CITED. XXXVU 
 
 BEOT. 
 
 Hydames S.S. Co. v. Indemnity, &o. Co., (1895) 1 Q. B. 600 ; 64 L. J. 
 
 . Q. B. 353; 72 L. T. 103; 7 Asp. 553 173 
 
 Hyde v. Trent, &c. Nav. Co., 6 T. E. 397 ; 1 Esp. 36 462, 472 
 
 Hyde v. 'Willis, 3 Camp. 202 161 
 
 Hydraulic Engineering Co. v. M'Haffie, 4 Q. B. D. 670 ; 27 W. R. 221 . , 715, 
 
 716 
 Hyman v. Nye, 6 Q. B. D. 685 ; 44 L. T. 919 ; 45 J. P. 554 . . . . , 112 
 
 I. 
 
 Ida, The, 32 L. T. N. S. 541 12, 73, 75 
 
 Ida, The, L. R. 3 A. & E. 542 ; 41 L. J. Ad. 85 ; 27 L. T. 457 ; 21 W. R. 
 
 39 314 
 
 Imperial Bank v. London and St. Katherine Dock Co., 5 Ch. D. 195 ; 46 
 
 L. J. Ch. 335 ; 36 L. T. 233 517 
 
 Inchmaree, The, (1899) P. Ill ; 68L. J.P. 30; 80L.T. 201; 8 Asp. 486.. 348 
 
 India, The, 1 W. Roh. 406 333 
 
 Indomitable, The, Swab. 446 ; 5 Jur. N. S. 632 312 
 
 Industrie, The, (1894) P. 58 ; 63 L. J. P. 84 ; 70 L. T. 791 210, 211, 547 
 
 Industry, The, 3 Hagg. 203 338 
 
 Inglis V. Robertson, (1898) A. C. 616 ; 67 L. J. P. C. 108 ; 79 L. T. 224 . . 501, 
 
 504 
 Inmau S.S. Co. v. BisohofE, 6 Q. B. D. 648 ; 7 A. C. 670 ; 52 L. J. Q. B. 
 
 109 ; 47 L. T. 681 ; 31 W. R. 141 ; 5 Asp. M. C. 6 572 
 
 Innisfallen, The, L. E. 1 A. & E. 72 ; 35 L. J. Ad. 110 ; 12 Jur. N. S. 
 
 653 38, 40 
 
 Insurance Co. v. Boon, 95 TJ. S. 117 89 
 
 Insurance Co. v. Tweed, 7 Wall, 44 89 
 
 . lona. The, L. R. 1 P. C. 426 ; 16 L. T. 158 ; 4 Moo. P. 0. C. N. S. 336 . . 32 
 lonides v. Pender, 27 L. T. 244 ; L. R. 9 Q. B. 631 ; 43 L. J. Q. B. 227 ; 
 
 30 L. T. 457 ; 21 W. R. 39 100 
 
 lonides v. Univeraal Marine Ins. Assoc, 32 L. J. C. P. 170 ; 14 C. B. N. S. 
 
 269 ; 10 Jur. N. S. 18 ; 8 L. T. 705 ; 11 W. R. 858 89 
 
 Iowa, The, 50 Fed. Rep. 561 103a 
 
 Iredale v. China Traders' Ins. Co., (1899) 2 Q. B. 356 ; 68 L. J. Q. B. 1021 ; 
 
 81 L. T. 231 ; 4 Com. Ca. 256 369, 371, 388 
 
 Ireland v. Livingstone, L. R. 6 H. L. 395 ; 41 L. J. Q. B. 201 ; 27 L. T. 
 
 79 ; 1 Asp. Mar. C. 389 495 
 
 Ironsides, The, 31 L. J. Ad. 129 ; 6 L. T. 59 ; Lush. 458 685, 686 
 
 Irrawaddy, The, 171 U. S. 187 103f, 373c 
 
 Irvine*. Mid. G."W. Ry. Co., 6 L. R. Ir. 55 718, 719, 723 
 
 Irving V. Clegg, 1 Bing. N. C. 63 ; 4 M. & Scott, 672 262, 264 
 
 Isabella Jacobina, The, 4 C. Rob. 77 242 
 
 Isberg V. Bowden, 22 L. J. Ex. 322 ; 1 C. L. R. 722 ; 8 Ex. 852 689 
 
 Isis S.S. Co." V. Bahr, (1899) 2 Q. B. 364 ; 4 Com. Ca. 307 ; 68 L. J. Q. B. 
 
 930; 81L.T.241 265 
 
 Isoa, The, 12 P. D. 34 695 
 
 Italia, The, 59 Fed. Rep. 617 88 
 
 J. 
 
 Jackson v. GaUoway, 5 Bing. N. C. 71 ; 6 Scott, 786 634 
 
 Jackson v. Isaacson, 27 L. J. Ex. 392 ; 3 H. & N. 405 566 
 
 Jackson v. Nichol, 5 Bing. N. C. 608 ; 7 Scott, 577 , 610, 519 
 
XXXVIU TABLE OF CASES CITED. 
 
 BEOT. 
 
 Jackson v. Union Mar. Ins. Co., L. E. 10 C. P. 125; L. R. 8 C.P. 572 ; 
 42 L. J. C. P. 284 ; 23 W. E. 169 ; 44 L. J. C. P. 27 ; 31 L. T. 789. . . . 227, 
 
 232, 233 
 
 Jacobs -0. Credit Lyonnais, 12 Q. B. D. 589 ; 49 L. T. 39 ; 53 L. J. 
 
 Q. B. 156 203, 207, 208, 227, 247 
 
 Jacobs V. Latour, 5 Bing. 130 ; 2 M. & P. 201 679 
 
 Jaederen, The, (1892) P. 351 ; 61 L. J. P. 89 614a, 616a, 619, 619a 
 
 James v. Oriffin, 2 M. & "W. 623 518 
 
 James v. Jones, 3 Esp. 27 154 
 
 Jamieson v. Lawrie, 6 Bro. Pari. C. 474 620, 630, 717 
 
 Janet Court, The, (1897) P. 59 ; 66 L. J. P. 34 ; 76 L. T. 172 ; 8 Asp. 223. 344 
 
 Japp V. CampbeU, 57 L. J. Q. B. 79 590, 592, 595 
 
 J. C. Potter, The, L. E. 3 A. & E. 292 ; 40 L. J. Ad. 9 ; 23 L. T. 603 ; 19 
 
 W. E. 335 339, 34S 
 
 Jebseu v. East and West India Dock Co., L. E. 10 C. P. 300 ; 44 L. J.. 
 
 C. P. 181 ; 32 L. T. 321 ; 23 "W. E. 624 721, 730 
 
 Jenkins v. Hutchinson, 18 L. J. Q. B. 274 ; 13 Jur. 763 ; 13 Q. B. 744 . . 128 
 
 Jenkyns v. Brown, 19 L. J. Q. B. 286 ; 14 Q. B. 496 ; 14 Jur. 505 494 
 
 Jeni^ns r. Usbome, 13 L. J. C. P. 196 ; 8 Scott, N. E. 505 ; 7 M. & G. 
 
 678 504, 524, 533 
 
 Jessel V. Bath, L. E. 2 Ex. 267 ; 36 L. J. Ex. 149 ; 15 W. E. 1041 ... .69, 71 
 
 Jesson V. Solly, 4 Taun. 62 47, 639, 643 
 
 Jewan v. Whitworth, L. E. 2 Eq. 692 ; 36 L. J. Ch. 127 504 
 
 Job V. Langton, 26 L. J. Q. B. 97 ; 3 Jur. N. S. 109 ; 6 E. & B. 779 . . 399, 400 
 
 Johann Friedrich, The, 1 W. Eob. 35 708 
 
 Johann Sverdrup, The, 12 P. D. 43 ; 11 P. D. 49 ; 55 L. J. Adm. 28 ; 54 
 
 L. T. 800 ; 35 W. E. 63 30 
 
 Johannes, The, 30 L. J. Ad. 91 ; 3 L. T. 757 ; Lush. 182 331 
 
 John and Mary, The, Swa. 471 ; 5 Jur. N. S. 1085 684 
 
 John, The, 3 W. Eob. 170 664, 598 
 
 John Dunn, The, 1 W. Eob. 159 27 
 
 Johnson r. Chapman, 35 L. J. C. P. 23 ; 19 0. B. N. S. 563. .366, 370, 380, 402 
 Johnson v. Credit Lyonnais, 2 C. P. D. 244 ; 3 C. P. D. 32 ; 47 L. J. C. P. 
 
 241 ; 37 L. T. 657 ; 26 W. E. 195 490 
 
 Johnson v. Greaves, 2 Taun. 344 , 544. 
 
 Johnson v. Macdonald, 9 M. & W. 600 ; 12 L. J. Ex. 99 ; 6 Jur. 264 .... 137 
 
 Johnson v. Midland Ey. Co., 4 Ex. 367 ; 18 L. J. Ex. 366 4 
 
 Johnson v. Eoyal Mail S. Packet Co., L. R. 3 C. P. 38 ; 37 L. J. C P 33 • 
 
 17 L. T. 445 .' 40 
 
 Johnston v. Benson, 4 Moore, 90 ; 1 B. & B. 464 92 
 
 Johnston v. Cox, 16 Ch. D. 571 ; 19 Ch. D. 17 ; 50 L. J. Ch. 216 ; 45 
 
 L. T. 657 ; 30 W. E. 114 596 
 
 Johnston v. tJsborne, 11 A. & E. 649 ; 3 P. & D. 236 184 
 
 JoUy V. Young, 1 Esp. 186 571a, 
 
 Jonathan Goodhue, The, Swab. 355 314 315 
 
 Jones V. Adamson, 1 Ex. D. 60 ; 46 L. J. Ex. 64 ; 35 L. T. 287 620 717 
 
 Jones V. Bennett, 63 L. T. 705 gn 
 
 Jones V. Holm, L. R. 2 Ex. 335 ; 36 L. J. Ex. 192 ; 16 L. T. 794 ; 16 
 
 W. E. 62 ! ... 259 
 
 Jones V. Hough, 6 Ex. D. 116 ; 49 L. J. Ex. 211 ; 42 L. T. 108 ... .66, 58, 59, 
 
 151, 166, 161,' 269 
 Jones V. Jones, 8 M. & W. 431 sjo 
 
 Jones v. Moore, 4 T. & C. 351 '.'.'." 505 
 
 Jones V. Nicholson, 23 L. J. Ex. 330 ; 10 Ex. 28 ; 2 C. L. E. 12 99 100 
 
 Jones ». Tarleton, 9 M. & W. 675 ; 6 Jur. 348 680 
 
 Jonge Andries, The, Swab. 226, 303 ; 11 Moore, P. C. C. 313. ,337,338,347, 348 
 
TABLE OF CASES CITED. XXXIX 
 
 SECT. 
 
 Jonge Bastiaan, The. 5 C. Rob. 222 333, 350 
 
 Jonge Margaretha, The, 1 C. Rob. 189 , 244 
 
 Joseph, The, 4 Times L. R. 693 154 
 
 Joseph V. Knox, 3 Camp. 320 61 
 
 Joyce V. Swann, 17 0. B. N. S. 84 492 
 
 J. P. Donaldson, The, 167 U. S. 599 374b 
 
 JubUee, The, 42 L. T. 594 340 
 
 Juno, The, 1 P. D. 135 ; 45 L. J. Ad. 105 ; 34 L. T. 741 ; 24 "W. R. 902. . 30 
 
 K. 
 
 Kaltenbaoh v. Lewis, 24 Ch. D. 54 ; 10 A. C. 617 ; 51 L. J. Ch. 881 ; 48 
 
 L. T. 844 ; 45 L. T. 766 ; 31 W. R. 731 ; 30 W. R. 356 ; 55 L. J. Ch. 
 
 68 ; 53 L. T. 787 ; 34 "W. R. 477 504 
 
 Kamak, The, L. R. 2 A. & E. 289 ; 2 P. C. 505 ; 38 L. J. Ad. 57 ; 21 L. T. 
 
 159; 17 W. R. 1028; 6 Moo. P. C. C.N. S. 136.. 211, 301,310,314,664, 598 
 
 Kasan, The, Br. & L. 1 ; 32 L. J. Ad. 97 ; 9 Jnr. N. S. 235 688 
 
 Kate B. Jones, The, (1892) P. 366 332, 335, 344 
 
 Kate, The, (1899) P. 165 ; 68 L. J. P. 41 ; 80 L. T. 423 ; 8 Asp. 539 728 
 
 Kathleen, The, L. R. 4 A. & E. 269 : 43 L. J. Ad. 39 ; 31 L. T. 204 ; 23 
 
 "W. R. 350 307, 308, 555 
 
 Katy, The, (1895) P. 56 ; 64 L. J. P. 49 ; 71 L. T. 709 ; 7 Asp. 527 631 
 
 Kay B. Pield, 8 Q. B. D. 594; 10 Q. B. D. 241 ; 62 L. J. Q. B. 17 ; 47 
 
 L. T. 423 ; 46 L. T. 630 253, 267, 617 
 
 Kay V. "Wheeler, L. R. 2 C. P. 302 ; 36 L. J. C. P. 180 ; 16 L. T. 66 ; 15 
 
 W. R. 495 74, 86 
 
 Kearon v. Pearson, 31 L. J. Ex. 1 ; 7 H. & N. 386 ; 10 W. R. 12. .252, 253, 614 
 Keith V. Burrows, 2 A. C. 636 ; 46 L. J. C. P. 801 ; 37 L. T, 291 ; 25 W. R. 
 
 831 40, 41, 675, 591, 592, 594, 595, 596, 697, 600 
 
 Kell V. Anderson, 10 M. & W. 498 ; 12 L. J. Ex. 101 623, 626 
 
 Kelner v. Baxter, L. R. 2 C. P. 174 ; 36 L. J. C. P. 94 ; 15 L. T. 213 ; 16 
 
 W. R. 278 128 
 
 Kemp V. Canavan, Ir. R. 15 C. L. 216 532 
 
 Kemp V. Palk, 7 A. C. 573 ; 62 L. J. Ch. 167 ; 47 L. T. 457 ; 31 W. R. 125 ; 
 
 5 Asp. M. C. 1 66, 504, 613, 515, 530, 634, 540,541 
 
 Kemp V. HalUday, 34 L. J. Q. B. 238 ; L. R. 1 Q. B. 520 ; 35 L. J. Q. B. 
 
 156 ; 14 L. T. 762 ; 14 W. R. 697 ; 12 Jur. N. S. 682 ; 6 B. & S. 723 . . 352, 
 
 391, 396, 397, 398 
 Kendal v. MarshaU, 11 Q. B. D; 356 ; 62 L. J. Q. B. 313 ; 48 L. T. 951 ; 
 
 31 W. R. 597 ; 46 L. T. 693 506, 613, 521 
 
 KendaU v. HamUton, 4 A. C. 504 ; 3 C. P. D. 403 ; 48 L. J. C. P. 705 ; 41 
 
 L. T. 418 ; 28 W. R. 97 36, 112 
 
 Kendall v. L. & S. "W. Ry. Co., L. R. 7 Ex. 373 ; 41 L. J. Ex. 184 ; 26 
 
 L. T. 735 ; 20 W. R. 886 12 
 
 Kenmure Castle, The, 7 P. D. 47 ; 30 "W. R. 708 ; 5 Asp. M. C. 27 344 
 
 Kennedy v. Gouveia, 3 D. & R. 503 130 
 
 Kensington, The, 88 Eed. Rep. 331 ; 94 Eed. Rep. 885 103a, 103f 
 
 Kent, The, Lush. 496 38 
 
 Kent. V. M. Ry. Co., L. R. 10 Q. B. 1 ; 44 L. J. Q. B. 18 ; 31 L. T. 430 ; 
 
 23 W. R. 25 107 
 
 Kentucky v. Bassford, 6 HiU, 526 (N. Y.) 214 
 
 Kerford v. Mondel, 28 L. J. Ex. 303 671, 680 
 
 Kern v. DeSlandes, 30 L. J. C. P. 297 ; 10 C. B. N. S. 205 ; 8 Jur. N. S. 
 
 194 ; 6 L. T. 349 670, 672 
 
 Keroula, The, 11 P. D. 92 ; 65 L. J. Adm. 45 ; 55 L. T. 61 ; 6 Asp. Mar. 
 
 C. 23 38 
 
xl TABLE OF CASES CITED. 
 
 SECT. 
 
 EerswUl v. Bishop, 2 C. & J. 529 ; 2 Tyr. 602 692 
 
 Keys V. Belfast & BaUymena Ry. Co., 8 Ir. 0. L. K. 167 107 
 
 Kiddle v. Lovett, 16 Q. B. D. 605 ; 34 W. E. 518 718 
 
 KiUeena, The, 6 P. D. 193 ; 45 L. T. 621 ; 61 L. J. Ad. 11 ; 30 W. R. 339 ; 
 
 4 Asp. M. C. 472 333 
 
 Kings. Hinde, L. R. (Ir.) 12 CI. 113 169, 620 
 
 King 4-. Shepherd, 3 Story, 349 (U. S.) .. ., 293 
 
 King V. Spurr, 8 Q. B. T>. 104 ; 51 L. J. Q. B. 105 ; 45 L. T. 709 ; 30 
 
 W. E. 152 ; 46 J. P. 198 , 49 
 
 Kingalock, The, 1 Spk. 263 339. 340, 344, 347 
 
 Kingsford v. Merry, 11 Ex. 577 ; 1 H. & N. 503 ; 26 L. J. Ex. 83 ; 3 Jur. 
 
 N. S. 68 496 
 
 Kingston v. Nihbs, 1 Camp. 503 (n.) 182 
 
 Kinlooh V. Craig, 3 T. R. 119, 783 ; i Bro. P. C. 47 528 
 
 Kinnersley Caetle, The, 3 Hagg. 1 42 
 
 Kirchner v. Venus, 12 Moo. P. C. 361 ; 7 W. E. 466 ; 6 Jur. N. S. 395 200, 
 
 542, 662, 663 
 
 Kirk V. Gibbs, 26 L. J. Ex. 209 ; 1 H. & N. 810 208, 247, 255 
 
 Kish V. Cory, L. E. 10 Q. B. 653 ; 44 L. J. Q. B. 205 ; 32 L. T. 670 ; 23 
 
 W. E. 880 645, 647, 648, 649, 667 
 
 IQeinwort v. Caea Marittima, &o., 2 A. C. 156 ; 36 L. T. 118 ; 25 W. R. 
 
 608 316 
 
 Knight S.S. Co. v. Fleming, 26 Sess. Ca. (4th) 1070 468 
 
 KopitofE V. WUsou, 1 Q. B. D. 377 : 46 L. J. Q. B. 436 ; 34 L. T. 677 ; 24 
 
 706 17, 18, 87 
 
 Krall V. Burnett, 26 W. E. 305 563 
 
 Kruse v. Drynan, 18 Sess. Ca. (4th) 1110 61 9a 
 
 Kreeft v. Thompson, L. E. 10 Ex. 281 ; 44 L. J. Ex. 238 ; 33 L. T. 366 ,' 
 
 24 W. R. 146 44 
 
 Kruger v. Wilcox, Ambler, 252 , 193 
 
 L. 
 
 LacHngton v. Atherton, 13 L. J. C. P. 140 ; 7 M. «& Gr. 360 ; 8 Jur. 406 ; 
 
 8 Scott, N. R. 38 517 
 
 La Cour v. Donaldson, 1 Sess. Ca. (4th) 912 623 
 
 Lady Clermont, The, 23 L. T. 283 , 38 
 
 Laing v. Hollway, 3 Q. B. D. 437 ; 47 L. J. Q. B. 512 ; 26 W. E. 769. .613, 633 
 
 Lamb v. Kaselack, 19 Sc. L. E. 336 ; 9 Sess. Ca. (4th) 482 669 
 
 Lamb v. Parkman, 1 Sprague, 343 g gg 
 
 Laming v. Seater, 26 Sc. L. E. 500 ; 16 Sess. Ca. (4th) 828 41 
 
 Lane j). Nixon, L. R. 1 C. P. 412 ; 35 L. J. C. P. 243 : 14 W. R. 641 • 12 
 
 Jur. K. S. 392 '. . . 462 
 
 Lang V. Anderdon, 3 B. & C. 496 ; 5 D. & R. 393 ; 1 C. & P. 171 220 567 
 
 Lannoy v. "Worry, 2 Bro. Pari. C. 60 535 
 
 Laurel, The, 33 L. J. Ad. 17 ; 9 L. T. 457 ; 13 W. E. 352 : B. & L 191 "■ 
 
 11 Jur. N. S. 346 _' gj^ 
 
 Laurie v. Douglas, 15 M. & W. 746 84 g^ 
 
 Lavahre v. "WUson, 1 Doug. 284 287 
 
 Laveroni v. Drury, 22 L. J. Ex. 2 ; 16 Jur. 1024 ; 8 Ex. 166 3 10 86 
 
 Law V. HoUingsworth, 7 T. R. 160 284 
 
 Lawrence v. Aberdein, 6 B. & A. 107 89 172 173 
 
 Lawrence v. Mintum, 17 How. 100 (U.S.) 15 19' 28l' 368 
 
 Lawson v. Bumess, 1 H. & C. 396 ; 10 W. R. 733 ; 2 F. & F. 793 '....'... ' 620 
 Lea V. Whitaker, L. R. 8 C. P. 70 ; 27 L. T. 676 ; 21 W. R. 230 '!!!!."! 722 
 Learoyd v. Robinson, 12 M. & "W. 746 ; 13 L. J. Ex. 213 ! ! " T ! ' 604 
 
TABLE OF CASES CITED. xH 
 
 SECT. 
 
 Leask v. Soott, 2 Q. B. D. 376 ; 46 L. J. Q. B. 329, 576 ; 36 L. T. 784 ; 35 
 
 L. T. 903 ; 25 W. E. 654 638 
 
 Lebeau v. General S. Nav. Co., L. R. 8 0. P. 88 ; 42 L. J. 0. P. 1 : 27 L. T 
 
 447; 21 W. R. 146 72, 729 
 
 Le Blanche v. L. & N. "W. Ry. Co., 1 C. P. D. 286 ; 45 L. J. C. P. 521 :' 
 
 34 L. T. 667 ; 24 W. R. 808 .718 
 
 Le Couteur v. L. & S. W. Ry. Co., L. R. 1 Q. B. 54 ; 35 L. J. Q. B. 40 : 
 
 13 L. T. 325 ; 14 W. E. 80 ; 12 Jut. N. S. 266 6, 29 
 
 Ledvic V. Ward, 20 Q. B. D. 475 ; 57 L. J. Q. B. 379 ; 58 L. T. 908 ; 36 
 
 "W. R. 537 16, 56, 63, 152, 281, 286, 292a 
 
 Lee V. Abdy, 17 Q. B. D. 309 ; 65 L. T. 297 ; 34 W. R. 663 213 
 
 Lee V. Butler, (1893) 2 Q. B. 318 ; 62 L. J. Q. B. 691 ; 69 L. T. 370 604 
 
 Lee V. Grinnell, 4 Duer, 400 369 
 
 Lee V. Southern Ins. Co., L. R. 6 C. P. 397 ; 39 L. J. C. P. 218 ; 22 L. T. 
 
 443 ; 18 W. R. 863 414 
 
 Leeds v. Wright, 2 B. & P. 320 ; 4 Esp. 243 517 
 
 Leer v. Tates, 3 Taun. 387 624, 639, 640, 641, 642 
 
 Leidemann v. Schultz, 23 L. J. C. P. 17 ; 14 C. B. 38 ; 18 Jur. 32 ; 2 
 
 C. L. R. 87 169, 620 
 
 Le Jouet, L. R. 3 A. & E. 566 ; 41 L. J. Ad. 96 ; 27 L. T. 387 ; 21 W. R. 
 
 83 335 
 
 Lemington, The, 2 Asp. N. S. 476 696, 707 
 
 Lennard v. Robinson, 24 L. J. Q. B. 276 ; 1 Jur. N. S. 853 ; 5 E. & B. 
 
 126 52, 130 
 
 Leo, The, 31 L. J. Ad. 78 ; 6 L. T. 68 ; Lush. 444 601 
 
 Leon, The, 6 P. D. 148; 60 L.J. Ad. 69; 44L.T.613; 29 W. R. 916. .707, 709 
 
 Lepanto, The, (1892) P. 122 ; 66 L. T. 623 334, 344 
 
 Leptir, The, 52 L. T. 768 ; 6 Asp. M. C. 411 308 
 
 Leroux v. Brown, 12 C. B. 801 ; 22 L. J. C. P. 1 ; 16 Jur. 1021 213, 697 
 
 Leslie v. Guthrie, 1 Biag. N. C. 697 ; 1 Soott, 683 596 
 
 LesKe i-. Wilson, 3 B. & B. 171 ; 6 Moo. 416 119 
 
 Letchford v. Oldham, 5 Q. B. D. 538 ; 49 L. J. Q. B. 458 87 
 
 Letrioheux v. Dunlop, 19 Sess. Ca. (4th) 209 101, 258, 619a 
 
 Leuckhart ». Cooper, 3 Bing. N. C. 99 ; 7 C. & P. 119 ; 3 Soott, 621 ; 2 
 
 Hodges, 150 190, 191, 654 
 
 Leuw V. Dudgeon, L. R. 3 C. P. 17 (n.) ; 37 L. J. C. P. 6 (u.) ; 17 L. T. 
 
 145 ; 16 W. R. 80 79 
 
 Levy V. Barnard, 8 Taun. 149 ; 2 Moore, 34 678 
 
 Levy V. Costerton, 4 Camp. 389 ; 1 Stark. 212 284 
 
 Levy V. Merchants' Mar. Ins. Co., 62 L. T. 263 ; 1 C. & E. 474 .... 171 
 
 Lewis V. G. W. Ry. Co., 6 H. & N". 867 ; 29 L. J. Ex. 425 110 
 
 Lewis «. G. W. Ry. Co., 3 Q. B.D. 119; 47 L. J. Q. B. 131; 37 L. T. 774; 
 
 26 W. R. 266 103, 167 
 
 Lewis V. MarshaU, 13 L. J. C. P. 193 ; 8 Jur. 848 ; 8 Soott, N. R. 729 ; 7 
 
 M. &G. 729 171, 264 
 
 Lewis V. MoKee, 4 H. & C. 674 ; L. R. 2 Ex. 37 ; L. R. 4 Ex. 68 ; 36 
 
 L. J. Ex. 6 ; 38 L. J. Ex. 62 ; 15 L. T. 388 ; 19 L. T. 522 ; 17 W. R. 
 
 325 64 
 
 Lewis V. Rucker, 2 Burr. 1167 193 
 
 Lewis V. Williams, 1 Hall, 430 416 
 
 Liokbarrow v. Mason, 2 T. R. 63; 1 H. Bl. 367; 2 H. Bl. 211; 4 Bro. P. C. 
 
 57 ; 6 T. R. 683 ; 6 L. T. 63 , 193, 194, 487, 489, 532, 633 
 
 Liddard v. Lopes, 10 East, 626 547, 571 
 
 Lidgett V. Perrin, 2 F.' & E. 763 ; 11 C. B. N. S. 362 52, 57, 563 
 
 Lidgett V. Williams, 4 Hare, 466 119 
 
 Lilley v. Doubleday, 7 Q. B. D. 610 ; 51 L. J. Q. B. 310 ; 44 L. T. 814 . . 287 
 
xlii TABLE OF CASES CITED, 
 
 SECT. 
 
 LiUy v. Stevenson, 22 Seas. Ca. (4th) 278 2o4a, 257b, 258b, 609, 625 
 
 LiUy J.. Smales, (1892) 1 Q. B. 456; 40 "W. E. 644 129, 169 
 
 Limpus V. Loud. Gen. Omnibus Co., 32 L. J. Ex. 34 707 
 
 Lindsay v. Gibbs, 22 Beav. 522 ; 28 L. J. Ch. 692 ; 4 Jur. N. S. 779 590, 
 
 691, 697 
 
 Lindsay ». Scholefield, 24 Sees. Ca. (4th) 530 16, 126, 287 
 
 Lion, The, L. E. 2 P. C. 525 ; 38 L. J. Ad. 61 ; 21 L. T. 41 ; 17 W. E. 
 
 993; 6 Moo. P.O. C. N. S. 163 30, 31 
 
 Lipsou V. Harrison, 2 W. E. 10 324 
 
 Lipton V. Jescott Steamers, 1 Com. Ca. 32 53 
 
 Lishman v. Christie, 19 Q. B. D. 333 ; 56 L. J. Q. B. 538 ; 57 L. T. 652 ; 
 
 35 W. E. 744 69b 
 
 Lister v. Van Haansbergen, 1 Q. B. D. 269; 45 L. J. Q. B. 495; 24 W. E. 
 
 395 646 
 
 Litt V. Cowley, 7 Taun. 168 ; 2 Marsh. 457 ; Holt, 338 530, 631 
 
 Little V. Stevenson, (1896) A. C. 108 ; 74 L. T. 529 ; 22 Sess. Ca. (4th) 
 
 796 254a, 625 
 
 Liver AlkaU Co. v. Johnson, L. R. 7 Ex. 267 ; L. E. 9 Ex. 338 ; 43 L. J. 
 
 Ex. 216; 31 L. T. 95 4, 5, 8 
 
 Liverpool and Great Western Steam Co. v. Phoenix Insur. Co. (The 
 
 Montana), 129 U. S. Eep. 397 103a, 210 
 
 Liverpool Mar. Credit Co. v. "WUson, L. E. 7 Ch. 501 ; 41 L. J. Ch. 798 ; 
 
 26 L. T. 717 ; 20 W. E. 665 594, 697 
 
 Liverpool, The, (1893) P. 154 ; 68 L. T. 719 339 
 
 Livie V. Janson, 12 East, 648 89 
 
 Lizzie, The, L. R. 2 A. & E. 254 ; 19 L. T. 71 316 
 
 Lloyd V. General Iron Screw Coll. Co., 33 L. J. Ex. 269 ; 10 L. T. 586 ; 12 
 
 W. E. 882 ; 3 H. & C. 284 ; 10 Jur. N. S. 661 77, 87, 88 
 
 Lloyd V. Guibert, L. E. 1 Q. B. 115 ; 33 L. J. Q. B. 241 ; 35 L. J. Q. B. 
 
 74 ; 12 W. E. 953 ; 13 L. T. 602 ; 6 B. & S. 100, 120 ; 10 Jur. N. S. 
 
 949 42, 74, 202, 204, 205, 207, 211, 213, 301 
 
 Lloyds, The, 32 L. J. Ad. 197 ; 9 L. T. 236 ; 1 Br. & L. 359 30 
 
 Lloyds V. Harper, 16 Ch. D. 290 ; 60 L. J. Ch. 140 ; 43 L. T. 481 730 
 
 Lockhart v. Ealk, L. R. 10 Ex. 132 ; 44 L. J. Ex. 105 ; 33 L. T. 96 ; 23 
 
 W. E. 753 648, 649, 667 
 
 Loder v. Kekule, 27 L. J. C. P. 27 ; 4 Jur. N. S. 93 ; 3 C. B. N. S. 128 . . 718 
 
 Loeschmann «. Williams, 4 Camp. 181 619 
 
 L. & N. W. Ey. Co. v. Bartlett, 31 L. J. Ex. 92 ; 5 L. T. 399 ; 10 W. E. 
 
 109 ; 7 H. & N. 400 484, 523 
 
 L. & S. W. Ey. Co. V. James, L. E. 8 Oh. 241 ; 42 L. J. Ch. 337; 28 L. T. 
 
 48 ; 21 W. E. 161 27, 28 
 
 Lohden v. Calder, 14 T. L. E. 311 69b 
 
 London Assurance v. Comp. de Moagens, 167 XT. S. 149 93, 172, 203 
 
 London Merchant, The, 3 Hagg. 394 , 332 
 
 Longford, The, 6 P. D. 60 ; 50 L. J. Ad. 28 ; 44 L. T. 254 ; 29 W. E. 
 
 491 331, 350, 394 
 
 Lothian v. Henderson, 3 B. & P. 499 , , , 133 
 
 Louisa, The, 1 Dod. 317 332 
 
 Lowry v. Euseell, 8 Pick. 366 285 
 
 Luard 41. Butcher, 2 C. & K. 29 584 
 
 Lucas V. Nockells, 4 Bing. 729 ; 2 T. & J. 304 ; 1 M. & P. 783 661 
 
 Luke V. Lyde, 2 Burr. 882 ; 1 W. Bl. 190 304, 556, 560 
 
 Luke V. South Kensington Hotel Co., 11 Ch. D. 121 ; 48 L. J. Ch. 361 ; 40 
 
 L. T. 638; 27 W. E. 514 _'_ _ 35 
 
 Lutsoher v. Comptoir d'Escompte de Paris, 1 Q. B. D. 709 ; 34 L. T. 798. 491 
 Lutwidge v. Grey, Abbott (5th), 307 ; (Uth), iv. 9, 8 ; Maol. (3rd), 479. . 654, 
 
 559 
 
TABLE OF CASES CITED. xliii 
 
 SECT. 
 
 Lyle Shipping Co. v. Cardiff Corp., 69 L. J. Q. B. 93; 5 Com. Oa. 87. .619, 619a 
 
 Lyon V. Mells, 5 East, 428 5 
 
 Lyons v. Hofenung, 15 A. C. 391 ; 59 L. J. Adm. 19; 63 L. T. 293 511 
 
 M. 
 
 Mao, The, 7 P. D. 126; 51 L. J. Adm. 81; 46 L. T. 907 24, 356, 704 
 
 MaoAndrew v. Chappie, L. E. 1 C. P. 643 ; 14 L. T. 556 ; 14 W. E. 891 ; 
 
 12 Jur. N. S. 56 230, 231 
 
 Mackenzie v. Liddell, 10 Sess. Ca. (4th) 705 146 
 
 Mackenzie v. Pooley, 25 L. J. Ex. 124 ; 11 Ex. 638 45 
 
 Mackenzie v. Rowe, 2 Camp. 482 154 
 
 MaokiU V. Wright, 14 A. C. 106 141a, 272 
 
 Mackinnon ii. Miaohin, 6 Madras H. C. Rep. 353 474 
 
 Maokay v. Dick, 6 A. C. 251 612 
 
 Mackrell «. Simond, Abbott (5th), 333 ; (11th), iv. 9, 10 ; Maol. 483 ; 2 
 
 Chitt. 666 571 
 
 Maclean v. Dunn, 4 Bing. 722 ; 1 M. & P. 761 125 
 
 Macnee v. Gorst, L. R. 4 Eq. 315 ; 15 "W. R. 1197 504 
 
 Macrow ». G. W. Ry. Co., L. R. 6 Q. B. 612; 40 L. J. Q. B. 300; 24 L. T. 
 
 618; 19 W. R. 873 6 
 
 M' Andrew v. Adams, 1 Bing. N. C. 29 ; 4 M. & Scott, 517 223, 284 
 
 M'Andrews v. Thatcher, 3 Wallace, 347 ■ 400 
 
 M'Arthur ?;. Sears, 21 Wend. 190 8 
 
 M'Cance v. L. & N. W. Ry. Co., 34 L. J. Ex. 39; 11 L. T.426; 12 W. R. 
 
 1086 ; 3 H. & C. 343 ; 10 Jur. N. S. 1058 729 
 
 M'Conrt V. L. & N. W. Ry. Co., Ir. E. 3 CI. 107, 462 107 
 
 M'Ewan v. Smith, 2 H. L. C. 309 ; 13 Jur. 265 504 
 
 M'Intosh V. Sinclair, Ir. R. 11 C. L. 456 182, 460, 629 
 
 McCarthy r. Young, 30 L. J. Ex. 227 ; 3 L. T. 785 ; 9 W. R. 439 ; 6 H. 
 
 & N. 329 112- 
 
 McCall V. Houlder, 66 L. J. Q. B. 408 ; 76 L. T. 469 ; 8 Asp. 252. .368, 378, 408 
 McCawley v. Eurness Ry. Co., L. R. 8 Q. B. 57 ; 42 L. J. Q. B. 4 ; 27 
 
 L. T. 485 ; 21 W. R. 140 103 
 
 McConnel v. Murphy, L. R. 5 C. P. 203 ; 28 L. T. 713 ; 21 W. R. 609 ... . 261 
 
 MeKean v. Mclver, 18 L. T. 410 ; L. R. 6 Ex. 36 469, 484 
 
 MoKee v. Hecksher, 10 Daly, 393 , 544 
 
 MoLay v. Perry, 44 L. T. 152 261 
 
 McLean v. Eleming, 2 H. L. Sc. 128; 25 L. T. 317 69, 71, 581, 648, 666, 
 
 671, 672 
 
 McLeod V. 1,600 tons of Nitrate of Soda, 55 Fed. Rep. 628 258 
 
 McMahon v. Field, 7 Q. B. D. 691 ; 60 L. J. Q. B. 311, 532; 44 L. T. 175 ; 
 
 45 L. T. 381 ; 29 W. R. 472 717 
 
 Madhu Chunder Dey v. Law, 13 Beng. R. 394 69 
 
 Madrazo v. WiUes, 3 B. & Aid. 353 , 214 
 
 Magdalen, The, 31 L. J. Ad. 22 ; 6 L. T. 807 346 
 
 Maggrath v. Church, 1 Caines, 196 382 
 
 Magnin v. Dismore, 62 N. T. Rep. 35 727 
 
 Magnus «). Buttemer, 11 C. B. 876 ; 21 L. J. C. P. 119; 16 Jur. 480 87 
 
 Majestic, The, 166 U. S. 375 9, 111 
 
 Major V. White, 7 C. & P. 41 157, 272 
 
 Male V. Roberts, 3 Esp. 163 213 
 
 Malpas V. L. & S. W. Ry. Co., L. R. 1 C. P. 336 ; 36 L. J. C. P. 166 ; 13 
 
 L. T. 710 ; 14 W. R. 391 67 
 
xliv TABLE OP CASES CITED, 
 
 SECD. 
 
 M. S. & L. %. Co. V. Brown, 8 A. & 0. 703 ; 63 L. J. Q. B. 124; 50 L. T. 
 281; 32W.E. 207; 48 J. P. 388 (see Browm). M. S. & L.Ky. Co.). .103, 110 
 
 Manchester Trust v. Pumess, (1895) 2 Q. B. 282, 539 ; 1 Com. Ca. 39 ; 64 
 
 L. J. Q. B. 766 ; 73 L. T. 110 114, 152, 164, 156, 160, 670 
 
 Manfield v. Maitland, 4 B. &• A. 582 564 
 
 Maori King, Cargo per v. Hughes, (1895) 2 Q. B. 550 ; 1 Com. Ca. 104 ; 
 
 64 L. J. Q. B. 744 ; 73 L. T. 141 20, 79 
 
 Marathon, The, 40 L. T. N. S. 163 62 
 
 Margaret, The, 2 Hagg. 275 38 
 
 Margetson v. Glynn, (1892) 1 Q. B. 337, (1893) A. C. 351 ; 61 L. J. Q. B. 
 
 186 ; 66 L. T. 142 ; 7 Asp. 148 16, 286, 292a 
 
 Maria Jane, The, 14 Jur. 857 342, 343 
 
 Maria, The, L. R. 1 A. & E. 358 ; 16 L. T. 717 ; 15 W. R. 1113 30 
 
 Marie, The, 7 P. D. 203 ; 47 L. T. 737 ; 5 Asp. M. C. 27 346 
 
 Mark Lane, The, 15 P. D. 135 ; 63 L. T. 468 ; 39 W. R. 47 347 
 
 Mariposa, The, (1896) P. 273 ; 66 L. J. P. 104 ; 76 L. T. 54 332, 349 
 
 Marpessa, The, (1891) P. 403 714, 719 
 
 Marquandt). Banner, 25 L.J. Q. B. 313; 2 Jur. N. S. 708; 6E. &B. 232. .156, 599 
 
 Marsden v. Reid, 3 East, 672 , 286 
 
 Marsh v. Pedder, 4 Camp. 257 685 
 
 MarshaU v. Bolohow, 6 Q. B. D. 231 ; 29 W. R. 792 632 
 
 Marshall v. De La Torre, 1 Esp. 367 636 
 
 Marshall v. Gamer, 6 Barb. 394 369 
 
 Marshall ■„. York, Newcastle & Berwick Ry. Co., 21 L. J. C. P. 34 ; 16 
 
 Jur. 124 ; 11 C. B. 655 67 
 
 Martha, The, 3 C. Rob. 106 242, 566 
 
 Martin Luther, The, Swab. 287 ' 344 
 
 Martin v. Great Indian Peniusiilar Ry. Co., L. R. 3 Ex. 9 ; 37 L. J. Ex. 
 
 27; 17L. T. 349 67 
 
 Marwick v. Rogers, 163 Mass. 50 373b 
 
 Mary, The Brig, 1 Sprague, 17 376, 409, 413a, 438 
 
 Mary Ann, The, L. R. 1 A. & E. 8 ; 36 L. J. Ad. 6 ; 13 L. T. 384 ; 14 
 
 W. R. 136 ; 12 Jur. N. S. 31 699 
 
 Mary Thomas, The, (1894) P. 108 ; 63 L. J. P. 49 ; 71 L. T. 104 373o 
 
 Mary L. Peters, The, 68 Fed. Rep. 919 ; 79 Eed. Rep. 998 103d 
 
 Marzetti v. Smith, 49 L. T. 580 198 461 475 479 
 
 Mascotte, The, 51 Fed. Rep; 606 , 459 
 
 Maahiter v. BuUer, 1 Camp. 84 553 
 
 Matilda, The, 48 L. T. 771; 6 Asp. M. C. 75 43 
 
 Matthews v. Gibbs, 30 L. J. Q. B. 65 ; 3 L. T. 551 ; 7 Jur. N. S. 186 ; 9 
 
 "^•^•200 304, 305, 306, 682 
 
 Maude, The, 36 L. T. 26 ; 3 Asp. 338 333 334 
 
 Mavro v. Ocean Mar. Ins. Co., L. R. 9 C. P. 596 ; L. R 10 C P 414 ■ 43 
 
 L. J. C. P. 339 ; 44 L. J. C. P. 329 ; 31 L. T. 186 ; 32 L. T. 743 ;' 23 
 
 '^■^■7^^ 302,'424, 427 
 
 Maxima, The, 39 L. T. 112 ; 4 Asp. M. C. 21 38 4^ 
 
 Medeiros v. Hill, 8 Bing. 231 ; 1 M. & Scott, 311 ; 5 C. & P. 182 " ! ." ^233 246 
 Mediana, (1900) A. C. 113; (1899) P. 127 ; 68 L. J. P. 26 ; 80 L t' 173 •' 
 
 8 Asp. 493 ■ ■ ' »2i 
 
 Medina, The, 1 P. D. 272 ; 2 P. D. 5 ; 35 L. T.'779 ; ' 26 W." r! 156 ;' "45 
 Jj. J.Ad. 81 „,» 
 
 Meibuhr v. Prichard, Macl. 192 , „ . 
 
 Meiklereid v. West, 1 Q. B. D. 428 ; 45 L. J. M. C. 91 ; 34 L.T.'ses "• 24 
 
 W. xC. yOtJ t... ,, 
 
 Mellor V. Chappie, Stevens on Stowage (6th), 143 
 
 114 
 281 
 
 Melpomene, The, L. R. 4 A. & E. 129 ; 29 L. T. 409 '.'.326 334 
 
TABLE OF CASES CITED. xlv 
 
 SSCT. 
 
 Meroantild Bank v. Grladstone, L. R. 3 Ex. 233 ; 37 L. J. Ex. 130 ; 18 L. T. 
 
 641; 17W. R. 11 43,46,575,592 
 
 Merchant Banking Co. of Loudon v. Phcenix Bessemer Steel Co., 5 Ch. D. 
 
 205; 46 L. J. Ch. 418; 36 L. T. 395; 25 W. B. 457 194, 621 
 
 Merchant Shipping Co. v. Armitage, L. R. 9 Q. B. 99 ; 43 L. J. Q. B. 24 ; 
 
 29L. T. 97, 809; 22 W. R. U 550 
 
 Mercurius, The, 1 C. Rob. 288 556 
 
 Messageries Imper. Co. i-. Baines, 7 L. T. N. S. 763 ; 11 W. R. 322 39, 42 
 
 Messina r. Petroooehino, L. R. 4 P. C. 144 ; 41 L. J. P. C. 37 ; 26 L. T. 
 
 561 ; 20 "W. R. 451 697 
 
 Metcalfe v. Britannia Ironworks Co., 1 Q. B. D. 613 ; 2 Q. B. D. 423 ; 46 
 
 L. J. Q. B. 443; 36L,_T. 451 ; 25 W. R. 720 225, 307, 453, -547 
 
 Mexican Prince, The, 82 Fed. Rep. 484 ; 91 Fed. Rep. 1003 l()3e 
 
 Meyer v. Dresser, 33 L. J. C. P. 289 ; 10 L. T. 612; 12 W. R. 9S3 ; 16 
 
 C. B. N. S: 646 : : .70, 191, 549, 686 
 
 Meyer i: Ralli, 1 C. P. D. 358 ; 45 L. J. C. P. 741 ; 35 L. T. 838 ; 24 
 
 "W. R. 963 ; 697 
 
 Meyer, Re (The EmOy), 74 Fed. Rep. 881 103g, 292a 
 
 Meyer v. Sharps, 6 Taun. 74 600 
 
 I Meyerstein v. Barber, L. B. 2 C. P. 38, 661 ; L. R. 4 H. L. 317 ; 39 L. J. 
 
 C. P. 187 ; 19 L. T. 569 ; 22 L. T. 808 ; 15 "W. R. 998 ; 18 W. R. 
 
 1041 ..466, 474," 480, 481, 487, 498, 501, 503 
 
 Michenson f. Begbie, 6 Bing. 190 ; 3 M. & P. 442 699 
 
 Miebrodt v. Fitzsimon (Energie, The), L. R. 6 P. C. 306 ; 44 L. J. Ad. 25 ; 
 
 ' 32L T. 579; 23 W. R. 932 .;. ,.475, 476 
 
 Migotti V. ColTill, 4 C. P. D. 233 ; 48 L. J. C. P. 695 ; 40 L. T. 747 ; 27 
 
 • W. R. 744 ; 571a 
 
 MUan, The, 31 L. J. Ad. 105 ; 5 L. T. 690 ; Lush. 388 '. 704 
 
 Milan Tram-ways Co., Re, Theys, Ex parte,- 22 Ch. D. 122 ; 26 Ch. D. 587 ; 
 
 62 L. J. Ch. 29 ; 48 L. T. 213 ; 31 W. R. 107 ; 63 L. J. Ch. 1008 ; 50 
 
 L. T. 54.5 ; 32 W. R. 601 586, 598 
 
 Milburn v. Jamaica, &c. Co., 4 Com. Ca. 331 161b, 373o, App. B 
 
 Miles, Ex parte, Isaacs, Re, 15 Q. B. D. 39 ; 64 L. J. Q. B. 566. .520, 522, 525 
 Miles V. Mcllwraith, 8 A. C. 120 ; 62 L. J. P. C. 17 ; 48 L. T. 689 ; 31 
 
 W. R...591 , 36 
 
 Miletus, The, Pars. Sh. I. 268 (n.) 86 
 
 Milford, The, Swab. 362 ; 4 Jur. N. S. 417 697 
 
 MOler V. Borner, (1900) 1 Q. B. 691 ; 82 L. T. 258 142, 261 
 
 Miller v. Race, 1 Burr. 452 ; 2 Ld. Ken. 189 194 
 
 Miller v. Titherington, 30 L. J. Ex. 217 ; 31 L. J. Ex. 363 ; 3 L. T. 893 ; 
 
 9L. T. 231; 10 W. E. 356 ; 6 H & N. 278 ; 7 H. & N. 954 ; 7 Jur. 
 
 N. S. 214 ; 8 Jur. N. S. 1039 106, 379 
 
 MiUer v. "WoodfaU, 27 L. J. Q. B. 120 ; 4 Jur. N, S. 302 ; 8 El. & Bl. 
 
 493 572, 600 
 
 Mills V. Ball, 2 B. & P. 457 516 
 
 Milvain v. Perex, 30 L. J. Q. B. 90 ; '3 L, T. 736,; 9 "W. R. 269 ; 3 El. & 
 
 Bl. 495; 7 Jur. N. S. 336 646 
 
 Mil^^ard v. Hibbert, 11 L. J. Q. B. 137 ; 3 Q. B. 120 379 
 
 Minna Craig S.S. Co. v. Chartered Mercantile Bank of India, London and 
 
 China, (1897) 1 Q. B. 55, 460 ; 2 Com. Ca. 1, 110 ; 66 L. J. Q. B. 339 ; 
 
 76 L T. 310 697 
 
 Minnehaha, The, Lush. 335 ; 4 L. T. 810 ; 30 L. J. Ad. 211 ; 9 W. R. 925 ; 
 
 15 Moo. P. C. C. 133; 7 Jur. N. S. 1257 ' 339 
 
 Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164 ; 47 L. J. Ex. 418 ; 38 
 
 L. T. 597 492, 493, 494, 498 
 
 Miranda, The, L. R. 3 A. & E. 561 ; 41 L. J. Ad. 82 ; 27 L. T. 389 ; 21 
 
 W. E. 84 342 
 
 C. — C. 'I 
 
xlvi TABLE OF CASES CITED. 
 
 SECT. 
 
 Missouri S.S. Co., In re, 42 Oh. D. 321 : 58 L. J. Ch. 721 ; 61 L. T. 316 ; 
 
 37 W. R. 696 210, 21 7 
 
 Mitchell V. Darthez, 2 Bing. N. C. 555 ; 2 Scott, 771 ; 1 Hodges, 418. .551, 559 
 
 Mitchell r. Ede, 11 A. & E. 888 ; 3 P. & D. 613 485, 492 
 
 MitcheU v. Kahl, 2 F. & F. 709 129, 723 
 
 Mitchell V. L. & Y. Ey. Co., L. E. 10 Q. B. '266 ; 44 L. J. Q. B. 107 ; 33 
 
 L. T. 161 ; 23 "W. E. 853 103, 472 
 
 MitcheU v. Scaife, 4 Camp. 298 668 
 
 Mitoheson v. Nichol, 21 L. J. Ex. 323 ; 7 Ex. 929 262 
 
 Mitcheson v. Oliver, 25 L. J. Q. B. 39 ; 1 Jur. N. S. 900 ; 5 E. & B. 419. . 45 
 M. Moxham, The, 1 P. D. 107 ; 46 L. J. Ad. 17 ; 34 L. T. 559 ; 24 W. E. 
 
 650 710 
 
 Moakes v. Nicholson, 34 L. J. 0. P. 273 ; 12 L. T. 573; 19 C. B. N. S. 
 
 290 489, 492 
 
 Moir V. Eoyal Exchange Assurance Co., 3 M. & S. 461 ; 6 Taun. 241 ; 1 
 
 Marsh, 570 ; 4 Camp. 84 220, 56.7 
 
 Moliere S.S. Co. v. Naylor, 2 Com. Ca. 92 632 
 
 Moller V. Jecks, 19 C. B. N. S. 332 630, 718 
 
 MoUer r. Living, 4 Taun. 102 ' 580, 681 
 
 Moller V. Young, 24 L. J. Q. B. 217 ; 25 L. J. Q. B. 94 ; 2 Jur. N. S. 393 ; 
 
 5E. &B. 7, 765 .546, 603, 637, 639, 655, 683 
 
 Mollett V. Eobinson (see Eohinson v. MoUett) 184, 189 
 
 Monarch, The, 12 P. D. 5 ; 66 L. J. Adm. 114 ; 56 L. T. 204 ; 35 W. E. 
 
 292 337 
 
 Monsen v. Macfarlane, (1895) 2 Q. B. 562 ; 1 Com. Ca. 51 ; 66 L. J Q B 
 
 57 ; 73 L. T. 648 268c, 627a 
 
 Montgomery v. Foy, (1895) 2 Q. B. 321 ; 65 L. J. Q. B. 18 ; 73 L. T. 12. . 475 
 
 Montana, The, 129 U. S. Eep. 397 103b, 210 
 
 Monte Rosa, The, (1893) P. 23 ; 62 L. J. P. 20 ; 68 L. T. 299 32 
 
 Montoya v. London Assurance Co., 6 Ex. 461 ; 20 L. J. Ex. 254 90 
 
 Moore v. Harris, 1 A. C. 318 ; 45 L. J. P. C. 55 : 34 L. T. 519 ; 24 "W. E. 
 
 887 73, 105, 208, 212, '470 
 
 Moore r. "Wilson, 1 T. E. 659 , 61 
 
 Moorsom v. Greaves, '2 Camp. 627 242 572 
 
 Moorsom v. Kymer, 2 M. & S. 303 ; 3 Camp. 549.' 602 604 
 
 Moorsom v. Page, 4 Camp. 103 262 264 549 
 
 Moorson v. Bell, 2 Camp. 616 609 
 
 Moran v. Jones, 26 L. J. Q. B. 187 ; 3 Jur. N". S. 663; 7 E. & B. 523. .399, 438 
 Morewood v. PoUoi, 22 L. J. Q. B. 230 ; 17 Jur. 881 ; 1 El. & Bl.' 
 
 , ''*^ 24, 76, 83 
 
 Morgan v. Castlegate S.S. Co. (See The Castlegate.) 
 
 Morgan v. Griffith, L. R. 6 Ex. 70 ; 40 L. J. Ex. 46 ; 23 L T 783 • 19 
 
 W. E. 957 ^.^L.iac, la 
 
 _, ^ 164 
 
 Morns v. Levison, 1 C. P. D. 155 ; 45 L. J. C. P. 409 ; 34 L. T. 57C • 24 
 
 ^y^: ^-^y 142,' 167, '261, 262 
 
 Morns v. Eohmson, 3 B. & C. 196 ; 5 D. & E. 35 , _ _ 301 730 
 
 Morriss r. Thormondeen, 60 J. P. 644 ' '_'_' 082 
 
 Morrison v. Gray, 2 Bing. 260 ; 9 Moo. 484 '.'■■'''...'.'..'.... 5')^ 
 
 Morrison v. Parsons, 2 Taun. 407 cq-, 
 
 lIora-le-Blanch r. "Wilson, L. E. 8 C. P. 227 ; 42 L. J. C. P Vo'-' VsL T 
 
 Ti/'^ •••■•■ '-o' ■■■ ■■ "'^' ^'°^' fi"', 683, 718, 731 
 
 Morse v. Slue, Raym. 220 ; 1 Vent. 190, 238 ; 2 Lev. 69 2 3 1 r 1 ^ 
 
 Moselle, The , 3 2 L. T. 670 \ 30 
 
 Moss r. Byrom, 6 T. E. 379 , . _ _ _ 
 
 Moss V. Smith, 19 L. J. C. P. 225 -'9 C.*B."94 ,"no ,„! 
 
 Mou.se's Case, 12 Co. Eep. 63 ",' S'. 
 
 Moxonr. Atkins, 3 Camp. 200 15, 374 
 
 * » i . . , , , , . , 169 
 
TABLE OF CASES CITED. xlvii 
 
 SECT. 
 
 Mowbray v. Merryweather, (1895) 1 Q. B. 857 ; 2 Q. B. 641 ; 65 L. J. Q. B. 
 
 50; 73L. T. 459 714, 717 
 
 Muddle V. Stride, 9 C. &'P. 380 78 
 
 Mudhopper, The, 40 L. T. 462 345 
 
 MuUer v. Gernon, 3 Taun. 394 23, 237, 543 
 
 MuUiner v. Horence, 3 Q. B. D. 484 ; 47 L. J. Q. B. 700 ; 38 L. T. 167 ; 
 
 26 W. E. 385 662 
 
 Murphy v. Coffin, 12 Q. B. D. 87 ; 32 W. R. 616 460, 623, 624b, 625 
 
 Musohamp v. Lancaster & Preston Ry. Co., 8 M. & W. 421 ; 5 Jnr. 656 ; 2 
 
 Railw. Cas. 607 107 
 
 Myers*. Sari, SOL. J. Q. B. 9 ; 9 "W. R. 96; 7 Jur. N. S. 97 169, 170 
 
 Myers v. Willis, 25 L. J. C. P. 39, 265 ; 17 C. B. 77 ; 18 C. B. 886 ; 2 Jur. 
 
 N. S. 41 40 
 
 Nasmyth, The, 52 L. T. 392 ; 10 P. D. 41 ; 54 L. J. Ad. 63 ; 33 W. E. 
 
 736 ; 5 Asp. M. C. 364 , 348 
 
 Nathan v. Giles, 5 Taun. 558 ; 1 Marsh, 226 500 
 
 National Bank v. Insurance Co., 95 U. S. 673 172 
 
 NaTulshaw i: Brownrigg, 21 L. J. Ch. 908 ; 16 Jur. 979 ; 2 De G. M. & G. 
 
 441 504 
 
 Naylor v. Mangles, 1 Esp. 109 192 
 
 Naylor v. Taylor, 9 B. & C. 718 ; M. & M. 205 ; 4 M. & R. 526 246 
 
 Neill V. Ridley, 9 Ex. 677 ; 2 0. L. E. 1018 156, 262, 599 
 
 NeiU V. Whitworth, L. R. 1 C. P. 684 ; 34 L. J. C. P. 155 ; 35 L. J. C. P. 
 
 304 ; 11 L. T. 677 ; 14 L. T. 670 ; 14 W. R. 844 ; 18 C. B. N. S. 435 ; 
 
 11 Jur. N. S. 158 ; 13 W. R. 461 ; 12 Jur. N. S. 761 172 
 
 Neish V. Graham, 27 L. J. Q. B. 15 ; 4 Jur. N. S. 49 ; 8 E. & B. 505. .606, 663 
 
 NeUie, The, 29 L. T. 516 , 333 
 
 Nelson v. Association for Protection of Commeicial Interests, 43 L. J. C. P. 
 
 218 663, 664, 682 
 
 Nelson i>. Belmont, 5 Duer, 310 ; 21 N. T. 36 400 
 
 Nelson n. Dahl, 12 Ch. D. 568 ; 6 A. C. 38 ; 50 L. J. Ch. 411 ; 44 L. T. 
 
 381 ; 29 W. E. 543 186, 225, 249, 454, 456, 465, 615, 621, 623, 624b 
 
 Nelson v. Stephenson, 5 Duer, 538 12 
 
 Nepoter, The, L. R. 2 A. & E. 375 ; 38 L. J. Ad. 63 ; 22 L. T. 177 ; 18 
 
 "W. R. 49 66, 98, 690, 691 
 
 Neptune, The, 16 L. T. N. S. 36 85, 281, 379 
 
 Neptune, The, 1 Hagg. 227 ; 12 Moo. P. C. C. 346 335 
 
 Nesbitt V. Lushingtou, 4 T. R. 783 82, 94, 367 
 
 Ne"w Brunswick S. Boat Co. v. Tiers, 4 ZabrisMe, 697 8 
 
 Newberry v. Colvin, 8 B. & C. 166 ; 7 Bing. 190 ; 1 01. & E. 283 ; 4 M. & 
 
 P. 876; 1 C. & J. 192; 1 Tyr. 55 112, 116, 153, 155, 159 
 
 Newman v. Lamport, (1896) 1 Q. B. 20 ; 65 L. J. Q. B. 102 ; 73 L. T. 475 ; 
 
 8 Asp. 76 App. B. 
 
 Newman v. "Walter, 3 B. & B. 612 324, 336 
 
 Newport, The, Swab. 335 242 
 
 Newsom v. Thornton, East, 17 ; 2 Smith, 207 525 
 
 Niagara, The, 77 Fed. Eep. 329 ; 84 Fed. Eep. 902 - 103e 
 
 Niagara v. Cordes, 21 Howard, 7 (U. S.) 293, 305 
 
 Nichol V. Godts, 23 L. J. Ex. 314 ; 10 Ex. 191 164 
 
 NichoUs V. Le Feuvre, 2 Bing. N. C. 81 ; 1 Hodges, 255 ; 2 Scott, 146 ; 7 
 
 C. & P. 91 620, 522 
 
 Nichols V. Marsland, 2 Ex. D. 1 ; 46 L. J. Ex. 174 ; 35 L. T. 725 ; 25 
 W.E. 173 9, 73 
 
 d2 
 
xlviii TABLE OF CASES CITED. 
 
 SECT. 
 
 Nicholson v. Chapman, 2 H. Bl. 254 322 
 
 Nicholson r. Harper, (1896) 2 Ch. 415 ; 64 L. J. Oh. 672 ; 73 L. T. 19. . . . 604 
 Nicholson v. Williams, L. R. 6 Q. B. 632 ; 40 L. J. M. C. 159 ; 19 W. K. 
 
 793 448 
 
 Nielsen v. Neame, 1 Cab. & EU. 288 S80 
 
 Nielsen v. Wait, 14 Q. B. D. 516 ; 16 Q. B. D. 67 ; 55 L. J. Q. B. 87 ; 54 
 
 L. T. 344 ; 34 W. R. 33 ; 5 Asp. M. 0. 553 .... 182, 196, 458, 460, 613, 629 
 
 Niemann v. Moss, 29 L. J. Q. B. 206 ; 6 Jur. N. S. 775 613 
 
 Nifa,The, (1892) P. 411 167, 173, 250, 463, 614 
 
 Nimrod, The, Ware, 14 (U. S.) 374 
 
 Nitro-Phosphate, &o. Co. t). London and St. Katherine's Dock Co., 9 Ch. D. 
 
 503 ; 39 L. T. 433 ; 27 W. E. 267 9 
 
 Nix V. Olive, Abbott (5th), 393 ; (Uth), iv. 10, 5 517, 534, 536 
 
 Noble V. Kennoway, 2 Doug. 510 182 
 
 Nobel's Explosives Co. «.. Jenkins, (1896) 2 Q. B. 326; 1 Com. Ca. 436. .82, 293, 
 
 464a 
 
 Nobel's Explosives Co. v. Rea, (1896) 2 Q. B. 326 ; 65 L. J. Q. B. 638 ; 
 
 75 L. T. 163 ; 2 Com. Ca. 293 442 
 
 Norden S.S. Co. f. Dempsey, 1 C. P. D. 654; 45 L. J. C. P. 764; 24 W. R. 
 
 984 169, 199, 623 
 
 Norma, The, Lush.' 124 ; 5 L. T. 340 351, 362 
 
 Norman v. Binningtou, 25 Q. B. D. 475 ; 59 L. J. Q. B. 490 ; 63 L. T. 108; 
 
 38W. R. 702 58, 101, 166 
 
 North r. Basset, (1892) 1 Q. B. 333 ; 61 L. J. Q. B. 177 ; 66 L. T. 189 . . 122 
 
 North Star, The, 29 L. J. Ad. 73 ; Lush. 45 314, 394, 445 
 
 Northey r. Eield, 2 Esp. 613 '. '. . 617 
 
 Northumbria, The, L. R. 3 A. & E. 6 ; 39 L. J. Ad. 3 ; 21 L. T. N. S. 
 
 681 27 
 
 North Western Bank r. Poyuter, (1895) A. C. 56 ; 64 L. J. P. C. 27 ; 72 
 
 L. T. 93 499 
 
 Norway, The, 12 L. T. 57 ; 13 L. T. 50 ; 3 Moo. P. C. C. N. S. 245 ; B. & 
 
 L. 404 ; 11 Jur. N. S. 892 ; 13 W. R. 296, 1085.. 15, 142, 293, 295, 460, 546, 
 
 560, 680 
 Notara v. Henderson, L. R. 6 Q. B. 364 ; L. R. 7 Q. B. 225 ; 41 L. J. Q. B. 
 
 168; 26L. T. 442; 20 W. R. 442. .14, 15, 16, 289, 291, 293, 294, 295, 300, 408 
 Nottebohn v. Riohter, 18 Q. B. D. 63 ; 66 L. J. Q. B. 33 ; 35 W. R. 300. , 58, 
 
 148, 251a 
 Netting Hm, The, 9 P. D. 105 ; 53 L. J. P. 66 ; 51 L. T. 66 ; 32 W. R. 
 
 764; 5 Asp. M. C. 241 726, 729 
 
 Nourse v. Sno-w, 6 Greenl. 208 ; Ang. Carr. s. 486 723 
 
 Nova Scotia Steel Co. v. Sutherland, &c. Co., 5 Com. Ca. 106 App. B. 
 
 Nugent v: Smith, 1 C. P. D. 19, 423 ; 45 L. J. C. P. 19, 697 ; 33 L. T. 731 • 
 
 34L. T. 827; 24 W. R. 237 ; 25W. R. 117 3,4, 5, 6,9, 10, 12, 89 
 
 Nuova Raff aeUna,. The, L. R. 3 A. & E. 483 ; 41 L. J. Ad. 37 ; 24 L T 
 
 321 : 20 W. R. 216 122, 695 
 
 Nutt V. Bourdieu, 1 T. R. 323 loo 
 
 Nyholm, Ex parte. Child, Re, 43 L. J. Bk. .21 ; 29 L. T. 634 ; 22 W. R. 
 
 17* 562, 563, 663, 664 
 
 Nymph, The, Swab. 86 goo 
 
 O. 
 
 O^ey V. Portsmouth and Eyde United S. Packet Co., 26 L. J. Ex. 99-11 
 Ex. 618 •.,#,.,. ' Q 
 
 Obey, The, L. R. 1 A. & E. 102; 12 Jur. N. S. 817 ".'.'.". 24 26 
 
 ^Toctan S S c^'^^"""' ^^ ^- ^- ^- ^^^ ' ^^ -^^ ^- 107 '(see Audersou ' 
 
TABLE OF OASES CITED. xlix 
 
 SECT. 
 
 O'Connor v. Foster, 10 "Watts, 418 (N.S,) 719, 723 
 
 Ogden V. Gratam, 31 L. J. Q. B. 26 ; 5 L. T. 396 ; 10 "W. R. 77 ; 1 B. & S. 
 
 773 ; 8 Jiir. N. S. 613 451, 624b, 625 
 
 Ogg V. Shuter, 1 C. P. D. 47 ; L. E.. 10 C. P. 159 ; 45 L. J. C. P. 44 ; 33 
 
 L. T. 492 ; 24 "W. E,. 100 492 
 
 Ogle V. Atkinson, 5 Taun. 759 ; 1 Marsh. 323 491 
 
 Oglesby v. Yglesias, 27 L. J. Q. B. 356 ; E. B. & E. 930 128, 646 
 
 O'Hanlon v. G. "W. Ey. Co., 34 L. J. Q. B. 164 ; 12 L. T. 490 ; 13 W. E. 
 
 741 ; 6 B. & S. 484 ; 11 Jur. N. S. 797 727 
 
 Ohrlofe V. Briscal (The Helene), L. E. 1 P. C. 231 ; 4 Moo. P. C. C. N. S. 
 
 70 ; 35 L. J. P. C. 63 ; 14 L. T. 873 ; 15 W. E. 202 ; 12 Jur. K. S. 675 ; 
 
 B. & L. 415, 429 63, 78, 96, 98, 272, 274, 275, 276 
 
 Oliver v. Colven, 27 "W. E. 822 479 
 
 Oliver v. Pielden, 18 L. J. Ex. 353 ; 4 Ex. 135 221 
 
 OlUve V. Booker, 17 L. J. Ex. 21 ; 1 Ex. 416 140, 143 
 
 O'Mealey v. "Wilson, 1 Camp. 482 243 
 
 Omoa and Cleland Coal and Iron Co. v. Huntley, 2 C. P. D. 464 ; 37 L. T. 
 
 184 ; 25 "W. E. 675 115 
 
 O'Neil V. Armstrong, (1895) 2 Q. B. 70, 418 ; 65 L. J. Q. B. 7 ; 73 L. T. 
 
 178 660 
 
 Onward, The, L. R. 4 A. & E. 38 ; 42 L. J. Ad. 61 ; 28 L. T. 204 ; 21 
 
 "W. E. 601 311, 312, 316 
 
 Oppenheim v. Eraser, 34 L. T. 524 135, 143 
 
 Oppenheim v. Russell, 3 B. & P. 42 191, 507, 533, 654 
 
 Oquendo, The, 38 L. T. 151 ; 3 Asp. M. C. 558 446 
 
 Oranmore, The, "24 Fed. Rep. 922 103a 
 
 Orient, The, L. E. 3 P. 0. 695 ; 40 L. J. Ad. 29 ; 24 L. T. 918 ; 20 
 
 "W. R. 6 684, 707 
 
 Oriental S.S. Co. v. Tylor, (1893) 2 Q. B. 618 ; 63 L. J. Q. B. 128 ; 69 L. T. 
 
 577 55, 151, 562 
 
 Oriental, The, 7 Moo. P. C. 398 ; 3 "W. Rob. 243, 265 316 
 
 Orpheus, The, 3 A. & E. 308 ; 40 L. J. Ad. 24 601 
 
 Osgood V. Groning, 2 Camp. 466 547, 654 
 
 OsmanU, The, 3 "W. Eob. 198 ; 14 Jur. 93 314 
 
 Ougier v. Jennings, 1 Camp. 503 (n.) 182 
 
 Ouston i>. Hebdeu-, 1 "Wils. 101 38 
 
 P. 
 
 P. & 0. Co. V. Shand, 3 Moo. P. C. N. S. 372 ; 12 L. T. 808 ; 11 Jur. N. S. 
 
 771; 13"W. R. 1049 78, 111, 202, 212 
 
 Pacific MaU S.S. Co.-?;. New York, &o. Mining Co., 74 Fed. Rep. 564. . . .373a, 
 
 399, 400 
 
 Pacific, The, (1898) P. 170 ; 67 L. J. P. 65 ; 79 L. T. 125 329 
 
 Pacific, The, 10 L. T. 541 ; 33 L. J. Ad. 120 ; B. & L. 243 ; 10 Jur. N. S. 
 
 mo 685, 699, 701 
 
 Paioe V. Walker, L. R. 5 Ex. 173 ; 39 L. J. Ex. 109 ; 22 L. T. 647 ; 18 
 
 "W. R. 789 .62, 130 
 
 Palermo, The, 10 P. D. 21 ; 54 L. J. P. 46 ; 52 L. T. 390 ; 33 "W. R. 643 ; 
 
 5 Asp. M. C; 369 26 
 
 Palmer v. Naylor, 23 L. J. Ex. 323 ; 18 Jur. 961 ; 10 Ex. 382 ; 2 C. L. R. 
 
 1202 91 
 
 Palmer v. Rouse, 27 L. J. Ex. 437 ; 3 H. & N. 605 : 322, 366 
 
 Palmer ■J'. Zarifi, 37 L. T. 790 639 
 
 Pandorf v. Hamilton (see Hamilton v. Pandorf). ■ • 
 
 Papayanni v. Grampian S.S, Co., 1 Coni. Ca. 448 , 374a 
 
1 TABLE OF CASES CITED. 
 
 SECT. 
 
 Paradine v. Jane, Allyn, 26 '4 
 
 Parana, The, 1 P. D. 452; 2 P. D. 118; 36 L. T. 388; 25 W. E. 596.. 726, 726 
 
 Parish v. Crawford, 2 Str. 1251 154 
 
 Park V. Duncan, 25 Sess. Ca. (4th) 528 161b, App. B. 
 
 Parker v. James, 4 Camp. 112 288, 727 
 
 Parker v. S. E. Ey. Co., 2 C. P. D. 416 ; 46 L. J, C. P. 768 ; 37 L. T. 540 ; 
 
 25 "W. R. 564 Ill 
 
 Parker r. Winlo, 27 L. J. Q. B. 49 ; 4 Jur. N. S. 64 ; 7 E. & B. 942. . 130, 225, 
 
 450, 453, 460, 623, 625 
 
 Parlement Beige, The, 5 P. D. 197 ; 42 L. T. 273 ; 28 W. K. 642 707 
 
 Parmeter v. Todhnnter, 1 Camp. 541 310 
 
 Parr v. Anderson, 6 East, 202 ; 2 Smith, 316 289 
 
 Parsons v. New Zealand Shipping Co., (1900) 1 Q. B. 714 ; 69 L. J. Q. B. 
 
 419 ; 5 Com. Ca. 179 70, 71 
 
 Partridge v. Bank of England, 9 Q. B. 399 ; 15 L. J. Q. B. 395 ; 8 Jur. 803 ; 
 
 10 Jur. 1031 191, 194 
 
 Patria, The, L. E. 3 A. & E. 436; 41 L. J. Ad. 32; 24 L. T. 849. .154, 209, 687 
 
 Patten r. Thompson, 5 M. & S. 350 527, 537 
 
 Paul -0. Birch, 2 Atk. 621 668, 676 
 
 Pauline, The, 2 W. Eob. 358 ; 9 Jur. 286 355 
 
 Pajnter v. James, L. E. 2 C. P. 348 ; 16 L. T. 660 ; IS L. T. 449 ; 16 "W. E. 
 
 768 546, 584 
 
 Peace, The, Swab. 11.5 352 
 
 Pearson f. Gosehen, 33 L. J. C. P. 265 ; 10 L. T. 758 ; 12 W. E. 1116 ; 17 
 
 C. B. N. S. 352 ; 10 Jur. N. S. 903 43, 44, 173, 666, 720 
 
 Pease v. Gloahec, L. E. 1 P. C. 219 ; 35 L. J. P. 0. 66 ; 15 L. T. 6 ; 15 
 
 W. E. 201 ; 12 Jur. N. S. 677 ; 3 Moo. P. C. C. N. S. 556 ; B. & L. 
 
 449 496, 636 
 
 Pederson v. Lotinga, 28 L. T. 267 ; 5 W. E. 290 128, 648 
 
 Peek V. Larsen, L.'E. 12 Eq. 378 ; 40 L. J. Ch. 763 ; 25 L. T. 580 ; 19 W. E. 
 
 1045 '. _ . . .68, 161, 676 
 
 Peek r. North StafE. Ey. Co., 10 H. L. C. 473 ; 32 L. J. Q. B. 211 ; 8 L. T. 
 
 768 ; 11 "W. R. 1023 ; 9 Jur. N. S. 914 108, 1 10, 164, 167 
 
 Peel V. Price, 4 Camp. 243 63, 288 
 
 Pellas V. Neptune Mar. lus. Co., 5 C. P. D. 34 ; 49 L. J. 0. P. 153 ; 42 
 
 L. T. 35 ; 28 "W. E. 405 , . gge 
 
 Pellecat v. Angell, 2 C. M. & E. 311 ; 1 Gale, 187 ; 5 Tyr. 945 216 
 
 Pelly V. Eoyal Exchange Ass. Co., 1 Burr. 341 182 
 
 Penrose v. Wilkes, cited 3 East, 566 607 
 
 Perez v. Alsop, 3 F. & F. 188 657 
 
 Pericles, The, B. & L. 80 340 
 
 Perla, The, Swab. 230 \ 345 
 
 Perry v. Barnett, 14 Q. B. D. 467 ; 15 Q. B. D. 388 ; 54 L. J. Q. B. 351, 
 
 466 ; 63 L. T. 585 184^ I90 
 
 Peter Der Grosse, The, 1 P. D. 414 ; 34 L. T. 749 ; 3 Asp. M. C. N. S. 195 73 
 
 Peters v. Warren Ins. Co., 1 Storey, 463 394 
 
 Petersen v. Dunn, 1 Com. Ca. 8 ; 43 W. E. 349 257a 
 
 Petersen v. Freebody, (1895) 2 Q. B. 294; 65 L. J. Q. B. 12; 73 L. T. 
 
 l^'^ •' 250, '462, 463 
 
 Petrel, The, (1893) P. 320 ; 62 L. J. P. 92 26 
 
 Petrocochino i\ Bott, L. E. 9 C. P. 356 ; 43 L. J. C. P. 214 ■ 30 L T 
 
 ^^° .' ■46l' 468 
 
 Phantom, The, L. E. 1 A. & E. 68 ; 14 W. E. 774 ; 12 Jur. N. S. 629. .332, 347 
 Phelps V. Comber, 29 Ch. D. 813; 54 L. J. Ch. 1017; 52 L T 873- 33 
 
 W.E. 829 .'...530 
 
 Phelps I'. Hill, (1891) 1 Q. B. 605; 7 Times E. 319 289, 291, 297 
 
TABLE OF CASKS CITED. ll 
 
 aBOT. 
 
 Phelps V. L. & N. W. Ey. Co., 34 L. J. C. P. 259 ; 12 L. T. 496 ; 13 W. K. 
 
 " 782; 19C. B. N. S. 321; 11 Jur. N. S. 652 6 
 
 Phillips r. Briard, 25 L. J. Ex. 233 ; 1 H. & N. 21 121 
 
 Phillips 4-. Clark, 26 L. J. C. P. 168 ; 2 C. B. N. S. 156 ; 3 Jur. N. S. 467 . . 77, 95 
 Phillips V. Edwards, 28 L. J. Ex. 52 ; 4 H. & N. 813 53,56 
 
 Phillips V. Eyre, L. R. 6 Q. B. 1 ; 10 B. & S. 1004 ; 40 L. J. Q. B. 28 ; 22 
 L. T. 869 710 
 
 Phillips V. Headlam, 2 B. & Ad. 380 18, 284 
 
 Phillips V. Rodie, 15 East, 547 658 
 
 Phyn V. Royal Exchange Ass. Co., 7 T. R. 505 . . , 99 
 
 Picker V. London and County Banking Co., 18 Q. B. D. 516 ; 56 L. J.Q. B. 
 
 299 ; 35 W. R. 469 194 
 
 Pickering v. Barkley, Styles, 132 ; 2 Roll. Ah. 248, pi. 10 86, 193 
 
 Pickeruell v. Jauberry, 3 P. & F. 217 43 
 
 Pickup «;. Thames Ins. Co., 3 Q. B. D. 594 ; 47 L. J. Q. B. 749 ; 39 L. T. 
 
 341 ; 26 "W. R. 477, 689 18 
 
 Pierce v. Windsor, 2 Sprague, 35 278 
 
 Pieve Superiore, The, L. R. 5 P. C. 482 ; 43 L. J. Ad. 20 ; 30 L. T. 887 ; 
 
 22 W. R. 777 687, 699, 700 
 
 Pike.iJ. Ougley, 18 Q. B. D. 708 ; 66 L. J. Q. B. 373 ; 35 W. R. 234. .132, 196 
 
 Pilgrim, (1895) P. 117; 64 L. J. P. 78 26 
 
 Pilley V. Robinson, 20 Q. B. D. 155 ; 57 L. J. Q. B. 54 ; 58 L. T. 110 ; 36 
 
 W. R. 269 35 
 
 Pink V. Blaming, 25 Q. B. D. 396 ; 59 L. J. Q. B. 559 ; 63 L. T. 413 88a 
 
 Pinnas, The, 59 L. T. 526 ; 6 Asp. M. C. 413 324 
 
 Pinnook v. Harrison, 3 M. & W. 532 ; 1 H. & H. 114 593 
 
 Pirie v. Middle Dock Co., 44 L. T. 426. .364, 366, 370, 371, 373a, 390, 402, 433 
 
 Pirie v. Steele, 2 M. & Rob. 49 ; 8 C. & P. 200 192, 423 
 
 Pirie v. Warden, 8 So. L. R. 360 ; 9 Sess. Ca. (3rd) 523 66a, 501 
 
 Plaice i: AUcock, 4 E. & E. 1074 .- 185 
 
 Planohe v. Fletcher, 1 Doug. 251 216, 247 
 
 Plummer v. WUdman, 3 M. & S. 482 403, 405 
 
 Poingdestre v. Royal Exchange Corporation, Ry. & M. 378 . . . , _ 423 
 
 Pole V. Cetcovitch, 30 L. J. C. P. 102 ; 9 C. B. N. S. 430 ; 3 L T. 438 ; 9 
 
 W. E. 279 289 
 
 Pontida, The, 9 P. D. 102, 177 ; 51 L. T. 849 ; 53 L. J. P. 78 ; 33 W. R. 
 
 38 ; 6 Asp. M. C. 330 314 
 
 Poutifex V. Mid. Ry. Co., 3 Q. B. D. 23 ; 47 L. J. Q. B. 28 ; 37 L. T. 403 ; 
 
 26 W. R. 209 531 
 
 Pooley v. Gt. E. Ry. Co., 34 L. T. 637 513 
 
 Pope v. Baridge, 10 Ex. 73 234 
 
 Pope V. Nickersen, 3 Story's Rep. 465 205 
 
 Port Adelaide, The, 38 Fed. Rep. 753 459 
 
 Port Adelaide, The, 59 Fed. Rep. 174 262 
 
 PortaUs V. Tetley, L. R. 5 Eq. 140 ; 37 L. J. Ch. 139 ; 17 L. T. 344 ; 16 
 
 W. R. 503 504 
 
 Porter v. Izat, 1 M. & W. 381 ; 1 Tyr. A G-. 639 , 14t 
 
 Porteua v. Watuey, 3 Q. B. D. 223, 534 ; 47 L. J. Q. B. 643 ; 39 L. T. 195 ; 
 
 27 W. R. 30 156, 611, 637, 640, 642, 639, 671 
 
 Portman v. Middleton, 27 L. J. C. P. 231 ; 2 C. B. N. S. 322 ; 4 Jur. N. S. 
 
 689 714 
 
 Postlethwaite v. Freeland, 5 A. 0. 599 ; 49 L. J. Ex. 630 ; 42 L. T. 845 ; 
 
 28 W. R. 833. 181, 252, 462, 614, 615, 619, 626 
 
 Potter V. Burrell, (1891) 1 Q. B. 97 , 292a, 611 
 
 Potter V. New Zealand Sh. Co., 64 L. J. Q. B. 689 ; 1 Com. Ca. 114 . . 141a, 261 
 Potter n. Ocean Ins. Co., 3 Sumner, 27 , ■ . . . i . . . . 374o 
 
lii TABLE OF CASES CITED. 
 
 SECT. 
 
 Potter V. Rankin, L. E. 3 C. P. 562 ; L. R. 4 C. P. 76 ; 19 L. T. 318 .... 439 
 
 Potts V. BeU, 8 T. R. 648 ; 2 Esp-. 612 24S 
 
 Powell V. Layton, 3 B. & P. N. R. 365 35 
 
 Power 1). WMtmore, 4 M. & S. 141 383, 405, 406 
 
 Price V. LiTingstone, 9 Q. B. D. 679 ; 53 L. J. Q. B. 118 ; 47 L. T. 629 ; 
 
 5 Asp.'M. C. 13 220,448,567 
 
 Price V. Noble, 4 Taun. 123 16, 374 
 
 Prickett v. Badger, 26 L. J. C. P. 33 ; 3 Jur. N. S. 66 ; 1 C. B. N. S. 96. . 121 
 Priestly v. Fernie, 34 L. J. Ex. 172 ; 13 L. T. 208 ; 13 W. R. 1089 ; 3 H. 
 
 &C. 977; 11 Jur. N. S. 813 47, 132, 589 
 
 Primula, The, (1894) P. 128; 63 L. J. P. 118; 70 L. T. 253 564 
 
 Princess AUce, The, 3 W. Rob. 138 340 
 
 Princess Royal, The, L. R. 3 A. & E. 27, 41 ; 39 L. J. Ad. 29, 43 ; 22 L. T. 
 
 39 354, 687, 689 
 
 Princess, The, 70 L. T. 388 ; 6 R. 723 69, 156, 161^, 722 
 
 Princeton, The, 3 P. D. 90 ; 47 L. J. Ad. 33 ; 38 L. T. 260 30, 31 
 
 Pringle v. MoUett, 6 M. & W. 80 630 
 
 Prins Hendrik, The, (1899) P. 177 ; 08 L. J. P. 86 ; 80 L. T. 838 ; 8 Asp. 
 
 548 31 
 
 Prinz Heinrioh, 13 P. D. 31 ; 57 L. J. Adm. 17 ; 58 L. T. 593 ; 36 W. R. 
 
 511 352 
 
 Priscilla, The, Lush, 1 ; 1 L. T. N. S. 272 ; 5 Jur. N. S. 1421 317, 318 
 
 Progress, The, 50 Fed. Rep. 835 82, 222 
 
 Progress, The, Eden, 210 ' 351 
 
 Prospereiio Palasso, The, 29 L. T. 622 73 
 
 Protector, The, 1 W. Rob. 45 707 
 
 Prussia, The, 92 Fed. Rep. 838 ; 93 Fed. Rep. 837 103c 
 
 Pugsley V. Ropkins, (1892) 2 Q. B. 184 ; 61 L. J. Q. B. 645 ; 67 L. T. 369 . 693 
 
 PuUer D. Staniforth, 11 East, 232 552, 721 
 
 Purrissima Concepion, The, 3 W. Rob. 181 328, 338 
 
 Pust V. Dowie, 32 L. J. Q. B. 179 ; 34 L. J. Q. B. 127 ; 8 L. T. 244 • 13 
 
 W. R. 459; 9 Jur. N. S. 1322; 5 B. c& S. 20 177 
 
 Pyman v. Burt, 1 Cab. & Ell. 207 68, 69b 
 
 Pymaut!. Dreyfus, 24 Q. B. D. 152 ; 59 L. J. Q. B. 13 ; 61 L. T. 724 249, 
 
 460, 624a, 624b 
 Pyreunee, The, Br. & L. 189 ,' , 352 394 
 
 Q. 
 
 Quarman v. Bamett, 6 M. & W. 499 ; 4 Jur. 969 27-4 
 
 Quarrier v. Colston, 1 Phillips, 147 ; 6 Jur. 959 215 
 
 Quebec Mar. Ins. Co. v. Commercial Bank of Canada, L. R. 3 P. C. 234 ■ 
 
 39L. J. P. C. 53; 22 L. T. 559 ; 18 W. R. 769 lo'b, 21 
 
 Queensland Nat. Bank v. P. & 0. S. N. Co., 67 L. J. Q B 402 • 78 L T 
 
 67; 8 Asp. 338; (1898) 1 Q. B. 567 ' 19a,'l02a 
 
 Queensmore, The, 53 Fed. Rep. 1022 ^ _ _ _ 55O 553 
 
 R. 
 
 R. '0. Casks of Brandy, 3 Hagg. 257 o-. 
 
 R. V. City of London Court, (1892) 1. Q. B. 273 ; 61 L. J. Q B "zH'-'ee 
 
 L. T. 135 ; 7 Asp. 140 ' -„„ 
 
 R. V. Southend County Court, 13 Q. B. D. 142; 63 L J Q "b "493-32 
 
 y^-^'-'!^* :..;.. :.:... 692 
 
TABLE OF CASES CITED, liii 
 
 SECT. 
 
 R. V. Stewart, Stevens on Stowage (5th), 149 280 
 
 E. «. St. Mary, Warwick, 1 E. & B. 816 ; 22 L. J. M. C. 109 ; 17 Jur. 
 
 551 .571a 
 
 R. V. Two Casks of Tallow, 2 W. Eob. 294 355 
 
 Eaoehorse, The, 3 C. Roh. 101 242, 351, 556 
 
 RadolifBe v. Bartholomew, (1892) 1 Q. B. 161 571a 
 
 Rae V. Hackett, 13 L. J. Ex. 216 ; 12 M. & W. 724 224 
 
 Raft of Timber, 2 W. Rob. 251 322 
 
 Raisby, The, 10 P. B. 114 ; 53 L. T. 56 ; 64 L. J. Adm. 65 ; 33 W. R. 938 ; 
 
 5 Asp. M. C. 473 352, 394, 442 
 
 Rajah, The, L. R. 3 A. & E. 539 ; 41 L. J. Ad. 97 ; 27 L. T. 102 ; 21 
 
 W. R. 14 27 
 
 Ralli V. Paddingtou S.S. Co., 5 Com. Ca. 124 58 
 
 Ealli V. Troup, 157 U.S. 386 364, 374a 
 
 Randall i\ Lynch, 2 Camp. 352 ; 12 East, 179 611, 616 
 
 Randall v. Roper, 27 L. J. Q. B. 266 ; 4 Jur. N. S. 662 ; E. B. & E. 84. . 713, 
 
 730 
 
 Rapid, The, 3 Hagg. 419 324a 
 
 Easohe, The, L. R. 4 A. & E. 127 ; 42 L. J. Ad. 71 ; 22 W. R. 240 345 
 
 Rayner v. MitcheU, 2 C. P. D. 357 ; 26 W. E. 633 707 
 
 Eayner v. Eederiaktiebolaget Condor, (1895) 2 Q. B. 289 ; 64 L. J. Q. B. 
 
 640 ; 73 L. T. 96 ; 1 Com. Ca. 80 59, 161a 
 
 Eead v. Eann, 10 B. & C. 438 121 
 
 Eeadhead v. Mid. Ey. Co., L. E. 2 Q. B. 412 ; L. E. 4 Q. B. 379 ; 36 L. J. 
 
 Q. B. 181 ; 38 L. J. Q. B. 169 ; 16 L. T. 485 ; 15 W. R. 831 ; 17 W. E. 
 
 737; 8 B. &S. 371 ; 9 B. & S. 619 , 17, 18 
 
 Eeaves r. Waterman, 2 Speer. 197 87 
 
 Eedgrave v. Hurd, 20 Ch. D. 1 ; 51 L. J. Ch. 113 ; 45 L. T. 485 ; 30 W. E. 
 
 251 133 
 
 Eed Sea, The, (1895) P. 293 ; (1896) P. 20 ; 65 L. J. P. 9 ; 73 L. T. 462 . . 564 
 
 Eeeve v. Davis, 1 A. & E. 312 ; 3 N. & M. 873 114 
 
 Reg. V. City of London Court, 12 Q. B. D. 116; 51 L. T. 197; 53 L. J. 
 
 Q. B. 128 ; 32 W. R. 291 695 
 
 Reid V. Hoskins, 23 L. J. Q. B. 65 ; 26 L. J. Q. B. 5 ; 3 Jur. N. S. 238 ; 
 
 BE. &B. 963 238, 243, 270 
 
 Rein v. Lane, 8 B. & S. 83 ; 15 L. T. 466 ; 36 L. J. Q. B. 81 ; 15 W. R. 
 
 345 120 
 
 Reinbeok, The, 60 L. T. 209 ; 6 Asp. M. C. 366 294 
 
 Reischer v. Berwick, (1894) 2 Q. B. 548 ; 63 L. J. Q. B. 753 ; 71 L. T. 238 . 89 
 ReHanoe M. I. Co. «. New Tork, &c. S.S. Co., 77 Fed. Rep. 317 .... . .390, 400 
 
 Renpor, The, 8 P. D. 115 ; 62 L. J. Ad. 49; 48 L. T. 887 ; 31 W. R. 640 ; 
 
 5 Asp. M. C. 98 326, 326, 327, 349 
 
 Renteria v. Ruding, Moo. & M. 511 487 
 
 Resolven, The, 9 T. L. R. 75 141, 142 
 
 Restitution S.S. Co. v. Pirie, 61 L. T. 330 ; 5 Asp. M. C. 428 161a, 648 
 
 Reusse v. Meyer, 3 Camp. 475 138 
 
 Reward, The, 1 W. Rob. 174 340 
 
 Rex V. Humphrey, M'Clel. & T. 173 683 
 
 Reynolds v. Jex, 34 L. J. Q. B. 251 ; 7 B. & S. 86 ; 13 W. R. 968. .43, 44, 161, 
 
 162, 674 
 Reynolds v. Tomlinson, (1896) 1 Q. B. 586 ; 65 L. J. Q. B. 496 ; 74 L. T. 
 
 691 : 449, 466, 457, 458 
 
 Rhymney S.S. Co. «. Iberian Iron Ore Co., 79 L. T. 240; 3 Com. Ca. 316. . 631 
 
 Rialto, The, (1891) P. 175 ; 60 L. J. P. 71 ; 64 L. T. 540 347 
 
 Riby Grove, The, 2 W. Eob. 52 601 
 
 Rice t.'. Baxendale, 30 L. J. Ex. 371 ; 7 H. & N. 96 727 
 
liv TABLE OF CASES CITED. 
 
 SECT. 
 
 mob. V. Coe, 2 Cowp. 639 47 
 
 Bioli f. Kneeland, Cro. Jac. 330 ; Hob. 17 3 
 
 Eiohards v. L. B. & S. C. Ky. Co., 7 C. B. 839 ; IS L. J. C. P. 251 6 
 
 Eiohardson v. N. E. Ey. Co:, L. E. 7 C. P. 75 ; 41 L. J. C. P. 60; 26 L. T. 
 
 131 ; 20 W. R. 461 14 
 
 Richardson r. Nourse, SB. & Aid. 237 . ,' 320, 432 
 
 Richardson v. Rowntree, (189i) A. C. 217 ; 63 L. J. Q. B. 283 ; 70 L. T. 
 
 817 ^ ni 
 
 Richardson v. WiUiamson, L. R. 6 Q. B. 276 ; 40 L. J. Q. B. 145 129 
 
 Richardsons v. Samuel, (1898) 1 Q. B. 261 ; 66 L. J. Q. B. 579 ; 77 L. T. 
 
 479 257a, 258a, 626 
 
 Richmond Hill S.S. Co. v. Trinity House, (1896) 1 Q. B. 493; 2 Q. B. 134; 
 
 6a E. J. Q. B. 561 ; 75 L. T. 8 26 
 
 Eidsdale v. Newnham, 3 M. & S. 456 ; 4 Camp. Ill 220 
 
 Rigborgs Minde, The, 8 P. D. 132 ; 52 L. J. Ad. 74; 49 L. T. 232; 6 Asp. 
 
 M. C. 123 30, 32 
 
 Riley v. Home, 5 Bing. 217, 224 ; 2 M. & P. 331 2, 4 
 
 Rio Tinto, The, 9 A. C. 356 ; 60 L. T. 461 ; 8 Asp. M. C. 224 699 
 
 Ripley V. Soaife, 6 B. & C. 167 ; 7 D. & R. 818 ; 2 0. & P. 132 572 
 
 Ripon, The, 10 P. D. 65 ; 64 L. J. Ad. 56 ; 52 L. T. 438 ; 33 "W. R. 659 ; 
 
 5 Asp. M. C. 365 32 
 
 Ripon City, The, (1897) P. 226; 66 L. J. P. 110; 77 L. T. 98.... 589, 696, 707 
 Rising Sun, The, 2 C. Rob. 104 656 
 
 Eisoluto, The, 8 P. D. 109 ; 52 L. J. Ad. 46 ; 48 L. T. 909 ; 31 W. R. 657 ; 
 
 6 Asp. M. C. 93 728 
 
 Ritchie v. Atkinson, 10 East, 295 176, 177, 231, 550 
 
 Roanoke, The, 46 Fed. Rep. 297 ; 59 Fed. Rep. 161 105, 373b, 374a 
 
 Robert Dickinson, The, 10 P. D. 15 ; 54 L. J. Adm. 5 ; 62 L. T. 65 ; 33 
 
 W. R. 400 38 
 
 Robert Dixon, The, 5 P. D. 64 ; 42 L. T. 344 ; 28 W. R. 716 339 
 
 Robertson v. Amazon Tug, &c. Co., 7 Q. B. D. 598 ; 51 L. J. Q. B. 68 ; 
 
 46 L. T. 146 ; 30 W. R. 308 ; 4 Asp. M. C. 496 112 
 
 Robertson r. Clarke, 1 Bing. 445 ; 8 Moo. 622 169 
 
 Robertson v. French, 4 East, 136 ; 4 Esp. 246 168, 173 
 
 Robertson v. Jackson, 15 L. J. C. P. 28 ; 10 Jur. 98 ; 2 C. B. 412 620 
 
 Robertson v. Wait, 22 L. J. Ex. 209 ; 8 Ex. 299 122, 123, 730 
 
 Robins v. Power, 27 L. J. C. P. 267; 4 C. B. K. S. 778 ; 4 Jur. N". S. 810. . .46 
 
 Robinson v. Baker, 5 Cush. 137 652 
 
 Robinson i\ Bland, 2 Burr. 1077 214 215 
 
 Robinson n. Geisel, (1894) 2 Q. B. 685 ; 64 L. J. Q. B. 72 ; 71 L. T. 70 . .' 35 
 Robinson v. Q. W. Ry. Co., 35 L. J. C. P. 123 ; L. R. 1 C. P 329 ■ 14 
 
 W. R. 206; 1 H. &R. 97 '....103 
 
 Robinson v. Knights, L. R. 8 C. P. 465 ; 42 L. J. C. P. 211 : 28 L T 820'- 
 
 21 W. R. 683 ......'..'.....' 660 
 
 Robinson v. Macdonnell, 6 M. & S. 228 , ^ 595 
 
 Robinson t: MoUett, L. R. 7 H. L. 802 ; 44 L. J. C. P. 362 ; 33 L T 644'- 
 
 20^.^544 .'.184,189 
 
 Robmson ». Price, 2 Q. B. D. 91, 295 ; 46 L. J. Q. B. 551 ; 36 L T 354 • 
 
 25W. R.469 366,368,385 
 
 Robmson v. Turpin, 1 Peake, N. P. C. 203 (n.) 462 
 
 Robson i). The Kate, 21 Q. B. D. 13 ; 57 L. J. Q. B. 546 ; 69 L T 557 '• 
 
 36 W. R. 910 ■ ' gg2 
 
 Rodger v. Comptoir d'Escompte de Paris, L. R. 2 P. C 393- 38 L J PC 
 
 30;21L.T.33; 17 W. R. 468 .'.520,522,533,538 
 
 Rodgers v. Forrester, 2 Camp. 483 g,^ 
 
 Rodney, The, (1900) P. 112; 69 L. J. P. 29 ."'.".".".'.".".'.'.".".'.'.".'.'."lOl " I03e 
 
TABLE OF CASES CITED. Iv 
 
 SECT. 
 
 'EodocanaoH ». Milburn, 17 Q. B. D. 316 ; 18 Q. B. D. 67 ; 56 L. J. Q. B. 
 
 202 ; 56 L. T. 594 ; 35 W. E. 241 ISl, 161, 566, 727 
 
 KodooonacM v. Elliott, L. R. 9 C. P. 518 82 
 
 Eoecliff, The, L. R. 2 A. & E. 363 ; 38 L. J. Ad. 56 ; 20 L. T. 586 ; 17 
 
 W. R. 545 601 
 
 Eoelandts v. Harrison, 23 L. J. Ex. 169 ; 2 C. L. R. 995 ; 9 Ex. 441 . . 220, 567 
 
 Rogers d. Hunter, M. & M. 63 ; 2 C. & P. 601 640, 611 
 
 Rohl V. Pair, 1 Esp. 445 86 
 
 Rona, The, 5 Asp. M. 0. 259 ; 51 L. T. 28 21, 62, 78, 289, 291 
 
 Rona, The, 7 P. D. 247 ; 51 L. J. Ad. 65 ; 46 L. T. 601 ; 30 W. R. 614 ; 
 
 4 Asp. M. C. 520 693, 693 
 
 Ronneherg v. Falkland Islands Co., 34 L. J. C. P. 34 ; 10 L. T. 530 ; 12 
 
 W. R. 914; 17 C.B.N. S. 1 ; 10 Jur. K. S. 940 718 
 
 Rookwood, The, 10 T. L. R. 314 257, 257b 
 
 Rooth ». N. E. Ry. Co., L. R. 2 Ex. 173 ; 36 L. J. Ex. 83 ; 15 L. T. 624 ; 
 
 15"W. R. 695 110 
 
 Roper V. Johnson, L. R. 8 C. P. 167 ; 42 L. J. C. P. 63 ; 28 L. T. 296 ; 21 
 
 "W. R. 384 719 
 
 RoBoow V. Corson, 8 Taun. 684 99 
 
 Rose V. Bank of Australasia, (1894) A. C. 687 ; 63 L. J. Q. B. 504 ; 70 
 
 L. T. 422 400, 401, 410 
 
 Eosevear China Clay Co., Ex parte, 11 Ch. D. 560 ; 48 L. J. Bk. 100 ; 40 
 
 L. T. 730 ; 27 W. R. 591 511 
 
 Ross V. Hunter, 4 T. R. 33 99 
 
 Eoth V. Taysen, 73 L. T. 628 ; 1 Com. Ca. 306 719 
 
 Rothhnry, The, 13 P. D. 119; 57 L. J. Adm. 99; 59 L. T. 672; 37 
 
 W. R. 158 283 
 
 Eotherfield S.S. Co. v. Tweedy, 2 Com. Ca. 84 130a, 261, 583a 
 
 Eousillon V. Eousillon, 14 Ch. D. 351 ; 49 L. J. Ch. 339 ; 42 L. T. 679 ; 
 
 28'W. E. 623; 44 J. P. 663 214, 697 
 
 Eouth V. MacMUlan, 33 L. J. Ex. 38 ; 9 L. T. 541 ; 12 W. R. 381 ; 2 H. & 
 
 C. 750 ; 10 Jur. N. S. 158 140 
 
 Rowe V. Pickford, 8 Taun. 83 ; 1 Moo. 526 513 
 
 Roxburgh i. Cox, 17 Ch. D. 520 ; 50 L. J. Ch. 772 ; 45 L. T. 223 ; 30 
 
 W. R. 74 598 
 
 Royal Exchange Shipping Co. v. Dixon, 12 A. C. 11 (see Dixon it. Royal 
 
 Exchange Shipping Co.) 15, 16, 196, 281 
 
 Royal Mail Steam Packet Co. v. English Bank of Rio de Janeiro, 19 
 
 Q. B. D. 362 ; 57 L. J. Q. B. 31 ; 36 W. R. 105 293, 398, 399, 400 
 
 Ruby, The, 15 P. D. 139, 164 30 
 
 Ruby Queen, The, Lush. 266 707 
 
 Ruck V. Hatfield, 5 B. & A. 632 ., 60 
 
 Eumball v. Metropolitan Bank, 2 Q. B. D. 194 ; 46 L. J. Q. B. 346 ; 36 
 
 L. T. 240 ; 25 W. R. 366 194 
 
 Runquist v. Ditohell, 3 Esp. 64 ; 2 Camp. 556 66 
 
 Eusden v. Pope, L. E. 3 Ex. 269 ; 37 L. J. Ex. 137 ; 18 L. T. 651 ; 16 
 
 W. E. 1122 , 591, 592, 595 
 
 Eushforth v. Hadfield, 6 East, 519 ; 7 East, 224 ; 2 Smith, 264 . .185, 653, 654 
 
 Eussell V. Griffith, 2 E. & E. 118 123 
 
 Eussell V. Niemann, 34 L. J. C. P. 10 ; 10 L. T. 786 ; 13 "W. E. 93 ; 17 
 
 C. B. N. S. 163 11, 81, 86, 160 
 
 Russian S. Nav. Co. v. Silva, 13 C. B. N. S. 610 583 
 
 Rutland, The, (1897) A. 0. 333 ; (1896) P. 281 ; 66 L. J. P. 105 ; 76 L. T. 
 
 662 30 
 
 Ryall V. Eowles, 1 Vesey, 348 596 
 
I VI TABLE OP CASES CITED. 
 
 S. 
 
 SECT. 
 
 Sack V. Ford, 32 L. J. C. P. 12 ; 13 C. B. N. S. 90 ; 9 Jur. N. S. 750 .... 274 
 
 Salacia, The, 32 L. J. Ad. 43 593, 5,98 
 
 Salomons v. Nissen, 2 T. E. 674 532, 533, 538 
 
 Samuel v. Eoyal Exchange Assurance Co., 8 B. & C. 119 624b 
 
 Samuel W. Hall, The, 49 Fed. Kep. 281 222 
 
 Saudeman v. Seurr, L. R. 2 Q. B. 86 ; 36 L. J. Q. B. 58 ; 15 L. T. 608 ; 
 
 15 W. E. 277; 8 B. & S. 50 42, 154, 157, 161, 274 
 
 Sanders v. Jenkins, (1897) 1 Q. B. 93 ; 66 L. J. Q. B. 40 623, 624b 
 
 Sanders v. McLean, 11 Q. B. D. 327 ; 52 L. J. Q. B. 481 ; 49 L. T. 462 ; 
 
 31 W. R. 698 55, 486, 503 
 
 Sanders v. Stuart, 1 C. P. D. 326 ; 45 L. J. C. P. 682 ; 35 L. T. 370 ; 24 
 
 W. E. 949 714 
 
 Sanders ». Vanzeller, 4 Q. B. 260 ; 11 L. J. Q. B. 261 ; 12 L. J. Ex. 497 ; 
 
 2 G. &D. 244; 3 G. &r>. 580 62, 603 
 
 Sandfield, The, 79 Fed. Eep. 371 ; 92 Fed. Eep. 663 103e 
 
 Sanguinetti r. Pacific S. Nay. Co., 2 Q. B. D. 238 ; 46 L. J. Q. B. 105 ; 35 
 
 L. T. 658 ; 25 W. R. 150 648, 649 
 
 San Roman, The, L. R. 5 P. C. 301 ; L. E. 3 A. & E. 583 ; 42 L. J. Ad. 
 
 46; 21W. E. 393; 28 L. T. 381 H, 82, 151, 209, 289 
 
 Santa Anna, The, 32 L. J. Ad. 198 688 
 
 Santipore, The, 1 Spk. 231 333 
 
 Santos V. Brioe, 30 L. J. Ex. 108 ; 6 H. & N. 290 565 
 
 Santos V. lUidge, 29 L. J. C. P. 348 ; 8 "W. R. 705 ; 6 Jur. N. S. 1348 ; 8 
 
 C. B. N. S. 861 , 214 
 
 Sappho, The, L. R. 3 A. & E. 142 ; 3 P. C. 690 ; 40 L. J. Ad. 47 ; 24 L. T. 
 
 795 ; 19 W. E. 24 342 
 
 Sara, The, 14 A. C. 209 ; 12 P. D. 158 ; 56 L. J. Adm. 160 ; 57 L. T. 328 ; 
 
 36W. R. 826 698, 699,706 
 
 Sarah Christian, 1 C. Rob. 237 566 
 
 Sarah, The, 3 P. D. 39 ; 37 L. T. 831 332 
 
 Saratoga, The, Lush. 318 338, 339 
 
 Sargent v. Morris, 3 B. & Aid. 277 61, 62 
 
 Sarpedon, The, 3 P. D. 28; 37L.T. 505; 26 W. R. 374. .324, 325, 329,330,331 
 Satauita, The, (1897) A. C. 59 ; (1895) P. 248 ; 66 L. J. P. 1 ; 75 L. T. 337 • 
 
 8 Asp. 190 26 
 
 Saunders v. Busher, 4 Camp. 54 (n.) 55 
 
 Saunders v. Drew, 3 B. & Ad. 445 662 564 
 
 Saunderson v. Griffith, 5 B. & C. 909 ; 8 D. & E. 643 125 
 
 Saville v. Campion, 2 B. & Aid. 503 555 
 
 Saxon Ship Co. v. Union S.S. Co., 4 Com. Ca. 298 ; 68 L. J. Q B 914 • 
 
 81L.T. 246 258b,' 258c 
 
 Sayward v. Stevens, 3 Gray 97 gg 
 
 Scaife v. Farrant, L. R. 10 Ex. 358 ; 44 L. J. Ex. 36, 234 ; 32 L T 563 ■ 
 
 ' 33 L. T. 278 ; 23 W. R. 469, 840 .'.... .' 4^ g 
 
 Scaife v. Tobin, 3 B. & Ad. 623 296 443* 444 
 
 Soaramanga 1). English, 1 Com. Ca. 99 -jig 
 
 Scaramanga v. Stamp, 4 C. P. X). 316 ; 5 0. P. D. 295 ; 48 L J C P 478 '• 
 
 49L. J. C. P. 674; 40L. T. 191; 42 L. T. 840 ; 28 W. E. 691. '.16, 287, 292 
 Scarf V. Jardine, 7 A. C. 345 ; 61 L. J. Q. B. 612 ; 47 L. T. 258 ; 30 W. E. 
 
 893 ■ J J2 
 
 Scarf e v. Morgan, 4 M. & W. 270 ; 1 H. & H. 292 ".",'."."653 680 
 
 Schibsby v. Westenholz, L. E. 6 Q. B. 155 ; 40 L. J. Q B 73 ■ 24 T, t' 
 
 93: 19-W. R. 587 ....'....'..... 697 
 
 Schilizzi V. Derry, 34 L. J. Q. B. 193; 1 Jur. N. S. 795;' 4 E "& B 
 
 *^^ 225,454 
 
TABLE OF CASES CITED. IVll 
 
 SECT. 
 
 Sohlosa V. Heriot, 14 C. B. N. S. 69 ; 32 L. J. C. P. 211 : 8 L. T. 246 ; 11 
 
 W. R. 596 177, 366, 373a, 373b, 402 
 
 Sohmalz v. Avery, 20 L. J. Q. B. 228 ; 16 Q. B. 655 ; 15 Jur. 291 128 
 
 Schmidt v. Eoyal Mail S.S. Co., 45 L. J. Q. B. 646 24, 80, 106, 373b 
 
 Sohotsmans v. Lane. & York. E,y. Co., L. R. 1 Eq. 349 ; L. R. 2 Ch. 332; 
 
 36 L. J. Ch. 361 ; 16 L. T. 189 ; 15 W. R. 637 508, 512, 531 
 
 Sohulze V. a. E. Ry. Co., 19 Q. B. D. 30 ; 56 L. J. Q. B. 442 ; 57 L. T. 
 
 438 ; 35 W. R. 683 724 
 
 Schuster v. Eletcher, 3 Q. B. D. 418 ; 47 L. J, Q. B. 530 ; 26 W. R. 
 
 766 401, 414 
 
 Schuster v. McKeUar, 26 L. J. Q. B. 281 ; 3 Jur. N. S. 1320 ; 7 E. & B. 
 
 704 60, 67, 155, 491 
 
 Schwau, The, (1892) P. 419 27 
 
 Sootson V. Pegg, 30 L. J. Ex. 225 ; 3 L. T. 753 ; 9 W. R. 280 ; 6 H. & N. 
 
 295 639 
 
 Scott V. Eoley, 5 Com. Ca. 53 144 
 
 Scott ti.- Irving, 1 B. & Ad. 605 , 189 
 
 Scott V. Petitt, 3 B. & P. 469 ; 517 
 
 Scott i\ Thompson, 1 B. & P. N. R. 181 289 
 
 Scotthom V. South Staffordshire Ry. Co., 22 L. J.Ex. 121 ; 8 Ex. 341 ; 7 
 
 Ry. Cases, 810 , 484 
 
 Scout, The, L. R. 3 A. & E. 812; 41 L. J. Ad. 42 ; 26 L. T. 371; 20 
 
 W. R. 617 343 
 
 ScoveU V. Bevan, 19 Q. B. D. 428 ; 56 L. J. Q. B. 604 ; 36 W. R. 301 .... 692 
 
 Scrutton V. Childs, 36 L. T. 212 173, 250, 463 
 
 Soudder i: Bradford, 14 Pick. 13 416 
 
 Sea Ins. Co. v. Blogg, (1898) 2 Q. B. 398 ; (1898) 1 Q. B. 27 ; 67 L. J. Q. B. 
 
 757 ; 78 L. T. 785 ; 8 Asp. 412 567 
 
 Sea Ins. Co. v. Hadden, 13 Q. B. B. 706 ; 63 L. J. Q. B. 252 ; 50 L. T. 657 ; 
 
 32 W. R. 841 ; 6 Asp. M. C. 230 591, 600 
 
 Sea Ins. Co. of Scotland v. Gavin, 4 Bligh. N. S. 578 ; 2 Dow & C. 129 . . 448 
 
 Seager i'. New York & C. Mail S.S. Co., 55 Fed. Rep. 324, 880 463 
 
 Sears v. Wingate, 3 AUen, 103 (Mass.) 69 
 
 Seeger v. Duthie, 29 L. J. C. P. 253 ; 30 L. J. C. P. 65 ; 9 W. R. 166 ; 8 
 
 C. B. N. 8. 45, 72 ; 6 Jur. N. S. 1095 ; 7 Jur. N. S. 239 176, 686 
 
 Serraino v. Campbell, (1891) 1 Q. B. 283 ; 26 Q. B. D. 501 ; 63 L. T. 107. . 156, 
 
 160, 637, 669, 671 
 
 Servia, The, (1898) P. 36 ; 67 L. J. P. 36 ; 78 L. T. 54 ; 8 Asp. 353 30 
 
 Seville Sulphur, &c. Co. v. Colvils, 25 Sc. L. R. 437 ; 16 Sess. Ca. (4th), 
 
 616 ,..: 18, 79, 102a, 144 
 
 Sevin V. Deslandes, 30 L. J. Ch. 457 39 
 
 Sewell V. Burdick, 10 A. C. 74 ; 13 Q. B. D. 159 ; 10 Q. B. D. 363 ; 54 
 
 L J Q B. 156 ; 52 L. T. 445 ; 33 W. R. 461 ; 5 Asp. M. C. 376 ... . 56, 66, 
 
 487, 499, 532, 690 
 
 Sewell i;. Crop, 1 C. & P. 392 186 
 
 Seymour «;. Bridge, 14Q. B.D. 460; 54 L. J. Q. B. 347 190 
 
 Shadforth V. Cory, 32 L. J. Q. B. 78, 379 ; 8 L. T. 736 ; 11 W. R. 918. . . . 639 
 
 Shadforth v. Higgins, 3 Camp. 385 221 
 
 Shamrock S.S. Co. v. Storey, 81 L. T. 413 ; 5 Com. Ca. 21 ; 4 Com. Ca. 80. .268c 
 
 Shand v. Grant, 9 L. T. 390 ; 15 C. B. N. S. 324 677 
 
 Shand V. SaunderSon, 28 L. J. Ex. 278 : 4 H. & N. 381 162, 161, 668 
 
 Sharman/i). Brandt, L. R. 6 Q. B. 720 ; 40 L. J. Q. B. 312 ; 19 W. R. 956 . 128 
 
 Sharp V. Gibbs, 1 H. & N. 801 220,567 
 
 Sharp V. PoweU, L. E. 7 C. P. 253 ; 41 L. J. C. P. 95 ; 26 L. T. 436 ; 20 
 
 W. R. 584 ; 717 
 
 Shaw V. Aitken, 1 Cab. & EU. 195 262 
 
 Shawf. G.W.Ry. Co., (1891)1 Q.B, 373; 70 L. T. 283 94, 110 
 
Iviii TABLE OF CASES CITED. 
 
 SECT. 
 
 Shenston v. Hilton, (1894) 2 Q. B. 452 ; 63 L. J. Ci. B. 684 ; 71 L. T. 339. . 504 
 
 Shepard v. De Bemales, 13 East, 565 602, 607 
 
 Shepherd v. Gt. N. Ry. Co., 21 L. 3. Ex. 286; 8 Ex. 30 ; 7 Eailw. Cas. 310 6 
 Shepherd v. Harrison, L. E. 4 Q. B. 196, 493 ; L. R. 5 H. L. 116 ; 38 L. J. 
 
 Q. B. 105, 177 ; 40 L. J. Q. B. 148 ; 24 L. T. 857 ; 20 W. R. 1 . .488, 494, 506 
 Shepherd v. Kottgen, 2 C. P. D. 678, 685 ; 47 L. J. C. P. 67 ; 37 L. T. 618 ; 
 
 26 W. K. 120 369, 387 
 
 Sheppaid r. Union Bank of London, 31 L. J. Ex. 154; 8 Jur. N. S. 264 ; 
 
 7 H. & N. 661 504 
 
 Sheppard v. Wright, Show. Pari. C. 18 416 
 
 Sheridan v. New Quay Co., 28 L. J. C. P. 58 ; 4 C. B. N. S. 618 ; 6 Jur. 
 
 N. S. 248 67, 483 
 
 Shield V. Wilkins, 19 L. J. Ex. 238 ; 6 Ex. 304 226 
 
 Shields v. Davis, 6 Taun. 66 ; 4 Camp. 119 47, 549, 589 
 
 Shillito, The, 3 Com. Ca. 44 161 
 
 Shipton V, Thornton, 9 A. & E. 314 ; 1 P. & D. 216 302, 305 
 
 Shirwell v. Shaploek, 2 Chitty, 397 466 
 
 Shoe V. Low Moor Iron Co., 49 Eed. Rep. 252 ; 46 Eed. Rep. 125 388 
 
 Short V. Simpson, L. R. 1 C. P. 248 ; 35 L. J. C. P. 147 ; 13 L. T. 674 ; 14 
 
 W. R. 307 ; 12 Jur. N. S. 258 ; 1 H. & R. 181 62 
 
 Short V. Spackman, 2 B. & Ad. 962 130 
 
 Shubriok v. Salmond, 3 Burr. 1 637 , 222 
 
 Sibsou V. Ship Barcraig Co., 24 Sess. Ca. (.4th), 91 122 
 
 Sickens v. Indng, 29 L. J. C. P. 25 : 7 C. B. N. S. 165 ; 6 Jur. N. S. 200. . 126 
 Sickness, &c. Association v. General Accident Ass. Corp., 19 Sess. Ca. (4th) 
 
 9" 671a 
 
 Sievekmg v. Maas, 25 L. J. Q. B. 275, 358 ; 6 E. & B. 670 ; 2 Jur N S 
 
 426, 515 447 
 
 Siffken v. Wray, 6 East, 371 625 
 
 Silesia, The, 6 P. D. 177 ; 43 L. T. 319 ; 29 W. R. 166 .....'.'."."." .' ." ' ,' '. .' .' 347 
 
 Silvia, The, 68 Eed. Rep. 230 , ". , .".".'.'loVa " 103d 
 
 Simeon v. Bazett, 2 M. & S. 94 ; 5 Taun. 824 216 947 
 
 Simmons i). London Joint Stock Bank, (1891) C. 270 ; 60 L J Ch 313 • 62 
 
 I^-T-427 ■ '... 194 
 
 Simouds J'. White, 2 B. & C. 805 ; 4 D. & R. 375 207, 364 427 
 
 Simons «). G. W. Ry. Co., 26 L. J. C. P. 25 ; 18 C. B. 805 .'...!....' 110 
 
 Simpson v. Blues, L. R. 7 C. P. 290 ; 41 L. J. C. P. 121 ■ 26 L T 697 -"20 
 
 ,. W.R.680 .'..:... .'693, 699 
 
 Simpson V. L. & N. W. Ry. Co., 1 Q. B. D. 274 ; 45 L. J. Q. B 182 • 33 
 
 L.T. 805; 24 W. R. 294 ^ig 734 
 
 Simpson v. Thompson, 3 A. 0. 279 ; 38 L. T. 1 '. .'.'.'.'.".'.'" ' ' 702 
 
 Simpson v. Toung, 2 F. & P. 426 ' _" -„ 
 
 Sims V. Gumey, 4 Bing. 513 '_ 
 
 Siordetr. Hall, 4 Bing. 607; 1 M. & P. 561 ' ...... .....\ """ jg 
 
 Sir Henry Webb, The, 13 Jur. 639 .'"."..".'."!! 43 
 
 Sir Ralph Aberorombie, The, L. R. 1 P. C. 454 • 4 Moo.' P. "6. C N S * 374 " 344 
 
 Sjoerds V. Luscombe, 16 East, 201 , ,n „„ ' „,, 
 
 Skandinay,The,60L.J.P. 46; 51 L. J. P 93 ^^u, ^za, 2So 
 
 Skibladner, The, 3 P. D. 24 ; 47 L. J. Ad. 84 ; 38 L.'t." ieo m 334 
 
 Skmner «). TJpshaw, 2 Ld. Raym. 752 ' ,„ 
 
 Slater v. Hayward Rubber Co., 26 Conn. 128 ," «,.„ 
 
 Slubey r. Heyward, 2 H. Bl. 504 
 
 Small V. Moates, 9 Bing. 574 ; 2 M. & Scott,' 6'7'4' ' .'.'.'.'.' '152 ' IM 'er'i ' Rl'a fivq 
 SmaU.. United Kingdom, &c. Assoc, (1897 2 Q. B 2 ^ L J B 
 736 ; 76 L. T. 828 . -^ -^- *^ , bb 1^. J. Q. B. 
 
 100 
 
TABLE OP CASES CITED. llx 
 
 SECT. 
 
 Smeed v. Foord, 28 L. J. Q. B. 178 ; 1 E. & E. 602 ; 5 Jur. N. S. 291 ... . 715, 
 
 717, 719, 724 
 Smidt V. Tiden, L. R. 9 Q. B. 446 ; 43 L. J. Q. B. 199 ; 80 L. T. 891 ; 22 
 
 W. E. 913 ; 156, 162 
 
 Smith V. Bedouin S. Nav. Co., (1896) A. C. 70 ; 65 L. J. P. 0. 8 69, 78 
 
 Smith V. Dart, 14 Q. B. D. 105 ; 54 L. J. Q. B. 121 ; 52 L. T. 218 ; 33 
 
 W. R. 405 ; 5 Asp. M. C. 360 149, 221, 449 
 
 Smith V. Goss, 1 Camp. 282 , 507, 516, 523 
 
 Smith V. Green, 1 C. P. D. 92 ; 45 L. J. C. P. 28 ; 33 L. T. 572 ; 24 W. R. 
 
 142 713, 717 
 
 Smith f. Kirby, 1 Q. B. D. 131 ; 24 W. R. 207 27 
 
 Smith V. McGuire, 1 F. & E. 199 ; 27 L. J. Ex. 465 ; 3 H. & N. 564. . 120, 125, 
 
 719 
 
 Smith V. Plummer, 1 B. & A. 575 589 
 
 Smith V. Pyman, (1891) 1 Q. B. 42, 742 562, 666 
 
 Smith ». Rosario Nitrate Co., (1894) 1 Q. B. 174 ; (1893) 2 Qi B. 323 ; 
 
 70 L. T. 68 182, 252, 258 
 
 Smith V. Scott, 4 Taun. 126 89 
 
 Smith V. Shepherd, Abbott (5th), 252 ., 8 
 
 Smith V. Sieveking, 24 L. J. Q. B. 257 ; 5 E.'& B. 589 ; 2 Jur. N. S. 1135. . 156, 
 
 637, 669, 671 
 
 Smith V. Tregarthen, 57 L. T. 58 ; 6 Asp. 137 ; 56 L. J. Q. B. 437 ; 35 
 
 W.R. 665 726,727 
 
 Smith V. "Wilson, 3 B. & Ad. 728 169 
 
 Smith V. Wilson, 6 M. & S. 78 ; 8 East, 437 654, 571 
 
 Smith r. "Wilson, (1896) a! C. 579; 65 L.J. P. C. 68; 75 L.T. 81 360 
 
 Smurthwaite v. Hannay, (1894) A. C. 494; 63 L. J. Q. B. 737 ; 71 L. T. 
 
 157 605 
 
 Smurthwaite v. "Wilkins, 31 L. J. C. P. 214 ; 5 L. T. 842 ; 7 L. T. 65 ; 10 
 
 "W. R. 386 ; 11 C. B. N. S. 842 , 64, 65 
 
 Sneesby v. L. & T. Ry. Co., L. R. 9 Q. B. 263 ; 1 Q. B. D. 42 ; 43 L. J. 
 
 Q. B. 69 ; 45 L. J. Q. B. 1 ; 33 L. T. 372'; 24 "W. R. 99 717 
 
 Snell V. Marryatt, Abbott (5th), 213 ; (Uth), iv. 4, 1 56 
 
 Soames v. Lonergan, 2 B. & C. 564 ; 4 D. & R. 74 , 236 
 
 Soares v. Thornton, 7 Taun. 627 ; 1 Moo. 373 99, 100 
 
 Soblomsten, The, L. E. 1 A. & E. 293 ; 36 L. J. Ad. 5 ; 15 L. T. 393 ; 15 
 
 ■W. E. 591 ■ 307, 554, 559, 560 
 
 Sodergren r. Flight, cited 6 East, 622 657 
 
 SoUy v. "Whitmore, 5 B. & Aid. 45 286 
 
 Solway Prince, (1896) P. 120 ; 65 L. J. P. 45 ; 74 L. T. 32 335 
 
 Somes V. British Empire Shipping Co., 30 L. J. Q. B. 229 ; 28 L. J. Q. B. 
 
 220 • 27 L. J. Q. B. 397 ; E. B. & E. 353 ; 5 Jur. N. S. 675 ; 6 Jur. 
 
 N. S. 761; 8H. L. C. 338; 8 "W. R. 707 683 
 
 Sorensen v. Keyser, 62 Fed. Rep. 163 257 
 
 South Staffordshire, &c. Co. v. Sickness, &o. Assoc, (1891) 1 Q. B. 402 ; 60 
 
 L. J. Q. B. 260; 64 L. T. 279 671a 
 
 Southampton S. CoHiery Co. v. Clarke, L. R. 4 Ex. 73 ; L. R. 6 Ex. 53 ; 
 
 40L. J. Ex. 8; ig-W. R. 214 264 
 
 Southcote'e case, 4 Co. Rep. 836 3, 11 
 
 Southgate, The, (1893) P. 329 91, 101 
 
 Southport, The Mayor, &c. of, v. Morris, (1893) 1 Q. B. 359 ; 62 L. J. M. 0. 
 
 47 ; 68 L. T. 221 ; 7 Asp. 279 24 
 
 Southwell V. Bowditoh, 1 C. P. D. 374 ; 45 L. J. C. P. 630 ; 35 L. T. 196 ; 
 
 24 W.R. 838 130 
 
 Spafford v. Dodge, 14 Mass. 66 436 
 
 Spaight V. Eamworth, 5 Q. B. D. 115 ; 49 L. J. Q. B. 346 ; 42 L. T. 296 ; 
 
 28 W.R. 508 , 678 
 
Ix TABLE OF CASES CITED. 
 
 SECT. 
 
 Spaldinff V. Eudino- 12 L. J. Ch. 503 ; 15 L. J. Ch. 374 ; 6 Bear. 376 ... . 507, 
 '^ " 533, 640, 566 
 
 Sparks v. Weston, 1 Wash. C. C. 238 278 
 
 Sparrow v. Paris, 31 L. 3. Ex. 137; 7 H. & N. 594 ; 5 L. T. 799 ; 8 Jur. 
 
 N. S. 391 "2 
 
 Spears v. Hartley, 3 Eap. 81 192 
 
 Spence v. Chadwick, 16 L. J. Q. B. 313 ; 10 Q. B. 517 ; 11 Jur. 872 ... . 23, 86, 
 ^ 216, 247 
 
 Spence r. Union Marine Ins. Co., L. K. 3 C. P. 427 ; 37 L. J. C. P. 169 ; 
 
 18 L. T. 632; 16 W. R. 1010 377, 505 
 
 Spirit of the Ocean, The, 12 L. T. 239 ; 34 L. J. Ad. 74 26 
 
 Splidt V. Bowles, 10 East, 279 591 
 
 St. Cloud, The, 8 L. T. N. S. 54 ; B. & L. Ad. 4 154, 157, 685, 690 
 
 St. Lawrence, The, 5 P. D. 250 ; 49 L. J. Ad. 82 317 
 
 Stafford v. Dyer, (1895) 1 Q. B. 566 ; 64 L. J. M. C. 194 ; 72 L. T. 114 . . 30 
 Staffordshire, The, L. R. 4 P. C. 194 ; 41 L. J. Ad. 49 ; 27 L. T. 46 ; 20 
 
 W. R. 557; 8 Moo. P. C. C. N. S. 443 310, 312," 313, 316 
 
 Stainhank t). Penning, 11 C. B. 51 ; 20 L. J. C. P. 226 ; 15 Jur. 1082 312 
 
 Stainhank v. Shephard, 22 L. J. Ex. 341 ; 1 C. L. R. 609 ; 17 Jur. 1032 ; 
 
 13C. B. 418 312 
 
 Stamma v. Brown, 2 Str. 1173, cited 7 T. R. 508 99, 100 
 
 Standard, The, Swah. 267 ; ... . 598 
 
 Staniforth v. Lyall, 7 Bing. 169 ; 4 M. & P. 829 ..'...; 552, 721 
 
 Stanton v. Austin, L. R. 7 C. P. 651 ; 41 L. J. C. P. 218 249, 621 
 
 Stanton v. Banks, 27 L. J. M. C. 105 ; 8 E. & B. 445 ; 4 Jur. N. S. 10, 332 30 
 Stanton v. Richardson, L. R. 7 C. P. 421 ; L. R. 9 C. P. 390 ; 45- Li J. 
 
 C.P. 78; 33 L. T. 193; 24 W. R. 324 18, 19a, 144, 145 
 
 Star of India, The, 1 P. D. 466 ; 45 L. J. Ad. 102 ; 35 L. T. N.' S. 407 ; 25 
 
 W. R. 377 ; 728 
 
 Stavers v. CurHng, 3 Bing. N. C. 355 ; 3 Scott, 740 ; 2 Hodges, 237 174 
 
 Steel r. Lester, 3 C. P. D. 121 ; 47 L. J. C. P. 43 ; 37 L. T. 642 ; 26 W. R. 
 
 212 : 45, 114, 707 
 
 Steele. State Line S.S. Co., 3 A. C. 72 ; 37 L. T. 333 . . 17, 18, 21, 79, 83, 102a, 103d 
 
 Steinmann v. Angler, (1891) 1 Q. B. 619 ; 7 Times R. 398 77, 94, 274 
 
 Stella, The, L. R. 1 A. & E. 340 ; 36 L. J. Ad. 13 ; 16 L. T. 335 ; 15 
 
 W. R. 936 352 
 
 Stephens v. Australasian Ins. Co., L. R. 8 0. P. 18 ; 42 L. J. C P 12 • 27 
 
 lu T. 585 ; 21 W. R. 228 ; .'. , . 192 
 
 Stephens r. Harris, 57 L. J. Q. B. 203 ; 56 L. J. Q. B. 516 ; 57 L. T. 618 ; 
 
 36 W. R. 185 252, 257, 267b, 258 
 
 Stephens v. Macleod, 19 Sess. Ca. (4th), 38 620 
 
 Stephens v. Wintringham, 3 Com. Ca. 169 250 462 463 
 
 Stephenson v. Dawson, 3 Beav. 342 ggj 
 
 Stettin, The, 31 L. J. Ad. 208'; 6 L. T. 613 ; B. & L. 199 ', 30 
 
 Stettin, The, 14 P. D. 142 ; 58 L. J. Adm. 81 ; 61 L. T. 200 ; 38 W. R. 
 
 96. 
 
 .469, 485 
 
 Stevens v. O. W. Ry. Co., 52 L. T. 324 ; 49 J. P. 310 103 
 
 Stevens v. Navigazione Generali Italiana, 39 Eed. Rep. 562 79 104 
 
 Stewart v. Aherdein, 4 M. & S. 211 ; 1 H. & H. 284 189 
 
 Stewart v. Crawley, 2 Stark. 323 , i 
 
 Stewart v. Greenock Mar. Ins. Co., 2 H. L. C. 159 ; 1 Maoq. H. L. C. 382 . '. 600 
 Stewart v. L. & N. W. Ry. Co., 33 L. J. Ex. 199 ; 10 L. T. 302 ; 12 W R 
 
 689 ; 3 H. & C. 135 ; 10 Jur. N. S. 805 ' 103 
 
 Stewart v. Eogerson, L. R. 6 C. P. 424 447, 466^ 544 683 
 
 Stewart v. West India and Pacific S.S. Co., L. R. 8 Q. B. 88 362 ■ 42 
 
 L. J. Q. B. 191; 28L. T. 742; 21 W. R. 953 ,...'... ' "390 
 
TABLE OF CASES CITED. Ixi 
 
 SECT. 
 
 Stiudt V. Roberts, 17 L. J. Q. B. 166 ; 12 Jur. 618 ; 5 D. & L. 460 ; 2 
 
 B. 0. Rep. 212 639 
 
 Stoomvaart Maataohappy, &o. v. P. & 0. Co., 7 A. 0. 795 ; 62 L. J. Ad. 1 ; 
 
 47 L. T. 198 ; 31 "W. R. 249 ; 4 Asp. M. C. 567. 27, 704 
 
 Storer v. Gordon, 3 M. & S. 308 150, 175 
 
 Stomoway, The, 46 L. T. 773 ; 51 L. J. P. 27 ; 4 Asp. M. 0. 629.. 161, 662, 676 
 
 Strahan v. Gabriel, cited 12 Ch. T>. 590 623 
 
 Straker v. Hartlaud, 34 L. J. Ch. 122 : 11 L. T. 622 ; 2 H. & M. 670 ; 10 
 
 Jut. N. S. 1143 27 
 
 Straker v. Kidd, 3 Q. B. D. 223 ; 47 L. J. Q. B. 366 ; 26 "W. R. 511 . . 640, 642 
 Strang v. Soott, 14 A. C. 601 ; 59 L. J. P. 0. 1 ; 61 L. T. 597. .177, 366, 373a, 
 
 373b, 373o, 375, 379, 381, 402, 442, 446 
 
 Strathdon, The, 89 Fed. Rep. 374 83, 89, 103e 
 
 Strathdon (2), The, 94 Fed. Rep. 206 103e, 103f, 373a, 373c 
 
 Strathgany, The, (1895) P. 264 ; 64 L. J. P. 69 ; 72 L. T. 202 334, 348 
 
 Strathnaver, The, 1 A. C. 68 ; 34 L. T. 148 340 
 
 Strong V. Hart, 6 B. & C. 160 ; 9 D. & R. 189 ; 2 C. & P. 65 686, 602 
 
 Strong V. Natally, 1 B. & P. N. R. 16 462 
 
 Strugnell v. Friederichsen, 12 C. B. N. S. 452 ; 9 Jur. N. S. 77 260 
 
 Stuart V. British & African S. Kav. Co., 32 L. T. 257 ; 2 Asp. 497 . . 103, 292a 
 
 Stumors v. Breen, 12 Ap. C. 698 ; 56 L. J. Q. B. 401 42, 66, 69a 
 
 StuTgess V. Gary, 2 Curt. Cir. C. 59 371 
 
 Suarez «. Washington, 1 "Woods, C. C. 96 68 
 
 SuUy V. Duranty, 33 L. J. Ex. 319 ; 3 H. & C. 270 630 
 
 Sumner v. Caswell, 20 Fed. Rep. 249 21, 144 
 
 Sunniside, The, 8 P. D. 137 ; 62 L. J. Ad. 76 ; 49 L. T. 401 ; 31 W. R. 
 
 859 345 
 
 Suse V. Pompe, 30 L. J. C. P. 76 ; 9 W. R. 16 ; 7 Jur. N. S. 166 ; 8 C. B. 
 
 N. S. 638 191 
 
 Sutherland, The, 12 P. D. 164 ; 66 L. J. Adm. 94 ; 67 L. T. 631 ; 36 
 
 W. R. 13 30 
 
 Sutton o. Ciceri, 16 A. C. 144 ; 63 L. T. 742 105 
 
 Svendsen v. Wallace, 10 A. C. 404 ; 13 Q. B. D. 69 ; 11 Q. B. D. 616 ; 54 
 
 L. J. Q. B. 497 : 52 L. J. Q. B. 397 ; 62 L. T. 901 ; 48 L. T. 795 ; 34 
 
 W. R. 369 ; 30 W. R. 841 ; 5 Asp. M. C. 463 . .302, 366, 395, 399, 403, 404, 
 
 407, 408, 410, 412, 413, 440 
 
 Swainston v. Garrick, 2 L. J. N. S. Ex. 255 63, 274 
 
 Swan, The, 1 W. Rob. 70 335 
 
 Sweet V. Pym, 1 East, 4 626, 678 
 
 Sweeting v. Darthez, 23 L. J. C. P. 131 ; 14 C. B. 638 ; 18 Jur. 958 ; 2 C. 
 
 & R. 1375 634 
 
 Sweeting v. Pearee, 30 L. J. C. P. 109 ; 29 L. J. C. P. 265 ; 6 L. T. 79 ; 
 
 9 W. R. 343 ; 7 C. B. N. S. 449 ; 9 C. B. N. S. 934 , 184, 189 
 
 i V. Hay, 4 T. R. 260 461 
 
 Syers v. Jones, 2 Ex. Ill 183 
 
 T. 
 
 Taloa, The, 5 P. D. 169 ; 29 W. R. 123 38 
 
 Talley v. G. W. Ry. Co.. L. R. 6 C. P. 44 ; 40 L. J. C. P. 9 ; 23 L. T. 
 
 413 ; 19 W. R. 164 6 
 
 Tamvaoo v. Simpson, L. R.l C. P. 363 ; 34 L. J. C. P. 268; 35 L. J. C. P. 
 
 196; 14L. T. 893; 14 W. R. 376; 1 H. & R. 374 564, 606, 663, 665 
 
 Tamvaoo v. Timothy, IC. &E.1 6 
 
 Tanner v. Phimps, 42 L. J. Ch. 126 ; 27 L. T. 717 ; 21 W. R. 68 .... 593, 698 
 Tapley ». Martens, 8 T. R. 451 685 
 
 C. — C. e 
 
Ixii TABLE OF CASES CITED. 
 
 SHOT. 
 
 Tapsoott V. Balfour, L. E. 8 0. P. 46 ; 42 L. J. C. P. 16 ; 27 L. T. 710 ; 21 
 
 W. R. 245 , 623, 624, 624b, 626 
 
 Tarrabochia v. Hiokie, 26 L. J. Ex. 26 ; 1 H. & N. 183 144, 230 
 
 Tasmania, The, 13 P. D. 110 ; 57 L. J. Adm. 49 ; 59 L. T. 263 696, 707 
 
 Tate V. Meek, 2 Moore, 278 ; 8 Tauu. 280 684, 655, 661 
 
 Tatham v. Hodgson, 6 T. R. 656 89 
 
 TattersaU v. National S.S. Co., 12 Q. B. D. 297 ; 53 L. J. Q. B. 332 ; 60 
 
 L. T. 299 ; 32 "W. E. 566 ; 5 Asp. M. C. 206 20, 79, 102a 
 
 Taubman v. Paciao S. Nav. Co., 26 L. T. 704 , 103, 111 
 
 Taylor v. Briggs, M. & M. 28 ; 2 C. & P. 525 685 
 
 Taylor v. CaldweU, 32 L. J. Q. B. 164 ; 8 L. T. 356 ; 11 W. E. 726 ; 3 B. 
 
 & S. 826 137, 227, 256 
 
 Taylor v. Clay, 16 L. J. Q. B. 44 ; 9 Q. B. 713 : 11 Jnr. 277 620 
 
 Taylor f. Curtis, 6 Taun. 608; 2 Marsh. 309; Holt, 192; 4 Camp. 337 383 
 
 Taylor v. Dunbar, L. E. 4 C. P. 206 ; 38 L. J. C. P. 178 ; 17 W. E. 382 . . 89 
 Taylor v. Gt.N. Ey. Co., L. E. 1 C. P. 385 ; 35 L. J. C. P. 210 ; 12 Jur. 
 
 N. S. 372 227, 285, 615 
 
 Taylor v. Liyerpool & Ct. W. S.S. Co., L. E. 9 Q. B. 546 ; 43 L. J. Q. B. 
 
 205 ; 30 L. T. 714 ; 22 W. E. 752 77, 78, 94, 100, 105 
 
 Taylor v. Perrin (not reported) 160 
 
 Taylor v. Stray, 26 L. J. C. P. 185, 287 ; 2 C. B. N. S. 197 ; 3 Jur. N. S. 
 
 964 184 
 
 Ten thousand and eighty-two Oak Ties, 87 Ted. Eep. 935 614, 683 
 
 Teutonia, The, L. E. 3 A. & E. 394 ; L. E. 4 P. C. 171 ; 41 L. J. Ad. 57 ; 
 
 26 L. T. 48 ; 20 W. E. 261 ; 24 L. T. 21 ; 20 W. E. 421 ; 8 Moo. P. C. 
 
 C. N. S. 411 11, 23, 81, 82, 239, 240, 289, 291, 451, 544, 547, 682, 687 
 
 Thahnan v. Texas Star Elour MiUs, 4 Com. Ca. 265 284 
 
 Thames, The, 61 Fed. Eep. 1014 iga, 86 
 
 Thames Ironworks Co. v. Patent Derrick Co., 29 L. J. Ch. 714 ; 8 W. E. 
 
 408; 6 Jur. N. S. 1013; 1 J. & H. 93 662 
 
 Tharsis Sulphur, &c. Co. v. CuLiford, 22 W. E. 46 676 
 
 Tharsis Sulphur and Copper Co. v. Morel, (1891) 2 Q. B. 647 ; 61 L. J. 
 
 Q- B. 11 460, 623, 624b, 625, 627 
 
 Thetis, The, L. E. 2 A. & E. 365 ; 38 L. J. Ad. 42 292 
 
 Thiis V. Byers, 1 Q. B. D. 244 ; 45 L. J. Q. B. 511 ; 34 L. T. 526 ; 24 
 
 W. E. 611 611, 613, 616, 623 
 
 Thin V. Eichards, (1892) 2 Q. B. 141 ; 62 L. J. Q. B. 39 ; 66 L. T. 684 . . 19b, 
 
 79, 102a, 144 
 
 Thol V. Henderson, 8 Q. B. D. 457 ; 46 L. T. 483 ; 46 J. P. 422 714 
 
 Thomas v. Clarke, 2 Starkie, 450 141 261 263 
 
 Thomas v. Lewis, 4 Ex. D. 18 ; 48 L. J. Ex. 7 ; 39 L. T. 669 ; 27 W. E. 
 
 1" .'...' 36 
 
 Thomas v. Ehymney Ey. Co., L. E. 6 Q. B. 266 ; L. E. 5 Q. B 226 • 40 
 
 L. J. Q. B. 89 ; 24 L. T. 145 ; 19 W. E. 477 ; 39 L. J. Q. B. 141 ! 22 
 
 L. T. 297; 18 W. E. 668 , ' _ 
 
 Thompson v. Dominy, 14 L. J. Ex. 320 ; 14 M. & "W. 403 
 
 Thompson v. Gillespie, 24 L. J. Q. B. 340 ; 5 E. & B. 209 ; 1 Jur. N. S. 
 
 ^''^ 567, 568 
 
 Thompson v. Inglis, 3 Camp. 428 gj5 
 
 Thompson v. Small, 14 L. J. C. P. 167 ; 1 C. B. 328 268, 661, 664 
 
 Thompson v. Trail, 2 C. & P. 334 ; 6 B. & C. 36 ; 6 D. & E. 31 !....' 269 
 
 Thompson v. Whitniore, 3 Taun. 227 gy 
 
 Thomson v. Brown, 7 Taun. 656 ; 1 Moo. 358 ' ug 
 
 Thorman v. Burt, 64 L. T. 349 ; 5 Asp. M. C. N. S. 563 . .63a, 68," 69,'70, 251 
 
 Thornton v. EairUe, 8 Taun. 354 ; 2 Moo. 397 ' ' 5gj 
 
 Thorogood v. Bryan, 18 L. J. C. P. 336 ; 8 C. B. 115 '. '. 704 
 
 Thorsen v. MoDowall, 19 Sess. Ca. (4th) 743 460,' 612', "esV 683 
 
 107 
 62 
 
TABLE OF CASES CITED. Ixili 
 
 SECT. 
 
 Thrift (;. Yonle, 2 0. P. D. 432; 46 L. J. C. P. 402; 36 L. T. 114 98 
 
 Thrunsooe, The, (1897) P. 301 ; 66 L. J. P. 301 84, 86 
 
 Thiiringia, The, 41 L. J. Ad. 44 ; 26 L. T. 446 718 
 
 'Ebiyatira, The, 8 P. D. 155 ; 52 L. J. Ad. 85 ; 49- L. T. 406 ; 32 "W. R. 
 
 276 691, 702, 727 
 
 Tioonderoga, The, Swab. 215 696, 707 
 
 Tigress, The, 32 L. J. Ad. 97 ; 8 L. T. 117 ; 11 W. E. 538 ; B. & L. 38 ; 
 
 9 Jur. N. S. 361 483,608, 525, 531, 689, 691 
 
 Tillett V. Cwm Avon Works, 2 Times L. E. 675 615, 626, 628 
 
 TindaU v. Bell, 11 M. & W. 228 ; 12 L. J. Ex. 161 719 
 
 Tindall v. Taylor, 24 L. J. Q. B. 12 ; 3 C. L. E. 199 ; 1 Jur. N. S. 112 ; 
 
 4 E. & B. 219 269 
 
 Timor, The, 67 Fed. Eep. 356 79, 104 
 
 Tobin V. Crawford, 9 M. & "W. 716; 12 L. J. Ex. 490; 6 M. & "W. 235. .602, 605 
 
 Toddw. Eeid, 4 B. & A. 210 .189 
 
 Toimelier ». Smith, 77 L. T. 277 ; 2 Com. Ca. 121, 258 570, App. B. 
 
 Touteng v. Huhhard, 3 B. & P. 291 150, 232, 237 
 
 Towse V. Henderson, 19 L. J. Ex. 163 ; 4 Ex. 890 20, 262 
 
 Trayes v. "Worms, 34 L. J. C. P. 274 ; 12 L. T. 547 ; 13 W. R. 898 ; 11 
 
 Jur. N. S. 639, also reported as Erayes v. Worms, 19 0. B. N. S. 159 . .440, 664 
 
 TregHa v. Smith's Timber Co., 1 Com. Ca. 360 449, 455, 456, 644 
 
 Trelawney, The, 3 C. Rob. 216 (n.) ; 4 Eob. 228 324a 
 
 Trent Nav. Co. v. Wood, 3 Esp. 127 ; 4 Doug. 287 ; 1 T. R. 28 (n.) 3, 8 
 
 Tribe v. Taylor, 1 C. P. D. 505 121 
 
 Trimbey v. Vignier, 1 Bing. N. C. 151 ; 4 M. &^ Soott, 695 ; 6 C. & P. 
 
 25 202, 697 
 
 Trindade v. Levy, 2 E. & F. 441 250, 463 
 
 Trinidad, &o. Co. ». Frame, 88 Fed. Rep. 528 373o 
 
 Trinity House v. Clark, 4 M. & S. 288 114 
 
 Trouson v. Dent, 8 Moo. P. C. 419 293, 298, 300 
 
 Troubadour, The, L. E. 1 A. & E. 302 ; 16 L. T. 166 699 
 
 Trowbridge ». Chaplin, 23 Conn. 595 68 
 
 True Blue, The, L. R. 1 P. C. 250 ; 4 Moo. P. C. C. N. S. 96 . . . . 345, 347, 348 
 
 Tucker v. Humphrey, 4 Bing. 616 ; 1 M. & P. 378 (n.) 525 
 
 Tully V. Howling, 2 Q. B. D. 182 ; 46 L. J. Q. B. 388 ; 36 L. T. 163 ; 25 
 
 W. E. 290 -146 
 
 TuUy V. Terry, L. E. 8 C. P. 679 ; 42 L. J. C. P. 240 ; 29 L. T. 36 . . 677, 681 
 
 Turgot, The, 11 P. D. 21 App. B. 
 
 Turner v. Barlow, 3 P. & P. 949 671a 
 
 Turner v. Liverpool Dock Trustees, 20 L. J. Ex. 393 ; 6 Ex. 543 492 
 
 Tutela, The, 6 C. Eob. 177 246 
 
 Two EUens, The, L. E. 4 P. C. 161 ; 41 L. J. Ad. 33 ; 26 L. T. 1 ; 20 W. E. 
 
 692 ; 8 Moo. P. C. C. N. S. 398 698, 699, 701, 706 
 
 Two Friends, The, 1 C. Eob. 271 336 
 
 Tyne, &c. Co. v. Leech, 69 L. J. Q. B. 353 ; 16 T. L. R. 197 258b 
 
 Tyne Improvement Commissioners v. General S. Nav. Co., L. R. 2 Q. B. 
 65 ; 8 B. & S. 66 ; 36 L. J. Q. B. 22 ; 16 L. T. 487 ; 15 W. R. 178 .... 30 
 
 TJ. 
 
 Uhde V. Walters, 3 Camp. 16 169 
 
 UmbUo, The, (1891) P. 118; 60L. J. P. 7; 64 L. T. 328 26 
 
 Undaunted, The, 29 L. J. Ad. 176 ; Lush. 90 326, 334 
 
 Undaunted, The, 11 P. D. 4 112 
 
 Underwood v. Robertson, 4 Camp. 138 297, 298 
 
 e2 
 
Ixiv TABLE OF CASES CITED. 
 
 SECT. 
 
 Union, The, Lush. 128 ; 30 L. J. Ad. 17 211 
 
 United States ii. HaU, 6 Cranoh 171 86, 89 
 
 United States J). Shea, 152 U. S. 178 lU, 572 
 
 Utopia, The, (1893) A. C. 492 ; 62 L. J. P. C. 118 696, 707 
 
 V. 
 
 Valente v. Gibbs, 28 L. J. C. P. 229 ; 6 C. B. N. S. 270 ; 5 Jur. N. S. 1213 . 148 
 
 VaHant, The, 1 W. Bob. 64 38 
 
 Valieri v. Boylaud, L. K. 1 C. P. 382 ; 35 L. J. C. P. 215 ; 14 L. T. 362 ; 
 
 14 W. R. 637 ; 12 Jur. N. S. 666 70 
 
 VaUanoe v. Dewar, 1 Camp. 503 182 
 
 Vallejo V. Wheeler, Cowp. 143 r Lofit, 631 100, 193 
 
 Valpy V. Gibson, 16 L. J. C. P. 241 ; 4 C. B. 837 ; U Jur. 826 522, 623 
 
 VamBaggent;. Baines, 23L. J. Ex. 213 ; 9 Ex. 643 ; 2 C. L. R. 643 .... 220 
 
 Van Casteel v. Booker, 18 L. J. Ex. 9 ; 2 Ex. 691 492 
 
 Van den Toorn v. Leeming, 79 Fed. Rep. 107 384 
 
 Vanderspar v. Duncan, 8 T. L. R. 30 263 
 
 Vandyck, The, 7 P. D. 42 ; afid. 47 L. T. 695 ; 5 Asp. M. C. 17 332 
 
 Vaughau j). Campbell, 2 T. L. R. 33 221 
 
 Venables v. Smith, 2 Q. B. D. 279 ; 46 L. J. Q. B. 470 ; 36 L. T. 609 ; 26 
 
 "W. R. 584 49, 707 
 
 Vernon, The, 1 W. Rob. 316 697 
 
 Vertue v. Jewell, 4 Camp. 31 483, 527, 638 
 
 Vesta, The, 2 Hagg. 189 350 
 
 VibUia, The, 1 W. Rob. 1 314 
 
 Viokers v. Hertz, L. R. 2 H. L. So. 113 604 
 
 Victor V. British and African S. N"av. Co., W. N. 1888, p. 84 469 
 
 Victoria, The, 12 P. D. 105 ; 56 L. J. Adm. 76 ; 56 L. T. 499 ; 35 W. R. 
 291 706 
 
 Village BeUe, The, 30 L. T. 232 ; 2 Asp. M. C. N. S. 228 258 
 
 Vaie de I'Orient, The, 2 L. T. N. S. 62 85 
 
 Vindobala, The, 60 L. T. 667 ; 13 P. D. 42 ; 14 P. D. 60 ; 58 L. J. Adm. 
 
 51 ; 37 W. R. 409 36 
 
 Vine, The, 2 Hagg. 1 332 
 
 Vlierboom v. Chapman, 13 M. & W. 230 ; 13 L. J. Ex. 384 ; 8 Jur. 811 . . 307, 
 
 847, 661 
 
 Vogeman v. Bisley, 2 Com. Ca. 81 546 
 
 Volant, The, 1 W. Rob. 383 700 
 
 Vortigem, The, (1899) P. 140 ; 68 L. J. P. 49 ; 80 L. T. 382 ; 8 Asp. 
 
 S23 19b, 79, 102a 
 
 Vrede, The, 30 L. J. Ad. 209 ; Lush. 322 336, 338 
 
 W. 
 
 WaddeU v. Blockey, 4 Q. B. D. 678 : 48 L. J. Q. B. 517 ; 41 L T 458 ■ 
 
 27 W. R. 938 .'.....' 718 
 
 "Wagstafl V. Anderson, 4 C. P. D. 283 ; 5 C. P. D. 171 ; 49 L. J. C. P 485 ■ 
 
 42L.T.720;28W.R.856 .' 115,151,156,159 
 
 Wahlberg v. Young, 45 L. J. C. P. 783 ; 24 W. R. 846 26 
 
 Waikato, Cargo per, v. New Zealand Sh. Co., (1898) 1 Q. B. 646 • fl899'l 
 
 1 Q. B. 56 ; 68 L. J. Q. B. 1 ; 79 L. T. 326 ; 8 Asp. 442 102a 
 
 "Wait V. Baker, 17 L. J. Ex. 307 ; 2 Ex. 1 492 
 
 Wake V. Harrop, 30 L. J. Ex. 273 ; 31 L. J. Ex. 451 : 4 L T 555 • 7 t/t 
 96 ; 9 W. R. 788 ; 10 W. R. 626 ; 6 H. & N. 768 ; 1 H & C 202 ^ 
 7Jur.N.S.710; 8 Jur. N. S. 845. !^'. ..,.'. 130 
 
TABLE OF CASES CITED. IxV 
 
 BEOT. 
 
 Walker 1'. Jackson, 10 M. &W. 161 ; 12 L. J. Ex. 166 3, 182, 187, 729 
 
 Walker v. Old Bradford Bank, 12 Q. B. D. 511 : 63 L. J. Q. B. 280 ; 32 
 W. E. 645 • 596 
 
 Wallace v. Woodgate, E. & M. 193 ; 1 0. & P. 675 678 
 
 Waller ». M. a. W. By. Co., i L. R. Ir. 376 ; 1 L. R. Ir. 520 . . 718, 723, 725 
 
 Walshe v. ProTan, 22 L. J. Ex. 355 ; 8 Ex. 843 ; 1 C. L. R. 823 43 
 
 Walthew v. Mavrojani, L. R. 5 Ex. 116 ; 39 L. J. Ex. 81 ; 22 L. T. 310 . . 395, 
 
 399, 407 
 
 Walton V. PothergiU, 7 C. & P. 392 , 723 
 
 Wamsutta Mills v. Old Colony Steamboat Co., 137 Mass. 471 374a 
 
 Ward V. Eelton, 1 East, 507 605 
 
 Ward V. Weir, 4 Com. Ca. 216 122 
 
 Wardell v. MouriUyan, 2 Esp. 693 ; 468, 482 
 
 Warden 1!. Greer, 6 Watts, 124 10, 12, 14 
 
 Warkworth, The, 9 P. D. 20, 145 ; 53 L. J. Ad. 465 ; 49 L. T. 715 ; 51 
 
 L. T. 568; 32 W. R. 479; 33 W. R. 112; 5 Asp. M. C. 194, 326.... 26, 101 
 
 Warren v. Peabody, 19 L. J. C. P. 43 ; 14 Jur. 150 ; 8 C. B. 800 263 
 
 Warrior, The, 6 L. T. N. S. 133 ; Lush. 476 335 
 
 Warsaw, The, (1898) P. 127 ; 67 L. J. P. 50 ; 78 L. T. 327 ; 8 Asp. 399 . . 30 
 
 Waterloo, The, 2 Dod. 433 343 
 
 Waters v. Merchants, &c. Co., 11 Peters, 213 87 
 
 WatHns v. RymiU, 10 Q. B. D. 178 ; 62 L. J. Q. B. 121 ; 48 L. T. 426 ; 
 
 31 W. R. 337 ; 47 J. P. 357 Ill 
 
 Watson, Ex parte. Love, Re, 6 Ch. D. 35 ; 46 L. J. Bk. 97 ; 36 L. T. 75 ; 
 
 26 W. R. 489 620, 522, 523 
 
 Watson V. Amhergate Rail. Co., 15 Jur. 448 724 
 
 Watson v. Bomer, 4 Com. Ca. 335 623, 626 
 
 Watson ff. Mid Wales Ry. Co., L. R. 2 C. P. 593 ; 36 L. J. C. P. 285 ; 17 
 
 L.T.94; 15W.R.1107 598 
 
 Watson V. Shankland, L. R. 2 H. L. So. 304 ; 29 L. T. ^349 , . . . 566 
 
 Watson V. Swann, 31 L. J. C. P. 210 ; 11 C. B. N. S. 756 125 
 
 Watts V. Grant, 26 Sc. L. R. 660 187, 582 
 
 Waugh V. Denham, 16 Ir. C. L. 405 652 
 
 Waugh V. Morris, L. E. 8 Q. B. 202 ; 42 L. J. Q. B. 57 ; 28 L. T. 265 ; 
 
 21 W. R. 438 241, 459, 543 
 
 Warerley, The, L. R. 3 A. & E. 369 ; 40 L. J. Ad. 42 ; 24 L. T. 713 .... 348 
 Wavertree Sailing Ship Co. v. Love, (1897) A. C. 373 ; 66 ,L. J. P. C. 77 ; 
 
 76L. T. 576; 8 Asp. 276 427,442 
 
 WaymeU ». Reid, 5 T. R. 599 216 
 
 Webb, Re, 8 Taun. 443 ; 2 Moo. 500 472 
 
 Webster v. Bond, 1 Cab. & Ell. 338 5 
 
 Wegener v. Smith, 24 L. J. C. P. 25 ; 15 C. B. 285 637, 639, 671 
 
 Weguelin v. CeUier, L. R. 6 H. L. 286 ; 42 L. J. Ch. 758 ; 22 W. R. 26 . . 675, 
 
 698, 606 
 
 Weidner v. Hoggett, 1 C. P. D. 533 ; 35 L. T. 368 130 
 
 Weir V. Girvin, (1900) 1 Q. B. 45 ; (1899) 1 Q. B. 193 ; 69 L. J. Q. B. 
 
 168 259, 562, 721 
 
 Weir V. Pirie, 3 Com. Ca. 263, 271 258o 
 
 Weir V. Union S.S. Co., (1900) 1 Q. B. 28 ; 69 L. J. Q. B. 193 ; 81 L. T. 
 
 553 ; 5 Com. Ca. 24 262, App. B. 
 
 Welch V. Anderson, 7 Asp. 177 718 
 
 WeUs ». Owners of Gas Eloat Whitton No. 2, (1897) A. C. 337 (see Gas 
 
 Float Whitton No. 2). 
 
 Wencke v. Vaughan, 60 Fed. Rep. 448 621 
 
 Wentworth v. Outhwaite, 10 M. & W. 436 ; 12 L. J. Ex. 172 613 
 
 Werldsborgaren, The, 4 C. Rob. 17 556 
 
 eB 
 
Ixvi TABLE OF CASES CITED. 
 
 SECT. 
 
 Wesley, The, Lush. 268 30 
 
 West V. Houghton, i C. P. D. 197 ; 40 L. T. 364 ; 27 W. R. 678 122 
 
 "Westboume, The, 14 P. D. 132; 58 L. J. Adm. 78; 61 L. T. 156; 38 
 
 W. E. 56 348 
 
 Westbum, The, 74 L. T. 200 339 
 
 Western Transp. Co. v. Barber, 56 N. T. 444 609, 677 
 
 Western Transp. Co. v. Hoyt, 69 N. T. 230 544, 561 
 
 Westminster, The, 1 W. Eob. 299 324, 351 
 
 Weston i>. Foster, 2 Curtis, 119 (U.S.) 272 
 
 Westport Coal Co. -v. McPhail, (1898) 2 Q. B. 130 ; 67 L. J. Q. B. 674 ; 78 
 
 L. T. 490; 8 Asp. 378 101. 102 
 
 Westzinthus, Re, 5 B. & Ad. 817 66, 533, 640 
 
 White Star, The, L. E. 1 A. & E. 68 339 
 
 White V. Baring, 4 Esp. 22 589 
 
 White V. Gainer, 2 Bing. 23 ; 9 Moo. 41 ; 1 C. & P. 324 679 
 
 White V. Granada S.S. Co., 13 T. L. E. 1 286 
 
 White V. Parkin, 12 East, 578 119, 164 
 
 White V. S. E. Ey. Co., Times. Mar. 3rd, 1885 107 
 
 White V. S.S. Winchester Co., 23 So. L. E. 342 ; 13 Sess. Ca. (4th) 524 . . 221, 
 
 229, 247, 611, 612, 616, 622 
 Whiteoross Wire Co. ^. SaTill, 8 Q. B. D. 653; 51 L. J. Q. B. 426; 
 
 46 L. T. 643 ; 30 W. E. 688 ; 4 Asp. M. C. 631. .15, 294, 366, 367, 368, 371, 
 
 388, 390 
 Whitehead v. Anderson, 9 M. & W. 618 ; 11 L. J. Ex. 167 .... 613, 514, 523, 
 
 629, 530 
 
 WhitUebum, The, 89 Fed. Eep. 526 103e 
 
 Whitteridge v. Norris, 6 Mass. 125 376 
 
 Wiggins J). Johnston, 15 L. J. Ex. 202 ; 14 M. & W. 609 126 
 
 Wilhelm, The, 2 Asp. 0. S. 343 ; 14 L. T. 636 284 
 
 WUhelm III., The, L. E. 3 A. & E. 487 ; 26 L. T. 386 ; 20 W. E. 216 . . 331, 
 
 . 350 
 
 Wilhelm Schmidt, The, 25 L. T. 34 11, 62, 209 
 
 WilMnson v. Martin, 8 C. & P. 1 121 
 
 WiUiam, The, 6 C. Eob. Ad. 316 87, 284 
 
 WilHam Beckford, The, 3 C. Eob. 355 344 
 
 William F. SafEord, The, Lush. 69 317 
 
 WilHams v. African S.S. Co., 26 L. J. Ex. 69 ; 1 H. & N. 300 ; 2 Jur. N. S. 
 
 693 24,76 
 
 Williams v. Colonial Bank, 36 Ch. D. 659 ; 57 L. T. 188 194 
 
 Williams v. Dobbie, 19 So. L. E. 336 ; 11 Sess. Ca. (4th) 980 78 
 
 Williams v. East India Co., 3 East, 192 ; 278 279 
 
 Williams v. Lloyd, W. Jones, Eep. 179 10 12 
 
 Williams v. London Ass. Co., 1 M. & S. 318 ; 433 
 
 Williams v. Reynolds, 12 L. T. 728 ; 6 B. & S. 495 ; 11 Jur. N. S. 973 714 
 
 Williams v. Shee, Z, Camp. 469 286 
 
 WmisD. Pahner, 7 C. B. N. S. 340; 29 L. J. C. P. 194; 8 W. R 295' 6 
 
 Jur.N.S. 732 692,596 
 
 Willoughby v. Horridge,' 12 C. B. 742 ; 22 L. J. C. P. 90 ; 17 Jur. 323 ... . 3 
 
 Wills V. Burrell, 21 Sess. Ca. (4th) 527 " " 262 
 
 WilEishurst v. Bowker, 7 M. & G. 882 ; 8 Scott, N. E. 571 ; 12 L J C P 
 
 , *75 •■■• • .■..■..;..; 508 
 
 Wilson V. Andertbn, 1 B. & Ad. 460 , ;, arq 
 
 Wilson V. Balcarres Brook S.S. Co., (1893) 1 Q. B. 422: 62 L J OB 
 245 ; 68 L. T. 312 ' _' _ " _ ' ' gg 
 
 Wilson V. Bank of Victoria, L. E. 2 Q. B. 203; 36 L. J. Q s'sg-ifi 
 
 L.T.9;15W.E.693 '. 302,384,392,414 
 
 Wilson V. Carmichael, 21 Sess. Ca. (4th) 732 7ig 730 
 
TABLE OF CASES CITED. Ixvii 
 
 SECT. 
 
 Wilson V. Dickson, 2 B. & Aid. 2 24, 25, 26 
 
 Wilson V. Danville, 6 L. E. Ir. 210 713, Z17 
 
 Wilson v. Gabriel, 8 L. T. 602; 4 B. & S. 243; 11 W. E. 803 693, 598 
 
 Wilson V. General Iron Screw ColHer Co., 47 L. J. Q. B. 239 ; 37 L. T. 789 . . 714 
 
 Wilson V. Hioks, 26 L. J. Ex. 242 719, 720 
 
 Wilson V. Kymer, 1 M. & S. 157 604, 677 
 
 Wilson V. L. & T. Ey. Co., 30 L. J. C. P. 232 ; 3 L. T. 859 ; 9 W. E. 635 ; 
 
 9 C. B. N. S. 632 ; 7 Jur. N. S. 862 724, 726 
 
 Wilson V. London, &o. Nav. Co., L. E. 1 C. P. 61 ; 35 L. J. C. P. 9 ; 12 
 
 Jur. N. S. 62 ; 13 L. T. 435 ; 14 W. E. 101 ; 1 H. & E. 29 . . . . 466, 475, 477 
 Wilson V. Newport Docks Co., L. E. 1 Ex. 177 ; 35 L. J. Ex. 97 ; 14 L. T. 
 
 230 ; 14 W. E. 658 ; 12 Jur. N. S. 233 ; 4 H. & C. 232 713, 718 
 
 Wilson V. Eankin, 34 L. J. Q. B. 62 ; 35 L. J. Q. B. 203 ; L. E. 1 Q. B. 
 
 162 ; 13 L. T. 564 ; 14 W. E. 198 ; 11 Jur. N. S. 173 282 
 
 WUson V. Wilson, L. E. 14 Eq. 32 ; 41 L. J. Ch. 423 ; 26 L. T. N. S. 346 ; 
 
 20 W. E. 436 692, 595, 697 
 
 Wilton V. Eoyal Atlantic S. Nav. Co., 10 C. B. N. S. 453; 30 L. J. 0. P. 
 
 369; 4L. T. 706; 9 W. E. 748; 8 Jur. N. S. 232 Ill 
 
 Windle v. Barker, 26 L. J. Q. B. 349 ; 6 E. & B. 675; S. C. ; 2 Jiir. N. S. 
 
 1069 141 
 
 Winestead, (1895) P. 170 ; 64 L. J. P. 51 ; 72 L. T. 91 ; 7 Asp. 547 30 
 
 Winston, The, 8 P. D. 176 ; 9 P. D. 85 ; 62 L. J. Ad. 72 ; 49 L. T. 403 ; 
 
 31 W. E. 892 ; 63 L. J. Ad. 69 ; 51 L. T. 183 ; 5 Asp. M. C. 274 30 
 
 Winter v. Mair, 3 Taun. 531 121 
 
 Wise V. G. W. Ery. Co., 25 L. J. Ex. 258 ; 1 H. & N. 63 110 
 
 Wiseman v. Vaudeputt, 2 Vern. 203 606 
 
 Witt, Ee, Shubrook, Ex parte, 2 Ch. D. 489 ; 45 L. J. Bk. 118 ; 34 L. T. 
 
 786 ; 24 W. E. 891 192 
 
 Wobum Abbey, The, 20 L. T. 621 ; 38 L. J. Ad. 28 31 
 
 Wood V. Allen 141a 
 
 Wood V. Bell, 6 E. & B. 355 ; 25 L. J. Q. B. 321 ; 26 L. J. Q. B. 148 ; 2 
 
 Jur. N. S. 664 728 
 
 Wood V. Keyser, 84 Fed. Eep. 688 ; 87 Fed. Eep. 1007 612a, 613 
 
 Woodgeri;. G. W. Ey. Co., L. E. 2 C. P. 318; 36 L. J. C. P. 177; 15 
 
 L. T. 579 ; 15 W. E. 383 724 
 
 Woodley v. Michell, 11 Q. B. D. 47 ; 62 L. J. Q. B. 325 ; 48 L. T. 599 ; 
 
 31W.E.661; 5Asp.M.C.71 86,88 
 
 Woodrop Sims, The, 2 Dods. 83 704 
 
 Woods V. Jones, 7 D. & E. 126 527 
 
 Woolley V. Eeddelien, 12 L. J. C. P. 152 '. 7 Jur. 930 ; 5 M. & G. 316 ; 6 
 
 Soott, N. E, 199 224 
 
 Wordsworth, The, 88 Fed. Eep. 313 372 
 
 Worms V. Story, 25 L. J. Ex. 1; 11 Ex. 427 289, 302 
 
 Wright V. CampbeU, 4 Burr. 2046 ; 1 W. Bl. 628 638 
 
 Wright V. Marwood, 7 Q. B. D. 62 ; 60 L. J. Q. B. 643 ; 46 L. T. 297 ; 29 
 
 W: E. 673 ; 4 Asp. M. C. 451 15, 364, 379, 381 
 
 Wright V. New Zealand Shipping Co., 4 Ex. D. 165 ; 40 L. T. 413 . . 462, 615, 
 
 617, 618, 619 
 
 Wright V. Snell, 5 B. & A. 360 , 654 
 
 Wyld ». Pickford, 8 M. & W. 443 4, 67, 103 
 
 Wyllie V. Harrison, 13 Sess. Ca. (4th) 92 ; 23 Sc. L. E. 62 614a, 619a 
 
 Wynne v. Callander, 1 Euss. 293 214 
 
 Wynne v. FeUowes, Shower, 334 612 
 
 X, 
 
 Xantho, 12 A. C. 503 ; 11 P. D. 170 ; 66 L. J. Adm. 116 ; 55 L. T. 203 ; 
 35W.E. 23 78,86,87,88 
 
Ixviii TABLE OF CASES CITED. 
 
 T. 
 
 SECT. 
 
 Tan Yean, The, 8 P. D. W ; 52 L. J. Ad. 67 ; 49 L. T. 186 ; 31 W. E. 
 
 950; 5 Asp. M. C. 135 333, 346 
 
 Tates V. DufE, 5 C. & P. 369 51 
 
 Yates V. Mennell, 2 Moo. 297 ; 8 Taun. 302 655 
 
 Yates V. Whyte, 4 Bing. N. 0. 272 ; 6 Scott, 640 730 
 
 Yorke v. Greenaugli, 2 Ld. Eaym. 886 653 
 
 Young V. Canning Jarrali Timber Co., 4 Com. Ca. 96 579 
 
 Young V. Eitohen, 3 Ex. D. 127 ; 47 L. J. Ex. 579 ; 26 W. E,. 403 686 
 
 Young V. Mbller (see MoUer v. Young) . 
 
 Young V. Turing, 2 M. & G. 593 303 
 
 Z. 
 
 Zanzibar, The, (1892) P. 233 ; 61 L. J. P. 81 26 
 
 Zephyr, The, 2 Hagg. 43 335 
 
 Zephyr, The, 11 L. T. 351 ; 12 W. R. 890 684 
 
 Zephyrus, The, 1. W Bob. 329 331 
 
 Zeta, The, L. E,. 4 A. & E. 460 ; 44 L. J. Ad. 22 ; 33 L. T. 477 ; 24 "W. E. 
 
 180 356 
 
 Zeta, The (Mersey D. & H. B. v. Turner), (1893) A. C. 468 ; 63 L. J. P. 17'; 
 
 69 L. T. 630 '. 693 
 
 Zens, The, 13 P. D. 188; 59 L. T. 344; 37 W. E. 127; 6 Asp. M. C. 312.. 695 
 
 Zipsey v. Hill, 1 F. & E. 570 273 
 
 Zollverein, The, Swab. 96 ; 2 Jur. N. S. 429 709 
 
 Zunz V. S. E. Ey. Co., L. E. 4 Q. B. 539 ; 38 L. J. Q. B. 209 ; 20 L. T. 
 
 873 ; S. C. nom. Turner ». S. E. Ey. Co., 17 W. E. 1096 ; 10 B. & S. 594. . 107 
 Zwilohenbart v. Henderson, 22 L. J. Ex. 234 ; 9 Ex. 722 158, 599 
 
( Ixix ) 
 
 TABLE OF STATUTES CITED. 
 
 SECT. 
 
 3 Edw. I. c. 4 - - 355 
 
 15 Eich. n. c. 5- - - - 698 
 
 2 Geo. n. c. 22, s. 13 - 589 
 
 7 Geo. n. c. 15 - - - - 25 
 
 8 Geo. II. c. 24 - - - 589 
 19 Geo. ir. 0. 22, s. 3 (The Harbours Act, 1745) - - 360 
 26 Geo. ni. c. 86, s. 1 ... 25 
 
 s. 2 - - - 24 
 
 53 Geo. ni. c. 159, ss. 1, 2 (The Harbour Act, 1814) 25 
 
 4 Geo. IV. c. 83 (Factors Act, 1824) - 504 
 6 Geo. IV. c. 94 (Factors Act, 1826) .- - 504 
 
 c. 125, s. 59 - - - - 30 
 
 11 Geo. rV. & 1 WiU. rV. c. 68 (Carriers Act, 1830) 29 
 
 s. 1 - - - - 76 
 
 3 & 4 Vict. 0. 65 (Admiralty Court Jurisdiction Act, 1840) - 699, 700 
 
 s. 6 - - - - - - - 698 
 
 5 & 6 Vict. 0. 39 (Factors Act, 1842) - - - - 504 
 10 & 11 Vict. c. 27, ss. 33, 83 (Harbour, &o. Clauses Act, 1847) 464 
 
 s. 56 - - - - 360 
 
 13 & 14 Vict. c. 21, s. 4 - - - - - 571a 
 0. 26 (Destruction of Piratical Ships and Vessels Act, 
 
 1850) 332 
 
 16 & 17 Vict. c. 107 (Customs and Navigation Laws Act, 1853), 
 
 88. 170—172 - - 282 
 
 17 & 18 Vict. c. 31 (EaUway and Canal Traffic Act, 1854), s. 7 29, 
 
 101, 108, 110 
 
 c. 104 (Merchant Shipping Act, 1854), 
 
 88. 458, 459- - - - - 329, 330 
 
 8. 503 - - 24 
 
 ss. 504, 505 - - - - - 25, 26 
 
 c. 120 (Merchant Shipping Eepeal Act, 1854)- - 25 
 
 18 & 19 Vict. c. Ill (Bills of Lading Act, 1855), 
 
 ss. 1, 2 - - - 56, 62, 65, 66, 107, 152, 
 
 532, 602, 603, 605, 606, 638, 639, 663 
 
 8. 3 - ... - 70 
 
 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act, 1856), s. 5 525 
 
Ixx TABLE OF STATUTES CITED. 
 
 BBOT. 
 
 20 & 21 Viot. c. oxlvii. (Thames Conservancy Act) - - 359 
 
 24 Viot. 0. 10 (Admiralty Court Act, 1861) - - - 691 
 
 s. 2 685 
 
 S.5 701 
 
 s. 6 - - 685—691, 696, 699 
 B.l- - - - 698, 706 
 
 s. 9 .... - 329 
 
 s. 10 - - 699 
 
 s. 35 685, 696 
 
 25 & 26 Vict. c. 63 (Merchant Shipping Act Amendment Act, 1862), 
 
 s. 54 - - - - 26, 709 
 
 ss. 67, 58 - - - - - 709 
 
 s. 59 - - - - 329 
 
 ss. 66—78 475—482, 603 
 
 s. 68 - - - - 603 
 
 26 & 27 Vict. c. 92 (Eailways Clauses Act, 1863), s. 31 - 29, 108 
 
 27 & 28 Vict. c. 25 (Naval Prize of War Act, 1864), 
 
 ss. 40, 41 - - - - - 332 
 
 s. 45 . . - . . 392 
 
 31 & 32 Vict. c. 71 (County Courts Admiralty Jurisdiction Act, 
 
 1868) - - - 692, 693, 699 
 
 s. 3 - - - - - - 692, 706 
 
 c. 119 (Eegulation of Eailways Act, 1868), s. 16 - 29, 108 
 
 32 & 33 Viot. c. 51 (County Courts Admiralty Jurisdiction Act, 
 
 1869), 8. 2 - 122, 692—695, 699, 706 
 
 ss. 3, 4 - - 692 
 
 34 & 35 Vict. c. 78 (Eegulation of Eailways Act, 1871), s. 12 - 28, 29, 108 
 
 c. 105 (Petroleum Act, 1871) - - 280 
 
 36 & 37 Viot. c. 66 (Judicature Act, 1873), 
 
 e. 24 - 589, 591 
 
 8. 25 - 586, 597, 704 
 
 8. 25 (b) - 697 
 
 88. 16, 34 - . 684 
 
 s. 38 - 692 
 
 39 & 40 Vict. c. 36 (Customs Laws ConsoKdation Act, 1876), 
 
 ss. 39, 99 - - . . 461 
 
 88. 127—133 - - - - 284 
 
 40 & 41 Vict. c. 39 (Factors Act, 1877) - - - . 504' 
 42 & 43 Vict. c. 47 (Petroleum Act, 1879) . . 280 
 49 & 50 Viot. 0. 38 (Eiot (Damages) Act, 1886) - . 357 
 
 51 & 52 Vict. c. 25 (Eailway and Canal TraflSc Act, 1888) 29 107 
 
 «-40 '55 
 
 52 & 53 Vict. c. 45 (Factors Act, 1889) - - . 504 535 535 
 
 c. 63 (Interpretation Act, 1889), s. 38 - . . 28 
 54 & 65 Viot. c. 39 (Stamp Act, 1891), 
 
 88. 2, 14, 15, 49, 50, 61 - - . . 120 
 
 8.40 - . - - - 65 
 
TABLE OF STATUTES CITED. Ixxi 
 
 56 & 57 Vict. c. 
 
 71 (Sale of Goods Act, 1893), 
 
 SECT. 
 
 
 SB. 18, 19 - - - - 488 
 
 , 492, 536 
 
 
 s. 25 - - - - 
 
 504, 536 
 
 
 ss. 39, 44 
 
 - 506 
 
 
 s. 45 
 
 523a 
 
 
 s. 46 
 
 530a 
 
 
 s. 47 504, 532, 536, 
 
 540, 541 
 
 
 s. 48 - ... 
 
 507 
 
 
 8. 62 
 
 - 536 
 
 57 & 58 Vict. c. 
 
 60 (Merchant Shipping Act, 1894), 
 
 
 
 s. 13 - - - 
 
 30 
 
 
 s. 24 - 
 
 - 40 
 
 
 s. 26 - 
 
 - 591 
 
 
 s. 33 - 
 
 - 594 
 
 
 s. 56 - 
 
 - 691 
 
 
 s. 167 
 
 698, 699 
 
 , 
 
 s. 422 - 
 
 - 335 
 
 
 s. 434 - - - 
 
 - 334 
 
 
 s. 451 - 
 
 282 
 
 
 ss. 452, 453, 454, 456 
 
 - 283 
 
 
 ss. 492—501 
 
 475 
 
 
 s. 502 
 
 24, 83 
 
 
 s. 503 - - 
 
 26, 709 
 
 
 s. 503a 
 
 27 
 
 
 s. 604 - 
 
 , 24, 27 
 
 
 s. 508 
 
 26 
 
 
 ss. 510j 511, 518, 519, 521, 522, 525, 566 
 
 366 
 
 
 ss. 515—527 
 
 - 357 
 
 
 s. 521 - ... 
 
 - 358 
 
 
 ss. 530—534 
 
 360 
 
 
 s. 544 
 
 - 352 
 
 
 ss. 544-546 
 
 329, 330 
 
 
 s. 557 
 
 332, 335 
 
 
 ss. 603—605, 622, 625 
 
 - 30 
 
 
 s. 688 - 
 
 - 708 
 
 
 s. 742 - - 
 
 704 
 
 60 & 61 Vict. c. 
 
 61 (Exemption from Pilotage Act, 1897) 
 
 - 30 
 
 61 & 62 Vict. c. 
 
 14 (Merchant Shipping Act, 1898) 
 
 - 24 
 
CAEEIAGE BY SEA. 
 
 Part I. 
 
 THE CONTRACT. 
 
 CHAPTER I. 
 
 RESPONSIBILITY OP CAEEIEES BY SEA AT COHMON LAW, AND 
 
 BY STATUTE. 
 
 SECT. 
 
 Introductory 1 
 
 The liability of public carriers at 
 
 common la'w 2 
 
 Application to carriers by water . . 3 
 
 Common carriers ' 4 
 
 Application to a ship employed by 
 
 one freighter 5 
 
 Passengers' luggage 6 
 
 Meaning of "act of God" 7 
 
 Independent of human action , . . , 8 
 
 Beyond control 9 
 
 Are all causes, not human, covered? 10 
 
 " Queen's enemies "■ — Foreign ship 11 
 Carrier not liable for the results of 
 
 inherent defects 12 
 
 Unless caused by him 13 
 
 Nor for the result of defective pack- 
 ing, unless he had notice 14 
 
 Shipowner not liable for jettison, &o. 1 5 
 Exceptions do not excuse where the 
 carrier has been negligent, or has 
 
 deviated 16 
 
 Nor if ship's unseaworthiness on 
 
 sailing caused the loss 17 
 
 Meaning of seaworthiness 18 
 
 Deck cargo 19 
 
 Fitness for special cargo 19a 
 
 Voyage in stages 19b 
 
 The ship must be fit to receive the 
 
 cargo 20 
 
 The ship must be seaworthy on sail- 
 ing — QM«?'e,astospecialapparatus 21 
 Summary of the common law rules 22 
 Illegality of contract, or of perform- 
 ance — Acts of foreign govern- 
 ments 23 
 
 Exemptions by Statute. 
 
 Eire, &0.—M. S. Act, 1894, s. 502.. 24 
 Limitation of totalliability — Former 
 
 Acts 25 
 
 M. S. Act, 1894, s. 603 26 
 
 Proceedings for limitation 27 
 
 Application to railway company . . 28 
 Other exemptions of railway com- 
 panies 29 
 
 Compulsory pilotage 30 
 
 Exemption in respect of pilot's acts 
 
 — Foreign ports 31 
 
 Duties of pilot and master 32 
 
 1. As a preliminary to the discussion of contracts made for the 
 carriage of goods by sea, arises the question — What are the 
 obligations which a shipowner impliedly undertakes, apart from 
 any express contract, when he receives goods, to carry them for a 
 reward ? An express contract modifies those obligations ; but in 
 
 * C. — C. K 
 
THE CONTRACT. 
 
 Sect. 1. 
 
 The liability 
 of public 
 carriers at 
 common law. 
 
 order to apprehend its effect we ought first to understand the 
 fundamental relations between the shipper and the shipowner 
 which underlie it, and which are modified by it. 
 
 The manner in which a shipowner must perform his undertaking 
 to carry goods which have been shipped without express stipulations 
 being made will be shown more conveniently hereafter, in treating 
 of the performance of contracts of carriage. But the degree of 
 responsibility which he impliedly undertakes will form the subject 
 of this chapter. The matter depends partly upon statutes, but, for 
 the most part, the rules are rules of the common law, and must be 
 gathered from the eases decided in the Courts. 
 
 2, The common law, with regard to the liability of a public 
 carrier of goods, is strict. Apart from express contract he is, with 
 certain exceptions, absolutely responsible for the safety of the 
 goods while they remain in his hands as carrier. 
 
 The rule and the reason for it were first definitely given in their 
 modern shape by Lord Holt, in his celebrated judgment in Coggs 
 V. Bernard (a). " As to the fifth sort of bailment, viz., a delivery 
 to carry or otherwise manage, for a reward to be paid to the bailee, 
 those cases are of two sorts : either a delivery to one that exercises 
 a public employment, or a delivery to a private person. First, if 
 it be to a person of the first sort, and he is to have a reward, he is 
 bound to answer for the goods at all events. And this is the case 
 of the common carrier, common hoyman, master of a ship, &c. : 
 which case of a master of a ship was first adjudged, 26 Car. 2, in 
 the case of Morse v. Slue, Eaym. 220 ; 1 Yent. 190, 238. The law 
 charges this person thus entrusted to carry goods against all events 
 but acts of Grod, and of the enemies of the king. For though the 
 force be never so great, as if an irresistible multitude of people 
 should rob him, nevertheless he is chargeable. And this is a politic 
 establishment, contrived by the policy of the law, for the safety of 
 all persons, the necessity of whose affairs oblige them to trust these 
 sorts of persons, that they may be safe in their ways of dealing ; 
 for else these carriers might have an opportunity of undoing all 
 persons that had any dealings with them, by combining with 
 thieves, &o., and yet doing it in such a clandestine manner as 
 would not be possible to be discovered." 
 
 The same reason was given by Lord Mansfield in Forward v. 
 
 («) 2 Ld. Eaym. 909 ; 1 Smith's L, C, (8th) 199. at p. 213 : a.d. 1703. 
 
RESPONSIBILITY OF CARRIERS BY SEA AT LiW. 
 
 Pittard (b). " To prevent litigation, collusion, and the necessity of ^^°*- ^- 
 going into circumstances impossible to be unravelled, the law pre- 
 sumes against the carrier, unless he shows it was done by the king's 
 enemies, or by such act as could not happen hy the intervention of 
 man, as storms, lightning, and tempests. If an armed force come 
 to roh the carrier of the goods, he is liable ; and a reason is given 
 in the hooks, which is a had one, viz., that he ought to have a 
 sufficient force to repel it : hut that would he impossible in some 
 cases, as, for instance, in the riots in the year 1780. The true 
 reason is, for fear it may give room for collusion, that the master 
 may contrive to he rohhed on purpose, and share the spoil." 
 
 And more recently. Best, 0. J., delivering the judgment of the 
 Common Pleas in Riley v. Home (c), said : — " When goods are 
 delivered to a carrier, they are usually no longer under the eye of 
 the owner ; he seldom follows or sends any servant with them to 
 the place of their destination. If they should be lost or injured by 
 the grossest negligence of the carrier or his servants, or stolen by 
 them, or by thieves in collusion with them, the owner would be 
 unable to prove either of these causes of loss ; his witnesses must 
 be the carrier's servants, and they, knowing that they could not be 
 contradicted, would excuse their masters and themselves. To give 
 due security to property, the law has added to that responsibility of 
 a carrier, which immediately rises out of his contract to carry for a 
 reward, namely, that of taking all reasonable care of it, the respon- 
 sibility of an insurer. From his liability as an insurer, the carrier 
 is only to be relieved by two things, both so well known to all the 
 country when they happen, that no person would be so rash as to 
 attempt to prove that they had happened when they had not — 
 namely, the act of God and the king's enemies." 
 
 If the carrier is not to receive a reward, however, he comes under 
 Lord Holt's sixth form of bailment, and is only liable for losses 
 or damage which may happen through want of careful management 
 jDn his part (d). 
 
 3. The rule of liability thus laid down applies not only to AppHcation 
 carriers by land, but also to public carriers by water within the water!^^^'^^ ^ 
 kingdom, such as hoymen, and carriers by canal (e). 
 
 {b) 1 T. R. 27, at p. 33 : a.d. 1785. (e) Eicli v. Eneeland, Cro. Jao. 330 ; 
 
 (c) 5 Bing. 217, p. 220 : A.n. 1828. Hob. 17 ; Trent Navigation v. "Wood, 3 
 
 (i) Coggs V. Bernard, 1 Smith's L. C. Esp. 127 ; 4 Doug. 287. So as to a 
 
 •199, p. 214. ferryman, Southoote's Case, 4 Co. Eep. 
 
 b2 
 
4 THE CONTRACT, 
 
 ^^°^- ^- Also to sliips wMoh carry for the public generally, whether on 
 coasting voyages or on voyages to foreign ports (/) . 
 
 That was decided in the year 1671, in Morse v. Slue (g') , referred 
 to by Lord Holt in Coggs v. Bernard. In that case goods had 
 been shipped on board a vessel lying in the Thames to be carried 
 to Cadiz, and had been forcibly taken out of her by robbers before 
 she sailed. It was held that the master was liable for them, though 
 there had been no negligence on his part, and he had the usual 
 number of men to guard the ship. Hale, C. J., gave judgment on 
 the grounds that the master might have protected himself, " which 
 he omitting, and taking in' the goods generally, he shall answer for 
 what happens ;" and that " he that would take ofi the master in 
 this case from the action must assign a difference between it and 
 the case of a hoyman, common carrier, or innholder." 
 
 The objection was there raised that the matter ought to be 
 determined in accordance with the Admiralty civil law, since the 
 vessel was bound beyond the sea, and that by that law the master 
 would not be liable ; but this was met by the observation that the 
 ship was within the body of the county when the loss took place. 
 Probably no difficulty on this score would be recognized at the 
 present day. " There is no ground on which to imply a different 
 extent of undertaking in the same contract for the carriage which 
 is beyond the realm from that which is within it. On principle, 
 therefore, the same promise should be implied for the whole 
 carriage, whether the whole be within the realm, or part be within 
 and part without" (h). 
 
 In Barclay v. CucuUa y Grana (i), the facts were similar to those 
 of Morse v. Slue; and Lord Mansfield held the carrier liable, 
 saying, " It is impossible to distinguish this from the case of a 
 common carrier." 
 
 Common 4. The rule thus laid down with regard to masters of ships was 
 
 mdependent of any view that they were common carriers ; indeed, 
 
 83 b ; story, BaU. b. 496 ; Aug. Oarr. 2 ; Nugent v. Smith, 1 C. P. D. 19, 423 ; 
 
 B. 82; of. "Walker v. Jackson, 10 M. & Hill v. Scott, (1895) 2 Q. B. 371,'713 ;' 
 
 W. 161. Where the owner travels with EUiott v. RosseU, 10 Johns. 1 (N. T.) ' 
 
 the goods, see a. W. RaU. Co. ». Bunch, Gage v. TirreU, 9 AUen, 299 (Mass 1 " ' 
 13 A. C. 31 ; Bergheim v. G. E. RaU. , , ,^ , K ■!■ 
 
 Co., 3 C. P. D. 221 ; WiUoughby v. ^^ ^ ^^°*- ^^°' ^^^' ^ ^^T- 69- 
 
 Horridge, 12 C. B. 742. (h) Per Brett, J., in Nugent v. Smith, 
 
 (/) Morse v. Slue, 1 Vent. 190, 238 ; 1 C. P. D. 19, p. 24 ; EUiott v. RosseU, 
 
 2 Lev. 69 ; Dale v. HaU, 1 WUs. 282 ; 10 Johns. 1 (N. T.). See Benett v. P. & 
 
 Barclay v. CucnUa y Gana, 3 Doug, 0. Steam Nav. Co., 18 L. J. C. P. 85. 
 389 ; Laveroni v. Drury, 22 L. J., Ex. (i) 3 Doug. 389 : a.d. 1784. ' 
 
RESPONSIBILITY OF CAEEIEES BY SEA AT LAW. O 
 
 Lord Holt distinguished them from oommon carriers, though he Sect. 4. 
 classed them among persons exercising a puhlio employment. The 
 strict rule applied because their case was not distinguishable from 
 that of common carriers. Whether a shipowner is, in any particular 
 case, to be regarded as a common carrier or not, is, in the light of 
 recent discussion, likely to be a difficult question. 
 
 A common carrier is one who is engaged in the trade of carrying 
 goods as a regular business, and who holds himself out as ready to 
 carry for any who may wish to employ him. Whether it is 
 necessary that he should ply regularly between fixed places seems 
 'to be doubtful {k). Also, it is doubtful whether it is sufficient 
 that he should habitually carry for the public, though for one only 
 at a time ; or whether he must on each occasion offer to take for 
 all members of the public indiSerently (l). 
 
 A common carrier who plies regularly between fixed places, and 
 carries for people indifferently, is bound to take any goods brought 
 to him, by whomsoever, if he has room for them, and they are 
 suitable (m). Also, he must charge only at a reasonable rate for 
 carrying them (n),and must impose no unreasonable conditions (o). 
 And this holds good, although one terminus of the journey upon 
 which he professes to caiTy may be beyond the realm (p). And, 
 perhaps, the same is true where a ship is announced as a general 
 ship, although she may be engaged on an occasional voyage only, 
 and not on one of a series of regular sailings (q). 
 
 5. In Morse v. Slue, the ship was apparently employed as a Applioaf oa 
 general ship (r). In Dale v. Hall (s), the same rule of liability employed ty 
 was applied in an action for damage to the goods on the voyage, o^^ freighter. 
 
 (k) Cf. the judgments of Cookburn, advance, per Parke, B., in Wyld v. 
 
 C. J., and Brett, J., in Nugent v. Smith, Piokford, 8 M. & W. 443, p. 458 ; and 
 
 1 C. P. D. 19, 423 ; Liver Alkali Co. v. he is not bound to charge aU equally, 
 
 Johnson, L. K., 7 Ex. 267 ; 9 Ex. 338. per Willes, J., in Branley v. S. E. EaU. 
 
 See Parsons' Shipping, ch. vii. Co., 31 L. J., C. P. 286, p. 290. 
 
 (l) Cf. Liver Alkali Co. v. Johnson, (o) Garton v. Bristol and Exeter Eail. 
 
 supra; Scaife v. Farrant, L. R., 10 Ex. Co., 30 L. J., Q. B. 273. 
 
 358 ; Brind v. Dale, 2 Mood. & Eob. 80 ; {p) Crouch v. L. & N. W. Eail. Co., 
 
 Nugent V. Smith, 1 C. P. D. at p. 27. 23 L. J., C. P. 73 ; Benett v. P. & 0. 
 
 {)») Eiley v. Home, 5 Bing. 217, Co., 18 L. J., C. P. 85. 
 
 p. 220; Per Parke, B., in Johnson v. (?) Per Brett, J., Nugent v. Smith, 1 
 
 Mid. Eail. Co., 18 L. J., Ex. 366, C. P. D. 19, p. 28. 
 
 p. 369. See, as to railway companies, (r) See per Cockbum, C. J., Nugent 
 
 Dickson v. Gt. N. Eail. Co., 18 Q. B. D. v. Smith, 1 C. P. D. 423, p. 430. There 
 
 176. was no charter-party : see argument 
 
 («) Hairia v. Packwood, 3 Taunt. 264, reported 3 Keb. 113. 
 
 p. 272. He can require payment in («) 1 Wils. 281 : a.d. 1750. 
 
THE CONTEACT. 
 
 Sect. 5. brought against " a shipmaster or keelman who carried goods for 
 
 ' hire from port to port." It does not appear whether he carried 
 
 for other persons as well as for the plaintiff. But in none of the 
 
 cases was any distinction drawn between the rule as to general and 
 
 as to chartered ships. 
 
 And in Liver Alkali Co. v. Johnson («!), it was held, in the 
 Exchequer Chamber, that the same strict rule applied to the case 
 of a vessel used exclusively for the purposes of one person, who 
 engaged her services for the voyage. 
 
 The defendant was the owner of a number of flats, and made it 
 his business to send them out under the care of his servants to carry 
 cargoes to or from places in the Mersey. He carried for anyone 
 who chose to employ him, but always for one person only at a 
 time, and an express agreement was made as to each voyage or 
 employment of a flat. " "We think," said Blackburn, J., " that 
 this describes the ordinary employment of a lighterman («), and 
 that both on authority and principle a person who exercises this 
 business and employment does, in the absence of something to 
 limit his liability, i)icur the liability of a common carrier in respect 
 of the goods he carries." This judgment was advisedly worded in 
 this manner, because the learned judge, and those whose opinions 
 he expressed, considered it unnecessary to decide whether the defen- 
 dant was " a carrier, so as to be liable to an action for not taking 
 goods tendered to him." 
 
 Brett, J., however, while agreeing in the decision, expressly 
 did so notwithstanding that he considered the defendant not to be 
 a common carrier, and he laid down the following general pro- 
 position : — " I think that by a recognised custom of England, a 
 custom adopted and recognized by the Courts in precisely the 
 same manner as the custom of England with regard to common 
 carriers has been adopted and recognized by them, every shipowner 
 loho carries goods for hire in his ship, whether by inland navigation, 
 or coastways, or abroad, undertakes to carry them at his own 
 
 {t) L. R., 7 Ex. 267 ; 9 Ex. 338. See risk or Hability to the owner of tte craft 
 
 Lyon V. Mells, 5 East, 428. Of. Scaife in respect of the carriage of the goods." 
 
 v. Earrant, L. E., 10 Ex. 358. In Tamvaco v. Timothy, 1 0. & E. 1, 
 
 (««) On the Thames lighters are hired Cave, J., left it to the jury to say 
 •with, or without, "risk of craft," at whether the defendants, who were em- 
 different rates. In "Webster v. Bond, 1 ployed to unload and warehouse a cargo, 
 C. & E. 338, "Mathew, J., held that the had undertaken the liability of common 
 latter mode of hiring meant "without carriers. 
 
K-tiiSJ:-UJNiSlJilljlT]£ Ui' (JAKKIEKS BY SEA AT LAW. 
 
 absolute risk, the act of God or of the Queen's enemies alone Sect. 3. 
 excepted, unless by agreement between himself and a particular 
 freighter, on a particular voyage, or on particular voyages, he 
 limits his Kability by further exceptions." 
 
 The same judge reiterated this view when delivering the judg- 
 ment of himself and Denman, J., in Nugent ». Smith. And he 
 there traced the rule to the Eoman law, which he ascribed as 
 the origin of our law of bailment. This theory and the general 
 doctrine based upon it were, however, strongly dissented from by 
 Cockburn, C. J., in the Court of Appeal ; who pointed out that the 
 Eoman law made no distinction between what we term the " act 
 of Grod " and inevitable accident arising from other causes, but 
 exempted the carrier whenever the loss resulted from unforeseen 
 and unavoidable accident ; and that " as matter of legal history we 
 know that the more rigorous law of later times, first introduced 
 during the reign of Elizabeth, was, in the first instance, estabhshed 
 with reference to carriers by land, to whom by the Eoman law no 
 such liability attached " (»). 
 
 The point did not, however, require to be decided in that case, 
 as it was on all hands agreed that the shipowner there was a 
 common carrier ; and no opinions upon it were given by the 
 other members of the Court of Appeal. The reasoning of the 
 Chief Justice does not seem to destroy the effect of the decision in 
 Liver Alkali Co. v. Johnson. 
 
 As a matter of priuciple, it is difficult to find a valid distinction 
 between cases in which a ship is used to convey the goods of one 
 person, and of several persons. Where the ship herself is let to 
 a charterer, so that he takes over the charge and control of her, the 
 case is different ; the shipowner is not then a carrier. But where 
 her services only are let, the same grounds for imposing a strict 
 
 («) Nugent V. Smith, 1 0. P. D. 19, eludes ttat the modem rule is a " frag- 
 423. See the history of the law on this mentary survival" of that early law, 
 suhjeot discussed in Holmes' Common " and that the modifications which the 
 Law, Leot. V. ; where the author traces old law has undergone were due in part 
 the origin of the modem Uability of to a confusion of ideas which came in 
 carriers back through Southcote's Case -with the displacement of detinue hy the 
 {i Co. Eep. 83 b ; Cro. EUz. 815), and action on the case, in part to oonoep- 
 cases in the Tear Books, to the strict rule tions of public policy which were read 
 of responsibilty for losses by robbery into the precedents by Lord Holt, and 
 imposed on bailees in early English in part to still later conceptions of policy 
 law ; a responsibility which was inde- which have been read into the reason- 
 pendent of rewards, and of any idea of ings of Lord Holt by later judges." 
 public employment. The author con- 
 
THE CONTKACT, 
 
 Sect. 5. responsibility on the shipowner exist, whether he is employed by 
 one or by many. The master and crew are in each case his 
 servants : the freighter in each case is usually without any repre- 
 sentative on board the ship ; the same opportunities for fraud or 
 coUusion occur ; and the same diflSeulty in discovering the truth as 
 to what has taken place arises. Whether the rule of law is wise, 
 or not, it appears to apply as properly to the one class of cases as 
 to the other (y). 
 
 6. Groods carried as the personal luggage of a passenger are, it 
 seems, in the same category as goods carried independently of any 
 passenger. The carrier undertakes the full liability of a common 
 carrier (s). It was formerly held in the Court of Appeal that the 
 same rule does not apply where the goods have been under the 
 passenger's own control, as where they have been taken with him 
 in a railway carriage ; and that the carrier is then only liable for 
 loss or injury caused by his negligence {a). But this view was dis- 
 sented from in the House of Lords in G. W. Rail. Co. v. Bunch (6), 
 and the rule now seems to be that the passenger's interference 
 with the exclusive control of the goods only modifies the liability 
 of the carrier to the extent that he is relieved from responsi- 
 bility for losses which happen owing to the passenger's own want 
 of care. 
 
 Where goods are taken with a passenger as his personal luggage, 
 the carrier is not generally liable for them as a common carrier 
 unless they are of that character (c). 
 
 ^aot^God." ''• ^^® ^'^^^ °^ *^^ exceptions to the strict rule of the common 
 law is, that the shipowner is not responsible for losses or damage 
 
 (y) As to the rule abroad, see per G. W. Rail. Co., L. R., 6 Q. B. 612; 
 
 Cookbum, C. J., 1 C. P, D. pp. 427-9. Brooke v. Pickwick, 4 Bing. 218 ; Ang! 
 
 In the U. S., see Lamb v. Parkman, 1 Carr. s. 108 et seq. Cf. Cutler v. N. L. 
 
 Sprague, 343, where Sprague, J., said RaU. Co., 19 Q. B. D. 64. 
 of owners of a ship under charter-party, («) Bergheim ■;;. G. E. Rail. Co., 3 
 
 "In no sense were they common car- C. P. D. 221; TaUey v. G. W. Rail, 
 
 riers, but baUees to transport for hire, Co., L. R., 6 C. P. 44. Cf. Le Couteur 
 
 and as such bound to the use of ordinary v. L. & S. W. Rail. Co. L. R. 1 
 
 skiUandcare" (p. 353). Also Gage «. Q. B. 54. ' ' ' 
 
 TiireU, 9 Allen, 299, p. 309 ; Story, (*) 13 A. C. 31, approving Richards 
 
 BaU. ss. 501, 604. But cf. per Kent, -o. L. B. & S. 0. RaU. Co., 7 C B 839 
 C. J., in Elliott V. RosseU, 10 Johns. 1 {c) Shepherd v. G. N RaU Co 21 
 
 (N. Y.), cited 1 C. P. D. p. 33. L. J., Ex. 286 ; Phelps v. L. & N ' W 
 
 Jz) G. W. Rail. Co. V. Bunch, 17 RaU. Co., 34 L. J., C. P. 259; Maorow 
 
 Q. B. D. 215 ; 13 A. 0. 31 ; Maorow v. v. G. W. RaU. Co., L. R., 6 Q B 612 
 
RESPONSIBILITY OF CAKEIEKS BY SEA AT LAW. S 
 
 resulting from " acts of Grod." The meaning of " act of Grod " Sect. 7. 
 in this relation has given rise to much discussion and difference of 
 opinion. The result of this seems to be, that to enable us to 
 describe a casualty as arising from an act of God it must have two 
 essential features. First, it must have occurred independently of 
 human action ; man must have been purely passive. Secondly, it 
 must have been an event which the shipowner could not have 
 avoided, or guarded against, by any means which he could reason- 
 ably be expected to use. 
 
 James, L. J., in Nugent v. Smith (d), gave the following defini- 
 tion : " The ' act of Grod ' is a mere short way of expressing this 
 proposition : — A common carrier is not liable for any accident as 
 to which he can show that it is due to natural causes, directly 
 and exclusively, without human intervention, and that it could not 
 have been prevented by any amount of foresight and pains and 
 care reasonably to be expected from him." 
 
 8. The condition that human action must not have contributed to independent 
 produce the result is illustrated by Forward i\ Pittard (e). A fire action"^ 
 had spread from a distance to the place in which the goods had 
 been deposited by the carrier, and had destroyed them. Lord 
 Mansfield said, " Now, what is the act of God ? I consider it to 
 mean something in opposition to the act of man ; for everything is 
 the act of God that happens by his permission, everything by his 
 
 knowledge In this case it does not appear but that 
 
 the fire arose from the act of some man or other. It certainly did 
 arise from some act of man, for it is expressly stated not to have 
 happened by lightning." 
 
 So an accident caused by some act done iu navigating the vessel 
 does not come withia the exception, though natural causes which 
 made the navigation perilous in an unusual manner may have 
 co-operated, and though all possible care was taken. For example, 
 where a vessel is steered on to a shoal owiag to a fog (/) ; or in 
 consequence of changes in the channel {g) ; or owing to a danger- 
 ous obstruction being exposed by an unusually low tide (A). 
 
 So where the vessel containing the goods was being towed, and 
 
 {d) 1 C. P. D. at p. 444. (5tli), 252; (11th), iv. 6, 1; Trent 
 
 (e) 1 T. B. 27. Navigation v. Wood, 3 Esp. 127. 
 
 (/) Liver Alkali Co. ». Johnson, (A) New Brunswick Steamboat Co. v. 
 
 L. E., 7 Ex. 267 ; L. R., 9 Ex. 338. Tiers, 4 Zabriskie, 697, cited in Ang. 
 
 (ff) Smith V. Shepherd, cited Abbott Carr, s. Ifi7. 
 
10 THE CONTKACT. 
 
 Sect. 8. was driven by the force of the sea on to the tug in consequence of 
 her stopping (properly) to make way for another vessel ; the proxi^- 
 mate cause heing the stopping of the tug, the damage was not due 
 to an act of God («'). And in an American case (/), a stranding, 
 which happened through a mistake made in taking a light upon 
 another stranded vessel to be a known beacon light, was held not 
 to be caused by an act of Grod; and evidence to show that the navi- 
 gation had been vigilant was held to be inadmissible. 
 
 Beyond 9_ ^y^ ££ ^\^q causes of the casualty are independent of man, it 
 
 is not necessary that they should be extraordinary, or such as could 
 not have been anticipated. Storms of wind, violence of the sea, 
 and lightning, are common, but their results may be within the 
 exception (k). A sudden gust of wind may suffice (l) ; so, also, 
 may a frost (m). 
 
 Nor is violence necessary. A sudden failure of the wind under 
 critical circumstances may be enough ; as where a ship is tackiug 
 near rocks (;*), or is under the influence of a current setting her on 
 to the shore. 
 
 What is needful is, that the causes of the event shall have been 
 so far beyond what could reasonably be foreseen (o), or, if they 
 might have been foreseen, shall have been so far irresistible, that 
 no foresight or endeavour of man, reasonably to be expected, 
 would have prevented their operation. 
 
 It is not enough for the shipowner to show that the loss arose 
 from natural, as distinguished from human, causes, and to leave it 
 
 (i) OaHey v. Portsmouth and Ryde of negligence imputable to the master, 
 United Steam Packet Co., 25 L. J., Ex. in sailing so near the shore under a 
 99. Cf. Dixon v. Metropolitan Board 'light variable -wind,' that a failure in 
 of Works, 7 Q. B. D. 418. coming about would cast him aground. 
 iJ) M'Arthur v. Sears, 21 Wend. 190, He ought to have exercised more cau- 
 stated in Ang. Carr. s. 197. tion, and guarded against such a pro- 
 {k) Nugent V. Smith, 1 C. P. D. 423. bahle event, in that case, as the want of 
 [t) Amies v. Stevens, 1 Str. 127. wind to bring his vessel about. A 
 ()») Aug. Carr. s. 160; Story, Bail. common carrier is only to be excused 
 ^- ^^^- from a loss happening in spite of all 
 (n) Colt V. M'Mechen, 6 Johns. 160, human effort and sagacity." The ma- 
 cited Ang. Carr. ». 155 ; Story, Bail. jority of the Court, however, thought 
 s. 523. Kent, C. J., in that case, said, that the verdict of the jury negativing 
 " I concur in the general doctrine that negligence should not be disturbed and 
 the sudden failure of the wind was an that the shipowner was exempted ' 
 act of God. It was an event which (o) Cf. Nichols v. Marslaud 2 Ex 
 could not happen by the intervention of D. 1 ; Nitro- Phosphate, &c Co v 
 man, nor be prevented by human pru- London & St. Katherine's Dock Co. 9 • 
 dence. But I think here was a degree Ch, D. 603. ' 
 
EESPONSIBILITY OF CAREIEES BY SEA AT LAW. 11 
 
 to the other side to show that there was some want of precaution Sect. 9. 
 or care on his part ; he must himself show affirmatively that the 
 causes were such that no reasonable amount of precaution and care 
 would have enabled him to avoid or guard against them (^j). 
 
 10. Whether all causes other than those attributable to human Aje all causes, 
 intervention are to be regarded as natural causes, within the rule, covered ? ' 
 seems to be somewhat uncertain. In Dale v. Hall (q), damage 
 occurred to goods by water, which got in through a leak made by 
 rats in the vessel. Evidence was given to show that all proper 
 efforts were made by the carrier to prevent the goods from being 
 damaged by the water, and the jury found in his favour ; but the 
 Court held that he was liable except for acts of God and king's 
 enemies, and that the evidence of carefulness was inadmissible ; a 
 new trial was granted. 
 
 That case, therefore, appears to show that the action of rats is 
 not one of those natural causes which may be acts of God. But 
 there is some doubt as to the effect of the decision. In Jones on 
 • Bailments (r), it was said that " the true reason of this decision is not 
 mentioned by the reporter ; it was, in fact, at least ordinary negli- 
 gence to let a rat do such mischief." And in Abbott on Ship- 
 ping (s), the case was treated by the author as an instance of the 
 principle that " the master and owners are held responsible for 
 every injury that might have been prevented by human foresight 
 or care." 
 
 In Williams v. Lloyd {t), it was held that a bailee of a horse 
 was excused from re-delivering it, when it had become sick and 
 died without any neglect on his part, on the ground that this 
 happened by the act of God. Oases of this kind are now gene- 
 rally excepted, as we shall shortly see, on the ground that the 
 loss is by a defect in the thing itself. But .such a case may fall 
 within the definition of "act of God," if the defect or disease 
 which has caused the loss has been in no way caused by acts of 
 man (m). 
 
 In Nugent v. Smith (»), a mare, shipped upon a voyage from 
 London to Aberdeen, received injuries in a storm and died. This 
 
 (p) See The Majestic, 166 U. S. 375. (*) W. Jones, Eep. 179. 
 
 ■„r.i „„, .Bc/, («) In Warden v. Grreer, 6 Watts, 
 
 o) 1 Wils. 281 : A.D. 1750. .„, , j: , . . , , 
 
 y" 424, a loss ot molasses irom barrels by 
 
 ■ ()•) Page 105 : publisKbd a.d. 1781. fermentation and expansion was said to 
 
 (s) 5th, p. 244; (11th), iv. 5, 4. be a loss by an" act of &od." 
 
 Cf. LaYeroni v. Drury, 22 L. J., Ex. 2.' • (i>) 1 0. P.' D. 19 ; 423. 
 
12 THE CONTRACT. 
 
 Sect. 10. was due partly to the unusTially bad weather, and partly to the 
 struggles of the mare in her fright. The jury negatived any 
 negligence ; but on being asked whether there were any known 
 means, though not ordinarily used by people of ordinary care and 
 skill, by which the injury might have been prevented, they were 
 unable to answer. It was held by the Court of Appeal, reversing 
 the judgment of the Common Pleas Division, that the carriers were 
 not liable. 
 
 Mellish, L. J. (x), said, " It being a clear rule of law, that if the 
 loss of the goods carried is occasioned by an irresistible act of 
 nature, the carrier is protected ; and another clear rule of law, that 
 if the loss of the goods is solely occasioned by a defect in the thing 
 itself, the carrier is also protected ; it seems to me to follow that, if 
 the loss is occasioned partly by an act of nature, although one not 
 by itself irresistible, and partly by a defect in the thing itself, 
 although that defect is not the sole cause of the loss, and the 
 carrier has no means of preventing the combined effect of the two 
 causes, he ought to be held protected. The principle seems to me 
 to be that a carrier does not insure against acts of nature, and does 
 not insure against defects in the thing carried itself ; but in order 
 to make out a defence, the carrier must be able to prove that either 
 cause taken separately, or both taken together, formed the sole 
 and direct and irresistible cause of the loss. I think, however, 
 that in order to prove that 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 sufBcient to prove that by no 
 reasonable precaution under the circumstances could it have been 
 prevented." 
 
 Queen's H- The next exception, that of " Queen's enemies," relates to 
 
 acts done by states or peoples with which the Sovereign may be at 
 war, at any time during the carriage of the goods. It does not 
 include robbers on land ; but has been said to include pirates, or 
 robbers on the high seas, as being enemies of all nations (y). 
 
 The shipowner is bound to be careful to avoid the acts of such 
 enemies; but where he has been so, he is not liable for losses 
 
 {x) At p. 441. The exception "king's enemies," ap- 
 
 {y) Ang. Carr. o. 200; Story, Bail. P®'"'^ *° ^*^'« '^^^^ ™a,^e, oiiginaUy, 
 
 s. 526. But see per Byles, J., in Eus- ^'^''^"^e the bailee who had lost the 
 
 11 -NT- c. T T ^ T. ,„ , ^°°^^ °y- *^^""' ^<=*8 "«^as -without a 
 
 sell.. Niemann, 34 L. J., 0. P. 10, at remedy against them. Southoote's 
 
 p. 14. Cf. Morse v. Slue, 1 Vent. 238. Case, 4 Co. Rep. 881). 
 
 enemies. 
 
RESPONSIBILITY OP CAERIERS BY SEA AT LAW. 13 
 
 oooasioned by them. For example, for the destruction or capture Sect. 11. 
 of the goods by enemies' cruisers ; or for a delay where the master 
 has properly put into a neutral port for safety. The master is 
 justified in putting in, and delaying, where he has a reasonable 
 apprehension of danger from capture (z). 
 
 The effect of this exception where the ship is a foreign one seems Foreign sMp. 
 to be uncertain (a). It does not appear to have been decided 
 whether the English rule would except the acts of enemies of a 
 foreign state who were not enemies of England. Usually, how- 
 ever, the liability of a foreign shipowner is governed by the law of 
 the country to which he belongs, and not by the English common 
 law : for the law of the contract is generally that of the flag of the 
 ship (b). 
 
 An express exception of " Queen's enemies " relates, at least, to 
 the enemies of the State to which the carrier belongs (c). 
 
 12. A further exception at common law, which was not expressly Carrier not 
 stated in the earlier eases, but is well established, is that a carrier r^g^jta of * 
 is not responsible for a loss or damage which has resulted from an ?f^^f"* 
 inherent quality, or defect, of the thing carried. For example, in 
 the case of animals, he is not responsible for the progress of disease 
 in them, or for injuries arising from their own vice or timidity (d). 
 So in the case of perishable goods, such as fruit, and hides, he does 
 not answer for their decay or deterioration ; nor for the heating or 
 weevHling of grain; nor for fermentation, acidity or effervescence (e) 
 in fluids, when these changes are the results of ordinary processes 
 going on in the things themselves, without the aid of causes intro- 
 duced by the shipowner. 
 
 In Blower v. Grreat Western Eail. Co. (/), Willes, J., said : " The 
 question as to their liability may turn on the distinction between 
 accidents which happen by reason of some vice inherent in the 
 animals themselves, or disposition producing unruliness or phrenzy, 
 and accidents which are not the result of inherent vice or unruliness 
 
 (s;) The Teutonia, L. R., 4 P. C. 171; {i^ Nugent v. Smith, 1 C. P. D. 423; 
 
 The San Roman, L. R., 5 P. 0. 301. Blower v. G. W. Rail. Co., L. R., 
 
 (a) EusseUiJ.Memami, 34L.J.,C.P. 7 C. P. 655; Kendall v. L. & S. W. 
 
 10. See also The Teutonia, L. R., 4 Rail. Co., L. R., 7 Ex. 373 ; Williams 
 
 P. C. 171; The Heinrioh, L. R., 3 A. & v. Lloyd, W. Jones, 179. 
 
 E. 424; The Wilhehu Schmidt, 25 L.T. (e) Farrar v. Adams, Buller, N. P. 
 
 34. 69 ; Warden v. Greer, 6 Watts, 424, 
 
 (i) Infra, Chap. VII. stated Ang. Carr. b. 211 ; Nelson v. 
 
 (c) Russell V. Niemann, 34 L. J., C. P. Stephenson, 5 Duer, 538. 
 
 10. (/) L. R., 7 C. P. 655, at p. 662. 
 
14 THE CONTRACT. 
 
 Sect. 12. of the animals themselves. . . . By the expression ' vice' I do not, 
 of course, mean moral vice in the thing itself or its owner, but only 
 that sort of vice which hy its internal devebpment tends to the destruc- 
 tion or the injury of the animal or thing to he carried, and which is 
 likely to lead to such a result. If such a cause of destruction exists 
 and produces that result in the course of the Journey, the liahility 
 of the carrier is necessarily excluded from the contract between the 
 parties." 
 
 Similarly, the carrier is not liable for the ordinary wasting on 
 the journey of goods which are, apart from any exceptional causes, 
 liable to waste ; such as the ordinary evaporation or leakage of 
 fluids contained in casks. 
 
 And d fortiori the carrier is not liable when the damage is due to 
 the goods having been shipped in an unfit condition, as where 
 grain is shipped green and heats in consequence {g). 
 
 pnless caused 13. Where, however, a loss which may be traced to an inherent 
 by mm, . . 
 
 quality or defect of the goods has arisen, not from the ordinary 
 
 development of that quality or defect, but from adventitious causes 
 
 introduced by the carrier, the same rule does not apply. So that 
 
 if the ordinary consequences have been aggravated by the manner 
 
 in which the goods have been stowed in the ship, the shipowner is 
 
 responsible, though it may not appear that there was any negligence 
 
 in so stowing them {h). 
 
 Also the carrier cannot rely on the excuse that the loss has been 
 
 due to an inherent weakness of the goods, unless he has used such 
 
 care with them as their nature " demanded. But if he has been 
 
 misled by the shipper, as by a delivery, without any notice of their 
 
 nature, of goods which are breakable, and so packed that that 
 
 could not by reasonable care be ascertained («), or which are liable 
 
 ig) The Ida, 32 L. T., N. S. 541 ; pay the freight ; as the master and 
 
 The Barcore, (1896) P. 294. owners are in no fault, nor does their 
 
 /isam. T., -r -r. r. -r. ^ contract contain any insurance or war- 
 
 W See The Freedom, L^R, 3 P.O. ranty against such an event." Refer- 
 
 K 979 /•/...'■ T?Tr«; . ^-^"^ ^^^ *^^^^ ^-^' to " 12 East, 381 ; 
 How. 272, decided m the Umted States , Camp. 119 ; 6 Taun. 65 ; Abbott on 
 
 S'Zt "t; l" I ' ^^T. % T ^^- *28 (Shee's ed.) ; " but these autho- 
 
 said that : It has been held if the ^ties do not seem to support the pro- 
 
 damage has proceeded from an mtrmsic p^^jtions laid down. The decision in 
 
 prmcipleo decay naturally inherent m ^he case, however, was that damage 
 
 the commodity itself, whether active in f -u -j-j. j, , , ,. M»uii%c 
 
 •i ■• 1 ■ ., „ trom humidity of the ship was a danger 
 
 every situation, or only m the confine- „f +>,„ „„„„ , ^^ » «. uauger 
 
 „ 1 J 1 , ,, , . , ot the seas, where not caused bv the 
 
 ment and closeness of the ship, the t n , , „ °^" "■> ^'^ 
 
 , , ,, ,, , Bnii,, Lue negligence or default of the shipowner 
 merchant must bear the loss as well as ^-^ \^^^ q^^ ^_ 213 '^^"w^ne'^v 
 
KESPONSIBILITY OP CARRIERS BY SEA AT LAW. 15 
 
 to be injured by contaot with certain otber kinds of goods (k), the Sect. 13. 
 degree of care to be required from the shipowner before he can be 
 allowed to rely upon this defence will be estimated with reference 
 to the extent of his knowledge, and means of knowledge, of the 
 character of the goods (k). 
 
 In Baldwin v. L. C. & D. Eail. Co. (l), the plaintiff was not 
 allowed to recover the value of some rags which had been im- 
 properly delayed in transit, and had consequently become rotten ; 
 that being due to their having been packed in a damp state, and 
 the railway company having had no notice of their condition. 
 
 • 
 
 14. Again, the carrier is not usually liable for losses which Nor for the 
 result from the defective manner in which the goods are packed ; feotive°paok- 
 or from defects or insufficiency of the packages which contain Y^%< ^°iess he 
 
 ■' r n jiad notioe 
 
 them. In such cases, as also where goods are shipped in an 
 unsound or unfit condition, it may be said that the loss has 
 resulted from the inherent defect of the goods themselves (m). 
 Moreover, where goods are improperly packed, there is a neglect 
 on the part of the shipper of his implied duty to be reasonably 
 careful in shipping them. And " no person is entitled to claim 
 compensation from others for damage occasioned by his neglect to 
 do something which it was his duty to do " (m). 
 
 But the carrier is still bound to use care in carrying the goods ; 
 and where the packages containing them are plainly defective, or 
 become so during the voyage, and he has notice of the defects and 
 might remedy them, he may be liable if he fails to do so (o). 
 
 15. One other exception seems to be made by the common law, Shipowner 
 which has not so far been noticed, viz., that where goods have been fettison &c™ 
 intentionally and properly destroyed or damaged during the course 
 
 of a voyage, in order to save the ship and the remainder of the 
 cargo from a danger which was common to the whole, the ship- 
 owner is not answerable. Where goods have been thus sacrificed, 
 
 [k) Hutchinson v. Guion, 28 L. J., M. & M. 154 : Edwards v. Sherratt, 15 
 
 C. P. 63 ; infra, s. 277. East, 604. 
 
 (I) 9 Q. B. D. 582. (") ^^^ Richardson v. N. E. Eail. Co., 
 
 „ ' „ ' ' ^ , , „ L. E., 7 C. P. 75 ; Cox v. L. & N. W. 
 
 (,«) See Hudson v. Baxendale, 27 j,^^ ^o., 3 F. & P. 77 ; Higginbotham 
 
 L. J., Ex. 93. ^ g, j^ jjg^jj_ (,g^ 2 P. & P. 796 : 
 
 («) Per Cleasby, B., Barbour «>. S. Stuart «>. Crawley, 2 Stark. 323; Warden 
 
 E. Rail. Co., 34 L. T. 67. And see v. Greer, 6 Watts, 424. And of . Notara 
 
 Richardson v. N. E. Rail. Co., L. R., v. Henderson, L. R., 5 Q. B. 346; L. R., 
 
 7 C. P. 75 ; Bradley v. Waterhouse, 7 Q, B. 225. 
 
16 THE CONTRACT. 
 
 Sect. 15. the law, except in certain cases, e.g., deck cargo, gives the owner a 
 right to contributions towards his loss from those whose property is 
 saved {p). But otherwise no claim for the goods or their value 
 can be made against the shipowner. An illustration of this prin- 
 ciple is, where water has been poured into the hold of the ship in 
 order f o extinguish a fire. But the most familiar case is that of a 
 jettison ; where part of the cargo is thrown out of the ship to lighten 
 her, in a storm, or when she has stranded. 
 
 Mouse's Case {q) appears to be the earliest statement of the 
 common law with regard to jettisons. The report is as follows: — 
 
 " In an action of trespass brought by Mouse, for a casket and 
 a hundred and thirteen pounds, taken and carried away, the case 
 was, the ferryman of Grravesend took forty-seven passengers into 
 his barge to pass to London, and Mouse was one of them, and the 
 barge being upon the water, a great tempest happened, and a 
 strong wind, so that the barge and all the passengers were in 
 danger to be drowned, if a hogshead of wine and other ponderous 
 things were not cast out, for the safeguard of the lives of the men : 
 it was resolved, per totam curiam, that in case of necessity, for the 
 saving of the lives of the passengers, it was lawful to the defen- 
 dant, being a passenger, to cast the casket of the plaintiff out of 
 the barge, with the other things in it ; for quod quis oh tutelam cor- 
 porh suifecerit, jure idfecisse videtur, to which the defendant pleads 
 all this special matter ; and the plaintiff replies, de injuria sua pro- 
 pria absque tali causa ; and the first day of this term, this issue was 
 tried, and it was proved directly, that if the things had not been 
 cast out of the barge, the passengers had been drowned ; and that 
 levandi causa they were ejected, some by one passenger, and some 
 by another ; and upon this the plaintiS was nonsuit. It was also 
 resolved, that although the ferryman surcharge the barge, yet for 
 safety of the lives of passengers in such a time and accident of 
 necessity, it is lawful for any passenger to cast the things out of 
 the barge ; and the owners shall have their remedy upon the sur- 
 charge against the ferryman, for the fault was in him upon the 
 surcharge ; but if no surcharge was, but the danger accrued only 
 by the act of God, as by tempest, no default being in the ferryman, 
 everyone ought to bear his loss for the safeguard and life of a man ; 
 for interest reipuhUcce quod homines conserventur, 8 Edw. lY . c. 23 &c. • 
 12 Hen. VIII. c. 15 ; 28 Hen. Till. ; Dyer, 36. Plucking down 
 
 (i>) See Chap. XII. {q) 12 Co. Eep. 63, decided Mich. 6 Jac. I. 
 
EESPONSIBILITY OF CARRIERS BY SEA AT LAW. 17 
 
 of a house, in time of fire, &c., and ihis pro bono publico ; et conser- Sect. 15. 
 vatio mt(B hominis est bonum publicum. So if a tempest arise in the 
 sea, lemndi navis causa, and for salvation of the lives of men, it may 
 be lawful for passengers to east over the merchandizes, &c." 
 
 And in the Grravesend Barge Case {r), reported by Eolle as 
 having been stated by Coke, it was held that an action would not 
 lie against the bargeman under the same, or similar, circumstances ; 
 the loss having been through the act of God, and for the safety of 
 human lives. 
 
 In the Gratitudine (s), Lord Stowell said: — "Nothing can be 
 better settled than that the master has a right to exercise this 
 power " (of throwing cargo overboard) " in case of imminent 
 danger. He may select what articles he pleases ; he may deter- 
 mine what quantity ; no proportion is limited ; a fourth, a moiety, 
 three-fourths, nay, in cases of extreme necessity, when the lives of 
 the crew cannot otherwise be saved, it never can be maintained 
 that he might not throw the whole cargo overboard. The only 
 obligation wiU be that the ship should contribute its average 
 proportion." And the same seems to hold good, even in cases 
 where there is no liability on th'e ship to contribute, as where the 
 goods thrown over were stowed on deck {t). 
 
 This exception at common law was expressly considered by 
 Cave, J., in Dixon v. Royal Exchange Shipping Co. (m), where he 
 decided in favour of the shipowner, on the ground that the act of 
 jettison is done by the master as agent of the cargo owner, not of 
 the shipowner («). 
 
 It seems doubtful whether any theory of agency is required to 
 support the rule ; and if it is possible to avoid the view that the 
 master is the representative of the cargo owner, it is perhaps better 
 to do so. The master is the agent of the shipowner in the matter, 
 to some extent at any rate; for the latter is responsible if the 
 jettison be made vdthout sufficient cause ; or if it be omitted or 
 made in an improper manner, where there is a good cause {y). 
 And, at least, no such implied agency should excuse the shipowner 
 
 (r) 1 Boll. Hep. 79. Burton v. Englisli, 12 Q. B. D. 218, at 
 
 (s) 3 C. Rob. 240, at p. 258. P- 221 ; cf. Lawrence v. Minturn, 17 
 
 How. 100 (U. S.). 
 (t) Wright ■.. Marwood, 7 Q. B. D. ^^^ p^^ ^^^^ j^ ^^^^^^ ^ g^^. 
 
 62 ; see p. 72. derson, L. R., 7 Q. B. at p. 236 ; per 
 
 (») Times, Deo. 20, 1884. Brett, J., Whitecross Wire Co. ■<,. SayiU, 
 
 {x) And see per Brett, M. E., in 8 Q. B. D. 653, at p. 663. 
 
 C— C. C 
 
m 
 
 THE CONTRACT. 
 
 Sect. 15. 
 
 Exceptions do 
 not excuse 
 where the 
 carrier has 
 been negli- 
 gent, or has 
 deviated. 
 
 Nor if ship's 
 ui\seaworthi- 
 ness on sailing 
 caused the 
 loss. 
 
 from liability if the jettison became necessary owing to dangers for 
 wMcli he was responsible (z). 
 
 Moreover, it appears from the cases above cited that the ship- 
 owner may be excused where goods have been jettisoned by other 
 persons than the master {a). 
 
 16. A shipowner will not be exonerated from losses arising from 
 any of these excepted causes when there has been any neglect on 
 his part to take all reasonable steps to avoid them ; or to guard 
 against their possible e£Eects {b) ; or to arrest their consequences (c). 
 
 Ajad where these causes have followed upon a departure from the 
 proper prosecution of the voyage, and would not have operated but 
 for that, the shipowner is not excused ; as where a tempest has 
 been encountered after a deviation from the proper course (d) ; or 
 where the cargo has deteriorated owing to improper delay on the 
 voyage (e) ; or, being improperly carried on deck, has been 
 jettisoned (/). 
 
 17. And further, the shipowner is always responsible for loss or 
 damage to the goods, however caused, if the ship was not in a sea- 
 worthy condition when she commenced her voyage, and if the loss 
 would not have arisen but for that unseaworthiness. This is so, 
 although the shipowner may have taken all reasonable pains and 
 precautions to make the ship seaworthy, if, in fact, he has failed to 
 make her so. He undertakes absolutely that she shall be fit, on 
 
 («) See per Dr. Lushington in Th 
 Norway, 12 L. T. 67; and infra, s. 294. 
 
 (a) And see Price v. Noble, 4 Taunt. 
 123 ; and infra, s. 374. Although in 
 early statements of maritime law, made 
 at times when it was usual for the owner 
 of the goods or his supercargo to be on 
 board, it was provided that the master 
 should consult him before making a 
 jettison, still the master's authority to 
 make that did not depend on his consent. 
 " The merchants, if there are any who 
 approve of the jettison, are to signify 
 their assent ; but if they do not agree, 
 the master ought nevertheless not to 
 tarry to throw over as much as shall 
 seem to him good, swearing the third 
 part of his companions on the Holy 
 Gospels, when he shall have come safe 
 to shore, that he did it of no malice, 
 but to save their lives, the ship, the 
 cargo, and the wines." Judgments of 
 
 Oleron, Art. 8 ; translated in Lowndes, 
 Gen, Av. (4th) p. 6. So also in the. 
 laws of Wisby, Art. 20 ; cited in Park 
 Mar. Ins. (8th), p. 279. 
 
 (A) Siordet v. HaU, 4 Bing. 607 ; The 
 Freedom, L. E., 3 P. C. 594. 
 
 (c) See illustrations cited in Ang. 
 Carr. ss. 160 — 164 ; Notara :;. Hender- 
 son, L. E., 5 Q. B. 346 ; 7 Q. B. 225. 
 
 (d) Leduo v. Ward, 20 Q. B. D. 475 ; 
 Scaramanga v. Stamp, 4 0. P. D. 316 ; 
 5 C. P. D. 295 ; Davis v. Garrett, 6 
 Bing. 716 ; The Dunbeth, (1897) P. 133. 
 And see infra, a. 287. 
 
 («) Glynn v. Margetson, (1893) A. C. 
 351 ; (1892) 1 Q. B. 337 ; Lindsay v. 
 Soholefield, 24 Sess. Ca. (4th) 530; 
 Hawes v. S. E. Eail. Co., 52 L. T. 514. 
 But see Baldwin v. L. C. & D. Rail. 
 Co., 9 Q. B. D. 682. 
 
 {/) EoyalExohangeSh. Co. ». Dixon, 
 12 A. C. 11. 
 
EESPONSIBILITY OF CARRIERS BY SEA AT LAW. 19 
 
 sailing upon the voyage, to carry tlie cargo which she has on board, Sect. 17. 
 and with it to encounter safely whatever perils a ship of that kind 
 may fairly be expected to be exposed to in the course of that 
 voyage at that season of the year. If her unfitness becomes a real 
 cause of loss or damage to the cargo, the shipowner is responsible, 
 although other causes from whose effects he is excused, either at 
 common law or by express contract, have contributed to produce 
 the loss (g) . 
 
 Lord Blackburn in Steel v. State Line Steamship Co. (A), said: — 
 "I take it, my Lords, to be quite clear, both in England and 
 Scotland, that where there is a contract to carry goods in a ship, 
 whether that contract is in the shape of a'biU. pf lading or any 
 other form, there is a duty on the part, of the person who furnishes 
 or supplies that ship, or that ship's room, unless som'ething be 
 stipulated which should .prevent it,.that the ship shall be ^t f or its 
 purpose. That is generally expressed by saying that, it shall be 
 seaworthy ; and I think, also, in marine contracts, contracts for sea 
 carriage, that is, what is. properly caUed, a warranty, not merely 
 that they should do their best to make the ship fit, but that the 
 ship should really be fit." 
 
 It appears, then, that the shipowner undertakes responsibility for 
 any defects in the ship, or her machinery or equipment ; even for 
 defects not discoverable by careful examination (»'). 
 
 In Eeadhead v. The Midland Eail. Co. {J), it was decided that 
 carriers of passengers, by land, did not undertake this responsi- 
 bility; and it was said, in the Exchequer Chamber, to be extremely 
 doubtful whether carriers of goods did so (k). But in the Court 
 below, Liish and Blackburn, JJ., both considered it estabHshed 
 that carriers of goods, whether by land or by water, warrant the. 
 fitness of their vehicles or vessels for the purpose, and are re- 
 sponsible for the consequences of failures occasioned by latent 
 defects. 
 
 And in the Grlenfruin (/), Butt, J., acted upon this view, and 
 
 iff) The Glenfruin, 10 P. D. 103 
 Steel V. State Line S. S. Co., 3 A. 0. 72 
 KopitofE V. WUson, 1 Q. B. D. 377 
 
 Prince, 170 U. S. 655 (1898); infra, 
 B. 103o. 
 
 ij) L. R., 2Q.B. 412; L.R.,4Q.B. 
 
 Lyon V. MeUs, 5 East, 428. 379. 
 
 Ih) 3 A. C, at p. 86. {k) L. R., 4 Q. B., at p. 383. And 
 
 (») The rule in the IT. S. is equally see Kopitofl v. Wilson, 1 Q. B. D. 377, 
 
 stringent ; The Caledonia, 167 U. S. at p. 383. 
 
 124 ; and the obligation is not lessened (l) 10 P. D. 103. And see the case 
 
 by the Harter Act, 1893 ; The Oarib of Backhouse v. Snead, in North Caro- 
 
 C2 
 
20 THE CONTRACT. 
 
 Sect. 17. Leld that the shipowners were responsible for a defect m the 
 screw shaft, which coijld not haye been discovered by care and 
 skiU. 
 
 Meanmgof ig. The ship must be fit in design, structure, condition and 
 
 seaworthi- ^ •^ p \. / \ csi. 
 
 nees. equipment to encounter the ordinary perils of the voyage {m) . the 
 
 must also have a competent master, and a competent and sufficient 
 crew (w). And if she sails from a port where a pilot may be 
 procured, and the nature of the navigation requires one, she is, it 
 would seem, not seaworthy without a pilot (o) ; unless the master 
 himself has a competent knowledge of the navigation. Also, the 
 cargo taken must be a safe cargo for such a voyage as may be 
 reasonably expected ; and it must be stowed so as not to be a 
 source of danger. In Kopitoff v. Wilson {p), one of a number of 
 armour plates stowed in the ship broke loose during bad weather 
 and went through her side, so that she sank. The jury found that 
 she was not reasonably fit to encounter the ordinary perils that 
 might be expected on the voyage, owing to the manner of stowing 
 the plates ; and that the loss was caused by that unfitness. Held, 
 that the shipowner was liable for the value of the plates. 
 
 But the duty to supply a seaworthy ship is not equivalent to 
 a duty to provide one that is perfect, and such as cannot break 
 down except under extraordinary peril. What is meant is that 
 she must have that degree of fitness which an ordinary careful and 
 prudent owner would require his vessel to have at the commence- 
 ment of her voyage, having regard to all the probable circum- 
 stances of it(g'). To that extent the shipowner, as we have seen, 
 
 lina, 1 Murpli. 173, where a sHpowner this it was held that the ship had not 
 
 was held responsible for damage through been unseaworthy at starting; Cun- 
 
 the loss of a rudder which proved to be ningham v. Colvils, 26 So. L. K. 249. 
 
 rotten internally, though apparently As to burden of proof, Pickup v. 
 
 sound. Pars. Sh. i. 285; Ang. Carr. Thames Insurance Co., 3 Q. B. D. 
 
 ss. 171, 192. 594. 
 
 (m) Stanton v. Richardson, L. R., 7 („) cUfford v. Hunter, M. & M. 103 ; 
 
 C. P. 421 ;, 9 C. r. 390. Where the p^,^,^ „. chabert, 3 B. & B. 158. 
 
 boilers of a steamship failed owing to / , o -r. 
 
 the muddy state of the river-water with , i°' f " ^^^^ "■ Headlam, 2 B. & 
 
 which they had been fiUed at starting, ^^- ^^^ ' "'^°° "■ ^^^""^ 5 M. & W. 
 
 i.v i ij i. -u ^i_. 405, at pp. 414— 5 
 
 this was held to be unseaworthiness ; , rr ^ "■ 
 
 Seville Sulphur, &o. Co. v. Colvils, 25 M ^ Q- B. D. 377. 
 
 So. L. R. 437. In a subsequent case, (;?) Gibson v. SmaU, 4 H. L. C. 353 ; 
 
 however, on the same facts, it was Burges ». Wiokham, 33 L. J., Q. B. 
 
 shown that, on getting out to sea, the 17 ; per Blackburn, J., Readhead v. 
 
 boilers might easily have been emptied. Midland Rail. Co., L. R. 2 Q. B. 412 
 
 and the mud thus got rid of, and upon at p. 440. 
 
RESPONSIBILITY OF CAEEIERS BY SEA AT LAW. 21 
 
 undertakes absolutely that she is fit ; and ignorance is no excuse. Sect. 18. 
 If the defect existed, the question to he put is, Would a prudent 
 shipowner have required that it should he made good before 
 sending his ship to sea, had he known of it ? If he would, the 
 ship was not seaworthy within the meaning of the undertaking. 
 
 Further, a ship may be seaworthy when she sails, although she 
 could not safely perform her voyage in the precise state in which 
 she sailed. Hatches may be off in ordinary course, or a port-hole 
 may be open, but in such a position that it can be, and will in 
 ordinary course be closed after sailing. Those are not cases of 
 unseaworthiness {r). 
 
 In Grilroy v. Price (s), the defect lay in the want of a casing to a 
 pipe. The cause was remitted by the House of Lords to the Court 
 of Session for a further finding as to when the needful casing 
 should have been put over the pipe. It was there found that the 
 ordinary practice was to case such pipes, in vessels carrying jute, 
 before the cargo was loaded, and that the pipe in question was not, 
 after loading, visible or accessible without the removal of part of 
 the cargo. The vessel was therefore held to have been unseaworthy. 
 
 19. Perhaps the effect of the warranty is not in all respects the 'Deck cargo. 
 same where the goods shipped are to be stowed on deck. A ship 
 may be seaworthy with goods on deck; but that may depend upon 
 the fact that in case of need those goods can be easily got rid of. 
 This would be a state of seaworthiness so far as concerned the 
 cargo in the hold, but not as to the goods on deck. 
 
 This question was fully discussed in relation to a policy of insur- 
 ance in Daniels v. Harris {fj. Brett, J. delivering the judgment, 
 said, that the warranty in a policy on ship, or on cargo other than 
 deck cargo, would be satisfied " if the deck cargo, by reason of the 
 facility with which it could be got rid of, would have caused no 
 danger to the ship." But that in a policy on deck cargo it could 
 not be satisfied if it was necessary to contemplate the destruction, 
 in order to save the ship, in an ordinary voyage, of that very cargo 
 which is the subject-matter of insurance. 
 
 On the other hand, in an action by a shipper against a ship- 
 owner for a loss of deck cargo by jettison, the Supreme Court of 
 
 (>■) Per Lord Herschell in Gilroy v. Pininey, (1892) 1 Q. B. 58. 
 
 Price, (1893) A. 0. 56, p. 64; per Lord (») (1893) A. C. S6. 
 
 Blackburn in Steel v. State Line, 3 {t) L. E., 10 0. P. 1. Of. Hedley v. 
 
 A. C. 72, p. 90. And see Hedley v. Pinkney, (1892) 1 Q. B. 58. 
 
22 THE CONTRACT. 
 
 Sect. 19. the United States held, that the shipowner " does not warrant 
 the sufficiency of the ship, if otherwise staunch and seaworthy, to 
 withstand any extraordinary action of the sea when thus laden. 
 If the vessel is in itself staunch and seaworthy, and her inability 
 to resist a storm arises solely from the position of a part of the 
 cargo on the deck, the owner of the cargo who has consented to 
 this mode of shipment cannot recover from the ship or its owners 
 on the ground of negligence or breach of an implied contract 
 respecting seaworthiness " (««). 
 
 Fitness for i9a_ This warranty is not limited to the mere fitness to en- 
 
 Bpeoial cargo. 
 
 counter sea perils. If the ship is to carry goods of a particular kind, 
 
 the implied warranty requires that the ship and her equipment bei fit 
 
 for the purpose of safely carrying those goods to their destination (x). 
 
 Thus, where the contract is for the carriage of frozen meat in 
 a ship fitted with refrigerating machinery, there is an implied 
 warranty that the ship and refrigerating machinery are fit to 
 receive and carry the frozen meat safely on the agreed voyage («/). 
 
 And where specie is to be carried in one of the class of ships 
 which are provided with strong rooms for that purpose, so that the 
 contract is presumably made in relation to carriage in such a room, 
 there is an implied warranty that the strong room is reasonably fit 
 to resist thieves (s). 
 
 Voyage in 19b. Where the voyage has several stages, for which the 
 
 of « n-aa O ' 
 
 needful condition and equipment of the ship differ, as where the 
 voyage is partly by river and partly across the open sea, it will 
 generally be sufficient if the ship be made fit for the first stage 
 only, on first sailing. But, in that case, the warranty requires 
 that the ship shall be fit for each subsequent stage when that 
 is entered upon (a) . 
 
 The shipowner may satisfy the warranty by making her fit for 
 the whole voyage at the start, or else by making her fit at the 
 commencement of each stage for that stage. 
 
 The same is true where the ship is at liberty to take in necessary 
 fuel or stores at an intermediate port. The warranty is not broken 
 
 {«) Lawrence v. Mintum, 17 Ho-w. (z) Queensland Nat. Bank v. P. & 0. 
 
 10" (^- S-)- S. N. Co., (1898) 1 Q. B. 567. 
 
 (x) See Stanton v. Richardson, L. R., {a) See Dixon v Sadler 8 M & W 
 
 7 C. P. 421 ; 9 C. P. 390 ; The Thames, 405, per Parke, B., p. 414'; Eic'card .'. 
 
 61 Fed. Rep. 1014. Shepherd, 14 Moo. P. C. 471 ; Quehec 
 
 (y) Cargo per Maori King ?;. Hughes, M. I. Co. v. Commercial Bank of 
 
 (1895) 2 Q. B. 550. Canada, L. R., 3 P. C. 234 
 
 stages. 
 
RESPONSIBILITY OF CAEEIEES BY SEA AT LAW. 23 
 
 by starting without sufficient fuel for the whole voyage ; but where Sect. 19b. 
 that is done, she must, at starting, have enough for her first stage 
 to the intermediate port at which it is intended to take further 
 coal ; and she must have enough for her second stage when she 
 sails from that intermediate port (J). 
 
 Thus it is no answer to a claim for a loss of cargo upon the 
 second stage of a voyage, owing to insufficient fuel, that this was 
 due to neglect of the officers to take in a proper supply, although 
 the bill of lading may contain an exception of negligence of the 
 master and crew. And further, it is no answer that the deficiency 
 of coal might have been remedied by putting into another port in 
 the course of the second stage, and that the master improperly 
 neglected to do so ; for the cause of action is the breach of the 
 underlying warranty of seaworthiness (c). 
 
 In Biccard v. Shepherd {d) the ship was loaded at two ports, 
 H. and N. She was seaworthy on sailing from H., but became 
 unseaworthy by overloading before she left N. It was held, in an 
 action upon a policy on the cargo, " at and from H. and N.," that 
 the warranty of seaworthiness was satisfied in respect of the cargo 
 loaded at H., but not in respect of that loaded at N. 
 
 20. The ship must not only be fit to carry the cargo on the The ship must 
 intended voyage, she must also be in a fit condition to receive it at receive the 
 the time it is put on board. Thus, in Tattersall v. National Steam- <=^'^so- 
 ship Co. (e), a vessel which had carried cattle with foot-and-mouth 
 disease was not properly cleansed and disinfected before a fresh lot 
 of cattle were received on board, and these consequently caught 
 the disease ; the shipowner was held liable on the ground that he 
 had not provided a ship fit for their reception (/). 
 
 In Gorris v. Scott ((/), an action was brought for the loss of some 
 sheep washed overboard, as alleged in the declaration, because the 
 vessel had not been divided into proper pens, in accordance with 
 an order of the Privy Council under the Contagious Diseases 
 (Animals) Act, 1869. A demurrer to the declaration was allowed 
 on the ground that the statute and order had been made with a 
 different object, and not for the purpose of protecting animals 
 against such a danger. 
 
 («) Thin V. Richards, (1892) 2 Q. B. (e) 12 Q. B. D. 297. 
 
 141 ; The Vortigem, (1899) P. 140 ; (/) A mere suspicion of nnfltness of 
 
 vnfra, a. 79. the ship for the goods is not enough. 
 
 (c) The Vortigem, (1899) P. 140. Towse v. Henderson, 19 L. J., Ex. 163. 
 
 {H) 14 Moo. P. 0. 471. (?) L. R., 9 Ex. 125. 
 
24 THE CONTEACT. 
 
 Sect. 21. 21. The warranty of seaworthiness for the voyage must he satis- 
 Ship must be fied at the time of sailing with the cargo. It is ,not sufficient that 
 samLg.'^'' ""^ tlie ship was fit for the voyage while the cargo was heing taken 
 in, if she became unfit before she started (A). The warranty, in 
 truth, appears to he a double one ; viz., that the ship shall be fit 
 to receive the cargo when receiving it, and shall be fit to sail at 
 the time of sailing. 
 
 On the other hand, there is no undertaking that she will con- 
 tinue fit after sailing. If from any cause she afterwards becomes 
 unseaworthy, and this leads to loss, the shipowner is only liable if 
 the cause was one for which he was answerable. 
 
 In The E.ona («), it was held that the voyage must be considered 
 to commence, for this purpose, when the ship starts from whatever 
 were her moorings. So that if the vessel is damaged in getting 
 out of the harbour, and afterwards proceeds without repairing, the 
 warranty may still have been satisfied. 
 
 In Quebec Marine Insurance Co. v. Commercial Bank of 
 Canada (k), it was held that a breach of the implied warranty in 
 a policy, of seaworthiness at starting, was not cured by repairs of 
 the ship done subsequently, though before the loss. 
 
 Wten does It seems doubtful whether this rule, that the warranty of sea- 
 
 the warranty . i ■ n i 
 
 of fitness worthiness must be satisfied on sailing, extends to the analogous 
 
 apparatus warranties of fitness of the ship for special goods, such as those 
 
 attach? above mentioned in relation to frozen meat, and bullion. The 
 
 main reason for making the warranty of seaworthiness attach on 
 
 sailing is that then begins the time " at which the perils are to be 
 
 encountered which the ship is to be worthy to meet" {I). While 
 
 she is loading she need not be seaworthy for the voyage. But the 
 
 special apparatus for keeping meat frozen, or gold safe against 
 
 thieves, should be fit at the time of taking the meat, or the gold, 
 
 on board. And that fitness is generally the very fitness which is 
 
 required for maintaining the temperature, or protecting the bullion, 
 
 throughout the voyage. 
 
 Where this is the case it seems unnecessary, and therefore not 
 
 according to the probable intention, to imply a second warranty 
 
 of the same apparatus at the moment of sailing. The point did 
 
 (A) Cohn V. Davidson, 2 Q. B. D. (j) 61 L. T. 28. 
 
 455 ; Steel v. State Line Steamship Co., (A) L. R. 3 p. C. 234. 
 
 3 A. 0. 72 ; Sumner v. CasweU, 20 Fed. (t) Cohn \. Davidson, 2 Q. B D 
 
 Rep. 249 (1884). p. 402. 
 
RESPONSIBILITY OF CAERIEES BY SEA AT LAW. 25 
 
 not arise in the cases cited above (s. 19 (a)), and the language of ^^°^- ^^- 
 the judgments leaves the matter in doubt. 
 
 22. Where, then, a shipowner receives goods to be carried for Summary of 
 reward, whether in a general ship with goods of other shippers, or law rules. " 
 in a chartered ship whose services are entirely at the disposal of 
 
 the one freighter, it is implied at common law in the absence of 
 express contract, 
 
 That he is to carry and deKver the goods in safety, answering 
 for all loss or damage which may happen to them while they 
 are in his hands as carrier : 
 
 Unless that has been caused by some act of God, or of the 
 Queen's enemies ; or by some defect or infirmity of the goods 
 themselves, or their packages ; or through a voluntary 
 sacrifice for the general safety : 
 
 And, that those exceptions are not to excuse him if he has not 
 been reasonably careful to avoid or guard against the cause of 
 loss, or damage ; or has met with it after a departure from 
 the proper course of the voyage ; or, if the loss or damage has 
 been due to some unfitness of the ship to receive the cargo, or 
 to unseaworthiness which existed when she commenced her 
 voyage. 
 
 23. A further possible case must, however, be noticed here. Illegality of 
 The shipowner may be prevented from performing the contract performance, 
 by acts of the British government, or legislature, which either 
 physically prevent him from carrying it out, or make it illegal for 
 
 him to do so. In either case he is excused (;«). If the contract 
 was originally an illegal one, it is void, and neither party can 
 enforce it (n) ; and if, though originally lawful, its performance 
 has been prevented, or become unlawful by a subsequent act of the 
 government, e.g., by a declaration of war, a failure to perform 
 what has thus become impossible or illegal does not entitle the 
 shipper to damages (o), unless the prevention was only a temporary 
 one (p). 
 
 But this rule does not apply to acts of British officers which 
 
 (m) Barter v. Hodgson, 3 M. & S. L. E., 4 Q. B. 180 ; Abtott (5tli) 
 
 267 ; Atkinson v. Eitchie, 10 East, p. 427 ; mfra, Oh. VIII. 
 
 S30. ■ {p) Hadley v. Clarke, 8 T. E. 2S9. 
 
 («) Muller V. Gemon, 3 Taun. 394. See infra, s. 242. Of. The Teutonia, 
 
 (o) Esposito V. Bowden, 27 L. J., L. E., 3 A. & E. 394 ; L. E., 4 P. 0. 
 
 Q. B. 17. See Bailey p. De Crespigny, 171. 
 
26 THE CONTRACT. 
 
 Sect. 23. are improper or uDauthorized. In G-osling i>. Higgins (q), wine 
 shipped at Madeira, to be carried to Jamaica and thence to 
 England, was seized on arrival at Jamaica for a supposed violation 
 of the revenue laws, and was condemned. On appeal to the Privy- 
 Council in England, the sentence of condemnation was reversed. 
 Lord EUenhorough held the shipowner liable for the non-delivery 
 of the wine (r). 
 Acts of iffor does it apply to acts of foreign governments. So that where 
 
 governments, a ship on the course of her voyage called at a Spanish port, and 
 her cargo was there seized as contraband by Spanish customs 
 officers, and condemned by a Spanish Court, the shipowner was 
 held answerable for the goods (s). 
 
 But a the ship be a foreign ship, it seems that acts of her 
 government which render performance of the contract illegal, may 
 have the effect of exonerating the shipowner (t) . 
 
 Exemptions hy Statute. 
 
 24. In addition to the exceptions set by the common law to the 
 liability of a carrier, there are statutory provisions which have been 
 enacted for the peculiar protection of shipowners. 
 ^nf ^"h. By the Merchant Shipping Act, 1894, Part. VIII., sect. 502:— 
 
 lo94, s. 502. 
 
 " The owner of a British (u) seagoing ship {x), or any share therein, 
 
 shall not be liable to mate good to any extent whatever any loss or 
 
 damage happening without his actual fault or privity (jr) in the 
 
 following cases, namely : — 
 
 Fire. " (i) "Where any goods, merchandise, or other things whatsoever taken 
 
 in or put on board his ship are lost or damaged by reason of 
 
 fire on board the ship (z) ; or 
 
 (?) 1 Camp. 451. navigation not propelled by oars." 
 
 (r) Of. Evans v. Hutton, 12 L. J., See Ex parte Ferguson, L. K,., 6 Q. B. 
 
 C- P. 17. 280 ; The C. S. Butler, L. E., 4 A. & 
 
 (s) Spenoe v. Chadwiok, 16 L. J., E. 238; The Andalusian, 3 P. D. 182; 
 
 Q- B- 313. The Mao, 7 P. D. 126 ; The Gas Float 
 
 (f) The Teutonia, L. R., 4 P. 0. 171 ; "Whitton No. 2, (1897) A. C. 337; (1896) 
 
 per "Willes, J., in Espoeito v. Bowden, P. 42 ; (1895) P. 301. A launch used 
 
 27 L. J., Q. B. 16, p. 25. for carrying passengers upon an arti- 
 
 («) The corresponding provisions ficial lake is not included in the definition. 
 
 (8. 503) of the IVD. S. Act, 1854, were The Mayor, &c. of Southport v. Morris, 
 
 held not to relate to foreign ships. (1893) 1 Q. B. 359. 
 Cope V. Doherty, 27 L. J., Ch. 600 ; (y) The Obey, L. R., 1 A. & E. 102 ; 
 
 The General Iron Screw Collier Co. v. Wilson v. Dickson, 2 B. & Aid 2 
 Schurmanns, 29 L. J., Oh. 877. . [z] Under a siinUar enactment (26 
 
 (X) By sect. 742, " ' Ship' includes Geo. 3, .. 86, e. 2), it was held that a 
 
 every description of vessel used in fire on a Ughter used in landing goods 
 
RESPONSIBILITY OF CARRIERS BY SEA AT LAW. 
 
 27 
 
 " (ii) "Where any gold, silver, diamondB, watches, je-wels or precious Sect. 24. 
 
 stones (a) taien in or put on board his ship, the true nature and ^, — T] 
 
 value (3) 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." 
 
 But, by sect. 508 of the same Act : " 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 to extend to any British ship which is not recognized 
 as a British ship within the meaning of this Act " (c). 
 
 25. Again, a limitation has been set by statute to the total Limitation of 
 liability of a shipowner for losses which have occurred, under 
 circumstances for which he must answer, but without his fault or 
 
 from a sihip was not included. More- 
 wood V. PoUok, 22 L. J., Q. B. 250; 
 Hunter v. M'Gown, 1 Bligh. 573. The 
 Act does not relieve the shipowner from 
 making general average contributions 
 in the case of a fire ; Schmidt v. Royal 
 Mail Co., 45 L. J., Q. B. 646. 
 
 (a) This covers jewellery, &c. carried 
 in ordinary luggage ; Acton i/. Castle 
 Mail-Packet Co., 1 Com. Ca. 135. 
 
 (4) Where a bill of lading described 
 the goods as " one box containing about 
 248 ounces of gold dust," it was held 
 that that was not such a description as 
 to deprive the shipowner of the protec- 
 tion of the Act. WiUiams v. African 
 Steamship Co., 25 L. J., Ex. 69. 
 Alderson, B., said, "Here there is 
 not even an exact statement of the 
 quantity, as I think there ought to have 
 been. It is said to be about 248 ounces ; 
 and so far from the value being stated, 
 there is not even an estimate of it." 
 And Martin, B., said, "Even if all 
 gold dust was of the same value, so that 
 when the quantity was stated the value 
 would be known with tolerable cer- 
 tainty, it would be straining the con- 
 struction of the section to say, that a 
 mere statement of the quantity would 
 be sufficient, and that the value in 
 money need not be stated. But that is 
 
 not the case. I certainly doubt whether 
 the word ' true ' applies to ' value.' I 
 think that the owner may state as the 
 value what he iond fide believes to be 
 the value ; and that the validity of the 
 declaration of value would not be af- 
 fected by his overrating or underrating 
 it; but that the question would be 
 whether the declaration had been made 
 fairly and in good faith. It may be 
 conventional value, rendering the ship- 
 owner liable to an extent not exceeding 
 the value declared, but still the value in 
 money must be stated." The value 
 may be stated in the currency of the 
 place of shipment. Gibbs v. Potter, 11 
 L. J., Ex. 376. 
 
 (c) She must belong to natural-bom 
 British subjects, or to persons who have 
 been naturalised or made denizens, or to 
 a corporation established under and sub- 
 ject to the laws of some part of the 
 Queen's dominions and having its 
 principal place of business in those 
 dominions ; and she must generally be 
 registered. See sects. 1 — 8 of the Act.. 
 A British ship not completed, and in 
 consequence not registered, was formerly 
 excluded; The Andalusian, 3 P. D. 182; 
 but is now protected at and from launch- 
 ing until registration (not beyond three 
 months) by 61 & 62 Vict. o. 14. 
 
28 
 
 THE CONTEACT. 
 
 Sect. S5. privity. This was first done, with regard to losses by embezzle- 
 
 Former ment and theft by the master and mariners, by a statute passed in 
 
 1734 (d) ; the total liability being limited in such eases to the value 
 of the ship, and her appurtenances, and the freight for the voyage. 
 And this was subsequently extended to cases of robbery in which 
 the master and mariners were not concerned (e). 
 
 By 53 Greo. III. o. 159, s. 1, the same limitation, to the value of 
 the ship and freight, was set to the liability to answer for any 
 loss by any act, neglect, matter, or thing done, omitted, or occa- 
 sioned without the fault or privity of the shipowner to any goods 
 carried in the ship, or to any other ship, or to goods in any other 
 ship. And the same limit was preserved, after the repeal of the 
 above-mentioned statutes (/), by the Merchant Shipping Act, 
 1854, s. 504. 
 
 The " freight " included in ascertaining this maximum of 
 liability was that which was " due or to grow due in respect of 
 such ship during the voyage which at the time of happening of 
 any such events as aforesaid is in prosecution or contracted 
 for " (ff) ; and it comprised " the value of the carriage of any 
 goods or merchandise belonging to the owners of the ship, passage 
 money, and also the hire due or to grow due under or by virtue of 
 any contract, except only such hire in the case of a ship hired for 
 time as may not begin to be earned until the expiration of six 
 months after such loss or damage " (h). 
 
 mf;tto3. ^®- ®^°*'' ^^^ ^""^ ^^^ °^ ^'^^ ^°* °^ 1^^4 ^e^e repealed by the 
 Merchant Shipping Act, 1862, and replaced by sect. 54 of that 
 Act. 
 
 That Act again was repealed by the M. S. Act, 1894 ; and now, 
 by sect. 503 of this Act, 
 
 " (1) The owners of a ship (i), British or foreign (/c), shall not where 
 
 (d) 7 Geo. II. G. 15. have been earned had the Toyage been 
 
 {e) 26 Geo. III. c. 86, s. 1. completed, having regard to losses on 
 
 (/) By 17 & 18 Vict. c. 120. the way. In the above cases it was 
 
 iff) M. S. Act, 1854, s. 604. Under also held that the value of the ship was 
 
 similar words in 63 Geo. III. .. 169, it to be taken as at the time when the 
 
 was held that freight paid in advance cause of action arose, not as at the 
 
 was to be included ; WUson v. Dickson, commencement of the voyage. 
 
 2 B. & Aid. 2. In Cannan v. Meabum (A) M. S. Act, 1854, s. 505 • 53 
 
 (1 Bing. 465), it was held that not the Geo. III. o. 159, s. 2. ' 
 
 whole amount of freight expected at' (i) gee note (k), supra, s. 24. 
 
 the commencement of the voyage was (k) The AmaHa, 32 L. J.,' Ad. 191 
 
 to be reckoned, but that which would Of. Cope v. Doherty, 27 L. J.' Ch 600 
 
RESPONSIBILITY OF CARRIERS BY SEA AT LAW. 
 
 29 
 
 all or any of tlie following occurrences take place without their actual 
 fault or privity (Z), (that is to say) : — 
 
 " (a) "Where any loss of life, or personal injury, is caused to any 
 
 person being carried in the ship ; 
 " (i) Where any damage or loss is caused to any goods, merchan- 
 dise, or other things whatsoever, on board the ship (m) ; 
 " (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 ; (that is to say) 
 "(i) In respect of loss of life or personal injury either alone or 
 together with loss of or damage to vessels, goods, merchan- 
 dise, or other things, an aggregate amount not exceeding 
 fifteen pounds for each ton of their ship's tonnage (o) ; and 
 " (ii) In respect of loss of or damage to vessels, goods, merchandise, 
 or other things, whether there be in addition loss of life, 
 
 Sect. 26. 
 
 (I) Part owners are not deprived of 
 the protection of the Act by fanlt or 
 privity of a, co-owner, even though he 
 he also the master. Wilson v. Dickson, 
 2 B. & Aid. 2 ; The Obey, L. R., 1 A. 
 & E. 102 ; The Spirit of the Ocean, 12 
 L. T. 239. 
 
 (m) This does not apply to loss after 
 transhipment into another ship, in con- 
 sequence of a, collision. The Bemina, 
 12 P. D. 36. 
 
 («) Where a collision occurred owing 
 to the faulty steering of one vessel, 
 which was caused by a pin of the steam- 
 steering gear being out, that pin not 
 having been properly put in, it was held 
 that the damage arose from " improper 
 navigation" vrithin the section. The 
 Warkworth, 9 P. D. 20, 145. In the 
 Court of Appeal, Brett, L. J., laid it 
 down that ' ' all damage wrongfully done 
 by a ship to another whilst it is being 
 navigated, where thS wrongful action of 
 the ship by which damage is done is 
 due to the negligence of any person for 
 whom the owner is responsible, is com- 
 prised within the statute." AndBowen, 
 L. J., said: — "Improper navigation 
 means impropernavigationby the owner 
 of the ship. Now, in the eye of the 
 
 law, the owner does improperly navi- 
 gate his ship if, owing to the negligence 
 of some one for whom he is responsible, 
 his ship does damage to another. It is 
 impossible for us to treat ' improper ' as 
 equivalent to ' unskilful ' — on the con- 
 trary, it means 'wrongful.' A person 
 who uses his ship, which is not ' in a 
 condition ' to be so employed, does in 
 reality improperly navigate her." See 
 also Good V. London Steamship Owners' 
 Association, L. E., 6 C. P. 503 ; and 
 Carmichael v. Liverpool Sailing Ship 
 Owners' Association, 19 Q. B. D. 242 ; 
 Canada Shipping Co. c. British Ship- 
 owners' Mutual Protection Association, 
 22 Q. B. D. 727 ; 23 Q. B. D. 342. In 
 Wahlberg v. Toung (46 L. J., C. L. 
 783), it was held that the owners of a 
 tug, so improperly navigated as to run 
 the tow aground, were protected by the 
 Act, although that amounted to a breach 
 of the contract to tow. 
 
 (o) The claimants in respect of loss of 
 life or personal injury alone take the 
 benefit of Tl. out of the 161., and they 
 may prove for any deficiency against 
 the remaining Sk, pari passu with the 
 claimants in respect of loss or damage 
 to ships, &c. The Victoria, 13 P. D. 125 ; 
 Tiie Crathie, 1897 P. 178. 
 
30 THE CONTRACT. 
 
 Sect. 26. or personal injury, or not, an aggregate amount not exceed- 
 ing eight pounds for eacli ton of their ship's tonnage. 
 
 " (2) For the purpose of this section — 
 
 " (a) The tonnage of a steamship shall be her gross tonnage without 
 deduction on account of engine room {p) ; and the tonnage' of 
 a sailing ship shall be her registered tonnage : 
 
 " Provided that there shall not be included in such tonnage any 
 space occupied by seamen or apprentices and appropriated to 
 their use which is certified under the regulations scheduled 
 to this Act with regard thereto (y) : 
 
 " (b) "Where a foreign ship has been or can be measured according 
 to British law, her tonnage, as ascertained by that measure- 
 ment, shall, for the purpose of this section,, be deemed to be 
 her tonnage : 
 
 " (c) Where a foreign ship has not been, and cannot be, measured 
 according to British law, 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 such 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 such ship (»•). 
 
 " (3) The owner of every seagoing ship or share therein shaU. be 
 liable in respect of every such loss of life, personal inj ury, 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." 
 
 The owner of a British ship is not entitled to the benefit of these 
 provisions unless liis ship is "a recognized British ship," and 
 registered as such (s). 
 
 This right to limitation of liability may be waived by contract. 
 
 {p) See Eurrell v. Simpson, 4 Sess. Palermo, 10 P. D. 21. Navigation 
 
 Ca. (4th series) 177; The Franoonia, 3 spaces, The Umbilo, (1891), P. 118; 
 
 P. D. 164. See note (<?) below. The Pilgrim, (1895) P. 117. As to ex- 
 
 [q) See Schedule 6. elusion of the water ballast space in 
 
 [r) As to the measurement of tonnage, ships with double bottoms, see M. S. 
 
 see M. S. Act, 1894, ss. 77—85. As to Act, 1894, s. 81 ; The Zanzibar, (1892) 
 
 space occupied by deck cargo, Eich- P. 233. As to a British ship exempted 
 
 mond Hill Steamship Co. v. Trinity from registry, The Brunei, (1900) P. 24. 
 House, (1896) 1 Q. B. 493 ; 2 Q. B. 134. (s) M. S. Act, 1894, =. 508 ; The 
 
 As to deduction of crew space, The Andalusian, 3 P. D. 182. But see 
 
 Franconia, 3 P. D. 164 ; The Petrel, M. S. Act, 1898, as to unfinished ships 
 
 (1893) P. 320 ; in foreign vessels. The after launching. 
 
EESPONSIBILITY OP CARRIERS BY SEA AT LAW. 31 
 
 An agreement by a yacht-owner that, if he disobeyed any of certain Sect. 26. 
 club sailing rules, he should be liable for " all damages arising 
 therefrom," was held to waive the right to limit his liability to 8/. 
 a ton {t) . 
 
 27. The ordinary mode of obtaining this limitation of liability Prooeedings 
 is for the shipowner to pay the statutory amount into Court, in an 
 
 action in which he asks for a decree limiting his liability to that 
 sum. The various claims are then ascertained, and the fund is 
 distributed rateably (it). 
 
 The shipowner is liable to pay interest upon the statutory 
 amount from the date of the damage (x) ; and also the costs of 
 proceedings properly brought in respect of the damage, these being 
 a separate personal liability (y) . 
 
 The shipowner is liable in the full amount in respect of each 
 distinct occasion upon which damage giving rise to liability has 
 occurred (s). But where injury had been done to two other ships, 
 " substantially at the same time and on the same occasion," it was 
 held that the 8/. a ton covered the whole liability to both (a) . 
 
 On the other hand where a vessel, having by an improper 
 manoeuvre caused damage to the A., improperly contiaued the 
 manoeuvre, and so sank the D., it was held that these were distinct 
 occasions (i). 
 
 Where, in a coUision, both 'ships have been to blame, the whole Both to 
 damage done to the two ships is divided equally between the 
 owners. The half damages on each side are set against one 
 another, and the balance is paid by him who has sustained the 
 smaller loss (c). And the same course is followed, although one of 
 the shipowners may have obtaiHed a decree limiting his liability (d). 
 Except that the other,.ifith0 balance be in his favour, has only a 
 right of proof for it on the fund. 
 
 28. The provisions of the Act apply, although the goods lost Application 
 may have been in course of transit under a contract which was in company. 
 
 {t) The Satanita, (1897) A. C. 59 ; The CratHe, (1897) P. 178. Cf. The 
 (1895) P. 248. Empusa, 5 P. D. 6. 
 
 {«) See as to procedure, M. S. Act, ^ 3^^/°^ ^"™' ^ ^- ^°^- l^^- 
 
 1894 =. 604 ; L. & S. W. Rail. Co. .. ^ M S^Act 1894, s. 503 (3). 
 
 Jamea, L. R., 8 Ch. 241 ; Williams ,. («) ^^^^ ^^i^^' ^ »- ^■^- & ^- ^^^ ' 
 
 Bruce, Ad. (2;d) Ch. VII. ^he Creadon, 54 L. T. 880. 
 
 .oru^e, ^ .<, I ^^j ^^^ Sehwan, (1892) P. 419. 
 
 (x) The Northumbria, L. R., 3 A. & («) As to cargo, see infra, s. 704. 
 
 E. 6 ; Smith v. Kirby, 1 Q. B. D. 131 ; («Z) Stoomvaart Maatschappy Neder- 
 
 Straker v. Hartland, 34 L. J., Ch. 122 ; land v. P. & 0. Co., 7 A. 0. 795. 
 
32 
 
 THE CONTEACT. 
 
 Other ex- 
 emptions of 
 railway 
 companies. 
 
 Sect. S8. part for carriage by land (e) ; and by sect. 12 of the Eegulation 
 of Eailways Act, 1871 (/), the benefit was extended to railway 
 companies who, under contracts for carrying persons, animals, or 
 goods by sea, procure them to be carried in vessels which do not 
 belong to the company. In such a case the company is answerable 
 in Hke manner and to the same amount as it would have been had 
 the vessel belonged to it ; provided the loss or damage happened 
 during the carriage in the vessel, of which the proof lies upon the 
 company. 
 
 29. Further, in the case of a railway company which owns or 
 uses steamers for carrying on communication between particular 
 places, under an Act which incorporates Part IV. of the Eailways 
 Clauses Act, 186r3, the limitations of liability fixed by sect. 7 of 
 the Railway and Canal Traffic Act, 1854 {g), are applicable (/(). 
 
 By that section, " no greater damages shall be recovered for the 
 loss of or for any injury to any such animals beyond the sums 
 hereiaafter mentioned ; that is to say, for any horse, 50/., for any 
 neat cattle, per head, 15/., for any sheep or pigs, per head, 21. ; 
 unless the person sending or delivering the same to such company 
 shall, at the time of such delivery, have declared them to be 
 respectively of a higher value than as above mentioned, in which 
 case it shall be lawful for such company to demand and receive by 
 way of compensation for the increased risk and care thereby 
 occasioned a reasonable percentage upon the excess of the value so 
 declared above the respective sums so Hmited, as aforesaid, and 
 which shall be paid in addition to the ordinary rate of charge " ; 
 such increased rate of charge to be notified as in the Carriers Act 
 (11 Geo. lY. & 1 WiU. IV. c. 68). 
 
 The protection of the Carriers Act, 1830 («), extends only to 
 cai-riers by land. When, therefore, the contract is for a transit 
 which is to be pai-tly by land and partly by water, the benefit of 
 the Act only avails the carrier during the land transit. But to 
 that extent it does avail (A) . 
 
 (c) L. & S. "W. EaO. 
 L. R., 8 Ch. 241. 
 
 Co. V. James, 
 
 (/) 34 & 35 Viot. 0. 78; and see 
 Interpretation Act, 1889, s. 38. See 
 Doolau V. Midland Rail. Co., 2 A. C. 
 792. 
 
 (<7) 17 & 18 Vict. 0. 31. 
 
 (h) 26 & 27 Viot. 0. 92, 8. 31. Doo- 
 
 lan V. Midland Rail. Co., 2 A. C. 792. 
 And see 34 & 35 Vict. o. 78, a. 12. 
 The provision of the Regulation of 
 Railways Act, 1868 (31 & 32 Vict. c. 119, 
 s. 16) applicable to railways generally 
 was repealed hy the Railway and Canal 
 Traffic Act, 1888 (51 & 52 Viot. o. 25). 
 
 (i) 11 Geo. IV. & 1 Will. IV. 0. 68. 
 
 [h) Le Couteur v. L. & S. W; Rail. 
 
RESPONSIBILITY OP CAERIEES BY SEA AT LAW. 33 
 
 30. A further exception, established by law, is that a shipowner Sect. 30. 
 is not answerable for damage to goods carried by him, which has Compulsory 
 been caused by a pilot whom he was compelled by law to employ. ^^ °*^®^' 
 
 Pilotage districts have from time to time been constituted, and 
 the employment of pilots licensed for these districts has been made 
 compulsory on shipowners, by charters or by Acts of Parliament, 
 either local or general {t). Where that is the case, and a pilot has 
 been allowed to take charge of a ship in obedience to such com- 
 pulsion, the shipowner is not liable for the consequences of his 
 acts. This is declared by sect. 633 of the Merchant Shipping Act, 
 1894 (m), which is as follows: — 
 
 "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." 
 
 Whether the employment of a pilot in any case has been com- 
 pulsory, is generally a question depending upon the construction of 
 the Merchant Shipping Act, 1894, or of the local Acts or charters 
 relating to the particular district (o) . 
 
 By sect. 603 of the Merchant Shipping Act, 1894, compulsory 
 pilotage, subject to existing exemptions, was kept in force in all 
 districts in which pilotage was compulsory immediately before the 
 commencement of the Act (p). 
 
 Co., L. U., 1 Q. B. 54; Baxendale v. Haiiiow, 4 P. D. 197. In the Mersey, 
 
 G. E. Ball. Co., L. E., 4 Q. B. 244. The Annapolis, 30 L. J., Ad. 201 ; The 
 
 As to the effect of that Act, see Hodges City of Cambridge, L. R., 5 P. C. 451 ; 
 
 on Railways, oh. xvi. b. 4. L. R., 4 A. & E. 161 ; The Princeton, 
 
 {1} See M. S. Act, 1894, ss. 603—605, 3 P. D. 90 ; The Cachapool, 7 P. D. 
 
 622—625. 217 ; The Servia, (1898) P. 36. In the 
 
 {mj With regard to liability for Tyne, The Tyne Improvement Commis- 
 
 ■wrongful or negligent acts done by a sioners v. General Steam Nav. Co., 
 
 pilot, compulsorily in charge, the ship- L. R., 2 Q. B. 65 ; The Johann 
 
 owner is exempted at common law as Sverdrup, 11 P. D. 49 ; 12 P. D. 
 
 well as by the statute. The HaUey, 43. In the Hmnber, The Maria, 
 
 L. R., 2 P. C. 193, at p. 201. But the L. R., 1 A. & E. 358 ; The Rigborgs 
 
 exemption of responsibility under a con- Minde, 8 P. D. 132. At Bristol, The 
 
 tract of carriage appears to depend on Charlton, 73 L. T. 49. At Falmouth, 
 
 the statute. The Juno, 1 P. D. 135. In the Dee, 
 
 («) See The Carl XV., (1892) P. 132, Jones v. Bennett, 63 L. T. 705. At 
 
 324 ; Stafford ». Dyer, (1895) 1 Q. B. 566. LlaneUy, The Ruby, 15 P. D., 139, 164. 
 
 (o) See Marsden on Collisions (4th), (^) See The Warsaw, (1898) P. 127, asto 
 
 pp. 287 — 306. In the Thames, see The the effect of local exemptions in this case. 
 
 C. — C. r» 
 
34 THE CONTRACT. 
 
 Sect. 80. By sect. 604, the employment of a pilot by any sMp carrying 
 ' passengers between places in the British Isles is compulsory unless 
 the master or mate holds a pilotage certificate (q). 
 
 By sect. 625 :— 
 
 ' ' The f oUowing ships, when not carrying passengers (r), shall, without 
 prejudice to any general exemption under this part of this Act, he 
 exempted from compulsory pilotage in the London district, and in the 
 Trinity House outport districts (s) ; (that is to say) : — 
 
 "(1) Ships employed in the coasting trade (i) of the United 
 Kingdom : 
 
 " (2) Ships of not more than sixty tons burden : 
 
 " (3) Ships trading {u) from any port in Great Britain within the 
 London district or any of the Trinity House outport districts 
 to the port of Brest in France, or any port in Europe north 
 and east of Brest, or to the Channel Islands or Isle of Man : 
 
 "(4) Ships trading from the port of Brest, or any port in Europe 
 north and east of Brest, or from the Channel Islands or Isle 
 of Man to any port in Gfreat Britain within the said London 
 or Trinity House outport district : 
 
 " (5) Ships navigating within the limits of the port to which they 
 belong "(a;). 
 
 By sect. 605 of the same Act, a vessel passing through a pilotage 
 district, on a voyage between places which are both out of the 
 
 {q) By the M. S. (Exemption from Hamburg, was held exempt when 
 Pilotage) Act, 1897 (60 & 61 Vict. u. 61), putting into the Thames. So also in 
 s. 1, the exemptions granted hy s. 59 of The Rutland, (1897) A. 0. 333 ; (1896) P. 
 6 Geo. IV. c. 125, and the Order in 281, was a ship carrying a general 
 Council of Peh. 18, 1854, ceased to cargo from the River Plate for Rotter- 
 operate in the case of vessels on voyages dam, and cattle for London, while pro- 
 between any port in Sweden or Norway oeeding to Rotterdam after landing her 
 and the port of London, as and from cattle in London. 
 
 July 1, 1898. But of. The Columbus, {x) A British ship belongs to the port 
 
 80, L. T. 203. at which she is registered ; M. S. Act, 
 
 (r) The Hanna, L. R., 1 A. & E. 1894, s. 13. See aiso the general exemTp- 
 
 285; The Lion, L. R., 2 P. 0. 525. tions from compulsion under 6 Geo. IV. 
 
 Distressed seamen carried under ss. 190 c. 125, ss. 59 — 71. That Act was re- 
 
 — 193 of the same Act are not " passen- pealed by the M. S. Repeal Act, 1854, 
 
 gers." The Clymene, (1897) P. 295. but the exemptions are preserved by 
 
 (s) See Hadgraft v. Hewith, L. R., sect. 603 of the M. S. Act, 1894 ; 
 
 10 Q. B. 350. modified by M. S. Act, 1897. Stanton 
 
 {t) The Lloyds, 32 L. J., Ad. 197; v. Banks, 27 L. J., M. C. 105 ; The 
 
 The Winestead, (1895) P. 170 ; The Earl of Auckland, 30 L. J., Ad. 121; 
 
 Glanystwyth, (1899) P. 115. 5 L. T. 558 ; The Moselle, 32 L. T. 
 
 («) The Wesley, Lush. 268 ; Courtney 570; The Stettin, 31 L. J., Ad. 208. 
 
 V. Cole, 19 Q. B. D. 447. In The See General Steam Nav. Co. ^. British 
 
 Sutherland, 12 P. D. 154, a vessel & Col. Steam Nav. Co., L. R., 3 Ex. 
 
 which put into the Thame for repairs 330 ; L. R. 4 Ex. 238 ; The Hankow, 
 
 while on a voyage from Liverpool to 4 P. D. 197. 
 
RESPONSIBILITY OF CARRIERS BY SEA AT LAW. 35 
 
 district, is exempt from employing a pilot in that district, unless Sect. 30. 
 she loads (y) or discharges at a place within the district, or at a 
 place ahove the district on the same river, or its tributaries. 
 
 31. It is not necessary, in order to entitle the shipowner to Exemption in 
 
 rGSTDSCt of 
 
 the protection of sect. 633, that the loss or damage should have pilot's acts. 
 occurred at a spot, or at a time, at which the employment of a 
 pilot continued to he compulsory. The section applies where a 
 pilot licensed for the district within which the loss happened, and 
 compulsorily employed within that district, was stiU in fact in 
 charge of the vessel (though in a part of the district where 
 employment of a pilot was no longer compulsory), if the service 
 formed part of the original employment and was covered by the 
 payment made to the pilot under compulsion of law (s). And the 
 same may be true though the vessel may have come to anchor, and 
 the further employment of the pilot may have been voluntary. 
 Where a vessel had anchored as a step in her progress into dock, 
 and it was part of the duty of the pilot, for which the shipowner 
 was compelled to pay him, to take her into dock, it was held that 
 the shipowner was still protected {a). 
 
 The protection of sect. 633 extends to the owners of foreign 
 ships when they are compelled to take pilots on entering British 
 ports (6). 
 
 It also appears to extend to cases in which shipowners are com- Foreign ports, 
 pelled to take pilots in foreign ports. That is, if the conduct of 
 the navigation of the vessel there is put into the hands of the pilot 
 by the regulations of the place. If the pilot (as in the Suez Canal) 
 is an adviser only, the charge of the vessel being left with the 
 master, the fact that the master was compelled to take the pilot on 
 board does not relieve the shipowner of liability for the acts which 
 he may have been permitted to do (c). 
 
 But if by the law of the foreign port the master is compelled to 
 
 (y) Taking in coals at an intermediate P. D. 217; The Woturn Abbey, 20 
 
 port, for the purposes of the voyage, is L. T. 621. 
 
 a loading in this regard. The Winston, (a) The Princeton, 3 P. D. 90; The 
 
 8 P. D. 176 ; 9 P. D. 85. City of Oamhridge, L. R., 5 P. C. 451 ; 
 
 (a) The Charlton, 73 L. T. 49 ; 72 The Annapolis, 30 L. J., Ad. 201 ; 
 
 L. T. 198 ; General Steam Nav. Co. of. The Caohapool, 7 P. D. 217 ; The 
 
 V. British & Col. SteamKav. Co., L. R., , Wobum Abbey, 20 L. T. 621. 
 
 4 Ex. 238; L.R., 3 Ex. 330; and per (*) The Annapolis, 30 L. J., Ad. 201. 
 
 Brett, L. J., The Guy Mannering, 7 (c) The Guy Mannering, 7 P. D. 62, 
 
 P. D. 132, at p. 134; of. The Lion, 132; The Augusta, 67 L. T. 326 ; The 
 
 L. R., 2 P. C. 525 ; The Caohapool, 7 Prins Hendrik, (1899) P. 177. 
 
 d2 
 
36 THE CONTRACT. 
 
 Sect. 31. allow the pilot to have charge of the vessel, the shipowner appears 
 to be exempted from loss hy his acts, even though by the law of 
 that place there would be no such exemption {d). 
 Daties of 32. A shipowner is not protected by sect. 633 unless the loss 
 
 sister?'^ was altogether due to some fault or incapacity of the pilot. If 
 there was also contributory fault on the part of the shipowner, or 
 his servants, the section will not apply (e). And the fact that 
 a pilot is on board does not relieve the master and crew of their 
 duties. 
 
 The duties of a pilot are not, however, very clearly defined. 
 He conducts the navigation of the vessel ; directs her course and 
 speed (/) ; and for that purpose gives the needful directions for 
 regulating her sails, or engines, and her anchors and ' mooring 
 ropes. But the duty of carrying out those directions lies upon 
 the master ; it is for him to order by which of the crew they shall 
 be performed, and to control the manner of that performance. 
 And the master must see that the duties incidental to the naviga- 
 tion are carefully attended to [g). 
 
 " On the one hand," the pilot " has no power to place the crew 
 at particular posts in the ship, or to regulate the discipline : on the 
 other hand, he is to regulate the course of the ship through the 
 water ; he is taken on board in order to control the management 
 of her for this purpose : a sailing vessel cannot be steered unless 
 her sails are regulated in a particular manner ; and therefore he 
 has power to regulate the management of the sails. The owner of 
 the ship is not liable for the consequences of the wrongful or negli- 
 gent acts committed by the pilot, whom he is compelled to employ. 
 But if the ship goes wrong in consequence of a failure of duty by 
 the look-out man, it is not the fault of the pilot, and the owner is 
 responsible. If the pilot's orders as to steering the ship are not 
 obeyed, and if mischief in consequence ensues, the owner cannot 
 escape from liability " (h). 
 
 {d) Cf. The Halley, L. E., 2 P. C. The Eigborgs Minde, 8 P. D. 132 ; The 
 
 193. Kipon, 10 P. D. 66 ; The Monte. Eosa, 
 
 («) The lona, L. E., 1 P. C. 426 ; (1893) P. 23. 
 
 Clyde NaT. Co. «;. Barclay, 1 A. C. 790. (A) Per Brett, L. J., The Guy Man- 
 
 (/) The Calabar, L. R., 2 P. C. 238. uering, 7 P. T>. 132, at p. 134. See 
 
 {ff) See per Dr. Lushington, The Marsden on CoUisions (4th), pp. 266 
 
 Diana, 1 W. Eoh. 131, at p. 136 ; The et seq., for a statement of the law on the 
 
 City of Cambridge, L. E., 5 P. C. 451 ; subject. 
 
CHAPTER II. 
 
 THE EMPLOYMENT OF THE SHIP. 
 
 37 
 
 SECT. 
 
 Modes of employing sliips 33 
 
 Wio may determine haw the ship 
 shall he used — Position of part 
 owners 34 
 
 Part owner may sue or he sued on 
 contract 35 
 
 Authority of managing owner or 
 ship's hushand 36 
 
 Eegistered managing owner 37 
 
 Right of part owners to restrain the 
 use of ship until security given . . 38 
 
 Owners may he restrained from 
 using ship inconsistently with 
 charter party 39 
 
 So also a prior mortgagee not ia 
 possession, unless security im- 
 paired 40 
 
 When is security impaired? 41 
 
 SECT. 
 
 Position of suhsequent mortgagee. . 41a 
 
 Authority of master to contract for 
 owners— Substituted master . , . . 42 
 
 Consistently with the vessel's usual 
 employment 43 
 
 Master may not alter charter party 
 — Where charter party broken at 
 foreign port 44 
 
 JPrimd facie master is servant of 
 registered owner 45 
 
 ESeot of change of ownership on 
 master's authority 46 
 
 Master personally Uahle, and able 
 to sue on contracts made in his 
 own name 47 
 
 Liable for his own torts ; . . . 48 
 
 Where vessel worked for joint bene- 
 fit of master and owner , , . 49 
 
 33. Speaking generally, shipowners offer the services of their Modes of 
 vessels in two ways: — Either the ship is put up for a defined ^^^^"^^ 
 voyage, and takes the goods of any persons willing to ship in her ; 
 or the owner seeks for a merchant who will employ the whole 
 vessel upon some voyage, or during some period of time, for 
 purposes and upon terms to be agreed with him. 
 
 "When a ship is put up to carry for any persons, indifferently, 
 who may he willing to ship goods in her on the particular voyage, 
 she is said, among lawyers, to be employed as a general ship {a). 
 When the whole, or substantially the whole, of her services are 
 let to one person, or set of persons, the contract used is known as 
 a charter party, and she is said to be chartered by the merchant. 
 Contracts relating to shipments in general ships are embodied in 
 documents called bills of lading, and usually follow a common 
 
 (a) The expression does not appear to convenient. Putting the ship "on the 
 be used by mercantile men, but it is berth " is a phrase conunonl^ used. 
 
38 
 
 THE CONTEACT. 
 
 Sect. 83. 
 
 Who may 
 determine 
 how the ship 
 shall be used. 
 
 type, -with changes of detail. Charter parties are used to carry out 
 a greater variety of purposes ; and we shall have to distinguish 
 between some different types which give rise to certain hroad 
 differences of relation between the contracting parties, and between 
 them again and the outside world. 
 
 Before discussing these contracts, however, it will be well to 
 consider, shortly, who are the persons that can decide how the ship 
 shall be used ; and who are the persons responsible for the per- 
 formance of her engagements. 
 
 34. The ship may belong to one owner or to several ; and if to 
 several, they may hold her in partnership, or may have indepen- 
 dent shares in her. When she belongs to partners, each of them 
 is the agent of the others, and contracts made by one for her 
 employment will be binding on all. But where there are several 
 independent part owners, they hold the ship as tenants in common, 
 not as partners, though her earnings are treated on the footing of 
 a partnership (&). 
 
 One part owner, then, cannot generally, as such, bind the other 
 owners by engaging to let the use of the ship to a particular 
 person, or to employ her in a particular way. He is not, from the 
 mere fact of co-ownership, their agent to do the ship's business. 
 To make his contracts binding on them, he must have had actual 
 authority to contract on their behalf ; imless by their conduct they 
 have led the other contracting party to believe that he had that 
 authority (c). When a contract for the employment of the ship 
 has been made by one part owner with the authority of his co- 
 owners, they each become personally bound by it ; and each is 
 liable in full for a breach of it ; having a right of contribution 
 from the others. In Alexander v. Dowie {d), it was held that 
 a part owner, in possession of the ship, could settle a claim for 
 damages for detention so as to bind the others. 
 
 maJs°ror ^^- ^^^^ °^ *^® P^^* owners, then, for whom, and with whose 
 
 he sued ou authority, a contract for the ship's employment has been made, is 
 
 liable in full for any breach of it. And he may be sued alone for 
 
 the breach, subject to a right to apply to the Court, or a judge. 
 
 Position of 
 part owners. 
 
 {b) Green v. Briggs, 17 L. J., Ch. 
 323 ; Maolachlan, 95 ; mfra, a. 590. 
 (c) Brodie t>. Howard, 17 0. B. 109; 
 
 Frazer v. Cuthbertson, 6 Q. B. D. 93, 
 at p. 98. 
 
 [d) 25 L. J., Ex. 281. 
 
THE EMPLOYMENT OP THE SHIP. 39 
 
 to require the plaintiff to join the other owners who are liable on Sect. 35. 
 the contract, as defendants (e) . 
 
 Formerly, a part owner sued alone upon a contract might have 
 pleaded the non-joinder of the other owners in abatement (/) ; hut 
 that right no longer exists {g). An order must be applied for if it 
 is desired to have them joined; and such an order will generally 
 be made (A). 
 
 A judgment against one of the part owners, although unsatis- 
 fied, is a bar to any action for the same matter against others of 
 them («). 
 
 Again, one part owner may now sue alone on the contract. His 
 action will not fail for want of the others, as formerly it would have 
 done (A). But the defendant may apply to the Court to require 
 the other owners to be joined (/). If they are not willing to join 
 as plaintiffs, the proper course seems to be to join them as defen- 
 dants (m). 
 
 By rule 9 of E. S. 0. 1883, XYI., however, one owner may sue 
 on behalf of himself and the other owners. In De Hart ». Steven- 
 son (m), where this was done, the Court refused to require the other 
 part owners to be added as plaintiffs, the only object being to secure 
 their liability for costs. 
 
 36. The business of a ship having several owners is ordinarily Authority of 
 conducted by a managing owner, or a ship's husband, appointed by owner or 
 the owners for the purpose (o). He bears their authority, and acts \,^^^^ ^' 
 as their general agent to do all the ordinary business of the ship. 
 Thus, usually, he is empowered to make any such contracts for 
 carrying goods in the ship, or for letting her, as are consistent 
 with her ordinary employment; and to do what else may be 
 
 («) E. S. 0. 1883, XVI. 11; cf. (i) Kendall ». Hamilton, 4 A. C. 504. 
 
 XVI. 9 ; PiUey v. Eobinson, 20 Q. B. D. (A) Boson v. Sandford, 2 Salt. 440 ; 
 
 155. per Lord Blackburn, Kendall v. Hamil- 
 
 (/) PoweU V. Layton, 2 B. & P. ton, 4 A. C. 504, at p. 643. 
 
 N. E. 365 ; tmless the action could he (l) E. S. C. 1883, XVI. 11. 
 
 laid in tort ; G-ovett v. Eadnidge, 3 (m) See Luke v. South Kensington 
 
 East, 62. Hotel Co., 11 Ch. D. 121 ; CuUen v. 
 
 {g) E. S. C. 1883, XXL 20. Knowles, (1898) 2 Q. B. 380. 
 
 (A) See per Lord Cairns, Kendall v. («) 1 Q. B. D. 313. 
 
 Hamilton, 4 A. C. 604, at p. 516; Pilley (o) Contracts among owners fettering 
 
 V. Eobinson, 20 Q. B. D. 155. Where their discretion in appointing the ship's 
 
 the CO -contractor is abroad, see Wilson husband, or the master, are jealously 
 
 V. Balcarres Brook S.S. Co., (1893) 1 scrutinized, and may be illegal. See 
 
 Q. B. 422 ; or cannot be found, Eobin- Card v. Hope, 2 B. & C. 661 ; The 
 
 son V. aeisel, (1894) 2 Q. B. 685. England, 12 P. D. 32, 
 
40 THE CONTEACT. 
 
 Sect. 36. " necessary to enable the ship to prosecute her voyage and earn 
 ' freight" {p). And the contracts so made are generally binding 
 
 on all the part owners personally {q). 
 
 But a managing owner's authority, as general agent for the 
 owners, is limited to contracts which are reasonably needful for 
 carrying on the ordinary business of the ship. He cannot, for 
 example, validly engage her for an unusually long period in 
 advance, and thus take the control of her out of the owners' 
 hands. And the extent of his authority may be a question of 
 fact, to be determined upon the 'particular circumstances. He 
 may m truth be acting for some of the part owners only. And 
 those for whom he does act may show that he was not empowered 
 to make the particular contract on their behalf; unless by their 
 course of business, or in some other Tvay, they have held him out 
 as having that power (r). 
 
 In Thomas v. Lewis (s), it was held that a ship's husband had 
 not power to cancel a charter party which he had made, although 
 it was for the benefit of the owners to do so. But the question 
 there arose in an action, against one of the owners, on a promise 
 to pay a sum of money in consideration of the charter being 
 cancelled. And the decision was, that the ship's husband was not 
 authorized to bind the owner to pay that ; it was not necessary to 
 decide that he could not put an end to the charter. 
 
 Eegistered 37. By the Merchant Shipping Act, 1894, sect. 59 : — 
 
 managing 
 
 " (1) The name and address of the managing owner for the time 
 being of every ship registered at a port in the United Kingdom shall 
 be registered at the custom house of that port. 
 
 " (2) Where there is not a managing owner, there shall be so regis- 
 tered the name of the ship's husband, or other person to whom the 
 management of the ship is entrusted by or on behalf of the owner ; 
 and any person whose name is so registered shall, for the purposes of 
 this Act, be under the same obligations, and subject to the same 
 liabilities, as if he were the managing owner. 
 
 " (3) If default is made in complying with this section the owner 
 shall be liable, or if there are more owners than one each owner shall 
 be hable in proportion to his. interest in the ship, to a fine not 
 
 {p) Barker v. HigMey, 32 L. J., retract the authority, see Tlie Vindobala, 
 
 C. V. 270 ; Abbott (Uth), i. 3, 4 ; 60 L. T. 657 ; 13 P. D. 42. 
 Story, Agency, s. 35 ; and see Ooult- (r) Frazer v. Cuthbertson, 6 Q. B. D. 
 
 hurst V. Sweet, L. R., 1 0. P. 649. 93 ; Miles v. Mcllwraith, 8 A; 0. 120. 
 
 (?) As to the part owner's right to (s) 4 Ex. D. 18, 
 
 owner. 
 
THE EMPLOYMENT OF THE SHIP. 41 
 
 exceeding in the whole one hundred pounds each time the ship leaves Sect. 37. 
 any port in the United Kingdom." 
 
 The efEect of registration as managing owner upon the question 
 of agency was considered in Frazer v. Cuthhertson (t). The action 
 there was for necessaries supplied to a ship of which the defendant 
 was one of the registered part owners ; and of which one "Watson, 
 another owner, appeared as the registered managing owner. The 
 order for the goods had been given by Watson, who was employing 
 the vessel without defendant's knowledge, and' in violation of an 
 agreement between them ; and the defendant was not interested in 
 the adventure. 
 
 Bo wen, J., said : " The law relating to the position and liabilities 
 of registered owners of ships is tolerably clear. Shipowners, to 
 begin with, are not necessarily partners. An owner's liability or 
 non-liability for necessaries supplied to a ship depends on the 
 question whether the person who gave the order had his authority 
 to give it. The register, no doubt, is evidence of ownership of the 
 vessel, and the registered owner, until the contrary is shown, may 
 be presumed to be the employer of those who have the custody of 
 her, and who are engaged in her navigation. But a part owner, 
 whether registered or not, has no power to bind the other owners 
 without their assent. The question in each case is one of fact, 
 whether he has had such authority committed to him, or if this is 
 not in fact the case, whether he has been allowed to hold himself 
 out as armed with such apparent authority. Such being, beyond 
 all doubt, the general law, what has really to be determined in this 
 ease is the question, whether by inadvertently sufiering the entry 
 of the 31st of December, 1877, to remain unaltered, the defendant 
 Outhbertson held out to third parties consulting the register that 
 J. H. Watson was his agent to manage and navigate the ship on 
 his behalf. I will assume, for the purpose of my judgment, that 
 third persons consulting the register had a right to consider,, as 
 between themselves and aU owners upon the register, including, of 
 course, the defendant, that J. H. Watson was a managing owner 
 within the meaning of the section I have referred to. The term 
 managing owner, however, is not defined in the Act of Parliament; 
 it is a commercial and not a legal expression. It is perfectly true 
 that a managing owner is a name which frequently and commonly 
 
 {t) 6 Q. B. D. 93 ; and see BaumvoU, &c. v. Fumess, (1893) A. C, 8, 
 
42 
 
 THE CONTRACT, 
 
 Sect. 37. denotes an owner to whom the other owners have delegated the 
 management of a vessel. But I do not think it follows, as of 
 course, that every single other owner must he taken to have joined 
 in the adventure merely heeause there is an owner called a manag- 
 ing owner. Language occurs both in some text books and in some 
 decided cases which seems to be based on the assumption that a 
 managing owner" is an owner employed by and on behalf of all his 
 brother-owners without exception. See Abbott on Shipping, p. 72, 
 10th ed. ; Barker v. Highley {u) ; Coulthurst v. Sweet («). But 
 there is no magic in the term ' managing owner ' which creates him 
 a plenipotentiary for those owners whose agent he is not in fact. 
 The writers and judges in the passages and cases to which I allude 
 have been discussing the extent of the authority of the person 
 appointed, not the question whether every single owner must be 
 taken to have joined in his appointment. In the two cases I have 
 cited it was assumed, and was no doubt the fact (as is often, if not 
 generally, must be the fact), that all the owners were partners in 
 the employment of the ship, and assented to the appointment of 
 one managing owner. But an advertisement that A. B. is manag- 
 ing owner of a vessel seems to me to mean no more than that as 
 owner he is entrusted by such of the owners as are interested in 
 the ship's employment to manage her affairs. An entry to a like 
 effect upon the register does nothing further. The 36th section of 
 the Act nowhere creates new agents, new functions, new capacities, 
 nor clothes existing agents with enlarged powers. The section is 
 part of the machinery designed to secure adequate protection for 
 lives and property at sea, and provides with that or a similar object 
 that a certain class of agents when they are appointed shall be 
 registered, so that it may be known who in fact is managing the 
 vessel. A managing owner registered under the Act is no more 
 and no less than a managing owner before the Act. He binds 
 those whose agent he is ; he binds nobody besides. Here, J. H. 
 Watson was not in fact the agent of the defendant Cuthbertson ; 
 it is not suggested that he was ; and I do not think that, by leaving 
 unaltered the entry in the registry which described J. H. Watson 
 as managing owner, the defendant Cuthbertson held him out as 
 his managing owner, that is to say, as clothed with authority to 
 bind any owners other than those who had, in fact, entrusted to 
 
 M 16 C. B. (N. S.) 27 ; 32 L. J., 0. P. 270. {«) L. R., I C. P. 649. 
 
THE EMPLOYMENT OF THE SHIP. 43 
 
 him the management of the ship. Judgment must therefore he Sect. 37. 
 entered for the defendant, with costs." 
 
 38. When the part owners disagree as to the mode of employing Eight of part 
 the ship, those who own the majority of the shares have the right restrain the 
 to control her. But they may be required to secure the minority „otil*eeoimty 
 against a possible loss of their interests in her. If the ship is in g™°- 
 the possession of the minority, the majority may obtain possession 
 by proceedings in the Court of Admiralty ; giving security to the 
 minority if they object to the proposed voyage (y). On the other 
 hand, if the majority have possession, the dissentient owners may, 
 by an action of restraint, arrest the vessel until security has been 
 given them for the value of their shares, should she not return in 
 safety (z). 
 
 The security required is an undertaking, with sufficient sureties, 
 to pay the value of the plaintiff 's shares in case the ship does not 
 return (a). 
 
 When part owners have restrained the ship in this manner, and 
 obtained security for their shares, they cease to be interested in the 
 voyage. She sails at the expense and risk of the majority, and for 
 their profit. Contracts therefore entered into by them in regard to 
 the voyage do not bind the dissenting minority (b). 
 
 A part owner will not be allowed to interfere with the perform- 
 ance of a voyage under a charter party, upon the vessel putting 
 into a port of refuge, if she sailed on the voyage with his knowledge 
 and assent (c). 
 
 39. When a ship has been validly chartered, the owners must Owners may 
 not deal with her m a manner mconsistent with the charter, from using 
 Should they threaten to do so, the charterer may obtain an in- B^te^°°^tii 
 junction restraining them from any such acts (d). But the Courts charter party. 
 
 (y) Williams & Bruce, Ad. (2na) 25 ; (a) Williams & Bruce, Ad. {2nd) 27 ; 
 
 Eoscoe, Ad. p. 78 ; The Valiant, 1 W. The Eohert Dickinson, 10 P. D. 15. 
 
 Kob. 64; The Elizabeth and Jane, 1 ^^j -^^^^ ,^_ Sandford, Garth. 58; 
 
 W. Kob. 278 ; The Kent, Lush. 495. p^^^ ^_ Johnston, 4 Sim. 539 ; Abbott, 
 
 (.) The England, 12 P. D. 32; The (g^j^j^ p_ ^^ . ^^^^^^^ j 3^ g . ^^^_ 
 
 Apollo, 1 Hagg. 306 ; The Margaret, ^qq jqj 
 
 2 Hagg. 275 ; In re Blanshard, 2 B. & ,\ ™ x \ ^, ^ „., t m ^ 
 
 r> o.. r, i. TT r,j 1 wi ini M The Lady Clermont, 23 L. T. 283. 
 
 C. 244; Oustonv.Hebden, 1 Wils. 101 ^t L, t^- . on t rr no rm. 
 
 „ , ~ , ,. Ti/r B/r A _L Of. The Maxima, 39 L. T. 112. The 
 
 Haly ». Goodaon, 2 Mer. 77. A mort- „,,-„_>'„ 
 
 . , . ii f i_ • L Taloa, 5 P. D. 169, was not approved 
 
 gagee of shares in the ship, who is not . i. , -l t, i^^ -r ■ „,, 
 
 ? ° . i , . ,. J. of, as reported, by Butt, J., in The 
 
 m possession, cannot bring an action of ' , ^ , ,„t. T^ V.,, 
 
 7 . i mi. II- 1.1 J n txr Tj 1. Vmdobala, 13 P. D. 42. 
 restramt. The Highlander, 2 W. Bob. ' 
 
 109 ; The Imiisfallen, L. E., 1 A. & E. {d) Sevin v. Deslandes, 30 L. J., Ch. 
 
 72 ; The Keroula, 11 P. D. 92. 457. 
 
44 THE CONTRACT. 
 
 Sect. 39. "will not enforce speoifio performance of the charter party by 
 decree (e) ; the charterer's remedy for a breach of it is by action 
 for damages, either against the owners who made the contract, or 
 in rem against the ship (/). 
 
 So, also, an injunction may be obtained against a purchaser or 
 mortgagee of the vessel, subsequent to the charter party, who 
 threatens to interrupt the performance of it {g). 
 
 So also a prior 49. Further, a mortgagee of the ship, who has allowed the 
 
 mortgagee .. . . ,., 
 
 not in posses- mortgagor to remain in possession, cannot invalidate the contracts 
 
 security ^e has made with regard to her employment ; unless they are such 
 
 impaired. ^^ materially to impair the security {h). 
 
 The mortgagee in such a case is not personally bound to perform 
 the contract, whether, after it has been made, he enters into pos- 
 session of the vessel or not («). But if an agreement for the 
 employment of the vessel has been made with third persons by the 
 mortgagor, while in possession, as by chartering her for a voyage, 
 the mortgagee cannot, by afterwards taking possession of the 
 vessel, entitle himself to prevent her from performing the chartered 
 voyage {j). 
 
 In CoUins v. Lamport (/ ) the' owner, who continued in posses- 
 sion after mortgaging the ship to the defendants, chartered her 
 without their knowledge to the plaintiffs. When part of the cargo 
 had been loaded the defendants took possession of the ship, and 
 refused to allow any further loading or to let her sail. Afterwards 
 they sold her. It was held that the charter party was binding on 
 the mortgagees and on the purchaser ; and an injunction was 
 granted " to restrain the defendants, the mortgagees, and the 
 purchaser, their assignee, from dealing with the ship in any 
 
 («) De Mattes v. Gibson, 28 L. J., of the mortgage, be deemed the owner 
 
 Oh. 498. ■ of the ship or share, nor shall the mort- 
 
 (/) See Chap. XIX. gagor be deemed to have ceased to be 
 
 ((?) The Messageries Imp. Co. v. owner thereof." This section is protec- 
 
 Baines, 7 L. T. (N. S.) 763 ; De Mattos tiye of the mortgagee ; it does not deprive 
 
 V. Gibson, 28 L. J., Ch. 165, 498. him of his ordinary rights of ownership 
 
 {h) Collins T. Lamport, 34 L. J., Ch. in the property given by the mortgage. 
 
 196. Cf. Keith v. Burrows, 2 A. C. See Dickenson v. Kitchen, 8 E. & B. 
 
 636. 789. 
 
 (i) Myers v. WilHs, 25 L. J., C. P. (/) CoUins <;. Lamport, 34 L. J., Ch. 
 
 39, 255. By M. S. Act, 1894, s. 34, 196 ; The InuiefaUen, L. E., 1 A. & E. 
 
 " Except as far as may be necessary for 72; The Fanchon, 6 P. D. 173; The 
 
 making u. mortgaged ship or share Blanche, 58 L. T. 692. Cf. Johnson v. 
 
 avaUable as a security for the mortgage Eoyal MaU Steam Packet Co., L. E., 3 
 
 debt, the mortgagee shall not, by reason 0. P. 38, 
 
THE EMPLOYMENT OP THE SHIP. 45 
 
 manner inconsistent with, or which may interfere with or prevent Sect. 40. 
 the execution of the charter party." 
 
 Lord Westbury, in giving judgment, said (k) : " As long, there- 
 fore, as the dealings of the mortgagor with the ship are consistent 
 with the sufficiency of the mortgagee's security, as long as those 
 dealings do not materially prejudice and detract from, or impair 
 the sufficiency of the security of the vessel, as comprised in the 
 mortgage, so long is there parliamentary authority given to the 
 mortgagor to act in all respects as the owner of the vessel ; and if 
 he has authority to act as owner, he has, of necessity, authority to 
 enter into all those contracts touching the disposition of the ship, 
 which may be necessary for enabling him to get the full value and 
 the full benefit of his property. Whenever a mortgagee is in a 
 position to show that the act of the mortgagor prejudices or injures 
 his security, then, I apprehend, the parliamentary declaration that 
 the mortgagor shall be deemed the owner ceases to have any binding 
 efEect as against the mortgagee, and the mortgagee is in a position 
 to claim and exercise the full benefit and the rights given to him 
 by his mortgage ; but, subject to that qualification, every contract 
 entered into by the mortgagor remaining in possession, is a contract 
 which derives validity from the declaration of his continuing to be 
 the owner ; but, at the same tiine, it is a contract into the benefit 
 of which the mortgagee may at any time enter, by giving notice 
 to the party who is to pay the mortgagor under the contract, that 
 he requires the payment to be made to him, the mortgagee." 
 
 41. There does not appear to have been much discussion of the When is 
 question. What contracts are " consistent with the sufficiency of the impaired f 
 mortgagee's security"? The exposure of the vessel to the ordinary 
 risks of the sea is not regarded as inconsistent (l) ; nor is the fact 
 that she will be removed from the jurisdiction of the English 
 Courts, as where the voyage is outwards only, to a foreign 
 port (m). 
 
 Perhaps an agreement by which the mortgagors are to receive a 
 large part of the freight in advance might be considered materially 
 to prejudice the mortgagee's security : especially if the ship is to 
 go a long foreign voyage ; and if the effect of paying freight in 
 
 (A) Collins V. Lamport, 34 L. J., Oh. {m) The Fanohon, 5 P. D. 173. The 
 
 196, at p. 200. ship there belonged to Nova Sootia, and. 
 
 (2) The Maxima, 39 L. T. 112. Of. the chartered voyage was to Phila- 
 
 LamingiJ. Slater, 26 So. L. R. SCO. delphia. 
 
46 
 
 THE CONTRACT. 
 
 Sect. 41. 
 
 Position of 
 subsequent 
 mortgagee. 
 
 Authority of 
 master to 
 contract for 
 owners. 
 
 advance would be to leave the master without sufficient funds to 
 disburse the ship abroad. A mortgagor cannot assign away the 
 charter-freight so as to prevent the mortgagee from receiving it, on 
 taking possession. "So to hold would enable the mortgagor to 
 deprive the mortgagee of the whole benefit of the security. The 
 ship might be chartered for several years, and the freight imme- 
 diately assigned behind the back of the mortgagee" («). And the 
 same remark would seem to apply to an agreement by which mort- 
 gagors are to receive the freight from a charterer in advance. But 
 in Cory v. Stewart (o), where part of the freight was payable in 
 advance, and part of the balance to a person other than the mort- 
 gagor, the Court of Appeal held that the mortgagee could not 
 interfere ; and Lord Esher expressed the view that the ship need 
 not be freight-earning for the mortgagee within any particular 
 period. 
 
 41a. The position of a mortgagee who has taken his mortgage 
 after the contract for the employment of the ship has not been 
 definitely laid down. One who acquires a legal title to a ship, 
 without notice of a contract or equity which may be affecting it, 
 generally takes it free of that. But " there may be cases in which, 
 although there is no actual notice, a mortgagee ought to assume 
 that the ship is engaged in some ordinary employment" {p). 
 
 In The Celtic King {q) a contract had been entered into by the 
 owner with Tyser & Co., for the employment of the ship in The 
 Tyser Line for five years. This was while the ship was being 
 built. After completion and registration she was mortgaged to 
 persons who had no notice of the contract. Moreover, the contract 
 was one for working in a special trade, and contained clauses which, 
 if binding on a pm-chaser, might make a sale diflaoult. Barnes,- J., 
 held that the mortgagees were entitled to sell the ship without 
 being hampered by the contract ; and that a purchaser from them 
 could not be restrained from employing the ship in a manner 
 contrary to that contract, although he had bought with knowledge 
 of it. 
 
 42. When a ship is away from her home port, where her busi- 
 ness is managed, the master generally carries the owner's authority, 
 
 in) Brownj,. Tanner L. E 3 Ch. (^) pe, Barnes, J., in The Celtic 
 
 597, at p. 603. Cf. Keith i;. Burrows, tj-. „on.^T>,», 
 2 A. C. 636. King, (1894) P. 175, p. 187. 
 
 (o) 2 T. L. E. 608. [q) (i894) p. 175. 
 
THE EMPLOYMENT OF THE SHIP. 47 
 
 and ordinarily he has power to enter into engagements, on their Sect. 42. 
 behalf, for carrying goods in the ship, or for letting her services ; 
 provided those engagements are consistent with the usual manner 
 of employing her adopted by the owners (r). Shippers, having no 
 notice to the contrary, are entitled to assume that he is the general 
 agent of the owners for these purposes, and that his authority to 
 enter into any usual undertakings is not controlled by any private 
 instructions from them (s). 
 
 " The best authorities we have (both Abbott and the American 
 authority Story) seem to treat him as having power so to do when 
 the owners are not present, either in person, or by virtue of their 
 having consigned to an agent who represents them, and who, 
 therefore, would be the proper person to apply to " (t). 
 
 Where, however, a broker has been employed by the owners to 
 find a cargo for the ship, the authority to make contracts is gene- 
 rally in the broker, and not in the master (m) ; and shippers who 
 know of the broker's appointment cannot safely deal with the 
 master. 
 
 If the vessel is a foreign one, sailing under a foreign flag, the 
 authority of the master to contract on behalf of his owners is that 
 which is conferred by the law of that flag. "His mandate is 
 contained in the law of that country, with which those who deal 
 with him must make themselves acquainted at their peril" (v). 
 
 Where the appointed master has died, the first mate succeeds to Substituted 
 his ojB&ce, and takes over his duties, and his authority to act for the "'^'^ ^^' 
 owners (w). And if both master and first mate have died, the 
 second mate succeeds to the position and authority of master. 
 
 43. But the master of the ship cannot engage her for purposes. Consistently 
 or on terms, essentially different from those on which the owners Vessel's usual 
 have usually employed her (x). What these are depends partly on employment. 
 
 (r) He cannot contract by deed on their («) See per Lord Watson in Stumore 
 
 behalf, unless he is authorized by deed v. Breen, 12 A. 0. 698, p. 704. 
 
 {v) Lloyd V. Gruibert, 33 L. J., Q. B. 
 
 And see The Q-aetano and Maria, 7 
 P. D. 137. 
 
 to do so. Horsleyff. Bush, cited 7 T.E. 
 
 at p. 209. ^ 241 at p. 248; L. E., 1 .Q. B. 115 
 
 (s) Smith's Merc. Law, yiu. p. 124, ^J^ ^J^^^ ;..„.„„„' „„r^,r.^. - 
 
 and per Jervis, 0. J., in Grant v. Nor- 
 way, 20 L. J., C. P. p. 98 ; Sandeman 
 
 V. Scurr, L. K., 2 Q. B. 86. (w) Hanson v. Iloyden,-L. E., 3 0. P. 
 
 (t) Per Wood, V.-C, Messageries 47. As to authority of a substituted 
 
 Imp. Co. V. Baines, 7 L. T., N. S., at master, see The Alexander, 1 Dod. 278 ; 
 
 p. 765 ; Abbott (5th), p. 91 ; (11th), iii. The Kinnersley Castle, 3 Hagg. 1. 
 
 2, 2 ; Story, Agency, ss. 116—121. (x) Story, Agency, s. 121. 
 
48 THE CONTRACT. 
 
 Sect. 43. the circumstances of the particular case ; but it has been held that 
 a master has not authority to carry goods freight free (y) ; nor to 
 contract to carry at a lower freight than that agreed upon by the 
 owner with the freighter (s) ; nor to agree that the freight shall be 
 payable to any person other than the owners {a). " The master is 
 the agent of the owner for the purpose of enabling him to carry on 
 the trade in which the ship is usually engaged ; but it is not com- 
 petent to the master, or to anybody, to, assume to himself any other 
 authority than the indispensable and necessary one of procuring a 
 freight for the vessel, according to the ordinary terms " (b). 
 
 In particular cases it may be shown that the master had, in fact, 
 authority to make an exceptional contract. And where an im- 
 proper contract has been made by him, and acted upon by the 
 freighter, it would seem that the owners must adopt the whole 
 contract if they seek to adopt it in part (c). 
 
 It was decided by the Court of Appeal in The Fanny and 
 The Matilda (<;?), that a master has not power to authorize a 
 shipbroker at a port to which the ship is proceeding to charter her 
 before arrival. Brett, L. J., said : " The authority of the captain 
 to bind his owners by charter party only arises when he is in a 
 foreign port, and his owners are not there, and there is difficulty 
 in communicating with them. The system of a master writing 
 forward, in the way I have described, to have his ship chartered, 
 might counteract the very orders of the owners, who had themselves 
 written to the very same place " (e). 
 
 Master may 44. When the ship has been chartered by the owners the master 
 charter party. ^^^ iiot authority to cancel the charter party, or to alter its terms. 
 He is the owners' agent for the voyage defined by the charter 
 party, and has not power to change it for another. Thus, he 
 cannot validly agree to change her destination (/), nor to alter the 
 amount of freight to be paid, or the manner of paying it {g). 
 
 {y) Dewell v. Moxon, 1 Taun. 390 ; Henry Webb, supra. 
 
 and per Jervis, C. J., in Grant v. Nor- (c) See Gibbs ■</. Charleton, 26 L. J., 
 
 way, 20 L. J., C. P. p. 98. Ex. 321 ; Mercantile Bank v. Gladstone, 
 
 (a) PickemeU v. Jauberry, 3 E. & F. L. E., 3 Ex. 233. 
 
 217. Cf. Pearson v. Goschen, 33 L. J., (c[) 48 L. T. 771. 
 
 C. P. 265. (e) 48 L. T. at p. 775. 
 
 {a) Reynolds v. Jex, 7 B. & S. 86 ; {'/) Burgon «. Sharpe, 2 Camp. 529 ; 
 
 The Canada, 13 T. L. R. 238 ; Walshe Capper v. "WaUaoe, 5 Q. B. D. at p. 166. 
 
 V. Provau, 22 L. J., Ex. 355 ; The Sir (y) Pearson v. Goschen, 33 L. J., C. P. 
 
 Henry Webb, 13 Jur. 639. 265 ; Reynolds v. Jex, 7 B. & S. 86 ; 
 
 (J) Per Dr. Lushington in The Sir The Canada, 13 T. L. R. 238. 
 
THE EMPLOYMENT OF THE SHIP. 49 
 
 The case of Pearson v. G-osohen (h) shows, however, that where Sect. 44. 
 the master is unahle to ohtain performance of the charter party, he Where 
 has authority to make fresh arrangements for the employment of trokerat^a''' 
 the ship ; though not to cancel the owners' rights under the charter. ^°^^^^ po^*- 
 The voyage was there from Glasgow to Porto Eico, and hack to a 
 port in the United Kingdom. After part of the homeward cargo 
 had been loaded at Porto Eico the charterers failed ; and their 
 agents demanded that what had heen loaded should he returned, 
 and refused to load any further. The master was informed by the 
 British vice-consul that he must, by Spanish law, discharge the 
 goods, or make a new charter, and he therefore, under protest, 
 made a new charter with the agents of the former charterers for a 
 voyage to the United Kingdom at a freight of 30s. per ton, 
 Further cargo was then loaded, and a bill of lading given for the 
 whole, including that previously loaded, making freight payable 
 at 30s. a ton. Freight was, however, claimed by the owners under 
 the charter, which provided that it should be paid at the rate of 
 4:1. 10s. per ton upon the homeward cargo, and that that cargo 
 should be an absolute security for the whole freight. 
 
 It was held that the master was bound to retain the goods loaded 
 at the time of the failure, for the lien of the owner for the freight 
 which might be earned : that he had no authority to alter the 
 terms of the charter party with respect to those goods, and there- 
 fore that the biU of lading did not alter the rate of freight which 
 must be paid upon them under the charter party. But, as to the 
 cargo shipped after the failure, it was held that the master had 
 authority to do the best he could under the eiroumstanees, and that 
 only 30s. per ton was payable. 
 
 Willes, J., said : " Now, has a master, who is at a foreign port, 
 with his ship only partly filled, and with the charterers' agent there 
 refusing, in consequence of the insolvency of the charterers, to put 
 any more goods on board, any right to make a fresh contract for 
 more goods to fill up the vessel ? and is a party who puts such 
 further goods on board, but who knows the terms of the charter 
 party as to the rate of freight, bound by those terms ? I think 
 that is the case in which the master has a right to do whatever is 
 best for the owner, and that he is strictly acting within the limits 
 of his authority when he does so, as he did in the present case " {i). 
 
 (,h) 33 L. J., 0. P. 265. (i) Of. Kreeft il. Thompson, L. R., 10 Ex. 274. 
 
 C. — C. E 
 
50 
 
 THE CONTKACT. 
 
 Sect. 44. 
 
 JPrimd facie 
 the master is 
 servant of 
 registered 
 owner. 
 
 EfEeot of 
 change of 
 ownership on 
 master's 
 authority. 
 
 In Alexander v. Dowie (k), a settlement at a foreign port of 
 claims for detention by the master, who was a part owner, was 
 held to bind the other part owners. And the opinion was expressed 
 that the master had, as such, authority to settle such claims, apart 
 from his ownership (/)-. 
 
 45. Though the ship's register is not conclusive, the appearance 
 of a man's name upon it as an owner is prima facie evidence that 
 that is the fact, and that the master, or person in charge of the 
 ship, is the servant of the person so registered. This may be shown 
 not to be the case ; but if not explained, a jury may properly draw 
 that inference from the register alone {ni). 
 
 46. Where a change occurs in the ownership of the vessel while 
 she is away from the home port, the master still retains the usual 
 authority of a master, conferred by the former owners, until he is • 
 superseded (w). And it seems further, that if special instructions 
 have been given to him by the former owners, e.g., to carry the 
 goods of certain persons freight free, his authority to act on them 
 continues until he receives notice of the change of ownership (o). 
 "I think that the master was bound by all the acts, all the 
 instructions, all the authorities which had emanated from Fernie 
 & Co., the former owners, untU the plaintiffs had given notice to 
 the master that they had become the owners, and that any autho- 
 rities derived, or instructions received, from Femie & Co. had 
 ceased " (jo) . 
 
 Bramwell, B., however, in that case, doubted whether the new 
 owners would be bound to do a thing which the captain contracted 
 they should do. " There may be difficulties in an action on the 
 contract to carry, because it may be said that for that purpose the 
 captain was not their captain. But I am very clearly of opinion 
 that they cannot recognize the act of the captain in receiving goods 
 on board, and at the same time say that they will not be bound by 
 the terms on which he received them " (j). 
 
 (i) 25 L. J., Ex. 281. 
 
 {D Cf. Allan v. Johnstone, 19 Sess. 
 Ca. (4th ser.) 364. But see Holman ». 
 Peruvian Nitrate Co., 5 Sess. Ca. (4th 
 ser.) 657. 
 
 (m) Hibbs v. Koss, L. E., 1 Q. B. 
 534; Mitcheson v. Oliver, 25 L. J., 
 Q. B. 39 ; Steel v. Lester, 3 C. P. D. 
 121. Cf. Eraser v. Marsh, 13 East, 
 
 238 ; Mackenzie v. Pooley, 25 L. J., 
 Ex. 124. 
 
 («) Eobins v. Power, 27 L. J., C. P. 
 257 ; Mercantile Bank v. Gladstone, 
 L. E., 3 Ex. 233. 
 
 (o) Mercantile Bank v. Grladstone, 
 L. E., 3 Ex. 233. 
 
 (7)) Per KeUy, C. B., L. R., 3 Ex. at 
 pp. 240—1. 
 
 (?) At p. 240. 
 
THE EMPLOYMENT OP THE SHIP. 51 
 
 47. Q-enerally the master contracts for the ship's employment Sect. 47. 
 
 in his own name. He signs bills of lading and charter parties as Master per- 
 
 master, not expressly as agent for the owners. Where that is so, anTable to ^' 
 
 he makes himself personally liable upon the contract ; and though trrotrmad'e 
 
 the freighters may enforce the contract against the owners, his ^^ Ma own 
 
 naiue. 
 principals, they are not obliged to do so, but may proceed against 
 
 him (r). And, on the other hand, the master may himself enforce 
 the terms of the contract which he has made (s). 
 
 The position of the master with regard to contracts made by him 
 has sometimes been regarded as different from that of an ordinary 
 agent {t) ; but that view has not in recent years been supported 
 by the Courts (m). In Priestley v. Fernie (m), an imsuccessful 
 attempt was made to sue the owner of a ship after the master had 
 been sued to judgment for the same cause of action. And Bram- 
 well, B., in delivering the judgment, said : " It is certain that the 
 master's liability is founded on the same considerations as that of 
 an ordinary agent, namely, he makes the contract in his own 
 name : Rich v. Coe (») ; Story on Agency, sect. 296. But it is 
 said, that for purposes of commerce it is convenient that both 
 master and owner should be suable. So it is; but why to the 
 extent contended for, more than in any other case of principal and 
 agent ? It might be hard to make a person who deals with the 
 master run after the owner to sue him ; but why, if he sues the 
 master, should he afterwards sue the owner, merely because it is 
 very right he should be able to sue the master or owner? In 
 reality, no reason can be given for the distinction attempted 
 between this and other cases of principal and agent. We do not 
 say none could be given why, in aU cases of principal and agent, 
 both should be suable, but that there is no particular reason appli- 
 cable to the masters and owners of ships." 
 
 48. Apart from contract, the master is liable personally for any Liable for his 
 
 ,,.,,, , (I • ^ own torts. 
 
 wrongful acts done by him to the goods: e.g., tor miproperly 
 jettisoning or selling them ; or for refusing to deliver them to the 
 person entitled to them. 
 
 (r) Abbott (5th), p. 91 ; (lltli),^iu. 2, {t] Morse». Slue, 1 Vent. 238; Shields 
 
 2 ; Morse v. Slue, 1 Vent. 190, 238 ; v. Davis, 6 Taun. 65 ; Story, Agency, 
 
 Boson V. Sandford, Garth. 68 ; GoflE v. ss. 116, 294, 295, 314—318. 
 
 Olinkard, cited 1 Wils. 281. (u) Priestley v. Fernie, 34 L. J., Ex. 
 
 (s) Cawthron v. Triokett, 33 L. J., 172; BlaMe v. Stembridge, 28 L. J., 
 
 C. P. 182 ; Jesson -u. Solly, 4 Taun. 52. 0. P. 329 ; 29 L. J., 0. P. 212. 
 
 Of. Brounoker v. Scott, 4 Taun. 1. («) 2 Cowp. 639. 
 
 E 2 
 
52 THE COKTEACT. 
 
 Sect. 48. So, also, if he stows tlie goods in contact with other things that 
 will damage them {y). And perhaps he is personally liable to the 
 shipper if he does not take proper care in stowing and dunnaging 
 the cargo, and damage results. It has been said that this respon- 
 sibility extends to damage through negligence of the crew in doing 
 the work of receiving and stowing the goods ; but this seems to be 
 doubtful, unless the master is liable as the contracting party (z). 
 Where vessel 49. A common mode of working small vessels, such as sailing 
 joint benefit coasters, is for the master to employ her as he can, himself de- 
 of master and fraying the expenses, and receiving the freights, on the terms 
 that he shall pay 'over to the owner a certain proportion of the 
 freights (either of the gross or of the net), and keep the remainder 
 himself in lieu of wages. 
 
 The exact relation between the owner and master in such cases 
 is not very clearly defined. The particular circumstances must be 
 considered in each ease. But generally, it would seem, the master 
 is either the servant (a), or the partner (J), of the owner; or else 
 has his authority to make contracts for the employment of the 
 vessel for their joint benefit. 
 
 The matter was considered by Lindley, J., in Steel v. Lester (e). 
 A sloop there had been managed by the master (Lilee). He was 
 at liberty to go to any port, and to take or refuse any cargo he 
 chose; and he employed the crew and paid the expenses. The 
 owner had no direct control over the vessel ; but he had accounts 
 of the profits from time to time, and received one-third of the net 
 profits as his share. 
 
 Lindley, J., said, "I look on it either as a mere, mode of paying 
 LUee for his services, the owner paying him a share of profits 
 instead of fixed wages, and retaining control over the master, but 
 leaving the master to choose his ports and men ; or it was this, 
 viz., that the defendant Lester, still remaining owner, became 
 partner with the master for the adventure, sharing the profits with 
 him. I rather think that the latter is the true view. But in either 
 view the result is that the sloop was managed by Lilee for the joint 
 
 {y) See Hayn v. Culliford, 4 C. P. D. (a) See Veuables v. Smith, 2 Q. B. D.' 
 
 1^2. 279 ; King v. Spurr, 8 Q. B. D. 104. 
 
 («) See per "Willes, J., Blakie v. Stem- 
 
 hridge, 28 L. J., C. P. 329 ; Boucher v. (*) ^^ "• Boswell, 1 Camp. 329. 
 
 Noidstrom, 1 Taun. 668. But of. Story, ®^^ Lmdley, Partnership (4th), pp. 33 
 
 Agency, ss. 314—318 ; Gofl v. Clinkard' *' '^- ' ^^ ^ ^^ ^^'^^- "=■ 86. »• 2. 
 
 cited 1 Wile. 281. (c) 3 C. P. D. 121. 
 
THE EMPLOYMENT OF THE SHIP, 53 
 
 benefit of himself and the owner. That is a consequence from Sect. 49. 
 which there is no escape. The true conclusion on the facts is that 
 Lilee was either the partner or agent of the owner, and if partner 
 he was still agent of the owner for the management of the vessel." 
 The question in that case was as to the liability of the owner for 
 damage done to a wharf by Lilee's negligence ; but the judgment 
 shows that in such circumstances the master is agent for the owner. 
 In contracting for the vessel's employment he does so for the 
 benefit of both the owner and himself, and both appear to be 
 liable on the contract (d). 
 
 {d) But see Bernard v. Aaron, 9 Jur., N. S. 470. 
 
54 
 
 THE CONTRACT. 
 
 CHAPTER III. 
 
 CARRIAGE IN A GENERAL SHIP. 
 
 SECT. 
 
 Engagements for carriage in a 
 
 general ship 50 
 
 Breaches of engagements 61 
 
 Liability of agents 62 
 
 What form of bill of lading to be 
 
 given 53 
 
 Forms of bill of lading 64 
 
 How prepared — Sets 55 
 
 Is the bill of lading the ooncluBiye 
 
 statement of the eontrap-t ? 66 
 
 Bill of lading not always the con- 
 tract — Where incomplete 57 
 
 Shipper may require re-deliyery of 
 goods if proper bill of lading not 
 given — When bill of lading given 
 its terms relate to what has been 
 
 already done , 58 
 
 Shipper may require bill of lading , . 69 
 To whom is the bill of lading to be 
 
 given ? — Effect of mate' s receipt . . 60 
 With whom is the contract made ? . 61 
 Bills of Lading Act— Effect of in- 
 dorsement 62 
 
 Indorsee not affected by incon- 
 sistent arrangements made with 
 shipper — Nor by estoppel of 
 
 shipper 63 
 
 Claim of indorsee confined to goods 
 
 put on board 63a 
 
 Effect of re-indorsement by inter- 
 mediate indorsee 64 
 
 Position of shipper after indorse- 
 ment — Are liabilities transferred? 65 
 To what extent must property passP 
 
 — Mortgage — Effect of delivery . . 66 
 Property must pass with biU of 
 
 lading 66a 
 
 Right of owner to sue in tort 67 
 
 Shipowner becomes responsible on 
 delivery to him, though goods 
 not put on board 68 
 
 SECT. 
 Effect of description, and statement 
 
 ofqufl-ntityofgoodsinbiUoflading 69 
 Effect of statement as to quality . . 69a 
 Where quantity agreed to be con- 
 clusive 69b 
 
 BUls of Lading Act, s. 3 70 
 
 "Weight, &c., unknown" 71 
 
 Shipper may rely on the clause . , , . 72 
 "Good order and condition "•>— 
 Onus of proof where ' ' quantity 
 
 and quality unknown " 73 
 
 Subject to the expressed exceptions, 
 
 the contract is to deliver safely , . 74 
 But subject to inherent defects and 
 
 general average losses 75 
 
 And subject to exemptions by 
 
 statute 76 
 
 Exceptions construed against ship- 
 owner, when ambiguous — Neg- 
 ligence not covered by general 
 
 words 77 
 
 Onus of proof 78 
 
 Warranty of seaworthiness not af- 
 fected 79 
 
 Nor liability to general average. ... 80 
 Act of God, and Queen's enemies . . 81 
 
 " Restraints of princes, &c." 82 
 
 "Fire" 83 
 
 "Dangers of the seas and naviga- 
 tion" 84 
 
 "PerUs of the sea" — The sources 
 
 of danger 85 
 
 Bangers not peculiar to the sea — 
 
 Loss by arrest 86 
 
 Loss must be accidental — And not 
 
 a result of negligence , 87 
 
 Co-operation of causes — Proximate 
 
 cause regarded 88 
 
 Application of proximate cause rule 88a 
 Illustrations of proximate causes . . 89 
 Spread of mischief originated by 
 sea damage 90 
 
CARRIAGE IN A GENERAL SHIP. 
 
 55 
 
 BECT. 
 
 Duration of "navigation" 91 
 
 "Risk of boats" 92 
 
 " Collision " 93 
 
 " Pirates, robbers, thieves " 94 
 
 Liability for bad stowage 95 
 
 Liability for ignoiance 96 
 
 Damage from dangerous quality of 
 
 goods shipped 97 
 
 " Leakage " 98 
 
 " Barratry " 99 
 
 Effect of owner's assent — Barratry 
 
 against charterer or cargo-owner 100 
 "Negligence of master, &c." . . .' . 101 
 Negligence of shipowner not gene- 
 rally covered 102 
 
 Nor unseaworthiness 102a 
 
 " Merchant's risk " 103 
 
 The Harter Act, 1893 103a 
 
 Prohibitions under the Act 103b 
 
 Clauses exempting from unsea- 
 worthiness 103c 
 
 Sect. 3— "Due diligence " 103d 
 
 SECT. 
 
 103e 
 
 Sect. 3 applies only as between 
 freighter and shipowner — Does 
 not enable shipowner to claim 
 
 in general average 103f 
 
 Sect. 3 — Other exceptions — Liberty 
 
 to deviate to save life, &c 103g 
 
 "Ship damage " 104 
 
 "Capable of being covered by in- 
 surance" — "Damage" 105 
 
 " Claims to be made before re- 
 moval" 106 
 
 Through bills of lading 107 
 
 Railway companies — Effect of Rail- 
 way and Canal Traffic Act, 1854 
 — Steamers of railway companies 108 
 
 Exceptions on freight note 109 
 
 Decisions as to reasonable condi- 
 tions—Theft 110 
 
 Passengers' luggage — " Not ac- 
 countable unless bin of lading 
 
 -Emigrant ships Ill 
 
 50. When a sHp is employed as a general ship, her sailing is Engagements 
 usually announced publicly by advertisements, placards, and cireu- iu'^a'genefal 
 lars. These show some details of her description, her port of ^'"P- 
 destination-, or the round of ports at which she is to call ; her date 
 of sailing ; with perhaps some of the terms on which goods will be 
 received. Rates of freight and other terms are arranged by com- 
 munipation with the ship's agents; or with the master, as the case 
 may be. And each intending shipper usually enters into a binding 
 agreement to send a specific quantity of goods ; for which, on the 
 other hand, the agent of the ship undertakes to reserve space. 
 
 The shipper then delivers his goods to those in charge of the 
 ship, either on the quay at which she is lying or in lighters along- 
 side her, or as may be customary at the particular port, and takes 
 in exchange a receipt for them from the person in charge. This 
 document is called the mate's receipt, and frequently shows the 
 terms on which the goods are received. Sometimes it refers to a 
 particular form of bill of lading for which it is to be exchanged. 
 
 Further, in nearly aU cases, except sometimes on coasting 
 voyages, the mate's receipt is exchanged for a bill of lading, signed 
 by the master or the ship's agent, which sets out the fact that the 
 goods have been shipped, and the terms upon which they are to be 
 carried and delivered. 
 
56 
 
 THE CONTRACT. 
 
 Sect. 51. 
 
 Breaches of 
 engaffements. 
 
 Liability of 
 
 agents. 
 
 51. Engagements to ship goods, and to keep space for goods, 
 must be punctually performed. Damages may be claimed, on tbe 
 one side, if the ship has to sail without the goods, and so loses 
 freight ; or if she is detained, through the non-arrival of the goods 
 at the ship's side by the agreed time, or within such time (if none 
 was agreed) as they might reasonably be expected to arriTe in 
 when the contract was made. And, on the other side, the shipper 
 may claim damages if the ship delays in sailing imreasonably, or 
 beyond the agreed time, if any ; or if she sails leaving his goods 
 behind, or without giving him the agreed, or a reasonable, oppor- 
 tunity of delivering them for shipment {a). 
 
 In Heugh v. Escombe (6) an undertaking was given by shipping 
 agents in the following terms : — " "We undertake to ship for you 
 by the "Warrior Queen, guaranteeing that she sails not later than 
 the first week in July, or forfeit 2s. &d. per ton, 300 or 400 
 packages, one-third yam, at a through rate of 42s. Qd., free of 
 commission, provided they are forwarded per Thompson, McKay 
 & Co. on or before the 29th inst." In an action for not shipping 
 some of the goods in the "Warrior Queen, alleging consequent 
 losses, it was held that payment of 2s. Qd. per ton of the goods to 
 be forwarded according to the agreement was a good defence. 
 
 52. Engagements to ship are frequently made by forwarding 
 agents acting for merchants inland or abroad ; or by vendors or 
 buying agents shipping on behalf of English or foreign purchasers 
 or principals; and a doubt sometimes arises whether the person 
 who has thus made the engagement is personally responsible 
 upon it. 
 
 Where the contract is not entered into expressly for some one 
 else, or so as to indicate to the other party that he who makes it is 
 only acting as agent in the matter, the person entering into it 
 becomes responsible for its performance (c), though the principal 
 for whose benefit it was in fact made may also be liable, and may 
 be entitled to claim the benefit of it. 
 
 In Lidgett v. Perrin {d), forwarding agents who contracted for 
 the shipment in their own names were held liable for the freight, 
 
 [a) See Hawes v. S. E. Bail. Co., 52 
 L. T. 514. Cf. Cranston v. Marshall, 5 
 Ex. 395 ; Yates v. Duff, 5 C. & P. 369. 
 
 (b) i L. T., N. S. 517. 
 
 {e) As to the personal liability of a 
 broker who advertises a line of ships 
 in his own name, see Simpson v, Toungr, 
 2 F. & F. 426. 
 
 {d) 2 E. & E. 763. 
 
CARRIAGE IN A GENERAL SHIP, 67 
 
 though the names of their principals were inserted in the bills of Sect. 52. 
 lading as shippers. 
 
 If the contract has expressly been made for another, the person 
 making it does not become responsible for its performance, but he 
 impliedly warrants that he has authority to make it for that other 
 person, and is liable in damages if that is not the case (e). 
 
 When an engagement of this kind has been made in England on 
 behalf of a foreign purchaser or principal, the presumption seems 
 to be that the vendor or agent contracts personally, and does not 
 pledge the credit of the foreigner (/). But this presumption will 
 not prevail against a clear intention to the contrary (g). 
 
 53. If no bill of lading or other document is given upon the What form of 
 shipment, the contract of carriage must be collected from the to be given, 
 announcements, and arrangements that were made prior to the 
 
 goods being shipped (A) . And should a difference arise as to the 
 form of bni of lading to be given, that must be decided upon the 
 same materials. 
 
 Particular forms of bills of lading are used in certain trades, and 
 where that is the case a shipper will be presumed to agree to accept 
 the usual form. The same may be true of one who ships in a 
 vessel belonging to a line, where a particular bill of lading is 
 uniformly and notoriously used for that Hne. 
 
 54. BlQs of lading differ greatly in detail, but they have Forms of bill 
 usually certain common features. The following may, perhaps, 
 
 be said to show the common type : — 
 
 " Shipped, in good order and condition, by , in and upon 
 
 the good ship called the , whereof is master for this 
 
 present voyage, now riSing at anchor in the port of , and 
 
 bound for , [^description of goods] marked and numbered as 
 
 in the margin, and are to be delivered in the like good order and 
 condition at aforesaid (the act of God, the Queen's enemies, . 
 
 fire, and all and every other dangers and accidents of the seas, 
 rivers, and navigation of whatever nature and kind soever excepted), 
 
 (e) See infra, sect. 129. [g] Green v. Kopke, 18 C. B. 649 ; 
 
 (/) See Armstrong v. Stokes, L. R., Deslandes v. Gregory, 30 L. J., Q. B. 
 7 Q. B. 698 ; Elbinger, &c. v. Olaye, 36- 
 
 L. R., 8 Q. B. 313 ; per Oleasby, B., ^ (*) f « ^^^f P« ;• ^^^f ^' ^8 \^-> 
 
 ' Ex. 62 ; Peel v. Pnoe, 4 Camp. 243 ; 
 
 Paioe V. Walker, L. R., 6 Ex. p. 178. ^j^^^^ ^_ jegoott Steamers, 1 Com. Ca. 
 
 Cf. Lennard v. Bobinson, 24 L. J., 32 ; HiU v. Scott, (1895) 2 Q. B. 371 ; 
 
 Q. B. 275. 713. 
 
58 THE CONTRACT, 
 
 Sect. 54. unto , or to his assigns, lie or they paying freight for the 
 
 said goods at the rate of , with primage and average accus- 
 
 tomed. In witness whereof, the master or agent of the said ship 
 hath affirmed to bills of lading, aU of this tenor and date, 
 
 the one of which bills being accomplished the others to stand void. 
 " Dated in the day of 
 
 " (Signed) 
 
 Upon this, however, many modifications are made, generally in 
 the direction of a diminution of the shipowner's liability. And 
 different trades require peculiar clauses to meet their own circum- 
 stances («). 
 
 Much has been done in some trades towards establishing the use 
 of common forms. That greater uniformity would be an advan- 
 tage to merchants, underwriters, and bankers, is obvious ; but the 
 matter involves awkward questions respecting the amount of 
 liability to be borne by the shipowners ; and the efforts which have 
 been made with the object of establishing a general uniformity 
 have met with little success (/). 
 
 How pre- 55. The bills of lading are usually procured by the shipper, and 
 
 filled up by him with statements of the kinds and quantities of the 
 goods, and the marks upon them (k) . These are checked on behalf 
 of the ship ; and the documents are signed by the master, or ship's 
 agent (1), and delivered to the shipper in exchange for the mate's 
 receipts. 
 
 Every bill of lading made in the United Kingdom " of or for 
 any goods, merchandize or effects to be exported or carried coast- 
 wise," must be stamped with a 6^^. stamp before signature ; 
 otherwise the person who makes or executes it becomes liable to a 
 penalty of 501 (rn). It cannot be stamped after signature {m). 
 
 Sets. It is usual for a bill of lading to be drawn in a set, that is to 
 
 say, two, three, or more parts of it are made out and signed. One 
 
 (i) Some specimens will be found in tical success. See Appendix A. 
 
 Appendix A. [Ic) As to charterer's duty to present 
 
 (y) Three attempts have heen made bills of lading for signature, Oriental 
 
 at conferences of the Association for the S.S. Co. v. Tylor, (1893) 2 Q. B. 618. 
 
 Eeform and Codification of the Law of (?) See Stumore v. Breen, 12 A. C. 698, 
 
 Nations (now the International Law as to the duties of the master, and of 
 
 Association), at Liverpool in 1882, at the ship's agent, in regard to the bills 
 
 Hamburg in 1885, and in London in of lading. 
 
 1893, to formulate a bill of lading suit- («i) 54 & 55 Vict. c. 39 s. 40 and 
 
 able for general use ; but without prao- schedule. 
 
CARRIAGE IN A GENERAL SHIP. 59 
 
 of tliese is retained ty the master for Ms own guidance ; the others Sect. 55. 
 are delivered to the shipper. ~ 
 
 This is done for the convenience of the shipper ; it enables him 
 to empower his agent to claim the goods when anything has gone 
 wrong with the first hill of lading, or in case he should require to 
 stop the goods in transit. At the same time the practice enahles 
 the shipper to commit frauds, by negotiating the different 'parts to 
 different persons, and it has been adversely commented on by 
 learned judges (ra). 
 
 Sometimes one of the set is marked " original," and the others 
 " duplicate." In other cases, in order to protect the shipowner 
 from liability upon more than one part, the clause is inserted that 
 " one of these bills of lading being accomplished the others shall 
 stand void ; " which means, " that if upon one of them the ship- 
 owner acts, in good faith, he will have ' accomplished ' his contract, 
 will have fulfilled it, and will not be liable or answerable upon any 
 of the others" (o). 
 
 56. A doubt has sometimes been raised whether the bill of lading is the bill of 
 
 is a conclusive statement of the contract between the shipper and conduai^^ 
 
 shipowner : or is onlv one piece of evidence, helping with others statement of 
 ^ , . 1 1 . T . the contract P 
 
 to show what that contract is, and so subject to be contradicted, 
 
 or varied, or added to, by verbal or other evidence, to show the 
 agreement between the parties. 
 
 The question is important, for if the bill of lading is the state- 
 ment of the contract it cannot, ia the absence of fraud or mistake, 
 be altered or added to by any evidence of preliminary or con- 
 temporaneous negotiations or agreements on the subject-matters 
 
 («) In Glyn k. East and West India the other parts of the bill can now be 
 
 Dock Co., 7 A. C. 691, at p. 605, Lord applied, but could not be used for the 
 
 Blackburn said : "I have never been able purpose of pretending to be holder of 
 
 to learn why merchants and shipo-miers a bill of lading already parted with, 
 
 continue the practice of making out a However, whether because there is some 
 
 bin of lading in parts. I should have practical benefit of which I am not 
 
 thought that, at least since the intro- aware, or because, as I suspect, mer- 
 
 duction of quick and regular communi- chants dislike to depart from an old 
 
 cation by steamers, and still more since custom for fear that the novelty may 
 
 the estabUshment of the electric tele- produce some unforeseen effect, bills of 
 
 graph, every purpose would be answered lading are still made out in parts, and 
 
 by making one biU of lading only, which probably will continue to be so made 
 
 would be the sole document of title, and out." See Sanders v. Maclean, 11 
 
 taking as many copies, certified by the Q. B. D. 327. Infra, Chap. XIV. 
 master to be true copies, as it is thought (o) Per Lord Cairns, Glyn v. East 
 
 convenient ; those copies would suffice & West India Dock Co., 7 A. C. 691, at 
 
 for every legitimate purpose for which p. 599. 
 
60 THE CONTRACT. 
 
 Sect. 56. of the contract {p). The point does not seem to have often given 
 rise to practical difficulty ; but there is some conflict of authority 
 upon it. 
 
 The bill of lading purports to be a statement of the contract ; 
 and it would be anomalous and inconvenient that a formal docu- 
 ment, accepted by the parties, and apparently expressing the 
 relation between them, should be only evidence, liable to be 
 rebutted, of that relation. On the other hand, the biU. of lading 
 is not usually signed until after the goods have been shipped; and 
 it sometimes happens that it contains terms not agreed upon at the 
 time of shipping, or that it varies or omits some of the terms as 
 then understood. 
 
 In Eunquist v. Ditohell (q), at Nisi Prius, a shipper was allowed 
 to rely on a statement in the advertisement of the ship that she 
 was warranted to sail with convoy, as being a contract to that 
 effect ; although the bill of lading (if any) did not contain any 
 stipulation of the kind (r). But the point does not seem to have 
 been raised, nor does it appear that there was any bill of lading at 
 all (s). 
 
 In Phillips V. Edwards {t), casks of brandy had been shipped at 
 Bristol for Falmouth, with carriers whose printed time bills stated 
 that they would not receive goods, except upon the terms that they 
 should not be responsible for any loss or damage from any cause 
 whatever during the transit. One of these bills had been delivered 
 to the shipper. After the casks had been shipped a "freight note," 
 as it was called, which appears to have been in effect a biU of 
 lading, was delivered to the shippers by the carriers. This was 
 inconsistent with the time bills, and by its terms the carriers were 
 responsible for bad stowage. The casks were stove in during the 
 voyage, and the question arose whether the carriers were entitled 
 to the exemption expressed in their time bills, or were bound by 
 the terms of the freight note. It was held that the expressions in 
 the time bills governed, the contract. It is true that the Court 
 thought there had probably been a mistake made in using this 
 freight note ; but Pollock, C. B., said that " the contract is that 
 
 {p) See Chap. VI. (s) Cf. Abbott (5th), p. 213 ; (13th), 
 
 (?) 3 Esp. 64. P- 357 ; ^""i Snell v. Mairyatt, there 
 
 cited, where the question was treated as 
 («•) See per Gribbs, 0. J., in Saunderson unsettled. 
 
 V. Busher, 4 Camp. 54, u. (<) 28 L, J., Ex, 52. 
 
CARRIAGE IN A GENERAL SHIP. 61 
 
 which is formed at the time the goods are delivered," whereas Sect. 56. 
 " the freight note was a matter occurring afterwards " (m). And 
 Watson, B., gave judgment to the same effect. 
 
 These cases favour the contention that the bill of lading is not 
 conclusive evidence of the contract ; and in a later judgment hy 
 Lush, J. (v), that eminent judge expressed the following opinion : — 
 " A MU of lading is not the contract, but only the evidence of the 
 contract ; and it does not follow that a person who accepts the bill 
 of lading which the shipowner hands him necessarily, and without 
 regard to circumstances, binds himself to abide by all its stipula- 
 tions. If a shipper of goods is not aware when he ships them, or 
 is not informed in the course of the shipment, that the bill of 
 lading which will be tendered to him will contain such a clause, 
 he has a right to suppose that his goods are received on the 
 usual terms, and to require a bill of lading which shall express 
 those terms" (x). 
 
 We have, however, to deal at present with cases in which the 
 shipper has not required anything diSerent from the bill of lading 
 in fact tendered to him, but has accepted that without protest. 
 Where that has been done, it is difi&cult to suppose that the docu- 
 ment can be treated as not being what it seems to be. The 
 practice of looking to it as the contract may be said to be uniform ; 
 and, indeed, has been adopted by the Legislature (y) ; and the 
 scarcity of authority is in truth a strong confirmation of the view 
 that it is the contract, for it shows that in practice the point has 
 not been considered open to question. 
 
 In Fraser v. Telegraph Construction Co. (z), Blackburn, J., said: 
 " The bill of lading must be taken to be the contract under which 
 goods are shipped, and until I am told differently by a Court of 
 Error I shall so hold." 
 
 And Brett, L. J., in Chartered Mercantile Bank, &c. v. Nether- 
 land India Steam Navigation Co. (a), said: "The contract has 
 been by the consent of the parties reduced into the form of a bill 
 of lading, and therefore the whole of the contract is contained in 
 
 («) 28 L. J., Ex. p. 54. (y) Bills of Lading Act, 18 & 19 Vict. 
 
 («)) Crooks V. AUan, 5 Q. B. D. at c. Ill ; infra, sect. 62. 
 
 p. 40. («) L. B,., 7 Q. B. atp. 671. 
 
 (it) So, too, per Bramwell, L. J., in {a) 10 Q. B. D. at p. 628. And see 
 
 Jones V. Hough, 5 Ex. D. p. 124. And the judgments of Lord Esher and Fry, 
 
 see Sewell v. Burdick, 10 A. C. .74, at L. J., in Leduo v. Ward, 20 Q. B. D. 
 
 P' 
 
 105. 475. 
 
62 
 
 THE CONTRACT. 
 
 Sect. 56. 
 
 that bill of lading, and no terms of the contract outside the hill of 
 lading can he looked at." 
 
 And Lord Selhorne, in Glyn v. East and West India Dock 
 Go. (b), said : " Everyone claiming as assignee under a hill of 
 lading must he hound hy its terms, and hy the contract hetween 
 the shipper of the goods and the shipowner therein expressed. The 
 primary oflSce and purpose of a hill of lading, although hy mer- 
 cantile law and usage it is a symhol of the right of property in the 
 goods, is to express the terms of the contract hetween the shipper 
 and the shipowner." 
 
 In the Supreme Court of the United States the point was dis- 
 tinctly raised upon the question whether evidence could he given 
 of a verhal agreement with the shippers (plaintiffs), made before 
 the biU of lading was signed, that the goods should he stowed on 
 deck ; the hill of lading being silent on the point. It was held, 
 that the bill of lading imported a contract to stow under deck,, 
 and that the evidence to vary it ought not to be admitted (c). 
 
 57. On the other hand, the biU. of lading is not always the 
 expression of the contract; that may have been definitely concluded 
 before it was given, as where the shipper had chartered the vessel 
 or part of her. In such cases the original contract generally 
 determines the relations between the shipper and shipowner (d). 
 
 And where the biU of lading is on its face manifestly not a 
 complete statement of the contract, evidence may be given to 
 complete it. Thus, in Andrews v. Moorhouse (e), the bill of lading 
 contained the clause, " freight for the said goods being paid," and 
 evidence was admitted to show that the amount of freight had 
 been agreed upon verbally at 51. a ton, payable in London, the 
 port of shipment. It was left to the jury to say whether the 
 contract meant that that freight should be paid in any event, 
 whether the ship arrived at her destination or not, or only upon 
 delivery of the goods (/). 
 
 Shipper may 58. The shipowner has no right to alter the contract after the 
 
 require le- j i. i , t ■, , „ "j-^^j. ujac 
 
 delivery of goods have been put on board ; and if he refuses to give a bill of 
 
 Bill of lading 
 not always 
 the contract. 
 
 Where 
 iaoomplete. 
 
 (i) 7 A. 0. 591, at p. 596. 
 
 (e) The Delaware, 14 WaU. 679 (1871) ; 
 of. Say ward v. Stevens, 3 Gray, 97 
 (Mass. 1854). In Leduc v. "Ward, 20 
 Q. B. B. 476, the shipper's assent to an 
 intended deviation was ignored. 
 
 l^ Infra, s. 161. 
 " (e) 5 Tauu. 435. 
 
 (/) So also Lidgett v. Perrin, 11 
 C. B., N. S. 362. And see Malpas v. 
 li. & S. W. EaU. Co., L. R., 1 C. P. 
 336. 
 
CAEEIAGE IN A GENERAL SHIP. . 63 
 
 lading in accordance with the terms that have been expressly agreed, Sect. 58. 
 or are to be implied from the usual course of business, the shipper goods if a 
 may demand his goods back, and may claim damages for the breach fading not °^ 
 of contract (g). given. 
 
 In Peek v. Larsen (g), a Norwegian vessel was advertised in 
 London as about to sail for St. John. " For freight or passage 
 
 apply to J. D. Claxton & Co., brokers To be followed 
 
 by other well-known clippers." The plaintiff applied to J. D. 
 Claxton & Co., and arranged with them for the shipment of some 
 packages of tea, at the rate of 17s. 6d. per ton and 5 per cent, 
 freight, payable at St. John, with an allowance for primage. The 
 tea was then sent on board by the plaintiffs, a receipt was given 
 for it signed by the mate, and the plaintiffs presented bills of lading 
 to J. D. Claxton & Co. for signature by the captain. But these 
 were returned some days afterwards unsigned, and it then appeared 
 that Messrs. Claxton were only charterers of the ship, and were 
 unable to carry out their contract. The captain claimed to retain 
 the tea under a lien given by the charter party, and refused to 
 sign any bills of lading that did not incorporate the terms of the 
 charter party. The plaintiffs had had no previous notice of the 
 charter; they declined to take bills of lading incorporating its 
 terms ; and claimed that the tea should be re-delivered to them. 
 It was held, that they were not bound to have inquired as to the 
 existence of a charter party, and were entitled to have back the 
 tea free of any claims of the shipowner. 
 
 Lord iiomUIy, M. R., considered that no transaction had been 
 completed between the parties (h). 
 
 When, however, a bill of lading has been given and taken, its When bill of 
 provisions must be considered to relate back, and apply to what has jts tefm?^^'^' 
 been done in regard to the shipment before it was given. It is to ?®'*^ *° "^^^* 
 
 JlSiS D66U 
 
 be taken as the expression of the contract under which everything already done, 
 has been done. Thus, the exceptions of risks contained in it apply 
 to the stowage of the goods, although that may have been com- 
 pleted before the bill of lading was given («'). 
 
 {ff) Teekv. Larsen, L. E., 12 Eq. 378 ; E. 393 ; Pyman v. Burt, 1 Cab. & E. 
 
 of. KaUi V. Paddington S.S. Co., 5 Com. 207. And see per A. L. Smith, J,, in 
 
 Ca. 124; Jones {'.Hough, 5 Ex. D. 115; Norman v. Binnington, 25 Q. B. D. 
 
 infra, s. 269. 475, p. 478 ; and per Barnes, J., in the 
 
 (A) Ibid. p. 386. Glenoohil, (1896) P., p. 19. Cf. 
 
 (i) Baerselman ». Bailey, (1895) 2 Nottebohn v. Eichter, 18 Q. B. J). 
 
 Q. B. 301 ; The Duero, L. E., 2 A. & 63. 
 
64 THE CONTEACT. 
 
 Sect. 59. 59. The shipper is entitled to have a duly signed bill of lading 
 
 Shipper may given to him. As we shall see hereafter, the document is not 
 
 lading? ° merely evidence of the contract, but also a document of title to the 
 
 goods ; by the negotiation of which the property in the goods may 
 
 be transferred, and delivery of them constructively given. 
 
 In Falke v. Fletcher (k), it was held that a refusal to give bills 
 of lading to the shipper, and sailing away with the goods after that 
 refusal, amounted to a conversion of them. But in that case the 
 captain, in so refusing, was in effect setting up the title of another 
 person to the goods. On the other hand, in Jones v. Hough (l), a 
 wrongful refusal to give a bill of lading for goods, received on 
 board to be carried under a charter party, under circumstances 
 which showed no intention to deprive the shipper of his property, 
 was held not to amount to a conversion ; but to give a right to 
 damages, if any could be shown. 
 
 Where the charter party requires that the master shall sign the 
 bills of lading, it is not satisfied by the owners signing, or being 
 willing to sign (m). 
 
 To whom is 60. The shipowner must be careful to give the bill of lading to 
 
 lading to be the person entitled to have it. Ordinarily that is the person who 
 
 given? j^g^g siiipped the goods. He is generally the contracting party; 
 
 and the shipowner, if he has no notice to the contrary, may treat 
 
 him as entitled to the possession of the goods, and to the bill of 
 
 lading which represents that possession (n). 
 
 But the matter is sometimes complicated by the existence of a 
 mate's receipt. This may have been transferred to a purchaser ; 
 or the owner of the goods may have required the receipt to be 
 given up to him by the person who has shipped for him, in order 
 to obtain the bill of lading himself. The shipowner ought, there- 
 fore, in prudence, when a mate's receipt has been given, to require 
 that it be given up in exchange for the biU of lading. Possession 
 of it by the person who claims the bill of lading is evidence that he 
 is either the real shipper, or has the authority of the shipper; 
 whereas, non-possession of it is an indication that he has not that 
 authority (o). 
 
 {k) 3i L. J., 0. P. U6. («) Hathesing v. Laing, L. K., 17 
 
 (?) 6 Ex. D. 115. Cf. Eayner v. ^- ^^■ 
 
 Rederiaktiebolaget Condor, (1895) 2 ^"^ ^^^ ^'"^^^'^ "■ ^7^^' ^ '''^™- 
 
 Q T, „„. . ^ ; -= 433; Euok^. Hatfield, 6 B.& A. 632; 
 
 ^" Schuster v. M'Kellar, 26 L. J., Q. B. 
 
 m) The Princess, 70 L. T. 388. 281. 
 
CARRIAGE IN A GENERAL SHIP. 65 
 
 But the mere fact of holding the mate's receipt does not give the Sect. 60. 
 holder the right to claim the bill of lading. If the latter has been Effect of 
 given to the person actually entitled to the dominion over the ^geipt. 
 goods, the shipowner is discharged, although the mate's receipt 
 may be in the possession of some one else (p). 
 
 The right to that dominion generally depends on the law relating 
 to sales of goods (q). Where a vendor ships goods in his own 
 name, and takes and keeps the mate's receipt for them, that goes 
 far to show that he still intends to keep, and does keep them under 
 his own control, although, by the contract, the property is to pass 
 to the purchaser on the shipment (r). 
 
 But where agents at Bombay had bought and paid for goods on 
 account of their principals, and had shipped the goods in the names 
 of their principals, it was held that the retention by them of the 
 mate's receipts, with the view of holding the .goods as security for 
 repayment of the price, did not entitle them to claim the goods 
 from the shipowner, or from the holders of bills of lading which 
 had been given to the principals. Por the lien of the agents was 
 lost when they shipped the goods, notwithstanding their retention 
 of the receipts («) ; and the Yiee-Chancellor refused to hold the 
 shipowners bound by a custom said to exist at Bombay, under 
 which the bill of lading must be delivered to the persons holding 
 the mate's receipts. He considered that the captain, having no 
 notice of any other owners, discharged his duty by giving bills of 
 lading to those in whose names the goods had been shipped. 
 
 In Schuster v. McKellar {t), the" plaintiffs, owners of the goods, 
 had allowed one Cole (who was an intending purchaser) to ship 
 them, on the understanding that he would hand them the mate's 
 receipt. This he did, and according to the ordinary course of 
 business between them he should have redeemed the receipt by 
 paying for the goods. Instead, however, he obtained a signed bill 
 of lading for the goods, without producing the receipt, and he 
 indorsed this bill of lading to the Oriental Bank for value. 
 
 (p) Co-wasjee v. Thompson, 5 Moo. see Cowasjee v. Thompson, 6 Moo. P. C. 
 
 P. C. 165 ; Hathesing v. Laing, L. K., 1^5. 
 
 g^ W Hathesing v. Laing, L. E., 17 
 
 "■ ■ Eq. 92. But perhaps the agent's Hen 
 
 (q) See Benj. on Sales {3rd), bk. ii. would have been preserved had the re- 
 
 ■. . oeipts been taken in their own names. 
 
 See per Abbott, 0. J., Ruck v. Hatfield, 
 
 (r) Craven v. Ryder, 6 Taun. 433 ; 5 B. & A. 632. 
 
 Ruck V. Hatfield, 6 B. & A. 632. But [t) 26 L. J., Q. B. 281. 
 
 C. — C. 
 
 F 
 
66 THE CONTEACT. 
 
 Sect. 60. After the ship had sailed, and after Cole had failed, the owners 
 of the goods gave notice to the shipowner that they held the 
 mate's receipt, and required him to deliver the goods to them. In 
 spite of this, they were delivered at Calcutta, the ship's destination, 
 to the Oriental Bank ; and the question raised was whether the 
 owners were precluded by what they had done, or omitted to do, 
 from insisting upon their title to the goods. For it was considered 
 that if they had, by improper conduct or laches, led the shipowner 
 to incur other liabilities under the bill of lading, they would be so 
 precluded. 
 
 The jury were asked whether the captain and ship's brokers 
 were justified, under the circumstances proved, in signing and 
 delivering the bill of lading to Cole without the mate's receipt ; 
 and they were told that " if the captain and brokers did not know 
 of the mate's receipt, and there was good ground for supposing 
 that there was none, there would be no negligence on their part." 
 The jury found for the plaintiffs, and their verdict was upheld by 
 the Court. 
 
 With whom 61. When goods are delivered to a carrier to be carried without 
 
 18 the contract , . . 
 
 made? any special contract bemg made, the right to sue for a breach of 
 
 duty on the carrier's part appears to be in the person to whom the 
 
 goods belonged at the time of the bailment {x), or who is to bear 
 
 the risk of the transit {y) . If the actual sender is acting on the 
 
 owner's instructions, the latter is regarded as the contracting party, 
 
 and he becomes entitled to sue for the goods, and is liable to pay 
 
 the freight, and otherwise to perform the implied contract. 
 
 But when a special contract is made with the carrier, its terms 
 must be looked at ; and if it appears that the shipper was himself 
 the contracting party, he is the person able to sue, and liable upon 
 the contract, although he may have been acting for the benefit of 
 another, and may have no interest in the goods (s). 
 
 In Davis v. James {a), an action by consignors against the 
 carrier for not delivering, the objection was taken that the action 
 
 (x) Dawes v. Peck, 8 T. R. 330 ; 600 ; Cork DistiUeries Co. ». a. S. & 
 
 Coombs V. Bristol & Exeter Rail. Co., W. Rail. Co., L. R., 7 H. L. 269. 
 
 27 L. J., Ex. 401 ; Sargent v. Morris, W Dvmlop v. Lambert, 6 CI. & F. 
 
 3 B. & Aid. 277 ; Eragano v. Long, i 60" ! Dickenson v. Lano, 2 E. & E. 188 ; 
 
 B fi^ O 2iq ^-^^ ^^- ^°- ■"■ ^*8^S«> 15 ^- B- ^• 
 
 625. 
 
 Dunlop V. Lambert, 6 CI. & P. (a) 5 Burr. 2680. 
 
CARRIAGE IN A GENERAL SHIP. 67 
 
 should have been brought by the consignee, to whom the goods Sect. 61. 
 had passed. The ''plaintifEs had paid the carriage. Lord Mans- 
 field said there was neither law nor conscience in the objection. 
 " The vesting of the property may differ according to the circum- 
 stances of cases ; but it does not enter into the present question. 
 This is an action upon the agreement between the plaintiffs and 
 the carrier. The plaintiffs were to pay him. Therefore the action 
 is properly brought by the persons who agreed with him and were 
 to pay him" [b). 
 
 The same was held in Joseph v. Knox (c), in an action by for- 
 warding agents who had shipped goods in their own names, under 
 a bill of lading, and had paid the freight on them. 
 
 In Dunlop v. Lambert ((?) the same question was raised before 
 the House of Lords. Lord Oottenham said : " I am of opinion 
 that although, generally speaking, where there is a delivery to a 
 carrier to deliver to a consignee, he is the proper person to bring 
 the action against the carrier, should the goods be lost ; yet that if 
 the consignor made a special contract with the carrier, and the 
 carrier agreed to take the goods for him, and to deliver them to 
 any particular person at any particular place, the special contract 
 supersedes the necessity of showing the ownership in the goods ; 
 and that, by the authority of the cases of Davis v. James, and 
 Joseph v. Knox, the consignor, the person making the contract 
 with the carrier, may maintain the action, though the goods may 
 be the goods of the consignee." 
 
 In that case, also, the goods had been shipped under a bill of 
 lading, by which the freight was payable by the shipper. The 
 case was remitted to the Court below, on the ground that the 
 direction to the jury had been erroneous : (1) because the question 
 at whose risk the shipment was made had been withdrawn from 
 them; and (2) because the question had not been determined 
 whether there was a special contract between the consignors 
 and consignee (? shipowner) which might enable the former to 
 recover. 
 
 Perhaps it may be laid down that where goods are shipped in 
 the ordinary way, and a biU of lading is taken for them by the 
 
 (i) Cf . Moore v. Wilson, 1 T. E. 659 ; Ld. Raym. 271 ; Blanchard v. Page, 8 
 
 Dawes .. Peck, 8 T. E. 330. ^ ^^^^^_^ 281. 
 
 («) 3 Camp. 320. Cf. Brown ». Hodg- '^ ' 
 
 son, 2 Camp. 36 ; Evans v. Martlett, 1 M 6 01. & F. 600. 
 
 r2 
 
68 THE CONTKACT. 
 
 Sect. 61. shipper, without giving any notice that he is acting only as agent, 
 then, whether the consignee is named or not, the contract is, in the 
 first instance, between the shipowner and the shipper himself, 
 although the freight be made payable abroad by the consignee (e). 
 But if it be shown that the shipper had in fact a principal, the 
 latter may claim the benefit of the contract, and may be made 
 liable upon it (/). 
 
 BiUs of 62. Prior to the Bills of Lading Act, 1855, the contract of car- 
 
 Ijadmg Act , , , 
 
 nage was not transferred by a transfer of the biU of lading, or 
 
 of the property in the goods. The transferee did not acquire any 
 right to sue for a breach of the contract in his own name {g), nor 
 was he himself liable to be sued upon the contract Qi), 
 
 To obviate the inconvenience of this state of the law the BiUs of 
 Lading Act (18 & 19 Yict. c. Ill) was passed, on August 14th, 
 1855. It recited that " by the custom of merchants a bill of lading 
 of goods being transferable by indorsement, the property in the 
 goods may thereby pass to the indorsee, but nevertheless all rights 
 in respect of the contract contained in the bill of lading continue 
 in the original shipper or owner, and it is expedient that such 
 rights should pass with the property." 
 And enacted as follows : — 
 
 " 1. Every consignee of goods named in a bill of lading, and 
 every indorsee of a bill of lading to whom the property in 
 the goods therein mentioned shall pass, upon or by reason 
 of such consignment or indorsement, shall have transferred 
 to and vested in him all rights of suit, and be subject to 
 the same liabilities in respect of such goods as if the 
 contract contained in the bill of lading had been made with 
 himself. 
 "2. Nothing herein contained shall prejudice or afEect any 
 right of stoppage in transitu, or any right to claim freight 
 against the original shipper or owner, or any liability of 
 the consignee or indorsee, by reason or in consequence of 
 his being such consignee or indorsee, or of his receipt of the 
 goods by reason or in consequence of such consignment or 
 indorsement. 
 " 3. (See below, sect. 70.) " 
 
 W See G. W. EaU. Co. v. Bagge, 16 Ex. 320 ; Sargent t;. Morris, 3 B. & Aid. 
 
 Q. B. D. 625. Infra, ss. 484, 602, 638. 277. 
 (/) Anderson .. Clark, 2 Bing. 20. (A) Sanders v. VanzeUer, 12 L. J., 
 
 (y; Thompson v. Dominy, 14 L. J,, Ex. 497. 
 
CAEKIAGE IN A GENERAL SHIP. 69 
 
 TJnder this Act the rights under the contract follow the pro- Sect. 62. 
 perty in the goods, provided the owner or assignee is named in the EfPect of 
 bill of lading as consignee, or has the bill of lading indorsed to ''''^°™e°'«'i*- 
 him. And the indorsee acquires the right to claim for breaches 
 of the contract committed before, as well as after, he became the 
 owner of the goods («). The indorsement need not be special; 
 simple delivery of the bill of lading, indorsed in blank, is suffi- 
 cient (k). With the rights of suit are also transferred the liabilities 
 in respect of the goods under the contract. It does not appear to 
 have been decided whether this relates only to subsequent liabilities. 
 Perhaps it also includes liabilities on the face of the bill of lading 
 which ought to have been, but have not, in fact, been satisfied by 
 the indorser : for example, where the freight was agreed to be paid 
 in advance, and has not been paid (l). 
 
 63. The contract assigned by the indorsement is that which is Indorsee not 
 expressed in the bill of lading, unaffected by any alterations which inconsistent 
 may have been agreed upon between the shippers and the ship- made with" ^ 
 owner. Thus, in Leduc v. Ward (m), an action by an indorsee for ^^"PP™; 
 a loss of the goods during a deviation from the voyage described in 
 the bill of lading, it was contended ihat the shipowners were 
 excused by a notice to the shippers, at the time of shipment, 
 that the ship would make that deviation. But it was held that no 
 understanding with the shippers could affect the right of the 
 indorsee to have the goods carried as shown in the bill of lading. 
 " I prefer to rest my judgment on the view that the provision of 
 the statute making the contract contained in the bill of lading 
 assignable is inconsistent with the idea that anything which took 
 place between the shipper and shipowner, not embodied in the bill 
 of lading, could affect the contract " (»). 
 
 Nor is an indorsee affected by collateral stipulations, or condi- 
 tions, which might have prevented those who have assigned and 
 indorsed to him from enforcing the contract; unless he had 
 
 (i) Short V. Simpson, L. R., 1 0. P. to sue the shipowner for the damage. 
 
 248 ; The Wilhelm Schmidt, 25 L. T. (A) See the suggestion of a possible 
 
 34 • The Bona, 61 L. T. 28. See difference between special and blank in- 
 
 Bristol, &c. Bank v. Midland Rail. Co., dorsements by Lord Selbome, in Sewell 
 
 (1891) 2 Q. B. 652. Cf. The Marathon, v. Burdiok, 10 A. C. 74, p. 83 ; but of. 
 
 40 L. T., N. S. 163, where one who per Ld. Blackburn at p. 93. 
 
 had sold a cargo, and allowed in the (0 See infra, ss. 606, 637. 
 
 price for damage sustained in the ship {m) 20 Q. B. D. 475. 
 
 prior to the sale, was afterwards allowed («) Per Fry, L. J., at p. 484, 
 
70 
 
 THE CONTKACT. 
 
 Sect. 63. 
 
 Nor by 
 estoppel of 
 shipper. 
 
 Claim of 
 indorsee 
 confined to 
 goods put on 
 board. 
 
 notice of tHose stipulations. In The Emilien Marie (o), a bill 
 of lading had been given to the shipper for forty tons of palm 
 kernels, on the understanding that delivery in full should first be 
 made under two bills of lading previously given for portions of the 
 cargo ; and that delivery should only be given under the third bill 
 of lading if any were left. There were, in fact, not enough 
 kernels to satisfy aU the bills of lading. Still the indorsee of the 
 third for forty tons was held entitled to demand that quantity, 
 without regard to the understanding with the shipper. 
 
 And in Obrloff v. Briscal (The Helene {p) ), Dr. Lushington held 
 that an indorsee of the bill of lading is not estopped from com- 
 plaining of the stowage of the cargo, merely because the shipper 
 would be estopped from doing so by his acts at the time of ship- 
 ment. " The shippers and the assignees of the bill of lading do 
 not stand to each other as agent and principal, but as vendor and 
 purchaser. The rights and the liabilities which the assignee of the 
 bill of lading, under the first section of the 18 & 19 Vict. c. Ill, 
 has transferred to him, are the same rights and liabilities in respect 
 of such goods as if the contract contained in the biU of lading had 
 been made with him ; but in these cannot be included the rights 
 and UabiKties as between the shipper and the master dehors of that 
 contract in respect of other goods, or of the charter party. If so, 
 the biU of lading would always incorporate the charter party, 
 which it never does unless expressly stated; Chappel v. Comfort (j'). 
 I think the rights of the plaintiffs, as assignees of the bill of 
 lading, could not be curtailed by any liability of the charterers 
 towards the master, not being a liability imposed upon the 
 plaintiffs under the bill of lading " (;•). 
 
 63a. On the other hand, the rights of suit thus transferred to 
 the indorsee are limited to those which arise under the contract, as 
 expressed in the bill of lading. In Thorman v. Burt (s), 7,497 
 pieces of timber had been brought alongside the ship, and a mate's 
 receipt had then been given for them. Subsequently 216 pieces 
 were in some way lost from the rafts while alongside, and did not 
 
 (o) 32 L. T. 435. 
 [p] L. R., 1 P. C. 231. 
 (j) 10 0. B., N. S. 802. 
 ()•) OhrlofE V. Briscal (The Helene), 
 L. E., 1 P. C. »t p. 236. And see 
 
 Leduo V. Ward, 20 Q. B. D. 475. Cf. 
 Swainstont). Garrick, 2 L. J., N. S., Ex. 
 2S5 ; Craig v. Delargy, 16 So. L. R. 751. 
 And per Lord Esher in Cox v. Bruce, 18 
 Q. B. D. 147, p. 152. 
 (») 64 L. T. 349. 
 
CAERIAGE IN A GENERAL SHIP. 71 
 
 get on "board ; but iDills of lading -were signed by the captain's Sect. 63a. 
 agent for the whole 7,497 pieces, as being " in the hold." In- 
 dorsees of these bills of lading claimed for short delivery of the 
 216 pieces. But it was held by the Court of Appeal that they 
 had no right of action, since they could only claim under the 
 contract in the bill of lading, and that only bound the shipowner 
 in respect of the timber actually put on board. So far as the biQ 
 of lading related to goods not put on board, it was given vnthout 
 authority. 
 
 In that case the whole of the timber mentioned in the bills of 
 lading had been delivered into the custody of the ship ; and thus 
 the shipowner was apparently liable for it to the shippers (t). But 
 the Court regarded that fact as not material to the claim of the 
 indorsees; for their claim was made by virtue of the Bills of 
 Lading Act, and was confined to what could be claimed under 
 the contract shown by the bills of lading. 
 
 64. An indorsee to whom the rights and liabilities under the Effect of re- 
 contract have passed, gets rid of those rights and of any subsequent by inter- 
 Habilities if he assigns the goods away again, and indorses the bill ^aoraee 
 of lading to the assignee (m). 
 
 But an indorsement to an agent will not relieve the indorser of 
 his liabilities, unless the shipowner in some way agrees to accept 
 the liability of the indorsee in place of that of the indorser. 
 
 In Lewis v. MeKee (»), the consignee (and owner) of the goods 
 indorsed the bill of lading as follows : " Deliver to Messrs, Whatney 
 & Keane or order looking to them for aU freight, dead freight, and 
 demurrage, without recourse to us, (signed), George B. MoKee & 
 Co." A plea which set this out, and alleged that the plaintiffs 
 accepted the indorsement and delivered the goods in pursuance 
 thereof to Whatney & Keane, as the persons entitled to the goods, 
 and not to the defendant, was held good on demurrer (y). But 
 proof of the mere delivery of the goods to Whatney & Keane (who 
 were in fact only agents for the defendant), in exchange for the 
 bill of lading so indorsed, was not sufficient to discharge the 
 
 (t) The short-tand notes of the trial («) Smurttwaite v. Wilkiiis, 31 L. J., 
 
 before Grove, J., show that the ship- 0. P. 214. 
 
 owner's liability to the skippers, for the {x) L. K., 2 Ex. 37 ; L. K., 4 Ex. 
 
 missing pieces, was admitted, subject to 68. 
 
 possible defences against them. {y) L. E-i 2 Ex. 37. 
 
72 
 
 THE CONTRACT. 
 
 Sect. 64. 
 
 Position of 
 shipper after 
 indorsement. 
 
 defendant ; it was held that he must show that tlie indorsement 
 had been seen and assented to (s). 
 
 And, on the other hand, the liabilities oi the bill of lading 
 holder are not got rid of by a sale of the goods, unless he also 
 transfers the bill of lading. The consignee of a cargo sold it 
 before it arrived, but retained the bill of lading. On arrival, the 
 cargo was delivered to the last purchasers (there had been two sub- 
 sales), upon delivery orders signed by the consignee; but the 
 cargo was not taken with proper despatch within the meaning of 
 the biU of lading contract. The consignee was held liable for the 
 breach, he being stUl consignee within the meaning of the Bills of 
 Lading Act. As against the shipowner he had retained aU the 
 rights of owner (a). 
 
 65. It does not appear to have been decided whether the original 
 shipper continues liable under the contract when the property has. 
 Are Uaiiiities passed to a consignee named in the bill of lading, or to an indorsee. 
 The reasoning, however, on which Smurthwaite v. WUkins (i) 
 was decided, seems to apply to the case of the shipper as well as to 
 that of an intermediate indorsee. By the Act the shipper's rights 
 under the contract are transferred to the indorsee ; it would, there- 
 fore, be unfair that he should still be imder the obligations of the 
 contract which have to be performed subsequently (c). 
 
 Sect. 2 of the Act expressly keeps aUve the shipper's liability for 
 freight, and this confirms the view that subject to that exception 
 the liabilities are transferred. 
 
 It should, however, be noted that the Act does not say that 
 the liabilities are to be transferred; and that its preamble only 
 states that it is expedient that the rights of suit should pass with 
 the property. But this does not seem to have given rise to any 
 distinction. Brett, L. J., referring to the Act, in Gllyn v. East 
 and West India Dock Co. {d), said : — "As the statute is, in my 
 opinion, applicable, the rights of suit under the contract agaiast 
 the shipowner, that is, the rights to performance of the contract by 
 the shipowner, are transferred to the indorsee. If it were not for 
 the subsequent part of the enactment {i. e., sect. 2), the meaning 
 
 («) L. E., 4 Ex. 58. 
 
 (a) Fowler v. Knoop, 4 Q. B. D. 299. 
 As to tlie right to sue in such a case, 
 see The Felix, L. E., 2 A. & E. 273. 
 Cunningham v. Guthrie, 26 So. L. E. 
 
 208. 
 
 (i) 31 L. J., C. P. 214. 
 
 [c) But see Fox v. Nott, 30 L. J., Ex. 
 260. 
 
 {d) 6 Q. B. D. at p. 482. 
 
CARRIAGE IN A GENERAL SHIP. 73 
 
 of the word ' transferred ' would be that all rights and liahilities Sect. 65. 
 
 under the contract would arise and exist between the shipowner 
 
 and the indorsee, and would cease between the shipowner and the 
 
 indorser, if he was the original shipper or owner. All such rights 
 
 and liabilities are so transferred, that is to say, so arise and cease, 
 
 except such as are reserved by the proviso in sect. 2. No right is 
 
 reserved to the original owner or shipper, except the right to stop 
 
 in transitu. Therefore, by virtue of the statute, the original owner 
 
 or shipper has lost all accruing claims and right to performance 
 
 under the contract against the shipowner, and all such claims and 
 
 rights are transferred to the indorsee." 
 
 66. The transfer of the rights and liabilities under the contract to what 
 depends upon the passing of the property in the goods to the con- ^^o^g* ™'^^* 
 signee or indorsee. He must acquire "the property in the goods" pass? 
 "upon or by reason of- such consignment or indorsement" (e). A 
 prima facie right of action is, however, established by proving that 
 the indorsee gave value for the bill of lading to one who got it 
 from the consignors of the cargo (/) . 
 
 In The Freedom {g), it was held that consignees for sale, to 
 whom the consignors had indorsed the bill of lading, and who, as 
 part of the transaction, accepted and paid a bill of exchange drawn 
 by the consignors for nearly the full value of the goods, had 
 acquired the property within the meaning of the Act. And in The 
 Nepoter (A), Sir E. PhiUimore considered that a consignee for sale 
 might be in the same position, although he had not advanced 
 against the particular cargo, if the consignor was indebted to him 
 on the account current between them, and an arrangement existed 
 under which the proceeds of the goods were carried to that 
 account. 
 
 The decisions in these eases were, however, as to the effect of the 
 Admiralty Court Act, 1861 («), and it is perhaps doubtful whether 
 the requirements of that Act are the same as those of the Bills of 
 Lading Act, 1855 (/«). 
 
 (c) The effect of an indorsement of FigUa Maggiore, L. E., 2 A & E. 106. 
 the bUl of lading in passing the pro- (A) L. E., 2 A & E. 375. 
 
 perty in the goods is discussed in Chap. j.j 34 yiot. 0. 10, s. 6. Infra, ss. 685, 
 
 XIV. 690. 
 
 (/) Dracaohi v. The Anglo-Egyptian (j) See per Lord Blackburn, Sewell v. 
 
 Nav. Co.,,L. E., 3 0. P. 190. Burdiok, 10 A. 0. 74, at p. 94. And 
 
 (y) L. E., 3 P. C- 591- See also The see infra, s. 691. 
 
74 
 
 THE CONTEACT. 
 
 Sect. 66. The question under the latter Act was raised distinctly in Sewell 
 V. Biordick {I), and was there fully discussed, especially in the 
 House of Lords. A shipment of machinery had been made under 
 bills of lading, which made it deliverable at Poti to the shipper or 
 assigns on payment of freight, &c. ; in default the owners or agents 
 to have an absolute lien on the goods, and liberty to sell by auction 
 and retain freight and charges. The bills of lading were indorsed 
 in blank, and deposited with Messrs. Sewell, bankers in Manchester, 
 as security for a loan made by them to the shipper. The ship had 
 in the meantime arrived at Poti, and the goods were landed and 
 warehoused at the Russian custom-house. The shipper disappeared, 
 and after a year the goods were sold, in accordance with Russian 
 law, to pay custom-house duty and charges, and they realised no 
 more than enough for that purpose. The question was whether 
 Messrs. Sewell, as holders of the bills of lading, were liable for the 
 freight, which remained unpaid. 
 
 Field, J., held that they were not, on the ground that the 
 transaction was only a pledge of the goods, and that the bankers 
 had only acquired a special property in them as pledgees. This 
 was reversed by a majority of the Court of Appeal (Brett, M. E., 
 and Baggallay, L. J. ; Bowen, L. J., dissenting), on the ground 
 that by the indorsement the legal property in the goods had 
 passed to the bankers. But in the House of Lords this judgment 
 again was reversed, and that of Field, J., restored. 
 
 The judgment of the Court of Appeal proceeded on the view 
 that the indorsement of a bill of lading as a security for an 
 advance necessarily passed the legal property in the goods to 
 the indorsee, leaving only an equitable interest in the indorser, 
 either to redeem the bill of lading by paying ofE the advance, or 
 to receive any surplus in the event of a sale. That, in short, the 
 security given in this way must be by way of mortgage, as dis- 
 tinguished from pledge, whereby the right of possession of the 
 goods would pass to the indorsee without giving birn the goods 
 themselves. 
 
 This view must now be considered to be definitely disposed of 
 by the judgments in the House of Lords. There is no technical 
 necessity for regarding a transfer of a bill of lading as indicating 
 any one particular thing. It may be made for the purpose of 
 completing a pledge, or a mortgage, or a sale, or simply as an 
 (T> 10 Q. B. D. 363 ; 13 Q. B. D, 159 ; 10 A. C. 74. 
 
CARRIAGE IN A GENERAL SHIP. 75 
 
 authority to an agent to reoeiYe the goods. In each ease the effect Sect. 66. 
 is to be ' determined by considering what the intention was as 
 between transferor and transferee (m) . 
 
 But, further, the judgments in the House of Lords show that, Is a transfer 
 although the intention may be to transfer the legal property in mortgage 
 the goods by way of mortgage, it does not follow that the rights ^ 
 and liabilities under the contract are transferred. Lord Black- 
 burn (w), commenting on the dictum of the Privy Council in The 
 Freedom (o), that the "property" referred to in the Bills of 
 Lading Act, 1855, was " the legal title to the goods as against the 
 indorser," said that the opinion there expressed "was perhaps not 
 necessary, and I think not sound." 
 
 " The words used in the statute are not such as prima facie to 
 express such an intention. No one, in ordinary language, would 
 say that when the goods are pawned, or money is raised by mort- 
 gage on an estate, the property, either in the goods- or land, passes 
 to the pledgee or mortgagee, and I cannot think that the object of 
 the enactment was to enact that no security for a loan should be 
 taken on the transfer of bills of lading unless the lender incurred 
 all the liabilities of his borrower on the contract. That would 
 greatly, and I think unnecessarily, hamper the business of 
 advanciug money on such securities which the legislature has, by 
 the Factors Acts, shown it thinks ought rather to be encouraged. 
 
 " But where the goods are at sea, and there is a transfer of the 
 bill of lading, there is a delivery of possession, symbolical it is 
 true, but all that can be given. The question whether there was a 
 mortgage or only a common law pledge, or hypothec, it being 
 accompanied by delivery, might affect the question what was the 
 Court in which those rights were to be enforced, but does not 
 affect the substance of the rights. The borrower, i£ ready and 
 willing to pay the money, might, in the one case, be able to bring 
 an action at law against the lender who refused to allow him to 
 redeem, and, in the other, have to sue in equity ; but as it would 
 equally be a pledge, his rights would be the same in substance. I 
 am therefore strongly inclined to hold that, even if this was a 
 mortgage, there would not have been a transfer of ' the ' property 
 within the meaning of 18 & 19 Vict. c. Ill Bowen, L. J., 
 
 (m) See the question discussed, infra, («) 10 A. 0. at p. 95. 
 
 SB. 497-499. (») L- R-. 3 P. 0. 594. 
 
76 THE CONTRACT. 
 
 Sect. 66. -who agreed "witli Eield, J., in thiaking that this was not a mort- 
 gage but only a pledge, did not express any opinion as to what 
 would have been the law if it had been a mortgage. I belioTe all 
 the noble and learned lords who heard the argument are agreed 
 with him in thinking that in this ease it was only a pledge. I do 
 not, therefore, intend to express a final decision that an assignee of 
 a bill of lading by way of mortgage is not as such liable to be sued 
 under 18 & 19 Yict. c. Ill ; but only to guard against its being 
 supposed that, even if Brett, M. R., and Baggallay, L. J., were right 
 in holding this a mortgage, I, as at present advised, should agree 
 in their conclusion that the defendants could be sued." 
 
 And Lord Selborne's language indicated a similar doubt. He 
 said {p) : " The statute contemplates the passing of ' the property 
 in the goods,' by the indorsement of the bill of lading, as a thing 
 which may, or may not, happen, according to the nature and 
 intent of the contract or dealing for the purpose of which that 
 indorsemeut is made ; and it seems to provide for those cases only 
 in which the property so passes as to make it just and convenient 
 that aU rights of suit under the contract contained in the bill of 
 lading should be ' transferred to ' the indorsee, and should iiot any 
 longer ' continue in the original shipper or owner.' One test of 
 the application of the statute may perhaps be, whether, according 
 to the true intent and operation of the contract between the shipper 
 and the indorsee, the shipper still retains any such proprietary 
 right in the goods as to make it just and reasonable that he should 
 also retain rights of suit (the word is suit, not action) against the 
 shipowner, under the contract contained in the bill of lading. If 
 he does, the statute can hardly be intended to take from him those 
 rights, and transfer them to the indorsee. If they are not trans- 
 ferred to the indorsee, neither is the indorsee subjected to the 
 shipper's liabilities. It is very difficult to conceive that when the 
 goods are still in transitu, when the substance of the contract is not 
 sale and purchase, but borrowing and lending, and when the 
 indorsement and deposit of the bill of lading is only by way of 
 security for a loan, it can be the intention of either party thereby 
 without more, to divest the shipper of all proprietary right to the 
 goods, and to take from him and transfer to the indorsee all rights 
 of suit under the contract with the shipowner. That some pro- 
 prietary right (his original right, subject only to the creditor's 
 Oj) 10 A. 0. at pp. 84—86. 
 
CAEEIAGI2 IN A GENERAL SHIP. '^7 
 
 security) remains in him is indisputable. If that proposition Sect.ee. 
 needed illustration from authority, it would be found in the cases 
 of Re Westzinthus (q), Spalding v. Euding (r), Kemp v. FaUi («). 
 Can it be that he is by the statute deprived of all remedies, legal 
 and equitable, under the bill of lading, as long as it remains in 
 the hands of the secured creditor ? The creditor, in the ordinary 
 course of things, will do nothing until the time for payment or 
 delivery of the goods arrives. Can it then be material whether 
 the proprietary right, thus remaining in the shipper while the 
 goods are in transitu, is legal or equitable ? ^^he statute relates to 
 a subject of general mercantile law, in which not Englishmen only 
 but foreigners also may be, and often are, concerned. Foreign as 
 well as British indorsements of bills of lading by way of security 
 for advances (which may be made abroad, perhaps in countries not 
 governed by English laws) are liable to be afEected by it, whenever 
 recourse must be had to British Courts. It seems to me to be 
 inconceivable that the construction of the words ' the property in 
 the goods,' in such a statute, can have been intended to depend 
 upon any such technical distinction as that made in English law 
 (but by no means in the laws of all other countries in which 
 the customs of merchants prevail) between legal and equitable 
 titles. It is to be observed, further, that the statute contemplates 
 beneficium cum onere, and not onus sine heneficio. It may be reason- 
 able, if the indorsee has the benefit (as he would if he were a 
 purchaser out and out, or if under his title as indorsee of the biU of 
 lading he obtained delivery of the goods to himself), that he should 
 take it with its corresponding burden, quoad the shipowner. But 
 it would be the reverse of reasonable to impose upon him such a 
 burden when he has neither entered into any contract of which it 
 might be the natural result, nor (having taken a mere security) has 
 obtained any benefit from it. This observation is fortified by the 
 fact that the statute does not appear to distinguish between 
 indorsements subsequent, and those anterior, to its enactment." 
 
 On the other hand. Lord Selbome expressed the view that an Does delivery 
 indorsee who is not entitled to the benefit of the contract, in the aitS m"^^ 
 first instance, may become so by obtaining possession of the goods position ? 
 under the bill of lading. " The authorities decided upon the 
 statute itself appear to me to be most easily reconciled with its 
 apparent objects, and with each other, by a view which, if hardly 
 
 (?) 5 B. & Ad. 817r (r) 6 Bear. 376. (») 7 App. Gas. 573. 
 
78 THE CONTEACT. 
 
 Sect. 66. consistent "with expressions to be found in some otlier cases, 
 nevertheless seems to me to have a real and substantial foundation 
 in reason and good sense; viz., that the indorsee by way of security, 
 though not having 'the property' passed to him absolutely and 
 for all purposes by the mere indorsement and delivery of the biU 
 of lading while the goods are at sea, has a title by means of which 
 he is enabled to take the position of full proprietor upon himself, 
 with its corresponding burdens, if he thinks fit ; and that he 
 actually does so between himself and the shipowner, if and when 
 he claims and takes delivery of the goods by virtue of that 
 title" (t). 
 
 Property 66a. Further, the property must pass " upon or by reason of " 
 
 with till of the consignment, or indorsement of the bill of lading, in order to 
 ^ ^' transfer the rights of suit. Hence, in Delaurier v. Wyllie (m), it 
 
 was held by the Scotch Court of Session, that where the goods had 
 belonged to the indorsee of the bill of lading before they were 
 shipped, no right to sue for them on the bill of lading contract was 
 given to him by the indorsement. 
 
 Certain iron had there been shipped by a person through whom 
 (as agent) the pursuers had bought it, in a vessel chartered by the 
 shipper to carry other goods which he himself was selling to the 
 pursuers. The bill of lading for the iron was indorsed by the 
 shipper to the pursuers. It contained no exception of negligence ; 
 but the charter did. The iron was lost owing to negligent naviga- 
 tion. It was held that no claim on contract could be made against 
 the shipowners except under the charter-party, on the ground above 
 stated. 
 
 In another recent Scotch case (x) it was held that holders of 
 delivery orders, given by the indorsee of the bill of lading, could 
 not sue the shipowner for non-delivery of the goods ; though the 
 bill of lading was in the hands of the master, indorsed by the 
 indorsee, with a request for delivery against his delivery orders. 
 
 The indorsement must take place while the bill of lading is still 
 in force as a document of title, that is, generally, before delivery of 
 the goods (y). But where deKvery has been improperly made to 
 one who did not hold the bill of lading, a subsequent indorsement 
 may still transfer the rights under the contract (s). 
 
 (i!) Sewellj). Burdiok, 10 A. 0. atp. 86. {y) See infra, a. 501. 
 
 («) 27 So. L. E. 148 (1889). (z) Pirie v. Warden^ 8 So. L. E. 360. 
 
 {x) CuDmngham v. authrie, 26 So. L. Cf . Bristol, &o. Bank v. Midland RaU. 
 
 K- 208. Co., (1891) 2 Q. B. 662. 
 
CAERIAGE IN A GENERAL SHIP. 79 
 
 67. It must be remembered that the owner of goods has the Sect. 67. 
 right, apart altogether from contract, to claim compensation from Eight of 
 any person who wrongfully injures his goods, or deprives him of l^^^^° ™® 
 them. Thus, an owner of cargo may have a right to sue the ship- 
 owner, although not the holder of the bill of lading ; for example, 
 
 for improperly stowing the goods in contact with others injurious 
 to them (a), or for delivering them to some person who was not 
 entitled to have them (h). 
 
 Where goods have been shipped in fraud of their owner, the 
 shipowner cannot claim to detain them as against him ; and, on 
 the other hand, he is discharged of his contract by a delivery to 
 the true owner (c). 
 
 Where, however, goods have been shipped with the consent of 
 the owner, though not under contract with him, he will not be in 
 a position to claim against the shipowner for the consequences of a 
 tortious act, if the shipowner is exempted from liability for such 
 acts by the contract with the shipper. Thus, in' Delaurier i). 
 Wyllie {d), the shipowners were not liable to the owners of the iron 
 in tort, for negligently destroying it, as the goods were on board 
 with their consent under a charter which excepted negligence. 
 
 68. The shipowner becomes responsible as a carrier for all goods Shipowner 
 
 which have been delivered to him, or to his authorized servants, responsible ou 
 
 for the purpose of being carried. It is not necessary that they ^^^^^ *° ^ 
 
 should have actually got on board. Thus, delivery to the mate on goods not on 
 
 . .... board, 
 
 the quay, alongside which the vessel is lying, is sufficient (e). And 
 
 if the goods have to be taken to the ship in lighters, and that is 
 
 done by the shipowner, he becomes responsible, in the absence of 
 
 express stipulation or custom to the contrary, from the time of 
 
 taking delivery for the purpose of lightering them. In each case, 
 
 the question is, had the goods been delivered into the shipowner's 
 
 custody for the purpose of being carried ? 
 
 The usual course, when a vessel is lying alongside a quay, 
 
 (a) Hayn v. Culliford, i 0. P. D. 182. (<;) 27 So. L. E. 148, cited supm, 
 
 And see Marshall D. York, &c.Eail. Co., g. 66a. See also Alexander v. Mal- 
 
 21 L. J., C. P. 34 ; Martin ». Great Ind. oolmson, Ir. Eep., 2 Oh. 621 ; Wyld v. 
 
 Pen. EaH. Co., L. E., 3 Ex. 9. Pickford, 8 M. & W. 443. 
 
 (4) Schuster v. McKellar, 26 L. J., 
 Q. B 281. W British Columbia Saw Mill Co. ■:). 
 
 (e) Einlay n. Liverpool and Great Nettleship, L. E., 3 C. P. 499 ; Cobban 
 
 ■Western Steamship Co., 23 L. T. 251 ; ^- Downe, 6 Esp. 41 ; Fraganov. Long, 
 
 Sheridan v. New Quay Co., 28 L. J., * B. & 0. 219. Cf. Thormam;. Burt, 54 
 
 C p gg L. T. 349. Infra, s. 25U 
 
80- THE CONTRACT. 
 
 Sect. 613. appears to be for the shipper to place the goods on the quay, and 
 to take a receipt there from the mate or person in charge of the 
 ship ; and for the ship to do the work, and bear the expense of 
 putting the goods on board. 
 
 The person to whom the goods are delivered must be a servant 
 or agent of the shipowner authorized to receive the goods. Thus, 
 delivery to a deck hand of a steamboat not employed to receive 
 goods is not sufficient (/). 
 
 And the delivery must be under a contract made, or intended to 
 be made, with the shipowner. He is not responsible for goods 
 deKvered to the master, to be carried under a private arrangement 
 with him, whether he was privileged to carry on his own account 
 or not {g). 
 
 Effect of 69. A description of the goods shipped is generally given in the 
 
 and statement ^^ 0^ lading ; with a statement of the number of packages, or of 
 
 good^^ b^°* *^® quantity when the shipment is in bulk. This description and 
 
 of lading. statement of quantity are evidence against the shipowner that 
 
 goods of that kind and amount have been shipped. But they are 
 
 not conclusive. He may show that they are incorrect, whether 
 
 the claim be by consignees on whose account the shipment was 
 
 made {h), or by iudorsees of the bill of lading ; although they may 
 
 have given full value for the goods, as there described, without 
 
 knowledge of the error («). And this does not depend upon words 
 
 of reservation, such as "weight and contents unknown," being 
 
 inserted in the bill of lading (A;). Though whether such words 
 
 appear or not, the onus of falsifying the statement in the biU of 
 
 lading is upon the shipowner {I). 
 
 {/) Trowbridge v. Chaplin, 23 Conn. Brown v. Powell Coal Co., L. E., 10 
 
 595 ; Cobban v. Downe, 5 Esp. 41. C. P. 562 ; Thorman v. Burt, bi L. T. 
 
 {g) AngeU, Carr. s. 146. In Suarez ^^^ ' ^^^^ "■ Wingate, 3 AUen, 103 
 
 V. Washington, 1 Woods, C. C. 96, the (^ass.). 
 
 shipowner was held not liable for goods W ^™°* "■ Norway, 20 L. J., C. P. 
 
 • deKvered to the purser, who gave a bill ^^ ^ ^™"^ *• ^°^ell Coal Co., L. E., 
 
 of lading for them without authority. •^'' ^- ^- ^^'^• 
 
 [T) Per Lord Chelmsford, McLean v. 
 
 (h) Berkeley v. WatUng, 7 A. & E. pieming, L. E., 2 H. L., Sc. 128, p. 
 
 29; Bates v. Todd, 1 Moo. & E. 106. 130 ; and see Bradley v. Dunipace, 31 
 
 So as to the quantity stated in the mate's l_ j j;^ 210' 32 L J Ex 22 
 
 receipt: Biddulph ». Bingham, 30 L. T. gee Smith '». Bedouin S. Nav-'co.] 
 30. 
 
 (1896) A. C. 70, and Harrowing v. 
 Katz, 10 T 
 effect of ei 
 McLean v. Hlemjng, 2 H. L., So. 128 ; of lading. 
 
 (4) Grant v. Norway, 20 L. J., C. P. Katz, 10 T. L. E. 115, 400, as to the 
 93 ; Jeasel v. Bath, L. E., 2 Ex. 267 ; effect of evidence to contradict the bill 
 
CAEKIAGE IN A GENERAL SHIP. 81 
 
 In Grant v. Norway {m), a bill of lading liad been signed by Sect. 69. 
 the master for twelve bales of silk, none of wbich had ever been 
 shipped ; it was held that transferees of the bill of lading, ;ivho 
 had given value for it on the faith of the representation contained 
 in it, had no claim against the shipowners. For the master had 
 no authority to give a bUl of lading for goods which had not 
 been shipped. 
 
 " It is not contended that the captain had any real authority to 
 sign biUs of lading, unless the goods had been shipped. Nor can 
 we discover any ground upon which a party taking a bill of lading 
 by indorsement would be justified in assuming that he had authority 
 to sign such bills, whether the goods were on board or not. If, 
 then, from the usage of trade and the general practice of ship- 
 masters, it is generally known that the master derives no such 
 authority from his position as master, the case may be considered 
 as if the party taking the bill of lading had notice of express limi- 
 tation of the authority, and iu that case, undoubtedly, he could not 
 claim to bind the owner by a bUl of lading signed when the goods 
 therein were never shipped. 
 
 ****** 
 
 " The general usage gives notice to all people that the authority 
 of the captain to give biUs of lading is limited to such goods as 
 have been put on board, and a party taking a bill of lading either 
 originally or by indorsement, for goods which have never been put 
 on board, is bound to show some particular authority given to the 
 master to sign it " (n). 
 
 So in Hubbersty v. Ward (o) it was said, " When a captain has 
 signed bills of lading for a cargo that is actually on board his 
 vessel, his power is exhausted ; he has no right or power, by signing 
 other biUs of lading for goods that are not on board, to charge his 
 owner." 
 
 There the captain had been induced by fraud to give bills of 
 lading for part of the cargo twice over, and delivery had been 
 
 (m) 20 L. J., 0. p. 93. Cf. Coleman ment in the bill of lading conclusive 
 
 V. Eiohes, 24 L. J., C. P. 125 ; The evidence, it has been held, in Scotland, 
 
 EmiHen Marie, 32 L. T. 435. *^** *^^ shipowner is not bound by it. 
 
 Denholm v. Halmoe, 25 So. L. B. 112, 
 
 («) Per Jervis, C. J., delivering the cited infra, s. 206. 
 
 considered judgment of the Court, 20 (o) 22 L. J., Ex. at p. 116. Of. 
 
 L. J., 0. P. at p. 98. Even where the Coventry v. G. E. Rail. Co., 11 Q. B. T>. 
 
 law of the flag would make the state- 776. 
 
 C. — C. G 
 
82 THE CONTRACT. 
 
 Sect. 69. given under those obtained fraudulently. It was held that the 
 shipowner was liable for the value of the goods to the holders of 
 the original bills of lading. 
 
 In Thorman v. Burt {p), bills of lading had been given by the 
 captain's agent for a quantity of timber, of which part had not 
 been put on board, having been lost from the rafts while alongside 
 the ship. It was held that the statements in the bills of lading 
 were not binding upon the shipowners, although the whole of the 
 timber had been brought alongside and delivered to the ship, and 
 the mate's receipts had been given to the shippers for the whole 
 quantity after it had been brought alongside. 
 
 EfiEeot of 69a. Again, the master does not generally bind the shipowners 
 
 to quality. by a description in the bill of lading of the quality of the goods. 
 
 In Cox V. Bruce {q), a biU of lading had been signed by the 
 captain for 500 bales of jute, which were described in the bill of 
 lading as marked in a certain manner with known marks, which 
 indicated their quality. It turned out that the marks as stated in 
 the biU of lading were not accurate, and the plaintiffs, who were 
 indorsees for value, without notice of the error, claimed from the 
 shipowners the difference in value between the goods described 
 and those in fact shipped and delivered. They contended that the 
 shipowners were estopped from denying the truth of the represen- 
 tation made. But the Court of Appeal, affirming the Queen's 
 Bench Division, dismissed the claim. 
 
 Lord Esher said: " That the captain has authority to bind his 
 owners with regard to the weight, condition, and value of the 
 goods under certain circumstances may be true ; but it appears to 
 me to be absurd to contend that persons are entitled to assume that 
 he has authority, though his owners really gave him no such 
 authority, to estimate and determine and state on the bill of 
 lading, so as to bind his owners, the particular mercantile quality 
 of the goods before they^ are put on board, as, for instance, that 
 they are goods containing such and such a percentage of good or 
 bad material, or of such and such a season's growth. To ascertain 
 such matters is obviously quite outside the scope of the functions 
 and capacities of a shijj's captain, and of the contract of carriage 
 with which he has to do. It was said that he ought to see that 
 the quality marks were not incorrectly inserted in the bill of lading. 
 
 [p] 54 L. T. 349. See this case, stated atipra, s. 63a. (q) 18 Q. B. D. 147. 
 
CARRIAGE IN A GENERAL SHIP. 83 
 
 But, apart from the special terms of the contract with regard to Sect. 69a. 
 
 the quaKty marks, -with which I have already dealt, I do not think 
 
 it was his duty to put in these quality marks at all ; aE he had to 
 
 do was to insert the leading marks. There is nothing in the case 
 
 to show that, irrespective of the particular contract, the quality 
 
 marks had by the custom of the trade become a recognized part of 
 
 the marks which it was his duty to insert " (r).. 
 
 The bill of lading in that case contained the following clause : — 
 
 " If quality marks are used they are to be of the same size as 
 the leading marks, and contiguous thereto, and if such quality 
 marks are inserted in the shipping notes, and the goods are accepted 
 by the mate, bills of lading in conformity therewith shall be 
 signed by the captain, and the ship shall be responsible for the 
 correct delivery of the goods." It was held that " such quality 
 marks " meant the marks on the bales themselves, and that, as 
 those marks had not been correctly inserted in the shipper's 
 shipping notes, the clause did not apply to bind the shipowner. 
 
 69b. Sometimes it is agreed that the statement of quantity in the Where quau- 
 bill of lading shall be conclusive, and, if so, the shipowner is bound be conolusiTe. 
 by it, unless he can show fraud, although the goods may not have 
 been shipped, and though the master, in giving the bill of lading, 
 may have made a mistake as to the owner's obligations. 
 
 InLishman v. Christie («), a ship was chartered to carry a cargo 
 of timber from Memel. The charter party provided that the cargo 
 should be brought alongside at the charterer's risk, and also that 
 the bills of lading should be " conclusive evidence against the 
 owners of the quantity of cargo received as stated therein." The 
 captain signed bills of lading for the whole quantity of timber sent 
 to the ship from the timber-ponds up the river, although it was 
 known that some of it had been lost on the way down. He did 
 this on the demand of the shippers' agent, and under the mistaken 
 impression that he was bound by the custom of the port to give 
 
 (r) As against an indorsee for value within the scope of his authority. See 
 of a bill of lading, which stated that the Parsons, Shipping, 190. It was held in 
 goods were marked " Calcutta," it was Grieve v. Konig, 17 So. L. E. 325, that 
 held in Bengal, on the authority of shipowners are not answerable in dam- 
 Howard V. Tucker, 1 B. & Ad. 712, ages for the unauthorized act of the 
 that the shipowner was estopped from master in ante-dating a bUl of lading, 
 denying that they were so marked : As to the master's duty in this respect, 
 Madhub Chunder Dey v. Law, 13 Ben. see Stumore v. Breen, 12 A. C. 698. 
 L. E. 394. Statements of that kind 
 made by the master appear to be clearly ^ ' H- ■ ■ 
 
 g2 
 
84 THE CONTEACT. 
 
 Sect. 69b. clean bills of lading for the whole, after noting his protest against 
 the loss. It was held hy the Court of Appeal that the statements 
 in the bills of lading were conclusive upon the shipowners as to the 
 quantity shipped, and that they were responsible to the charterers 
 for the deficiency {t). 
 
 Where by the charter party the bill of lading was to be con- 
 elusive evidence of the quantity shipped, and a bill of lading was 
 given for a certain number of pieces with a marginal note that some 
 had been lost before put on board, it was held that the biU of lading 
 did not preclude the shipowners from showing that some of the 
 number stated were not shipped (m). 
 T*^^ °* 70. Though the ovmers are, generally, not conclusively bound by 
 
 s. 3. ' the bill of lading statement of the quantity of goods shipped, the 
 
 same is not true of the person who has signed the biU of lading. 
 By the Bills of Lading Act, 1855 (18 & 19 Vict. c. Ill), s. 3, 
 " Every bill of lading in the hands of a consignee or indorsee for 
 valuable consideration, representing goods to have been shipped on 
 board a vessel, shall be conclusive evidence of such shipment as 
 against the master or other person signing the same, notwithstand- 
 ing that such goods, or some part thereof, may not have been so 
 shipped, unless such holder of the bill of lading shall have had 
 actual notice at the time of receiving the same that the goods had 
 not been in fact laden on board : provided that the master or other 
 person so signing may exonerate himself in respect of such mis- 
 representations by showing that it was caused without any default 
 on his part, and wholly by the fraud of the shipper («>), or of the 
 holder, or some person under whom the holder claims." 
 
 This section prevents the person who has actually signed a bill 
 of lading, or the person in whose name and with whose authority 
 it has been signed {w), from disputing its accuracy, in material 
 points \ww), in any proceeding between a consignee or indorsee for 
 value and himself, unless he can bring himseK within the proviso. 
 It does not bind the shipowner when the biU of lading has been 
 signed by his agents in their own names {w). 
 
 {t) See also Fisher v. Oalder, 1 Com. Coal Co., L. E., 10 C. P. at p. 568. 
 
 Ca. 466. Of. Pyman v. Burt, 1 Cab. & [ww] Parsons ». New Zealand Shipping 
 
 Ell. 207. Co., 5 Com. Ca. 179. 
 
 (m) LoMeu». Calder, 14 T. L. R. 311. [x) Jessel v. Bath, L. E., 2 Ex. 267 ; 
 
 (o) See VaUeri v. Boyland, L. E., 1 Brown v. Powell Coal Co., L. K., 10 
 
 C- !"■ 382. 0. P. 562 ; Thorman v. Burt, 54 L. T, 
 
 (w) Per Brett, J., Brown v. Powell 349. 
 
CAERIAGE IN A GENERAL SHIP. 85 
 
 In Bknohet z>. Powells Llantivit OolHeries Co. (y), the master of Sect. 70. 
 a vessel sued for a lump freight, made payable by a bill of lading, 
 signed by the master in respect of goods which were described in 
 the bUl of lading as weighing 256,782 kilos. The defence was 
 that a smaller weight only was carried and delivered. To which it 
 was replied that the whole of the goods described in the biU of 
 lading had been delivered, and that the weight stated was a 
 mistake. It was contended, on demurrers, but without success, 
 that the Bills of Lading Act precluded the master from alleging 
 that the weight stated was incorrect. 
 
 Bramwell, B., said : " In an action against him for non-delivery 
 he might be estopped, but not in such an action as this." And 
 Cleasby, B., went further : " Now, if the bill had acknowledged 
 the receipt of certain specific things — a certain number of horses, 
 for instance — it might be that the plaintiff could not be heard to 
 say that a different number was shipped in fact. But that cannot 
 be said of a mere statement of weight, which may, and often does, 
 vary during the transit ; and I do not see any estoppel, therefore, 
 to prevent the plaintiff from saying that the measurement was 
 wrong, it not being suggested that a wrong weight was inserted 
 fraudidently in order to enhance the lump freight recoverable." 
 
 Where an action for freight was brought by a master, who was 
 also a part owner of the ship, and a deduction was claimed by the 
 bill of lading holder for short delivery of the goods specified in the 
 bill of lading, there was a division of opinion among the judges of 
 the Court of Common Pleas as to whether the section applied (s). 
 
 It seems that a consignee or indorsee who has given value for 
 the bill of lading is entitled to the protection of the section, even 
 though the mistake in the biQ of lading was the result of careless- 
 ness or omission on the part of his own agents (s). 
 
 71. Usually the bill of lading contains the words " weight, con- "WeigW, &o. 
 tents, and value unknown," or a clause to that effect, although the °^^' 
 weights and description of the goods may also be set out in the 
 document. Where that is the case these statements of weight and 
 description must be taken as having been made by the shipper, and 
 not verified by the person who gave the bill of lading (a). 
 
 (y) L. R., 9 Ex. 74. But see per Lord Chelmsford ia MoLeam 
 
 (a) Meyer v. Dresser, 33 L. J., C. P. v. Flemmg, L. E., 2 H. L., So. 128, at 
 
 289. Of. The Emilien Marie, 32 L. T. p. 130. Of. Parsons v. New Zealand 
 
 435. Shipping Co., 5 Com. Oa. 179, as to 
 
 {a) Vessel V. Bath, L, R,, 2 Ex. 267. incorrect marks, 
 
86 THE CONTRACT. 
 
 Sect. 71. In Jessel v. Bath (b), the Court considered tliat tlie clause 
 " weight, contents and value unknown," was not inconsistent with 
 a statement of the weight of mineral shipped in hulk, and that it 
 would have protected the person who signed the bill of lading from 
 liability for short weight. But in Bradley v. Dunipace (c), the 
 words " contents unknown, and not responsible for weight," did 
 not protect the master who had signed for "467 bags of rye meal, 
 or bran, gross 35 tons 9 cwt., iinder the subjoined marks;" the 
 fact being that bags of two sizes with the same marks had been 
 shipped, and the bags delivered to the holder of this bUl of lading 
 were too many of them of the smaller size to make up the gross 
 weight of 35 tons 9 cwt. 
 
 Shipper may 72. Where the clause "weight, &c. unknown " occurs, the shipper 
 010086? ^ is entitled to the benefit of it, as well as the shipowner. Upon 
 shippiag a case of silk broadstuffs a shipper, by mistake, described 
 the goods in the bill of lading as linen goods. The master before 
 signing stamped on the bill of lading the words " weight, value 
 and contents unknown." Had the goods been properly described 
 the rate of freight to be paid would have been higher than was in 
 fact agreed. Some of the silks were abstracted from the case before 
 delivery. It was held that the misdescription did not prevent the 
 shipper from recovering for the loss from the shipowner ; the effect 
 of the memorandum was to make the contract one for the carriage, 
 not of linen goods, but of the case and its contents, whatever 
 they might be {d). 
 
 A doubt was expressed whether the shipper could recover more 
 damages than if the parcel had contained linen, on the ground that 
 he had precluded himself from saying that they were anything 
 else ; but the point was not decided. 
 
 Another question discussed was, whether there would have been 
 any contract, had the memorandum not been inserted ? Gb"Ove, J., 
 thought that where a party entering into a contract "for carriage 
 of goods, even without fraud, describes the goods to be carried as 
 goods of a certaiQ character, the contract is to carry goods of that 
 character, and not of another character" (e). 
 
 But Brett, J., said that " stiU there would have been a delivery 
 
 (i) L. E., 2 Ex. 267. {0) Lebeauj). General Steam Nay. Co., 
 
 W 31 L. J., Ex. 210 ; 32 L. J., Ex. L. E 8 C P 88 
 
 22. Cf. The EmiHen Marie, 32 L. T. 
 
 435. {ej L. E., 8 C. P. at pp. 97, 98. 
 
CAEEIAGE IN A GENERAL SHIP. 87 
 
 of the goods shipped to the defendants, and an acceptance of such Sect. 73. 
 goods to be carried for reward. What, then, would have heen the 
 effect of the statement ia the bill of lading that the goods were 
 linen goods ? It is not necessary to decide the point, and I do not 
 decide it, but I am inclined to think that the misrepresentation 
 would not avoid the contract " (/). 
 
 It seems necessary to adopt the view that there is a contract of 
 some sort, where the carriage of the goods has been actually under- 
 taken. Had there been only an executory contract, had the goods 
 been still on the quay at the place of shipment when the mistake 
 was discovered, the shipowner might have put an end to the con- 
 tract, as having been founded on a mutual mistake. But having 
 actually entered upon a performance of the intended contract, by 
 dealing with the subject-matter in fact contemplated by it, though 
 not rightly described in it, that contract seems to be the only one 
 that can determine the rights of the parties. Even if the shipper 
 had been guilty of fraud, it would not be competent for the ship- 
 owner to put an end to the contract, unless he could restore the 
 shipper to his origiual position. Though he would not in that 
 case, it seems, be liable ia damages for a loss of the goods {g). 
 
 73. The general statement in the bill of lading that the goods "Good order 
 have been shipped "in good order and condition," amounts to an tion." 
 admission by the shipowner that, so far as he and his agents had 
 the opportunity of judging, the goods were so shipped {h). 
 
 But it has been held that the admission is not conclusive ; even 
 in favour of indorsees ; and although the master knew, or ought 
 to have known, of the defective state of the goods when he signed 
 the bill of lading (i). It was considered that the claim of the 
 indorsees was subject to the defence which the shipowners would 
 have had against the shipper {k) . 
 
 In The Ida {I), the Privy Council held, confirming Sir E. PhilH- Onus of proof 
 more upon the point, that the addition of the clause "quantity "quantity 
 and quality unknown " prevented the ordinary words " in good ^^^„^ 
 order," &c. from operating as an admission by the shipowner that 
 the cargo was in good order when shipped. The cargo was of 
 
 (/) At p. 95. And see per Bovill, Asp. N. S. 195. 
 
 0. J., at p. 94. [i) Craig v. Delargy, 16 So. L. E. 751. 
 
 (y) See infra, s. 729. (A) But of. the cases cited siipra, s. 63. 
 
 (A) The Freedom, L. R., 3 P. C. 594 ; (/) 32 L. T. 541. See also The 
 
 The Peter der Grosse, 1 P. D. 414 ; 3 Prosperino Palasso, 29 L. T. 622. 
 
88 THE CONTRACT. 
 
 Sect. 73. cotton seed, and had heated badly on the voyage. The shipowner 
 contended that this was owing to its green condition when shipped. 
 The Court held that the plaintiff was bound to make out a prirnd 
 facie case ; either by showing that the seed was in good condition 
 when shipped, or that the damage could be traced to some default 
 of the shipowner (m). 
 
 But in the later case of The Peter der Grosse («), it was held 
 by Sir E. Phillimore, and by the Court of Appeal, that the clause 
 " weight, contents and value unknown," did not destroy the effect 
 of the words " in good order, &c.," as an admission that the goods 
 (bales of feathers) were in good order externally. James, L. J., 
 said (o) : " The bill of lading, taken together, must be considered 
 to admit that the goods when shipped were, as far as they could 
 be seen, in g9od order ; and by adding the words above quoted, 
 the master does no more than say that he does not admit anything 
 as to the contents of the packages, which he cannot see. He does 
 admit, however, that the goods appear to be in good condition 
 outside, and this throws upon the appellants the onus of proving 
 that the damage did not arise whilst the goods were on board the 
 ship or in their custody, or that it comes within the exceptions of 
 the bills of lading." 
 
 Subject to the 74. The contract of the shipowner in the bill of lading is, that 
 exoeptidns tlie ^e Will, subject to the excepted perils, which we shall presently 
 deHver^safely <iiscuss, deliver the goods at their destination " in the like good 
 order and condition" in which they were when shipped. It is 
 therefore in form an absolute undertaking, subject to those ex- 
 ceptions ; so that the exceptions implied by the law, in the absence 
 of an express contract, do not, it would seem, avail the shipowner, 
 unless they are expressly excepted. " The ordinary rule of law is, 
 that where the law creates a duty, and the party is disabled from 
 performing it without any default of his own, by the act of God, 
 or the king's enemies, the law wiU excuse him ; but where a party 
 by his own contract creates a duty, he is bound to make it good, 
 notwithstanding any accident by inevitable necessity " (p). 
 
 It does not, however, appear to have been decided that a bill of 
 lading has that effect. And in the United States the contraiy was 
 
 (m) Cf. Moore v. Harris, 1 A. 0. 318, (o) 3 Asp. N. S. 195. 
 
 a* P- 326. (p) Per Meffish, L. J., Niohola V. 
 
 («) 1 P. D. 414 ; 3 Asp. N. S. 195, Marsland, 2 Ex. D. 1, at p. 4. 
 
CAEKIAGE IN A GENERAL SHIP, 89 
 
 held by the Supreme Court of Massachusetts, in Grage ». Tirrell (q). Sect. 74. 
 The bill of lading exception was, the " dangers of the seas only 
 excepted," and it was said that " no inference can be reasonably 
 drawn from the exemption of the carrier by a special agreement 
 from one class or kind, that it was the intention of the parties that 
 he should assume the other, for which the law would not hold him 
 liable if there had been no exception contained in the contract. 
 .... The object of the exception was not to enlarge the carriers' 
 liability ; on the contrary, the purpose was to put an additional 
 restriction on the risks which they were contented to bear." 
 
 On the other hand, "Willes, J., in Lloyd v. Ghiibert (r), said, — 
 " In the absence of express provision or special usage, the general 
 law itself, in many points of view only a more extended usage, 
 supplies the gaps which the parties have left, and, in doing so, 
 sometimes modifies the construction of general words in the con- 
 tract. For instance, a common carrier, while, on the one hand, 
 he is bound by stringent rules for the protection of his customers, 
 on the other hand is allowed certain exemptions from liability, even 
 upon an express contract if it do not exclude such exemptions; 
 thus, by the common law of England, a person who expressly 
 contracts absolutely to do a thing, not naturally impossible, is not 
 excused for non-performance because of being prevented by the 
 acts of God, or the king's enemies (Paradine v. Jane (s) ) ; and yet, 
 in consideration of the risks to which common carriers are exposed, 
 such prevention is in their case an implied exception. And in the 
 case of ordinary bailees entrusted with the custody of goods, 
 whether by express contract or not, the exceptions of overwhelming 
 force {vis major), and accident without fault (casus fortuitus), are 
 implied. In the ease of carriers by sea, these latter exceptions {vis 
 major and casus fortuitus) are now, as to British ships, stipulated 
 for by the common exception in the charter party, or bill of lading ; 
 whilst in foreign contracts of affreightment, even when made in 
 British ports, such express stipulation is sometimes omitted; as, 
 for instance, in the Spanish charter, Blasoo v. Fletcher {t) ; because, 
 by the law of many coxmtries, such an exception is implied. (See 
 Casaregis, Disc. XXIII. ; Oodigo de Oomercio, Art. 935 ; Allge- 
 meiaes Deutsches Handels-gesetzbuch, Art. 703.) So that, in the 
 
 {q) 9 Allen, 299. (») Aleyn, 26. 
 
 [t) 14 C. B., N. S. 147 ; 32 L. J., 
 (r) L. R., 1 Q. B. 116, at p. 121. o P. 284. 
 
90 THE CONTEACT. 
 
 Sect. 74. ease just referred to, if the lex loci contractus were to prevail, the 
 owner of a Spanish vessel, chartered in Liverpool for Havana, 
 might lose the protection which the owners of an English vessel 
 would, of course, have stipulated for." 
 
 It woxdd seem fi'om this that the learned judge was of opinion, 
 that if the exceptions "act of God and Queen's enemies" were 
 omitted from an English bill of lading, the shipowner would not 
 be protected against them (m) . The usual practice is to insert the 
 exceptions expressly. 
 
 Subjeot to 75. But the undertaking to deliver " in the like good order and 
 
 defects, and Condition " is understood to be subject to any changes which may 
 age losseT^'^' ^^^^ taken place in the thing itself, apart from the action of 
 adventitious causes. So that,- if the goods become deteriorated, or 
 wasted, owing to the progress of some defect or quality in them- 
 selves, the shipowner is not responsible for that change or loss, 
 although he may not have expressly excepted those risks. Thus, 
 where oilcake had been shipped under a bill of lading which only 
 excepted " dangers of the seas," Sir J. Napier said, " It would be 
 unreasonable to make the shipowners responsible for deterioration 
 or damage caused by latent imperfection or defects of the oilcake, 
 which could not be supposed to have been known to them at the 
 time of shipment " («) . 
 
 Nor does the bill of lading make the shipowner liable for 
 general average losses of the goods (y). 
 
 And subject 76. Further, the exemptions from liability established by statute 
 bystatate!°"^ apply, notwithstanding .the form of the bill of lading; both as to 
 total Kability, and as to special risks (s). 
 
 In Baxendale v. Great Eastern Eail. Co, («), a case of pictures 
 had been shipped at Eotterdam under a bill of lading, by which 
 they were to be delivered " in the like good order and condition at 
 the port of London via Harwich." At Harwich they were for- 
 warded by train to London, but were lost on the way. The defen- 
 dants claimed exemption from liability under sect. 1 of the Carriers 
 
 («) See per Kelly, C. B., Kay ■„. {y) See Burton «. EngUsh, 12 Q. B. D. 
 
 Wbeeler, L. E., 2 C. P. 302, p. 303. 218, supra, «. 15. 
 
 Of. Baxendale v. Q. E. EaU. Co., L.E., (z) iSupra, ss. 24 et ses. See "Williams 
 
 4 Q. B. 244, infra, s. 76. v. African Steamsbip Co., 26 L. J., Ex. 
 
 (a;) The Freedom, L.E., 3 P. C. 594, 69 ; Morewood v. Pollock, 22 L J., 
 
 at p. 600. Of. The Ida, 32 L. T., N. S. Q. B. 260. 
 
 641 ; supra, s. 12. (a) L. E., 4 Q. B. 244. 
 
CARRIAGE IN A GENERAL SHIP. 91 
 
 Act, 1830, on the grotind that the value of the case exceeded 10/., Sect. 76. 
 and that no declaration of its value had heen made. It was held, 
 hy the Exchequer Chamber, that notwithstanding the bill of lading 
 the goods were carried by the defendants from Harwich to London 
 as common carriers, with the liabilities of common carriers, except 
 those excepted in the bill of lading ; and that they were entitled to 
 the benefit of the Carriers Act. Also, that sect. 6 of that Act, by 
 which it is not to be construed to " annul or in anywise affect any 
 special contract," only applies to special contracts which are incon- 
 sistent with sect. 1. 
 
 To the objection that the bill of lading clearly related to that 
 part of the transit which was to be by railway, and that it con- 
 stituted a contract in which the defendant's capacity of common 
 carriers was not an element, Kelly, C. B., delivering the judgment 
 of the Court, said (b): " It is an answer to that objection to say 
 the contract amounted only to this : ' We (the plaintiffs) deliver 
 these goods to you (the defendants) to be conveyed from Harwich 
 to London in your capacity of common carriers ; but whereas you 
 would, as such carriers, be liable to loss arising from railway acci- 
 dents, we will specially exempt you from that liability.' It is 
 merely a particular exception engrafted on the contract, which, as 
 to aU else, is a contract with the defendants in their character or 
 capacity of common carriers. . . . Under these circumstances, it 
 appears to us all that the true eflfect of this contract, by means of 
 the bill of lading, is that these goods were delivered, so far as 
 relates to the conveyance of them from Harwich to London, to the 
 defendants in their character of common carriers, and they were to 
 have all the HabUities of common carriers, except only those which 
 are excepted in the bill of lading ; and they are also entitled, as 
 common carriers, to the protection from liability which was con- 
 ferred upon them by the Act of Parliament." 
 
 77. In construing in a bill of lading the exceptions to the ship- Exceptions 
 owner's liability, the rule is to be remembered that where the ag^Xship- 
 words leave the intention in doubt they are to be construed against °^^^^^^^ 
 the person for whose benefit they have been introduced. Their 
 meaning is not to be extended to give him a protection for which 
 he has not bargained in clear terms. 
 
 Thus, it is presumed, unless stated to the contrary, that the ship- Negligence 
 
 (i) At pp. 255-6. 
 
92 
 
 THE CONTRACT. 
 
 Sect. 77. owner is to continue liable for negligent acts and defaults, com- 
 
 not covered mitted by himself, or by Hs servants or agents engaged in 
 
 words. performing the contract. General words, therefore, excepting 
 
 losses from a particular cause, do not protect him if that cause 
 
 came into operation through such neglects or defaults (c) . 
 
 Thus, the exception " breakage and leakage " will not free the 
 shipowner from liability for a break, or leak, caused by negligence 
 of the crew in handling or stowing the goods (rf). And the 
 exception " accidents or damage of the seas, rivers, or navigation," 
 will not cover a collision with another vessel caused by negligent 
 navigation of the vessel carrying the goods (e). 
 
 In the same way, the exception "thieves" has been held not to 
 include thefts by persons on board the ship. " It is not, I think, 
 reasonable to suppose, where the language used is ambiguous, that 
 it was intended that the shipowner should not be liable for thefts 
 by one of the crew or persons on board. The shipowner must 
 protect himself, if he intends this, by the use of unambiguous 
 language "(/). 
 
 So, again, a condition that the carrier is not to be responsible for 
 loss occasioned by the restiveness of an animal carried does not 
 relieve him from liability, if the restiveness produced the injury 
 owing to failure of due care by the carrier's servants {g) . And where 
 cattle were carried on deck at " owner's risk," and the shipowners 
 were not to be "accountable for mortality from whatever cause 
 arising," they were still held liable for a loss of the cattle by a 
 jettison improperly made by the master (A). 
 
 On the other hand, in Dixon v. Eoyal Exchange Shipping 
 Co. (i), Cave, J., held that the exception of "jettison" in a bill 
 of lading meant unnecessary jettison, or jettison rendered necessary 
 by the default or neglect of the master or crew; for a biU of lading 
 does not ordinarily deal with proper acts of jettison. 
 
 [e) Seethe judgments in The Xautho, C. P. 476; Lloyd v. The same, 33 L. 
 
 12 A. C. 603, pp. 510, 615 ; and in J., Ex. 269. 
 
 Hanulton ». Pandorf, 12 A. 0. 518, pp. (/) Per Lush, J., Taylor v. Liverpool 
 
 524, 626, 628. Also per Bowen, L. J., and Great Western Steamship Co., L.R., 
 
 in Steinmann ». Angier, (1891) 1 Q. B. 9 Q. B. at p. 550 ; Steinmann v. Angier, 
 
 619, p. 623. (1891) 1 Q. B. 619. 
 
 {^ Phillips V. Clark, 26 L. J., 0. P. (^) Gill „. M. S. and L. RaU Co., 
 
 168 ; Czech v. General Steam Nav. Co., L. R., 8 Q. B. 186. 
 
 L. R., 3 C. P. 14. [h) Companhia de Nav. la Meoha v. 
 
 (e) Grill v. General Iron Screw Col- Brauer, 168 IT. S. 104 (1897). 
 
 Uer Co., L. R., 1 0. P. 600 ; L. R., 3 (i) Times, Deo. 20, 1884. " 
 
CARRIAGE IN A GENERAL SHIP. 93 
 
 Further, a general exception may protect the shipowner against Sect. 77. 
 liability for loss due to negligence of other servants, not engaged 
 in carrying out the contract. Thus " collision " was held to cover 
 a loss by collision caused hy negligent navigation of another ship 
 belonging to the same owners {k). 
 
 78. Ordinarily the burden of proving that a loss which has Onus of 
 occurred has been due to an excepted cause, falls upon the ship- 
 owner who seeks to excuse himself (/). Thus, if there be a doubt 
 whether damage to a cargo has arisen from bad stowage, or from 
 excepted perils of the sea, the shipowner relying on the exception 
 
 must proVe that the perils of the sea caused it. And where it 
 appears that two causes have contributed to the loss, one of which 
 only is excepted, the shipowner must distinguish between the 
 damage which was and was not due to that {m). 
 
 But if a loss apparently falls within an exception, the burden of 
 showing that the shipowner is not entitled to the benefit of the 
 exception, on the ground of negligence, is upon the person so 
 contending (w). 
 
 In Czech v. (general Steam Navigation Co. («) the bill of lading 
 excepted " leakage and damage " ; the goods were damaged by oil 
 on the voyage ; there was, however, no oil in the cargo ; but it 
 was shown that on deck, over the place where the goods were 
 stowed, there were two cranes worked by donkey-engines, which 
 were lubricated with oil. This was sufEcient evidence of negligence 
 to support a verdict against the shipowner. 
 
 79. Again, the ordinary implied undertakings by the ship- Warranty of 
 owner to provide a ship that is fit for the cargo, and to have her not affected, 
 seaworthy for the voyage on sailing (o), are not affected by the 
 
 (A) Chartered Mercantile Bank of OhrlofP v. Briscal, L. R., 1 P. C. 231, 
 
 India ». Netherlands, &o. Co., 10 p. 238 ; Czech v. General Steam Nav. 
 
 Q. B. D. 521. Co., L. R., 3 C. P. 14 ; Taylort;. Liver- 
 
 (?) Taylor o. Liverpool and Great pool and Great Western Steamship Co. , 
 
 Western S.S. Co., L. E., 9 Q. B. 546 ; L. R., 9 Q. B. 546 ; P. & 0. Co. v. 
 
 Smith V. Bedouin Steam Nav. Co., Shand, 3 Moo. P. C, N. S. 272 ; Craig 
 
 (1896) A. C. 70. i>- Delargy, 16 So. L. R. 751 ; Williams 
 
 {m) The Rona, 61 L. T. 28, p. 32 ; v. Bobbie, 21 So. L. R. 336 ; Horsley 
 
 The Alexandra, 14 L. T. 742 ; Adam v. v. Baxter, 20 Sess. Ca. (4th) 333. Cf . • 
 
 Morris, 18 Sess. Ca. (4th) 153. Cf. per Ld. HerscheU in The Xantho, 12 
 
 Muddle w. Stride, 9 0. & P. 380. A. C. 503, p. 512. 
 
 («) The Glendairooh, (1894) P. 226 ; (o) Si^ra, ss. 17—21. 
 
94 THE CONTRACT. 
 
 Sect. 79. exceptions in the bill of lading, unless that is clearly stipu- 
 lated (^). 
 
 In TattersaU v. National Steamship Oo. {q), cattle had been 
 shipped under a bill of lading, by which it was provided that the 
 defendants were to be " in no way responsible for either their 
 escape from the steamer, or for accidents, disease, or mortality, 
 and that under no circumstances shall they be held liable for more 
 than 5/. for each of the animals." The ship had not been pro- 
 perly cleansed before the cattle were received on board, and in 
 consequence they were affected by foot-and-mouth disease. It 
 was held that the liability of the defendants was not limited by 
 the clause to 51. for each of the cattle. For the stipulations of the 
 bin of lading related, to the carriage of the goods on the voyage, 
 and did not affect the liability to provide a ship fit for the reception 
 of the cattle. 
 
 In Seville Sulphur Oo. ■y. Oolvils (r), the exception was of 
 " negligence of navigation of whatsoever nature and kiud during 
 said voyage." The damage was found to be the result of taking 
 muddy water into the boilers before sailing, whicb, ia the judgment 
 of the Court, rendered the vessel unseaworthy ; and it was treated 
 as clear that this made the shipowners liable, whether the taking 
 in water was an act of " navigation " or not (s). 
 
 In Thin v. Eichards (?!), the ship "being tight, &c.," was to 
 proceed to Oran, and load a part cargo of esparto grass (having 
 liberty to fill up with ore) for Grarston ; " any act, neglect or 
 default whatever of pilot, master or crew in the management or 
 navigation of the ship " excepted. After loading esparto at Oran 
 the ship went to Huelva, and filled up with ore. She left Oran 
 without a sufficient supply of coal for the voyage to Garston ; and 
 
 if) Steel V. State Line SteamsHp Co., beenlield toexouseliaWlityfordamageby 
 
 3 A. C. 72 ; Leuw v. Dudgeon, L. R., rats eating the cargo if reasonable care 
 
 3 C. P.,p. 17, n. ; The Glenfmin, 10 was taken to keep the ship free of them. 
 
 P. D. 103 ; Gih-oy v. Price, (1893) The Timor, 67 Fed. Rep. 356 (1896). 
 
 A. C. 56 ; Cargo per Maori King v. Cf. Stevens v. Nav. Gen. ItaUana, 39 
 
 Hughes, (1895) 2 Q. B. 660. The Fed. Rep. 662. 
 
 ■warranty may be qualified or got rid of, (»•) 25 So. L. R. 437. 
 
 by apt -ffords, e.g., "warranted sea- (s) See per Lord Young. And see also 
 
 worthy only so far as ordinary care can Cunningham v. Colvils, 26 So. L. R. 
 
 provide; " Cargo ex Laertes, 12 P. D. 249. 
 
 ^*^- (0 Thin V. Richards, (1892) 2 Q. B. 
 
 (?) 12 Q. B. D. 297. On the other 141; so also The Vortigem, (1899) P. 
 hand, an exception of "vermin" has 140. 
 
CARRIAGE IN A GENERAL SHIP. 95 
 
 at Huelva, owing to a mistake of the engineer, she took in no Sect. 79. 
 further coal. She was ultimately lost owing to want of coal. 
 Held, hy the Court of Appeal, that the owners were liable for the 
 loss of the esparto. Notwithstanding the exception, they were 
 liahle for not having had the ship properly equipped for the 
 voyage, either at Oran or at Huelva. 
 
 In the United States it has heen held, hy a majority of the 
 Supreme Court, that the shipowner is liable for a loss due to a 
 latent defect in the propeller shaft, notwithstanding an exception 
 of " loss or damage from .... machinery or defects therein " ; 
 the defect being such that the ship was unseaworthy when she 
 sailed (m). So, also, where the exception was of "latent defects in 
 hull, tackle, &c." {x) . 
 
 On the other hand, in The Carron Park («/), an exception of 
 negligence " dioring the voyage " was held to relieve the ship- 
 owner from liability for an act of negligence committed during the 
 loading, by which water was admitted into the ship, and the cargo 
 then on board was damaged. The ship had not been unfit for the 
 goods when they were put on board. 
 
 80. Again, the shipowner's obligation to contribute to general Nor liability 
 average sacrifices of the cargo, made during the voyage, will con- in general 
 tinue, notwithstanding general words in the bill of lading which ''^®'^*^®- 
 may seem wide enough to exclude that liability. If the liability 
 is not to exist, that must be stipulated in express terms. Where a 
 sacrifice was made in consequence of a fire which occurred on 
 board, and the bill of lading excepted fire on board and any con- 
 sequences of it, it was held that that did not relieve the owner 
 from contribution (s). 
 
 So, where a bill of lading provided that the shipowner was "not 
 to be liable for any damage to any goods which is capable of being 
 covered by insurance," Lush, J., following the former case, held 
 that this did not excuse him from contributing to a general average 
 sacrifice of the goods. He said, " I adopt the words which I used 
 in that case, and repeat that the office of the bill of lading is to 
 provide for the rights and liabilities of the parties in reference to 
 the contract to carry, and is not concerned with liabilities to con- 
 
 («) The Caledonia, 157 U. S. 124. (y) 15 P. D. 203 ; of. The Accomao, 
 
 As to the efieot of the Harter Act, 1893, 15 P. D. 208. 
 
 see^os*, s. 103 (a). («) Schmidt ii. Royal Mail Steamship 
 
 (») The Carib Prince, 170 TJ. S. 666. Co., 45 L. J., Q. B. 646. 
 
96 
 
 THE CONTRACT. 
 
 Sect. 80. 
 
 "Actof Gbd 
 and Queen's 
 enemies." 
 
 "Restraints 
 of prmoes, 
 &e." 
 
 tribution in general average, and, unless the contrary appears, the 
 ■words used must he so construed " (a). 
 
 A similar point was decided in Burton v. English (5). A char- 
 ter party had provided that the vessel should be " provided with a 
 deck load, if required, at full freight, but at merchant's risk." A 
 deck load had been taken, and had been properly jettisoned to 
 save the rest of the adventure. The Court of Appeal, reversing 
 Cave, J., decided that the shipowner was nOt protected by the 
 words " at merchant's risk " from Kability to contribute to the 
 general average. 
 
 81. The exception " act of God " is that which has already been 
 dealt with as a limitation, at common law, of the carrier's liability, 
 where no express contract has been made. 
 
 " The Queen's enemies " is also an exception at common law ; 
 and its effect, when expressed, does not appear to be any wider ; 
 except, perhaps, in the case of a foreign ship, when the clause will 
 be read to include the sovereign of the master who has made the 
 contract. 
 
 In Eussell v. Niemann (c) the ship and her owners belonged to 
 Mecklenburg, as also did the master who gave the bill of lading : 
 the goods were shipped in Russia, and were to be carried to Eng- 
 land. The Court held that the exception " King's enemies " in- 
 cluded at least the enemies of the sovereign of the person who made 
 the stipulation {d). 
 
 82. " Restraints of priaces, rulers, and peoples " covers any 
 forcible interference with the voyage or adventure at the hands of 
 the constituted government, or ruling power of any country (e), 
 whether done by it as an enemy of the state to which the ship 
 belongs, or not. For example, orders of government prohibiting 
 or restricting the exportation or landing of goods; quarantine 
 regulations (/) ; embargoes, or restrictions on particular ships ; 
 blockades; confiscations of goods as contraband, and so forth. 
 And the restraint may have been by acts which were not directed 
 
 (a) Crooks ». Allan, 5 Q. B. D. 38. 
 So as to an exception of "Jettison," 
 Tlie AlUanoe, 64 Fed. Rep. 871 (1894). 
 
 (*) 10 Q. B. D. 426 ; 12 ib. 218. 
 
 (c) 34 L. J., C. P. 10. 
 
 {d) And see The Teutonia, L. R., 4 
 P. C. 171 ; The Heinrich, L. R., 3 A. & 
 
 E. 424. 
 
 («) Nesbitt V. Lushington, 4 T. R. 
 783. As to restraint by the GoTemment 
 of the shipowner's country, see Aubert 
 V. Gray, 32 L. J., Q. B. 60. 
 
 (/) The Progreso, 60 Fed. Rep. 835 
 (1892). 
 
CARRIAGE IN A GENERAL SHIP. 97 
 
 against the ship or goods ; th^ may have been affected in- Sect. 82. 
 directly (g). 
 
 But when goods have been taken from the ship under process of 
 the tribunals of the port, at the instance of one ■who claims to be 
 entitled to them, that is not an act of government within the 
 exception (A). So the exception does not cover the shipowner's 
 liability to shippers where the ship is arrested at the suit, say, of 
 charterers («). " Restraints of princes and rulers means the act of 
 a state or government interfering with a strong hand, and not the 
 judgment of any judicial Court" {k). 
 
 It was said by Lord EUenborough, in Atkinson v. Eitchie (l), 
 that " the restraint meant must be an actual and operative restraint, 
 and not a merely expected and contingent one." So that the ex- 
 ception did not exonerate a shipowner who had sailed away from a 
 foreign port, without taking an agreed cargo, in fear that an 
 embargo was about to be laid on British vessels there. The vessel 
 might have been loaded, for the embargo was in fact not laid until 
 six weeks later. But where a blockade by the French actually 
 existed at Hamburg, the place to which the cargo was to be carried, 
 this exception excused the shipowner's refusal to take it on 
 board (m). 
 
 The exception does not protect the owner when the master has 
 acted unskilfully, or imprudently, or with an unreasonable degree 
 of apprehension. But it is not limited to restraints actually 
 exerted by force. The master is entitled, and bound, to use 
 caution in avoiding the risk of actual seizure ; and deviations and 
 delays on the voyage prudently made with that object are excused 
 by the clause (w). 
 
 In Nobel's Explosives Co. v. Jenkins (o), a neutral ship was 
 carrying contraband of war to Japan when war broke out between 
 Japan and China. The master landed the contraband at Hong 
 Kong, and proceeded with the rest of the cargo. Had he not 
 done so the ship would probably have been stopped and searched, 
 
 {g) See Eodooonachi v. EUiott, L. E., (2) 10 East, at p. S34 ; of. The San 
 
 9 0. P. 518. Roman, L. E., 5 P. 0. 301 ; The 
 
 (h) Einlay v. Liverpool & Gt. "W. Teutonia, L. E., i P. 0. 171 ; Brunner 
 
 Steamship Co., 23 L. T. 251 ; Crew v. v. Webster, 5 Com. Ca. 167. 
 
 Gt. W. Steamship Co., 4 Times L. E. (m) Geipelf). Smith, L. E., 7 Q. B.404. 
 
 148. («) The San Eoman, L. E. 5 P. C- 
 
 (i) The Coventina, 62 Fed. Eep. 156. 301 ; The Teutonia, L. E., 4 P. C. 171. 
 
 (A) Per Martin, B., 23 L. T., p. 254. (o) (1896) 2 Q. B. 326. 
 
 C. — C. H 
 
98 THE CONTRACT. 
 
 Sect. 82. and the contraband confiscated ; and it was uncertain what the 
 captors would have done with the ship and the other cargo. 
 Mathew, J., held that the delivery in Japan was prevented by- 
 restraints of princes. 
 
 " Fire." 83. The exception of " fire " is given by statute in the case of 
 
 sea-going ships (p). But the express exception may be somewhat 
 more extensive than the statutory. For the latter includes only 
 cases of fire happening on board the ship, to goods which have been 
 put on board ; it does not, for example, cover a fire on a lighter 
 in which goods have been put by the shipowner for the purpose of 
 landing them (q). Whereas the express exception appears to cover 
 all cases of fire which happen while the goods remain in the hands 
 of the shipowner under the contract (r). 
 
 On the other hand, the statutory exception protects the ship- 
 owner from fire, however caused, if it be without his personal fault 
 or privity. Whereas the express exception leaves him liable for 
 fire occasioned by the negligence of his servants or agents. His 
 responsibility in this respect for goods in his custody before they 
 have been taken on board, and after their discharge, is therefore 
 somewhat different from his responsibility while they are on 
 board. 
 
 " Dangers of 84. The exception, " dangers and accidents of the seas, rivers, 
 
 the seas and j • i ■ /• i . 
 
 navigation." and navigation o± whatsoever nature and kind, covers a group of 
 casualties which it is difficult to define. This longer form of the 
 exception has taken the place of the short clause, " dangers of the 
 seas " or " perils of the sea," formerly used, and still sometimes 
 used in bills of lading (s). 
 
 It is not clear how far the longer clause has a greater effect, but 
 it extends the area of operation to " rivers " as well as " seas," and 
 to risks of navigation in harbours and docks as well as in the open 
 water {t). 
 
 {p) M. S. Act, 1894, s. 502; supra, («) This change ia said to have ooonrred 
 
 ^' ^*' in consequence of alarm taken at the 
 
 (q) More-wood i>. Pollock, 22 L. J., decision in Smith v. Shepherd, Abhott 
 
 ^- ^- 250- (5th), 215; (13th), 362. But that decision 
 
 (»■) Hong Kong, &c. Banking Co. v. does not seem to have been upon the 
 
 Baker, 7 Bom. H. C. R. 186 ; of. Steel meaning of the exception, -apparently 
 
 V. State Line Steamship Co., 3 A. C. 72, there was no bill of lading : Abbott (5th), 
 
 p. 85. As to the extent of the statutory 253 ; (13th), 459. 
 
 exemption in the U.S., The Strathdon, {t) Laurie' v. Douglas, 15 M. & W. 
 
 Fed. Kep. 374. 746. See cases infra, s. 91. 
 
CAEEIAGE m A GENERAL SHIP. 99 
 
 "Perils of the sea" denotes accidents peculiarly incident to Sect. 84. 
 navigating the sea. The words are used in relation to navigation 
 of a ship on the sea, though the accidents contemplated are not all 
 the accidents which may occur during the navigation. They are 
 to be accidents " of the sea " ; that is, arising from the peculiar 
 physical conditions under which navigation upon the sea takes 
 place. Perils of the sea " really are the perils to which people who 
 carry on their business on that dangerous element are liable 
 because they carry on their business on the sea. They are the 
 perils of the sea, not the perils of journeying " (m). 
 
 Whether the words " dangers and accidents of the ^eas, rivers, 
 and navigation of whatsoever nature and kind " cover, in addition, 
 accidents which may happen incidental to the means by which the 
 navigation is accompKshed, and apart from the elements in which 
 it takes place, has not been determined. Whether, for example, 
 they would cover damage to cargo by the falling of a spar, or by 
 the explosion of a boiler, without any accidental force of wind or 
 incursion of sea water, may be doubtful. But it seems probable 
 that they would (k). Sometimes the expression used is "steam 
 navigation," and that (while really a narrower form) seems to 
 emphasize the point that dangers from the machinery, or means 
 of navigation, are meant to be covered. 
 
 In The Thrunscoe {'i/) the cargo was damaged by heat from the 
 engines and boilers, which did not pass away as usual owing 
 to the necessity of closing the ventilators during prolonged bad 
 weather. The damage was held to be by " accidents of the seas, 
 rivers, and steam navigation." 
 
 Partly the exception " perils of the sea " covers the same ground 
 as is covered by " acts of Grod " ; but it is, on the one hand, con- 
 fined to only a limited class of natural causes ; and, on the other 
 hand, as we shall see, it sometimes includes losses which have been 
 in part brought about by acts or neglects of man. In this latter 
 respect, therefore, it is more comprehensive than the exception 
 "acts of God." 
 
 But to ascertain what losses fall within the exception, we must 
 consider, first, what are the sources from which the loss or damage 
 
 (a) Per Lord Esher in Pandorf v. of navigation, though not a peril of the 
 
 Hamilton, 17 Q. B. D. 670, p. 675. sea according to the view which then 
 
 (a;) See G-arston Co. v. Hickie, 18 prgTailed. 
 Q. B. D. 17, where collision with a 
 negligent ship was held to be a danger (y) (1897) P. 301. 
 
 h2 
 
100 THE CONTKACT. 
 
 Sect. 84. must arise ; seooadly, in what degree must the loss or damage 
 ' have been accidental ; and thirdly, how far will the fact that other 
 causes have co-operated with sea perils exclude the loss from the 
 exception. 
 
 "Perils of the 85. First, then, as to the physical sources from which the loss or 
 
 The soiiroea damage must arise. 
 
 of danger. jjj ^bjjott on Shipping (2), it was said that the words "perils of 
 
 the sea," " certainly denote the natural accidents peculiar to that 
 element, and in more than one instance have been held to extend to 
 an event not attributable to natural causes." And this has been 
 adopted by other authorities (a). But we still must consider what 
 are the sources of danger, and loss, which are regarded as peculiarly 
 incident to the sea, or to navigation upon it. 
 
 In Smith's Mercantile Law {h), the exception is said to relate to 
 "losses occasioned strictly by sea damage {ex marinm tempestatis 
 discrimine; Emerigon, vol. 1, e. 12, in initio); e.g., by stress of 
 weather, winds, waves, lightning (c) and tempest, rock, sands, &c." 
 
 In Arnould on Insurance (<^), the words " perils of the sea," in a 
 policy, were said to mean "all kinds of marine casualties, such 
 as shipwreck, foundering, stranding, &c. ; and every species of 
 damage to the ship or goods at sea by the violent and immediate 
 - action of the winds or waves, not comprehended in the ordinary 
 wear and tear of the voyage, or directly referable to the acts and 
 negligence of the assured as its proximate cause " (e). 
 
 It is clear that the action of the sea itself is one of the causes 
 contemplated. Whether the damage is done by the sea water 
 getting into the ship, and coming directly into contact with the 
 goods ; or, indirectly,- by the waves beating on the ship, and so 
 injuring her as to prevent or delay the voyage, or causing her to 
 roll, or strain, with the result that the goods become displaced and 
 damaged (/) ; these are aU losses by dangers of the sea. 
 
 [z) (6th), p. 253; (13th), 459. mg from thia. "All losses caused by 
 
 (o) Story, Bail. s. 512 ; Aug. Oarr. the action of wind and water acting on 
 
 s. 166 ; The Neptune (Amer.), 16 L. T., the property insured under extraordinary 
 
 ■N^- S. 36. circumstances, either directly or medi- 
 
 (*) (8th), p. 348. ately, without the intervention of other 
 
 (c) But see per Lord Bramwell in independent active external causes, are 
 
 Hamilton v. Pajidorf, 12 A. 0. 618, losses hy 'perils of the sea, or oliier 
 
 P- 527. perils and dangers.' " 
 
 W (3rd), p. 687. (/) The Catharine Chalmers, 32 L. T. 
 
 («) In Bailey on "Perils of the Sea," 847; The Ville de 1' Orient (Irish), 2 
 
 a definition was given somewhat difEer- h. T., N. S. 62. 
 
CARRIAGE IN A GENERAL SHIP. 
 
 The wind, again, is one of the sources of danger contemplated. 
 So are rocks, and shoals, and other natural ohBtacles lying in the 
 sea, or,, as icebergs, floating on it. Losses or delays caused by 
 tempest, or by stranding, or collision with these natural obstacles, 
 are within the exception, whether the sea gets into the ship and so 
 directly damages the goods or not. 
 
 Loss by foundering owing to collision with another ship is a 
 loss by a "peril of the sea" (g). This was at one time held not 
 to be true where the collision was the result of negligence (h) ; but 
 it has now been settled, by the decision of the House of Lords in 
 the case of The Xantho («), that that view was erroneous. 
 
 In a case of f oimdering the loss is due to the action of the sea 
 itself, and there are dicta in the judgments in The Xantho (k), and 
 in Hamilton v. Pandorf (/), which perhaps suggest the view that 
 the loss, or damage, to be within the exception, must be due to 
 direct action " of the sea." Probably, however, it was not in- 
 tended there to lay down that damage, or delay, caused (say) by 
 collision with an iceberg, or with another ship, is not by a " peril 
 of the sea " unless there'^has been some incursion of sea water, or 
 accidental action of the waves. 
 
 The phrase " perils of the sea " seems to be used much as we use 
 the expression " dangers of the streets " ; by which we mean not 
 necessarily dangers arising from the street itself, but dangers 
 which are peculiarly incident to being in or passing along the 
 streets. So that we must take into account not only the waves 
 and waters, but also the storms, the shoals, and coasts, and the 
 other various obstacles, fixed and moving, which form the peculiar 
 vicissitudes of navigating the seas. Loss, or damage, or the pre- 
 vention or delay of a voyage, produced by such causes, may pro- 
 perly be said to be by " perils of the sea," though no action of the 
 waters may have had anything to do with it (m). 
 
 [g) The Xantho, 12 A. C. 503; BuUer 
 V. Fisher, 3 Esp. 67. 
 
 (A) Woodley v. Miohell, 11 Q. B. I>. 
 47. 
 
 (j) The Xantho, 12 A. C. 603, re- 
 versing 11 P. D. 170. 
 
 (/c) 12 A. 0. 503, per Lord HersoheU, 
 at p. 509. 
 
 (?) 12 A. 0. 518 ; per Lord Bramwell, 
 at p. 527. 
 
 (to) a good illustration is afforded by- 
 
 Sect. 85. 
 
 an accident which occurred to the 
 " Soythia " in 1876, when her propeller 
 ■was disabled by striking a whale, and 
 she had to put back to Queenstown. The 
 damage and the delay were surely due 
 to a peril of the sea. So, where damage 
 above water-line has been done in a 
 collision, and a perishable cargo must 
 be discharged while repairs are efEeoted, 
 loss thus arising is surely excused by 
 " perils of the sea," See infra, s. 88 (a). 
 
not covered. 
 
 102 THE CONTRACT. 
 
 Sect. 86. 86. Losses by perils whicli have no peculiar connection with the 
 Dangers not sea, Or the navigation, though they may occur during the voyage, 
 the'^r *° ^° ^0* *^^ within the exception. For example, damage by rats (n) 
 or cockroaches (o) eating the goods in the ship ; or by an accidental 
 fire in the hold (p) ; or by the heating or sweating of the cargo (q) ; 
 or by fumes arising from other goods (r), although the several parts 
 of the cargo may have been well stowed. 
 
 But if bad weather has prevented the ordiaaxy ventilation of 
 the ship's holds (as by taking off the hatches), perhaps a conse- 
 quent heating and sweating of the cargo would be regarded as a 
 damage by sea perils (s). .The question in such a case seems to be 
 whether reasonable means for ventilating had been provided, 
 having regard to the probabilities of bad weather. 
 
 It has, in several cases, been held that the acts of pirates are 
 within the exception, " dangers of the seas" (t). None of these, 
 however, are of recent date ; and the modern practice is to have an 
 express exception of pirates ia the bill of lading. 
 Loss by arrest A Seizure of the goods, as contraband, by foreign authorities at 
 a port into which the vessel has put, in the course of the voyage, 
 is not a loss by a peril of the sea, or of the navigation («). Nor is 
 an arrest of the goods under a bottomry bond given by the master 
 for repairs of the ship, which became needful owing to sea 
 damage (a;). 
 
 (») Kay v. Wheeler, L. E., 2 C. P. damage caused by the eondeiwation of 
 
 302 ; Laveroni v. Drury, 22 L. J., Ex. vapour in the hold, due to the tramsi- 
 
 2 ; and see the judgments in Hamilton tion from a, warm to a cold climate, is 
 
 V. Pandorf, 12 A. C. 618. Cf . Hunter a damage by sea perils, if the cargo has 
 
 ■V. Potts, 4 Camp. 203 ; Eohl v. Parr, 1 been stowed in the usual manner. See 
 
 Esp. 445. Clark ©.Barnwell, 12 How. 272; Lamb». 
 
 (o) The Miletus, Parsons, Ship. i. Parkman, 1 Sprague, 343, cited Parsons, 
 
 258, n. Shipping, 261, n. Cf. The Thames, 61 
 
 {p) Hamilton ». Pandorf, 12 A. C. 618, Fed. Eep. 1014. 
 
 p. 527, per Lord Bramwell ; The Hong (<) Pickering v. Barclay, Styles, 132 ; 
 
 Kong, &c. Banking Corp. v. Baker, 7 2 EoU. Ab. 248, pi. 10; BartoniJ.'Walli- 
 
 Bomb. H. C. Eep. 186, p. 203; Parsons, ford. Comb. 66; Abbott {5th), p. 254. 
 
 Shipping, i. 256. ' Per Byles, J., in Russell v. Niemaim, 34 
 
 (<?) See The Freedom, L. E., 3 P. C. L. J., C. P. p. 14. But of. Cullen v. 
 
 594. Butler, 6 M. & S. 461 ; De Eothsohild «. 
 
 {r) Gillespie v. Thompson, 6 E. & Eoyal Mail Co., 21 L. J., Ex. 273. 
 
 B. 477, n. ; Stevens on Stowage (5th), («) Spence v. Chadwick, 16 L. J., 
 
 p. 456. Q. B. 313. Cf. United States v. HaU, 
 
 (s) See The Thrunscoe, (1897) P. 6 Cranch, 171 (1810). 
 
 301. In the Supreme Court of the (x) Benson v. Duncan, 18 L. J., Ex. 
 
 United States, it has been held that 169. 
 
CAEEIAGE IN A GENERAL SHIP. 103 
 
 87. Next, as to the accidental character of the loss. In Story Sect. 87. 
 on Bailments, the following explanation is given {y) : — '^ The Loss must be 
 phrase, ' perils of the sea,' whether understood in its most limited *°°''^^°*='l- 
 sense, as importing a loss by natural accidents peculiar to that 
 element, or whether understood in its more extended sense, as 
 including inevitable accidents occurring upon that element, must 
 still, in either case, be understood to include such losses only to the 
 goods on board as are of an extraordinary nature, or arise from 
 some irresistible force, or from inevitable accident, or from some 
 overwhelming power, which cannot be guarded against by the 
 ordinary exertions of human skill and prudence." 
 
 Upon this, it must be remarked that the losses need, not be 
 extraordiuary, in the sense of arising from causes which are un- 
 common. Eough seas, which are characteristically sea perils, are 
 common incidents of a voyage. But damage arising from them, 
 whether by their beating into the ship, or driving her on to rooks, 
 is withiu the exception, if there has been no want of reasonable 
 care and skill in fitting out the ship and in managing her. Again, 
 the existence of rocks which are not generally known to mariners 
 cannot be said to be extraordinary, but a wreck upon such a rock 
 would be a loss by a peril of the sea, if there had been no negli- 
 gence. So, too, would a stranding upon known rocks, when the 
 vessel has lost her course, owing to fog or other causes, without 
 any want of skill or care (2). 
 
 And, indeed, we may correctly say that any accident, any mis- 
 chance which could not be foreseen as one of the ordiriary conse- 
 quences of the voyage (a), which has arisen from some of the 
 sources of danger denoted by " perils of the sea," is included primd 
 facie within that exception. 
 
 If there has been no accident the exception will not apply. So 
 that damage which flows from the ordinary expected incidents of 
 the voyage, for example, from merely being in the water, or from 
 taking the ground in the ordinary way in a tidal harbour, is not 
 
 (y) S. 512 (a). And see Aug. Oarr. these words. They do not protect, for 
 
 s. 167. example, against that natural and in- 
 
 (z) See The Xantho, 12 A. C. 503, evitable action of the winds and waves 
 
 p. 609, per Ld. HersoheU ; and per which results in what may be described 
 
 Ld. Bramwell in Hamilton v. Pandorf, as wear and tear. There must be some 
 
 12 A. C. 518, p. 527. casualty, something which could not be 
 
 (a) "It is well settled that it is not foreseen as one of the necessary incidents 
 
 every loss or damage of which the sea is of the advejiture." Per Ld. HersoheU, 
 
 the immediate cause that is covered by 12 A. C. p. 509. 
 
104 THE CONTRACT. 
 
 Sect. 87. covered. On the other hand, damage through grounding in an un- 
 expected manner, as where there was some unknown danger in the 
 barth, may be by a peril of the sea {b). 
 Not a result Where, however, a loss resulting from that accident would not 
 or n^om-""^ have Occurred but for some want of reasonable skill or care on the 
 ^™f* °f^^^ part of the shipowner, or his servants, in guarding against the 
 ship. accident, or in avoiding its consequences, there the exception of 
 
 " perils of the sea," standing alone, will not avail to protect him 
 from responsibility for the loss. He is not allowed to rely upon 
 it (c). Thus, a stranding due to imprudent, or ignorant, or un- 
 skilful navigation is not covered by the exception (d) ; nor is a 
 collision with another vessel, or other obstacle, if due to negligence 
 on the part of those navigating the vessel which carried the 
 goods (e). And where goods, or animals, are thrown overboard 
 improperly, without necessity, the loss is not by perils of the sea, 
 or accidents of navigation (/). 
 
 So, if sea damage has occurred because the ship was unseaworthy, 
 the shipowner is not excused by the exception ; as where heavy iron 
 plates were so insecurely stowed that one of them, in bad weather, 
 got loose, went through the ship's side, and sunk her (^). And 
 where water got into a ship through holes wrongfully bored in her 
 by some of the crew, and damaged the cargo, the exception 
 " dangers of the seas " did not protect the shipowner (h). 
 
 Co-operation 88. Until recently there was much uncertainty as to the rule in 
 oases where the loss has been proximately and directly from 
 dangers which are peculiarly incidents of the sea, or the naviga- 
 tion, yet other causes have co-operated without which they would 
 not have become dangerous. 
 
 A characteristic case is that of damage to cargo by sea water 
 which has entered by a leak made by rats in the ship. 
 
 The question whether such damage is within the exception, 
 
 (5) See Fletoter v. IngUa, 2 B. & Aid. L. R., 1 0. P. 600 ; L. E., 3 C. P. 476. 
 
 31.5: LetoMord ». Oldham, 5 Q. B. D. //\ a„„ri i,- j -vr t -i-n -i 
 
 > •'^ ■ ■"• (/) oeeOompauhiadeNav.LaFleoha 
 
 »• Brauer, 168 U. S. 104 a897) 
 (4 See The Santho, 12 A. C. 603 ; .".<=. lu* ^lo»/^ 
 
 and HamUton v. Pandorf, 12 A. C. 618. (^) Kopitofi v. Wilson, 1 Q. B. D. 377. 
 
 Of. The Cressington, (1891) P. 152; (A) The Chaaea, L. E,., 4 A. & E. 446 ; 
 
 infra, s. 88 . Waters v. Merchants, &o. Co. , 1 1 Peters, 
 
 ((Z) Story, Bail. s. 616; The WUUam, 213 (1837). See Magnus v. Buttemer, 
 
 6 Rob. Ad. 316. 11 0. B. 876; 21 L. J., 0. P. 119; 
 
 («) Lloyd «. General Iron Screw CoUier Thompson v. Whitmore, 3 Tavm. 227; 
 
 Co., 33 L. ^., Ex. 269 ; Grill v. Same, Fletcher v. Inglis, 2 B. & A. 315. 
 
CARRIAGE IN A GENERAL SHIP. 105 
 
 " dangers and accidents of the seas," was definitely raised and Sect. 88. 
 decided by tke House of Lords, in the case of Hamilton v. 
 Pandorf (^'), so lately as the year 1887. The action was by the 
 owners of a cargo of rice, for damage by sea water which had 
 entered through a hole in a lead pipe leading from a bath room in 
 the ship to the sea. This hole had been made by rats during the 
 voyage. It was admitted that there had been no neglect or default 
 on the part of the shipowners or their servants. Upon these facts, 
 Lopes, L. J., decided that the loss was within the exception, and 
 that the shipowners were consequently not liable (/f). This judg- 
 ment was reversed by the Court of Appeal (l), but was restored 
 by the House of Lords (Lords Halsbury, "Watson, Bramwell, 
 Fitzgerald, and Herschell) {m). 
 
 The explanation of this difficulty and doubt was the uncertainty 
 as to how, for the purposes of a contract of carriage, the cause of a 
 loss was to be ascertained. The distinction had been frequently 
 laid down («) that " in a bUl of lading, as distinguished from a 
 policy of insurance, we are entitled to look at what was the real 
 cause, that is, as it is expressed in our legal phraseology, we may 
 look at the causa causam instead of merely looking at the causa 
 proxima" ip). 
 
 In Pandorf «. Hamilton, in the Court of Appeal, Lord Esher 
 repeated this distiuction, and held that " where the rats, by being 
 the effective cause, let in the sea, this letting in of the sea is not a 
 cause at all. It is the effect of what was done by the rats, and the 
 rats were the effective cause" {p). 
 
 The view seems to have been that the accidental, unforeseen factor 
 in the production of a casualty ought properly to be regarded as 
 its cause. The forces which actually, immediately, did the mischief 
 
 li) 12 A. 0. 518. ship was liable ; the pipe should have 
 
 />^ 1 6 O B D 629 been properly cased, or made of iron. 
 
 ^ ' («) Per PoHook, C. B., in Lloyd ».• 
 
 (0 17 Q. B. D. 670. General Iron Screw CoUier Co., 30 L. J., 
 
 («j) 12 A. C. 618. Cf . The Euripides, Ex. p. 371 ; per Sir K. Phillimore, in 
 
 71 Fed. Eep. 728 (1896), where the The Chasoa, L. E. , 4 A. & E. p. 448. 
 
 water which got into the cargo had been But see the judgment of the Privy 
 
 intentionaUy forced down the pipe (w.c), Council in The Freedom, L. R., 3 P. C. 
 
 in which rats had gnawed a hole, for p. 601. 
 
 flushing purposes ; held not to be by (o) Per Brett, L. J., in Chartered 
 
 perils of the sea. In The Italia, 69 Merc. Bank v. Netherlands India Steam 
 
 Fed. Eep. 617, a loss occurred by fresh Nav. Co., 10 Q. B. D. atp. 631; and per 
 
 water which escaped from a lead pipe Manisty, J., S. C, 9 Q. B. D. p. 126. 
 
 gnawed by rats ; it was held that the [p) 17 Q. B. D. p. 682. 
 
106 
 
 THE CONTEACT. 
 
 Proximate 
 
 cause 
 
 regarded. 
 
 Sect. 88. were not to be regarded, if they were only forces wWcli it was 
 known beforehand would have that effect in case such accidental 
 conditions occurred. The same view led to the conclusion, in 
 Woodley v. Michell (q), and in The Xantho (r), that the loss of 
 a ship and cargo by collision with another ship, which had been 
 negligently navigated, was not a loss by a peril of the sea. " The 
 real cause of the loss has to be sought for, and it is negligence " (s). 
 This was, however, definitely decided to be mistaken by the 
 House of Lords, on appeal ia The Xantho (t). And by their 
 judgments in that case, and in Hamilton v. Pandorf (m), the Lords 
 must be taken to have abolished the distinction previously made in 
 the construction of policies on the one hand, and of charter parties 
 and bills of lading on the other. They laid it down that the 
 words " perils of the sea " have the same meaning in these different 
 documents; and that the rule as to looking to proximate causes 
 applies in relation to contracts of carriage as well as to policies. 
 But that, whereas in a policy that rule alone has to be considered, 
 in a contract of carriage, on the contrary, " you may look behiad 
 the immediate cause, and the shipowner is not protected by the 
 exception of perils of the sea in every case in which he would be 
 entitled to recover on his policy, on the ground that there has 
 been a loss by such perUs " («). 
 
 (?) 11 Q. B. D. 47. 
 
 (r) In the C. A., 11 P. D. 170. 
 
 («) Per Ld. Esher, 11 P. D. p. 173. 
 And see, in the U.S., The G. E. Booth, 
 171 XT. S. 450, cited helow. 
 
 (<) 12 A. C. 503. 
 
 («) 12 A. C. 518. 
 
 {x) Per Ld. Herschell, The Santho, 
 12 A. C. p. 510. Ld. Watson (p. 526) 
 said: "Tour lordships have no-w dis- 
 approved of the novel doctrine that in a 
 contract of sea carriage a meaning must 
 be attached to the expression, ' dangers 
 and accidents of the sea,' different from 
 that which it bears in a contract insuring 
 cargo against sea risks ; that, in a, case 
 of a charter party or bill of lading, the 
 Court ought to look to what has been 
 termed the remote, as distinguished from 
 the proximate, cause of damage, whereas 
 in the case of a poUoy the proximate 
 cause can alone be regarded. The ex- 
 pression has precisely the same signi- 
 ficance in both oases ; but there is this 
 
 difference between them, that when a 
 shipowner, who is bound, by the implied 
 terms of his contract, to carry with 
 ordinary care, claims the benefit of the 
 exception, the Court will, if necessary, 
 go behind the proximate cause of damage, 
 for the purpose of ascertaining whether 
 that cause was brought into operation 
 by the negligent act or default of the 
 shipowner or of those for whom he is 
 responsible." Hamilton v. Pandorf was 
 distinguished by the Supreme Court of 
 theU. S. in The a. E. Booth (171 V. S. 
 450 (1897)), where the circumstances were 
 rather closely similar. During the dis- 
 charge of a cargo a case of detonators ex- 
 ploded, without any negligence, making 
 a hole in the ship's side; sea water 
 flowed in through the hole, and got to 
 a part of the ship in which sugar was 
 stowed, and damaged it. The bill of 
 lading excepted "loss or damage occa- 
 sioned by the perils of the sea or other 
 waters," and also " accidents of naviga- 
 
CARKIAGE IN A GENERAL SHIP. 107 
 
 88a. A shipowner then is excused where the proximate cause of Sect. 88a. 
 a loss has been an excepted peril, although other accidental causes Application of 
 may have co-operated which were not excepted. In that sense the ca^'^le. 
 rule of looking to proximate causes is applicahle. 
 
 But the converse is not always true. A shipowner may he 
 excused by an exception of perils though the proximate cause of 
 loss may not have been excepted. The contract of a carrier diEEers 
 from that of an insurer. An underwriter agrees to indemnify 
 against losses by certain perils, and to make him liable the loss 
 must have been by one of those perils as proximate cause. The 
 contract of a shipowner is to deliver the goods in good order at 
 their destination, unless prevented by certain excepted perils. 
 Such prevention may be by an excepted peril directly, as where 
 goods are destroyed by the sea breaking in. But, also, an ex- 
 cepted peril may so alter the conditions of the voyage as to prevent 
 its completion unless the cargo is dealt with in a manner which 
 exposes it to risk and loss ; as where goods are put on to a beach 
 to lighten a stranded ship. If so, the consequent loss is covered 
 by the exception. In this sense the remote as well as the proxi- 
 mate consequences of excepted perils must be regarded. 
 
 An illustration of this difference is afforded by the case of 
 Pink V. n.eming(«/). The question was as to the liability of 
 underwriters of a fruit cargo for damage done to it, necessarily, 
 by discharging at a port of refuge. The ship had been in collision, 
 and the discharge was necessary for the purpose of repairing her. 
 The Court of Appeal, following the rule of proximate causes, held 
 that this was not damage " consequent on collision," within the 
 warranty against particular average " unless damage be consequent 
 on collision with any other ship." 
 
 tion of whatsoever kind." It was held effect of the bursting open of the ship's 
 
 that neither exception applied. Gray, J., side hy the explosion. There being two 
 
 delivering the judgment, said: "The conoturent causes of the damage — the 
 
 damage to the sugar was an eflfeot explosion of the detonators and the 
 
 which proceeded inevitably and of abso- inflow of the water — ^without any ap- 
 
 lute necessity from the explosion, and preciable interval of time, or any possi- 
 
 must therefore be ascribed to that cause. bility of distinguishing the amount of 
 
 The explosion occurred as the efficient damage done by each, the explosion 
 
 agent, with the water, at the instant as the cause which set the water in 
 
 when the water entered the ship. The motion, and gave it its efflciencyf or harm 
 
 inflow of the water, seeking a level by at the time of the disaster, must be 
 
 the mere force of gravitation, was not a regarded as ilas predominant cause." 
 new and independent cause, but was a 
 necessary and instantaneous result and iv) 25 Q- B. D. 396. 
 
108 THE CONTEACT. 
 
 Sect. 88a. Prom this it might seem, applying the same rule of construotion 
 to a biU of lading, that where .a cargo has to he discharged for 
 repairs, owing to sea perils, the damage necessarily done in 
 discharging it will not he covered by the exception " perils of the 
 sea." This would be a mistake. The shipowner is justified in 
 discharging the cargo in such a case ; indeed, he must discharge it, 
 whether to repair and carry it on, or to tranship it. And since he 
 is excused responsibility for the accident which made this necessary, 
 he is not responsible for the consequences of the discharge if he 
 uses proper care (s). 
 
 lUustrations 89. The following cases will illustrate how the rule of lookine 
 
 of proximate . . . , 
 
 causes. to the proximate cause has been applied with regard to policies of 
 
 insurance : — "Where a vessel was taken in tow by a ship of war, 
 
 and was obliged to carry an extraordinary press of sail in order to 
 
 keep up, and consequently shipped water in a gale, the damage 
 
 was held to be by perils of the sea {a). So, where a ship was 
 
 driven ashore by the wind, owing to seizure by the press-gang of 
 
 two of her crew who had been sent ashore to cast ofE a rope(S). 
 
 So, again, where a ship went ashore because a light had been 
 
 extinguished, at Cape Hatteras, as an act of hostility during the 
 
 American Civil War (c). In each case the loss was by perils of 
 
 the sea. 
 
 Where ships have been driven on to hostile coasts by stress 
 of weather, and have thus been captured, the cause of loss has 
 been held to be the capture, not the sea peril {d). And where 
 the rescue of goods from a stranded ship was prevented by 
 belligerents, the loss was ascribed to them, not to the perils 
 which caused the stranding (e). On the other hand, where goods 
 had in effect been lost by sea perils, but were afterwards saved 
 and confiscated by captors, the loss "was ascribed to the perils of 
 the sea, not to capture (/). 
 
 Again, where adverse weather caused delay on the voyage, so 
 
 (z) See Garston Co. v. HioHe (2), 18 278 ; Livie v. Janson, 12 East, 648. 
 
 Q. B. D. 17. {e) lonides v. Universal Marine Ins. 
 
 (a) Hagedom v. Whitmore, 1 Stark. Association, 32 L. J., C. P. 170. 
 
 ^^^' (/) Hahn v. Corbett, 2 Bing. 205 ; and 
 
 (5) Hodgson V. Malcolm, 2 B. & P., see lonidee v. Universal Marine Ins. 
 
 N. R. 336. Association, supra; and Dent f. Smith, 
 
 [o) lomdes V. Universal Marine Ins. L. E., 4 Q. B. 414 ; Dean v. Hornby, 
 
 AssociatioB, 32 L. J., 0. P. 170. 23 L. J., Q. B. 129 ; United States v.- 
 
 (d) Green v. ElmsUe, Peake, N. P. Hall, 6 Cranch, 171, 
 
CAREIAGE IN A GENERAL SHIP. 109 
 
 tliat a cargo of meat became putrid, it was held not to be a loss Sect. 89. 
 by perils of the sea (g). But where horses on board were injured 
 in a storm, by the rolling and pitching of the ship, and by kicking 
 one another in the confusion, "so that they died, the loss was 
 considered to proceed directly from the violence of the storm, and 
 to be by perils of the sea (h). 
 
 In Eeischer v. Berwick (i) a ship was insured against " damage 
 received in collision with any object." She collided with a snag, 
 and the cover of her condenser was broken. By plugging the 
 ejection pipes the master stopped the inrush of water, and made 
 her safe while she remained at anchor. But a tug was employed ; 
 and soon after towing began one of the plugs came out, the water 
 rushed in, and the vessel had to be beached and abandoned. Held 
 by the Court of Appeal, affirming Kennedy, J., that the loss was 
 by the collision. " The sinking of this ship was proximately 
 caused by the internal injuries produced by the collision, and by 
 water reaching and getting through the injured parts whilst she 
 was being towed to a place of repair. The sipking was due as 
 much to one of these causes as to the other ; each was as much a 
 proximate cause of her sinking as the other, and it would in my 
 opinion be contrary to good sense to hold that the damage by the 
 sinking was not covered by this policy " (fc). 
 
 90. Where mischief has been set up in a cargo by sea damage. Spread of 
 the spread of that mischief is regarded as arising from perils of the ori^nated by 
 sea (/). Even under a policy it is treated as a result of the sea ^^* amage. 
 peril (m). A vessel loaded with hides and tobacco shipped a 
 quantity of water, in bad weather, which wetted and putrefied the 
 hides. The packages of tobacco were not immediately touched by 
 the water ; but the tobacco was greatly damaged in flavour, by the 
 fetid vapours proceeding from the putrid hides. It was held that 
 the damage to the tobacco was due to sea perils («). Pollock, C. B., 
 
 ((7) Taylor v. Dunbar, L. R„ 4 C. P. 374; The G. K. Booth, 171 U. S. 450, 
 
 206 ; Tatham v. Hodgson, 6 T. E,. 656. supra, a. 88. 
 
 tis n 1. Ti J o Tj fc n TQ!!. (0 See The Catharine Chalmers, 32 
 
 Ih) Gabay 1). Lloyd, 3 B. & C. 793, t rr, o-- t> 4. j. m, i?. j t -d 
 
 _>' ,t J • c T, e, \ -inT L. T. 847. But of. The Freedom, L. R., 
 
 Lawrence v. Aberdem, 6 B. & A. 107. -i-prTcQi 
 
 Cf. Nugent «. Smith, IC. P. D. 19, 423. ,,■ ; t . . 
 
 (m) Montoya n. iioudon Asaur. Co., 
 (i) (1894) 2 Q. B. 548. g j;^_ ^gi_ 
 
 (A) Per Lindley, L. J., (1894) 2 Q. B. (») Montoya v. London Assur. Co., 6 
 
 p. 551. Cf. Insurance Co. v. Tweed, 7 Ex. 451 ; 20 L. J., Ex. 254. Cf. Cator 
 
 Wall. 44 ; Insurance Co. v. Boon, 95 v. Great Western Ins. Co. of New York, 
 
 U. S. 117; The Strathdon, 89 Fed. Kep. L. R., 8 0. P. 652. 
 
110 
 
 THE CONTEACT. 
 
 Sect. 90. 
 
 Duration of 
 " naviga- 
 tion." 
 
 "Risk of 
 
 toats." 
 
 said, "It is a matter of indifference -whethet the whole of the 
 cargo belongs to one person, and consists of one entire package of 
 corn, or whether the cargo consists partly of com and partly of 
 hides, and is the property of several owners. In both cases the 
 loss arises from perils of the sea ; and it is diflBcult to see how the 
 loss can he said not to be the immediate result of such perils. And 
 I think it may be laid down as a general rule that when mischief 
 arises from perils of the seas, and the natural and almost inevitable 
 consequence of that mischief is to create further mischievous results, 
 the underwriters in such case are responsible for the further mischief 
 so occasioned" (o). And Parke, B., saiid, "It seems to me 
 impossible to distinguish this case from that which I put, where 
 the cargo is supposed to consist entirely of hides or com, and the 
 upper part is injured by noxious gases arising from the decompo- 
 sition of the lower portions, or by the water being raised by 
 capillary attraction" {p). 
 
 91. The " navigation," within the meaning of "dangers and 
 accidents of the seas and navigation," begins at the loading port 
 and continues after the ship has got to her discharging dock and 
 berth. So that an accident by which water gets in during the 
 loading or unloading, and damages the goods, will generally be 
 excepted {q). 
 
 92. Where the exception ran as follows : " All and every other 
 dangers and accidents of the seas, rivers, and navigation of what- 
 ever nature and kind soever, save risk of boats so far as ships are 
 liable thereto excepted," it was held that the shipowner was not 
 liable for a loss, occasioned by storm, of goods which had been 
 properly placed in a boat for the purpose of landing them (r). 
 
 ColUsion." 93. The exception " collision " does not protect the shipowner 
 where a collision has been brought about by a- default of the 
 master, or crew, of the carrying ship. But if there has been no 
 default on their part, it does protect him against a collision with 
 another ship, although that may have been navigated improperly ; 
 and although she may have belonged to the same shipowner, and 
 
 (o) 6 Ex. at p. 458. 
 
 {p) Ibid, at p. 469. 
 
 (q) Laurie v. Douglas, 16 M. & W. 
 746; Adam v. Morris, 18 Sess. Ca. (4tli), 
 153 ; TheSouthgate, (1893) P. 329 ; The 
 
 Glenoohn, (1896) P. 10. But see The 
 Acoomao, 15 P. D. 208 ; The G. B. 
 Booth, 171 U. S. 450 (1897) ; Davidson 
 V. Burnaud, L. E., 4 0. P. 117 ; mfra, 
 s. 101. 
 (r) Johnston v. Benson, 4 Moore, 90. 
 
CAKEIAGE IN A GENEEAL SHIP. Ill 
 
 been in charge of liis servants (s). The exception does not, how- Sect. 93. 
 ever, in such a case, prevent the shipowner from being liable, in 
 tort, as owner of the other vessel, for the negligent navigation (t). 
 " ' Collision ' appears to me to contemplate the case of a vessel 
 striking another ship or boat, or floating buoy, or other navigable 
 matter — something navigated, and coming into contact with it. 
 It, so to speak, imports, as it were, two things. It may be that 
 one is active and the other is passive, but stiU, in one sense, they 
 each strike the other. That does not apply to striking on the 
 ground at the bottom" {u). 
 
 94. As we have seen, "pirates" have been held to be within "Pirates." 
 " dangers of the seas," but they are generally excepted expressly. 
 Piracy is forcible robbery at sea, whether committed by marauders 
 from outside the ship, or by mariners or passengers within it. 
 The essential element is that they " violently dispossess the master, 
 and afterwards carry away the ship itself, or any of the goods, with 
 a felonious intent " (»). 
 
 " Eobbers " is more general than " pirates," but stiU. implies that " Eobbers." 
 the acts excepted are acts of forcible taking {>/) . 
 
 " Thieves" seems to cover all acts of felonious taking (s). But "Thieves." 
 it has been held that the general exception of " thieves " does not 
 cover acts of the crew, or of other persons on board the ship (a) ; 
 and, presumably, the same is true of " robbers " and " pirates" (b). 
 
 In modern bills of lading the exception sometimes runs : "pirates, 
 robbers, or thieves, whether on board or not." In this form it 
 protects the shipowner against thefts by passengers or strangers on 
 board, but not against thefts by the crew, or by other persons in 
 the employ of the shipowner, or (as stevedores) doing the work he 
 has undertaken to do (c). Greneral exceptions are always con- 
 
 («) Chartered Merfiant£e Bank of (y) De Eothsohild v. Eoyal Mail Steam 
 
 India, &c. v. Netherlands India Steam Packet Co., 21 L. J., Ex. 273. 
 
 Nav. Co., 10 Q. B. D. 521 ; reversing (z) But see Taylor v. Liverpool and 
 
 9 Q. B. D. 118. - Great Western Steamship Co., L. E., 9 
 
 {t) Hid. Q. B. 546 ; where Archibald, J., seems 
 
 («) Per Grove, J., in Hough v. Head, to have held that the theft must he with 
 
 52 L. T. 861, p. 864. As to "in colU- violence. 
 
 sion" in the memorandum of a policy, (a) Taylor v. Liverpool, &c. Co., 
 
 see London Assurance v. Comp. de supra; Steinmann v. Angler, (1891) 1 
 
 Moagens, 167 U. S. 149 (1897). Q. B. 619. 
 
 (x) Att.-Gen. for Hong Kong v. (S) Of. The Chasoa, L. E., 4 A. & E. 
 
 Kwok-a-Sing, L. E., 5 P. C. 179. See 446. 
 
 Neshitt V. Lushingtou, 4 T. E. 783 ; (c) Steinmann v. Angier, (1891) 1 
 
 Palmer v. Naylor, 23 L. J., Ex. 323. Q. B. 619. 
 
112 
 
 THE CONTRACT. 
 
 Liatility for 
 bad stowage. 
 
 Sect. 94. strued, sutject to contrary words, so as to preserve the shipowners'' 
 obligation to use care. A fortiori, they- must be construed so as to 
 preserve his obligation to be honest, by himself and his servants. 
 
 An exception of "neglects or defaults" of the shipowner's 
 servants will not cover thefts by such persons (d). 
 
 95. The general responsibility at law of the shipowner makes 
 him liable for any loss or damage which may happen to the goods 
 in the ship's hold by their contact with, or proximity to, other 
 parts of the cargo, or by any wasting or deterioration; imless, 
 indeed, he can show that it altogether arose from some quality or 
 defect of the goods themselves (e). It is not necessary that 
 negligence in the manner of stowiag the goods should be proved, 
 or should have occurred, in fact. If the shipowner chooses to 
 carry a number of different articles together, he does so at his 
 own risk, and though he may have used all possible care in 
 stowing them, he is liable for the damage they may cause to one 
 another (/). 
 
 We, therefore, usually find in a bill of lading some exceptions 
 relating to risks of damage by wasting, and by contact with other 
 goods ; e.g., by breakage, leakage, drainage, evaporation, heating, 
 sweating, rust, decay, &c. Such general clauses do not relieve the 
 shipowner from responsibility for negligence or unskilfulness^ in 
 handling and arranging the goods. It is presumed, unless the 
 contrary is expressed, that he and his agents will still be skilful 
 and careful {g). 
 
 96. But where these risks have been excepted, the shipowner 
 does not undertake that more than reasonable care and skill will 
 be shown. Ignorance of the injurious consequences of stowing 
 particular kinds of goods together does not always amount to 
 negligence, so as to prevent him from relying on the exceptions. 
 It cannot be said that there has been negligence, or want of 
 reasonable skill, unless the consequences of such a stowage were 
 well known to stevedores. 
 
 In Ohrloff v. Briscall (A), Lloyd & Co. had chartered The Helene 
 for a voyage from Leghorn, and they there shipped a cargo of 
 
 Liability for 
 ignorance. 
 
 id) Of. Shawv. G. W. Rail. Co., (1894) 
 1 Q. B. 373. 
 
 (e) See siipra, e. 12. 
 
 (/) The Freedom, L. R., 3 P. 0. 594 ; 
 Gillespie v. Thompson, 6 E. & B. 477 
 
 (n.) ; Stevens, Stowage (6th), p. 456. 
 
 iir) Phillips V. Clark, 26 L. J., 0. P. 
 108 ; Czech v. General Steam Nav. Co., 
 L. R., 3 C. P. 14 ; supra, s. 77. 
 
 {fi) The Helene, L. R., 1 P. 0. 231. 
 
CARRIAGE IN A GENERAL SHIP. 113 
 
 rags, wool, and forty-seven easts of olive oil. A till of lading Sect. 96. 
 
 was given for the oil, which excepted " leakage," and this hill of 
 
 lading was endorsed to the plaintiffs as purchasers of the oil. The 
 
 oil was stowed in the same hold with some rags and wool, and 
 
 these having tecome heated, the staves of the casks dried, the 
 
 casks became l§aky, and thus a large part of the oil escaped. 
 
 Dr. Lushington held the shipowners responsible for this loss, as 
 
 caused by negligent stowage, but his decision was reversed by the 
 
 Privy Council. 
 
 Turner, L. J., in delivering judgment, said : " Notwithstanding 
 the evidence of the notoriety at Liverpool of the deleterious conse- 
 quences of the collocation of oil in casks with rags and wool, or 
 other matters tending to generate heat, we do not, believe that 
 either the shippers or the shipowners in this case were aware of 
 them. Nor do we think the ignorance of the shipowners in itself 
 amounted to negligence. It can hardly be imputed as misconduct 
 that the shipowners should be ignorant of latent mischief of this 
 nature, when Lloyd & Co., who are proved to have had very great 
 experience as oil merchants, were in the same state of ignorance "(2). 
 
 97. Further, apart from all exceptions, if the damage to a ship- Damage from 
 per's goods has been the result of dangerous qualities in themselves quality of 
 which were known to the shippers, but were not known, and could ftwjpea. 
 not reasonably be expected to have been known, to the shipowners, 
 
 the latter are not responsible for the damage. For example, where 
 salt cake was shipped, and was in ignorance stowed by the ship- 
 owners with casks of salt provisions, so that the salt cake rotted the 
 casks and cask hoops, and the brine ran out of the casks, spoiling 
 the salt cake : these facts were pleaded as a defence to an action 
 for the damage, and it was held to be no sufficient reply that the 
 salt cake was an article whose nature and properties were well 
 known in commerce, and to persons carrying on the business of 
 carriers in ships Qc). 
 
 98. The general exception "leakage" includes all loss, however "Leakage," 
 great, due to leaking of the goods themselves. It does not relate 
 
 to their ordinary leakage merely {I). 
 
 (i) L. K., 1 P. C. pp. 238, 239. L. J., Q. B. 49; Aoatos v. Bums, 3 
 
 Ex. D. 282. See infra, a. 273 et seq. 
 {k) Hutchinsou v. Guion, 28 L. J'., (z) Ohrlofi v. Brieeall (The Helene), 
 
 C. P. 63. Cf. Brass v. Maitland, 26 L.E., 1 P. C. 231. 
 
 C. C. I 
 
114 THE CONTRACT. 
 
 Sect. 98. " The condition that the shipowners are not to he aecountahle 
 for leakages does not, in its ordinary and grammatical sense, put 
 any Kmit to the quantity of leakage ; and on principle, therefore, 
 we do not think it would he justifiahle to add any such limit to its 
 terma" (m). The same remark seems to apply to other similar 
 exceptions, such as " evaporation, rust," &o. 
 
 But the exception does not relate to damage sustained by the 
 goods owing to leakage from some other part of the cargo, unless 
 that is expressed. In Thrift v. Toule (w), 100 harrels of oil and 
 106 bales of palm baskets were shipped under one bill of lading, 
 which contained the clause " not accountable for rust, leakage, or 
 breakage." On delivery two barrels of the oil were found to be 
 empty, and sixty of the bales of palm baskets were damaged with 
 oil. It was held, that the shipowner was responsible for the damage 
 to the bales. Grove, J., said : " The words in the biU of lading 
 simply mean that if the goods shipped are injured by rust, or if 
 the casks containing them become leaky or are broken, the ship- 
 owner is not to be accountable ; there is nothing in the bill of 
 lading to show that the clause is to be extended to remote conse- 
 quences ; and the ulterior injury arising from leakage may be of a 
 very important kind, and nevertheless of a totally different nature : 
 suppose, for instance, that a cask of spirits leaks, and that what 
 escapes from it catches fire and destroys other goods ; I think that 
 this clause would not protect the shipowner from liability to com- 
 pensate the owner of the goods burnt." 
 
 Denman, J., said : " The sole question for our consideration is 
 the meaning of the word ' leakage.' Some goods, such as oil stored 
 in barrels, are apt to leak ; and by the insertion of this word it was 
 intended to protect the shipowner from liability to compensate the 
 owner of the goods for the waste occasioned by leakage. I do not 
 think the word can have a more comprehensive meaning. In like 
 manner, by the use of the word 'breakage,' it was merely intended 
 that the shipowner should be absolved from liability in respect of 
 goods broken during the voyage ; it would be absurd to suppose 
 that it could extend to damage done hj the broken goods to other 
 goods." 
 
 "Barratiy." 99. " Barratry," or " barratry of the master or mariners," means 
 any wilful act of spoliation, or violence to the ship or goods, or any 
 
 (m) L. R., 1 p. C. at p. 240. 
 
 {«) 2 0. P. D. 432. Cf. The Nepoter, L. R., 2 A. & E. 275. 
 
CAEEIAaE IN A GENERAL SHIP. 115 
 
 fraudulent or consciously illegal act wMch exposes the ship or goods Sect. 99. 
 to danger of damage, destruction, or confiscation, done by the 
 master or crew without the consent of the shipowner. 
 
 For example, if goods are lost or damaged hy the master wilf uUy 
 ruiming the ship upon rocks (o), or attempting to scuttle her {p) ; 
 or through a fraudulent delay {q), or deviation {r) upon the Toyage, 
 for the master's private purposes ; or by the ship and cargo being 
 fraudulently sold by the master (s) ; the exception relieves the 
 shipowner from responsibility for such losses. So again, if the 
 goods become confiscated owing to the master using the ship for 
 purposes of smuggling {t), or trading with an enemy {u), or running 
 a blockade (®). And the effect is the same although the master 
 was intending to act for the benefit of the owners («). 
 
 Speaking in relation to a policy of insurance. Lord EUenborough 
 said {y) : " A breach of duty (by the master) in respect to his 
 owners, with a criminal intent, or ex malificio, is barratry. And 
 with respect to the owner of the ship or goods, whose interest is to 
 be protected by the policy, it can make no difference in the reason 
 of the thing, whether the prejudice he suffers be owing to an act 
 of the master, induced by motives of advantage to himself, malice 
 to the owner, or a disregard to those laws which it was the master's 
 duty to obey, and which (or it would not be barratry) his owners 
 relied on his observing. It has been strongly contended, on the 
 part of the defendant, that if the conduct of the master, though 
 criminal in respect of the state, were, in his opinion, likely to 
 advance his owner's interest, and intended by him to do so, it will 
 not be barratry. But to this we cannot assent. For it is not for 
 him to judge in cases not intrusted to his discretion, or to suppose 
 that he is not breaking the trust reposed in him, but acting 
 meritoriously, when he endeavours to advance the interest of his 
 owners by means which the law forbids, and which his owners also 
 
 (o) Scares v. Thornton, 7 Taun. 627 ; [t) Hayelook v. Hauoill, 3 T. R. 
 
 Heyman v. Parish, 2 Camp. 149. 277. 
 
 /vnTLz-ii. T T, A \ i>.-a AAd M Earlo V. Roworoft, 8 East, 126. 
 
 (^ TheChasoa, L.R., 4 A. &B.446. ) i „ ^3 -jj. wt,'* q rr 
 
 * ' (v) Goldsmidt v. Whitmore, 3 Taun. 
 
 (q) Ross v.- Hunter, 4 T. R. 33 ; 507. And see other oases of barratry 
 
 Eoscow V. Corson, 8 Taun. 684. ty exposing the ship and goods to con- 
 
 , . ,, T. ^ m T> own fisoation, cited in Earle v. Rowcroft, 8 
 
 J) Moss . B^om, 6 T E. 379 ; ^^g. 
 
 Dixon V. Reid, 5 B. & A. 597. ^^^ 3^^ ^^^ g^^^^^ ^_ ^^^^^^ 2 Str. 
 
 (s) Jones V. Nicholson, 23 L. J., Ex. 1173. 
 330. W Earle v. EoToroft, 8 East, 126. 
 
 i3 
 
,^ 
 
 116 
 
 THE CONTRACT. 
 
 Sect. 99. 
 
 EfPeot of 
 
 owners' 
 
 assent. 
 
 Barratry 
 against 
 charterer, or 
 cargo-owner. 
 
 must be taken to liave forbidden ; not only from wliat ought to 
 be, and therefore must be presumed to have been their own sense 
 of public duty, but also from a consideration of the risk and loss 
 likely to follow from the use of such means " (z) . 
 
 A deviation through ignorance of the master is not barratrous (a) ; 
 nor is negligent navigation, in contravention of the rules of navi- 
 gation, if there has been no improper motive (5) ; nor is a jettison 
 made by the master under an unfounded fear, without apparent or 
 reasonable necessity (c). It is essential that the act shall have been 
 either fraudulent, or done knowingly in breach of the lsiw{d). 
 
 In Cory v. Burr (e), an action on a policy of insurance, which 
 contained the warranty "free from capture and seizure," it was 
 held that a loss by seizure and detention, for smuggling by the 
 master, must be ascribed to "capture and seizure," and not to 
 the barratry. 
 
 100. Where the master has acted with the assent of the owners, 
 his acts are not barratrous (/). But the mere fact of his being a 
 part owner will not prevent the possibility of his committing 
 barratry as against the other part owners (g), or against his 
 mortgagee (h). 
 
 And if the ship has been chartered so as to give the charterer 
 possession and control of her for the time being, acts may be 
 committed against him which will be barratrous, although the 
 shipowner may have ordered or assented to them («) . 
 
 In relation to policies of insurance acts may perhaps be barra- 
 trous against the cargo owner, though not done against the ship- 
 Owner's wUl. Thus in lonides v. Pender (/c), Hannen, J., directed 
 the jury that a loss by scuttling would, under a poKcy on goods, 
 be barratry, although the scuttling were done with the knowledge 
 of the shipowner, if it was without the knowledge of the freighter. 
 
 Ins. Co 
 
 (z) Per Lord Ellentorougt. in Earle 
 V. Eowcroft, 8 East, p. 124. 
 
 (o) Phyn V. Royal Exchange Ass. Co., 
 7 T. K. 505. 
 
 (J) Grrill V. General Screw Collier Co., 
 L. E., 1 C. P. 600. 
 
 {e) Campanhia de Nav. la Elecha v. 
 Brauer, 168 U. S. 104 (1897). 
 
 {d) Phynjj.Eoyal Exchange Ass. Co., 
 supra; The Australasian Ins. Co.!). Jack- 
 son, 33 L. T. 286. See Phillips, Ins., 
 ss. 1063 et seq. ; Dederer v. Delaware 
 
 2 Wash. C. C. 61. 
 («) 8 Q. B. D. 313 ; 9 Q. B. D. 463 ; 
 8 A. C. 393, 
 
 (/) Nutt V. Bourdieu, 1 T. E. 323; 
 Hobhs V. Hannam, 3 Camp. 93 ; Stanuna 
 V. Brown, 2 Str. 1173. 
 
 {g) Jones V. Nicholson, 10 Ex. 28. 
 
 {h) Small V. United Kingdom, &c. 
 Assoc, (1897) 2 Q. B. 42. 
 
 (i) Scares v. Thornton, 7 Taim. 627 ; 
 VaUejo V. Wheeler, Cowp. 143. 
 
 (A) 27 L. T. 244. 
 
CARRIAGE IN A GENERAL SHIP. 117 
 
 In Atkinson v. Great Western Insurance Co. {I), in the New Sect. 100. 
 York Court of Common Pleas, after an elaborate discussion of tlie 
 history and meaning of the word, Daly, C. J., said that barratry 
 " as a marine term means an intentional injury to the vessel, or 
 to the cargo (w) ; or some unlawful, fraudulent, or criminal act, 
 whereby, or in the prosecution of which, loss or injury arises to the 
 owners of the vessel, or of the cargo, or to the insurers ; and does 
 not embrace what in the law is denominated negligence." 
 
 Questions on this subject have generally arisen with respect to 
 insurances, and they will be found discussed in works on marine 
 insurance. 
 
 In relation to contracts of carriage we have, however, to re- 
 member that the exception is introduced for the shipowner's 
 benefit, and will not shield him against losses produced by his own 
 wrongful acts. So that, although an act of the master done with 
 his owner's consent might, within a policy, be barratrous against 
 the charterer, that will not bring the act within the exception so as 
 to protect the shipowner from the conseijuences. 
 
 101. Bills of lading now commonly relieve the shipowner from "Negligence 
 responsibility for negligence of the master or mariners in navigat- 
 ing the vessel. Often the exception extends to acts of stevedores, 
 and other persons employed by the ship ; and sometimes it goes 
 still further, and covers all wrongful acts, and neglects, and errors 
 in judgment, whether of the owners, or of those in their service, or 
 for whose acts they would otherwise be liable. 
 
 There is nothing in our law to prevent the parties from making 
 such a contract (w). The legislature has not interfered with ship- 
 owners, as it has with railway and canal companies (o), to prevent 
 their enforcing contracts which may seem to the Courts not to be 
 reasonable {p). 
 
 {T) 27 L. T. 103, at p. 110. vants' negligence are valid ; but the 
 
 (ot) The question -wlietlier a -wrong- law seems no-w to be ia favour of that 
 ful act done to the cargo only could be viewinFrance, Germany, Italy, Holland, 
 barratry was raised, but not decided, in and Belgium ; see a valuable paper by 
 Taylor ». Liverpool and Great Western Judge Raikes, Q.C., read before the 
 Steamship Co., L. R., 9 Q. B. 546. International Law Association,- at Ant- 
 
 («) The Duero, L. R., 2 A. & E. 393 ; werp, in 1895. 
 Westport Coal Co. v. McPhail, (1898) In the United States the matter is 
 
 2 Q. B. 130. practically settled by the Harter Act, 
 
 (o) 17 & 18 Vict. c. 31, s. 7. 1893, infra, s. 103 (a). 
 
 [p) There has been a good deal of un- As to the effect in an English Court 
 
 certainty in some European states as to of a foreign law which makes a stipula- 
 whether clauses which exempt the ship- tion in the contract void, see infra, 
 owner from - consequences of his ser- sb. 214 — 216. 
 
 of master," 
 
stowing. 
 
 118 THE CONTRACT. 
 
 Sect. 101. But the Courts construe such exceptions strictly, against the 
 sHpowner, and will not extend them beyond their clear meaning. 
 Negligence in Thus, an exception of "negligence of master or mariners" -will not 
 cover the neglect of a stevedore, iu stowing the cargo {q) ; though 
 it will cover acts of the crew in stowing (r) . While an exception 
 of negligence in the " navigation " will not cover negligent 
 stowage, although done by the crew (s). 
 
 Where, however, it ran, " any act, negligence, default, or error 
 in judgment of the pilot, master, mariners, or other servants of the 
 shipowner in navigating the ship or otherwise" it was held to cover 
 negligent stowage by a stevedore employed by the shipowner (f) ; 
 and, under a similar exception, damage by rain owing to a 
 negligent exposure of the goods during the loading was excused («(). 
 ''Naviga- The meaning of "navigation" in such clauses has been much 
 
 discussed. In The Accomac («), the charter excepted negligence of 
 the crew " in the navigation of the ship and in the ordinary course 
 of the voyage." Damage was done to the cargo during the 
 discharge, in dock, by water which entered through a pipe from 
 which a cock had been removed in the course of repairs. The 
 ship's engineer had opened the sea-valve, and so let in the water, 
 without ascertaining whether this pipe had been plugged. The 
 plugging had been omitted by negligence of the repairing con- 
 tractor's men. Butt, J., held that as the damage was due to the 
 joint negligence of those men and the engineer, and not exclusively 
 to the fault of one of the crew, it was not excepted. The Court of 
 Appeal affirmed the judgment, on the ground that the loss was 
 not by negligence " in the navigation," or during the voyage («/). 
 
 In The Cressington (s) it was held that " accidents of navigation 
 . . . even when occasioned by the negligence, default, or error in 
 judgment of the pilot, master, &o," covered damage to the cargo 
 through the continuance of an accidental leak which ought to have 
 been stopped by the master. 
 
 In Adam v, Morris (a), the same exception was considered to 
 
 (?) Hayn i>. Culliford, 3 0. P. D. 410 ; [u) Norman v. Binnington, 25 Q. B. 
 
 4 C. P. D. 182; The Ferro, (1893) P. D. 475. Cf. JUi Kang !;. AustraHan S. 
 38- N. Co., 9 Viot. L. R. 171. 
 
 (r) The Duero, L. R., 2 A. & E, 393. («) 15 P. D. 208. 
 
 (y) In Grleadell v. Thompson, 11 
 
 (») Per Denman, J., in Hayn v. CulU- gietel's N. T. R. 194, it was held that 
 ford, 3 0. P. D. 410 ; The Eerro, (1893) ^egUgence which occnrred after the 
 
 goods had been landed was not covered. 
 
 [t) Baerselman v. BaUey, (1895) " («) (1891) P. 162. 
 Q. B. D. 301. (a) 18 SesB. Ca. (4th) 153. 
 
CAREUGE IN A GENERAL SHIP. 119 
 
 cover damage ty water -whioh entered owing to negligence of the Sect. 101. 
 
 engineer, at the port of discharge, in leaving the sea-cock open 
 
 when filling the boiler. And in The Southgate (b), Grorell Barnes, 
 
 J., indicated the opinion that a similar incursion of water during 
 
 the loading of the ship was an " accident of navigation." He did 
 
 not, however, decide the point. And in The Glenochil (c), where a 
 
 similar accident had occurred, it was held that the loss resulted 
 
 from an error in the " management " of the vessel rather than in 
 
 the " navigation." 
 
 The word "management" has also given rise to difficulty (^. "Manage- 
 In The Grlenochil (c) it was held to cover the act of an engineer in 
 admitting water to a ballast tank without first ascertaining that it 
 was safe to do so. But in The Ferro (e) the same Court held that 
 " management of the ship " did not include acts of stowage. The 
 distinction was drawn between " want of care of cargo, and want of 
 care of vessel indirectly affecting the cargo " (/)• 
 
 An exception of negligence " during the said voyage " was held 
 by Sir J. Hannen to cover acts done during the loading (g). 
 
 Where goods were lost owing to a coUisioh between the carrying Negligence on 
 ship (The Crown Prince) and another ship (The Atjeh) which be- ganie owners. 
 longed to the same company, for which both ships were to blame, 
 it was held that the shipowners were not protected by the excep- 
 tion of " accidents, loss, or damage from any act, neglect, or default 
 whatsoever of the pilots, master, or mariners, or other servants of 
 the company in navigating the ship." For the collision was in 
 part due to negligence of those on The Atjeh, and their acts were 
 not within this clause. The company were held to be liable in tort 
 to the extent of half the damage {h). 
 
 102. Unless expressly excepted, personal neglects or defaults of Negligence of 
 
 the shipowner will render him liable, although negligence of his noifgrn^rally 
 
 covered. 
 
 (4) (1893) P. 329. {d) See cases under the Harfcer Act, 
 
 (c) (1896) P. 10. And see The mfra s. 103 (e). 
 
 Rodney, (1900) P. 112. As to the efEect (g) (1893) P. 38. 
 
 given to the words "improper naviga- ^^j p^^ gj^ j, j^^^ ^^^ q^^^_ 
 
 tion " in. insurance contracts, see Canada nchil fl8961 P v 16 
 Shipping Co. v. British Shipowners' 
 
 Mutual Protection Association, 22 Q. B. W The Carron Park, 15 P. D. 203 ; 
 
 D. 727 ; 23 Q. B. D. 342. But of. Good ^^ see Letricheux i>. Dunlop, 19 Sess. 
 
 V. London Steamship Owners' Assooia- (^tt) 209. Of. The Acoomao, IS P. D. 
 
 tion, i,. R., 6 0. P. 563 ; Oarmichael v. 208. 
 
 Liverpool SaiUng Ship Owners' Associa- {h) Chartered Mercantile Bank, &e. 
 
 tion, 19 Q. B. D. 242 ; and The Wark- v. Netherlands India Steam Nav. Co., 9 
 
 •worth, 9 P. D. 20. Q. B. D. 118 ; 10 Q. B. D. 521. 
 
120 THE CONTEACT. 
 
 Sect. 102. servants be excepted. " There are liabilities on the part of the 
 shipowner which would well exist under a bill of lading in this 
 form, as, for instance, if any personal negligence of his could be 
 proved to be the real cause of the loss. If he employs as master 
 of the ship a person who was known to be of drunken habits, and 
 it is shown that the collision or loss is the result of the drunkenness 
 of the captain on a particular occasion, that I should say would be 
 personal negligence on the part of the shipowner, and he would be 
 liable. Or if, in order to favour some relation of his own, he ap- 
 points as master of the ship a person who has not reasonable know- 
 ledge, skill and capacity, and if the loss is shown to have resulted 
 from the want of that reasonable knowledge, skill and capacity, 
 the shipowner would be liable ; or if the shipowner gives written 
 instructions to his captain that upon the vessel entering into a 
 certain port, although he should have a pilot before entering that 
 port, he is not to have one on board, and by reason of his not having 
 a pilot the ship be lost, there would be negligence on the part of 
 the shipowner, and he would be liable " {i). 
 
 In Westport Coal Co. v. McPhail (k), the question arose whether 
 the master himself, who was a part owner, was excused by an 
 exception of " neglect and default of the master in navigating the 
 ship." The Court of Appeal held that he was. " The plain 
 common sense of the matter seems to be that the owners, including 
 the defendant, bargained to be excused from the consequence of 
 the negligence within the sphere of his duty of the person — who- 
 ever he might be — who should be properly charged with the 
 command of the ship " (l). 
 
 Nor nnsea- 102a. Further, an exception of " negligence " does not relieve the 
 
 ■vfortmness. .. . ,.,,.,. , ,,. 
 
 shipowner trom his obhgation to supply a ship that is seaworthy, and 
 
 fit for the cargo, at the commencement of the voyage. He is liable 
 for a loss caused by unseaworthiness, or unfitness, although that 
 may have been due to negligence of the master or crew, unless 
 there was an express exception relieving him from that unsea- 
 worthiness or want of fitness (m). 
 
 (i) Per. Brett, L. J., in Chartered The Vortigem (1899) P. 140 ; Thin v. 
 
 Mercantile Bank, &o. v. Netherlands Eioharda, (1892) Q. B. D. 141 ; Seville 
 
 Indian Steam Nav. Co., 10 Q. B. D. at Sulphur Co. v. Colvils, 25 So., L. E. 
 
 P- 532. 437 ; steel v. State Line Steamship Co., 
 
 (A) (1898) 2 Q. B. 130. 3 a. C. 72 ; Tattersall v. National 
 
 (Z) Per Collins, L. J., at p. 133. Steamship Co., 12 Q. B. D. 297. 
 
 (ot) Qrpiay V. Price, (1893) A. C. 66 ; s. 79. 
 
risk.' 
 
 CAKRUaE IN A GENERAL SHIP. J21 
 
 ■ Such exceptions are frequently inserted, and are valid {n). But Sect. 103a. 
 their language must be clear to he effectual. Thus an exception of 
 " failure or breakdown of machinery " will not excuse a failure of 
 refrigerating machinery on board owing to its unfitness («). Nor 
 will an exception of " defects latent on beginning voyage or other- 
 wise," excuse defects which should have been obvious at the 
 commencement of the- voyage (p). 
 
 In the United States it has been held that an exception of 
 " latent defects in hull, tackle, &c.," does not amount to an 
 exception of latent defects amounting to unseaworthiness on 
 sailing {q). 
 
 103. Sometimes a comprehensive stipulation is used in the bill "Merchant's 
 of lading to throw the whole risks of the voyage upon the shipper. 
 For instance, that the goods are to be carried "at merchant's 
 risk"(r), or "owner's risk" (s), or that the carrier is not to be 
 liable "in any case" (i), or is to be relieved "from all liability for 
 loss or damage by delay in transit, or from whatever other cause 
 arising" (m). Such clauses usually cover all risks, including that 
 of loss or damage from negligent or improper acts of the master 
 and crew («). 
 
 But it may become necessary to consider what the parties had in 
 view when making the contract. ' The words may have been used 
 with reference to a particular known course of business, under 
 which they have acquired a peculiar meaning («/). Also, such 
 clauses must generally be construed as relating to the risks which 
 would otherwise fall on the shipowner under the contract in which 
 they occur. So that a stipulation in a charter party that a deck 
 cargo was to be carried " at merchant's risk," was held not to ex- 
 elude the liability of the shipowner to contribute to a general 
 
 («) Cargo per Maori King v. Huglies, Rail. Co., L. R., 8 Q. B. 67 ; Stewart 
 
 (1895) 2 Q. B. 530, per liord Esher, v. L. & N. W. RaU. Co., 33,L. J., Ex. 
 
 p. 555j Cargo ex Laertes, 12P. D. 187. 199. Cf. Mitchell v. Lano. & York. 
 
 (p) Cargo perWaikato v. New Zea- Rail. Co., L. R., 10 Q. B. 256. 
 land Steamship Co., (1898) 1 Q. B. 645 ; (t) Ashendon v. L. B. & S. C. Rail. 
 
 (1899) 1 Q. B. 56 ; Queensland Nat. Co., 5 Ex. D. 190 ; Taubmaa i>. Pacific 
 
 Bank v. P. and O., &o. Co., (1898) 1 Steam Nay. Co., 26 L. T. 704. 
 Q. B. 567. (») Brown v. M. S. & L. Rail. Co., 9 
 
 ig) The Carib Prince, 170 U. S. 655 Q. B. D. 230 ; 10 Q. B. D. 260 ; 8 A. C. 
 
 (1898) ; The Caledonia, 157 IT. S. 124. 703. 
 
 (r) Burton v. English," 10 Q. B. D. (x) Cases supra. Cf. Wyld v. Piok- 
 
 426 ; 12 Q. B. D. 218. ford, 8 M. & "W. 443, and cases infra. 
 
 («) Lewis V. Gt. Western Rail. Co., (y) See Lewis v. Gt. Western Rail. 
 
 3 a,. B. D. 195 ; McCawley v. Fumess Co., 3 Q. B. D. 195. 
 
132 THE CONTKACT. 
 
 Sect. 103. average sacrifice of the goods so carried. For tlie right to contri- 
 hution did not arise under the charter party, hut independently of 
 it, upon the act of sacrifice ; and the contract did not clearly express 
 that a sacrifice was not to give that right (s). 
 
 Further, a general clause, such as " at owner's risk," does not 
 put an end to the carrier's ohligation to perform his contract. It 
 has heen repeatedly held that it does not excuse him for not deliver- 
 ing the goods within the time expressly or impliedly agreed [a). 
 Nor would it cover an improper refusal to deliver the goods (6). 
 
 And the words must he read with reference to their subj ect-matter. 
 In Stuart v. British and African S. Nav. Oo. (c), the goods were 
 to he transhipped in the course of the agreed voyage, and the 
 following clause was inserted : — " The goods to be transhipped at 
 Bonny, and forwarded to destination hy branch steamer at ship's 
 expense but shipper's risk." It was held that the words " at 
 shipper's risk " only- related to the operation of transhipment at 
 Bonny, and not to the forwarding to the destination, which had 
 been undertaken in the other part of the biU of lading. 
 
 In Oampanhia de TSTavigacion la Flecha v. Brauer (d), cattle 
 were carried on deck " at owner's risk," and the shipowners were 
 not to be "accountable for mortality from whatever cause arising." 
 Some of the cattle were thrown overboard by the master under an 
 unfounded fear, and without apparent or reasonable necessity. It 
 was held by the Supreme Court of the United States that the 
 shipowners were not protected. 
 
 The Harter 103a. Down to the year 1893 the Federal Courts of the United 
 States held that clauses which exempted the shipowner from 
 liability for his own or his servants' negligence were void, as being 
 contrary to public policy. No effect was given to such clauses 
 where the contract was governed by the law of the United States {e). 
 Nor could effect be given even though the contract expressed an 
 agreement of the parties that some other law should govern (/). 
 
 (z) Burton v. EngKsh, 12 Q. B. D. {d) 168 IT. S. 104 (1897). 
 
 218, reyereing 10 Q. B. D. 426. (e) Liverpool, &o. Co. v. Phoenix Ins. 
 
 (a) Eobinson ». Gt. Western Rail. Oo. (The Montana), 129 TJ. S. 397 ; The 
 
 Co., 35 L, J., 0. P. 123 ; WAmv. L. & Brantford City, 29 E'ed. Eep. 373 ; The 
 
 N. W. Bail. Co., L. E., 9 C. P. 325. Guildhall, 68 Fed. Eep. 796 (1893), 
 
 (i) Of. Gordon v. Gt. Western Eail. where the contract had been made 
 
 Co., 8 Q. B. D. 44; Stevens v. Gt. abroad, but delivery was to be in the 
 
 Western Bail. Co., 52 L. T. 324. U. S. 
 
 («) 32 L. T. 267. (/) In The Oranmore, 24 Fed. Eep. 
 
CARRIAGE IN A GENERAL SHIP. 123 
 
 In Eebmary, 1893, tlie Act known as the Harter Act was passed Sect. I03a. 
 by Congress and approved ; and it came into operation on July 1, 
 1893. It has such an important bearing upon the trade to and 
 from United States ports that a detailed consideration of it is 
 necessary. It affects British contracts of carriage in two ways : 
 first, because its provisions are very commonly incorporated ex- 
 pressly; secondly, because the Courts of the United States apply 
 those provisions, without any express incorporation, not only where 
 the cairyiag ship is American, but also where it is of British or 
 other nationality. Even when the contract has been validly made, 
 outside the United States, the American Courts will not, it seems, 
 give effect to exceptions in it which are contrary to the Act, if the 
 cargo is to be delivered at a port of the United States {g). 
 
 The Act, entitled " An Act relating to navigation of vessels, bills 
 of lading, and to certain obligations, duties, and rights in connection 
 with the carriage of property," enacts as follows : — 
 
 1 . 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 agree- 
 ment wherehy 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 aU lawful 
 merchandise or property committed to its or their charge. Any and 
 aU words or clauses of .such import inserted in bills of lading or shipping 
 receipts shall be null and void and of no effect. 
 
 2. That it shall not be lawful for any vessel transporting merchan- 
 dise 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 said vessel to 
 exercise due diHgence (to) properly equip, man, provision, and outfit 
 said vessel, and to make said vessel seaworthy and capable of perform- 
 ing her intended voyage, or whereby the obligations of the master, 
 agents or servants to carefully handle and stow her cargo and to care 
 
 922, effect was given. But in The {g) The Silvia, 68 Fed. Rep. 230; 
 Brantford City, 29 Fed. Rep. at p. 396 ; The Kensington, 88 Fed. Rep. 331 ; 94 
 The Iowa, 50 Fed. Rep. 561 (1892); Fed. Rep. 885; The Frey, 92 Fed. Rep, 
 Botany Worsted Mills ■.. Knott, 76 gg^^ Although the contract may ex- 
 Fed. Rep. 682 ; 82 Fed. Rep. 471, effect ■, ,. ^ >. t ^i, i 
 
 ♦ „ ■. T j.1. 1 i i- J pressly stipulate for some other law, 
 
 was refused. In the last-mentioned i^ j j^ > 
 
 case the contract was made abroad ; in Botany Worsted Mills v. Knott, 76 Fed. 
 the others it was made in the U. S. Rep. 582 ; 82 Fed. Rep. 471. 
 
124 THE CONTRACT. 
 
 Sect. 103a. for and properly deliver same, shall in any wise lie 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 aU respects seaworthy 
 and properly manned, equipped and supplied, neither the vessel, her 
 owner or owners, agent, or charterers shall become or be held respon- 
 sible for damage or loss resulting from faults or errors in navigation 
 or in the management of said vessel ; nor shall the vessel, her owner 
 or owners, charterers, agent or master be held liable for losses arising 
 from dangers of the sea or other navigable waters, acts of God, or 
 public enemies, or the inherent defect, quality, or vice of the thing 
 carried, or from insufficiency of package, or seizure under legal process, 
 or from 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, masters 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 docu- 
 ment stating, among other things, the marks necessary for identifi,ca- 
 tion, number of packages, or quantity, stating whether it be carrier's 
 or shipper's weight, and apparent order and condition of such mer- 
 chandise or property delivered to and received by the owner, master, 
 or agent of the vessel for transportation, and such document shall 
 be primd 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 biU. 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 trans- 
 portation of live animals. 
 
 8. That this Act shall take effect from and after the first day of 
 July, eighteen hundred and ninety-three. 
 
CAEJBIAGE IN A GENERAL SHIP. 125 
 
 103b. It will be seen that this Aot expresses two main purposes : Sect. 103b. 
 Krst, that of prohibiting clauses which relieve shipowners from Prohibitions 
 liahility for consequences of " negligence, fault or failure in proper °* *^® ^°^' 
 loading, stowage, custody, care, or proper delivery" of cargo 
 (s. 1), or which diminish or avoid the obligation to be diligent to 
 make the vessel fit for the voyage (s. 2) ; Secondly, that of 
 exempting shipoimiers from liability for consequences of " faults 
 or errors in navigation or in the management" of the vessel, as 
 well as of certain other perils, in cases where they have exercised 
 "due diligence to make the said vessel in all respects seaworthy 
 and properly manned, equipped and supplied " (s. 3) . 
 
 First, as to the prohibitions. In effect they affirm the previous 
 decisions of the United States Courts. The words of ss. 1 and 2 
 are so general that they seem to cover all exceptions of negligence 
 in relation to the cargo. And so they probably prevent the ship- 
 owner from obtaining any exemptions from responsibility for 
 neglects, mistakes, or omissions of his servants, other than those 
 which are given without need of express exception, but condition- 
 ally, by sect. 3 of the Act {h). In Calderon v. Atlas Co. («), a bill of 
 lading stipulated that, " In case any part of the goods cannot be 
 found for delivery during the steamer's stay at the port of destina- 
 tion they are to be forwarded by the first opportunity, when found, 
 at the company's expense, the steamer not to be held liable for any 
 claim for delay or otherwise." The goods had been shipped at 
 New York for Sa vanilla ; on arrival at Savanilla they were over- 
 looked and were carried on. In course of being brought to 
 Savanilla, subsequently, in another vessel of the line, they were 
 lost by the foundering of that vessel. It was held that there had 
 been negligence in the failure to deliver. No proper search for the 
 goods had been made. But, apart from that, it was held that the 
 clause was avoided by the Act. " No such want of delivery can be 
 excused under the terms of either the 1st or 2nd section of the 
 Harter Aot." 
 
 103c. On the other hand, there seems to be no prohibition of Clauses ex- 
 clauses framed to relieve a shipowner of the absolute warranty of uns^eawortU^ 
 seaworthiness of the ship- on sailing, which, under United States ''®^^- 
 law as well as English law, is implied in the absence of express 
 
 (A) See, however, the limitation of the words of sect. 1, suggested in the Glenoohil, 
 (1896) P. 10. 
 Ci) 170 IT, S, 271. 
 
126 THE CONTEACT. A 
 
 Sect. 103c. agreement. On the contrary, the terms of sect. 2 of the Act seem 
 implicitly to sanction such clauses, proyided they still leave on the 
 shipowner an obligation of due diligence to make the ship fit ia 
 hull and equipment, and to have the cargo properly stowed. Thus 
 an exception of latent defects in the hull, or machinery, has heen 
 held to be valid {k). And doubtless the clause, in common use, that 
 the shipowner will not be responsible for any want of seaworthiness 
 of the ship on sailing, not resulting from want of due diligence to 
 make her seaworthy, would be treated as effectual. 
 Expressclause But it is important to note that any such limitation of the 
 implied warranty of seaworthiness must be by an express clause. 
 Neither sect. 2, nor sect. 3, of the Harter Act has the effect of 
 reducing the implied warranty to one, merely, that due diligence 
 has been, or wiU be exercised to make the ship fit. 
 
 In the Carib Prince (l), the cargo was damaged by water which 
 escaped from a ballast tank, owing to a latent defect in a rivet. 
 The shipowner was held liable for the loss, as resulting from a 
 failure to have the ship seaworthy ; for sect. 3 of the Act had not 
 modified that implied obligation. " The immunity from risks of a 
 described character, where due diligence has been used, cannot be 
 so extended as to cause the statute to say that the owner, when he 
 has been duly diligent, is not only exempted in accordance with the 
 tenor of the statute from the limited and designated risks which 
 are named therein, but is also relieved, as respects every claim of 
 every other description, from the duty of furnishing a seaworthy 
 ship" {m). 
 
 And that was held notwithstanding an exception of "latent 
 defects " ; for this was considered not to expressly exclude the 
 implied warranty of seaworthiness. 
 
 Section 3. 103d. Turning now to sect. 3 of the Act, we find that the ship- 
 
 owner is relieved from liability for faults or errors in " navigation," 
 or in " management" of the ship, if he has exercised due diligence 
 to make her fit. We have to consider (1) what is meant by this 
 condition of due diligence; and (2) what is meant by faults or 
 errors in navigation or in management. 
 
 {k) The Prussia, 92 Fed. Eep. 838; shipowner is not relieved when there is 
 
 93 Fed. Eep. 837. And see The Carib an express warranty of seaworthiness; 
 
 Prince, 170 TJ. S. 655, p. 660. The Georg Dumois, 88 Fed. Eep. 537 : 
 
 (0 170 XJ. S. 665. Hine ». New York and Bermudez Co., 
 
 (m) 170 U. S. p. 661. A fortiori the 68 Fed. Eep. 920 ; 73 Fed. Eep. 352. 
 
CARRIAGE IN A GENERAL SHIP, 127 
 
 " Due diligence " seems to be equivalent to reasonable diligence, Sect. lOSd. 
 having regard to the circumstances known, or fairly to he expected, "Due dili- 
 and to the nature of the voyage, and the cargo to be carried. It 
 ■will suffice to satisfy the condition if such diligence has been 
 exercised down to the sailing from the loading port {n). But the 
 fitness of the ship at that time must be considered with reference 
 to the cargo (o), and to the intended course of the voyage. 
 
 In Botany Worsted Mills v. Knott {p), shipments of wool and 
 sugar were so stowed that, on sailing, the drainage from the sugar 
 did not reach the wool. But, on calling at an intermediate port, 
 cargo was discharged from the forward part of the ship, as in- 
 tended, with the result that owing to the alteration of trim the 
 draiaage flowed to the wool, and damaged it. The shipowner 
 was held liable. The damage was by improper stowage, and con- 
 sequent imfitness, having regard to the intended course of the 
 voyage. 
 
 It is not enough to satisfy the condition that the shipowner has 
 been personally dUigent, as by employing competent men to do the 
 work. The condition requires that diligence to make her fit shall, 
 in fact, have been exercised, by the shipowner himself, or by those 
 whom he employs for the purpose {q). The shipowner " is respon- 
 sible for any shortcomings of his agents or subordinates in making 
 the steamer seaworthy at commencement of the voyage for the 
 transportation of the particular cargo " (r). 
 
 Oases occur in which the ship sails in such a condition as to be fit 
 to start, but not fit to continue through the voyage unless something 
 is done, such as the closing and fastening of a port, which can and 
 would ordinarily be done during the voyage. In such cases the 
 ship is not considered to be unseaworthy at starting (s) ; and an 
 omission to do the thing required for safety, at the proper time, is 
 treated as a fault in "navigation or management " (t) . Those words 
 "include, at the least, the control during the voyage of everything 
 
 («) See The Guadaloupe, 92 Fed. Rep. 919 ; 79 Fed. Rep. 998 ; The OoHma, 82 
 
 670. Fed. Rep. 665. 
 
 (o) See the Alvena, 74 Fed. Rep. 252; (r) The Frey, 92 Fed. Rep. 667, at 
 
 79 Fed. Rep. 973. p. 669. 
 
 (j)) 76 Fed. Rep. 582 ; 82 Fed. Rep. (s) Steel v. State Line, 3 A. 0. 72 ; 
 
 471. Hedley v. Pinkney, (1894) A. 0. 222; 
 
 (?) DobeU V. Rossmore, (1896) 2 Q. B. The Silvia, 171 U. S. 462. Supra, s. 18. 
 
 408 ; The Flamborough, 69 Fed. Rep. {t] The Silvia, 171 U. S. 462 ; The 
 
 470 ; The Mary L. Peters, 68 Fed. Rep. British King-, 89 Fed, Rep. 872. 
 
mediate port. 
 
 128 THE CONTRACT. 
 
 Sect. 103d. with whioli the vessel is equipped for the purpose of protecting her 
 and her cargo against the inroad of the seas " (m). 
 
 ■; Nayiga- I03e. Many cases have raised the question as to the meaning of 
 
 "manage- "management." And it has been repeatedly held that the word 
 
 ™^'^*' does not include acts of preparing the ship for the voyage. Thus 
 
 omissions in the ship's equipment (x), negligence or mistake in the 
 
 stowage (y), or so loading her that she wiU get out of safe trim on 
 
 the voyage (z) are not faults in " management." 
 
 Even if such defaults could be described as faults or errors in 
 management they would, if they occurred at the commencement of 
 the voyage, negative the condition of due diligence in making the 
 ship fit, and so would exclude the exemption given by sect. 3. 
 Acts at inter- "Where, however, the question is as to acts done at an intermediate 
 port, a wider effect may probably be given to the word " manage- 
 ment." In The Gruadaloupe (a), the ship was damaged in bad 
 weather and put into a port for repairs. She was surveyed, and 
 such repairs were done as were considered necessary. The cargo 
 was not removed for the purpose of the examination. In the 
 further course of the voyage the cargo was damaged owing to the 
 bad condition of some of the beams ; and that had not been dis- 
 covered in consequence of the non-removal of the cargo. It was 
 held that, if an error had been committed, it was an error of 
 judgment on the part of the master ; and that it pertained " to the 
 management of the ship ; since the question arose after the voyage 
 had commenced, and at a port of distress, far from the home port 
 and away from any supervision by the owners, and was wholly 
 subject to the master's determination." 
 
 Where the act negligently done, or omitted, was one which was or 
 ought to have been done during the course of the voyage, and had 
 reference to the safety of the ship or cargo, it has generally been a 
 fault in navigation or management. Thus, want of proper attention 
 to the pumps (6) ; negligence in clearing the ship's decks of water (bb) ; 
 or in ascertaining the condition of tanks before filling them (c) ; 
 
 (m) Per Gray, J., 171 U. S. p. 466. 76 Fed. Eep. 682 ; 82 Fed. Eep. 471. 
 
 {x) The Niagara, 77 Fed. Eep. 329 ; («) 92 Fed. Eep. 670. 
 
 84 Fed. Eep. 902. (4) The British King, 89 Fed. Eep. 
 
 («/) The WhitUeburn, 89 Fed. Eep. 872 ; The Sandfield, 79 Fed. Eep. 371 ; 
 
 526 ; The Frey, 92 Fed. Eep. 667. Of. 92 Fed. Eep. 663. 
 The Ferro, (1893) P. 38. (JJ) The Eodney, (1900) P. 112. 
 
 (a) Botany Worsted Mills v. Knott, [a) The Grleuochil, (1896) P. 10. 
 
CAEEIAGE IN A GENERAL SHIP. 129 
 
 the omission to close a valve in a pipe througli which haUast-water Sect. 103e. 
 was being emptied, so that it got into the cargo (d) ; the improper 
 use of a donkey boiler, so as to cause a fire (e) ; have aU been treated 
 as faults in " management." While the improper selection of an 
 anchorage (/), and the neglect to properly heed a light upon a 
 reef (g), were faults in "navigation," within sect. 3 of the Act. 
 
 The operation of sect. 3 is not confined to matters which arise 
 during the voyage at sea. In The Grlenochil (h), the damage 
 occurred to the cargo in filling the ballast tanks during the 
 discharge of the cargo at its destination. It was held to be 
 covered by the section. " Exemptions extend from the time the 
 cargo was taken on board to the discharge " (M). 
 
 103f. This third section applies only as between freighter and Sect. 3 applies 
 shipowner. It does not, for example, relieve the shipowner from between 
 responsibility for negligent navigation, causing damage to other freighter and 
 ships («). Nor, in cases of collision where both ships are to 
 blame, has it the effect of increasing the liability of the non- 
 carrying ship. So that where ships A. and B. were in collision, 
 for which they were both to blame, and A. was sunk with her cargo, 
 the Act did not interfere with the ordinary rule under which B. 
 (having paid the value of A.^s cargo) could set off one half the 
 amount so paid against his liability for half the value of A.'s 
 ship (y). 
 
 It has also been held that the Act does not apply to passengers 
 and their baggage (k) . 
 
 Nor does sect. 3 affect the obligation of the shipowner to eon- Does not 
 tribute in general average to sacrifices of cargo (l). And, on the owner to^^' 
 other hand, it does not operate to enable the shipowner to claim claim in 
 
 .... 1 . 11 -o 1 general 
 
 contributions m general average, m cases where the sacrifice has average. 
 been necessitated by the negligent navigation of his servants (m). 
 It has, however, been held in the District Court of New York that 
 where, in such a case, there have been sacrifices of both ship and 
 
 {d) The Mexican Prince, 82 Fed. Hep. at p. 19. 
 
 484; 91 Fed. Rep. 1003. (i) The Delaware, 161 U. S. 459. 
 
 (e) The Strathdon, 89 Fed. Rep. 374. (/) The Chattahoochee, 173 U. S. 640. 
 
 (/) The Etona, 64 Fed. Rep. 880; (/c) TheKensington, SSFed.Rep. 331; 
 
 71 Fed. Rep. 895. 94 Fed. Rep. 885. 
 
 y) The E. A. Shores, 73 Fed. Rep. (0 Of. The AUiauoa, 64 Fed. Rep. 
 
 324. 871. 
 
 (A) (1896) P. 10. {m) The Irrawaddy, 171 U. S. 187. 
 
 (hh) Per Gorell Barnes, J., (1896) P. Infra, s. 373c. 
 
 0. — C. K 
 
130 
 
 THE CONTRACT. 
 
 Sect. 103f. cargo, the owner of cargo can only bring an " action for general 
 average adjustment" of the sacrifice of cargo on the terms of 
 allowing the sacrifice of ship to be brought into the adjust- 
 ment (n). 
 
 Sect. 3, other 
 exceptions. 
 
 Literty to 
 deviate. 
 
 " Ship 
 damage." 
 
 103g. The third section of the Act further relieves the ship- 
 owner, where the " due diligence " condition is satisfied, from 
 liability for " losses arising from dangers of the seas or other navi- 
 gable waters, acts of Grod, 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 from 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 i-endering such service." 
 
 Presumably these provisions will be read as similar excep- 
 tions in bills of lading have been read. The shipowner will not 
 be allowed to rely upon them where his own negligence, or the 
 negligence of his servants, has brought the excepted cause of loss 
 into operation. Unless, indeed, that negligence is covered by the 
 earlier exemption in the section, of losses " from faults or errors in 
 navigation or in the management " of the vessel. 
 
 The liberty to deviate to save life or property given by this 
 section has been held not to extend beyond the necessity of the 
 particular case. A steamer carrying cargo from San Francisco to 
 Coos Bay found another steamer on the rogks, and having towed 
 her off took her into a harbour, where she was pumped out, and 
 lay safe, but in a position which might become dangerous. Tugs 
 were there which could have towed her into San Francisco ; but 
 the salving steamer herself took her to that port. It was held that 
 that was an unjustifiable deviation (o). 
 
 104. In East India Co. v. Tod (p), the shipowners were not to be 
 liable " in respect of goods damaged on board the ship, either in 
 her outward or homeward-bound voyage, but such as shall by the 
 condition and appearance of the package thereof, or by some other 
 
 («) The Strathdon, 94 Fed. Rep. 206, 
 per Thomas, J. The view taken seems 
 to have been that the right of the cargo- 
 owner is to recover a balance of general 
 average on adjustment. But queers. 
 His right is to have coutrihutions to his 
 loss, not to have an "adjustment." 
 
 The adjustment is only a convenient 
 statement, and setting off, of the cross- 
 claims. 
 
 (o) lie Meyer, The Emily, 74 Fed. 
 Rep. 881. 
 
 (p) 1 Bro-wn's P. C. 405. 
 
CARRIAGE IN A GENERAL SHIP. 131 
 
 reasonable proof, appear to he ship damage." It was held, that Sect. 104. 
 sMp damage meant such as might happen hy insufficiency of the 
 ship, or hy the negligence of those in charge of her. 
 
 An exception of " vermin" has heen held to cover damage hy " Vermin." 
 rats eating the cargo, where reasonable care has been taken to keep 
 the ship free from rats (q). 
 
 105. Sometimes the bill of lading excludes responsibility of the "Capable of 
 shipowner for any insurable damage. A clause of this kind, viz., by insur- 
 " The shipowner is not to be liable for any damage to any goods *"''®" 
 which is capable of being covered by insurance," was held not to 
 cover a loss of the goods by a theft committed while they were 
 on board, either on the voyage or after arrival (r). Lush, J., 
 said (s), "I do not agree that 'damage' is limited, as Mr. Cohen "Damage." 
 contended, to partial damage or injury, as distinguished from a 
 total destruction of the thing ; if goods were so much damaged 
 as to be totally destroyed, that would be damage within the 
 clause. But I think that it must be confined to cases where 
 the goods receive damage from some peril which may be insured 
 against, and that it does not extend to the case of a loss which is 
 occasioned not by any damage or injury, but by the total bodily 
 abstraction of the thing " (t). 
 
 Such a clause will not generally relieve the shipowner from 
 liability for consequences of unseaworthiness of the ship, or of 
 negligence of the crew (u). 
 
 Nor does such a clause -protect the shipowner from liability to 
 contribute to a general average sacrifice of the cargo (x). For 
 " the office of the bill of lading is to provide for the rights and 
 liabilities of the parties in reference to the contract to carry, and is 
 not concerned with liabilities to contribution to general average ; 
 
 (j) The Timor, 67 Fed. Rep. 366, case was, however, decided in favour of 
 (1895). Cf. Stevens v. Nav. Gen. the shipowner on another ground. 
 Italiana, 39 Ted. Rep. 562 (1889). («) Supra, sects. 77, 79. 
 
 , , _ , _ . , J /I J. («) Crooks V. AUen, 5 Q. B. D. 38 ; 
 
 (r) Taylor v. Liverpool and Great „ , . .^ „ , -.t .i ci , • ,~, 
 
 tTT i oi T • ^ T r. n /I -r> Schmidt V. Royal Mail Steamship Co., 
 
 Western Steamship Co., L.R., 9 Q. B. ,, ,- t l-, „.„ a , , 
 
 , r ' 45 L. J., Ad. 646. So also a clause 
 
 giving the shipowner the benefit of any 
 
 (s) L. R., 9 Q. B. at p. 550. insurance of the goods did not relieve 
 
 (f) In Moore ». Harris, 45 L. J., P. C. him from liability to contribute in 
 
 56, a similar clause was not relied upon general average, though the insurers 
 
 in an action for damage to tea by fumes had paid the loss ; The Roanoke, 59 
 
 from disinfectants used on board. The Fed. Rep. 161. 
 
 k2 
 
132 THE CONTEACT. 
 
 Sect. 103. and unless the contrary appears the words used must be so 
 construed " (y). 
 
 Where carriers had quoted rates which were not to cover any 
 " insurance risk," hut were " simply for freight," it was held that 
 this reservation did not relieve them from the ordinary liability of 
 carriers (z). ' And an express agreement by the carrier to insure for 
 the shipper does not relieve the carrier from liability for risks 
 covered by an insurance so effected (a). 
 
 ^^*5™t*?^® 106, In some cases the bill of lading limits the time within 
 made beiore ° 
 
 remoTal. which claims under it may be made. For example, in Moore v. 
 Harris (b), the stipulation was, " no damage that can be insured 
 against wiU be paid for, nor will any claim whatever be admitted 
 unless made before the goods are removed." 
 
 The goods were " to be delivered from the ship's deck, where the 
 ship's responsibility shall cease, at the Port of Montreal .... 
 unto the Grand Trunk Eail. Co., and by them to be forwarded 
 thence per railway to the station nearest to Toronto, and at the 
 aforesaid station delivered to, &c." 
 
 On the question whether the removal referred to in the exception 
 related to that at Montreal, or at Toronto, the Court thought the 
 latter the more consistent with the rest of the bill of lading. 
 
 But the main question was whether the exception related to all 
 damage, or only to damage that was discoverable without unpacking 
 the tea. The Court considered that it was not confined to apparent 
 damage. " If any limitation of the condition could be implied, it 
 could not reasonably go further than to exclude such damage only 
 as could not on an examination of the packages, conducted with 
 proper care and skill at the place of removal, have been discovered, 
 and their lordships think it appears upon the evidence that if such 
 an examination had taken place, either at the shipping sheds at 
 Montreal or the railway station at Toronto, the damage complained 
 of might have been discovered" (c). 
 
 Througli bills 107. It is now a frequent practice in trades in which goods have 
 
 ^' to make a transit which is broken into several parts, to use 
 
 "through bills of lading." The transit is generally, as in the 
 
 (y) Per Lush, J., 6 Q. B. D. at p. 40, («) Hill v. Soott, (1895) 2 Q. B. 371, 
 
 Of. Burton v. English, 10 Q. B. D. 426; 713. 
 
 12 Q. B. D. 218. (}) 45 L. J., P. 0. 65. 
 
 («) Sutton V. Cioeri, 15 A. C. 144. {e) 46 L. J., P. C. p. 61. 
 
CARRIAGE IN A GENERAL SHIP. 138 
 
 cotton trade with the United States, partly by land and partly by Sect. J07, 
 sea ; or it may be by a series of ships, 'wholly by sea. The land 
 journey may have to be performed. over several different railways, 
 and more than one vessel may be employed in the sea transit (d) . 
 
 When a contract for a through journey is made with a carrier or 
 contractor, he is answerable for its complete performance, although 
 it may be intended that some part of the carrying shall be done by 
 others (e), unless the contract expressly limits his liability to his 
 own part of the journey (/). 
 
 Apart, then, from such a limitation, the first carrier with whom 
 the contract is made may be liable for a breach of it after the 
 goods have left his hands. But the carrier in whose hands they 
 were when the breach was committed is also generally liable, if 
 the through contract was made for his benefit, and with his 
 authority (g) ; and, on the other band, he is entitled to the benefit 
 of the exceptions of liability which the contract may contain (h) . 
 
 In Gill V. Manchester, Sheffield and Lincolnshire Rail Co. («), 
 a cow had been booked by the Grreat Northern Rail. Co. from 
 Doncaster through to Sheffield, partly over the- defendant's line ; 
 the action was brought for damage to the cow, due to negligence 
 in the delivery of her from the defendant's railway at Sheffield. 
 
 ((2) See, for example, G-reeyea v. West the desired result without an amend- 
 
 India, &o. Co., 22 L. T. 615. The ment of the Bills of Lading Act. See a 
 
 relationship hetween these through bills discussion of the subject, with sugges- 
 
 . of lading, and biUs of lading for goods tions for the amendment of the Act, in a 
 
 "shipped" for a "voyage," has not paper, by the present writer, " On some 
 
 been settled. It is doubtful whether a defeotsintheBiUsof LadingAot, 1855," 
 
 through bUl of lading is within the BiUs Law Quarterly Review, vol. 6, p. 289. 
 
 of Lading Act, 1855. Also, there are (^j Muschamp v. Lancaster and 
 
 several practical difficulties in oonneo- Preston Rail. Co., 8 M. & W. 421 ; 
 
 tion with the use of through bills of Bristol and Exeter Rail. Co. v. Collins, 
 
 lading ; owing mainly to the fact that 29 L. J., Ex. 51 ; Gt. 'Westem Rail Co. 
 
 the ship in which the ocean transit is ,„. Blake, 31 L. J., Ex. 346 ; Thomas v. 
 
 made is not, generally, ascertained when Ehymney Rail. Co., L. R., 6 Q. B. 266. 
 
 the thrpugh biU of lading is given. ^^^ ^unz v. S. B. Rail. Co., L. R., 4 
 
 The result is that the consignee is often q_ ^ ggg. ^^^^ ^ jj- jj^jj ^^^ ^ ^ _ 
 
 not able to proceed against the ship ; in O B 1 
 
 while the raUway company, which " ^^"^^^^^ ^_ ^ ^ ^^ ^ ^^ 
 
 ongmally makes the contract, uBuaUy ^^^ ^ ^ ^^^ ^^ ^_ ^ ^ ^ ^' 
 
 undertakes no responsibmty tor the _ „^„ „« ■« 
 
 , „, ,, , ^ , „, ., Ran. Co., L. R., 8 Q. B. 186. But of. 
 
 goods after they have left its posses- „ . , ' , „ ' „ ., „ ~ „. 
 
 sion. An attempt has recently been 
 
 Bristol and Exeter Rail. Co. i/. Collins, 
 
 made in the cotton trade to establish a ' '' 
 
 system of through bills of lading with W ^aU v. N. E. RaU. Co., L. R., 10 
 
 Bubordinate ocean biUs of lading ; but it Q. B. 437. 
 
 is questionable whether this can produce (») L. R., 8 Q. B. 186, 
 
134 THE CONTEACT. 
 
 Sect. 107. It appeared that there was an agreement between the companies 
 for interchange of- traffic and through booking, and for an appor- 
 tionment of the through fares. Held, that either company might 
 be sued for the damage. Mellor, J., said, " In our opinion the 
 Great Northern Eail. Co. became, by virtue of their agreement 
 with the defendants, the agents of the latter, to make the contract 
 for the carriage of the cow with the plaintiff." And, during the 
 argument, Blackburn, J., said, " We need not consider whether 
 the two companies are partners ; the traffic is carried on for the 
 joint benefit of the two, so that they are joint principals; and either 
 may be sued." 
 
 Under such circumstances, then, it seems that the carriers subse- 
 quent to the first, who made the contract, are also liable for the 
 proper performance of it throughout the journey. 
 
 In Hayes v. South Wales Rail. Co. {h), an action was brought 
 for the loss of some pigs shipped at Cork, in a steamer belonging 
 to a Mr. Redmond, for Milford ; to be sent thence by the South 
 Wales and Great Western Railway to London. The freight was 
 paid at Cork to Redmond's agents, and a freight receipt note was 
 given in the name under which he traded. 
 
 It appeared that the steamer was worked between Cork and 
 Milford in connection with the South Wales Railway, under an 
 agreement by which the through fares were to be apportioned; 
 and by which it was agreed that the traffic should be booked 
 through by Redmond, or by the company, according to the 
 direction in which it was going. Held, by the Court of Common 
 Pleas in Ireland, that the through contract was made not only on 
 behalf of the shipowner, but also for the railway company ; and 
 that both parties were liable as joint contracting parties for the 
 entire journey {I). So that the railway company were liable for a 
 loss of the pigs on the voyage to Milford, due to a default of the 
 captain of the steamer. 
 
 On the other hand, in White v. South Eastern Rail. Co. (m), it 
 was held that the defendants were not liable for the loss of some 
 fruit consigned from Paris to Charing Cross, there being no 
 evidence that the damage occurred on their line, nor that there was 
 any partnership or quasi-partnership between them and the Great 
 
 (7c) 9 Ir. C. L. E. 474. Cf. M'Court (?) See also Keys v. Belfast and Bal- 
 
 V. L. & N. "W. Rail. Co., Ir. E., 3 0. L. lymena RaU. Co., 8 Ir. C. L. K. 167. 
 107, 462. (ot) Times, March Srd, 1885. 
 
CARRIAGE IN A GENERAL SHIP. 135 
 
 Nortlieni Eail. Co. of Prance, by whom the fruit was carried on Sect. 107. 
 the first part of the journey. 
 
 Railway Companies. 
 
 108. By the Eailway and Canal Traffic Act, 1854 (ra), the Effect of 
 legislature restricted the right of railway and canal companies to Oan^Traffio 
 limit their liability for goods carried by them. The effect of •^°*> ^^®** 
 sect. 7 of that Act, as finally settled by the House of Lords in 
 Peek V. l^orth Staffordshire Eail. Co. (o), is that the liability of a 
 railway company for loss of, or injury to, " goods or things in the 
 receiving, forwarding, or delivering thereof, occasioned by the 
 neglect or default of such company or its servants," can only be 
 limited by them by such conditions as the Court or judge may 
 determine to be just and reasonable. And, further, that any con- 
 dition limiting the company's liability mu^t be embodied in a 
 special contract, in writing, between the company and the owner or 
 persons delivering the goods to the company, which must be signed 
 by such owner or person. 
 
 By sect. 31 of the Eailways Clauses Act, 1863 {p), the pro- steamers of 
 visions of that statute apply to the traffic by steam vessels of panies"^ ''°"'" 
 railway companies who are authorised by a special Act, incorpo- 
 rating Part IV. of the Eailways Clauses Act, 1863, to own or 
 use steamers for carrying on communication between any towns or 
 ports {q). And by the Eailway Eegulation Amendment Act, 
 1871 (r), where a railway company, under a contract for carrying 
 animals or goods by sea, procures them to be carried in a vessel, 
 which does not belong to the company, the company is answer- 
 able in the same manner as it would be if the steamer belonged to 
 itself («). 
 
 Thus, a railway company which carries animals or goods by sea 
 maybe in a different position from that of an ordinary shipowner; 
 both as to the kind of contract it can make, and as to the manner 
 of making the contract {t). 
 
 («) 17 & 18 Vict. 0. 31. repealed by the Railway and Canal 
 
 (o) 10 H. L. Cas. 473. Traffic Act, 1888 (61 & 62 Vict. c. 26). 
 
 (r) 34 & 35 Vict. >;. 78, s. 12. 
 (^) 26 & 27 Vict. 0. 92, s. 31. )^^ j^^^^^ ^_ ^^_ ^^ Co., 2 A. 0. 
 
 ig) The similar general enactment in 792 ; Cohen v. S. E. RaU. Co., 2 Ex. D. 
 sect. 16 of the Regulation of Railways 263. 
 Act, 1868 (31 & 32 Vict. c. 119), was if) Ibid. 
 
136 THE CONTEACT. 
 
 Sect. 109. 109. By sect. 14 of tlie Act of 1868, however, tlie need of a 
 Exceptions on written and signed contract in these cases seems to he avoided. 
 
 reig no e. rjr^^^ section is as follows : — 
 
 " Where a company, hy through hooking, contracts to carry 
 any animals, luggage, or goods from place to place, partly hy. 
 railway and partly hy sea, or partly hy canal and partly hy sea, a 
 condition exempting the company from liahility for any loss or 
 damage which may arise during the carriage of such animals, 
 luggage or goods hy sea from the act of God, the king's enemies, 
 fire, accidents from machinery, hollers and steam, and all and' 
 every other dangers and accidents of the^ seas^ rivers, and naviga- 
 tion of whatever nature and kind soever, shall, if puhlished in a 
 conspicuous manner in the oflBce where [such through hooking is 
 effected, and if printed in a legihle manner on the receipt or 
 freight note which the company gives for such animals, luggage or 
 goods, he valid as part of the contract hetween the consignor of 
 such animals, luggage or goods and the company, in the same 
 manner as if the company had -signed and delivered to the con- 
 signor a hill of lading containing such condition («). For the 
 purpose of this section the word ' company ' includes the owners, 
 lessees or managers of any canal or other inland navigation." 
 
 Decisions as 110. There have heen numerous decisions as to what conditions 
 conditions. ^ ^^^ ^^^ ^^® ^°*' j^^^ ^^^ reasonahle within the Railway and Canal 
 Traffic Act, 185-1 (»). Exemptions of liahility for the defaults and 
 neglects of the company's servants or sfgenfs, or of the servants of 
 other persons whom the company have procured to carry out their 
 contract, are not considered to he so (y). And where a condition 
 that the company shall not he responsihle for loss, or damage, or 
 delay is framed so generally that it will cover losses or delays 
 caused hy the improper acts or neglects of the company's servants, 
 it is in general held to he unreasonahle (z). 
 
 The same is true, although the condition may confine such 
 
 (m) The last part of this sentence (s) Peek v. N. Staff. Kail. Co., 10 
 
 seems to be a mistake. A signature by H. L. Cas. 474 ; Rooth v. N. E. Rail. 
 
 the consignor was the former require- Co., L. E., 2 Ex. 173 ; Ashendon v. 
 
 ment, to be got rid of : supra, s. 108. L. B. & S. C. Eail. Co., 6 Ex. D. 190 ; 
 
 , , „ -rr J -r. ., .N, . Cutler V. North London EaU. Co., 19 
 
 [x] See Hodges on Eailways, Ch. XVI. r. -d -rv ox a ^ ji aiu ., 
 
 o •' ' Q. B. D. 64. As to delay, see Alldayi'. 
 
 Get. Western EaU. Co., 34 L. J., Q. B. S. 
 
 (!/) Doolan v. Mid, Eail. Co., 2 A. C. Cf. Wise i>. (Jt. Western EaU. Co., 25 
 
 792, I^. J., Ex. 258. 
 
CARRIAGE IN A GENERAL SHIP. 137 
 
 general exception to the case of goods wMcli may be insufficiently Sect. 110. 
 or improperly packed («). 
 
 But in Lewis v. Great Western Eail. Oo. (b), it was held that a 
 condition exempting liahility generally where the goods were 
 incorrectly descrihed was reasonahle. And in the same ease a 
 condition disallowing any claims not made within «, certain time 
 after delivery was held reasonable. And where the company is 
 willing to carry the goods at a fair rate, but makes a special 
 arrangement to carry at a lower rate, on the terms of being 
 exempted from all liability for loss or damage or delay in transit, 
 that condition is not unreasonable, although it may cover acts and 
 neglects of the company's servants (c). 
 
 Sect. 7 of the Act only limits the Railway Co.'s power to make 
 contracts which exempt it from liability for the " neglect or default 
 of such company or its servants." It has been held that those Theft, 
 words do not cover thefts by servants of the company, which have 
 occurred without negligence. So that, as regards such thefts, the 
 position of railway companies is the same as before the Act; 
 they can by contract, or notice brought home to the customer, 
 exempt themselves from liability for such thefts, although the con- 
 tract or notice may be an unreasonable one (d). 
 
 111. With regard to luggage carried in a ship with a passenger. Passenger's 
 the liability of the shipowner, apart from contract, appears to be "^SS^S^- 
 that of a common carrier of goods, imless the luggage was under 
 the passenger's own control (e). 
 
 But a contract on the subject is usually made with the 
 passenger, which is generally expressed on his ticket, or the receipt 
 for his passage-money (/). 
 
 By such a contract the shipowner may relieve himself of all 
 
 («) Simons v. Gt. Western Eail. Co., (/) As to conditions on the hack of 
 
 26 L. J., 0. P. 25. the ticket, see Henderson v. Stevenson, 
 
 (b) 29 L. J., Ex. 425. L. R., 2 H. L. (Sc.) 470 ; Harris v. 
 
 (c) a. W. Eail. Co. V. McCarthy, 12 Gt. 'Weatem RaU. Co., 1 Q. B. D. 616 ; 
 A. C. 218; M. S. & L. Eail. Co. v. Parker ». S. E. Rail. Co., 2 C. P. D. 
 Brown, 8 A. C. 703; Lewis v. Gt. 416; Burke v. S. E. Eail. Co., 5 C. P. D. 
 "Western Rail. Co., 3 Q. B. D. 195; 1. As to the sufficiency of notice to the 
 Simons v. Gt. Western Rail. Co., 26 passenger, Acton v. Castle &o. Co., 1 
 L. J., C. P. 25; cf. Dickson -n. Great Com. Ca. 135; Richardson i). Rowntree, 
 Northern RaU. Co., 18 Q. B. D. 176. (1894) A. C. 217 ; The Majestic, 166 
 
 (d) Shaw V. G. W. Rail. Co., (1894) 1 U. S. 375 (1897). Reference to general 
 Q. B. 373. notices, Watkins v. RymiU, 10 Q. B. D. 
 
 (e) Stipra, s. 6. 178. 
 
138 
 
 THE CONTRACT. 
 
 "Not 
 
 accountable 
 imlesa bill of 
 lading 
 
 Sect. 111. responsibility for the safety of the luggage, including all risks of 
 loss from negligent or wrongful acts of the master or crew {g). 
 
 In Wilton v.. Eoyal Atlantic Mail Steam Navigation Co. (Ji), a 
 condition on the passage ticket was as follows : " The ship will not 
 be accountable for luggage, goods, or other description of property, 
 unless bills of* lading have been signed therefor. Each first and 
 second class adult passenger allowed to have twenty cubic feet of 
 luggage free, but no merchandise, plate, jewellery, precious stones, 
 specie, or bullion will be carried as luggage." It was held that 
 the company were not liable for luggage lost through the captain's 
 negligence, for which no bOl of lading had been asked or given, 
 whether it occupied more, or less, than twenty cubic feet. 
 
 Where, however, the contract is " for or in respect of a passage 
 as a steerage passenger in any ship, or of a passage as a cabin 
 passenger in any emigrant ship, proceeding from the British 
 Islands to any port out of Europe and not within the Medi- 
 terranean Sea," the contract ticket is to be " in a form approved 
 by the Board of Trade and published in the London Grazette " (»'). 
 The forms which have been approved are nearly identical with 
 those set out in the schedule to the Passengers Act, 1865 [k). It 
 has not been decided whether, and how far, these provisions and 
 forms control the shipowner's right to set conditions upon his 
 responsibility for luggage. 
 
 Emigiant 
 ships. 
 
 {g) P. & O. Co. V. Shand, 12 L. T. 
 808 ; Taubman v. Pacific Steam Nav. 
 Co., 26 L. T. 704; Haigh v. Eoyal Mail 
 S. P. Co., 52 L. J., Q. B. 640. 
 
 (A) 30 L. J., C. P. 369. 
 
 (i) M. S. Act, 1894, s. 320. An 
 "emigrant ship" is by sect. 268 defined 
 
 to mean a ship carrying more than 50 
 steerage passengers ; or more than one 
 steerage passenger to 33 registered tons, 
 in the case of a sailing-ship, or 20 regis- 
 tered tons in the case of a steamship. 
 
 {k) 18 & 19 Viot. u. 119. See London 
 Gazette, Dec. 14, 1894. 
 
( 139 ) 
 
 CHAPTER IV. 
 
 CONTRACTS BY CHAETER PARTY. 
 
 SEOT. 
 
 Charters -whioli are and are not con- 
 tracts of carriage — Distinction , , 112 
 
 ■With, regard to third persons 113 
 
 Illustrations of douhtfvd charters — 
 The test generally is, whose ser- 
 vants are to he in charge ? 114 
 
 Omoa, &o. Co. v. Huntley ..,..■.. 116 
 Cases in which possession passed to 
 
 charterer ...., 116 
 
 Classes of charter parties which are 
 
 contracts of carriage 117 
 
 Porm of charter party 118 
 
 Usually in writing 119 
 
 Stamp 120 
 
 Shipbroker's commission — Where 
 several brokers employed — 
 Broker's undertaking to procure 
 
 ship , 121 
 
 Clause in charter party as to broker's 
 
 commission 122 
 
 Clause as to consignment of ship — 
 Righttoproourehomewardfreight 
 
 from the port of discharge 123 
 
 Right to collect freights 124 
 
 Agent for charterer — Authority — 
 
 Ratification 125 
 
 He cannot alter charter party .... 126 
 Rights and liabilities of an undis- 
 closed principal 127 
 
 Liability of agent — Cesser clause . . 128 
 
 Warranty of authority 129 
 
 Personally bound unless the agency 
 
 appears clearly .,.,.... 130 
 
 Berth-notes 130a 
 
 Custom to make agent liable 131 
 
 SECT. 
 
 Principal cannot be sued after judg- 
 ment against agent 132 
 
 Representations in a charter party . 133 
 Must generally be made in the 
 
 document to have effect 134 
 
 When is a representation a promise? 135 
 Representations which are promises 
 must generally be true, or charterer 
 
 not bound to load 136 
 
 Existence of ship — Implied con- 
 dition 137 
 
 Statement of nationality 138 
 
 Statement that vessel is a steam- 
 ship 139 
 
 Statement as to class 140 
 
 Statement as to measurement . . , , 141 
 Express guarantees — Vessel's 
 draught — Cases of specified 
 
 cargo 141a 
 
 "Say about 1,100 tons" 142 
 
 Statement of ship's position 143 
 
 Representation: "tight, staunch, 
 &c." — ^Distinction from ordinary 
 
 warranty of seaworthiness 144 
 
 Mtness for cargo a condition pre- 
 cedent 145 
 
 In case of time charter 146 
 
 Character of shipowner's under- 
 takings 147 
 
 When does the exception clause 
 
 apply? 148 
 
 It does not affect charterer's right 
 
 to cancel for not arriving in time. 149 
 Does it relate to charterer as well 
 as owner p 150 
 
 112. We come now to cases in whicli the wliole, or substantially Charters 
 
 . Ill which are and 
 
 the whole, of the ship s services are employed by one person or set are not con- 
 
 of persons. The agreement for this is usually expressed in a oaniage— 
 
 distinction. 
 
140 THE CONTEACT. 
 
 Sect. lis. document called a charter party ; but all charter parties are not 
 contracts of carriage. Sometimes the ship itself, and the control 
 over her working and navigation, are transferred for the time 
 being to the persons who use her. In such cases the contract is 
 really one of letting the ship, and, subject to the express terms of 
 the charter party, the liabilities of the shipowner and the charterer 
 to one another are to be determined by the law which relates to the 
 hiring of chattels (a), and not by reference to the liabilities of 
 carriers and shippers. 
 
 Also, a charter party may be made for other purposes than the 
 carriage of goods; for example, for passenger service, or for 
 towage or salvage. These, also, are not such contracts as fall 
 within the scope of this book, and the rules with regard to 
 contracts of carriage may in some cases not be applicable to them. 
 
 Most commonly, however, charter parties are made for the 
 purpose of securing to the charterer the use merely of the ship on 
 a particular voyage or series of voyages. He does not desire to 
 interfere with the manner in which she is to be navigated, nor is 
 the shipowner willing to part with his control over her. The 
 charterer is content with the owner's undertaking that the voyage 
 shall be performed, and that the vessel's services shall be at his 
 disposal. The whole control and management of the ship is 
 therefore left undisturbed in the hands of the owner, who remains 
 in possession by his servants, the master and crew. In such a case 
 the shipowner acts as a carrier of the goods upon the agreed 
 terms {b). 
 
 Contracts in which the possession of the ship is handed over to 
 the charterer are very much less frequent. But they are at times 
 made, and occasionally in such doubtful shapes that it is difficult to 
 tell whether, in fact, the possession does or does not pass to him. 
 But when that does take place, so that the charterer, and not the 
 owner, is in actual control of the ship, it cannot properly be said 
 that the relation between the owner and the charterer is that of 
 carrier and freighter. And that is still true, though the owner 
 may have contracted to make and keep the ship fit for the work, 
 
 (a) As to 'wMoh, see Eotertson v. 46. Liability of hirer to owner for acts 
 
 Amazon Tug and Lighterage Co., 7 Q. of servants: Coupe Co. v. Maddiok, 
 
 B. D. 598 ; Hyman v. Nye, 6 Q. B. D. Moqn o n B 4T? 
 
 685 ; McCarthy v. Young, 30 L. J., Ex. ^ ' ^' ' "^• 
 
 227. Implied warranty of fitness of (*) As to his liability at common law, 
 
 hired tug : The Undaunted, 11 P. T>. see Chap. I. 
 
CONTEACtS BY CHAKTER PARTY. 141 
 
 aad to provide her necessary stores, and even though he may also Sect, 113. 
 have undertaken to supply and pay the crew (c). 
 
 113. This difference between charters which do, and do not, Witli regard 
 
 , to tmrd per- 
 
 pass the possession of the vessel, and the control over her, to the sona. 
 charterer, also gives rise to important differences with regard to 
 the liabilities of the shipowner and the charterer to persons who 
 are strangers to the contract. For instance, as to damage which 
 may be done by the improper navigation of the ship. Also as to 
 their respective responsibilities upon contracts made by the master 
 with third persons ; e.g., with shippers of goods, where the 
 charterer has used the ship as a general ship. These depend upon 
 the question, whose agent the master is in mating the contracts. 
 And this, as we shall see, generally depends upon whether he is, 
 under the charter party, the servant of the owner or of the 
 charterer {d). 
 
 Hence, though charter parties which are contracts of letting and 
 not of carriage do not belong to our subject, it is necessary to 
 distinguish them ; more particularly with a view to the effect of 
 sub- contracts of carriage made by the master or charterer, and to 
 questions regarding the shipowner's liens. 
 
 114. Where a ship is completely transferred to a hirer for a Illustrations 
 period of time, and the shipowner during that time has nothing charters, 
 whatever to do with the appointment of her officers or crew, or with 
 the working or management of her, the case is clearly one of letting 
 and hiring (e). 
 
 But where both owner and charterer take part in working the 
 ship, or where, while the owner actually works her, the charterer 
 has the disposal of her services, and directs what voyages she shall 
 perform and what cargoes she shall take, ambiguities are apt to 
 occur. The following cases illustrate such doubtful charters : — 
 
 In Penton v. The Dublin Steam Packet Co. (/), a steamer was 
 chartered for six months to John Dails, at the rate of 201. a week, 
 " the owners to keep the vessel in good and sufficient order for the 
 conveyance of goods, merchandise and passengers to and from 
 Newcastle and Q-oole, or any other coasting station which the said 
 J. D. may from time to time employ the vessel in. The said J. D. 
 
 (c) Of. Newterry v. Colvin, 8 B. & C. (e) See Meiklereid v. West, 1 Q. B. D. 
 166 ; 7 Bing. 190 ; 1 01. & F. 283. 428 ; Reeve v. Davis, 1 A. & B. 312. 
 
 (d) See this discussed vnfra. Chap. V. (/) 8 A. & E. 835. 
 
143 THE CONTRACT. 
 
 Sect. 114. to pay all distursements, including Harbour dues, pilotages, seamen's 
 and captain's wages and coals and oil, tallow, &c. for the engines, 
 and to insure the vessel for 3,000^., the policy to be deposited with 
 the company." The appointment and power of dismissal of the 
 officers and crew were in fact left with the owners. 
 
 The question was whether the owners were liable for a collision 
 caused by improper navigation of the vessel. And it was held 
 that they were ; for the charter left the possession and care of the 
 vessel in their hands, and the crew were their servants {g). 
 
 In Trinity House v. Clark {h) the vessel was chartered to the 
 Grovermnent for transport purposes at the rate of 20s. a ton of the 
 register tonnage for each calendar month during the service. The 
 owners undertook that the ship should be in good condition and 
 properly provided and manned ; and that the master should receive 
 on board such soldiers, &c. as directed, " and proceed with them to 
 such places in the European seas as he should be directed, under 
 such convoy as the commissioners or officers iu chief whose com- 
 mand he should be under should direct, and land and deliver the 
 same, and so from time to time during his continuance ia the 
 service." The appointment of the master and crew was left with 
 the owners. Upon a question arising as to the liability of the 
 owners of the ship to pay light dues, it was held that the effect of 
 the charter party was to transfer possession of her to the Crown 
 during the term of her service (»). 
 
 (y) Of. The Great Eastern, L. E., 2 interfere with the full and free nse of 
 
 A. & E. 88 ; Dalzell i>. Tjrei, 28 L. J., the ship, which they have let to hire for 
 
 Q. B. 52 ; Dean v. Hogg, 10 Bing. 345 ; a term, but as subsidiary and subservient 
 
 Steel j;. Lester, 3 C. P. D. 121. to such use. It is not only consistent 
 
 (A) 4 M. & S. 288. with the entire ownership and posses- 
 
 (i) Lord EUenborough, giving judg- sion of the vessel on the part of the 
 
 ment,said: — "It is evident that the ser- Crown during the period for which it is 
 
 vice contracted for is of the highest im- let, but it is a farther means provided to 
 
 portance to the country, and that its most enable the Crown, fully and beneficially 
 
 valuable interests may depend upon the to enjoy the sajue, by letting at the 
 
 immediate execution of such service as same time out to the Crown the services 
 
 this charter party authorizes the Crown biewise of those by whom the vessel 
 
 to require, and the proprietors of the might be best conducted under the 
 
 ship agree to perform. Whatever con- direction of the Crown, in the proseou- 
 
 struction of the contract enables the tion of the object for which the Crown 
 
 Crown to enforce a prompt obedience to hired it. The vessel, therefore, is not 
 
 its terms, must be most agreeable to its only hired, but along with it the services 
 
 spirit and intent. * * « * g^^ q£ g^ certain number of persons paid 
 
 The possession, such as it is, of the by the proprietors, and these services 
 
 master and crew, is not retained by the are necessary to the use of the vessel, 
 
 proprietors of the ship, to restrain or which the proprietors have expressly 
 
CONTEACTS BY CHARTER PARTY. 143 
 
 Lord EUenborougli laid stress in his judgment upon the otjeots Sect. 114. 
 
 wMcli the charter party was to serve. Also he relied upon the 
 
 expressions used in it, hj which the vessel was " granted, and to 
 
 hire and freight let." These, he said, were proper words of lease, 
 
 and would of themselves pass the possession. But the use of such 
 
 words has not been regarded as at all conclusive (/). On each 
 
 charter party the question is, who, on the whole instrument taken 
 
 together, was intended to have the possession of and to work the 
 
 vessel ? Whose servants were those in charge of her to be ? The test 
 TTTi 11- » 1 n 1 J • generally is, 
 
 Where they are the shipowner s, then generally he acts as a earner whose ser- 
 
 of goods for the charterer ; while if they are to be servants of the ^g^ charge ? 
 
 charterer, the shipowner generally ceases to be a carrier, and the 
 
 contract is really one of hiruig (A). 
 
 115. In the Omoa and Cleland Coal and Iron Co. v. Huntley (?) Omoa, &c. 
 a steamer was " let for the sole use of the charterers, and for their Hiintley. 
 benefit, for the space of six months," with option to take her 
 longer ; and the services to be rendered were thus described : " The 
 said vessel or steamer being tight, staunch and strong, and in every 
 way fitted for the voyage or service, and so maintained by owners, 
 vrith a full complement of officers, seamen, engineers and firemen, 
 adapted to a steamer of her class, shall be placed under the direc- 
 tion of the charterer, merchant, or his assigns, to be by Tn'm or 
 them employed for the conveyance of lawful merchandise ^ pas- 
 sengers as follows : between ports in the United Kingdom and the 
 continent, Baltic and Black Sea being excluded between 1st 
 September and 1st March, as may be ordered by the charterers, the 
 cargoes to be laden or discharged in any dock or other safe place 
 the charterers may order." 
 
 warranted to the Crown. It is the same Braddiok, 2 B. & P., N. B. 182; 
 
 thing as the hire of a waggon and team HodgMnson v. Femie, 26 L. J. , 
 
 for a certain term, the proprietor of the C. P. 217 ; tTnited States v. Shea, 152 
 
 waggon stipulating that the waggon U. S. 178. 
 
 shonld be driven, and the horses taken ^^.j g^^ j^^^y^ ^_ Lewis, 2 B. & B. 
 
 care of, by his own waggoner and boy, . , „ 
 
 whom he has to feed. In such a case it ,,. _ „ „ 
 
 could hardly be made a question that . W BaumwoU, &c. v. IVmess, (1893) 
 
 the waggon and team were in the A- C 8 ; Manchester Trust ». Fumess, 
 
 possession of the hirer during the bar- (IS^^) 2 Q. B. 282, 539. See a common 
 
 vest, or whatever the term might be for *°™ °* *""^ °'^^'*«^' ^PP" ^- ^ ^^^° '"^ 
 
 which they were hired. This is, indeed, ^ ^°™ ^'^^ *^« charterer the right to 
 
 idem per idem, but as the instance is ^ppomt^the oaptam, The Beeswing, 53 
 
 more familiar, it serves to put the point 
 
 in a clearer Ught." Cf. Fletcher v. (?) 2 C. P. D. 464. 
 
144 THE CONTRACT. 
 
 Sect. 115. fjijjQ charterers were to have the whole reach of the vessel, 
 reserving space to the owner for the crew, &c. The captain was to 
 use all dispatch in prosecuting the voyages, and the crew were to 
 " render all customary assistance in loading and discharging." 
 Also the captain was to sign hUls of lading as presented, without 
 prejudice, to the charter party, and to follow the chai-terers' instruc- 
 tions " as regards loading, discharging and departui'e." 
 
 Coals, port charges, pilotage and extra lahom-age, were to be 
 paid for by the charterers ; but the owner was to pay the crew and 
 find all ship's stores and other necessaries. The freight for the 
 hire of the steamer was to be " 410^. per month, payable in advance 
 monthly, until the vessel is again returned by the charterers," 
 after notice. " The vessel to be delivered up on the termination of 
 this charter party on Clyde or Forth, All derelicts and salvages 
 for owner's and charterers' equal benefit." The captain was also 
 to furnish the charterers with a daily copy of the log, if required. 
 
 In the course of a voyage under this contract the vessel was 
 wrecked, owing to negligence of the master and crew ; and the 
 question arose, whether the owner was liable to the chai'terers for 
 that negligence. 
 
 It was held that he was ; for by the charter pai-ty it was intended 
 that, so far as concerned the navigation of the vessel, he was to 
 retain her under his control for the purpose of carrying out his 
 contract. The charterers might direct where the vessel was to go, 
 and with what she was to be laden, but the owner remained in all 
 respects accountable for the manner in which she might be navi- 
 gated (m). 
 
 Cases in 116. On the other hand, in the following cases, the ship passed 
 
 session passed to the possession of the charterers. In Newberry v. Colvin (w), a 
 too arterer, ygggg]^ ^^^ chartered to one Betham, who was by the charter 
 appointed to the command, for a voyage to Calcutta and hack to 
 London. The owner undertook that the ship was tight, &c., and 
 properly victualled, provided and manned ; that the number of 
 the crew should be kept up to thirty-two at his expense ; and that 
 he would keep her properly victualled and provided during the 
 voyage. Betham undertook to navigate the ship to the utmost of 
 his skill and ability, and to take the ship into his service for twelve 
 
 (ot) Cf. Wagstafl v. Anderson, 4 {«) 8 B. & 0. 166 ; 7 Bing. 190 ; 1 CI. 
 
 C. P. D. 283; 5 0. P. D. 171. & P. 283. 
 
CONTRACTS BY CHAETEE PAETY. 145 
 
 montlis certain, or so mucli longer as the voyage should require, Sect. lie. 
 and to pay for the use or hire of her at the rate of 25s. per ton 
 per month. Betham was to take such cargo as he might think 
 proper, reserving certain space for the owners, and the freights on 
 the cargo were to he for his benefit ; subject, however, as to the 
 homewai-d freights, to an arrangement by which the owner was to 
 be secured payment from them of the chartered freight. He was 
 also to be at liberty to employ the ship in the East Indies upon in- 
 termediate voyages, for a certain limited period, at the same time- 
 freight. Further, it was provided that an agent was to be put on 
 board by the owner, who was to have the sole management of the 
 ship's stores and provisions, and the issuing of them, and to have 
 the sole ordering and purchasing of any needed supplies. And it 
 was provided that in case Betham should proceed with the ship to 
 any port or place other than Madeira, Madras and Calcutta, with- 
 out the leave of the agent, or if he should be guilty of any breach 
 of the contract, he should be and become divested of any further 
 command of or in the ship, and it should thereupon be lawful for 
 the agent to appoint another commander in his place. Also, that 
 in the event of certain defaults by Betham, the agent was to be 
 allowed to load a homeward cargo on the owner's account, without 
 prejudice to the charter party. 
 
 Upon this charter party a question arose as to the liability of 
 the shipowner to merchants who had shipped goods from Calcutta 
 to London under a bill of lading given by Betham. The shippers 
 having had notice of the charter party, and received a copy of it, 
 from the owner's agent on board the ship. Lord Tenterden deli- 
 vered the considered judgment of the Court of King's Bench in 
 iavour of the shippers. " Taking the whole together, it appears 
 to be in substance nothing more than the appointment of a master, 
 upon an undertaking by him that the ship shall earn a certain 
 sum ; and all beyond that sum was to be for his own benefit, but 
 all loss was to be made good by him " (o) . 
 
 This was reversed by the Exchequer Chamber, on the ground 
 that in putting up the ship as a general ship, and signing bUls of 
 lading, the captain was not acting as servant or agent of the 
 owner, but as himself the temporary owner. And this view was 
 confirmed by the House of Lords ; when Lord Tenterden appears 
 to have changed his opinion. 
 
 (o) 8 B. & C. at p. 183. 
 C. C. L 
 
146 THE CONTKACT. 
 
 Sect. 116. In Beloher v. Capper [p), a vessel had been chartered for six 
 months certain, during which the charterer was to " possess the 
 entire and exclusive use and disposal of the whole reach and 
 burthen of the vessel, with the exception of the space occupied with 
 the cabin together with room for the usual accommodation of the 
 crew and for the stowage of the ship's stores and provisions." The 
 master was to take on board and stow goods as and as often as 
 required, and proceed upon the voyages directed by the charterer, 
 and deliver the goods agreeably to bills of lading, subject to certain 
 exceptions. The owners were to keep the vessel tight, &o., and 
 properly manned and provided. And the charterer was to pay 
 22s. per ton per month of the employment. Further, it was 
 provided that the charterer should have the privilege of puttiag in 
 a master of his own appointment, he finding the cabin with all 
 stores, and paying his wages, the owners allowing the charterer 
 whatever rate of wages they paid their own masters. And it was 
 agreed that, as the master was to be appointed by the charterer to 
 superintend his interest, the owners were not to be responsible for 
 his acts and conduct should he deviate from the charter party ; but 
 the charterer held himself responsible to the owners for the master's 
 honest and correct conduct, and strict integrity, whilst he should 
 have the navigation, of their vessel. 
 
 Under this contract a question arose as to whether the shipowner 
 had a lien upon goods on board for the hire of the vessel. It was 
 held that he was not in possession of the goods, and had no Hen. 
 Tindal, 0. J., in dehvering the judgment, said : — " In each case 
 the whole contract must be taken together, and due effect given to 
 the several clauses that counteract or qualify each other ; and thus 
 it often happens that the same expression will bear different mean- 
 ings, and require a different interpretation, according to the context 
 of the instrument in which they are found. In construing this 
 charter party, therefore, we have not relied implicitly upon the 
 interpretation put by judges in other cases on any particular 
 expression also found in this contract ; but we have collected the 
 intention of the contracting parties from the whole scope of the 
 instrument, having reference nevertheless to the several authorities 
 cited at the bar, as guides to our decision ; and we are satisfied 
 that, in this particular case, according to the terms of this particular 
 charter party, the possession of the vessel was given up by the 
 
 (,p) 4 M. & a. 502. 
 
CONTRACTS BY CHARTER PARTY. 147 
 
 owners to the charterer during the continuance of the contract ; Sect. 116. 
 that the master was in possession of the cargo as agent for the ' 
 
 charterer, and not as the .servant of the owners ; that personal 
 credit was given to the charterer for the payment of the hire of 
 the vessel; and that no lien, or right of stoppage of the goods, 
 was intended, to be reserved to the owners as a security for the pay- 
 ment of the contract price." 
 
 ■ 117. Leaving out of consideration charter parties which deprive Classes of 
 the owner of possession, or whose objects are not the carriage parties'^ which 
 
 of goods, those with which we have to deal may be divided into the ^J® contracts 
 
 . •' of carnage. 
 
 lollowing three classes : — 
 
 A. Contracts for the use of the ship, on a voyage or series of 
 voyages, in carrying goods to be shipped by the charterer, or in 
 his name : the charterer agreeing to pay for her either in propor- 
 tion to the goods carried, or a Jump sum for the voyage, or in 
 proportion to the time occupied. 
 
 B. Contracts similar to A, but by which liberty is given to the 
 charterer to use the ship for the purpose of taking goods of other 
 shippers, and to require the master to give biUs of lading for goods 
 so shipped. 
 
 C. Contracts for the services of the ship for a period of time, 
 during which the charterer is to have the right within agreed 
 limits of directing how the ship shall be used, and is to pay for her 
 in proportion to the time occupied. 
 
 118. Charters vary very greatly, according to the subject-matters Form of 
 with which they have to deal, but they usually have certain ° ^^ ^' party, 
 common features. These are shown in the following skeleton 
 form, of a contract which would fall imder the Class A described 
 above : — 
 
 "Liverpool, 1885. 
 
 " It is this day mutually agreed between of the good 
 
 ship, or vessel, called the , of the measurement of 
 
 tons register, or thereabouts, now at , and , of , 
 
 merchant : That the said ship being tight, staunch and strong, 
 and every way fitted for the voyage, shall with all convenient 
 speed sail and proceed to , or so near thereunto as she 
 
 may safely get, and there load from the factors of the said 
 merchant a full and complete cargo of , not exceeding 
 
 what she can reasonably stow, and carry over and above her 
 
 l2 
 
t48 THE CONTRACT. 
 
 Sect. 118. tackle, apparel, proTisions and furniture ; and being so loaded 
 
 shall therewith proceed to , or so near' thereunto as she 
 
 may safely get, and deliver the same on being paid freight as 
 follows : — , in full of all port charges and pilotage as 
 
 customary. (The act of God, the Queen's enemies, restraint 
 of princes and rulers, fire, and all and every other dangers and 
 accidents of the seas, rivers, and navigation of whatever nature 
 and kind soever during the said voyage always mutually^ 
 excepted.) 
 
 *' The freight to be paid as follows : — 
 
 " The cargo to be brought to and taken from alongside at 
 the said merchant's risk and expense. 
 
 " - days are to be allowed the said merchant (if, the ship 
 is not sooner despatched) for loading, and * days on de- 
 murrage over and above the said laying days at ' per ton 
 per day. The vessel to be discharged at the port of discharge 
 
 with all despatch as customary. 
 
 « (Signed) 
 
 When it is intended that the charterer may use the ship as 
 a general ship (bringing the charter within Class B above), the 
 following clause is usually added : — 
 
 " The captain to sign bills of lading as presented by the 
 
 freighter " (or, " at such rates of freight as may be required 
 
 by the freighter ") " without prejudice to this charter party." 
 
 Charters of the Class C are instruments of special agreements, 
 
 and cannot perhaps be said to have any common features beyond 
 
 those above set out. A form of Time Charter which is largely 
 
 used is set out in Appendix B. 
 
 Usually in 119. Agreements of this kind may be made verbally (j), but 
 
 it is the almost invariable rule to reduce them to writing. And 
 usually they are made as simple agreements ; merely signed by 
 the parties or their agents. Sometimes they are made by deed ; 
 but, as the rule of law is that a deed executed by an agent does 
 not bind his principal, unless authority to execute it has been 
 conferred by deed (r), this course is usually to be avoided. And 
 charter parties under seal are now seldom seen (s). 
 
 (j) Per 'WigTam, V.-C, Lidgett v. goods have been shipped under a charter 
 ■Williams, 4 Hare, 456. party under seal, not binding on them, 
 
 /\ rn-'ti. n J. J. mi, v .«» Bee Leslie ». Wilson, 3 B. &B. 171. As 
 M Chitty on Contracts (9th), p. 192 ; . . , , ' , , , 
 
 \ /> J- 'to varying a charter party under seal, 
 
 Horsley ... Rush, cited 7 T. R. 209. gge White v. Parkin, 12 East, 678 ; 
 
 (s) Aa to the OTroer's liability when Thomson v, Bro-wn, 7 Taxm. 666. 
 
CONTRACTS BY CHARTER PARTY. 149 . 
 
 120. The stamp duty upon a " charter party, or any agree- Sect. ISO. 
 ment, or contract for the charter of any ship or vessel, or any stamp. 
 memorandum, letter, or other writing {t), between the captain, 
 
 master, or owner of any ship or vessel, and any other person, for 
 or relating to any freight or conveyance of any money, goods, 
 or effects on board of the ship or vessel," is 6d (u). This duty 
 " may be denoted by an adhesive stamp which is to be cancelled 
 by the person by whom the instrument is last executed, or by 
 whose execution it is completed as a binding contract" (x). 
 
 If first executed out of the United Kingdom, unstamped, " any 
 party thereto may within ten days after it has been first received 
 in the TJnited Kingdom, and before it has been executed by any 
 person in the United Kingdom," stamp it with an adhesive stamp, 
 to be cancelled at the same time («/). 
 
 An unstamped charter party may be stamped with an impressed 
 stamp, on payment of a penalty, within one month after the first 
 execution of it ; but not afterwards (s). 
 
 A charter party which has not been duly stamped cannot be 
 given in evidence, or made available in a Court of law, if it has 
 been executed in any part of the United Kingdom, or if it relates 
 " to any property situate or to any matter or thing done or to be 
 done in any part of the United Kingdom " {a). 
 
 If the charter has been executed by both parties abroad, the 
 limit of ten days in sect. 50 does not apply. The document is 
 then within sect. 15 (3) of the Act, which provides that "any 
 unstamped or insufficiently-stamped instrument, which has been 
 first executed at any place out of the United Kingdom, may be 
 stamped at any time within thirty days after it has been first 
 received in the United Kiugdom on payment of the unpaid duty 
 only " (b). The stamp, under this section, must be an impressed, 
 not an adhesive, stamp (c). 
 
 121. A charter party is usually effected through the intervention Shipbroter's 
 of a shipbroker. And the ordinary course is for the document <'°™™i^^^°"- 
 
 {t) See Rein i;. Lane, 15 L. T. 466. by the parties, may be admitted un- 
 
 («) S4 & 65 Vict. 0. 39, Sctedule. stamped, if the original was stamped : 
 
 ^g Smith 1). Maguire, IF.&F. 199. Evi- 
 
 * ' ■ • • denoe of stamping : Closmadeuc v. Car- 
 
 iv) ^^- s- 50. rel, 25 L. J., C. P. 216. 
 
 (z) Ibid. s. 51. (J) See The BeUort, 9 P. D. 215. 
 
 [a) Ibid.a. 14. A.oopy,thoughsigned [e] 64 & 56 Viot. u. 39, s. 2. 
 
.150 
 
 THE CONTRACT. 
 
 Sect. 181. signed by the parties to be kept by the broker, who gives out 
 certified copies of it as .may be required. 
 
 The broker receives a commission from the shipowner for 
 effecting the contract; usually 5 per cent, on the agreed or 
 estimated freight. Where the amount has not been agreed, it 
 must be ascertained by reference to the customary rate, if there 
 is one ; and, if not, upon the basis of a reasonable remuneration 
 under the circumstances (d). Apart from special agreement, the 
 commission is payable for the work done in obtaining the charter, 
 and does not depend upon the freight being actually earned (e). 
 On the other hand, nothing is payable to the broker for the 
 trouble and expense he may have been put to, unless a binding 
 charter party is concluded (/). And this was held to be the case, 
 upon evidence of usage (g), even where the completion of the 
 contract fell through owing to a refusal by the shipowner to go on 
 with the business, after the broker had found a person willing to 
 charter the vessel on the proposed terms. " 
 
 If the contract is, in fact, brought about through 'the broker's 
 introduction of the parties, he is entitled to his commission, 
 whether he himself works the matter out, or the principals com- 
 plete it without his help (A). His introduction, however, must 
 have been direct; it is not enough that he has mentioned the 
 matter to somebody else. Who has brought the parties together. 
 Nor would it suffice that he had introduced the shipowner to 
 another broker who effected a charter of the ship. A custom, said 
 to exist among shipbrokers, that the introducing broker should be 
 paid under these circumstances, has been considered to be unreason- 
 able and invalid (i). 
 
 In Smith ». Butcher (k), the broker who actually procured the 
 charter party had not been directly employed by the shipowner, 
 but had got instructions "from another broker who was employed 
 by him ; still, he was allowed to recover the commission from the 
 
 {d) Where the Toyage wag for an in- (A) Burnett v. Bouoh, 9 G. & P. 620 ; 
 definite time : HoU v. Pincent, 6 Moo. '' Wilkinson v. Martin, 8 C. & P. 1 • 
 
 228- Green v. Bartlett, 32 L. J., C. P. 261. 
 
 (e) Hill V. Kitching, 15 L. J., 0. P. As to other charters flowing from the 
 
 251. Cf. Winter v. Mair, 3 Tann. 531.. same introduction, see Allan ». Sundins, 
 
 (/) Bead ». Rann, 10 B. & C. 438; 31 L. J., Ex. 307; Tribe v. Taylor, 1 
 
 Dalton V. Irwin, 4 C. & P. 289. C. P. D. 505. 
 
 (<?) Broad J). Thomas, 7 Bing. 99. But r\ r^-u ^ ■ ■, 
 
 see Prickett v. Badger, 26 L. J., C. P. ^ Gibson v. Crick, 31 L. J., Ex. 304. 
 
 33. 
 
 (*) 1 C. & E. 673. 
 
CONTRACTS BY CHARTER PARTY. 151 
 
 shipowner. Eyidence of the custom at LiTerpool on the subject Sect. 131. 
 was admitted. 
 
 Where several brokers have been employed to obtain a charter where several 
 for the ship, the broker who first introduces the principals to one emplOTed. 
 another is entitled to commission ; and, generally, none of the 
 other brokers are entitled to anything from the shipowner (l). 
 But if the first broker has merely communicated with the parties, 
 and has not mentioned " the names, so as to identify the trans- 
 action, he does not get his commission to the exclusion of another 
 broker who afterwards introduces the parties personally to each 
 other." That was shown to be the usage in Burnett v. Bouch (m), 
 and was adopted by the jury. 
 
 An undertaking by a broker to procure a ship for a merchant, Broker's 
 upon certain terms, is a promise founded upon sufficient con- to procure 
 sideration ; and the broker may be sued if he fails to perform ^^' 
 it (m). 
 
 122. It is the common practice for a charter party effected Clause in 
 
 . . , .11 ■ charter party 
 
 through a broker to have m the margm a clause that a certain as to broker's 
 commission " is due on the execution of this charter party " to 
 the broker. This commission is payable by the ship, but the 
 broker, not being a party to the charter party, cannot enforce it 
 by action upon that contract. He cannot, therefore, proceed for 
 it against the ship under the County Courts Admiralty Juris- 
 diction Amendment Act (o), as a claim arising out of an " agree- 
 ment made in relation to the use or hire of any ship " (p). 
 
 But probably the charterer might enforce the clause against 
 the shipowner, as trustee for the broker (q) ; and, in doing so, 
 he might, perhaps, proceed against the ship, under the above 
 section (r). 
 
 Sometimes the commission depends upon some contingency. 
 In Ward v. Weir (s) a charter party provided that a ship " now at 
 Philadelphia and chartered for Japan " should, after discharging 
 
 (I) Burnett v. Bouch, 9 C. & P. 620 ; 209. Cf. "West v. Houghton, 4 C. P. D. 
 
 Cunard v. Van Oppen, 1 F. & F. 716. 197. 
 (m) 9 C. & P. 620. (>•) The Nuova EafEaelina, L. K., 3 
 
 («) GKddon v. Brodersen, 1 Cab. & A. & E. 483 ; The Alina, 5 Ex. D. 227. 
 
 EU. 197. (s) i Com. Ca. 216. But cf. Sibson 
 
 (o) 32 & 33 Vict. 0. 51, s. 2. v. Ship Barcraig Co., 24 Sess. Ca. (4th) 
 
 {p) The Nuova EaflEaelina, L. E., 3 91 ; a similar commission clause; but 
 
 A. & E. 483. Cf. North v. Basset, ship chartered " to arrive ;" commission 
 
 (1892) 1 Q. B. 333. held not payable upon loss before 
 
 (?) Robertson v. Wait, 22 L. J., Ex. arrival. 
 
152 THE CONTRACT. 
 
 Sect. 122. at Japan, proceed to British Oolumtia, and there load a cargo for 
 London ; and that a commission of 3f per cent, should be paid 
 to the charterers " on amount of this charter party on completion 
 of the loading, or should the vessel be lost." The ship was lost 
 while on her way to Japan. Held, that the commission had 
 become payable. 
 
 Clause as to 123, Charters frequently provide that the ship shall be con- 
 ofsh^i. signed at the loading or discharging ports, to agents of the 
 
 charterer, or to some named persons. Customary commissions 
 are payable for doing the business of the ship at those places; 
 and the charterer may sue the shipowner for the loss of com- 
 missions through a breach of this term of the contract, although 
 that loss be sustained not by the charterer himself but by the 
 persons named (t). 
 Eight to pro- In Eobertson v. Wait (t), the agreement was that the vessel 
 ■ward freight should be " Consigned to Messrs. Ewing & Co., merchants, at 
 of'dLoharge^ Calcutta, on the usual and customary terms," and it appeared 
 that one of the usual terms was that the consignees should 
 procure the vessel's homeward freight, and receive 5 per cent, 
 commission for doiag so. The vessel was consigned to Ewiag & 
 Co., but before she arrived at Calcutta, the defendants con- 
 tracted with another person to supply a homeward cargo. It 
 was held that the charterers might sue for the full commission, 
 on behalf of Ewing & Co., without showing that they were in- 
 terested in it. 
 
 Where the ship was chartered for an outward voyage to China, 
 to be consigned to the charterers' agents there, " free of commission 
 on this charter," it was held that the charterers could not import a 
 custom to the effect that it was the right, under those circumstances, 
 of their agents, as consignees of the ship, to procure a charter or 
 cargo for the ship outward from the Chinese port, and to be paid 
 the usual commission for doing so, or to be paid the commission if 
 the owners, without default of the agents, should procure a cargo 
 otherwise («). 
 
 If the consignment to the charterer's agents is to be " free of 
 commission," the charterer is liable for expenses incurred by the 
 shipowners in consequence of their being unable to clear her {v). 
 
 {t) Eobeftson v. W^it, 22 I.. J., Ex. ^ ^^^P« "■ ^^'''i' 25 L- J-. Es. 
 
 ^°^' {i>) EusseU V. Griffith, 2 P. & P. 118. 
 
CONTRACTS BY CHARTER PARTY. 153 
 
 In Cross v. Pagliano {x), tlie ship was cliartered for a voyage to Sect. 123. 
 San Franoisoo, where she was to he " consigned to charterers' 
 agents, inwards and outwards, paying the usual commissions." The 
 voyage ended at San Francisco, and the ship, after discharging her 
 cargo, proceeded to Selina Cruz, in Mexico, to take in a cargo for 
 Hamburg, under a charter party which had heen made prior to the 
 other. The plaintiffs' agents were not employed in obtaining 
 this : but they had offered the captain a homeward cargo at San 
 Francisco. It was held that the clause did not compel the ship- 
 owners to pay commission, as if they had taken a cargo outwards 
 from San Francisco. " Whatever would have to be done by a 
 ship's broker if a cargo had been taken on board outwards at San 
 Francisco, the plaintiffs' agents were to do ; or if the ship should 
 sail in ballast — as in fact she did — any services required in 
 connection with her so sailing were to be performed by those 
 agents "(^). 
 
 124. "Where a ship was addressed to the charterer's agents at Right to 
 London, her port of discharge, a special jury found that they feeio-hts. 
 might claim to collect the freights, and earn a commission for 
 doing so (s). 
 
 In Hibhert v. Owen (a), a charter made by London shipbrokers 
 on their own account, for an outward voyage, contained the clause, 
 " a commission of 5 per cent, on this charter to be paid to 
 (plaintiffs), to whom the vessel is to be addressed on her return to 
 London." The plaintiffs contended that on the ship's return the 
 work of reporting her and the ordinary business of her homeward 
 cargo, such as making out the freight notes and collecting the 
 freight, should be done by them; and that they should receive 
 from the shipowners an address commission of 2J per cent, on the 
 homeward freight. It was left to the jury to say what the 
 meaning of the clause was in mercantile usage, and they found 
 that it related to the homeward voyage, and gave the plaintiffs a 
 commission (apparently Ij per cent, on the homeward cargo), and 
 a reporting fee. 
 
 Charterer's agents to whom the ship is consigned are to be 
 regarded as acting for the shipowner, as well as the charterer, 
 
 (x) L E' 6 Ex 9 ' i") ^^ Bradley v. Goddard, cited in 
 
 ' ' Maol. p. 192. 
 
 {y) Per BramweU, B., L. E., 6 Ex. («) 2 E. & E. 502. Of. Meibuhr v. 
 
 p. 13. Priohard, cited Maol. p. 192. 
 
154 
 
 THE CONTRACT. 
 
 Sect. 124. 
 
 Agent for 
 charterer — 
 Authority. 
 
 Ratification. 
 
 Agent cannot 
 alter charter 
 party. 
 
 when collecting freiglits. But they have no power as against the 
 owner, without special authority, to give up part of the freight ia 
 compromise of a claim for damage to the goods {b) . 
 
 125. Where the charter is signed by an agent either for the 
 charterer or for the owner, a question may arise as to the extent 
 of the agent's authority to make the contract. This is a matter of 
 fact iu each case. The authority may be a special one for the 
 occasion, in which ease it must be construed strictly ; or the agent 
 may have a general authority, or may, from the course of his 
 employment by the principal, have acquired an apparent general 
 authority to do such acts on his behalf. Where that has been the 
 case, the principal will not be allowed to contradict the apparent 
 authority by evidence of private instructions limiting it (c). 
 
 In Smith v. McGhiire (d), Pollock, 0. B., said that the question 
 to be answered in' such cases is, " Has the person who is to be 
 charged with liability under this commercial instrument, or with 
 the contract, whatever it may be, authorized and permitted the 
 person, who has professed to act as his agent, so to act, in such a 
 manner, and to such an extent, as that, from what has occurred 
 publicly, persons dealing with him have a reasonable right to con- 
 clude, and to draw the inference, that the person so acting is a 
 general agent ? .... If that was the reasonable conclusion, I 
 think the defendant is bound, though it should turn out that he 
 had determined the extent of the agency by all sorts of rules and 
 calculations." 
 
 And when one professing to act as agent was not authorized at 
 the time the charter party was made, the principal may stiU be 
 bound by it, if it was expressed to be made on his behalf, and he 
 has afterwards ratified it by some act which shows an adoption of 
 it (e). But an act adopting the contract by a person for whom the 
 agent did not profess to act will not make that person a party to 
 the contract (/). 
 
 126. Neither the master nor the broker acting for the owners 
 
 can vary a charter party made by them, or on their behalf (g). 
 
 (S) Broadhead v. Tule, 9 Sess. Ca. 
 (3rd), 921. 
 
 (c) Smith i). McGuire, 27 L. J., Ex. 
 465. 
 
 {d) 27 L. J., Ex. 465, at pp. 468-9. 
 (c) Maclean v. Dunn, 4 Bing. 722 ; 
 
 Forster v. Bates, 12 M. & W. 226; Bird 
 V. Brown, 19 L. J., Ex. 154. 
 
 (/) Wilson c. Tmnman, 12 L. J., 
 C. P. 306 ; Saunderson ». Griffith, 6 B. 
 & C. 909 ; Watson v. Swann, 31 L. J., 
 C. P. 210. , 
 
 iff) Supra, B, 44. 
 
CONTRACTS BY CHARTER PARTY. 155 
 
 So an agent for the oharterer has not authority to vary the Sect. 126. 
 terms of a charter which has been made, unless he has been 
 specially instructed to do so. A ship was chartered to proceed to 
 Mayo (one of the Cape de Yerd islands), and there load a cargo 
 of salt from the charterers' agents. When she arrived at Mayo, 
 several vessels were waiting to be loaded, and the charterers' 
 agents, to avoid delay, directed the master to go to Boa Yista, 
 another of the islands, about 100 miles away. The master 
 required an indemnity from the agents, and then sailed with one 
 of them to Boa Yista, and took in a cargo of salt. Boa Yista 
 salt was inferior to Mayo salt, and the charterers repudiated the 
 transaction and refused to' pay the freight. It was held that they 
 were not liable. " " I think the extent of the agent's authority 
 must be confined to this : that he has authority to do all things 
 necessary to perform the charter party, and, provided that the 
 contract be substantially performed, to vary in slight matters ; but 
 he has no authority, such as is contended for here, to substitute a 
 new contract, as it would be to substitute an essentially different 
 port of loading, and to put on board another and a different article, 
 and it would be highly mischievous to allpw a charterer's agent to 
 think that he has any such authority " {h). 
 
 In Lindsay v. Seholefield (i), fruit was to be loaded abroad under 
 a charter party, by which the shipowner had liberty to load other 
 cargo "before loading fruit." The master arranged with the 
 shippers of the fruit to load that lefore the shipowner's cargo. It 
 was in consequence kept in the ship's hold for a needlessly long 
 time at the ports of loading and discharge, and so became deterio- 
 rated. The shipowner was held liable to the charterer. The 
 shippers were not authorized to vary the terms of the charter. 
 
 Where the charter party expressly authorized the charterer's agent 
 at the loading port to make alterations in the charter, it was held 
 that this included an authority to allow the ship to make an 
 intermediate voyage before loading the homeward cargo (/c). 
 
 127. Where an agent has entered into a charter party on behalf Rights and 
 of his principal, without disclosing his name, the latter is still an undisclosed 
 bound by it ; although the agent also may be personally bound. P'^^oipal. 
 
 , , „. , ^ . „„ T T n -D (») 2i Sess. Ca. (4th) 530. 
 
 (A) Sickens 1!. Irving, 29 L. J., C. P. )L ^. . t -l ^ ,= t t 
 
 ^ ' a> > ^^j Wiggins V. Johnston, 15 L. J., 
 
 25, per WiUiams, J., p. 28. j.^_ 202. 
 
156 THE CONTRACT. 
 
 Sect. 127. And the other party to the contract, on discovering the principal's 
 existence, may enforce the contract against him. 
 
 Conversely, the principal, whether named or not, may claim the 
 benefit of, and may sue upon, a charter party which his agent has 
 made on his behalf ; although the agent did not at the time disclose 
 the fact that he had a principal. 
 
 But where a contract has been made exclusively with the agent, 
 at a time when the name of the principal was known to the other 
 party, then that principal is not considered a party to the contract, 
 and cannot enforce it (Z). 
 
 Where an agent for a shipowner chartered the ship in his own 
 name, describing himself in the charter party as the owner, it was 
 held that the actual owner could not sue for a breach of it [m). 
 The description " owner " in the charter party excluded the sup- 
 position that he was acting as agent. Patteson, J., said, " The 
 general principle is quite clear and untouched by our decision, that 
 where there is nothing to define the character of the contracting 
 party, he may be shown to be agent merely, so as to cast the right 
 of suing on the real principal" (w). 
 
 Liability of 128. Where a charter party has been made by an agent expressly 
 ° ' on behalf of a principal, the agent is not personally liable upon 
 
 the contract ; even though the principal be a foreign one (o) ; and 
 although he may not have authorized the supposed agent to make 
 the contract (p). If the agent was not authorized, no binding 
 contract at all has been concluded ; unless it can be shown that 
 the agent had no principal at all, and was in fact contractiag for 
 himself ; in which ease probably he may sue or be sued on the 
 contract (q). 
 
 Cesser clause. Charters made by alleged agents without disclosing their prin- 
 cipals frequently contain a stipulation that the agent's liability 
 " shall cease as soon as the cargo is shipped." When that is the 
 case the agent appears to be liable to the shipowner on the contract 
 until the shipment has been made, but not after (r). It does not 
 
 {t) Addison v. Gandaseqm, 4 Taun. (p) Jenkins v. Hutchinson, 18 L. J., 
 
 573 ; 2 Sm. L. C. 369. Cf. Calder v. Q. B. 274. 
 
 Dobell, L. R., 6 C. P. 486. {q) Schmalz v. Avery, 20 L. J., Q. B. 
 
 ' (m) Humble «>. Hunter, 17 L. J., Q.B. 228; Cami. Jackson, 21 L. J., Ex. 137; 
 
 360. Kelner v. Baxter, L. R., 2 C. P. 174. 
 
 («) At p. 352. But of. Sharman n. Brandt, L. R., 6 
 
 > (o) Deslandes v. Gregory, 30 L. J., Q. B. 720. 
 
 Q- ^- 36, (r) Oglesby v. Tglesias, 27 L. J., 
 
CONTRACTS BY CHARTER PARTY. 157 
 
 appear to have been deoided how far in such oases the contract may Sect. 128. 
 he enforced by the party whose liability has ceased. . 
 
 Where a charterer was apparently acting as agent, but was in 
 truth the principal, a clause terminating his liability upon the 
 loading of the cargo, " the charter being concluded for another 
 party," was said not to apply to his character as principal. " His 
 responsibility would unquestionably continue after the cargo was 
 shipped" (s). 
 
 129. An agent who professes to contract for a principal warrants Warranty of 
 to the other party that he has authority to do so ; and if he has ^^ °" ^' 
 not that authority, he is liable to compensate the other for any loss 
 
 he may sustain by being unable to enforce the contract owing to 
 the absence of authority {t) . 
 
 In LUly V. Smales iu), it was held, by Denman, J., that a broker 
 who signed a charter party " by telegraphic authority " of 
 the merchant, " as agent," did not absolutely warrant that he 
 had authority to sign the charter. A mistake had there been 
 made in the transmission of the telegram. Evidence was given 
 which established that an agent, signing- in that form, is well under- 
 stood not to warrant more than that " he has had a telegram 
 which, if correct, authorizes such a charter as that which he is 
 signing." 
 
 A broker having agreed to charter a ship on behalf of the 
 owners, without their authority, requested the merchants to get 
 another vessel in place of her. They chartered one that was larger, 
 and loaded her. Cookburn, C. J., directed the jury that, if the 
 charterers could not have found a smaller ship, they were entitled, 
 as damages against the broker, to the difference between the 
 freight on the whole cargo of the substituted ship and that which 
 would have been payable on the agreed ship; giving credit, 
 however, for the profit made on the surplus cargo carried to fill up 
 the larger ship {x). 
 
 130. But one who enters into a charter party in his own name Personally 
 is personally bound by it, although he may in fact have been th^gen^y^^ 
 
 appears 
 
 Q. B. 366. Of. Sohmalz v. Avery, 20 liabilily to cease, see mfra, m. 645—651. " ®" •''■ 
 
 L. J., Q. B. 228 ; Hough v. Manzanos, [t) Oollen v. Wright, 26 L. J., Q. B. 
 
 4 Ex. D. 104; Pedersou v. Lotinga, 1*7; 27 L. J., Q. B. 215; EiohardsQU?;. 
 
 28 L. T. 267. ^ ' Williamson, L. R., 6 Q. B. 276. 
 
 («) Sohmalz v. Avery, 20 L. J., Q. B. M (1892) 1 Q. B. 466. 
 
 p. 232. As to clauses making charterer's («) Mitchell v, Kahl, 2 F. & P. 709. 
 
158 THE CONTKACT. 
 
 Sect. 130. acting as agent for another ; and, conversely, lie can personally 
 enforce it {y).- This may none the less be the ease although the 
 existence and the name of the principal may have been disclosed. 
 If a doubt arises as to whether the contract was made by the 
 agent personally, or merely as a representative, it must be 
 settled by reference to the document, considering it as a whole, 
 and having regard to its objects and to the relations of the 
 parties. The question in each case is as to the intention of the 
 parties. 
 
 If the charter party is signed by the agent in his own name 
 without qualification, the presumption generally is that he meant 
 to contract personally. Thus, in Parker v. Winlo (s), the de- 
 fendant, a shipbroker, chartered a vessel on behalf of his prin- 
 cipals, E. Winlo & Sons. The charter party was expressed to 
 be made between the master and " G. W. Winlo, agent for 
 E. Winlo & Son, of Devonport, merchants " ; but it was signed 
 by the defendant, " Gr. W. Winlo," without qualification of any 
 kind. It was held that he was personally liable upon it. The 
 presumption from the unqualified signature was not rebutted 
 by the description of him as "agent" in the body of the charter 
 party. So also, where agents signed without qualification, though- 
 the charter was expressed to be made by them " as agents for 
 charterers" {a). 
 
 But the fact that the agent's signature is unqualified does jiot 
 conclusively show that he contracts personally : the whole docu- 
 ment must be considered (6) . 
 
 And, on the other hand, an agent may be held personally bound, 
 although his signature has been qualified. 
 
 In Lennard v. Eobinson, a charter party made in London was 
 expressed to be between the shipowner and " Robinson & Fleming, 
 of London, merchants " ; and throughout the document the pro- 
 visions were with reference to the " said merchants." But 
 Robinson & Fleming signed the charter party " by authority of 
 and as agents for M. A. H. Schwedersky, of Memel." It was 
 
 [y) Short v. Spaokman, 2 B. & Ad. Tweedy, 63 L. T. 765. 
 
 962 ; and per Blackburn, J., Fawkea v. [a) Hough i>. Manzanos, 4 Ex. D. 
 
 Lamb, 31 L. J., Q. B. 98. Agent for 104 ; Cooke ». Wilson, 26 L. J., C. P. 
 
 gOTernment, Cunningham v. Collier, 4 15 ; Paioe v. Walker, L. E., 5 Ex. 173; 
 
 Doug. 233. Mistake in printed form, Kennedy v. Gouveia, 3 D. & B. 603. 
 
 Breslauer v. Barwiok, 36 L. T. 62. [h) Southwell v. Bowditch, 1 C. P. D. 
 
 {z) 27 L. J., Q. B. 49 ; and eee Hickj;. 374 ; Gadd v. Houghton, 1 Ex. D. 357. 
 
CONTRACTS BY CHAETEE PARTY. 159 
 
 held that, looking at the whole document, Eobinson & Meming Sect. 130. 
 contracted in it as principals (c). 
 
 130a. Forms of contract are sometimes used hj shipbrokers. Berth-notes. 
 known as " berth-notes," which leave the relations between the 
 parties in considerable doubt. 
 
 In Hick V. Tweedy {d), the defendants, having made various 
 contracts with merchants for loading the ship in Odessa, wrote to 
 the owner, saying, " we confirm having this day fixed the S.S. Thorn- 
 tondale for a full cargo of grain ™j? seed from Odessa to London, 
 
 &e charterers having the option of cancelling if she is 
 
 not ready to receive cargo by 12th December next. Steamer to 
 be loaded on usual berth terms, 2 per cent, commission to us." 
 Charles, J., held that .the defendants' " true position was that of 
 agents for freighters as well as agents for the plaintiff " ; but that 
 they had, by their signature to the letter " incurred a personal and 
 primary liability." 
 
 In the S.S. Eotherfield Oo. v. Tweedy (e), the defendants' berth- 
 note ran as follows, " We hereby confirm arrangement that the 
 S.S. Eotherfield, of the capacity of 4,250 tons, now due Constanti- 
 nople, to-day is berthed by our Odessa correspondent, Messrs. 
 Tweedy, Eeid & Co. (they having engaged as agents for owners' 
 account for this steamer on customary Odessa terms, as sanctioned 
 by the Odessa Bourse, a full cargo of wheat ^^ other grain »* 
 seed), to be loaded at Odessa ^^^ Sevastopol, . . . charterers' 
 option." Collins, J., held that the defendants had taken the 
 responsibilities of charterers under the note. 
 
 131. In Hutchinson v. Tatham (/), a charter party was entered Custom to 
 into by the defendants " as agents to merchants,'' and their signa- liable. 
 ture to it repeated that description. They had in fact acted as 
 agents in the matter, but they did not disclose the name of their 
 principal until a considerable time afterwards. Evidence was 
 given of a trade custom that if the principal's name was not dis- 
 closed within a reasonable time after the signing of the charter 
 party, the broker was liable personally upon it. The jury found 
 that the custom existed, and that the principal's name had not been 
 
 (c) Lennard v. EobiaBon, 24 L. J., 273 ; 31 L. J., Ex. 451. 
 
 Q. B. 275; Adams v. Hall, 37 L. T. 70. (a) 63 L. T. 766. 
 And see Hutoheson v. Eaton, 13 Q. B. 
 
 D. 861 ; Weidner v. Hoggett, 1 C. P. D, ^^' ^ ^°™- ^^- ^*- 
 
 S33 ; Wake v. Harrop, 30 L. J., Ex, (/) L. K,, 8 C. P. 482. 
 
160 THE CONTRACT. 
 
 Sect. 131. disclosed witMn a reasonable time. And the Court held that the 
 evidence of custom was rightly admitted ; though, apart from the 
 custom, the defendants would not have been liable on the con- 
 tract {g). 
 
 On the other hand, if the agent becomes by custom liable per- 
 sonally on the contract, he may, presumably, enforce it personally. 
 For the rights and liabilities of the parties are generally reci- 
 procal (A). 
 
 Principal 132. When both principal and agent are liable upon a contract 
 
 sued^after made by the agent, either of them may be sued upon it. But the 
 
 judgment principal cannot be sued after an action has been brought, and 
 against agent. , -^ . , , 7 . 
 
 judgment obtained, against the agent ; even though no satisfaction 
 
 of the claim results («). 
 
 In Priestley v. Fernie («), the plaintiff sought to make the 
 
 owners of a ship Hable for the non-delivery of goods, under a bill 
 
 of lading, after he had sued and obtained judgment against the 
 
 captain for the same matter ; and had seized him in execution, 
 
 made him a bankrupt, and proved for the amount of his judgment 
 
 in the bankruptcy. It was held that the shipowners could not 
 
 after this be sued. And _ the ground of the decision appears to 
 
 have been, that their position had been altered; for they had 
 
 become liable to the captain or his estate on the claim. So, 
 
 probably, a judgment obtained against the principal would put an 
 
 end to the right to sue the agent (/«) . But whether any act, short 
 
 of a judgment, in the way of electing to treat either principal or 
 
 agent as the person liable, will preclude proceedings against the 
 
 other of them appears to be doubtful {I) . 
 
 Eepreaenta- 133. A charter party usually commences with a description of 
 
 charter party, the sMp, giving her nationality, character, class, and capacity ; and 
 
 some statement of where she is lying, or how she is occupied, at 
 
 the time the contract was entered into. These are representations 
 
 made by the shipowner ; being matters within his knowledge, or 
 
 (j') SeeaJsoHiunfreyt). Dale, 26L. J., 172; Kendall v. Hamilton, per Lord 
 
 Q. B. 137 ; 27 L. J., Q. B. 390 ; Fleet Cairns, 4 A. 0. at p. 415. 
 V. Murton, L. R., 7 Q. B. 126 ; Pike v. (k) See the judgment of Lord Cairns 
 
 Ongley, 18 Q. B. D. 708. in Kendall v. Hamilton, 4 A. 0. 504. 
 
 ,z\ a Tji It, T -o 1 W Curtis v. Williamson, L. K., 10 
 
 {h) See per Blaokbum, J., Fawkes v. n tj kt . n u -n i. n t -d c n 
 
 T V, ,1 T T /^ T> no U. B. 57 Calder v. DoheU, L. E., 6 C. 
 
 Lamb, 31 L. J., Q. B. 98. t, ,„„ oi . „„- nn 
 
 ' ' P. 486 ; Story on Agency, s. 295. Cf. 
 
 (i) Priestley v. Fernie, 34 L. J., Ex. Scarf v. Jardiue, 7 A. C. 345. 
 
CONTJRACTS BY CHAETER PARTY. 161 
 
 means of knowledge, and not witliiii the knowledge of the char- Sect. 133. 
 terer. And they may amount to warranties, or promises by the 
 shipowner that the facts are as represented ; or they may be mere 
 recitals identifying the subjeot-matter of the contract, or bare 
 representations which only become significant when it is sought to 
 show that the charterer has been induced to contract by mis- 
 representation. 
 
 If representations that are false have been made by the ship- False repre- 
 owner, and if the charterer was induced by them to enter into the 
 contract, he may put an end to it on discovering the real state of 
 the facts : unless the contract has been so far acted upon that the 
 shipowner cannot be restored, substantially, to his former posi- 
 tion (m). And this is true whether the misrepresentations were 
 embodied in the written contract or not ; and although the ship- 
 owner may have made them without knowing that they were 
 false («). 
 
 If the misrepresentations have been made knowingly, the char- 
 terer may also sue the shipowner for any damages which he may 
 have sustained through the deceit. 
 
 134. Apart, however, from misrepresentation, as affording a Must gene- 
 ground for rescinding the contract, or for an action for deceit, inthed™u- 
 statements made as to the ship, or other subject of the contract, 
 will not form part of the agreement unless they are embodied in 
 the document which shows what that is. Where the contract is in 
 writing, the rules of evidence require that representations, in order 
 
 to form part of the contract, shall be made iu the document (o). 
 Though, if it can be shown that they were meant to be stipulations 
 between the parties which were to be preliminary to the contract, 
 so that it was not to have any operation unless or until those repre- 
 sentations had been satisfied, then they will have effect, although 
 not put into the writing (p). 
 
 135. Whether a representation contained in the document does When is a 
 or does not amount to a warranty by the shipowner, depends upon a promise? 
 the presumable intention of the parties, to be gathered from the 
 
 form of the contract, and the circumstances under which it was 
 made. The whole scheme of the contract must be considered : its 
 
 (m) PoUook, Prin. Con. (4th) 541. Oh. X. 
 
 (») See Redgrave v. Hurd, 20 Oh. D. (o) Infra, B, 164. 
 
 1; Adamr.Newbigging, 34 0h. D. 582; (p) SeeBannerman)'. White, 31L. J., 
 
 13 A. 0. 308 ; Pollock, Prin. Con. (4th) 0. P. 28. 
 
 C. — C, M 
 
 ment to have 
 effect. 
 
162 
 
 THE CONTEACT. 
 
 Sect. 135. 
 
 Eepresenta- 
 tions wMch. 
 are promises 
 must gene- 
 rally be true, 
 or charterer 
 not bound to 
 load. 
 
 subject, its objects, and the relations of the parties to one another. 
 If from this point of view the reasonable supposition is that the 
 representation was relied upon by the charterer when he entered 
 into the contract, and that the shipowner who made it expected, or 
 should have expected, that it would be so relied upon, then the 
 representation amounts to a promise. It is a warranty that the 
 fact is as stated, and i£ not satisfied, and damages result in con- 
 sequence to the charterer, he may recover in respect of them. 
 
 Mere expressions of eulogy and expectation, involving no 
 distinct allegations of fact, are not regarded as significant. And 
 the fact represented must be one which has a material bearing 
 upon the purposes of the contract. Whether that is the case may 
 depend upon the circumstances imder which the contract was made. 
 " Por instance, if it was made in the time of war, the national 
 character of the vessel is of such importance that a statement of 
 it in the charter party might properly be regarded as part of the 
 shipowner's contract, and so amounting to a warranty. Whereas 
 the very same statement in the time of peace, being wholly unim- 
 portant, might well be construed to be a mere representation. So, 
 if it was shown that the charter party was made for a purpose, 
 such that unless the vessel began her voyage from the port of 
 loading, with a cargo on board by a certain time, it was manifest 
 that the object of the charter party would in all probability be 
 frustrated, the Court might properly be led by these circumstances 
 to conclude that a statement as to the locality of the ship, coupled 
 with the stipulation that she would sail with all convenient speed, 
 was a warranty of her then locality" {q). 
 
 136. Further, a representation may not only be a warranty that 
 the fact is as represented, so as to make the shipowner liable in 
 damages for a failure to satisfy it, it may also amount to a con- 
 dition precedent to the charterer's obligation to load. The fact 
 represented may be so material to him that that obligation will 
 become a substantially difierent thing from what he meant to 
 undertake, if it prove untrue. In that case he will, on discovering 
 the truth, be at liberty to refuse to load (r). 
 
 The test for ascertaining whether the truth of a representation 
 
 (?) Behn v. Bumess, 32 L. J., Q. B. 
 at p. 207. See Oppenheim v. Praser, 34 
 L. T. 524, where a finding of the jury 
 on the question of materiality was 
 
 adopted in construing the contract. 
 
 [r) Behn v. Burness, 32 L. J., Q. B. 
 204 ; Bentseu v. Taylor, (1893) 2 Q. B. 
 274. 
 
CONTRACTS BY CHARTER PARTY. 163 
 
 is or is not tlms a condition precedent is similar to that whicli Sect. 136. 
 determines whether the representation amounts to a warranty. 
 If it is so material as to influence the charterer in contracting, it 
 is because the falsity of it would substantially alter his under- 
 taking. Generally, therefore, it may be said that if a descriptive 
 statement is so material as to be regarded as a promise, it is also a 
 condition which must be satisfied, if the charterer is to be bound 
 by the contract. 
 
 "With respect to statements in a contract descriptive of the 
 subject-matter of it, or of some material incident thereof, the true 
 doctrine, established by principle as well as authority, appears to 
 be, generally speaking, that if such descriptive statement was 
 intended to be a substantive part of the contract, it is to be 
 regarded as a warranty, that is to say, a condition on the failure or 
 non-performance of which the other party may, if he be so minded, 
 repudiate the contract in toto, and so be relieved from performing 
 his part of it, provided it has not been partially executed in his 
 favour" (s). 
 
 137. The charter party impliedly represents that the ship con- Existence of 
 
 ... . ship— Implied 
 
 tracted for is in existence as a ship. That is the foundation of the condition. 
 
 contract ; a preliminary condition which must be satisfied if the 
 
 contract is to be acted upon. 
 
 Whether the shipowner warrants to the charterer that she does 
 
 exist, so as to be liable in damages if it should turn out that she 
 
 does not, must depend upon the form of the contract. If that 
 
 represents her to be at a certain port in safety, whereas she is, in 
 
 fact, at the bottom of the sea, it seems clear that there is a promise 
 
 or warranty that she exists as represented, for the breach of which 
 
 an action would lie (t). But if she is at sea, and that is stated, 
 
 so that there is no certain representation of her condition, there is, 
 
 it would seem, no warranty that she exists, and the contract on 
 
 each side depends upon her continued existence as a preliminary 
 
 condition (m). 
 
 138. A misstatement of the vessel's nationality may be very Statement of 
 material to the charterer, either in time of war, as bearing upon 
 
 («) Behn v. Bumess, 32 L. J., Q. B. («) Of. Johnson v. Maodonald, 9 M. & 
 
 204, at p. 206. Of. Barnard v. Eaber, ^ g^g ^ ^^^ ^ Caldwell, 32 L. J., 
 1893) 1 Q. B. 340 ; infra, s. 175. „ . „ ' „ ^ 
 
 (*) Behn v. Bumees, 32 L. J., Q. B. ^- ^- ^^* ' Couturier v. Hastie, 5 H. L. 
 
 204. C. 673. 
 
 m2 
 
164 
 
 THK CONTRACT. 
 
 Sect. 138. 
 
 Statement 
 that vessel is 
 » steamship. 
 
 her neutrality or otherwise («) ; or in time of peace, with reference 
 to the navigation laws of the places where she may be intended to 
 trade ; or with reference, perhaps, to the question by what rules of 
 law the effect of the contract is to he determined. 
 
 In Eeusse v. Meyer (y), a ship was described as Swedish in a 
 charter party for a voyage from London to Grottenburg. The 
 charterer refused to load her, on the ground that she was not 
 Swedish, but British built, whereby he had been prevented from 
 sending her to Gottenburg. Evidence was given by the owner that 
 she was, in fact, British built, but that, when the contract was 
 made, she had a complete set of Swedish papers, and a treasury 
 licence to sail as a Swedish ship, all of which was known to the 
 charterer. Lord Ellenborough said : — " I should hold that the ship 
 must correspond with the description in the written contract ; but 
 she is Swedish in one sense, being furnished with Swedish papers, 
 and in a condition to navigate as a Swedish ship. Although the 
 expression in the memorandum for charter be ambiguous, I think 
 it was enough that she had a Swedish national character imposed 
 upon her, and that she was Swedish within the meaning of the 
 parties to the contract." 
 
 139. If the charter party represents that the ship is a steamship, 
 that is material, and the shipowner is liable if she cannot, or does 
 not in fact work as a steamship, in the ordinary sense of the term. 
 Goods were shipped under a bill of lading " on board the steam- 
 ship Hibernia, from Singapore to London, with liberty to call at 
 any ports in or out of the route and discharge coals, and to tranship 
 the goods by any other steamer," &c. The Hibernia was an auxi- 
 liary screw steamer, and the voyage home was made under sail, for 
 the most part, by the owner's instructions ; she thus arrived much 
 later than if she had made an average voyage under steam. The 
 shipper was held entitled to damages for the delay {z). 
 
 Blackburn, J., said : — " It is part of the contract that the goods 
 are to be forwarded per steamer, that is, by a vessel worked by 
 steam power principally. It is not necessary that it should be 
 worked every day by steam power, but worked by steam power as 
 the chief and principal power " {a). 
 
 {x) Lothian v. Henderson, 3 B. & P. 
 499. 
 
 W 3 Camp. 475. 
 
 («) Praser v. Telegraph Construction 
 Co., L. R., 7 Q. B. 566. 
 {a) L. R., 7 Q. B. at p. 871. 
 
CONTEAOTS BY CHARTER PARTY. 165 
 
 140. The description of the ship's class is material. A charter Sect. 140. 
 made at New York described the vessel as the " A. 1 Br. hrig statement as 
 Hannah Easter, of Liverpool." Held, that this amounted to a 
 promise that she was classed A. 1 at Lloyd's at the date of making 
 the charter party ; and that, as this was not true, and the charterer 
 had in consequence been obliged to pay extra premiums for insur- ■ 
 ance of the cargo, he was entitled to the amount of those extra 
 premiums as damages from the shipowner (J). And the charterer 
 may refuse to load the ship if she is not of the described class (c). 
 
 But the description of the class relates to the time of contracting 
 only ; the shipowner undertakes that she has it at that time, but 
 not that she shall maintain it throughout the duration of the con- 
 tract. So that a charterer is not entitled to refuse to load on the 
 ground merely that the vessel has run off, or lost, her class on the 
 way to the port of lading {d). 
 
 141. Whether the statement of the ship's measurement amounts Statement as 
 to a promise, and to a condition precedent, depends upon the cir- ment. 
 cumstances under which, and the manner in which, it was made. 
 It seems clear that if the shipowner wrongly states her capacity for 
 a particular cargo, that is a misdescription which may be very 
 material to the charterer's calculations, and should therefore fall 
 within the rule which entitles him to refuse to load. On the other 
 hand, a mere statement of the vessel's measured tonnage does not 
 definitely indicate her carrying capacity, and a mistake in stating 
 it may not be material in the same sense. 
 
 In Hunter v. Fry (e), the ship was described as "of the burden 
 of 261 tons, or thereabouts." She could have carried 400 tons of 
 the agreed cargo, but the charterer loaded only 336. The ship- 
 owner claimed compensation for loss of the freight that would have 
 been earned had the charterer loaded a full cargo, and this wrs 
 resisted on the ground that the statement as to the ship's capacity 
 was untrue (/). But the shipowner recovered. 
 
 Abbott, 0. J., said : " I am of opinion that the mention of a 
 ship's burden in the description of a ship in the charter party in 
 Hie manner it is here mentioned, is an immaterial circumstance, 
 
 (J) Eouth V. MaoMiUan, 33 L. J., Ex. («) 2 B. & Aid. 421. Cf. Thomas v. 
 
 38. Clarke, 2 Starkie, 450. 
 
 (c) See the judgment in OlUve v. 
 Booker, 17 L. J., Ex. 21. '■^'> ^^ ^°®« '^°* ^PP«*' ^^^*t^=^ 261 
 
 {0) Hurst 1). Ushome, 25 L. J., C. P. ^ns was inaocnrate a^ a statement of 
 
 209 ; French v. Newgass, 3 0. P. D. 163. the registered tonnage. 
 
166 THE CONTRACT. 
 
 Sect. 141. although it may he made material hy the allegation of fraud or 
 other matter. Here the freighter has not covenanted to load a 
 cargo equivalent to the hurden mentioned in the charter party ; he 
 has covenanted to load and put on board a full and complete cargo, 
 and to pay so much per ton for every ton loaded on board. If the 
 covenant had been to' pay a gross sum for the voyage the freighter 
 (upon the arrival of the ship at the foreign port) might have 
 insisted that the captain should take on board as much as the ship 
 would safely contain ; and the owner who had covenanted to take 
 a full and complete cargo would not be justified in saying that he 
 would take no more than the register tonnage of the ship. It is, 
 indeed, quite impossible that the burden of the ship (as described 
 in the charter party) should in every case be the measure of the 
 precise number of tons which the ship is capable of carrying. 
 That must depend upon the specific gravity of the particular goods ; 
 for a ship of given dimensions would be able to carry a larger 
 number of tons of a given species of goods that were of a great 
 specific gravity than she would of another of a less specific 
 gravity." 
 
 In Windle ». Barker (17), the charterer had undertaken to load a 
 vessel, described as " of the measurement of 180 to 200 tons, or 
 thereabouts," with a full cargo of coals. At the time of chartering 
 it appeared that neither the owner nor his agents knew the size of 
 the vessel, and that the agents communicated to the charterer all 
 they knew about her. On arrival at the loading port the charterer 
 had her measured, and found that she measured almost 258 tons ; 
 and upon that he refused to load her. It was held in the 
 Exchequer Chamber that he was not entitled to do so. But the 
 judges differed in their reasons. Pollock, 0. B., appears to have 
 thought that the statement of measurement had no effect unless it 
 was made fraudi^ently ; and other members of the Court held that 
 it was not a warranty. On the other hand, Jervis, C. J., and 
 Martin, B., considered that the matter depended upon whether the 
 misdescription was material. Martin, B., thought that a plea that 
 the ship unreasonably exceeded 200 tons would have been good 
 upon demurrer. " The mistake of the defendant is this : the 
 opinion of the jury ought to have been taken whether this was a 
 ship unreasonably exceeding in size the ship described in the 
 contract. If it was, I think that the defendant was not under any 
 [g) 25 L. J., Q. B. 349. 
 
CONTEACTS BY CHARTER PARTY. 167 
 
 otligation of loading her. It seems to me that it was a question Sect. 141. 
 of fact, not of law. Had the jury found the ship supplied to be a 
 vessel aocordiug to the contract, I do not say that I should have 
 been satisfied with the verdict " {h). 
 
 Where a steamer was described as " of the measurement of 1,033 
 tons register and carrying 2,000 tons or thereabouts," it was held 
 that the representation of carrying capacity related to cargo, apart 
 from bunker coal ; and that the shipowners were bound to take 
 2,000 tons of cargo or thereabouts («). 
 
 141a. The capacity of the vessel is often expressly guaranteed Express 
 by the shipowner, more especially ia charters at a lump freight, or ^^^''*" ^^^• 
 for time. 
 
 Such guarantees must be read with reference to the circum- Vessel's 
 stances contemplated by the parties. Thus where a guarantee was 
 given that the ship would carry " 3,000 tons dead weight of cargo, 
 upon a draught of 26 feet of water," and it appeared that both 
 parties contemplated that the cargo might be loaded in a river, it 
 was held that the guarantee applied to fresh water as well as to 
 salt (A). 
 
 In Mackni v. Wright (I), the shipowners guaranteed that the 
 vessel should "carry not less than 2,000 tons dead weight of 
 cargo." And should she not carry the " guaranteed weight," a 
 deduction from the freight was to be made. The cargo was to 
 consist of " such goods and merchandise as the charterers or their 
 agents shall tender alongside." But the character of the intended Specified 
 cargo was discussed between the charterers and shipowners at the ° 
 time of making the coiitract. It was to be a general cargo, con- 
 sisting in part of machinery which would occupy stowage room out 
 of proportion to its dead weight ; and a note specifying the largest 
 pieces was written on the margin of the charter party. The char- 
 terers, in fact, sent many more large pieces for shipment than had 
 been represented, and in consequence the ship did not carry 2,000 
 tons weight. They claimed a deduction from the lump freight. 
 But it was held in the House of Lords that, as the cargo shipped 
 was different from that contemplated, they were not entitled to a 
 deduction. The guarantee as to weight did not extend to any kind 
 of cargo which might be sent. 
 
 (A) 25 L. J., Q. B. at p. 351. (^) The Norway, U L. T. 57 ; 13 
 
 L. T. SO. 
 (i) The Resolven, 9 T. L. R. 75. (^) 14 a. C. 106. 
 
168 
 
 THE CONTRACT, 
 
 Sect. 141a. All the Lords agreed, however, that the expression " dead weight 
 of cargo " must be read as heing " something more than a mere 
 guarantee of carrying capacity. It is a guarantee of the vessel's 
 carrying capacity with reference to the contemplated voyage, and 
 the description of the cargo proposed to he shipped, so far as that 
 description was made known to the owners " {m). 
 
 On the other hand, in Carnegie v. Conner (w), where the charter 
 provided for a cargo of creosoted sleepers and timbers, with 
 100/200 tons of general cargo at charterer's option, it was held by 
 Huddleston, B., and Mathew, J., that a clause " owner's guarantee 
 ship to carry at least about 90,000 cubic feet, or 1,500 tons dead 
 weight of cargo," did not mean that the ship would be able to 
 carry that amount of the cargo specified ; but merely that she had 
 an actual carrying capacity of 90,000 cubic feet, or 1,500 tons. 
 
 EfEeot of 
 "about." 
 
 142. In Morris v. Levison (o), the ship was to load " a full and 
 complete cargo of iron ore, not exceeding what she could reasonably 
 stow, &c., say about 1,100 tons." The charterer loaded 1,080 
 tons, but the ship could have taken 1,210. It was held that effect 
 must be given to the words, " say about 1,100 tons," and that 3 
 per cent, was a fair excess to allow ; so that the charterer ought to 
 have loaded 1,133 tons. 
 
 In The Besolven {p), the ship was represented to be able to carry 
 " 2,000 tons or thereabouts " ; this was considered to mean a 
 quantity not differing more than 5 per cent, from 2,000 tons. 
 
 Statement of 143. The position of the ship at the time of making the charter 
 
 tion. ^ ^°^" party is generally important to the charterer ; and the statement 
 
 made in the charter party with regard to it has frequently been 
 
 (m) Per Ld. Maonaghten, 14 A. C. 
 p. 120 ; and see per Ld. Halsbnry, 
 p. 114, and per Ld. Watson, p. 116. A 
 smularviewwas taken by A. L. Smitb, J., 
 in Wood V. Allen, tried at Liverpool, 
 Aug. 1st, 1890, wittout a jury. The 
 charter there provided for a cargo of 
 ' ' deal ends, firewood, and fifty standards- 
 of broom handles." And it stated that 
 the ship had "carried 640 standards." 
 The judge held that this was a guarantee 
 that she could carry 540 standards of the 
 agreed cargo. So that it was not satis- 
 fied by showing that she had carried 
 640 standards of planed boards, a lighter 
 
 cargo. The ship in fact took on board 
 only 472 standards, and was then fully 
 deep. It was suggested that the wood 
 was wet and heavy. The evidence 
 showed that she had on previous 
 occasions carried 520 standards of the 
 kind of timber agreed ; and damages 
 were aooordiugly given for the loss on 
 20 standards. See also Potter ». New 
 Zealand Sh. Co., 64 L. J., Q. B. 689, 
 infra, s. 261. 
 
 («) 24 Q. B. D. 45. 
 
 (o) 1 C. P. D. 156. Cf. Bomer v. 
 Miller, 82 L. T. 258. 
 
 (p) 9 T. L. R. 75. 
 
CONTRACTS BY CHAETEE PARTY. 169 
 
 held to be a sulDstantive part of the contract. Thus, in Behn v. Sect. 143. 
 
 Burness {q), in a charter party dated October 19th, 1860, the ship 
 
 was stated to be " now in the port of Amsterdam," and she was to 
 
 sail with all possible despatch to Newport, to take cargo. On the 
 
 15th of October, the ship had been at Nieuwediep, about sixty-two 
 
 miles from Amsterdam; but owing to contrary winds she was 
 
 detained there until after the 19th, and she did not reach the docks 
 
 at Amsterdam until the 23rd. Her cargo was then discharged 
 
 with all despatch, and she at once proceeded to Newport. The 
 
 charterer refused to load her ; and it was held in the Exchequer 
 
 Chamber that he was entitled to do so. 
 
 " The place of the ship at the date of the contract, when the 
 ship is in foreign parts and is chartered to come to England, may 
 be the only datum on which the charterer can found his calcula- 
 tions of the time of the ship arriving at the port of lading. A 
 statement is more or less important in proportion as the object of 
 the contract more or less depends upon it. For in most charters, 
 considering'-winds, markets, and dependent contracts, the time of 
 a ship's arrival to load is an essential fact for the interest of the 
 charterer. In the ordinary course of charters in general, it would 
 be so. The evidence for the defendant shows it to be actually so 
 in this case. Then, if the statement of the place of the ship is a 
 substantive part of the contract, it seems to us that we ought to 
 hold it to be a condition, upon the principles above explained, 
 unless we can find, in the contract itself or the surrounding 
 circumstances, reason for thinking that the parties did not so 
 intend." 
 
 So, where a charter represented the vessel as " now at sea, 
 having sailed three weeks ago," whereas she had not in fact sailed 
 three weeks before, it was held that the charterers were not bound 
 to load her (r). And where shfe was described as " expected to be 
 at Alexandria about the 15th of December," that was a promise 
 for the breach of which the charterer could sue. The promise 
 was broken if the ship was in such a part of the world, and under 
 such engagements that she could not perform them and arrive by 
 the day named (s). 
 
 (?) 32 L. J., Q. B. 204 ; Oppenheim Bentsen v. Taylor, (1893) 2 Q. B. 274. 
 V. Eraser, 34 L. T. 524. Cf. Dimeoh v. (s) Corkling ». Massey, L. R., 8 C. P. 
 
 Corlett, 12 Moo. P. C. 199. 396. Where a time is fixed for arriviag, 
 
 (r) Ollive v. Booker, 17 L. J., Ex. 21 ; or sailing, infra, ss. 219—221. 
 
170 THE CONTEACT. 
 
 Sect. 144. 144. The representation that the ship is " tight, staunch and 
 Eepreseuta- strong, and every way fitted for the voyage," seems to be equi- 
 sta^ch'^&o!" "talent to the warrant of seaworthiness and fitness, which, as we 
 have seen {t), is implied by law on the part of the shipowner. 
 But whereas the warranty at law applies to the condition of the 
 ship on sailing with the cargo (m), the words in the charter party 
 apparently relate either to the time at which the contract is 
 made (»), or to the time of sailing for the loading port. 
 
 The warranty of seaworthiness on sailing from the port of 
 loading is, however, implied by the law, although there be an 
 express warranty in the charter which relates only to the time of 
 sailing for that port. Thus, in Seville Sulphur, &c. Co. v. 
 Colvils {x), where the charter provided that the ship " heing tight, 
 staunch and strong, and every way fitted for the voyage, shall" 
 proceed to Seville, and there load, it was held that she was bound 
 to be seaworthy on sailing from Seville. And the charterer 
 recovered, on the ground that this warranty was broken, though 
 the defect was not an original one, but lay in the muddy state of 
 the water which had been taken into the boilers just before leaving 
 Seville. 
 Diatinotion Satisfaction of the warranty at law, by providinsr the ship at 
 
 from ordinary , ^ ■, -,■ ■ n ■, 
 
 ■warranty of the port of ladmg m a fit state to carry the agreed cargo on 
 the agreed voyage, is a condition precedent to the charterer's 
 obligation to load her {y). 
 
 On the other hand, the express representation of the charter 
 party as to her condition, so far as that relates to the time prior 
 to her arrival at the port of loading, does not constitute a con- 
 dition precedent. The charterer is bound to load her, if she is 
 fit and seaworthy at the loading port, although she may have 
 not been so at the time of the contract, or at the time when she 
 sailed for that port from the place at which she was lying when 
 chartered (z). 
 
 And, on the principles above referred to, it seems that no action 
 
 {t) Supra, 83. 17—21. Caswell, 20 Fed. Rep. 249. 
 
 («) Supra, s. 21. {y) Stanton v. Riohardson, L.E., 70. 
 
 {v) Scott V. Foley, 5 Com. Ca. S3. P. 421 ; L. R., 9 C.P. 390. Affirmed in 
 
 {x) 25 So. L. R. 437 ; and see per H. L., see 1 Q. B. D. at p. 381. 
 Ld. Shand in Cunningham «!. Colvils, 26 (2) TarrabocHa v. HicMe, 26 L. J., 
 
 So. L. R. 249, p. 260. See also Thin v. Ex. 26 ; Hudson v. Hill, 43 L. J., C. P. 
 
 Richards, (1892) 2 Q.B. 141; Bowringv. 273. Cf. Dixon v.Heriot, 2 F. & P. 
 
 Thebaud, 66 Fed. Rep. 520 ; Sumner v. 760. 
 
 seaworthi. 
 nes9. 
 
CONTEACTS BY CHARTER PARTY. 171 
 
 would lie for a iDreaoIi of this representation (a). An action will, Sect. 144. 
 however, lie for an improper delay in reaching the port of loading 
 arising from want of diligence on the shipowner's part in having 
 her fit, or in other respects. And in some cases subh delay may 
 entitle the charterer to refuse to load (b). 
 
 145. In Stanton v. Richardson (e), the ship was to sail to a port Fitness for 
 of loading and there load a " full and complete cargo of sugar in dition preoe- 
 bags, hemp in compressed bales, ^ measurement goods," and ^^ ' 
 different rates of freight were specified for wet and for dry sugar. 
 The ordinary statement of the condition of the ship did not appear 
 in the charter party, but it contained a clause that, " The master 
 engages that the vessel, before and when receiving cargo, shall be 
 a good risk for insurance ; and during the voyage the master shall 
 take all proper means to keep the vessel tight, staunch and strong, 
 well manned and provided, and in every way. fitted and provided 
 for the voyage." The charterers provided a cargo of wet sugar, 
 and when the chief part had been loaded it was found that there 
 was such an accumulation of draiaage from the sugar in the hold 
 that the ship would not be seaworthy. An attempt was made to 
 pump out' this drainage, but the ship's pumps, though of the usual 
 kind, and sufficient for ordinary purposes, could not do the work, 
 and there were no means of procuring sufficient pumps within 
 several months. The cargo was discharged, and the charterer 
 refused to reload it, or to load any other instead. An action was 
 brought by the shipowner against the charterer for not loading a 
 cargo, and a cross-action by the charterer against the shipowner 
 for not providing a fit ship. The jury found that the cargo 
 offered was a reasonable one ; that the ship was not reasonably fit 
 to carry such a cargo ; and that she could not be made so within 
 such a time as would not have frustrated the object of the adven- 
 ture. Upon these facts it was held that the charterer was entitled 
 to refuse to load any further cargo, and to claim damages from the 
 shipowner for not providing a fit ship. He was not bound to load 
 the ship while its unfitness continued, and as that could not be 
 remedied in a time consistent with the object of the voyage, he was 
 altogether absolyed. 
 
 (a) But see Porter v. Izat, 1 M. & W. Of. Behn v. Bumess, 32 L. J., Q. B. at 
 
 381. p. 207. And see Chap. VIII. 
 
 (6) Preeman v. Taylor, 8 Bing. 124 ; (c) L. E., 7 C. P. 421 ; L. E., 9 C. P. 
 
 TarrabooMa v. HioMe, 26 L. J., Ex. 26. 390. 
 
172 THE CONTRACT. 
 
 Sect. 145. The question did not ttere arise, but if the defect of the ship 
 had heen remedied by the shipowner, without such delay as to 
 frustrate the adventure, probably the charterer 'would not have 
 been entitled to reject the ship, though he might have claimed 
 compensation for any loss sustained through the delay. 
 
 In case of 146. If a vessel is chartered for a specified period of time, 
 
 the charterer will not be bound to take her unless she is ready 
 and fit at, or shortly after, the commencement of that period. 
 A ship was chartered for as many consecutive voyages between 
 Sunderland and London as she could enter upon within twelve 
 months after the completion of the voyage she was then upon. 
 That voyage was completed, and the owner gave notice that she 
 would be ready to load on April 9th under the charter party. 
 But the Board of Trade officer objected to her loading, on 
 the ground of unseaworthiness; and, though she was repaired 
 promptly, she was not ready until June 17th. The Court of 
 Appeal, affirming the Queen's Bench Division, held that the 
 charterer was not bound to load her at all {d). 
 
 There was some difference of opinion in that case, in each of 
 the Courts, as to the extent of the delay needful to entitle the 
 charterer to throw up the contract. The majority of the Court 
 of Appeal (Kelly, C. B., Mellish, L. J., and Amphlett, J. A.) 
 gave judgment on the ground that, " as in a charter for a voyage 
 the specified voyage would be of the essence of the contract, and 
 the charterer, if he could not have the use of the vessel for the 
 specified voyage, would not be bound to take her for any other 
 voyage ; so, in a charter for time, if the charterer cannot have 
 the vessel for the specified time, he is not bound to take the 
 vessel for a shorter time or a substantially different time; and 
 if he cannot get the vessel for the specified time, he may throw 
 up the charter" (e). But Brett, J., agreed with the judgment, 
 not " on the ground that there is, in such a charter, a warranty 
 that the ship should be seaworthy on the day when the charter is 
 to commence, with a right to reject the ship if the warranty is not 
 complied with, nor on the principle that time was of the essence 
 of the contract, but on the ground that, under the circumstances 
 proved at the trial, the jury might, and indeed should, in reason 
 have found that the ship was not fit for the purpose for which 
 
 (rf) Tully V. Howling, 2 Q. B. D. 182. («) 2 Q. B. D. pp. 187, 188. 
 
CONTRACTS BY CHARTER PARTY. 173 
 
 eke was chartered, and could not be made fit ■within any time Sect. 146. 
 which would not have frustrated the object of the adventure " (/). 
 Where a tug was chartered for salving purposes for a period of 
 one or four weeks, " commencing from the 8th September, at 
 which date the vessel is to be at the disposal of the charterers at 
 Greenock," it was held that she ought to have been ready for the 
 service at the beginning of the 8th of September. A failure to be 
 ready to sail from Grreenook until 2.30 p.m. of that date was a 
 breach (g). 
 
 147. "We have discussed in Chapter I. the degree of a ^hip- CHaraoterof 
 owner's responsibility apart from express contract, where he lets undertakings, 
 the use of the whole ship to one person. That discussion, how- 
 ever, related only to the carrying of goods when they have 
 
 actually been delivered to him. The degree of obligation to go 
 to a loading port, to get them, must depend upon the terms of 
 the contract. 
 
 The undertakings of the shipowner under a charter party in 
 the ordinary form, as to proceeding to the port of loading and 
 there loading, and afterwards proceeding to the port of discharge 
 and delivering, are in terms absolute, subject to the excepted 
 perils. And the remarks already made with regard to the under- 
 takings in an ordinary bill of lading seem to apply to a charter 
 party also {h). 
 
 The ordinary exceptions of perils in a charter party are those 
 which we have considered in reference to bills of lading («). 
 Other exceptions, peculiar to charter parties, e.g., as to providing a 
 cargo, will be more conveniently discussed hereafter. As also will 
 the other clauses which relate to the performance of the contract. 
 
 148. A doubt sometimes arises as to when during the agreed When does 
 voyage the ordinary exceptions of perils apply. Do they relate okuleTpply? 
 only to that part of it in which the ship is carrying the charterer's 
 
 goods ? Or do they also cover risks which frustrate or delay the 
 voyage before the goods are taken on board ? Say, in going to 
 the port of loading, and during the loading there. 
 
 (/) 2 Q. B. D. pp. 188, 189. (i) Chap. III. As to the construction 
 
 / \ ■««• 1- ■ T-jj 11 -in a n of exceptions introduced into a charter 
 (g) Mackenzie v. Liddell, 10 Sess. Ca. ^ 
 
 by reference to a lorm oi bill of lading, 
 
 (4th) 706. ggg Houston v. Sansinena, 66 L. T. 246 ; 
 
 (A) Supra, B. 74. Of. infra, s. 227. 68 L. T. 567. 
 
174 THE CONTKACT. 
 
 Sect. 148. Where such and such perils are to he " always excepted," the 
 shipowner seems to he relieved from Hahility for any failure to 
 perform his contract, if caused hy those perils, whenever they may 
 have occurred. But where the clause runs " during the voyage 
 always excepted," as it frequently does, there may be an amhiguity 
 in the word " voyage." 
 
 If the vessel is to proceed to a different port from that at which 
 she is lying, and load there, the voyage thither is considered to he 
 part of the chartered voyage, even though the vessel he allowed hy 
 the charter to take, and in fact takes, a cargo outwards for other 
 mer(fliants ; and although in doing so she proceeds first to another 
 port, out of the route to the loading port {k). And if the vessel is 
 prevented, or delayed in getting to the loading port [1) ; or if the 
 loading is prevented, or a loss occurs during the loading, at that 
 port {m), by a peril excepted "during the voyage," the exception 
 applies. 
 
 So, again, where the vessel is lying at her port of loading ; if she 
 has to move from the place at which she is lying to a loading 
 berth, the " voyage " to which the exceptions relate commences as 
 soon as she breaks ground to go to that berth (n). 
 
 But it seems that the exceptions do not apply to matters which 
 may happen before the ship has entered upon the voyage dealt 
 with by the charter party (^). So that if she were disabled by 
 perils of the sea while still completing a voyage, on which she was 
 engaged, at the time of chartering, the shipowner would not he 
 excused. 
 
 If the ship is to be loaded at the place where she is lying, it does 
 not appear to be settled whether the " voyage " may begin before 
 she has commenced her transit, in such a sense that the exceptions 
 may relate to risks during, or prior to, the loading. In Crow v. 
 
 (A) Hudson V. Hill, 43 L. J., 0. P. preyented her reaching Barrow tOl the 
 
 273. In Donaldson v. Little, 10 Sess. 16th, and again from reaching Glasgow 
 
 Ca. (4th) 413, the vessel was to load a till the 26th. Held that there had been 
 
 cargo at Barrow for Glasgow, and was no breach of the warranty, 
 
 warranted to arrive at Glasgow "not _. 
 
 later than Oct. 14th, unforeseen cir- ^^^^ Harrison v. Garthorne, 26 L. T. 
 cixmstances excepted." She sailed from 
 
 Glasgow on Oct. 11th, with an outward W Bruce v. Kicolopulo, 24 L. J., Ex. 
 
 cargo for Dubliu, in time under ordi- 321 ; The Carron Park, 15 P. D. 203. 
 
 nary circumstances to have got back to SeeNottebohnj).Eiohter, 18Q. B.D. 63. 
 
 Barrow, loaded there, and returned to («) Barker v. M'Andrew 34 L. J. 
 
 Glasgow by the 14th. But bad weather C. P. 191. 
 
owner? 
 
 CONTRACTS BY CHAETER PARTY. 175 
 
 Ealk (o), it was decided that it did not. But that decision has Sect. 148. 
 more than once been dissented from (p). 
 
 149. Where the exceptions relate to the whole of the charter It does not 
 party, a failure of the shipowner to start for the loading port hy an terer's right 
 agreed date will be excused, if it was caused by an excepted not arriving 
 peril (g'). And so, also, of a failure to arrive by an agreed date (r). ™ ti™^- 
 
 But this does not affect the right of the charterer, if any, to 
 cancel the contract, in consequence of such a failure. That right 
 remains ; whether it arose under an express clause giviag the 
 charterer an option to cancel, should the ship not sail, or not arrive, 
 by an agreed date (s), or only by implication, from a stipulation 
 that she should sail [t), or should arrive, before a given date. 
 
 150. It has been said that the clause of exceptions in the charter Does it relate 
 party is introduced " for the benefit of the master, not of the mer- as w^V. as 
 chant " (m) ; and in Blight ». Page («), Lord Kenyon held that the 
 charterer was not excused from providing a cargo where that had 
 been prevented by a prohibition of the Russian Gf^overnment, 
 though the charter excepted restraints of princes and rulers during 
 the voyage. 
 
 Perhaps, however, this depends upon the manner in which the 
 clause is introduced. Where the contract is in the form of separate 
 covenants, and the shipowner's covenant alone contains thp excep- 
 tion clause, the construction that he only is to have the benefit of 
 it seems necessary; and is well supported by authority (^z). But 
 where the charter party is in the ordinary form of a mutual agree- 
 ment, with the exception clause after the several clauses that relate 
 to the voyage to the port of loading, the loading there, and the 
 voyage to and delivery at the port of discharge (and not specially 
 referring to any one of these), it would seem that the exceptions 
 are as apphoable to the charterer's part, of loading and unloading, 
 
 (o) 15 L. J., Q. B. 183. (s) Smith v. Dart, 14 Q. B. D. 105. 
 
 (o) See per Pollock, 0. B., Bruce v. , v ^ , . -„, , 
 
 ■NT- 1 1 o^ T T i? on, J ('') Crookewit v. Fletcher, 26 L. J., 
 
 Nicolopulo, 24 L. J., Ex. 321 ; and per -p ico 
 
 WiUes, J., Barker v. M'Andreiv, 34 ' " 
 
 L. J., C. P. 191 ; The Oarron Park, 15 {«) Per Lord Alvanley in Touteng v. 
 
 P. D. 203. Cf. Valente v. Gihbs, 28 Hubbard, 3 B. & P. p. 298. 
 
 L. J., 0. P. 229 ; The Accomao, 15 , , , -d . x, „„. 
 
 p jj 208. (x) S B. & P. 295, n. But cf. per 
 
 I \' a ' TIT _i_- T. /-(_ 1 -1. Blackburn, J., Greipel v. Smith, L. R.. 
 
 (?) See per Martin, B., Crookewit v. n q j, \-,-, •^'^•"i, -lj. a.., 
 
 Fletcher, 26 L. J., Ex. 153, at p. 159. ^' ^' 
 
 (r) Harrison v. Garthome, 26 L. T. {y) Sjoerds w. Lusoombe, 16 East, 201; 
 
 508. Storer v. Gordon, 3 M. & S, 308. 
 
176 THE CONTEA.CT. 
 
 Sect. 150. as they are to the shipowner's part of bringing the ship to the 
 ports of loading and discharge, and safely deKvering (a). Blight 
 V. Page (6), however, appears to he an authority to the contrary. 
 
 In Grarston Co. v. Hickie (c), it was held that the exception 
 clause in a charter party did not qualify a subsequent clause which 
 provided that the freight should be paid " less cost of coals or coke 
 delivered short of bill of lading quantity." Part of the cargo of 
 coals was lost owing to perils which were excepted. StUl the 
 charterers were allowed to deduct the cost of that part from the 
 freight. 
 
 It is now a frequent practice to express that the ordinary risks 
 are " mutually excepted " ; and in such a case, at any rate, the 
 exceptions protect the charterer as well as the shipowner {d). 
 
 (a) See per Marfan, B., in Ford v. [b) 3 B. & P. 295, n. 
 
 Coteswortli, L. E,., 5 Q. B. at p. 548 ; («) 18 Q. B. D. 17. 
 
 Barrie v. The Peruvian Corporation, (<?) Bruce v. Nioolopulo, 24 L. J., Ex. 
 
 2 Com. Oa. 30. 321. 
 
CHAPTER V. 
 
 BILLS OP LABING GIVEN ON SHIPMENTS IN A CHARTERED 
 
 SHIP. 
 
 177 
 
 SECT. 
 
 Bills of lading given to charterer . . 151 
 
 In hands of transferees 152 
 
 Bills of lading giyen to other ship- 
 pers — 'Where charterer temporary 
 
 owner 153 
 
 Responsibility of shipowner to 
 
 shipper , 154 
 
 Does the master usually contract 
 
 as charterer's agent f 155 
 
 Semhle, the master contracts as agent 
 of the shipowner — Although biU 
 of lading signed as required by 
 charterer , 156 
 
 BEOT. 
 
 Whether shipper has notice of the 
 
 charter party or not . , . . , 157 
 
 Independent contracts by charterer 158 
 
 Wagstaffl V. Anderson , 159 
 
 Bill of lading in the hands of a 
 stranger to the charter party — 
 " Other conditions as per charter 
 
 party" 160 
 
 Master's authority to give bill of 
 lading — Bills to be signed "as 
 required " — Limit of authority. . 161 
 
 " Clean biUs of lading " 161a 
 
 Indemnity by charterer 161b 
 
 Parties not ad idem — Smidt v. Tiden 162 
 
 151. The usual practice is for the master or agent of the ship to Bills of lading 
 give bills of lading for the cargo, although it may he shipped ^arterer. 
 under a charter party. When the charterer himself ships the 
 goods, these biUs of lading operate as receipts for them, and also 
 as documents of title which he can negotiate, and thereby con* 
 struetively transfer the possession of the goods {a). 
 
 But they do not, as between the shipowner and the charterer, 
 operate as new contracts (fi), or as modifying the contract in the 
 charter party. Though after taking and negotiating bills of lading 
 for one port, the charterer cannot alter the ship's destination to 
 another port (c). 
 
 (a) As to the owner's duty to give 
 biUs of lading, see Jones v. Hough, 5 
 Ex. D. 115. As to charterer's duty 
 to present bills of lading for signature, 
 Oriental Steamship Co. v. Tylor, (1893) 
 2 Q. B. 518. 
 
 (b) Rodocanachi v. Milbum, 17 Q. B. 
 C. — 0. 
 
 D^. 316 ; 18 Q. B. D. 67. See perBram- 
 well, L. J., in Wagstafi v. Anderson, 5 
 C. P. D. at p. 177. Per Lush, J., in 
 Capper v. "Wallace, 5 Q. B. D. at p. 166 ; 
 The San Roman, L. R., 3 A. & E. 683 ; 
 Gledstaues v. AUen, 12 C. B. 202. 
 (c) Davidson v. Gwyiine, 12 East, 381. 
 
 N 
 
178 THE CONTRACT. 
 
 Sect. 152. 152. Where, however, a bill of lading given to the charterer has 
 In hands of heen transferred for value to third persons, who are strangers to 
 transferees, ^j^^ gjiarter party, its terms become very important. It then 
 constitutes an undertaking on the part of the shipowner with the 
 holders, which is independent of the charter party, except so far 
 as that is expressly incorporated in it (d) ; and that is so although 
 the holders may have notice, from the bill of lading itself, that a 
 charter party is in existence (e). 
 
 Whether the bill of lading s.o transferred is binding upon the 
 shipowner where it has been issued to the charterer in an improper 
 form, without the shipowner's authority, may be doubtful (/). 
 The charterer, through whom the holders of the bill of lading 
 claim, must generally have known of the improper conduct or 
 absence of authority. And if the assignee had the same know- 
 ledge when he gave value for it, it seems clear that he cannot rely 
 on it as against the shipowner. But the policy of the law is to 
 maintain the negotiability of the biU of lading. Probably, there- 
 fore, it would be held that, although there had been fraudulent 
 collusion between the master and the charterer, the right of an 
 innocent transferee of the bill of lading, for value, to regard it as a 
 bindiug contract would not be affected (g) : unless, indeed, the bill 
 of lading were such as to put anyone taking it upon inquiry (h). 
 
 The shipowner is not, however, bound by the statement of the 
 bUl of lading as to the weights or quantities of the goods com- 
 prised in it, although it may have passed to consignees or indorsees 
 who have paid for the goods relying on that statement («). 
 
 BiUs of lading 153. When the charterer does not ship the cargo himself, but 
 
 Sippers."''^^'^ procures a cargo to satisfy the charter party from other merchants, 
 
 questions arise as to who is responsible to those shippers for the 
 
 performance of the contracts of carriage made with them, and who 
 
 may enforce those contracts against them. 
 
 These must be answered by considering who made the contracts. 
 
 (d) Fry v. Chartered Mercantile Bani, 2 Q. B. 282 ; 539. And see oases supra, 
 
 L. R., 1 C. P. 689 ; ChappeU v. Comfort, note (d). 
 
 31 L. J., C. P. 58 ; Shand v. Sanderson, (/) See Grant v. Norway, 20 L. J., 
 
 28 L. J., Ex. 278 ; Foster c. Colby, 28 0. P, 93 ; Faith v. East India Co., 4 B. 
 
 L. J., Ex. 81 ; Bills of Lading Act, 1855 & A. 630 ; and infra, b. 161. 
 
 (18 & 19 Viot. i;. Ill) ; Gardner v. Treoh- (g) The EmiUen Marie, 32 L. T. 435. 
 
 mann, 16 Q. B. D. 154. Per Lord Esher, (h) Cf. Small v. Moates, 9 Bing. 574. 
 
 in Leduo v. Ward, 20 Q. B. D. 475, See Chap. XVIII. 
 
 P- *^^- {») Brown v.. Powell Coal Co., L. R.,, 
 
 («) Manchester Trust ti.Furness, (1895) 10 C. P. 562. And see swpra, s. 69. 
 
BILLS OF LADING GIVEN ON SHIPMENTS IN CHARTERED SHIP. 179 
 
 If the charterer has himself, or by his agents, agreed with the Sect. 153. 
 shippers on his own behalf, he is answerable for the carriage of the 
 goods accordingly. So witii the shipowner, if he made them. 
 But uncertainty arises when the contract has been made with the 
 master, for he may possibly be regarded as agent either for owner 
 or charterer. 
 
 If the charter party is such as to give the charterer possession 0^ Where ohar- 
 the vessel, as well as the right to use her carrying capacity, so that rary o™er." 
 the vessel is, in effect, let to him, and the master in charge of her 
 is his servant, then the owner is not in the position of a carrier, 
 either as regards the charterer or anyone else, and there is no 
 reason for regarding the master as actually, or presumptively, his 
 agent in contracting with shippers {k). 
 
 In Newberry v. Colvin {I), a vessel had been chartered to one 
 Betham, who was by the charter party appointed to the command 
 of her for a voyage to Calcutta and back, with liberty to make 
 intermediate voyages in the Bast Indies. He was to pay freight 
 for her in proportion to the time, and was to have the freights 
 earned on the cargoes. The owners appointed and paid the crew, 
 and supplied the provisions and stores. And they sent an agent in 
 the ship, who was to control the use of the stores and to purchase 
 what might be required. Also, this agent was empowered to 
 appoint another master in place of Betham, should he be guUty of 
 any breach of the contract, in which case he was to be divested of 
 the command (m). 
 
 At Calcutta, goods were shipped by merchants who knew the 
 terms of the charter party, under a bill of lading signed by 
 Betham. These goods were not duly delivered, and the question 
 was whether the owners were responsible under the contract. It 
 was held in the House of Lords, affirming the Exchequer Chamber, 
 which had reversed the King's Bench, that they were not. Betham 
 was considered to be, under the charter party, the temporary owner 
 of the ship, and the contract was made by and with him, not as 
 agent for the owners, but on his own behalf. 
 
 " Under these circumstances, we think the captain, in putting 
 up the ship as a general ship and signing bills of lading, cannot 
 
 (k) BamuwoU, &o. ■„. Pnmess, (1893) (?) 7 Bing. 190. 
 
 A. C. 8 ; (1892) 1 Q. B. 253. SeeOhap. (m) See the charter party more fully 
 
 IV. as to when the charter party has this stated supra, s. 116; and see the other 
 
 efEeot. cases there cited. 
 
 N 2 
 
180 
 
 THE CONTRACT, 
 
 Sect. 153. be considered as acting as the servant or agent of the shipowners, 
 or in any other manner than as the temporary owner of the 
 ship " (m). 
 
 Responsi- 
 bility of 
 shipowner to 
 shipper. 
 
 154. But where the charter only gives the charterer the right 
 to the use of the ship, leaving the possession and control of her 
 with the owner, the question — With whom does the shipper, under 
 a bill of lading signed by the master, contract? — is less clearly 
 settled. 
 
 If the master is in possession of the ship as servant of the 
 owner, it is well established that a shipper who puts his goods on 
 board, and takes a bill of lading from the master, in ignorance of 
 any charter party, is entitled to regard the owner as the person 
 who contracts to carry the goods, and that he may sue him for a 
 breach of the contract (o). Cockburn, 0. J., delivering the con- 
 sidered judgment of the Court in Sandeman v. Scurr {p), said: — 
 " We think that so long as the relation of owner and mastgr con- 
 tinues, the latter, as regards parties who ship goods in ignorance 
 of any arrangement whereby the authority ordinarily incidental 
 to that relation is afBected, must be taken to have authority to bind 
 his owner by giving bills of lading. We proceed on the well- 
 known principle that, where a party allows another to appear 
 before the world as his agent in any given capacity, he must be 
 liable to any party who contracts with such apparent agent in a 
 matter within the scope of such agency. The master of a vessel 
 has by law authority to sign bills of lading on behalf of his owners. 
 A person shipping goods on board a vessel, unaware that the vessel 
 has been chartered to another, is warranted in assuming that the 
 master is acting by virtue of his ordinary authority, and therefore 
 acting for his owners in signing bills of lading. It may be that, 
 as between the owner, the master, and the charterer, the authority 
 of the master is to sign bills of lading on behalf of the charterer 
 only, and not of the owner. But, in our judgment, this altered 
 
 («) Per Tindal, L. C. J., 7 Ring, 
 p. 208. 
 
 (o) Sandeman v. Sonrr, L. R., 2 Q. B. 
 .86 ; Parish v. Crawford, Abbott (5th), 
 19 ; (11th), i. 1, 8 ; 2 Str. 1251 ; The St. 
 Cloud, 8 L. T., N. S. 54; The FigKa 
 Maggiore, L. R., 2 A. & E. 105 ; The 
 Patria, L. R., 3 A. & E. 436 ; Haym v. 
 Oulliford, 3 C. P. D. 410 ; 4 0. P. D. 
 
 182 ; Manchester Trust v. Pumess, 
 (1895) 2 Q. B. 282 ; 639. But see James 
 V. Jones, 3 Esp. 27 ; Mackenzie v. Eowe, 
 2 Camp. 482. As to the right of a 
 charterer from the master to look to the 
 shipowner, where the vessel is under a 
 time charter, see The Joseph, 4 Times 
 L. R. 693. 
 
 [p) L. R., 2 Q. B. 86. 
 
Bills op lading given on shipments in chaetered ship. 181 
 
 state of the master's authority will not affect the liability of the Sect. 154. 
 owner, whose servant the master still remains, clothed with a 
 character to which the authority to hind his owner by signing bills 
 of lading attaches by virtue of his office. "We think that, until 
 the fact that the master's authority has been put an end to is 
 brought to the knowledge of a shipper of goods, the latter has a 
 right to look to the owner as the principal with whom his contract 
 has been made." 
 
 Probably the same rule applies to cases in which the shipper is 
 aware that the ship is under charter ; unless the charter in effect 
 provides that the master shall not contract with shippers on behalf 
 of the shipowner, and unless the shipper had knowledge of that 
 when he shipped (q). 
 
 At any rate, that is the established rule as regards indorsees of 
 the bill of lading for value. In Manchester Trust v. Furness (r), 
 the shipment was made by charterers under a charter party which 
 contained the following special clause : — " The captain and crew, 
 although paid by the owners, shall be the agents and servants of 
 the charterers for all purposes, whether of navigation or otherwise, 
 under this charter. In signing bills of lading it is expressly 
 agreed that the captain shall only do so as the agent for the char- 
 terers ; and the charterers hereby agree to indemnify the owners 
 from all consequences or liabilities (if any) that may arise from 
 the captain signing bills of lading or otherwise complying with 
 the same." A biU of lading was given for the shipment, signed 
 by the master, reserving freight " and other conditions as per 
 charter party " ; and this was indorsed by the charterers to their 
 bankers as security. 
 
 The Court of Appeal, affirming Mathew, J., held that, notwith- 
 standing the above clause, the master was in fact the servant of 
 the shipowners; and that the indorsees were not affected with 
 notice of the clause, and could sue the shipowners on the biU of 
 lading. " The effect of the reference " to the charter party, in the bill 
 of lading, " is to incorporate so much of the charter party as relates 
 to the payment of freight and other conditions to be performed on 
 the delivery of the cargo. But there is no authority whatever for 
 incorporating more than that. What is wanted in this case is to 
 
 (?) See per Lord Esher, in BaumwoU, &c. v. Gilohrest, (1892) 1 Q, B., at p. 258. 
 {r) (1895) 2 Q. B. 282 ; 539. 
 
182 
 
 THE CONTEACT, 
 
 Does the 
 master 
 usually con- 
 tract as 
 charterer's 
 agent? 
 
 Sect. 154. say that, by reason of the reference to the charter party, the holder 
 of the hill of lading and the person who takes it in the ordinary 
 course of business are to be treated as having notice of all the 
 contents of the charter party. There is no doctrine that goes to 
 anything like that extent; and as regards the extension of the 
 equitable doctrines of constructive notice to commercial transactions, 
 the Courts have always set their faces resolutely against it " (s). 
 
 155. But it has been said that in these transactions the charterer 
 is really the principal, and that the master, in giving bills of lading 
 to shippers, is acting not only for the charterer's benefit, but as his 
 agent. The point was raised in Marquand v. Banner {t), where 
 the owner of the chartered ship claimed the freight payable under 
 the bills of lading, as against the charterers. 
 
 The ship had been chartered at a lump freight for a voyage from 
 Liverpool to Buenos Ayxes, payable partly by freights on some of 
 the goods, which were to be collected at Buenos Ayres, and the 
 balance by an acceptance at three months after sailing. The 
 master was to sign bills of lading, as requested by the charterers, 
 at any rate of freight that might be filled in, and made payable in 
 any manner they might choose, without prejudice to the charter 
 party. Accordingly he signed bills of lading for certain goods 
 shipped by other merchants, as presented, making the freights 
 payable in Liverpool one month after saOing. 
 
 The charterers failed after the ship had sailed, but before the 
 freights under these bills of lading became payable; and the 
 question was, whether the shipowner was entitled to require that 
 they should be paid to him. It was held that he was not. 
 
 Wightman, J., said: — "The question is, whether, under the 
 circumstances stated, the master is entitled to require that the 
 freights payable under the biUs of lading should be paid to 
 him; and that depends upon whether the contracts made by 
 the master were made by him as agent of the charterers or for 
 the shipowner. It seems to me, looking to the terms of this 
 charter party, difficult to raise any doubt as to the master being 
 the agent for this pui'pose of the charterers, and not of the ship- 
 The ship is let by the owner for a particular voyage, and 
 
 owner. 
 
 for a lump sum as freight, and in the most unlimited terms the 
 charter provides that the master shall, at the charterers' request, 
 
 (s) Per Lindley, L. J., (1895) 2 Q. B., at p. 515. 
 
 {i) 25 L. J., Q. B. 313. 
 
BILLS OF LADING GIVEN ON SHIPMENTS IN CHAETEKED SHIP. 183 
 
 sign tilla of lading in the usual manner, and in any manner the Sect. 155. 
 charterers might choose. Unlimited power, therefore, is given 
 to the charterers to direct the master in what manner and upon 
 what terms biUs of lading shall he signed, and here the bills of 
 lading are not signed by the master in any way to prevent the 
 charterers from saying that the contract was made by them." 
 (He read the bill of lading.) " It does not specify to whom the 
 freight is to be paid, and the right to receive it depends upon the 
 question, for whom was the master acting as agent in making the 
 contract? So far as the party shipping the goods is concerned, 
 the principal being unnamed, the shipowner might be the person 
 to whom he looked; but when the true principal appears, and 
 shows that the master, who might act as the agent of the ship- 
 owner, was really acting as the agent of the charterers, then the 
 charterers are entitled to recover the freight under the terms of 
 the present charter. Whatever might be the rights of the 
 charterers if this charter did not contain the terms that it does, the 
 charterers here must be considered as the owners of the ship, and, 
 therefore, the plaintiff is not entitled to recover." 
 
 This decision seems to have been approved, and the grounds 
 of it adopted as sound, by Lord Campbell, in Schuster v. 
 McKellar(M). He said: "Notwithstanding some early con- 
 flictiilg decisions, it seems now settled by a numerous class of 
 cases, from Newberry v. Colvin to Marquand v. Banner, that 
 where there is a hiring of the ship, according to the second form 
 above specified («), with the intention that the charterer shall 
 employ the ship as a general ship for his own profit, when the 
 master signs bills of lading he does so as the agent of the 
 charterer, not of the owner. But still, the owner being in 
 possession of the ship by his master and crew, he has rights in 
 respect of this possession (as to claim a lien on board for freight 
 due to him), and he is liable for the acts and negligence of the 
 master, as master, irrespective of the contracts entered into 
 by the master with the shipper of goods as agent for the 
 charterers." 
 
 But in Gilkison v. Middleton (y), the decision in Marquand v. 
 Banner (z) was doubted. Oresswell, J., said, " It seems to me the 
 
 (») 26 L. J., Q. B. 281, at p. 288. a state fit for mercantile adventure. 
 
 {x) Looatio navis et operamm magistri {y) 26 L. J., 0. P. 209. 
 
 et nanticorum — a demise of the ship in (z) 25 L. J., Q. B. 313. 
 
184 
 
 THE CONTEACT. 
 
 Sect. 155. 
 
 Semhle, the 
 master con- 
 tracts as 
 agent of the 
 shipowner. 
 
 case of Marquand v. Banner must have proceeded on the authority 
 ■ of Colvin V. Newberry (a), in the House of Lords, affirming the 
 judgment of the Exchequer Ohamher ; but that was a decision that 
 the hirer of a vessel, who was also master, must be taken as pro 
 tempore owner." And WiUes, J., said, " With respect to Marquand 
 V. Banner, that case must rest on the ground stated by my brother 
 Cresswell, and I cannot see how it can be sustained on any 
 other." 
 
 Now it seems clear that the charter in Marquand v. Banner did 
 not put the ship into the possession of the charterer, nor make him 
 temporary owner, as was the case in Newberry v. Oolvin ; nor was 
 the master who gave the biUs of lading himself the charterer, or 
 the servant of the charterer ; so that the above dicta appear to be 
 adverse to the decision in that case. 
 
 156. The shipowner, as we have seen, is generally bound by 
 the bill of lading contracts which the master has made ; he can- 
 not, as against strangers to the charter who have shipped goods, 
 or who have become consignees or indorsees of the bills of lading 
 for value, claim to set up rights under the charter party which are 
 inconsistent with the terms of those bills of lading {b) ; although 
 notice of the existence of a charter party be given by the bills of 
 lading themselves (6). Moreover, he cannot safely deliver the 
 goods to the charterer without regard to the bills of lading, and 
 may therefore refuse delivery until those are produced, although 
 the charterer demand the goods (c). 
 
 It would seem, then, that the shipowner is a party to the bill of 
 lading contract ; and, that being so, he must be entitled, on his 
 side, to treat the contract of the shipper as made with himself as 
 principal, and to sue for breaches of it. This is, in fact, recognized 
 by allowing him to make claims under the bills of lading against 
 consignees ; for example, for demurrage {d) and for freight (e), 
 even though the biUs of lading refer to a charter party. 
 
 (a) 1 Cl. & F. 283. 
 
 (b) Fry 4). Chartered Mercantile Bank, 
 L. R., 1 C. P. 689 ; Smith v. Sieveking, 
 24 L. J., Q. B. 267 ; affirmed, 5 E. &B. 
 589 ; Serraino v. Campbell, (1891) 1 
 Q. B. 283 ; Manchester Trust v. Fur- 
 ness, (1895) 2 Q. B. 282, 539 ; Diede- 
 richaen v. Farquharson, (1898) 1 Q. B. 
 150, And see Chap. XVJII. 
 
 («) Erichsen v. Bark worth, 27 L. J., 
 Ex. 472 ; 28 L. J., Ex. 95. 
 
 (<?) Porteust'. Watney, 3 Q. B. D. 634. 
 
 [e) NeiU v. Ridley, 9 Ex. 677; and 
 per Bramwell, L. J., Wagstaff v. 
 Anderson, 6 C. P. D. at p. 177. If 
 necessary, the owner will heoome a 
 trustee for the charterer. In Smidt v. 
 Tiden, L, R., 9 Q. B. 446, no doubt 
 
BILLS OF LADING GIVEN ON SHIPMENTS IN CHAETEKED SHIP. 185 
 
 In effect, then, the contract is with the shipowner ; and the Sect. 156. 
 master should be regarded as having made it on his behalf, and 
 not on behalf of the charterer. And this is the more consistent 
 view. For if the master is agent for the charterer in giving the 
 bills of lading, his agency ceases at that point ; in carrying out 
 the contract he clearly acts as servant of the owner. 
 
 Moreover, this view is not inconsistent with the terms of those Although 
 charters which expressly stipulate that the master shall sign biUs of lading 
 bills of lading as required by the charterers. Such a charter ohSS^^^ ^^ 
 party provides that the owner shall give the use of his ship to 
 the charterer ; and one agreed manner of doing this is, that the 
 goods of third persons shall be carried, for the charterer's profit, 
 if any can be got, under bills of lading to be signed by the 
 master. The provision that the master shall sign the bills of 
 lading is not a mere authority to him to do so, it is an agree- 
 ment that he shall do so, for breach of which the owner is liable 
 to an action by the charterer (/). That provision, also, is nearly 
 always accompanied by the qualification that the bills of lading 
 are to be signed " without prejudice to this charter party ; " which 
 indicates that the shipowner is meant to be bound by the bills 
 of lading, though not so as to affect his rights against the char-s 
 terer (g). 
 
 The meaning, then, of the stipulation that the master shall' 
 sign bills of ladiug seems to be, that the shipowners shall, through 
 the master, contract with shippers, for the charterer's benefit (h) ; 
 and not that the master shall do so as agent for the charterer. 
 The master signs "not exactly as agent of the charterer, but 
 because he is bound to sign by reason of the charter party " («). 
 
 157. If the above is the true view, it follows that when the Whether 
 bill of lading is in the hands of a shipper, or indorsee, who is a notira of the 
 stranger to the charts party, the contract shown by it is one charter party 
 between him and the shipowner ; and may be enforced by and 
 against the shipowner accordingly. Also, that that is true 
 
 was suggested in the judgment that the to the bOl of lading freights, where the 
 
 master might sue for freight on behalf ship is chartered at a lump sum ; 
 
 of the owner. Janentzky v. Langridge, 1 Com. Ca» 
 
 (/) Jones V. Hough, 5 Ex. D. U5 ; 90. But of. The Canada, 13 T. L. K.. 
 
 The Princess, 70 L. T. 388. 283 ; see infra, s. 599. 
 
 (y) Infra, s. 161. {«) Per Lush, J., Smidt v. Tiden, 
 
 , (A) As between. the shipowner and the L. R., 9 Q. B., p. 447. And see The 
 
 charterer, the latter is generally entitled EmiUen Marie, 32 L, T. 435. 
 
186 
 
 THE CONTRACT. 
 
 Sect. 157. whether the shipper or indorsee had notice of the charter party 
 or not ; unless he also had notice by the charter party that the 
 master had no authority to give such a bill of lading for the 
 shipowner. For if the contract was made by the master as agent 
 for the owner, and with his authority, its binding force does not . 
 depend upon any absence of notice, or merely apparent agency of 
 the master ih). 
 
 If indeed the master is not acting as master on behalf of the 
 owner, as when the owner has let the ship out and out for the time 
 being, and has no interest in her working, then the owner must be 
 made liable, if at all, on the ground that he has in some way held 
 out the master as his agent (1). 
 
 Independent 
 contracts by 
 charterer. 
 
 Anderson. 
 
 158. It is, however, consistent with this view that the contract 
 of the shipper may in particular cases be with the charterer, 
 and not with the shipowner. Sometimes, for example, the char- 
 terer treats the vessel as his own, and himself gives bills of lading 
 to the shippers, without any intervention of the master («) ; he 
 himself, perhaps, taking one bill of lading for the whole cargo. 
 In such a case it seems clear that the remedy of the shippers on 
 their contracts is agaiast the charterer only ; though they might 
 be able to proceed against the shipowner for acts done to the goods 
 improperly by the master (ii). And, on the other^ hand, the 
 freight payable by the shippers belongs to the charterer, not to the 
 shipowner (o). 
 
 Or, again, there may be two contracts with the shipper, one 
 made by the charterer, and another by the shipowner. The 
 charterer may undertake that room shall be provided for the 
 goods in the ship, and that they shall be accepted on board, for 
 carriage upon agreed terms ; and the master may satisfy that 
 undertaking by taking the goods, and giving a bill of lading on 
 behalf of the shipowner to carry on those terms {p). 
 
 159. In WagstafE v. Anderson {p) a ship had been chartered for 
 a voyage from London to Callao. By the charter she was to 
 
 [k) But see Major v. White, 7 C. &P. 
 41 ; and the judgments in Sandeman 
 V. Sourr, L. B., 2 Q. B. 86 ; The St. 
 Cloud, 8 L. T. 64. 
 
 {T) See Baumwoll, &o, v. Fumess, 
 (1893) A. 0. 8 ; (1892) 1 Q. B. 263. 
 
 {m) Herman v. Eoyal Exchange Ship- 
 ping Co., 1 Cab. & Ell. 413. 
 
 («) Haynti. Culliford, 4 C. P. D. 182. 
 
 (o) ZwUchenbart v. Henderson, 22 
 L. J., Ex. 234. 
 
 {p) See Wagstafl v. Anderson, 4 C. 
 P. D. 283 ; 5 C. P. D. 171. 
 
BILLS OF LADING GIVEN ON SHIPMENTS IN CHAETEEED SHIP. 187 
 
 receive, at suoli loading Taertli as the charterers might appoint, all Sect. 159. 
 
 such lawful goods as might he required ; the whole ship was to 
 
 he at the charterer's disposal ; the master and owners were to give 
 
 the same attention to the cargo, and in every respect remain 
 
 responsible to all whom it might concern, as if the ship were 
 
 loaded in her herth by and for the owners independently of the 
 
 charterers ; and the master was to sign bills of lading at any rate 
 
 of freight the charterers might require, without prejudice. The 
 
 ship, on being loaded, was to proceed to Callao and deliver the 
 
 cargo agreeably to bills of lading, the act of God, &c., excepted. 
 
 The charterers were to pay a lump freight by their acceptances at 
 
 ninety days from the ship's final sailing from Gravesend, or in 
 
 cash, less discount, at captain's option ; but the owners were to 
 
 accept in satisfaction of freight all bills of lading hearing freight 
 
 payable abroad, not exceeding one-third of the amount of the 
 
 charter. The charterers' liability, except for freight, to cease on 
 
 the vessel being loaded. 
 
 The charterers, " acting for owners," entered into an agreement 
 with the plaintifis that the ship should receive a quantity of 
 cement from them for conveyance to Oallao at a certain rate of 
 freight, and the plaintiffs shipped the cement under bills of lading 
 signed by the master. In the course of the voyage the vessel was 
 forced to put into Monte Video ; and being unable to carry them 
 on, the master sold the plaintiffs' goods under circumstances which 
 did not justify the sale. The plaintiffs sought to make the 
 charterers responsible. 
 
 It was held that they were not liable. For i£ the agreement 
 that the cement should be received on board was made by the 
 charterers on their own behalf, it had been performed; and as to 
 the contract to carry the goods, they were not in the position of 
 shipowners, nor had they so contracted as to make themselves 
 personally responsible (q). 
 
 (j) Thesiger, L. J., said (5 0. P. D. would be able to bind the shipowners in 
 at p. 180) : " The goods, the sale of connection with the goods. But it is 
 which is the subject of dispute, were open to the plaintiffs to negative the 
 carried under a biU of lading, aniprimd presumption of the liability of the ship- 
 facie the master in signing that bill of owners in two ways ; either by showing 
 lading would be acting on behalf of the that the transactions between the ship- 
 persons who were the shipowners, and owners and the defendants were such as 
 the shipowners would be the persons reaUy put the defendants for that par- 
 responsible for the carriage of the goods, ticular voyage in the position of the 
 and for aU things to which the agent shipowners, according to the principles 
 
188 
 
 THE CONTBACT, 
 
 Sect. 160. 160. When the bills of lading are in the hands of strangers to 
 
 " Other con- 
 ditions as per 
 charter 
 party." 
 
 Bm of lading the charter party, either as original shippers or as indorsees to 
 Sas^trar^er whom the property has passed, they show the contract under 
 to the charter -v^liich the goods are being carried ; and the shipowner's claims, 
 exemptions, and liens on the cargo, given by the charter party, 
 are not preserved as against such shippers or indorsees, except so 
 far as those terms of the charter are expressly incorporated in the 
 bill of lading. 
 
 Eeference to the charter party is very commonly made in the 
 bill of lading by expressing that the goods are to be delivered on 
 payment of the freight " and all other conditions as per charter 
 party," and there has been much discussion as to what terms of the 
 charter are imported by those words. The context must in each 
 case be looked at, but the general result of the cases is that the 
 words meafl " all those conditions of the charter party which are 
 to be performed by the consignee of the goods" (r). 
 
 Thus, in Russell v. Niemann (.s), it was held that they did not 
 import into the bill of lading an exception of perils which appeared 
 in the charter party but not in the bill of lading. Willes, J., 
 delivering the judgment, held that the stipulations included were 
 " Kmited to conditions ejusdem generis with that previously men- 
 tioned, viz., payment of freight — conditions to be performed by 
 the receiver of the goods." The same view was taken by the full 
 
 laid down in Colvin v. Ne-wberry (1 0. & 
 F. 283) ; or that, although the transac- 
 tions between the shipowners and the 
 defendants did not put the defendants in 
 the position of shipowners, yet they had 
 so conducted themselves, or so contracted 
 with the shippers of the goods, as to make 
 themselvespersonaUy responsible." And 
 after showing that the charter party 
 did not put the charterers in the position 
 of shipowners, he continued: "What, 
 shortly, is the meaning of that docu- 
 ment ? We haTe in this case foreign 
 shipowners. They have their ship in 
 the port of London, and are anxious to 
 obtain a full cargo for that ship. They 
 deal with a London firm of shipbrokers, 
 men to whose responsibility they may 
 very well look, and they might reason- 
 ably argue, ' There is a real risk, if we 
 put up our ship as a general ship, of not 
 obtaining a full cargo, but if we can get 
 
 a shipbroker of responsibility to guaran- 
 tee us a certain lump freight, he taking 
 the chances of filling up the ship in such 
 a way as to get a freight beyond that 
 lump freight, we shall be quite ready, 
 for that lump freight, to come under all 
 the responsibilitiea and liabilities which 
 shipowners ordinarily come under.' 
 That seems to me — apart from any ques- 
 tion of custom, which has not been 
 proved — to be a reasonable agreement, 
 and one which, judging from its lan- 
 guage, the parties contemplated and 
 entered into . That disposes of the point : 
 as to whether the real transaction was 
 such as to substitute the defendants for 
 the shipowners." 
 
 (>•) Per Lord Esher, Serraino J). Camp- 
 bell, (1891) 1 Q. B. 283, at p. 290 ; per 
 Lindley, L. J., in Manchester Trust v. 
 Tumess, (1895) 2 Q. B., at p. 545. 
 
 {«) 17 C. B., N. S. 163. 
 
BILLS OF LADING GIVEN ON SHIPMENTS IN CHARTERED SHIP. 189 
 
 Court of Session in Scotland, in Delaurier ». Wyllie (t) ; and by Sect. 160. 
 the Court of Appeal, in Serraino v. Campbell («) . And in Diede- 
 richsen v. Farquharson («), the Court of Appeal (Rigby, L. J., 
 dissenting) held that the same construction applied where the 
 words were "freight and all other conditions as per charter party," 
 omitting the word " paying." 
 
 In an unreported case of Taylor v. Perrin, in the House of Lords, 
 referred to in the last mentioned cases. Lord Blackburn spoke of 
 Russell v. Niemann as correctly deciding " that the reference to 
 the charter party is meant to bring in those conditions which would 
 apply to the person who has taken the bill of lading, and in taking 
 delivery of the cargo,, such as payment of demurrage, the payment 
 of freight, the manner of paying, and so on, but is by no means to 
 be taken to incorporate all the conditions of the charter party." 
 
 In Gullischen v. Stewart (y) it was held that " other conditions 
 as per charter party " did not bring into the bill of lading a cesser 
 clause in the charter ; that being inconsistent with its character as 
 a bill of lading. And in Hamilton ». Maokie (s) a clause in the 
 charter requiring disputes under it to be referred to arbitration was 
 held to have no appUoation to the biU of lading, and was, therefore, 
 not brought in. 
 
 It follows, a fortiori, that terms of the charter party which are 
 inconsistent with those of the bill of lading are not incorporated by 
 the words we are considering. Thus, in Gardner v. Trechmann (a), 
 they did not make the indorsee of the bill of lading liable for part 
 of the charter freight, which ought to have been paid at the port of 
 loading ; for under the bill of lading the goods were deliverable on 
 payment of the freight there stated. Nor was any lien under the 
 charter, for the unpaid freight, there preserved against the indorsee ; 
 that also being inconsistent with the bill of lading. 
 
 Liens given by the charter party may, however, be preserved, as 
 conditions which an indorsee of the bill of lading must satisfy, 
 although there may be no personal liability of the indorsee for the 
 amount secured by the lien. For example, with regard to claims for 
 dead freight, or demurrage at the port of loading (6). The subject 
 will be discussed hereafter (c). 
 
 {t) n Sess. Ca. (4th) 167. («) 15 Q. B. D. 154. 
 
 W 25 Q. B. D. 501 ; (1891) 1 Q. B. (j^ g^^ ^^^^ ^ ^arr, L. R., 6 Q. B. 
 
 (x) (1898) 1 Q. B. 150. ^^^ ' *^^ *"-^'"''' ^' ^^^' *^ *° demurrage 
 
 (y) 13 Q. B. D. 317. clauses. 
 
 («) 5 Times Rep. 677. (e) Infra, ss. 668 ei seq. 
 
190 THE CONTRACT. 
 
 Sect. 161. 161. It is doubful how far the master has authority in the 
 Master's absence of express provision to sign bills of lading which do not 
 
 g?Te Mi^of ° preserve the owner's rights under the charter. The charterer cannot 
 lading. apart from express agreement require him to do so [d). But as 
 
 against shippers who have no notice of the terms of the charter 
 party, or of the extent of the master's authority, and who are not 
 put upon inquiry by any peculiarity in the transaction (e), a bill of 
 lading in an ordinary form is within the master's apparent autho- 
 rity, and is binding on the shipowner (/). 
 Bills of Jading The common clause that the master shall "sign bnis of lading 
 by master "as ^s required by the charterer, without prejudice to the charter 
 required. party," gives an express authority from the owner which appears 
 to be unlimited. The provision that the charter party is not to be 
 prejudiced is rather a condition of the contract with the charterer 
 than a limitation of the master's authority. It means that, not- 
 withstanding any engagements made by the bills of lading, the 
 contract. between the parties to the charter is to stand unaltered {g). 
 The object of the whole clause generally is that biUs of lading 
 may be signed which shall reserve such freights as may be procured 
 by the charterer, and thus give him' an opportunity of making a 
 profit upon the charter rates. Not uncommonly the bUls of lading 
 are to be signed " at such rates of freight " as may be required by 
 the charterer ; and even where the words are wider it is difficult to 
 suppose that the intention can be to leave the whole character and 
 terms of the bill of lading to the charterer's uncontrolled discretion. 
 In AiTOspe v. Barr {h), the question was discussed in the Court 
 of Session whether the captain, having a claim for dead freight 
 and demurrage at the port of loading, could properly refuse to 
 sign bills of lading unless they referred to the charter party; so as 
 to preserve the liens there given for such claims. The charter party 
 
 [d) Hyde v. Willis, 3 Camp. 202. Cf . to the charter, but he said the shippers 
 Reynolds v. Jex, 34 L. J., Q. B. 251. "must be taken to have acted under the 
 
 (e) SmaU «. Moates, 9 Bing. 674. authority of the freighter, and must be 
 
 deemed to have notice of the charter 
 
 (/) SandemanB.Scurr, Ii. R., 2Q. B. party and its contents." This view has 
 
 86. In Christie v. Lewis (2 B. & B. not, however, been followed in the later 
 
 410), it was said by Burrough, J., that cases. Cf. Peek v. Larsen, L. R., 12 
 
 where the goods to be shipped under a Eq. 378 ; The Stomoway, 46 L. T. 773. 
 
 charter were to be such as were sent by {g) Per PoUook, C. B., Shand v. San- 
 
 the freighter, the actual shippers could deraon, 28 L. J., Ex. p. 282 ; Gledstanes 
 
 not be considered strangers to the i). Allen, 12 C. B. 202 ; Hansen v. 
 
 charter party. The bUls of lading were Harrold, (1894) 1 Q. B. 612. 
 
 in the ordinary form, and did not refer (A) 8 Sess. Ca. (4th Ser.) 602. 
 
BILLS OP LADING GIVEN ON SHIPMENTS IN CHARTERED SHIP. 191 
 
 required him " to sign bills of lading as presented at any rate of Sect. 161. 
 freight without prejudice to this charter party." The opinion was 
 expressed by the Lord President (Inglis) and by Lord Shand, that 
 he was entitled to insist on the words " other conditions as per 
 charter party." 
 
 But in Hansen v. Harrold {i), where the captain was to sign bills 
 of lading " at the current or any rate of freight required without 
 prejudice to this charter party," it was held by the Court of 
 Appeal that the captain could not have insisted on words in the 
 bill of lading to preserve the hen, given by the charter party, for the 
 charter party freight. Davey, L. J., after referring to Airospe v. 
 Barr, said, " I do not think that the case is an authority for more 
 than this, viz., that, except so far as the rate of freight is concerned, 
 he ought not to sign any bill of lading which contains provisions 
 at variance with the charter party. I am not prepared to say, if 
 the captain had insisted on having created by the bill of lading a 
 Hen in favour of the shipowner, not only for the bill of lading 
 freight, but also for the charter party freight, that such a" stipula- 
 tion would have been consistent with the obligation to grant a bill 
 of lading at any or (it may be) a lower rate of freight " [k). 
 
 In Eodocanaohi v. Milburn [l), the clause was, "The master to 
 sign bill of lading at any rate of freight, and as customary at port 
 of lading, without prejudice to the stipulation of this charter party, 
 receiving the difference, if less than the rates specified therein, at 
 port of lading." Much doubt was expressed as to the effect of the 
 words " as customary at the port of lading." Lord Esher thought 
 it impossible to suppose that they meant that the bill of lading 
 was to be in the form customary at the port of lading ; and that 
 they probably referred to the mode of signature. Lindley, L. J., 
 was clearly of opinion that they did not mean that the captain was 
 to have authority to sign bills of lading containing stipulations 
 contradicting the provisions of the charter party {m). 
 
 Clauses of this kind do not at any rate empower the master to Limits of 
 sign bills of lading for more goods than have been put on board, authority, 
 so as to estop the shipowner from disputing the quantities stated in 
 
 (i) (1894) 1 Q. B. 612. L. E., 10 Ex. 274, p. 290 ; and per 
 
 (A) (1894) 1 Q. B. p. 621. Of. BramweU, L. J., Jones ». Hough, 5 Ex. 
 
 Brankelow Steamship Co. v. Canton Ins. D. 115, at p. 124. 
 
 Office, (1899) 2 Q. B. 178 ; also per (Z) 17 Q. B. D. 316 ; 18 Q. B. D. 67. 
 
 Kelly, C. B., in Gabarron v. Kreeft, \m) 18 a. B. D. 67, p. 78. 
 
i9S . THE CONTKACT. 
 
 Sect. 161. them («). And, on the other hand, they do not generally import a 
 -warranty by the charterers that they will not make a mistake in 
 the quantities inserted in the hiUs of lading (o). Nor do such 
 clauses generally authorise the master to give biUs of lading by 
 which the freight is to be payable to the charterer or his nominees, 
 so as to deprive the shipowner of his lien for the charter freight (p). 
 
 In Eeynolds v. Jex (p), the charter party provided that bills of 
 lading should be signed " at any rate of freight, without prejudice 
 to this charter." The master, ia consideration of getting advances, 
 gave a bill of lading for goods shipped by the charterer's agents, 
 making freight payable at the destination to third persons ; this 
 was held invalid, and a lien on the goods for a balance of the 
 charter freight was maintained. 
 
 In the Canada (p), the captain was to sign bills of lading " at 
 the current or any rate of freight required, without prejudice to 
 this charter party .... and should the freight list, according 
 to bills of lading, show a less sum in the aggregate than chartered 
 freight .... the difference to be paid in cash prior to the 
 ship's clearance at the custom house." One of the biUs of lading 
 was signed by the master making the freight on the goods payable 
 at the port of loading; and that freight was paid there to the 
 charterer, who failed however to pay in cash the diEEerence 
 between the charter freight and the amount of bill of lading 
 freight to be collected at the. destination. It was held by Sir F. 
 Jeune that this bill of lading was given without authority ; that 
 the payment to the charterer did not discharge the shippers ; and 
 that the shipowners were entitled to a lien on the goods for the 
 usual freight, which was taken to be that named in the bill of 
 lading. The shippers were third -persons, but they had had notice 
 of the terms of the charter party. 
 
 ''Clean bills 161a. Sometimes the expression used is that "clean bills of 
 of lading." in.,, i . 
 
 lading are to be given. These words do not, however, seem to 
 
 bear any definitely settled meaning {q). Used in the present 
 
 (n) Brown v. Powell Coal Co., L. E., Arrospe v. Barr (8 Seas Ca. (4th) 602), 
 
 10 C. p. 662. and various meanings were given to 
 
 (") ^ii^- them. The Lord President (Inglis) 
 
 {p) Reynolds v. Jex, 7 B. & S. 86 ; said (p. 607): "It appears to me that 
 
 34 L. J., Q. B. 251 ; The Canada, 13 a clean hill of lading must be construed 
 
 T. L. E. 238. Cf. The ShiUito, 3 Com. with reference to the circumstances of 
 
 C^- **■ each particular case. If there is a 
 
 (?) The words were much discussed in matter in dispute between parties as to 
 
BILLS OF LADING GIVEN OK SHIPMENTS IN CHAETEEED SHIP. 193 
 
 connection, they protably import that there must be nothing on Sect. I61a. 
 
 the face of the bill of lading to denote that the shipowner has any 
 
 claim against the goods except for the freight. As between a 
 
 vendor and a purchaser the words would probably also refer to 
 
 the description of the goods, and require that there be nothing 
 
 which denotes that they are defective in condition or quantity. 
 
 In Eayner v. Rederiaktiebolaget Condor (r) the charter party 
 required the captain to " sign charterers' bills of lading as presented 
 without qualification, except by adding weight unknown, within 
 twenty-four hours after being loaded, or pay 10/. for every day's 
 delay as and for liquidated damages, until the ship is totally lost 
 or the cargo delivered." The captain refused to sign the bills of 
 lading presented, without first inserting words" to signify an obli- 
 gation to pay certain claims for demurrage, &c., at the port of 
 discharge. Mathew, J., held that the charterers were entitled to 
 nominal damages, but not to the penalty of 10/. a day. 
 
 161b. In time charters it is usual to insert an indemnity by the Indemnity 
 charterers against consequences of their requiring the master to 
 sign bnis of lading. Such an indemnity must be read with the 
 obligations of the shipowner under the charter, and will generally 
 relate only to Kabilities consequent upon an increase of obligation 
 imposed by the bill of lading. 
 
 the conditions on which the voyage is shand (p. 611) thought "that the true 
 
 to take place, and the goods are to be meaning was that the captain shall sign 
 
 carried and delivered, there a 'clean ' taig of lading, which, from their terms, 
 
 bill of lading will have reference to the T^iu entitle the holder to delivery of the , 
 
 subjeotof that dispute, and the meaning cargo as there described on payment 
 
 of it wiU be that the master will not simply of the freight, or, at least, on 
 
 cumber his bill of lading with any payment of an amount which may be 
 
 allusion to it. Other cases may be ascertained on the face of the biU of 
 
 imagined in which difficulties are fore- lading itself." 
 
 seen, not as subjects of regular dispute, in Eestitution Steamship Co. v. Pirie 
 
 bat where there are difficulties antici- (61 L. T. 330), Cave, J., after expressing 
 
 pated, and if these form an element in a difficulty about the matter, adopted a 
 
 the discussion between the parties, and definition from Maude and PoUock's 
 
 the master signs the biU of lading, it Merchant Shipping (4th ed., p. 341), to 
 
 will be understood that it is to exclude the effect that » clean bill of lading is 
 
 all reference to such difficulties." one which acknowledges the shipment 
 
 Lord Mure (p. 608) was of opinion of such and such goods, in good order, 
 
 that "a clean bUl of lading must mean a without any quaUfioation, such as 
 
 bill in the ordinary uniform style reoog- < ' weight unknown." 
 nized in all ports of this country, and 
 
 without any special stipulations different W (1895) 2 Q. B. 289 ; and see The 
 
 from that ordinary style." WhileLord Princess, 70 L. T. 388. 
 
 c. — c. o 
 
194 
 
 THE CONTEACT. 
 
 Sect. 161b. In Milbum v. Jamaica, &o. Co. (s), the charter required the 
 captain to sign bills of lading at any rate of freight, and the 
 charterers agreed "to indemnify the owners from any consequences 
 that may arise from the captain following the charterers' instruc- 
 tions and signing bills of lading." The charter excepted liability 
 for negligence of the master, &c. The ship took on board govern- 
 ment stores, and under the charterers' directions the captain gave 
 bills of lading for them which contained no negKgence clause. 
 Owing to negligent navigation of the ship she collided with 
 another ship, and had to put back, and expenses were inouired by 
 the shipowners which would ordinarily be made good in general 
 average. No contribution could, however, be recovered from the 
 Gj-ovemment in respect of the stores, owing to the omission of the 
 negligence clause. The shipowners claimed the amount from the 
 charterers under the indemnity claim, and it was held they were 
 entitled to recover it. 
 
 Parties not 
 ad idem. 
 Smidt V. 
 Tiden. 
 
 162. Smidt v. Tiden (t) illustrates another kind of difficulty 
 which may occur where the shipment is made through the inter- 
 vention of a charterer. A ship had there been chartered by the 
 master to Lyth, a shipbroker, to carry a cargo of railway iron to 
 Grothenburg ; the freight, at the rate of 7s. 3d. per ton, to be paid 
 in London on signing bills of lading. The owner to have a lien 
 for freight. The master to sign bills of lading without prejudice 
 to the charter. 
 
 Lyth then chartered the ship to the defendants for the same 
 cargo and voyage, afEecting to act as broker in the matter, but 
 having no authority to do so. Under this charter the freight was 
 to be at the rate of 8s. per ton, and was to be paid in London on 
 signing bills of lading. 
 
 The iron was shipped by the defendants under a bill of lading 
 given for it by the master, making the freight payable " as per 
 charter party," and it was delivered at Gothenburg without any 
 freight having been paid to the shipowner. Lyth had, however, 
 in the meantime obtained payment from the defendants of the 8s. 
 a ton, under the charter made by him vdth them. The question 
 was, whether the master could recover any freight from the 
 defendants. 
 
 («) 4 Com. Ca. 331. Cf. Park v. Duncan, 25 Sess. Ca. (4th) 528. 
 (t) L. E., 9 Q. B. 446. 
 
BILLS OF LADING GIVEN ON SHIPMENTS IN CHARTERED SHIP. 195 
 
 It was held that he ooiald not, either on the bill of lading or Sect. 162. 
 on an implied contract to pay reasonable freight for the carriage. 
 " The bill of ladiag being ambiguous and equally capable of being 
 applied to the one charter party as to the other, we cannot hold it 
 to be a contract, or evidence of a contract, between the parties. It 
 does not express that which was common to both minds, and 
 
 therefore it is not biadiag upon the parties At no stage 
 
 of the transaction were the parties ad idem. It follows that there 
 was no contract, express or implied, upon which the plaintiff can 
 recover against the defendants " (m). 
 
 («) As to a right of lien in such a case, see per Lush, J., L. E., 9 Q. B. at 
 p. 450 ; The Canada, 13 T. L. E. 238 ; Eeynolda v. Jex, 34 L. J., Q. B. 251.' 
 
 o2 
 
196 
 
 THE CONTRACT. 
 
 CHAPTER VI. 
 
 ON THE CONSTRUCTION OF THE CONTRACT ; AND THE EFFECT 
 OF CUSTOMS OF TRADE. 
 
 SECT. 
 
 Introductory 163 
 
 The dooument must govern, so far 
 as clear 164 
 
 Indefinite or amlbiguoas terms .... 165 
 
 Construction is for the judge 166 
 
 Evidence of extrinsic facts — Pre- 
 vious couise of business 167 
 
 Ordinary meaning of words gene- 
 rally adopted — Technical words. . 168 
 
 Words having special trade mean- 
 ings — Geographical terms 169 
 
 Presumption that special meaning 
 Tvas intended 170 
 
 Evidence of mere opinion is not 
 relevant 171 
 
 Words to be construed " contra pro- 
 ferentem " 172 
 
 Effect to he given to whole docu- 
 ment — Printed clauses 173 
 
 Conditions precedent 174 
 
 When the character of the under- 
 taking is affected 176 
 
 Independent promises not amount- 
 ing to the whole consideration . , 176 
 
 Conditions not available after con- 
 sideration partly received — 
 Waiver of conditions 177 
 
 Nor if the failure of the condition is 
 due to the party who reUes on it. 178 
 
 Implied terms — Reasonable per- 
 formance 179 
 
 Ambiguity of " reasonable " 180 
 
 Reference to trade practices— Not 
 necessarily uniform 181 
 
 SECT. 
 
 Illustrations 182 
 
 A custom may add terms to the 
 contract 183 
 
 May bind persons ignorant of it — 
 Effect of employing agent 184 
 
 It must be known outside the 
 trade in order to bind persons 
 ignorant 185 
 
 A custom annexing a term must be 
 definite and uniformly adopted . . 186 
 
 Otherwise where some implied term 
 is required 187 
 
 Custom will not generally deter- 
 mine an accidental question .... 188 
 
 A custom must be reasonable .... 189 
 
 Illustrations 190 
 
 A general custom contrary to law 
 not valid 191 
 
 Where no rule of law exists , 192 
 
 Former practice of taking opinions 
 of business men 193 
 
 Need of information on new mat- 
 ters ; e.g. , negotiable instruments 194 
 
 The custom must relate to the sub- 
 ject of the contract 195 
 
 It must be consistent with the con- 
 tract 196 
 
 Effect of local customs — When re- 
 cognized throughout the trade . . 197 
 
 As to matters to be performed 
 locally 198 
 
 Norden Steamship Co. v. Dempsey. 199 
 
 As against indorsee of bill of lading 200 
 
 Introductory. 163. Many of the difficulties which arise in relation to the contracts 
 we are considering, are due to doubts ahout the true e£Eect of the 
 
CONSTRUCTION OF TH^ CONTEACT AND CUSTOMS OF TRADE. 197 
 
 doouments used to express them. Sometimes the meaning of a Sect. 163. 
 word or phrase is ohscure or ambiguous ; sometimes the materiality 
 of a clause, or its effect in relation to other clauses, is uncertain. 
 It will, therefore, be well to discuss shortly the manner in which 
 these doubts are dealt with by the Courts. 
 
 Also, some discussion is needful of the manner in which terms 
 are implied into the contract by the law, and of the effect of usages 
 of trade in explaining words used in the contract ; in showing how 
 its provisions should be carried out ; and in adding qualifying or 
 independent terms to it. These matters will form the subjects of 
 this chapter. 
 
 164. In construing a commercial contract, the object must be The document 
 to arrive at the real intention of the parties to it. It is that, so so far as clear. 
 far as it can be ascertained, which must determine the meanings 
 of the words and phrases used ; their materiality, and their 
 dependence one upon another. But the intention must be judged 
 of from the expressions which the parties themselves have given 
 of it — not by reference to what might probably, or ought in fair- 
 ness to have been the intention. Men should be able to rely 
 upon the Courts to give full effect to the terms for which they 
 stipulate, and to the Kmitations they set upon the obligations 
 they undertake. The document which shows the contract is, 
 therefore, to be allowed to govern, without reserve, so far as it 
 speaks clearly. And as that document is generally to be regarded 
 as the expression by the parties of their agreement, it cannot be 
 contradicted or qualified, or added to, by any preliminary or con- 
 temporaneous agreements made between them. Nor can evidence 
 be given to show that their real intention was different from that 
 which appears in the writing, so far as that is clearly and 
 unambiguously expressed {a). Unless, indeed, there has been mis- 
 representation or mistake, or unless it can be shown that the 
 document was not meant to express the whole contract (6), or that 
 it was not to operate unless some preliminary condition were 
 fulfiUed (c). 
 
 (a) See per Blackburn, J., Peek v. Delaware, 14 Wallace, 579. 
 
 Nortli Staffordshire Kail. Co., 32 L. J., „ t t 
 
 „ „ , T. 11 1 ^ T, -NT- 1, 1 (*) See AUau v. Sundius, 31 L. J., 
 
 Q. B. 241 ; per PoUock, C. B., Nichol v. ^ ' ' 
 
 Godts, 23L. J., Ex. 314; perDenman, ^' '' 
 
 0. J., Goss V. Lord Nugent, 5 B. & Ad. (c) Bannerman v. White, 31 L. J., 
 
 58 ; Hoars v. Graham, 3 Camp. 67 ; The C. P. 28. 
 
198 
 
 THE CONTEACT. 
 
 Sect. 164. 
 
 Indefinite or 
 
 ambiguous 
 
 terms. 
 
 Construction 
 is for the 
 judge. 
 
 Evidence of 
 
 extrinsic 
 
 facts. 
 
 This rule does not, however, prevent effect being given to an 
 agreement, made at the same time, upon a matter which is collateral 
 to the contract shown by the document {d). Nor does it prevent 
 either party from showing that the contract was altered, or 
 rescinded, after it was made, either verbally or otherwise (e). 
 
 165. But where the terms used are indefinite, or capable of more 
 than one meaning, or if the materiality or effect of a clause is 
 doubtful, the doubt must be solved by reference to the meanings 
 which the parties probably attributed to those terms or provisions 
 when they made the contract (/). 
 
 Por this purpose, regard must be paid to the relations subsisting 
 between the parties at the time of entering into the contract, and 
 to its subject-matter as understood by them, and to the objects 
 they then had in view. Those who are to construe the document 
 should therefore, as far as possible, be informed with the same 
 facts, and the same business knowledge; as those who made it. 
 
 166. The duty of construing the contract, however, lies upon 
 the judge of the Court, not upon the jury. A jury may be called 
 upon to decide as to the meaning of a technical expression, or of a 
 word or phrase which may have been used in a peculiar sense; but 
 it is for the judge to say what the effect of the whole is, when he 
 has been informed of the facts, and of any such special meanings. 
 "The Court it is which, when once it is in possession of the 
 circumstances surrounding the contract, and of any peculiarity of 
 meaning which may be attached by reason of the custom of the 
 trade to any of the words of that contract, has to place the 
 construction upon the contract " {g). 
 
 167. Mercantile contracts are commonly expressed with such 
 brevity and want of definiteness, that information with regard to 
 the relative positions in which the parties stood, and to the subject- 
 matter and objects of their contract, is often very necessary to 
 
 (a!) See Erskine v. Adeane, L. E., 8 
 Ch. 756 ; Morgan v. Griffith, L. R., 6 
 Ex. 70 ; Angell v. Duke, L. E., 10 Q. 
 B. 174. 
 
 [e) White v. Parkin, 12 East, 670. 
 
 (/) An. illustration is the rule as to 
 construing general words, of indefinite 
 extent, as relating to matters ejusdem 
 generis -witli the special proTisions, pre- 
 
 ceding the general words. Eor instance, 
 see as to the meaning of "or otlierwise," 
 Norman v. Biunington, 25 Q. B. D. 
 476 ; Baersehnan v. Bailey, (1895) 2 
 Q. B. 301 ; cargo per Waikato v. New 
 Zealand Sh. Co., (1899) 1 Q. B. 56. 
 
 (^) Per Lord Cairns, Bowes v. Shand, 
 2 A. C. 455, at p. 462. Cf . Ashforth v. 
 Eedford, L. E., 9 C. P. 20 ; Alexander 
 V. Vanderzee, L. E., 7 0. P. 630. 
 
CONSTRUCTION OP THE CONTRACT AND CUSTOMS OF TRADE. 199 
 
 enable the Court to judge of the meaning (A). And if the docu- Sect. 167. 
 ment is ambiguous or indefinite, evidence on these points may he 
 given, and ought to he taken into account in construing it. 
 
 Thus, upon a question as to the meaning of a warranty in a 
 marine policy («), Lord Watson said: "In the absence of evi- 
 dence sufficient to show that a technical meaning has been attached 
 to the words ' no St. Lawrence,' or (it is probably more accurate 
 to say) in consequence of its being established by the evidence 
 that the words have no technical meaning, it becomes necessary 
 for the Court to construe them, and, in construing them, I appre- 
 hend that it is perfectly legitimate to take into account such 
 extrinsic facts as the parties themselves either had, or must be 
 held to have had, in view when they entered into the contract of 
 insurance." 
 
 In such cases the previous course of business between the parties Previous 
 may be taken into account. This was done, for example, in busmess. 
 Lewis V. Great Western Eail Co. (J), where the question was as 
 to the effect of the words " owner's risk " in a 'contract note. 
 
 BramweU, L. J., there said (k) : "I think it is a rule of evidence 
 or law that where words are used which would comprehend some 
 other than one necessarily exclusive meaning upon which the 
 judges are to put an interpretation, then, as Parke, B., said, all the 
 surrounding circumstances, and the coxrrse of dealing between 
 the parties, not only may, but must, be looked at to ascertain the 
 meaning of those words when used in reference to those surrounding 
 circumstances and that course of dealing." 
 
 And Brett, L. J., said (l) : " I apprehend that, in order to con- 
 strue a written document, the Court is entitled to have all the 
 facts relating to it, and which were existing at the time the 
 written contract was made, and which were known to both parties. 
 Certain facts existing at a time when a written contract is made 
 are sometimes customs of trade, or the ordinary usages of trade ; 
 sometimes the course of business between the parties ; sometimes 
 they consist of a knowledge of the matter about which the parties 
 
 (h) See Heffield v. Meadows, L. R., i North StafEordshire Rail. Co., 10 H. L. 
 
 0. P. 595; Morris ». Le-rison, 1 C. P. D. 0. 473; The Curfe-w, (1891) P. 131, 
 
 1S5 ; Heugh v. Esoombe, 4 L. T. 517. where letters showing the intention were 
 
 ,,T.. ■,, T^ „ . /-, o.^ ^ looked at ; but see The Nifa, (1892) P. 
 
 (i) Birrell ^. Dryer, 9 A. 0. 345, ^^ m ' \ / 
 
 P- ^^^- (A) 3 Q. B. D. at p. 202. 
 
 iJ) 3 Q. B. D. 195. Cf. Peek v. {!) At p. 208 
 
200 . THE CONTRACT. J 
 
 Sect. 167. were negotiating ; tte Court is entitled to ask for those facts to 
 enable it to oonstrue the written dojcument, not simply because they 
 are customs of trade, or the course of business between the parties, 
 but because they are facts which were existing at the time, and 
 which have a relation to the written contract, and which are things 
 which must be taken to have been known by both parties to the 
 contract." 
 
 Ordinary igg. Apart from any technical or peculiar meaning which the 
 
 meaning of ^ , , . , . 
 
 words gene- words used may be shown to have, they are to be taken in their 
 y °v ^ ■ Qr(Jinary, generally accepted, meanings. They are to be " under- 
 stood in their plain, ordinary, and popular sense, unless they have 
 generally, in respect to the subject-matter, as by the known usage 
 of trade, or the like, acquired a peculiar sense distinct from the 
 popular sense of the same words ; or unless the contract evidently 
 points out that they must, in the particular instance, and in order 
 to effectuate the immediate intention of the parties to that con- 
 tract, be understood in some other special and peculiar sense " (m). 
 
 Technical ]3^^ where a word is technical, so that special knowledge is 
 
 ■words. _ _ _ 7 ~ 
 
 required in order to arrive at its meaning, evidence on the point 
 
 may be given, and the jury should determine it (w). For example, 
 this was done as to the word " privilege," in an agreement with 
 the master of a ship, by which he was to receive a certain sum 
 " in lieu of privilege and primage " (o). So again, as to the mean- 
 ing of " ship to be addressed " to the charterer's agents (p). 
 
 Words having 169. Again, a word or phrase used may have a peculiar, or 
 meankig^^ ^ ^ Specially limited sense in the trade, although it may be an 
 ordinary, well-known expression, and free from any apparent 
 ambiguity (q). If so, evidence of its meaning may be given. 
 The object is to get at the real effect to the parties of the terms 
 used ; and if they have acquired secondary meanings in connec- 
 tion with particular kinds of transactions, it is as important to 
 have them translated, as if the contract were in a foreign language. 
 Thus, a "thousand" rabbits, in a lease, was shown to mean 
 by custom a hundred dozen (r) ; a " year," in a theatrical agree- 
 ment, meant only that part of the year during which the theatre 
 
 (m) Per Lord Ellenborough, Robert- (y) See per Lord Cairns, Bowes v. 
 
 son V. French, 4 East, at p. 136. Shand, 2 A. C. 455, p. 468 ; Myers v. 
 
 in) Hills V. Evans, 3] L. J., Ch. 457. Sari, 30 L. J., Q. B. 9. Cf. Holt v. 
 
 [o) Birch v. Depeyster, 4 Camp. 385. CoUyer, 16 Oh. D. 718. 
 
 {/l Hibbert v. Owen, 2 F. <S; E. 502. (r) Smith v. Wilson, 3 B. & Ad. 728. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OP TRADE. 201 
 
 was open (s) ; " days " for disoharging, in a bill of lading, were Sect. 169. 
 found by a jiiry of the oity of London to mean, by usage, working 
 days (t) ; and in Chaurand v. Angerstein (m), the phrase " to sail in 
 the month of October" was shown to have an understood meaning 
 among underwriters, that the ship was to sail between October 25th 
 and November 2nd. 
 
 " A full and complete cargo of sugar and molasses," was shown 
 to mean a full cargo of sugar and molasses packed in hogsheads 
 and puncheons, though when so packed the ship could not be 
 completely filled {v). So, where freight on cotton was payable at 
 so much " per ton of fifty cubic feet," evidence was admitted to 
 show that this meant fifty cubic feet of the cotton after being com- 
 pressed at the loading port (Bombay), and before expansion {x). 
 
 A signature, by the broker for charterers, " by telegraphic 
 authority as agent," was shown to mean that the broker did not 
 warrant more than that he had a telegram which, if correct, 
 authorized him to sign (j/). 
 
 Again, such a phrase as " in regular turns of loading " may be 
 shown to have a special meaning at the port where the loading is 
 to take place (s). 
 
 And where the place for discharging a vessel was described 
 by the comprehensive term " Liverpool," evidence was allowed 
 that, in the particular trade, that meant certain dock quays in the 
 port (a). 
 
 So, too, the meaning given by persons engaged in commerce to a GreograpHcal 
 particular geographical term may show the effect it was intended 
 to have ; as where in an action on a policy it was shown that the 
 Grulf of Finland was considered by nautical and commercial men 
 to be within the Baltic, though it was not so regarded by 
 geographers (J). 
 
 («) Grant v. Maddox, 16 L. J., Ex. (y) LiUy v. Smales, (1892) 1 Q. B. 
 
 227. 456. 
 
 {t) Cochran ». Eetberg, 3 Esp. 121. i") Leidemann v. Sohultz, 23 L. J., 
 
 {«) 1 Peake, 61. ^- ^- ^^ ' ^^ "■ ^^^^' ^- ^- (I""-)- 
 
 ^ ' „ ^ ^ 12 CI. 113. Cf. Holman v. Peruvian 
 
 W Cuthbert V. Cmnmmg, 24 L. J., j^j^^^^^ ^^ _ 5 g^^g_ ^.^ ^^^^ ^^^_j ^^^ 
 
 Ex. 198, 310. j^j ggg jjorden v. Dempsey, 1 C. P. 
 
 (x) Buckle V. Knoop, L. E., 2 Ex. D. 654. See the remarks on this case, 
 
 125 ; Bottomley v. Forbes, 5Bing. N. C. infra, s. 199. 
 
 121. Cf. Duckett v. SatterBeld, L. E., (i) Uhde v. Walters, 3 Camp. 16. 
 
 3 C. P. 227. As to the meaning of Cf. Birrell v. Dryer, 9 A. C. 345; 
 
 "bales," see Grorrissen v. Perrin, 27 Robertson v. Clarke, 1 Bing. 445; 
 
 Jj. 3; 0. P. 29, Moxon v. Atkins, 3 Camp. 200. 
 
202 
 
 THE CONTRACT. 
 
 Sect. 170. 
 
 Presumptioa 
 that special 
 meaning was 
 intended. 
 
 Evidence of 
 mere opinion 
 is not rele- 
 vant. 
 
 Words to be 
 construed 
 " contra pro- 
 
 170. Where a word is understood in a special sense in the trade 
 in which the parties are engaged, the presumption is that they have 
 used it in that way. " "Where it is shown that the term or phrase 
 has acquired a peculiar meaning in the trade, it is prima facie to 
 he taken as used with that meaning, unless upon construing the 
 whole contract you can see that, either in express terms or hy 
 necessary implication the parties intended to use it in a different 
 sense" (c). 
 
 171. A meaning which differs from that ordinarily accepted will 
 not he adopted upon mere opinions of persons conversant with the 
 trade. The evidence must show that the special meaning is that 
 in which the word or phrase is regularly used by persons engaged 
 in the trade ; so that, where such persons make use of the word, 
 they clearly understand that they do so in that sense. 
 
 " Conflicting opinions of individuals, as to the proper interpre- 
 tation of words in a written contract, would he entitled to no 
 weight, even if it were clear that they were admissible " {d). 
 
 And so, too, where words of doubtful, or indefinite, meaning 
 have been used, mere opinions of persons in the trade as to what 
 was probably intended are not relevant (e). 
 
 172. Where words used are ambiguous, or indefinite, and are 
 not made clear by the other parts of the document, or by the 
 circumstances under which the contract is made, or by evidence 
 of a customary meaning, the rule is that they are to be construed 
 against the person by whom they may be considered to have been 
 used (/). Thus, doubtful words of promise are construed adversely 
 to the person making the promise. And where the extent of an 
 exception to an obligation is uncertain, it is read agarast the person 
 for whose benefit it was introduced. This is well illustrated by 
 the cases on the biU of lading exceptions {g). 
 
 {e) Per Blackburn, J., Myers v. Sari, 
 SOL. J., Q. B. 9, at p. 16. Of. Holt ». 
 Collyer, 16 Ch. D. 718. 
 
 {d) Per Lord Selbome, Birrell v. 
 Dryer, 9 A. 0. 345, at p. 346. And see 
 Bowes V. Shand, 2 A. C. 455 ; Abbott v. 
 Bates, 43 L. J., C. P. 150 ; Lewis v. 
 MarshaU, 13 L. J., 0. P. 193 ; Levy v. 
 Merchants Marine Ins. Co., 52 L. T. 
 263 ; Carter v. Crick, 28 L. J., Ex. 238. 
 , (e) Bowes v. Shand, 2 A. C. 455 ; 
 Cross V. Bglin, 2 B. & A^. 106. 
 
 (/) BuUen v. Denning, 6 B. & C. 
 842 ; Ireland v. Livingston, L. E., 5 
 H. L. 395. 
 
 [g) See Burton v. English, 12 Q. B. D. 
 218 ; The Duubeth, (1897) P. 132, p. 
 136 ; and supra, ss. 77—80. As to the 
 construction of warranties in a marine 
 policy, see Blaokett v. Royal Exch. Ass. 
 Co., 2 C. & J. 244 ; Birrell tt. Dryer, 9 
 A. C. 345 ; London Assur. «. Comp. de 
 Moagens, 167 IT. S. 149 (1897) ; Na- 
 tional Bank v. Insur. Co., 95 U. S. 673, 
 
CONSTRUCTION OP THE CONTRACT AND CUSTOMS OP TRADE. 203 
 
 It is not always clear, however, by which party a particular Sect. 173. 
 promise or reservation is made. That must he settled hy con- 
 sideration of the subject and character of the contract, and the 
 relations of the parties to it (A). Sometimes it is not possible 
 to regard a stipulation as made by or for one more than the 
 other («). 
 
 173. In determining the meaning or effect of a clause, the Effect to be 
 document is regarded as a whole. One part of it may throw light ^ho£ doou- 
 on another part ; and, as far as possible, effect is to be given to all ™6nt. 
 parts. The presumption is that each clause has, or may have, 
 some effect ; and a construction of another part of the document 
 which would make the clause inoperative or useless is to be 
 avoided (J). 
 
 To this rule there is, however, a not unfrequent exception. Printed 
 Commercial contracts are generally made on printed forms ; the " 
 form is filled up iii writing, and special written additions or altera- 
 tions are perhaps made to meet the particular case. Thus the form 
 used has usually been framed to suit a large number of cases, and 
 not necessarily in view of the circumstances of the particular ease. 
 Moreover, in adapting it, the disposition is to allow clauses which 
 are usual to stand, though they may not altogether apply, rather 
 than to strike them out or re-cast them. 
 
 Hence it often happens that printed clauses are found in a 
 contract which do not apply to the case, or which are in conflict 
 with the intention of the parties gathered from other parts of the 
 document, and from a knowledge of the subject and the circum- 
 stances. In such a case, the rule that effect should be given to all 
 the clauses does not apply. It is not necessary to give such 
 meanings to the words used as will make the inapplicable clause 
 operate (k). Nor can an obligation inconsistent with the apparent 
 iatention of the parties be inferred from that clause. Thus, in a 
 charter for a voyage with cargo from Grlasgow to San Francisco, it 
 
 (h) See Neill v. Wiitworth, 34 L. J., (A) See Pearson i. Gosohen, 33 L. J., 
 
 0. P. 155 ; L. E., 1 C. P. 684. 0. P. 265 ; Gray v. Carr, L. B., 6 Q. B. 
 
 (i) See Birrell v. Dryer, 9 A. 0. 345, 522 ; per Lord Selbome in Grant v. 
 
 per Lords Blackburn and Watson. But Coyerdale, 9 A. C. 470, at p. 474 ; per 
 
 cf. Lawrence T. Aberdein, 5 B. & Aid. Lord Esher, in BaumwoU, &c. v. Gil- 
 
 107. chrest, (1892) 1 Q. B. 253 ; Glynn 4). 
 
 {/) See, for example, per Holroyd, J., Margetson, (1893) A. 0. 351 ; Hydarnes 
 
 LaiTTenoe v. Aberdein, 5 B. & Aid. 107, Steamship Co. v. Indemnity, &c. Co., 
 
 at p. 115. (1895) 1Q.B. 500.' , 
 
204 
 
 THE CONTEACr. 
 
 Sect. 17 3. was provided that the ship should be consigned to the charterer's 
 agents at San rrancisoo " inwards and outwards, paying the usual 
 commissions," &c., and (in a printed clause) that she should he 
 reported by the charterers " at the custom-house on her return to 
 her port of discharge in the United Kingdom." It was contended 
 that these clauses together showed an obligation on the shipowner 
 to accept a return cargo for Europe offered by the charterer's 
 agents at San Francisco, but the Court refused to adopt that 
 view (I). 
 
 And if the printed and written parts of the contract are in 
 conflict, greater effect is given to the parts that are written ; for 
 they show the matters which were more particularly under con- 
 sideration, and which formed more specially the objects of the 
 parties in making the contract {m). Thus, in Scrutton v. Childs («), 
 a written clause, that the cargo was to be loaded at Trinidad " as 
 customary " {i.e., the shipowner paying for lighters), prevailed 
 over a printed clause, by which the cargo was to be " brought to 
 and taken from alongside at merchant's risk and expense." 
 
 ^rSlnt^ ^"^^^ ■^®^*' ^® *° *^® dependence of different parts of the agree- 
 
 ment upon one another. Each party to a charter party undertakes 
 to perform certain acts, and the question frequently arises whether 
 the obligation to do some particular act is, or is 'not, dependent 
 upon some event having happened, or some obligation or condition 
 having been satisfied by the other party. 
 
 Sometimes the contract expressly makes one obligation dependent 
 upon another having first been performed; though that is not 
 frequent, since men for the most part anticipate performance, and 
 not a breach of what is agreed. And it is generally clear from the 
 terms of the agreement, and -on consideration of how it must be 
 carried out, whether one act is meant to depend upon another or 
 not. But whether clear or not, the intention of the parties must 
 be the test ; and, as before, it must be sought for from the docu- 
 ment, and by reference to the nature and objects of the contract, 
 and the relations of the party to one another. 
 
 " The rule has been established by a long series of decisions in 
 
 {1} Cross 1>. PagUano, L. R., 6 Ex. 9. („) gg l. T. 212. The decision in 
 
 (m) See per Lord Ellenborougli in o . , .^, ., ■, 
 
 Robertson .. I^ench, 4 East, 130, at ^"™"°" "" ^^' '''''' *° ^''^^ ''««" 
 
 p. 134 ; and Moore v. Harris, 45 L. J., "^°''&' ^^^ the Nifa, (1892) P. 411 ; 
 
 P. 0. 63, at p. 60. »«/»•«, 8. 260. 
 
CONSTRUCTION OF THE CONTEACT AND CUSTOMS OP TBADE. 205 
 
 modem times tliat the question whether oovenants are to be held Sect. 174. 
 dependent or independent of each other is to be determined by the 
 intention and meaning of the parties as it appears on the instru- 
 ment, and by the application of common sense to each particular 
 case ; to which intention, when once discovered, all technical forms 
 of expression must give way " (o). 
 
 175. We have, in a previous Chapter (^), discussed the effect When the 
 
 J. i_ i- • 1 1 L • J j-i" character of 
 
 01 representations m a charter party as promises, and as conditions ^.j^g umjer- 
 
 precedent to the charterer's obligation to load. It there appeared *^^|^^^ 
 that a representation is both the one and the other, if its truth is 
 so material to the charterer that a failure to satisfy it will sub- 
 stantially alter the character of his undertaking. 
 
 The rule of interpretation thus suggested may perhaps be 
 applied more, broadly. An undertaking in the contract may be 
 entered into upon the assumption that when the time for its per- 
 formance arrives, certain acts will have been done by the other 
 party. And if the acts of the one party, which it was expected 
 would have been performed, were, in the view of the parties at the 
 time of contracting, so material that their omission would give a 
 substantially different character to the undertaking of the other, it 
 may be inferred that their performance was intended to be a condi- 
 tion precedent to that undertaking. 
 
 Thus, a charterer's obligation to load does not arise if the vessel 
 is delayed in arriving at her loading port to such an extent that 
 the contemplated adventure becomes practically impossible; though 
 a delay which is merely inconvenient or injurious to the charterer, 
 but does not so alter the conditions as to require a different kind 
 of loading, or expose him to a different kind of risk, does not 
 excuse him [q). 
 
 In Storer v. Grordon (r), the question arose whether delivery of 
 an outward cargo was a condition precedent to the charterer's duty 
 to load a return cargo. The charter party there provided that the 
 ship should take an outward cargo and deliver it to the charterers 
 at Naples, and that " having so done," she should receive a return 
 cargo ; and the charterers engaged that they would provide a 
 
 (o) Per Tindal, C. J., Stavers v. Cur- {q) See the oases collected, infra, s. 230 
 
 ling, 3 Bing. N. C. 353, at p. 368. Of. et seq. Express stipulations as to time 
 
 per Ashurst, J., Hotham v. East India are generally treated as conditions pre- 
 
 Co., 1 T. E. 638; Barnard v. Eaber, cedent, s. 21^ et aeq. 
 (1893) 1 Q. B. 340. (r) 3 M. & S. 308. See also Ohlsen 
 
 {p) Sect. 135 et seq, v. Drummond, i Doug. 356. 
 
206 
 
 THE CONTRACT. 
 
 Sect. 175. 
 
 Independent 
 promises not 
 amounting to 
 the whole 
 consideration. 
 
 Conditions 
 not available 
 after con- 
 sideration 
 partly re- 
 ceived. 
 
 return cargo. It was held that they were not absolved from load- 
 ing one by a failure of the shipowner to deliver the outward cargo, 
 which was due to a seizure by the Neapolitan G-ovemment. 
 
 Lord Ellenborough, after showing that an exception could not, 
 by implication from the wording of the plaintiff's covenant, be 
 introduced into that of the defendant's, said : " Nor is there any 
 ground from the nature of the thing, to imply such an exception. 
 The outward cargo may be intended as the fund to procure the 
 homeward cargo, but it by no means follows that it must be so, 
 and in very many instances the homeward cargo is procured and ia 
 readiness to ship before the outward cargo arrives." 
 
 176. Where the undertaking on one side is not so connected 
 with the act which was to have been done on the other side, that 
 its character will be altered by the failure to perf omx that act, the 
 latter is not generally a condition precedent, unless it formed 
 substantially the whole consideration for the undertaking. For 
 example, it is no excuse for the non-payment of an agreed lump 
 freight that part of the cargo has not been taken on board through 
 the shipowner's default (s), or that the ship did not sail with the 
 first convoy as agreed {t). 
 
 111. Further, it must be borne in mind that when a contract 
 has been partly performed, and the consideration for a promise in 
 part received, that promise must generally be performed, although 
 under different conditions from those anticipated. The remedy, i£ 
 any, for the loss arising from that difference, is in damages. It 
 is not to be presumed that it was intended that, imder those 
 circumstances, performance should be excused. 
 
 If the contracting party " has received the whole or any sub- 
 stantial part of the consideration for the promise on his part, the 
 warranty loses the character of a condition, or, to speak more 
 properly, perhaps, ceases to be available as a condition, and becomes 
 a warranty in the narrow sense of the word, namely, a stipulation 
 by way of agreement, for the breach of which a compensation must 
 be sought in damages " (m). * 
 
 Thus, in Pust v. Dowie {x), a charter party provided that the 
 
 (s) Ritchie ». Atkinson, 10 East, 296 ; 
 Seeger v. Duthie, 29 L. J., C. P. 253 ; 
 30 L. J., 0. P. 65. 
 
 {t) Davidson V. Cr-wynne, 12 East, 381. 
 
 («) Behn -o. Bumess, 32 L. J., Q. B. 
 204, at p. 206. See Ellen v. Topp, 20 
 L. J.,,Ex. 241. 
 
 {x) 32 L. J., Q. B. 179; affirmed in 
 Ex. Ch., 34 L. J., Q. B. 127. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OF TRADE. 207 
 
 sHip should take a full and complete cargo, and that the ohai'terer Sect. 177. 
 should pay 1,650^. in full for the voyage, " on condition of her 
 taking a cargo of not less than 1,000 tons." To an action for an 
 unpaid balance of this freight, it was pleaded that the Tessel did 
 not, nor could take a cargo of not less than 1,000 tons of weight 
 and measurement, hut could and did only take a much smaller 
 cargo. It was held on demurrer, that this was no answer to the 
 action ; for although the hreach of the condition as to the ship's 
 tonnage might have entitled the charterer to refuse to load, yet, 
 having loaded, and having had the benefit of part, at any rate, 
 of the consideration, he could not then be allowed to say that 
 because the condition had not been performed, he would pay 
 nothing. " The only way that justice can be done is, by holding 
 the plaintiff entitled to maintain this action, leaving, the defen- 
 dant to one of two remedies, either by giving the failure of the 
 full tonnage in reduction of damages, or by a cross action " (y). 
 
 So, again, the unseaworthiness of the ship, though it would 
 entitle the charterer to refuse to load, will not excuse him from 
 contributing to a general average sacrifice incurred on the voyage 
 with the cargo which he has in fact loaded ; unless, indeed, the 
 average loss was the consequence of that very unseaworthiness (2). 
 
 And if the charterer, knowing that a condition of the contract WaiTer of , 
 is not satisfied, stiU allows the owner to act upon the charter o°^'^*'^°^- 
 party, e.g., by sending his ship to the loading port, he cannot 
 afterwards rely on the breach of that condition as an excuse for 
 not loading her {a). 
 
 In Bentsen v. Taylor (h) a ship, described as " now sailed or 
 about to sail from a pitch-pine port to the United Kingdom," was 
 chartered by the defendants to proceed to Quebec, after discharging 
 homeward cargo, and there load from the defendants. The 
 description proved to be wrong, and objection was taken by th^ 
 charterers. Before she sailed for Quebec they wrote, " you must 
 therefore clearly understand that, if you send her out to load under 
 our charter party, we shall protest against loading, and difference) 
 of freight and insurance upon goods there shipped." It was held, 
 
 (y) Per Cookbum, 0. J., 32 L. J., {a) Dimeoh v. Corlett, 12 Moo. P. C. 
 
 Q. S. p. 181. And see Ritchie v. Atkin- 199 ; conmieiited on in Behn ». Bumess, 
 
 Bon, 10 East, 295 ; Davidson v. Orvrjane, 32 L. J., Q. B. at p. 208. 
 
 12 East, 381.. _ {fi) Bentsen d. Taylor, (1893) 2 Q. B: 
 
 («) See Sohloss v. Heriot, 32 L. J., 274. Of. Olsen v, Hunter-Benu, 64 
 
 C. P. 211 ; Strang v. Scott, 14 A. 0. 601. Fed. Rep. 630. 
 
208 
 
 TEE CONTRACT. 
 
 Sect. 177. 
 
 Nor if the 
 failure of the 
 condition is 
 due to the 
 party who 
 relies on it. 
 
 Implied 
 terms. 
 
 Eeasonahle 
 performance. 
 
 by the Court of Appeal, tliat the charterers had led the shipowner 
 to belieTe that they intended to treat the misdescription as a breach 
 of contract only, and not as a failure to perform a condition 
 precedent ; and had therefore lost the right to refuse to load the 
 ship when she reached Quebec. 
 
 178. Also, if the condition to be fulfilled is that something 
 shall have been done by the party who relies upon it, he will 
 not be excused if he himself improperly failed to perform it. 
 Thus, in Hotham v. East India Co. (c), the charter proyided that 
 no claim should be made for short loading unless it should be 
 certified by the company's agents ; and upon a claim being made, 
 they reHed upon the absence of a certificate. Ashujst, J., deliver- 
 ing the judgment of the Court, said : " It is unnecessary to say 
 whether the clause relative to the certificate be a condition pre- 
 cedent or not ; for granting it to be a condition precedent, yet 
 the plaintiffs having taken aU proper steps to obtain the certifi- 
 cate, and it being rendered impossible to be performed by the 
 neglect and default of the company's agents, which the jury have 
 found to be the case, it is equal to performance." 
 
 179. Next, as to the terms which are to be implied in mer- 
 cantile contracts. It is obvious that in a transaction which in- 
 volves a great number of different acts, to be carried out under 
 circumstances which cannot be definitely anticipated, no complete 
 statement of the contract can be made. The broad lines of it 
 are laid down, but the manner in which it is to be worked out 
 is for the most part not expressed. We have then to consider 
 upon what principles details are to be supplied where the contract 
 is silent. 
 
 So far as the contract is express on any point, rules which would 
 otherwise apply as to implying terms on that point have no opera- 
 tion, and no term can be implied which is not consistent with 
 those that are expressed. But, apart from these considerations, 
 one general rule may be said to govern the. performance of the 
 contract, viz., that it must be performed in a reasonable manner 
 and with reasonable diligence on each side. Where the manner or 
 place of doing an act, or the time at which or within which it is 
 to be done, is left undefined, it is to be determined by reference 
 
 (f) 1 T, R. 638. 
 
CONSTEUCTION OF THE CONTEACT AND CUSTOMS OF TRADE. 209 
 
 to what is reasonable, having regard to the ciroumstances of the Sect. 179. 
 particular case (d). 
 
 This is, however, subject to any definite rule on the particular 
 point in question which may have been established by the law, 
 and also to any definite rule which may have been established 
 by custom in the particular trade. Eules of law or custom of this 
 kind are part of the groundwork of the contract. The matters to 
 be decided by the standard of what is reasonable are those to 
 which no agreement or established rule applies. " The express 
 provisions of a maritime contract generally include and govern 
 cases of usual occurrence and not unusual events, it being im- 
 plied that if such events should occur the parties shall act in a 
 reasonable manner, having regard to the character of the contract, 
 the usage in like cases, if any, and the general provisions of the 
 law"(e). 
 
 180. It is important to note that the requirement of a reasonable Ambiguity of 
 performance may be understood in two distinctly different ways. 
 The standard may be that of suitability and fairness under the 
 circumstances which ordinarily exist, when acts of the kind in 
 question have to be performed ; or it may be that of suitability and 
 fairness under the circumstances which actually obtain, when the 
 particular act in fact comes to be performed. 
 
 Thus, where no time for doing an act is fixed, it is generally 
 said that it must be done within a " reasonable time." This may 
 mean within a time which would under ordinary circumstances be 
 reasonable, in which case it would be no excuse for an unusual 
 delay that it had been due to causes which the actor could not 
 have avoided, and for which he was not responsible. Or it may 
 mean that the time occupied must not be more than is reasonable 
 under the circumstances which, in fact, arise ; that the act must be 
 done with such diligence and despatch as an ordinary man might 
 fairly be expected to use under those circumstances, and that an 
 enforced delay would be excusable. 
 
 The earlier reported cases did not show very consistently which 
 of these two views is the right one. But it seems now esta- 
 blished that the latter,- the less rigid, doctrine is right. We 
 are considering cases in which the person making the promise has 
 avoided any express obligation to perform it, in all events, in a 
 
 (<^ See per Lord Watson in Dahl v. («) Per Willes, J., Hanson v. Eoyden, 
 
 Nelson, 6 A. C. 38, at p. 59. L. R., 3 0. P. 47, at p. 50. 
 
 C. — C. F 
 
210 
 
 THE CONTRACT. 
 
 Iteference to 
 
 trade'prao- 
 
 tices. 
 
 Sect. 180. particular manner, or in a particular time. And it would be unjust 
 that the law should, by implication, fasten upon him an obligation 
 which might have been stipulated for expressly, and which would, 
 in the ordinary course, have been so stipulated for, if the parties 
 had had such conditions in their minds (/) . That the effect would 
 be to impose such obligations, if the test of what is reasonable 
 under ordinary circumstances were adopted, is clear; for the standard 
 would be a fixed one, unaffected by the actual circumstances. A 
 reasonable time for doing an act under ordinary circumstances is a 
 quantity which is calculable at any time, and therefore is as much 
 a fixed quantity as a defined period would be. 
 
 181. What is a reasonable performance may often be ascertained 
 by reference to the ordinary practices of men engaged in the same 
 and other kindred businesses. The methods they adopt, and the 
 conditions they impose on one another, indicate what they regard 
 as fair and suitable in carrying out such transactions, and thus 
 generally show what is reasonable in the opinions of those best able 
 to judge. Moreover, when things are ordinarily done at the place 
 in some particular way, it would generally not be convenient, and 
 therefore not reasonable, to adopt a method which is not consistent 
 with the usual arrangements. 
 
 For example, as to the delivery of goods at a certain port : the 
 place within the port at which delivery should be made, and the 
 manner and time of giving it, are ascertained by reference to the 
 practices and habits of the business men of the place. There may 
 be no invariable practice on any of these points. In each case 
 there may be several alternatives, all consistent with what is usual. 
 But the various usual practices go to show what axe and are not 
 reasonable methods of performing the contract, and it would be 
 inconvenient and unreasonable not to work within the limits 
 indicated by them {g). 
 Not neoes- We are here dealing with a much more indefinite subject than 
 
 formT^™^" that of customs of trade, strictly so-caUed. A definite uniform 
 
 (/) See per Martin, B., Ford v. Cotes- 
 ■worth, L. E,., 6 Q. B. 544, at p. 648 ; 
 also Hick v. Rodocanaohi, (1891) 2 Q. 
 B. 626, per Lindley, L. J., p. 638, and 
 per Fry, L. J., p. 646 ; affirmed as Hick 
 V. Raymond, (1893) A. C. 22. And see 
 those cases and others discussed infra, 
 SB. 616, 616. 
 
 (^) It is not quite accurate to say that 
 the implied term of the contract is to 
 perform it in accordance with the prac- 
 tice of the port, for every way of doing 
 a thing which is consistent with usual 
 practices may not under the particular 
 circumstauoes be reasonable. Cf. as. 
 249, 460, 461, mfm. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OF TRADE. 211 
 
 custom may, as we shall see, Ibe impliedly incorporated into the Sect. 181. 
 contract with the effect of adding terms to it. The customary 
 practices we are now considering need not he either definite or 
 uniform, and though they are of importance in showing how the 
 agreed terms of the contract are to he understood, and carried out, 
 they cannot add other independent terms to it. Moreover, such 
 varying practices axe only some guide to what is a reasonable 
 manner of performing the contract, whereas a definite custom 
 imported into the contract becomes the guide and rule as to what 
 is to be done {h). 
 
 182. The following cases illustrate the bearing of customary Illustrations. 
 though not uniform practices. In Da Costa v. Edmunds («'), an 
 action on a policy of insurance upon some carboys of vitriol which 
 had been stowed on deck, evidence was given that such carboys 
 were very frequently carried on deck, though it was also usual to 
 stow them below. Lord . EUenborough left it to the jury to say 
 whether it was usual to carry vitriol on deck, and whether these 
 carboys were properly stowed. If there was a usage, the under- 
 writers were bound to take notice of it without any communication. 
 If there was no usage to carry vitriol on deck, they would not be 
 liable. The jury found for the plaintiff, and the Court refused a 
 rule for a new trial (k). 
 
 And usage may justify a shipowner in stowing cargo in a 
 particular way, e.ff., on deck, although another way may be 
 safer (l). 
 
 So, again, the manner in which the obligation to load a full 
 cargo is to be satisfied may be determined by reference to the 
 special methods of preparing .or packing the goods for ship- 
 ment ordinarily adopted at the loading port ; as in Benson v. 
 Schneider (m), where it was shown to be the practice, at New 
 Orleans, to re-compress cotton before shipping it ; and in Cuthbert 
 V. Gumming (w), where a cargo of sugar and molasses, packed in 
 
 {h) An express reference in the con- Exchange Ass. Co., 2 C. & J. 244 ; 
 
 tract to the custom of the port generally Vallance v. Dewar, 1 Camp. 603 ; Ougier 
 
 relates to the customary practices of the v. Jennings, and Kangston v. Boiibbs, 
 
 port, see per Lord Blaokhum, Postle- ibid., in notes. 
 
 thwaite v. Freeland, 5 A. C. 599, at p. {1} Per Tindal, C. J., Gould ji. Oliver, 
 
 616. 2 M. & G. 208, p. 236. 
 
 (j) 4 Camp. 142. (m) 7 Taun. 273. 
 
 (A) See also Noble v. 'Kennoway, 2 {n) 24 L. J., Ex. 198, 310 ; and see 
 
 Doug. 510 ; Pdly v. Royal Exchange Duokett v. Satterfield, L. R., 3 C. P. 
 
 Ass. Co., 1 Bun-. 341 ; Blackett v. Royal 227. 
 
 p2 
 
212 THE CONTRACT. 
 
 Sect. 182. hogsheads and puncheons according to the practice at Trinidad, 
 was held to satisfy the contract, although, owing to this mode of 
 packing, it did not fill the ship. 
 
 So, in Haynes vi. Halliday (o), a practice of taking the decks out 
 of decked boats, when shipping them, was proved ; and a refusal 
 to perform an undertaking to carry a boat in any other manner 
 was held not to be a breach of the contract. 
 
 And, again, the manner in which a ship should be loaded or 
 discharged by the charterer may be shown by reference to the 
 customary practices at the port {p) ; also the place where the ship 
 should be lying; and whether she should load or discharge her 
 cargo at one spot, or at more than one spot, moving onward as her 
 draft of water alters (g). And where there are several suitable 
 discharging places in the port, usage may determine how the 
 choice among them is to be made (r). Also the acts to be done 
 by the carrier in delivering may perhaps to some extent be 
 determined in the same way (s). 
 
 In these cases we have practices which, though not necessarily 
 definite or invariable, yet indicate how the contract may and may 
 not be performed. 
 
 Aoustommay 183. But further, a usage of trade may not only have the effect 
 the oouteact. of explaining the terms of a contract, or of showing how they 
 ought to be performed, but also it may add a term to the contract 
 which the parties have not thought it necessary to express. " It 
 has long been settled that, in commercial transactions, extrinsic 
 evidence of custom and usage is admissible to annex incidents to 
 written contracts, in matters with respect to which they are silent. 
 The same rule has also been applied in other transactions of life, 
 in which known usages have been established and prevailed ; and 
 this has been done upon the principle of presumption that, in such 
 transactions, the parties did not mean to express in writing the 
 whole of the contract by which they intended to be bound, but to 
 contract with reference to those known usages " {t). 
 
 [o] 7 Bing. 587. Carr. b. 301 (n.). 
 
 \p) Hudson V. Ede, L. R., 2 Q. B. (s) See Walker v. Jackson, 10 M. & 
 
 666; L. R., 3 Q. B. 412; Smith v. W. 161. How far unusual burdens may 
 
 Eosario Nitrate Co., (1894) 1 Q. B. 174. thus be put upon a shipowner, ignorant 
 
 q) M'Intosh v. Sinclair, Ir. E,, 11 of the usages of the place, seems to be 
 
 C. L. 456 ; Nielsen v. Wait, 14 Q. B. D. doubtful. See infra, ss. 198, 462. 
 
 616 ; 16 Q. B. D. 67. («) Per Parke, B., Hutton ii. Warren, 
 
 (r) See The Brig Fittler, cited Ang. 1 M. & W. 466, at p. 476. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OF TRADE, 213 
 
 When a practice has come to be constantly followed hy all those Sect. 183. 
 engaged in a trade, and is such that its existence is well known 
 among them, it becomes unnecessary in contracting to expressly 
 insert the condition or rule which it establishes. That is adopted 
 tacitly, and taken for granted, as one of the data of the transaction. 
 And if on the particular occasion it were intended not to follow it, 
 that intention would naturally be expressed in the contract. 
 
 A uniform practice of this kind is called a custom of the trade ; 
 and where such a custom prevails, it is presumed that a contract 
 made by persons in that trade was intended to incorporate it {u), 
 unless the contract has either expressly excluded it, or contains 
 terms with which the custom is not consistent, and so has excluded 
 it by implication. The custom overrides the rule of law which 
 would otherwise apply ; just as an expressed term of a contract 
 supersedes the term which the law would otherwise have implied. 
 But the custom is not law ; it depends for its operation upon con- 
 tract. So that unless the circumstances under which the contract 
 was made were such that a knowledge of the custom, and an inten- 
 tion to incorporate it, can properly be presumed, the custom ought 
 not to qualify, or add to the effect of the contract, as interpreted 
 by the law (»). 
 
 184. The presumption is that the custom is known to aU. persons May bind 
 who engage in the trade. And even if one of the parties to the rant°o/itf°°' 
 contract has previously been a stranger to the trade, and is in fact 
 ignorant of the custom, still the same rule will generally apply. 
 For the other party is entitled to assume, unless he has know- 
 ledge to the contrary, that the stranger knows what is notorious in 
 the trade, and that he intends to contract upon the usual footing. 
 
 " I think it is now thoroughly established that a person who 
 
 deals in a general market is bound to inquire what the usages are, 
 
 and that those who deal with him have a right to hold him bound 
 
 by them to the same extent as they would have been entitled to 
 
 hold a person bound who belonged to the place. He is precluded 
 
 from setting up, as against the persons he dealt with, his ignorance 
 
 of that which he ought to know " {y). 
 
 («) Parol evidence of a, custom may {x) An alleged custom at a discharg- 
 
 thus add a term to tte written contract, ing port, where tke whole trade was in 
 
 though parol evidence of an additional the hands of the merchant setting it up, 
 
 express agreement might be inadmis- was held not binding : Clacevich v. 
 
 Bible. See Fawkes v. Lamb, 31 L. J., Hutcheson, 15 Sess. Ca. (4th), 11. 
 Q. B. 98. Cf. Allan 'u. Sundius, 31 (y) Per Blackburn, J., MoUett v. 
 
 L. J,, Ex. 307; Syers v. Jones, 2Ex.ni Robinson, L. R., 7 C. P. 84, at p. Ill, 
 
214 THE CONTEACT. 
 
 Sect. 184. The meaning of a " market " in this connection is not very 
 
 clearly defined ; and perhaps the difficulty of definition would be 
 
 even greater with regard to a " trade " carried on between different 
 
 places. Where such a trade as that of exporting particular goods 
 
 from certain ports to certain others is regularly carried on by a 
 
 body of merchants, who constantly employ ships belonging to a 
 
 particular body of shipowners, perhaps the conditions are analogous 
 
 to those of a " general market " ; so that one who enters into such 
 
 a trade, upon an occasion, may be presumed to know its customs, 
 
 and may be bound by them, although he may in fact be ignorant 
 
 about them. But unless a custom has been established among 
 
 both merchants and shipowners, habitually engaged in the trade, it 
 
 is difficult to see how such a presumption could arise (z). 
 
 Effect of If an agent is employed to do business in a general market, or 
 
 employing 
 
 agent trade, he is impliedly authorised to transact it according to the 
 
 known usages and customs of that market or of the trade, although 
 the principal may be ignorant of them (a) ; and though they may 
 require or enable the agent to act in a manner not generally usual 
 in such an employment (5). But not so if the usage be incon- 
 sistent with the essential character of the employment (c) ; or if it 
 be unfair to the priucipal (d) . In such cases the employment of 
 the agent does not give him authority to contract on that basis. 
 
 It must be 185. But a custom must be well known outside the particular 
 
 known out- i-j-i/i- 
 
 side the trade trade, or place where it is adopted, or it cannot bind persons outside 
 teiT persons ^^° ^^^ ignorant of it (e). It ought to be "so general and 
 Ignorant. notorious that persons dealing in the market could easily ascertain 
 it, and must be presumed to have been aware of it " (/). Where a 
 claim of lien by usage was made by bleachers, Willes, J., directed 
 the jury that the usage must be " so universally acquiesced in that 
 everybody in the trade knew it, or could have ascertained it if he 
 had taken the pains to inquire " (g). 
 
 In Bartlett ». Pentland (^), Lord Tenterden said, "As to the 
 
 (a) See infra, s. 197. D. 467. 
 
 (a) GrissellD.Bristowe, L. E., 3C.P. {d) Bartlett v. Pentland, 10 B. & C. 
 
 112 ; 4 C. P. 36 ; Taylor v. Stray, 26 760 ; Sweetiug v. Pearoe, 30 L. J., C. P. 
 
 Ij. J., C. P. 185, 287 ; Buckle v. Knoop, 109. See infra, s. 189. 
 
 L. R., 2 Ex. 125. (e) See Eushworth ». Hadfleld, 6 
 
 (}) Cropper v. Cook, L. E., 3 C. P. East, 519 ; 7 East, 224. 
 
 194 ; Johnston 1). Usbome, 11 A. & E. {/) Per BovUl, C. J., Urissell v. 
 
 549. Bristowe, L. E., 3 C. P. 112, at p. 128. 
 
 (c) Eohinson v. Mollett, L. E., 7 {ff) Plaice v. AUoook, 4 F. & E. 1074. 
 
 H. L. 802 ; Perry v. Bamett, 14 Q. B. {h) 10 B. & 0. 760, at p. 770. 
 
CONSTRUCTION OP THE CONTRACT AND CUSTOMS OF TRADE. 215 
 
 supposed usage at Lloyd's ; the usage in a particular place, or of a Sect. 185. 
 particular class of persons, cannot be binding on other persons, 
 unless those other persons are acquainted with that usage and adopt 
 it. Merchants residing in London, and effecting insurances there, 
 may reasonably be supposed to be acquainted with that usage, and 
 to act upon it. But there is nothing in the case to raise such a 
 presumption against the present plaintiffs ; on the contrary, there 
 is everything to rebut such a presumption." 
 
 Again, in Grabay v. Lloyd («'), an action on a policy on horses 
 effected at Lloyd's coffee-house in London, a usage at that place 
 was set up to give a peculiar meaning to the warranty " free of 
 jettison and mortality " ; but the Court held that it did not bind 
 the plaintiffs. For " it was not found to be the general usage of 
 the whole trade in the City of London, but only in one house where 
 policies were usually effected by private individuals. If there had 
 been any evidence to show that the plaintiffs we're in the habit of 
 effecting policies at Lloyd's coffee-house, the jury ought to have 
 found that they had knowledge of the usage which prevailed 
 there." 
 
 In Hathesing v. Laing (k), Bacon, V.-C, refused to allow that a 
 shipowner was bound by a local custom of merchants at Bombay ; 
 according to which the mate's receipts for goods shipped were 
 negotiable in the market, and entitled the holder to have the bills 
 of lading for the goods. 
 
 186. That a custom of trade may have the effect of annexing a -A- custom 
 
 annexing a 
 
 qualifying or independent term to a contract it must be definite, term must be 
 and uniformly adopted. There must be no uncertainty as to what ■,Z^tnr^^^ 
 it is; and it must have been followed, in that shape, and as a adopted, 
 regular thing, in transactions of that particular kind, by all persons 
 habitually engaged in that trade, or branch of the trade. For if 
 the custom is not definite it is not possible to say with certainty 
 what the term is, which is to be incorporated in the contract (/). 
 And if it has not been uniformly adopted, it cannot confidently be 
 presumed that it was adopted on the particular occasion (m). 
 
 (i) 3 B. & C. 793. would be indefinite ; so would be a 
 
 (A) L. E., 17 Bq. 92 ; mfra, s. 197. custom that the ship shall have some 
 
 (1) See Sewell v. Crop, 1 C. & P. 392. measurement goods as part of her cargo, 
 
 'Ecu example, a custom to deduct dis- with nothing to define what amount. 
 
 count from freight, where the rate of {m) ' ' It must be uniform as weU as 
 
 discount has varied with different people, reasonable ; and it must have quite as 
 
216 THE CONTRACT. 
 
 Sect. 186. That is to say, the adoption of the custom must be uniform 
 whenever there has heen nothing expressly agreed upon the point. 
 Instances in which the custom has been expressly varied, or 
 excluded, will rather tend to prove the general adoption of it. 
 
 Otherwise 187. It must be noted, however, that this rule relates to cases in 
 
 where some ,.,, ■,,,■,■ i ■, i j_ • 
 
 implied term which the matter sought to be imported by custom is one as to 
 
 IS reqmre . -^j^q]^ there is no need to make a presumption one way or the other. 
 If in any ease it is necessary that some term should be implied, and 
 if there is no rule of law which decides what that term should be, 
 a different principle may apply. It then becomes needful to ascer- 
 tain the prohabk intention of the parties ; and if there has been 
 a usual practice, or course of business, which they may be presumed 
 to have known, and with reference to which it is reasonable to 
 suppose that they contracted, that becomes material to show their 
 intention, although it may not be a definite or uniform practice (m). 
 
 We may take as an illustration the case of Walker v. Jackson (o), 
 where the question was whether a ferry company undertook to 
 land, as well as carry, a carriage which was delivered to them. It 
 was held that the mere circumstance that they were ferrymen did 
 not give rise to such an obligation, as a matter of law ; but that a 
 contract to undertake that duty might be inferred from a practice 
 on their part to land carriages put on board their boats ; and that 
 the question must be determined by the jury, having regard to 
 evidence of that usage. Again, in Dickenson v. Lano (jo), an 
 action for freight and demurrage against the manager of the 
 quarry by whom a quantity of stone had been shipped, where the 
 defence was that this had been done for the purchaser of the stone, 
 evidence was admitted by Blackburn, J., that, according to usage, 
 quarry masters who had thus shipped stone had nothing to do with 
 it after the shipment, and that the consignees always paid the 
 freight. It was left to the jury to say with whom the contract was. 
 
 Where, however, there is no necessity to import the term which 
 it is proposed to incorporate by the custom, or some other term 
 instead of that ; or where, if there is such a need, the law itself 
 supplies it ; then the custom cannot add a term to the contract, or 
 
 much certainty as the written contract (o) 10 M. & W. 161. See also Watts 
 
 itself." Per Jessel, M. E., in Nelson v. '"■ Grrant, 26 So. L. R. 660, as to how 
 Dahl, 12 Ch. D. S68, p. 576. *^^ expense of weighing cargo should 
 
 by custom he borne, cited infra, s. 682. 
 («) Cf. supra, ss. 167, 181, {p) 2 F. & F. 188. 
 
CONSTRUCTION OP THE CONTEACT AND CUSTOMS OF TRADE. 
 
 217 
 
 override the rule whidi the law lays down, unless it must be Sect. 187. 
 supposed to have formed part of the contract ; and that can only 
 he when the custom is definite and uniform. 
 
 188. Further, the custom must be one which has so frequently Cuatom -wiR 
 
 not generally 
 been acted upon as to be notorious. It is not uncommon for a determine an 
 
 supposed custom to be set up relating to a matter which so rarely question. 
 
 arises in the course of business that it is difficult to see how the 
 
 notoriety and general adoption, which are the grounds for presuming 
 
 that it formed part of the contract, can be said to have existed. 
 
 Rules adopted by business men with regard to accidental questions 
 
 which arise only occasionally, e.g., upon a bankruptcy, may perhaps 
 
 be more properly regarded as the result of their view of what the 
 
 law is, or ought to be, than as based upon a custom which they 
 
 have agreed to adopt as part of their contracts. GreneraUy no 
 
 agreement or need of agreement on such points is thought of by 
 
 the parties at the time of contracting, but when a difficulty arises 
 
 which is similar to others that have occurred in the trade, and have 
 
 been settled in some particular way, the expectation is that it also 
 
 will be settled in that way. Eules of law cannot, however, be put 
 
 on one side except by agreement. If it has been agreed that they 
 
 are not to operate, that may be effectual ; otherwise they must 
 
 prevail. If a settled rule exists, the opinions or understanding 
 
 of business men as to what it is, or should be, are not even 
 
 relevant, and still less are they binding {q). 
 
 189. A custom will not be imported into a contract if it appears A custom 
 to the Court to be unjust or unreasonable, unless the party against reasonable, 
 whom it is set up was aware of it, and can be considered to have 
 assented to it. 
 
 " When considerable numbers of men of business carry on one 
 side of a particular business, they are apt to set up a custom which 
 acts very much in favour of their side of the business. So long as 
 they do not infringe some fundamental principle of right and 
 wrong, they may establish such a custom ; but if, on dispute before 
 a legal forum, it is found that they are endeavouring to enforce 
 some rule of conduct which is so entirely in favour of their side 
 that it is fundamentally unjust to the other side, the Courts have 
 always -determined that such a custom, if sought to be enforced 
 
 (y) Edie V. East India Co., 2 Burr. 1226. See infra, a. 193. 
 
218 THE CONTEACT. 
 
 Sect. 189. against a person in fact ignorant of it, is unreasonable, contrary to 
 law, and void" (r). 
 
 For example, it was held, in a series of cases, that a custom 
 among underwriters and insurance brokers at Lloyd's, that a 
 claim on a poHoy, made through a broker, should be settled by 
 being set off against any premiums due from him to the under- 
 writer, could not bind the principal in the transaction, unless he 
 had been aware of it (s). 
 
 In Todd V. Eeid the Court said : " No usage can sanction such 
 a practice as that which is stated to have prevailed in this par- 
 ticular business. This is, in fact, an attempt to pay the debt of one 
 person with the money of another." 
 
 In Scott V. Irving, Lord Tenterden said : " If the usage relied 
 upon in this case were allowed to prevail, it would have the effect 
 of making the broker, and not the underwriter, the debtor to the 
 assured for the loss. Such a usage, however, can be binding only 
 on those who are acquainted with it, and have consented to be 
 bound by it. There may possibly be cases proved, where an 
 assured, being cognisant of such usage, may be supposed to have 
 assented to it, and therefore may be bound. Here no such assent 
 is shown, nor can it be inferred from the delay which has taken 
 place in the prosecution of this claim " (t). 
 
 Illustrations. 190. The following are other illustrations :— In Eobinson v. 
 MoUett (m), the question was whether it was competent to a broker, 
 employed to buy tallow on the London tallow market, to set up a 
 custom of that market for brokers themselves to supply their 
 principals out of tallow purchased on their own account. The 
 Common Pleas and Exchequer Chamber were each equally divided 
 on the point. But in the House of Lords it was held unanimously 
 that a custom which so entirely altered the intrinsic character of 
 the employment could not bind a principal who was ignorant of it. 
 Lord Chelmsford said : " The usage is of such a peculiar character, 
 and is so completely at variance with the relation between the 
 parties, converting a broker employed to buy into a principal 
 selling for himself, and thereby giving him an interest wholly 
 
 {r) Per Brett, J., in Eobinaon v. Sweeting v. Pearoe, 30 L. J., 0. P. 109. 
 MoUett, L. E., 7 H. L. p. 818. Of. Stewart v. Aberdein, 4 M. &W. 211. 
 
 (s) Todd V. Reid, 4 B. & A. 210 
 Scott V. IrvLQg, 1 B. & Ad. 605 
 Bartlett v. Peutland, 10 B. & 0. 760 
 
 («) 1 B. & Ad. at p. 612. 
 (««) L. E., 7 H. L. 802 ; reversing 
 L. E., 7 0. P. 84 ; L. E., 5 0. P. 646. 
 
CONSTRTTCTION OF THE CONTRACT AND CUSTOMS OF TRADE. 219 
 
 opposed to his duty, that I think no person who is ignorant of such Sect. 190. 
 an usage can be held to have agreed to submit to its conditions, 
 merely by employing the services of a broker, to whom the usage 
 is known, to perform the ordinary and accustomed duties belonging 
 to such employment" («). 
 
 In Leuckhart v. Cooper (y), the defendants resisted a claim to 
 goods of the plaintiff, which had been warehoused with them by 
 his factor, on the ground of a custom in the City of London for 
 warehousemen to have a general lien upon all goods remaining in 
 their warehouses, for and in the name of the persons by whom they 
 were retained or employed, for all moneys due from those persons 
 in respect of certain kinds of advances and expenses, and claimed 
 a general lien for moneys due to them from the factor. It was 
 held that this custom was not valid as against the plaintiff, for it 
 extended the lien to all goods delivered to the warehouse keeper, 
 whether they were the property of the person who employed him 
 or not, and was, therefore, unreasonable and unjust. 
 
 In Gibson ». Crick (s), an attempt was made to set up a custom 
 among shipbrokers, that if a broker merely introduces to a ship- 
 owner another broker with whom he subsequently does business, 
 the first broker is entitled to a commission from the shipowner. 
 But the Court held that such a custom would be unreasonable, and 
 that evidence of it ought not to be permitted. 
 
 191. Again, a custom not confined locally, or to one section of a _a^ general 
 trade, but prevailing universally throughout it, cannot be set up if ^"^*°™ 9?"' 
 it conflicts with a rule of law or is inconsistent with any settled "ot valid, 
 legal principle. 
 
 Thus, customs with regard to the negotiability of bills of 
 exchange and promissory notes, which were contrary to settled 
 rules of law, were treated as invalid (a). 
 
 So it was held that a custom of carriers to exercise a general 
 lien for moneys due from the owners of goods carried by them did 
 
 (a;) L. R., 7 H. L. at p. 838. Of. W 31 I'- J-, Ex. 304. Cf. Allan v. 
 
 Cropper v. Cook, L. R., 3 0. P. 194; Sundius, 31 L. J., Ex. 307. 
 
 GrisseU v. Bristowe, L. R., 3 0. P. 112 ; {») Edie y. East India Co., 2 Burr. 
 
 L. R., 4 C. P. 36 ; Seymour v. Bridge, 1226 ; Partridge v. Bank of England, 
 
 14 Q. B. D. 460 ; Perry v. Bamett, 14 15 L- J-, Q- B. 395; Hawkins v. Cardy, 
 
 Q. B. D. 467. Carthew, 466 ; 1 Salk. 65. And as to 
 
 the liability of an indorser : Suse v. 
 
 iy) 3 Bing. N. e. 99. Pompe, 30 L. J., 0. P. 75. 
 
220 THE CONTRACT. 
 
 Sect. 191. not defeat the right of an unpaid vendor to sto'p the goods, while 
 they were in the carrier's hands, in transit (b). 
 
 In Meyer v. Dresser (c), an attempt was made to deduct the 
 value of goods not delivered from the freight, under a custom of 
 merchants to do so, said to be universal in every trade. This was 
 not allowed. Erie, C. J., said : " According to my view of the 
 law, such a right to deduct does not exist. It is, therefore, to my 
 mind, a self-evident contradiction to say that the law does not give 
 the right, and yet that there is a universally-estahliehed usage 
 (which, if so universally established, would be the law) to allow it. 
 A universal usage cannot be set up against the law " (d). 
 
 In Atwood V. Sellar (e), it appeared that it had for seventy or 
 eighty years past been the practice of British average adjusters to 
 treat certain port of refuge expenses as particular average, which 
 the Courts then held ought by law to be treated as general average. 
 It was contended that the practice of the adjusters, which had, in 
 effect, been acquiesced in and adopted by merchants, shipowners, 
 and underwriters, ought to be followed. But the Court of Appeal, 
 confirming the majority of the Queen's Bench, declined to do so. 
 
 " When a practice of this kind is brought to the test of legal 
 decision, and is found to be erroneous and inconsistent with law, 
 it cannot be permitted to override the law and acquire the force 
 of law " (/). 
 
 Wlereno 192, But a general custom, prevailing throughout a trade, may 
 
 exists. be valid if it deals with a matter on which the law has no settled 
 
 rule, and in a manner consistent with legal principles ; and after 
 
 repeated proof of it in Courts of Justice, it may be judicially 
 
 recognized without further proof (g). 
 
 StiU, until such a right has become part of the general law, it 
 
 can only be maintained, if challenged, by proof of accepted usage. 
 
 It was at one time held to be a settled point that a wharfinger had 
 
 (i) Oppenheim -f. Bussell, 3 B. & P. new for old In insurance claims : Poing- 
 
 42. Cf. Leuokhart «/. Cooper, 3 Bing. destre v. Royal Exchange Corp., Ry. & 
 
 N. C. 99. M. 378 ; infra, s. 423. As to deolara- 
 
 (c) 33 L. J., C. P. 289. tio»s under open policies : Stephens u. 
 
 W Ibid., p. 293. Australasian Ins. Co., L. R., 8 0. P. 18. 
 
 (, 4 a. B. B. 342 ; 5 a B. B. 286. T^t.iirt^L'':i:^:r^o{. 
 
 {/) Per Cookbum, C. J., 4 Q. B. D. & p. 737. Packer's general Uen : In re 
 at p. 364. -V^itt, Ex parte Sliubrook, 2 Ch. D. 489 ; 
 
 (y) Eor example, as to deductions of Ex parte Deeze, 1 Atk. 228. 
 
COKSTEUCTION OF THE CONTRACT AND CUSTOMS OP TRADE, 221 
 
 a lien upon goods in his hands for the balance of a general account Sect. 192. 
 due from the owner (h). But in Holderness v. CoUinson (»'), it 
 was shown that this rule had not been acquiesced in at Hull, as 
 regarded the claims of wharfingers to retain the goods for balances 
 other than in respect of wharfage; and the Court held that the 
 wharfinger must make out his right to the general lien, and that 
 he had failed to do so {k). 
 
 193. In former times, when the Courts were less familiar with Former prac- 
 mercantile questions than they have since become, and when on opinions of 
 many matters no definite legal principles had been laid down, ^^™^^^™^"- 
 a practice prevailed of taking the opinions of business men as 
 to the rules which ought to govern the particular case before the 
 Court. This was done, sometimes, by consultation with mer- 
 chants {I), and sometimes by hearing their opinions, even though 
 unsupported by instances, given as witnesses (w) ; and, generally, 
 the opinion of the jury of business men was taken on the whole 
 matter («). 
 
 That practice has now fallen into disuse. Settled principles, 
 which have been to a great extent founded upon usages and 
 opinions of mercantile men, have become part of the law ; and the 
 endeavour of the Courts now mainly is to preserve the principles 
 thus established, and to develop them in a consistent manner, as 
 the new circumstances of commerce require (o). 
 
 {h) Naylor v. Mangles, 1 Esp. 109 ; of law all the evidence in mercantile 
 
 Spears*. Hartley, 3 Esp. 81. oases was thrown together; they were 
 
 (i) 7 B. & 0. 212. left generally to the jury, and they pro- 
 
 {h) Where wharfingers act under duced no established principle. From 
 
 statutory powers, see Dresser v. Bosan- that time we all know the great study 
 
 quet, 32 L. J., Q. B. S7, 374. has heen to find some certain general 
 
 (T) See Eruger v. Wilcox, Ambler, principles, which shall be known to aU 
 
 252 ; Vallejo ». Wheeler, 1 Cowp. 143 ; mankind, not only to rule the particular 
 
 Lewis ». Rucker, 2 Burr. 1167. In case then under consideration, but to 
 
 Pickering v. Barkley (2 RoU. Abr. 248, serve as a guide for the future. Most 
 
 pi. 10), merchants were consulted on a of us have heard these principles stated, 
 
 demurrer. reasoned upon, enlarged, and explained, 
 
 (m) Camden v. Cowley, 1 W. Bl. 417 ; till we have been lost in admiration at 
 
 and per Lord Haidwioke, Baker v. the strength and stretch of the human 
 
 Paine, 1 Ves. 456. understanding. And I should be very 
 
 («) In Lickbarrow v. Mason (2 T. R. sorry to find myself under a necessity of 
 
 63, at fp. 73), Buller, J., said: "We differing from any case on this subject 
 
 find in Snee ». Presoot that Lord Hard- which has been decided by Lord Mans- 
 
 wioke himself was proceeding with great field, who maybe truly said to be the 
 
 caution, not establishing any general foxmder of the commercial law of this 
 
 principle, bat decreeing on aU the cir- country." 
 
 oumstanoes of the case put together. (o) See Smith's Merc. Law, Introd. ; 
 
 Before that period we find that in Courts Lowndes.' Mar. Ins., Introd. 
 
222 
 
 THE CONTEACT. 
 
 Sect. 194. 
 
 Need of in- 
 fonuatioii on 
 new matters ; 
 e.g., nego- 
 tiable instru- 
 ments. 
 
 The custom 
 must relate to 
 the subject of 
 the contract. 
 
 194. But still, new subject-matters are from time to time in- 
 troduced, -which, must be dealt with by the law ; and it becomes 
 necessary that the Court should be informed how those matters 
 are regarded and dealt with by business men in order to give the 
 right effect to transactions respecting them. 
 
 This is well marked with regard to negotiable instruments. 
 The requirements of commerce have from time to time given 
 rise to the need of new kinds of documents by which rights to 
 money or to goods might be represented, and by which those 
 rights might be transferred to others. New classes of negotiable 
 instruments have thus come into use ; and have been recognized 
 by the Courts as having those characters and effects which evi- 
 dence has shown them to have acquired among business people. 
 It was thus, for example, that the negotiability of a bill of lading 
 as an instrument which represents the goods was determined, on 
 the second trial of Lickbarrow v. Mason (jj). 
 
 195. That a custom may be incorporated into a contract it 
 must relate to the subject-matter of that contract. In Phillips 
 V. Briard {q), a charter party provided that the ship, which was 
 chartered for a voyage outwards only, should be consigned at the 
 port of discharge to the charterer's agents, " free of commission 
 on this charter." It was sought to add, by custom, a term that 
 the charterer's agents should be entitled to procure a charter 
 or cargo for the ship outwards from that port ; or should be en- 
 titled to the usual broker's commission on freight if a charter or 
 cargo were obtaiaed through others, without any default by them. 
 The Court refused to allow this. 
 
 Pollock, C. B., said : " Here an attempt is made, not to explain 
 the contract or to add an incident to it by custom, but to make a 
 
 {^) 5 T. E. 683. See, as to bills of 
 exchange and promissory notes, the 
 judgment delivered by Cookburn, C. J., 
 in Goodwin v. Eobarts, L. E., 10 Ex. 
 337. As to bank notes, Miller v. Eace, 
 1 Burr. 452 ; 1 Sm. L. C. 6th ed. 468. 
 Foreign bonds, Grorgier v. MieviUe, 3 
 B. & C. 45 ; Simmons v. London Joint 
 Stock Bank, (1891) 1 Ch. 270. Scrip 
 for foreign bonds, Goodwin 'O. Eobarts, 
 L. E., 10 Ex. 76, 337 ; 1 A. 0. 476. 
 Scrip certificates for shares, Eumball v. 
 Metropolitan Bank, 2 Q. B. D. 194 ; 
 Williams v. Colonial Bank, 36 Ch. D. 
 
 659. Iron warrants, Merchant Banking 
 Co. of London v. Phoenix Bessemer 
 Steel Co. , 6 Ch. D. 205. Compare, as to 
 dividend warrants, Partridge v. Bank of 
 England, 15 L. J., Q. B. 395 ; deben- 
 tures. Crouch V. Credit Ponoier of Eng- 
 land, L. E., 8 Q. B. 374 ; Bechuanaland 
 Exploration Co. 41. London Trading 
 Bank, (1898) 2 Q. B. 658 ; wharfingers' 
 certificates! Gunn v. Bolckow, L. E., 
 10 Ch. 491 ; bonds negotiable abroad, 
 Picker v. London and County Banking 
 Co., 18 Q. B. D. 515. 
 (?) 25 L. J., Ex. 233. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OF TRADE. 223 
 
 party who has entered into one contract enter into a second, which Sect. 195. 
 imposes on him an ohhgation of paying the agent commission on 
 the return voyage. If that view is to be adopted, where are the 
 Courts to stop ? If the agent is to be held entitled to payment on 
 the back voyage, why may he not also be entitled to payment, on 
 the voyage after that ? There is no authority showing that you 
 may explain an instrument by parol evidence in. the manner that 
 we are here required to do. In fact, this is not an attempt to 
 explaiu a contract by inserting what is incidental to it, but it is an 
 endeavour to introduce another contract, and to contend that the 
 defendant agreed to do another thing than that which he con- 
 tracted to do" (r). 
 
 So, in Cockburn «. Alexander (s), a charterer was not permitted 
 to show that by the custom of the port of loading the cost of 
 pressing wool, before shipment, should be paid by the shipowner, 
 the charter party being silent on the point. * 
 
 196. And the custom must be consistent with the expressed con- it must be 
 tract. If it be inconsistent with any agreed term, the parties must ^^^ the 
 be considered to have excluded it. " You may translate the words contract. 
 of a contract ; you cannot vary or alter it" (t). It is, however, 
 often difficult to apply this rule ; and the inclination of the Courts 
 appears to have been to give effect to a custom unless it is unmis- 
 takably in conflict with the contract. The following cases will 
 illustrate the matter : — 
 
 In Hutchinson v. Tatham (u), a charter party had been entered 
 into by the defendants " as agents to merchants," and they in fact 
 made the contract for a principal ; but they did not disclose his 
 name within a reasonable time, and were themselves sued upon the 
 charter party, on the ground of a trade usage that if the principal's 
 name was not disclosed within a reasonable time after signing the 
 charter party the broker became personally liable on it. It was 
 held that this was not inconsistent with the contract («) ; though a 
 custom that the defendants should be liable as principals under all 
 circumstances would have contradicted it, and been inadmissible (y). 
 
 (r) 25 L. J., Ex. at p. 230. («) L. R., 8 0. P. *82. 
 
 , . ,„ T T r P 74. ^^^ ^^^ ^^® Humfrey v. Dale, 27 L. 
 
 W ^^ ^- '' ■' ^- ^- '*• J., Q. B. 390 ; Fleet v. Murton, L. E., 
 
 (if) Per Lord Halsbury in Tancred v. 7 Q. B. 126. 
 
 Steel Co. of Scotland, 15 A. C. 125, (y) Per Brett, J., L. R., 8 C. P. at 
 
 p. 137. Of. Royal Exchange Shipping p. 487- Of. Vikev. Ongley, 18 Q. B. D. 
 
 Co. V. Dixon, 12 A. 0. 11. 708. 
 
224 THE CONTRACT. 
 
 Sect. 196. And where the contract contained an artitration clause making the 
 broker an arbitrator in case of dispute, it was held that a custom to 
 treat the broker as the principal was inconsistent with that clause, 
 and could not be introduced (s). 
 
 In Brown v. Byrne («), it was held that a custom at Liverpool, 
 the port of discharge, to deduct three months' discount from the 
 freight payable under bills of lading on goods coming from eertaia 
 ports, was not inconsistent with a bill of lading which required 
 freight to be paid on delivery, at a certain rate. " The consignee 
 undertakes to pay freight on delivery after that rate, the shipowner 
 undertakes to allow three months' discount on freight paid after 
 that rate ; the latter contract is dependent on the former, but is not 
 repugnant to it. If the bill of lading had expressed, or if from the 
 language of it the intention of the parties could have _ been col- 
 lected, that the freight at the specified rate should be paid free 
 from all deductions, tsustomary or otherwise, then it would have 
 been repugnant to it to set up the usage " (h) . 
 
 In Hayton v. Irwin (c), a ship ordered to Hamburg to discharge 
 got to Stade, which was the nearest point to which she could get 
 with her full cargo, and was ready to deliver there. But the 
 charterer refused to take delivery of any part of the cargo at that 
 place, and alleged that by a custom of the port of Hamburg he 
 was not bound to take delivery at Stade, or elsewhere than at the 
 port of Hamburg. It was held, on demurrer, that the custom 
 was inconsistent with the terms of the charter party, by which 
 the vessel was to go to the port of discharge, " or so near thereto 
 as she can safely get, and deliver, &c." and that it was therefore 
 excluded. 
 
 But a custom for the ship to discharge partly at one place, and 
 then, after being lightened, to proceed to another place in the port, 
 would not be inconsistent with the clause in the charter party above 
 mentioned (flf). And where the custom set up was that the time 
 occupied in thus moving from one part of the port to the other 
 should not be counted as lay days, it was held that that was not 
 inconsistent with a provision that the discharge was to be done in a 
 certain number of " running days " (e). 
 
 («) Barrow v. Dyster, 13 Q. B. D. 638. judgment, 23L. J., Q. B. p. 316. 
 
 (a) 23 L. J., Q. B. 313. And see (o) 6 C. P. D. 130. 
 
 Falkner v. Earle, 32 L. J., Q. B. 124, (i) Nielsen v. Wait, 14 Q. B. D. 516 ; 
 
 on the same point. 16 Q. B. D. 67. 
 
 (i) Per Coleridge, J., delivering the («) Ibid. See infra, s. 628. 
 
CONSTEUCTION OF THE CONTRACT AND CUSTOMS OF TEADE. 225 
 
 The following are illustrations from policies of insurance : — Sect. 196. 
 
 In Blackett v. Eoyal Exchange Ass. Co. (/), it was held that 
 evidence could not be given of a usage that hoats slung upon the 
 outside of the ship, on the quarter, were not protected by a policy 
 on the ship, " boat," &o., in the ordinary form. 
 
 In Hall V. Janson (g), an action was brought on a policy upon 
 money advanced on account of freight, which contained. the memo- 
 randum that freight was " warranted free from average under 5^. 
 per cent. Tinless general, &c." It was held that an alleged custom, 
 that insurers of money advanced on account of freight were not 
 liable to make good any part of a general average loss or contribu- 
 tion, was not consistent with the words of the policy. 
 
 In Dickenson v. Jardine (h), a custom that underwriters were 
 not Kable for a general average loss of cargo by jettison, beyond 
 the owner's share of the average, was held to be iuconsistent with 
 a policy which expressly covered loss by jettison. On the other 
 hand, in Miller v. Titherington (i), it was held that a custom 
 among shipowners and underwriters in the timber trade from 
 British North America, that underwriters of policies on ships, in 
 the ordinary form, should not pay towards any general average 
 contribution payable by the shipowner on account of the jettison 
 of timber stowed on deck, was not inconsistent with the words of 
 the policy. The custom there limited the liability of the under- 
 writer for general average only in regard to a part of the cargo, and 
 left the liability as to the remaiader standing. 
 
 197. Where a custom is local only, some difficulty may arise in Effect of 
 importing it into a contract which has been made in one place and °°^ "^ °™^' 
 is to be performed in another, or which, having been made with 
 one person, has been transferred by him to another elsewhere ; and 
 these are ordinary characteristics of the contracts with which we 
 have to deal. As the ground upon which a custom may add a 
 term to a contract is that the parties are presumed to have known 
 of it, and to have tacitly adopted it, it seems clear that no custom 
 can qualify or add to the contract unless it was well known and 
 habitually followed by persons engaged in that trade at the place 
 where the contract was made. 
 
 The same remark applies to the meanings of words used in the 
 
 (/) 2 C. & J. 244. W li. E., 3 C. P. 639. 
 
 (i) 30 L. J., Ex. 217; 31 L. J., Ex. 
 iff) 24 L. J., Q. B, 97. 363. 
 
 C. C. Q 
 
226 THE CONTEACT. 
 
 Sect. 197. contract. If it is sought to give them a peculiar oustomary sense, 
 that must have been the one customarily adopted in that connection 
 at the place where the original contract was made. Thus, in 
 Holman v. Peruvian Nitrate Co. (k), it was held that the words 
 " working days," in a charter party made in London, could not be 
 interpreted by reference to a local usage at Iquique, the loading 
 port, not to count surf-days as working days. " Where a custom 
 is purely local, it cannot be taken to control or explain the words 
 of a written instrument unless it was known to the parties " {f). 
 Whenrecog- But where a custom, or customary meaning of words, is 
 throTigliout habitually observed by those engaged in a branch of the carrying 
 ® ^^ ®' trade, it may be presumed that it is adopted by shipowners and 
 merchants who go into that trade. This was the case in Bottomley 
 V. Forbes (w), and Buckle t). Knoop (w), where the usage relied on 
 was one generally recognized in the trade of bringing cotton from 
 Bombay to London. 
 
 In the latter case Kelly, C. B., said (o) : " The contract was 
 entered into, as I understand, in London, through London brokers, 
 and between mercantile men in London and Liverpool, and the 
 subject-matter of it relates to things and circumstances existing in 
 and having relation to Bombay, London and Liverpool. I am of 
 opinion that evidence of usage is admissible to show any customary 
 interpretation put in Bombay, London and Liverpool on a 
 contract that is constantly, perhaps daily, entered into by Bombay 
 and London and Liverpool merchants. It was said by Mr. James 
 that there, was no evidence here that any of the parties to the 
 contract had ever heard of the custom. I think the jury may 
 presume, and the jury were bound to presume, that any one who 
 enters into a contract of a nature commonly and frequently entered 
 into amongst persons dealing in a particular commodity, or engaged 
 in a particular trade to which that contract relates, knows, as he is 
 bound to know, of every usage bearing upon the interpretation of 
 a contract of such a nature. I think, therefore, as the evidence 
 shows that it was customary among London and Liverpool 
 merchants trading and freighting ships to and importing goods 
 from Bombay to put this interpretation upon a contract of this 
 nature, it was admissible; and, the jury having found on it in 
 
 (A) 5 Sess. Ca. (4th ser.) 667. 53 Fed. Eep. 394. . 
 
 (!) Per Lord President (Inglis), ibid. (»») 5 Bing. N. C. 121. 
 
 at p. 671. Cf . Hick i>. Tweedy, 63 L. («) L. E., 2 Ex. 125 ; 36 L. J., Ex. 49. 
 
 T. 765, per Charles, J. ; Gill v. Browne, (o) 36 L. J., Ex. 49, at p. 63. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OF TRADE. 227 
 
 favour of the interpretation contended for on the part of the Sect. 197. 
 plaintiff, that such is the interpretation which we must likewise put 
 upon this contract, although the evidence of usage is merely con- 
 firmatory of the construction which I should without it have been 
 disposed to put on the words used " {p). 
 
 198. Also, where a contract made in one place relates to some- As to matters 
 thing to be done elsewhere, it may well be implied that it is made formed^'^' 
 on the understanding that things are to be done in a reasonable ^°°^^J- 
 waj, having regard to the practices of that other place, although 
 they may not be known to the parties. That is the case, as we 
 have seen, with regard to the manner of packing goods for ship- 
 ment {q). So, also, with regard to the way in which they should 
 be delivered at the port of discharge (r). Though it does not 
 seem to be settled how far a custom of the loading or discharging 
 port may impose an unusual burden upon the shipowner of which 
 he was ignorant when he made the contract. 
 
 199. In Norden Steamship Co. v. Dempsey (s), -the Court Borden 
 appears to have gone further than the limits above suggested, v. Dempsey. 
 The charter party there was made at Riga, between a merchant of 
 that place and the owners of the foreign steamship "Pamona." 
 She was to carry a cargo of sleepers "from Miihlgraben to 
 Liverpool ;" " discharging dock to be ordered on arrival of steamer 
 at Liverpool." The sleepers were shipped by the charterer in two 
 parcels, under bills of lading which made them deliverable to 
 order or assigns. One of the parcels was consigned direct to the 
 defendant, a tinjber merchant at Liverpool, and he was also 
 assignee of the other bill of lading. The "Pamona" on her 
 arrival at Liverpool was ordered to the Canada Dock, one of the 
 two usual docks for timber ships, and she got in there on 
 September 13th ; but, owing to the crowded state of the dock, she 
 did not get to the quay, where, by the regulations, the discharging 
 must take place, until the 17th ; and the question was whether the 
 lay days began to run on the 13th or not. The defendant sought 
 to show that there was a custom at Liverpool that, in the case of 
 timber ships, the lay days commenced only from the mooring of 
 
 (p) Cf. Brown V. Byrne, 23 L. J., 273; Cuthbert v. Oummmg, 24 L. J., 
 Q. B. 313 ; Hathesing v. Laing, L. E., Ex. 198, 310. 
 
 J- -g gg (f) Marzetti v. Smith, 49 L. T. 580. 
 
 See infra, ss. 461, 462. 
 
 fe) Benson v. Schneider, 7 Taun. (s) 1 C. P. D. 654 ; 45 L. J., 0. P. 764. 
 
 q2 
 
228 THE CONTRACT. 
 
 Sect. 199. the vessel at the quay ; and for that purpose his counsel asked one 
 of his witnesses, " Is there any custom in 'the port of Liverpool, 
 with regard to ships in the timher trade, as to when they are 
 deemed to have arrived at their usual place of discharge ? " • The 
 question was objected to, and was not allowed by Lush, J., who 
 tried the case, on the ground that the supposed custom was too 
 limited, being confined to a particular trade and to vessels bringing 
 a particular description of cargo. 
 
 The Court, however, after consideration, held that the question 
 ought to have been allowed, and ordered a new trial. Lord 
 Coleridge, C, J., said : " Principle and authority have alike decided 
 that where the question is what particular part of an extensive 
 port a vessel must have reached before she can be said to have 
 arrived at her destination, evidence may be given as to the usage 
 of the port in that respect. Such evidence has been allowed by 
 judges, and the propriety of receiving it has, upon many occasions, 
 been recognized by the Courts, upon the ground that it is not 
 offered for the purpose of contradicting, but merely to explain the 
 contract." 
 
 Brett, J., said : "As to the first point, whether the proposed 
 question would add to or vary the terms of the charter party, if 
 that was the effect of it I think it was inadmissible. This charter 
 party was made at Eiga. To attempt to vary it by showing a 
 custom of the port of Liverpool, evidence of which would be 
 admissible only upon the supposition that it was known to both 
 parties to the contract, could not be allowed. I do not accede to 
 the proposition that there is any distinction in this respect where 
 one of the parties to the contract is a foreigner (t) ; but I do not 
 think the proposed question has the effect of varying the terms of 
 this charter party. The contract is to carry the cargo to Liverpool, 
 a certain number of days being allowed for loading the ship at the 
 port of loading, and for unloading her at the place of discharge. 
 Here, Liverpool is the place of discharge. The question, therefore, 
 is, what is the meaning of ' Liverpool ' ? It is not contended that 
 the vessel arrived at Liverpool the moment she entered the 
 Mersey, but only when she entered a Liverpool dock — when she 
 
 (t) The report ia the Law Journal is t^® place wtere tlie contract was made, 
 fuller. The learned judge added :— ^^^ therefore it cannot be assumed that 
 
 "And I think that it cannot be ad- ^* ^'^^ ^^ ^^^ °°''*'^<'* ^^' "^^^ *^« 
 
 parties to the contract knew of that 
 mitted, because it is not the custom of custom" : 45 L. J., C. P. at p. 769. 
 
CONSTRUCTION OF THE CONTRACT AND CUSTOMS OF TRADE. 229 
 
 arrived at a place where, according to the custom of the port, she Sect. 199. 
 was considered as an arrived ship. It Is then only that the lay 
 days are to commence." 
 
 Still, it seems to have been held that the special custom of 
 the timber trade at Liverpool might be binding upon foreign 
 shipowners, though the charter was made abroad with a foreign 
 charterer, and though presumably both parties were ignorant of 
 the custom. Eor the custom was alleged to be one at the port, 
 not in the trade generally ; and no attempt was made to show that 
 the charterer and the shipowners were aware of it. 
 
 The question involved was not one as to how the contract should 
 be reasonably performed, but as to whether the ordinary right of 
 the shipowner could be altered by a custom to postpone the com- 
 mencement of the lay days froni the time when they would other- 
 vrise have begun to run. For what was sought was to give a 
 special meaning to the word "Liverpool." The defendant did 
 not endeavour to show the effect of that word in charter parties 
 generally, but to give it a meaning peculiar to the timber trade of 
 that port, which confessedly was not the meaning generally attri- 
 buted to it («<). 
 
 It seems clear that a reasonable interpretation must be given to 
 a wide expression such as " Liverpool " ; and that what that should 
 be must be determined by reference to the local circumstances (x) . 
 But it is difficult to understand how a special exemption in favour 
 of a particular trade can be properly imported into the meaning, 
 unless the parties can be presumed to have so agreed. 
 
 200. Further, though a custom may exist at the place at which As against 
 a biU of lading is made, and so form part of the contract between till of ladino-. 
 the actual parties to it, it does not perhaps follow that the custom 
 will affect the rights of one who takes over the goods and the con- 
 tract without knowledge of the custom. 
 
 In Kirchner v. Venus («/), the question was whether a shipowner 
 could claim a Hen on goods shipped at Liverpool for Sydney, for 
 freight which was by the bill of lading made payable in England, 
 
 (m) In the Law Journal, however not to charge demurrage until the ship 
 
 (p. 770), Brett, J., is reported to have is at quay berth." Upon the second 
 
 said that, "if a sljip is considered at trial the defendant failed to prove the 
 
 Liverpool to be an ' arrived ' ship, you existence of the alleged custom, 
 
 cannot alter the rights of the shipowner, (») See Brereton v. Chapman, 7 Bing. 
 
 upon a contract made at Riga, by show- 569. 
 
 ing that at Liverpool there is a custom (y) Vi Mo. P. C. 361, 
 
230 THE CONTRACT. 
 
 Sect. 200. in advance : the freight not having, in fact, been paid. The ship- 
 owner set up a custom, said to obtain at Liverpool, that shipowners 
 should not lose their Hen for freight, although it were made payable 
 in England and the goods were deliverable abroad. But the Privy 
 Council held that such a custom at Liverpool could not affect the 
 rights of the indorsees of the bill of lading, who lived at Sydney. 
 
 That question arose prior to the Bills of Lading Act, 1855. The 
 bill of lading contract did not therefore pass to the indorsees, so 
 that possibly the decision on the above point would not now 
 apply (s). Whether terms which are not expressed ia a bill of 
 lading can form part of the contract which arises, under that Act, 
 between the shipowner and indorsee, does not appear to have been 
 decided. 
 
 (z) See infra, ss. 606, 663. 
 
231 
 
 CHAPTER VII. 
 
 EFFECT OF FOREIGN LAWS, 
 
 SECT. 
 
 Confliotof laws 201 
 
 Tlie law of the place of eontraoting 202 
 Displaced by a different intention — 
 
 Place of performance 203 
 
 Master's authority determined by 
 
 the law of the flag 204 
 
 Shipowner's liability determined by 
 
 the law of the flag 205 
 
 So too the efiect of the contract 
 
 generally 206 
 
 Meanings of terms used — Rules as 
 
 to performance 207 
 
 Law of place of performance does 
 
 not excuse non-performance . . , , 208 
 
 SECT. 
 
 Law of place of delivery 209 
 
 Intention not to adopt the law of 
 the flag 210 
 
 Master's authority to deal with 
 cargo determined by the flag ... . 211 
 
 Through contracts 212 
 
 Validity of contract — Form 213 
 
 Illegality by English law 214 
 
 Contracts valid at the place of per- 
 formance 215 
 
 lEegality by foreign law 216 
 
 Stipulations void by foreign law . . 217 
 
 201. It often happens that the parties to a bill of lading or charter Conflict of 
 party are of different, nationalities, and that the places at which 
 the contract is to be performed belong to states in which the rules 
 of law differ from one another, and from those of the place where 
 the contract was made. Hence it is not surprising that questions 
 arise as to the law by which the effect of the contract, or the 
 manner of performdng it, is to be governed or its validity is to be 
 tested. Rather it may be wondered at that difficulties on these 
 points do not more often occur. The decisions upon them are 
 comparatively few, and they can scarcely be said to establish rules 
 which may be applied with complete confidence. Certain rules 
 and principles have, however, been laid down, and it is important 
 to consider their effect. 
 
 202. The ordinary rule adopted in our Courts is that the law of The law of 
 the place at which a contract was made determines its effect {a). oontraotLg. 
 
 (a) P. & 0. Steam Nav. Co. v. Shand, 
 12 L. T. 808 ; Trimbey v. Vignier, 1 
 
 Ring. N. C. 151; Story, Conflict of 
 Laws, ss. 242, 263. 
 
232 
 
 THE CONTRACT. 
 
 Sect. SOS. " It is generally agreed that the law of the place where the con- 
 tract is made is prima facie that which the parties intended, or 
 ought to he presumed to have adopted, as the footing upon which 
 they dealt, and that such law ought, therefore, to prevail in the 
 absence of circumstances indicating a different intention — as, for 
 instance, that the contract is to he entirely performed elsewhere, or 
 that the suhject-matter is immoveable property situate in another 
 country, and so forth " (b). 
 
 Displaced by 
 a different 
 intention. 
 
 Place of 
 performance. 
 
 203. But this ordinary prima facie rule is displaced where a 
 clear intention of the parties to the contrary can be gathered from 
 the contract itself, or from the nature of the transaction. Thus, it 
 has been laid down that where a contract made in one place is to 
 be performed entirely in another place, where the law is different, 
 the presumption is, that the law of the place of performance is that 
 which is to determine its effect (c) . 
 
 " If a contract is made in our country to be carried out between 
 the parties in another country, either in whole or in part, unless 
 there appears something to the contrary, it is to be concluded that 
 the parties must have intended that it should be carried out 
 according to the law of that other country " [d). 
 
 But neither is this presumption conclusive. In each ease the 
 whole character and circumstances of the contract must be con- 
 sidered, to ascertain the real or probable intention. 
 
 Bowen, L. J., delivering the judgment of the Court of Appeal, 
 in Jacobs v. CrMit Lyonnais (e), said: — "It is obvious, however, 
 that the subject-matter of each contract must be looked at as well 
 as the residence of the contracting parties or the place where the 
 contract is made. The place of performance is necessarily, in 
 many cases, the place where the obligations of the contract wiU 
 have to be enforced, and hence, as well as for other reasons, has 
 been introduced another canon of construction, to the effect that 
 the law of the place of fulfilment of a contract determines its 
 obligations. But this maxim, as well as the former, must of 
 course give way to any inference that can legitimately be drawn 
 from the character of the contract and the nature of the trans- 
 
 («) Per ■Willes, J., Lloyd v. Oiiibert, 
 L. E., 1 Q. B. 115, at p. 122. 
 
 (c) Story, Conflict, h. 280 ; London 
 Assurance v. Comp. de Moagens, 167 
 U.S. 149 (1897). 
 
 {if) Per Lord Esher, Chatenay v. 
 Brazilian, &c. Co., (1891) 1 Q. B. 79; 
 and see per Lord Mansfield, Eobinson v. 
 Bland, 2 Burr. 1077, p. 1078. 
 
 («) 12 Q. B. D. 589. 
 
EFFECT OF FOREIGN LAWS. 
 
 233 
 
 action. In most cases, no doubt, where a contract has to he Sect. 803. 
 wholly performed ahroad, the reasonable presumption may be that 
 it is intended to be a foreign contract determined by foreign law ; 
 but t]ns primA facie view is in its turn capable of being rebutted by 
 the expressed or implied intention of the parties as deduced from 
 other circumstances. Again, it may be that the contract is partly 
 to be performed in one place and partly in another. In such a 
 case the only certain guide is to be found in applying sound ideas 
 of business convenience and sense to the language of the contract 
 itself, with a view to discovering from it the true intention of the 
 parties. Even in respect of any performance that is to take place 
 abroad, the parties may still have desired that their liabilities and 
 obligations shall be governed by English law ; or it may be that 
 they have intended to incorporate the foreign law to regulate the 
 method and manner of performance abroad without altering any 
 of the incidents which may attach to the contract according to 
 English law. Stereotyped rules laid down by juridical writers 
 cannot, therefore, be accepted as infallible canons of interpretation 
 in these days, when commercial transactions have altered in 
 character and increased in complexity ; and there can be no hard- 
 and-fast rule by which to construe the multiform commercial 
 agreements with which in modern times we have to deal " (/). 
 
 204, With regard, however, to contracts for carrying goods by Master's 
 sea, a more definite rule has been laid down. It was decided, detemdned 
 with great authority, in Lloyd ». Guibert (g) that, in some J"/ ^® '^"^ °* 
 respects at any rate, the law of the flag, or nationality, of the ship 
 determines the effect of the contract. In that case the plaintiff 
 was a British subject who had chartered a vessel at St. Thomas, a 
 Danish "West India island, for a voyage from St. Marc, in Hayti, 
 to Havre, London or Liverpool, at charterer's option. The vessel ■ 
 belonged to French subjects, domiciled and trading in France; 
 and the chai-ter party described her as French. The master 
 chartered her under his general authority. A cargo was shipped 
 by the plaintiff at St. Mare for Liverpool, and the vessel sailed 
 with it ; but she was damaged in a storm, and put into Fayal, a 
 Portuguese port ; and in order to repair, the master borrowed 
 
 (/) 12 Q. B. D. at p. 601. See also dispute under the contract was held to 
 
 Hamlyu & Co. v. Talisker Distillery, show an intention to apply English law. 
 
 (1894) A. 0. 202, where a clause pro- {g) 32 L. J., Q. B. 241 ; L, Tl., 1 
 
 viding for an English arbitration of any Q. B. 115. 
 
234 
 
 THE CONTRACT. 
 
 Sect. 204. money upon bottomry of the ship, freight and cargo. On arrival 
 at Liverpool, the ship and freight were insufficient to satisfy this 
 ^ charge, so that it partly fell upon the plaintiff as owner of the 
 cargo ; and he claimed to he indemnified hy the shipowners. He 
 would, it seemed, have been entitled to indemnity under either 
 Danish, Portuguese or English law ; but under French law the 
 shipowners, having given up ship and freight, were not further 
 liable. The question, therefore, was, by what law should the 
 matter be deternuned ? 
 
 The judgment of the Queen's Bench in favour of the ship- 
 owners was delivered by Blackburn, J., and turned upon the 
 consideration that the authority of the master to make the charter 
 party was limited by the law of his flag. 
 
 " We think that, as far as regards the implied authority of the 
 master of a ship to biad his owners personally, the flag of the ship 
 is notice to all the world that the master's authority is that con- 
 ferred by the law of that flag ; that his mandate is contained in 
 the law of that country, with which those who deal with him 
 must make themselves acquainted at their peril " (A). \ 
 
 Shipowner's 205. Upon error being brought, this judgment was unanimously 
 termined.by affirmed by the Exchequer Chamber. But there the broader 
 the^.° ground was taken, that the law of the flag governed the ship- 
 owner's liability under the contract, without considering whether 
 it was made under a limited authority or not. 
 
 Willes, J., delivering the judgment of the Court, said (?) : 
 " The present question does not appear to have ever been decided 
 in this country, and in America it has received opposite decisions 
 equally entitled to respect (/). We must, therefore, deal with it 
 as a new question, and endeavour to be guided in its solution by a 
 steady appHeation of the general principle 'already stated, viz., 
 that the rights of the parties to a contract are to be judged of by 
 that law by which they intended, or rather by which they may 
 justly be presumed, to have bound themselves. We must apply 
 this test successively to the various laws which have been suggested 
 as appHeable." 
 
 And after pointing out that there was no general uniform rule 
 of maritime law upon the subject, and discussing the applicability 
 
 {h) 32 L. J., Q. B. p. 248. W See Arayo v. CurreU, 1 Louis. 
 
 Eep. 528 ; Pope it. Nickeraon, 3 Story's 
 (i) L. R., 1 Q. B. p. 123. Rep. 465. 
 
EFFECT OF FOREIGN LAWS. 235 
 
 of the laws of ^England and of Portugal, lie continued: "In Sect. 205. 
 favour of the law of Denmark there is the cardinal fact that the 
 contract was made within Danish territory, and, further, that the 
 first act done towards performance was weighing anchor in a 
 Danish port. For the law of France, on the other hand, many 
 practical considerations may be suggested ; and first, the subject- 
 matter of the contract, the employment of a sea-going vessel for 
 a service, the greater and more onerous part of which was to be 
 rendered upon the high seas, where for all purposes of jurisdiction, 
 criminal or civil, with respect to all persons, things and transac- 
 tions on board, she was, as it were, a floating island, over which 
 France had as absolute, and for all purposes of peace as exclusive, 
 a sovereignty as over her doniinions by land ; and which, even 
 whilst in a foreign port, according to notions of jurisdiction 
 adopted by this country (18 & 19 Vict. e. 91, s. 21 ; 24 & 25 
 Vict. c. 94, s. 9), and carried to a greater length abroad (Ortolan, 
 Diplomatie de la Mer, c. xiii, the work of a French naval officer, 
 but of which a jurist might well be proud), was never completely 
 removed from French jurisdiction. 
 
 " Further, it must be remembered that, although bills of lading 
 are ordinarily given at the port of loading, charter parties are 
 often made elsewhere ; and it seems strange and unlikely to have 
 been within the contemplation of the parties that their rights or 
 liabilities in respect of the identical voyage should vary — first, 
 according as the vessel was taken up at the port of loading or not ; 
 and secondly, if she was taken up elsewhere, according to the law 
 of the place where the charter party was made, or even ratified. 
 
 "If a Frenchman had chartered the Olivier upon the same 
 terms as the plaintiff did, it would seem strange if he could appeal 
 to Danish law against his own countryman because of the charter 
 party being made or ratified in a Danish port, though for a service 
 to be rendered elsewhere by a transient visitor, for the most part 
 within French jurisdiction. Moreover, there are many ports which 
 have few or no sea-going vessels of their own, and no fixed 
 maritime jurisprudence, and which yet supply valuable cargoes to 
 the ships of other countries. Take Alexandria, for instance, with 
 her mixed population and her maritime commerce almost in the 
 hands of strangers. Is every vessel that leaves Alexandria with 
 grain under a charter party or bill of lading made there, and every 
 passenger vessel leaving Alexandria or Suez, be she English, 
 
236 THE CONTEACT. 
 
 Sect. 205. Austrian or French, subject to Egyptian law ? As to not a few 
 half- savage places in Africa and Asia, with neither sea-going ships 
 nor maritime laws, a similar question — What is the law in such 
 cases, or is there none, except that of the Court within whose 
 jurisdiction the litigation first arose ? — arises. Again, it may be 
 asked, does a ship which visits many ports in one voyage, whilst 
 she undoubtedly retains the criminal law of her own coimtry, put 
 on a new sort of civil liability at each new country she visits, in 
 respect of cargo there taken on board ? An English steamer, for 
 instance, starts from Southampton for Gibraltar, calling at Vigo, 
 Lisbon and Cadiz. A Portuguese goiag in her from Southampton 
 to Yigo would naturally expect to sail subject in all respects to 
 English law, that being the law of the place and the ship. But if 
 the locality of the contract is to govern throughout, an English- 
 man going from Yigo to Lisbon on the same voyage would be 
 under EngHsh law as to crimes, and all obligations not connected 
 with the contract of carriage, but under Spanish law as to the 
 contract of carriage ; and a Spaniard going from Lisbon to Cadiz 
 during the same voyage would enjoy Portuguese law as to his 
 carriage, and be subject to English law in other respects. The 
 cases which we have thus put are not extreme nor exceptional ; on 
 the contrary, they are such as would ordinarily give rise to the 
 question. Which law is to prevail ? The inconvenience and even 
 absurdities which would follow from the adopting the law of the 
 place of contract, in preference to that of the vessel, are strong to 
 prove that the latter ought to be resorted to. 
 
 "No inconvenience comparable to that which would attend an 
 opposite decision has been suggested. The ignorance of Erench 
 law on the part of the charterer is no more than many Englishmen 
 contracting in England with respect to English matters might 
 plead as to their own law, in case of an unforeseen accident. Nor 
 can we aUow any weight to the argument that this is an impolitic 
 law, as tending to interfere with commerce, especially in making 
 merchants cautious how they engage foreign vessels. That is a 
 matter for the consideration of foreigners themselves, and nothing 
 short of a violation of natural justice, or of our own laws, could 
 justify us iQ holding a foreign law void because of being impolitic. 
 No doubt the Erench law was intended to encourage shipping by 
 limiting the liability of shipowners, and in this respect it goes 
 somewhat further than our own, but whether wisely or not is 
 
EFFECT OP FOREIGN LAWS, 237 
 
 matter within the competence and for the consideration of the Sect. 205. 
 French legislature, and upon which, sitting here, we ought to 
 pronounce no opinion. 
 
 " Exceptional cases, should they arise, must be dealt with upon 
 their own merits. In laying down a rule of law, regard ought 
 rather to be had to the majority of cases upon which doubt and 
 litigation are more likely to arise ; and the general rule, that where 
 the contract of affreightment does not provide otherwise, there, as 
 between the parties to such contract, in respect of sea damage and 
 its incidents, the law of the ship should govern, seems to be not 
 only in accordance with the probable intention of the parties, but 
 also most convenient to those engaged in commerce. In order to 
 preclude all misapprehension, it may be well to add that a party 
 who relies upon a right or an exemption by foreign law is bound 
 to bring such law properly before the Court, and to establish it in 
 proof ; otherwise the Court, not being entitled to notice such law 
 ' without judicial proof, must proceed according to the law of 
 England (see Brown v. Grracey, note to Lacon v. Higgins {k) )." 
 
 206. Lloyd i'. Gruibert establishes, that where the shipowner's Also the effect 
 total liability is limited by the law of his own country, in which generally, 
 he is domiciled, and under whose flag he sails his ship, that limita- 
 tion is to be implied in contracts to carry goods in her. Whether 
 the contract be made by the master, under a limited authority, or 
 by the owner himself, the law of the flag determines his liability 
 in point of total amount. 
 
 The same reasoning establishes that the degree of responsibility, 
 and the character of the obligations impliedly undertaken by the 
 shipowner (with reference to which the contract is made so far as 
 it does not expressly vary or exclude them), are also to be deter- 
 mined by the law of the flag. Hence it follows that the effect of 
 the expressed terms in limiting or altering those obligations must 
 be determined by the same law. Also, that the same law must 
 govern the rights of the shipowner against the charterer or shipper, 
 and the obligations of the latter under the contract. For the 
 contract is a whole, and must be read in the light of one and the 
 same consistent set of rules. The exceptions must be read with 
 the obligations, and the obligations on one side with those on the 
 other, for which they are the considerations, and of which they are 
 frequently conditions. 
 
 {k) D. &B. N. P. 41,n. 
 
238 
 
 THE CONTRACT. 
 
 Sect. 206. The effect of the docTimeiit containing the contract, as a piece of 
 evidence, follows a different rule, and will he determined hy the 
 law of the forum. In Denholm v. Halmoe (J), the question was 
 whether the statement of quantity of the cargo in the hill of lading 
 was conclusive evidence of the quantity shipped, against the ship- 
 owner. It was so by the law of the flag (Denmark), and also hy 
 the law of Eussia, where the cargo was shipped. But it was held 
 that the law of Scotland (the forum, and the place of delivery) 
 must he applied. So that the statement in the bill of lading was 
 not conclusive. 
 
 Meanings of 
 terms used. 
 
 Rules as to 
 performance. 
 
 207. The meanings of the terms used do not depend upon the 
 application of a particular law, but upon the understanding of the 
 parties ; and that is to be ascertained by reference to the trade and 
 the circumstances in which they were used. So that the usages 
 and laws of the place where the contract was made, or of the place 
 of performance, may be important in this regard. 
 
 Also, it is not inconsistent with the above propositions that a 
 matter which is collateral to the contract, though it may affect the 
 undertaking, should be determined by a different law. That is 
 the case with regard to adjustments of general average losses, 
 which are made according to the law of the place of adjustment, 
 i.e., generally the place where the voyage terminates, although 
 that may differ from the law of the flag {m). 
 
 And though the law of the flag may determine the rights and 
 liabihties of the parties under a charter party or bUl of lading, 
 still, in considering how the provisions of the contract are to be 
 carried out, it may be necessary to take other rules of law into 
 account. Eules which must be conformed to at the places of 
 performance— e.gr., customs regulations at the ports of loading 
 and discharge — form part of the circumstances with regard to 
 which the loading or delivery is to be done. The contract must 
 be supposed to have had reference to them, unless it is expressly 
 inconsistent ; and it will not be properly performed unless they 
 have been regarded. " It seems impossible to exclude the law of 
 England (the place of discharge), or even that of Hayti (the place 
 of loading), from relevancy in respect of the manner of performing 
 that portion of the service contracted for which was to be rendered 
 in their respective territories; because the ship must needs. 
 
 {I) 25 So. L. R. 112. 
 
 (m) Siraonds v. White, 2 B. & 0. 805. 
 
EFFECT OF FOREIGN LAWS. 239 
 
 for the time teing, conform to the usages of the port where she Sect. S07. 
 is"(w). 
 
 208. But the law of the place of performance is thus inoqrpo- Law of place 
 rated only so far as it is consistent with the express language of anoe does not 
 the contract, as interpreted by the law of the flag ; and only so far pgrfotaance 
 as may be necessary for determining the manner of the perform- 
 ance. It will not alter the character of the obligations which are 
 imposed by the contract, or by the law which gOTcrns its effect. 
 Thus, a charterer is not excused from loading a cargo because the 
 law of the loading port prohibits his doing so, even though that 
 law would also excuse him (o) ; nor is a shipowner discharged from 
 liability for damage because no claim has been made at the time or 
 in the manner required for doing so by the law at the port of 
 discharge {p). 
 
 209. Sometimes, indeed, the place at which delivery is to be Law of place 
 given has been held to indicate the law to be applied. In the 
 Wilhelm Schmidt (q), the vessel was German, and was chartered at 
 Constantinople by German subjects to carry a cargo to a port 
 
 in the United Kingdom or the Continent, " calling at Cork, 
 Falmouth, or Plymouth, for orders, which were to be given by 
 return of post in reply to the master's letter to the charterer's 
 agents in London." The charter party was in English. On 
 arrival at Falmouth, orders were given to discharge at Ipswich. 
 Sir E. Phillimore held that the intention was that the contract 
 should be governed by English law. " When those orders are 
 received and the destination is fixed, it does not seem to me 
 irrational or unfair that the determination should be considered 
 as if expressed in the original contract; and where the place of 
 performance was fixed to be in England, the seat of the contract, 
 to use the expression of foreign jurists, would be in that country, 
 and the law of the country would be the law of the contract" (r). 
 
 210. The " law of the flag " rule is not, however, to be regarded Intention not 
 as a fixed rule. It was based on " the probable intention of the la-s^oTthe ^ 
 parties," and on convenience, and there can be no doubt that if ^^• 
 
 («) Per ■Willes, J., Lloyd v. Guibert, {p) Moore v. Harris, 1 A. 0. 318. 
 
 L. E., 1 Q. B. 115, at p. 126. Of. per (?) 25 L. T. 34. Of. Tlie Express, 
 
 Bowen, L. J., Jacobs v. Credit Lyon- L. E., 3 A. & E. 697 ; The San Eoman, 
 
 nais, 12 Q. B. D. 589, at p. 604. L. E., 3 A. & E. 683 ; The Patria, L. E., 
 
 (o) Blight V. Page, 3 B. & P. 295, n. ; 3 A. & E. 436 ; Denholm v. Halmoe, 25 
 
 Kiikv. Gibbs, 26 L. J., Ex. 209 ; Jacobs So. L. E. 112. 
 
 V. Credit Lyonnais, 12 Q. B. D. 689. {r) 25 L. T, at p. 38. 
 
240 
 
 THE CONTRACT. 
 
 Sect. 210. the parties expressly or inferentially show, in the contract, that 
 they mean some other law to govern, that will be the law to apply. 
 
 Thus in Ee Missouri S.S. Co. (s) the fact that the ship was 
 British, and owned by a British company domiciled in England, 
 was not regarded as conclusive that English law was intended; 
 but as the form of the contract was English, and as it contained a 
 clause which was valid by English law, but not valid by the law of 
 the place where it was made, the conclusion that the parties meant 
 to be governed by English law was considered irresistible (t). 
 
 Again, in Chartered Mercantile Bank of India v. Netherlands 
 India Steam Navigation Co. (u), a contract by bill of lading was 
 held to be English, and to be construed with reference to English 
 law, though the vessel carried the Dutch flag. The shipment 
 was made by an Englishman, at Singapore, a British port, 
 where English law prevails ; and the persons for whose benefit the 
 ship was worked were English. They were, however, registered in 
 Holland as a Dutch company, and the ship was registered in 
 Holland and carried the Dutch flag, in order to obtain certain 
 privileges of trading to Dutch ports, to one of which she was 
 bound on the voyage in question. It was considered both in the 
 Queen's Bench Division and in the Court of Appeal to be clear 
 that the intention was that the contract should be English, even 
 though the ship were to be regarded as Dutch. And Brett, L. J., 
 further held, that as her owners were English, that was also her 
 nationality, notwithstanding the fact that she was registered in 
 Holland and not registered in England. 
 
 So, again,'^in The Industrie («), a charter of a Grerman vessel was 
 held to be an English contract. It had been negotiated and made 
 in London, between English merchants and English brokers for 
 the Grerman owner ; and it was upon an ordinary English printed 
 form, containing such peculiarly English phrases as " act of 
 Grod" and " Queen's enemies." The Court of Appeal, reversing 
 Barnes, J., held that aU the circumstances together showed an 
 intention to make an English contract. 
 
 211. It is well settled that the law of the flag determines the 
 extent of the master's authority to deal with the cargo during the 
 
 Master's 
 authority to 
 deal witii 
 cargo deter- 
 mined by the 
 flag-la-w. 
 
 (s) 42 Oh. D. 321. 
 
 {t) The opposite conclusion ■was, how- 
 ever, come to by the Supreme Court of 
 
 the United States in the similar case of 
 The Montana, 129 U. S. Eep. 397. 
 
 («) 9 Q. B. D. 118 ; 10 Q. B. D. 521. 
 
 (v) (1894) P. 68. 
 
EFFECT OP FOEEIGN I1A.WS. 241 
 
 voyage, and the manner in which he should exercise it. The Sect. 211. 
 master generally has authority to hypothecate, and even to sell 
 portions of the cargo in cases of necessity {w). This arises as a 
 consequence of putting the goods into the ship under his control. 
 But the extent of this authority and the conditions under which 
 it may be exercised, differ somewhat under the laws of different 
 countries. Where a conflict arises on the point, the law of the 
 flag prevails. 
 
 This was decided hy the Court of Appeal in The Gaetano and Bottomry. 
 Maria {x), reversing the judgment of Sir E,. Phillimore. The 
 master had there put into a port of refuge, Fayal (Portuguese), 
 and had hottomried ship and cargo. The ship was Italian ; the 
 cargo had been shipped under a charter party, made in London, to 
 be carried to England ; and the ship and cargo had been arrested 
 in England, after arrival, in an action on the bond. According to 
 English law the bond was not valid, for it had been made without 
 communication with the cargo owners. But by Italian law, it was 
 stated, the master was entitled to make the bond without previous 
 communication, upon complying with certain formalities and con- 
 ditions, which had been done. The Court held that the bond was 
 valid, if it was made in conformity with Italian law. 
 
 Brett, L. J., said {y) : " Therefore, acting upon the principle of 
 Lloyd V. Guibert (z), and upon the principle which arises from the 
 mercantile transaction itself, it seems to me that, whoever puts his 
 goods on board a foreign ship, puts them on board subject to be 
 dealt with by the master according to the law of the country to 
 which the ship, belongs, unless that authority is limited by express 
 stipulation between the parties at the time of shipment." 
 
 In The August (a), a claim was made against the owners of a Sale of cargo. 
 German ship in respect of a sale of cargo by the master at a port of 
 refuge. The goods had been shipped at Singapore for London. 
 They were damaged on the voyage, and were sold by the master 
 at Capetown, on the advice of surveyors there ; but they might, in 
 fact, have been prudently reshipped and brought on to London. 
 It was shown that the law of Germany justified such a sale, where 
 
 {u>) See infra, Chap. X; [a) (1891) P. 328. As to the effect of 
 
 (x) 7 P. D. 1, 137 ; and see The a sale, effectual according to the law of 
 
 Eaomak, L. E. , 2 P. C. 505. tlie place of sale, in passing the property 
 
 to the purchaser, see CammeU v. Sewell, 
 
 [y] 7 P. D. at p. 148. 29 L. J., Ex. 360 ; Aloock v. Smith, ~ 
 
 («) L. E., 1 Q. B. 115. (1892) C. 238. 
 
 C. — C. 11 
 
242 THE eONTEACT. 
 
 Sect. Sll. the master, after taking tlie best advice he could get, honestly came 
 to the conclusion that a sale was hest in the interest of the cargo 
 owner. And Sir J. Hannen held that the liability of the ship- 
 owners must be determined by that law. 
 
 The same rule applies, in such a case, although the contract of 
 carriage may have been made with reference to some other law 
 than that of the flag. The master's authority to seU the cargo 
 must stiU be determined by reference to the flag-law (c). 
 
 On the other hand, the manner in which a bottomry bond is 
 enforceable, and its effect and rank among other maritime liens 
 on the ship and cargo, are determined by the law of the tribunal 
 by which it is enforced (d). 
 
 Through 212. There seems to be great uncertainty as to the law which 
 
 contracts. ° , 
 
 should govern a contract for through carriage, partly by land, and 
 
 partly by water, from one country to another. 
 
 In Cohen v. South Eastern Eail. Co. (e), a claim was made for 
 damage to personal luggage of a passenger, carried from Boulogne 
 to London. The passenger had taken her ticket at Boulogne ; and 
 the question was raised, whether certaia conditions on the ticket 
 were void, having regard to the Railway and Canal Traffic Act, 
 1854. It became unnecessary to decide whether English or French 
 law must be applied ; but Mellish and Brett, L. JJ., considered 
 the contract an English one ; while Baggallay, L. J., on the other 
 hand, was incliued to regard it as French. 
 
 Brett, L. J., seems to have thought that one part of the journey 
 might be governed by French law, and another part by English. 
 He put the case of a passenger booking through from Paris to 
 London, and said: "Unless you could say that the three were 
 entirely separate contracts, we should be called upon to say what 
 law was to govern the first part of the journey, and whether that 
 first part of the journey was to be ruled by the French law, and 
 the other two by the English law. I, therefore, should find con- 
 siderable difficulty in saying whether the contract as to the first 
 part of the journey was to be considered as a French contract or 
 an English one." 
 
 Where the contract is to do several things which are separable 
 from one another, there is no inconsistency in supposing that the 
 
 (c) The Industrie, (1894) P. 68. 
 
 (^ The Constancia, 2 W. Eoh. 487 ; The Union, Lush. 128. 
 
 (c) 2 Ex. D. 253. 
 
EFFECT OF FOREIGN LAWS. 243 
 
 parties intended it to be governed by one law as to part, and by Sect. 813. 
 
 another law as to another part. Contracts for through carriage 
 
 are of this kind ; and it would be reasonable in some cases to adopt 
 
 that rule of interpretation. Where, for example, an agreement 
 
 is made between Americans for the carriage of cotton under a 
 
 through bill of lading, from a place inland in the United States to 
 
 England, say by rail to Philadelphia, and thence by a steamer 
 
 belonging to an English line, it may well be supposed that the law 
 
 of the flag was meant to govern the contract as to the latter part of 
 
 the transit, although as to the first part there would be little doubt 
 
 that American law would determine its effect (/). 
 
 213. Next as to the effect of foreign law in determining the VaUdityof 
 validity of a contract. With regard to the capacity of the parties Form, 
 to contract {g), and the suflSoienoy of the contract in point of 
 form {h), the general rule is, that these are to be determined by the 
 law of the place where it was made. Though the manner in 
 which the contract must be proved, and the admissibility of 
 evidence of its existence, are determined by the law of the 
 tribunal in which it is sought to be enforced («). Thus, a docu- 
 ment may be admitted to prove a contract, although not stamped 
 in accordance with the law of the country in which the contract 
 was made, or in which the document was executed (/). But "if 
 for want of a stamp a contract made in a foreign country is void, 
 it cannot be enforced here " {k). 
 
 But with regard to the authority to contract, we have seen that 
 the power of the master of a ship to bind the shipowner is not 
 determined by the law of the place where the contract was made, 
 but by the law of the flag {I). And with regard to form it may 
 be that a contract for the employment of a ship which has been 
 effectually made accordiug to the law of her flag, would be con- 
 
 (/) Of. Moore 41. Harris, 1 A. 0.318; Barros (2), 5 P. D. 94, p. 100; the 
 
 P. & 0. Co. 1/. Shand, 12 L. T. 808; question there was of capacity to marry. 
 
 Chatenay v. Brazilian, &c. Co., (1891) (A) Alves ii. Hodgson, 7 T.~B. 241; 
 
 1 Q. B. 79. Clegg V. Levy, 3 Camp. 166 ; 'Westlake, 
 
 {g) Male v. Eoherts, 3 Esp. 163 ; Lee ss. 171—176 ; Foote (2nd), p. 352. 
 
 V. Abdy, 17 Q. B. D. 309 ; Story, Con- (i) Leroux v. Brown, 22 L. J., C. P. 1. 
 
 fliot, ss. 76, 103 ; Foote, Priv. Int. Jur. (j) Bristow v. Sequeyille, 6 Ex. 276. 
 
 (2nd), pp. 47, 337. But see the dictum {Tc) Per Rolfe, B., ibid, at p. 279. 
 
 of the Court of Appeal in Sottomayor v. [1) Lloyd v. Guihert, 32 L. J., Q. B. 
 
 Barros, 3 P. D. 1, p. 5 ; commented on 241 ; L. E., 1 Q. B. 115 ; The Gaetano 
 
 by Sir J. Hannen in Sottomayor v. and Maria, 7 P. D. 137. 
 
 k2 
 
244 THE CONTEACT. 
 
 Sect. 21S. sidered valid, although not completed with aU the forms required 
 by the law of the place of the contract. 
 
 Illegality by 214. The question whether the contract, supposing it to be pro- 
 perly made, is legal and enforceable or not, gives rise to different 
 considerations. The law by which that must be determined 
 clearly cannot in all cases depend upon the selection of the parties. 
 Fundamentally it must be the law of the tribunal by whose help 
 effect is sought to be given to the contract. But that tribunal 
 may be guided not only by the rules which would govern eon- 
 tracts made, and to be performed, within its own state, but also 
 by the rules of other states in which the contract has been made, 
 or is to be performed. The question is, how far is that the case 
 in England ? 
 
 A contract made to effect a purpose which is prohibited by, or 
 is contrary to the policy of English law, cannot be enforced in 
 England, wherever it may have been made. Thus an agreement 
 made in France by an English solicitor with persons residing 
 there, to take legal proceedings on their behalf in England, on 
 terms which amounted to champerty, could not be enforced in 
 England, although it might be valid in France {m) . And where a 
 gambling debt had been incurred in England, bills given for it ia 
 France were invalid {n). In EousiUon v. EousUlon (o). Fry, J., 
 said : " It appears to me, however, plain on general principles, 
 that this Court will not enforce a contract against the public policy 
 of this country, wherever it may be made. It seems to me almost 
 absurd to suppose that the Courts of this country should enforce a 
 contract which they consider to be against public policy, simply 
 because it happens to have been made somewhere else." And 
 Turner, L. J., in Hope v. Hope {p), said: "When a Court of 
 Justice in one country is called on to enforce a contract entered 
 into in another country, the question is, not only whether or not 
 the contract is valid according to the law of the country in which 
 it is entered into, but whether or not it is consistent with the law 
 and policy of the country in which it is to be enforced ; and it it 
 is opposed to those laws and that policy the Court cannot be called 
 on to enforce it " {q). 
 
 (ffl) GreU V. Levy, 9 L. T. 721. [q) As to contracts valid where made, 
 
 («) ■Wynne v. Callander, 1 Rubs. 293. but regarded here as immoral, see per 
 
 (o) 14 Ch. D. 351, p. 369. "Wilmot, J., Robinson v. Bland, 2 Burr. 
 
 Cp) 26 L. J., Ch. 417, p. 424. 1077, p. 1084 ; relating to slaves, see 
 
EFFECT OF FOEEIGN LAWS. 
 
 245 
 
 215. But if the English law does not prohibit what is intended, Sect.. 215. 
 under a contract, from being done at the agreed place of perform- Contracts 
 ance, and if it is not illegal there, then the contract will, it seems, piaoe of 
 
 be regarded as valid by an English tribunal ; even though it may performance. 
 
 have been made in England. This difference is well illustrated by 
 
 a case in the State of New York, where lotteries were illegal, in 
 
 which an action was allowed upon a bond executed in New York 
 
 for the faithful management of a lottery in Kentucky : lotteries 
 
 being legal in the latter State (r). 
 
 And d fortiori, the contract will not be treated as illegal if it 
 was also made in a place where it was valid. Thus, where money 
 had been won at play, and lent for the purpose of play, between 
 Englishmen, in a country where that was legal, it was held to be 
 recoverable here (s). 
 
 216. The question of validity becomes more difEcult, and the Illegality by 
 answer more uncertain, where the contract is one which is not 
 
 illegal according to our law, but is so according to the law of the 
 place where it was made, or according to that of the place where 
 it was to be performed. 
 
 If the result of enforcing the contract will be to enable a breach 
 of the laws of a foreign state to be committed vdthia that state, it 
 would seem that policy and comity require that the contract should 
 be regarded as an illegal thing, and not enforced (^).. 
 
 That view has not, however, in all cases been adopted where the 
 foreign rules have been distasteful, more particularly where they 
 have been rules made in restraint of trade. In Boucher v. 
 Lawson {li), it was said that a contract for the conveyance of coin 
 from Lisbon to London would be valid, although the exportation 
 of coin was then prohibited by the laws of Portugal; for the 
 importation of it into this country was allowed by our laws, and so 
 the trade was lawful here. And contracts made with the object of 
 defeating foreign customs laws have been held to be valid and 
 
 Forbea v. Cochrane, 2 B. & C. 448 ; 147. Cf. Robinson v. Eland, 2 Burr. 
 
 Madrazo v. WUleB, 3 B. & Aid. 353. 1077 ; Branley v. S. E. Bail. Co., 31 
 
 But of. Santos v. lUidge, 29 L. J., C. P. L. J., 0. P. 206. 
 
 348 ; Pollock, Contr. (4th), p. 341. ^^ jjeriz .. Eiera, 11 Sim. 318 ; De 
 
 (r) Kentucky v. Bassford, 6 HiU, 526 y^^^^ ^ Hendricks, 2 Bing. 314. 
 (N. T.) ; cited Stoiy, Conflict, s. 258a ; 
 
 Westlake, s. 192. («) Eep. temp. Hardwicke, p. 86 ; 
 
 («) Quarrier v. Colston, 1 Phillips, Abbott (5th) 95 ; (11th) iii. 2, 3. 
 
246 THE CONTKACT. 
 
 Sect. 216. enforceable («) ; for " one nation does not take notice of the 
 revenue laws of another" («/). And this has been consistently- 
 applied to the relations of a foreigner to British revenue laws. 
 One who had sold goods to a British subject, knowing that they 
 were bought for the purpose of smuggling them into this country, 
 was still allowed to recover the price (z). Though it would have 
 been otherwise had he assisted in the breach of the law, as by 
 packing them in a peculiar way to avoid detection («). 
 
 Further, the fact that the adventure contemplated in a charter 
 party cannot be carried out owing to restrictions of foreign 
 governments, does not put an end to the contract, or excuse the 
 non-performance of it (b). Though it would be otherwise if the 
 performance were prevented by the British government (c). 
 
 Stipulations 217. Where, however, a stipulation in a contract' made in a 
 
 void by „ . . 
 
 foreig:u law. foreign state is merely mid by the law of that state, so that effect 
 would not there be given to it, it does not follow that it will be 
 treated as of no effect by our Courts. 
 
 In E,e Missouri Steamship Co. {d),a. shipment of cattle had been 
 made at Boston on a British ship under a contract made in Boston 
 which excepted losses by negligence of the master or crew. This 
 exception was void by the law of Massachusetts, and by the Federal 
 law of the "United States, as being contrary to public policy. The 
 ship was wrecked on the coast of Carnarvon, owing to negligence 
 of the master and crew, and some of the cattle were drowned. The 
 Court of Appeal, affirming Chitty, J., held that the contract showed 
 . that the parties meant it to be governed by English law ; and that 
 as the law of the United States did not make the exception illegal, 
 but only void (in the sense that the Courts there would disregard 
 it), effect could here be given to the exception ; and the shipowners 
 were therefore exempt. 
 
 The question of the validity of a stipulation in such cases 
 depends on the law which the parties to the contract meant to be 
 governed by; and, as we have seen, this will generally in our 
 
 {«) Planolie v. Fletcher, 1 Doug. 251 ; (z) PeUecat v. Angell, 2 C. M. & E. 
 
 and see Simeon v. Eazett, 2 M. & S. 94 ; 311. 
 5 Taun. 824. But of. per Denman, W "WaymeU v. Eeid, 5 T. R. 599. 
 
 0. J., in Spenoe v. Chadwick, 16 L. J., (*) ^^l** '»■ I'age, 3 B. & P. 295, n. ; 
 
 Q B 3ig_ Barker v. Hodgson, 3 M. & S. 267. 
 
 («) Infra, s. 237. 
 (y) Per Lord Mansfield, 1 Doug. 261. (i) 42 Ch. D. 321. 
 
EFFECT OF FOREIGN LAWS. 
 
 247 
 
 Courts be taken to be the law of the flag. And, although by the Sect. 217. 
 law of the TJnited States a clause excepting negligence is void in 
 a contract governed by that law, probably effect would be given 
 to such a clause by the Courts of the States in a ease where the 
 contract clearly showed that the parties meant to contract with 
 reference to English law (e). 
 
 (e) See stipra, tt. 101. 
 
248 
 
 Part II. 
 
 THE VOYAGE. 
 
 CHAPTER VIII. 
 
 PEOCEEDING TO THE POET OP LOADING. 
 THE CONTEACT. 
 
 DISSOLUTION OP 
 
 SECT. 
 
 Ship to proceed with diligence .... 218 
 Time fixed for saUing — Condition. . 219 
 
 Meaning of " saiUng " 220 
 
 Time fixed for arrival — Condition — 
 
 " Eeady to load" 221 
 
 Ship must go notwithstanding 
 
 charterer's option of refusal .... 222 
 Owner must be diligent though 
 
 date for arrival named 223 
 
 The charterer must name the port 
 of loading before sailing, and 
 
 without delay 224 
 
 "So near thereto as she can safely 
 
 get" 225 
 
 Eelates to leaving as well as enter- 
 ing the port 226 
 
 Does the owner undertake that the 
 
 ship shall arrive ? 227 
 
 Cunningham v. Dunn 228 
 
 Principle of joint inability , 229 
 
 Loading not generally excused by 
 
 delay in proceeding 230 
 
 Otherwise if the adventure is frus- 
 trated by the delay 231 
 
 Dissolution of the Contract. 
 Where delay frustrates the adven- 
 ture 232 
 
 SECT. 
 
 Shipowner also discharged if not 
 responsible for the delay 233 
 
 Contract for a series of voyages . . 234 
 
 Owner discharged by a refusal to 
 load at the agreed place 235 
 
 Express agreements to cancel 
 charter party in certain events . , 236 
 
 Charter party dissolved on becoming 
 contrary to law 237 
 
 Effect of war with the country of 
 loading 238 
 
 War of the country to which" ship 
 belongs 239 
 
 Where carriage partly performed. . 240 
 
 Effect given to charter party where 
 legally possible 241 
 
 Temporary restraint of voyage — 
 Capture and re-capture 242 
 
 Effect of war on trade of subjects 
 with enemy 243 
 
 Effect of a foreign war on British 
 neutrals 244 
 
 Contracts for trade in contraband. . 245 
 
 Contracts to run blockades 246 
 
 Illegality of performance at port 
 of loading does not dissolve con- 
 tract — Contracts to break foreign 
 revenue laws 247 
 
 Ship to pro- 218. If the ship is not at the port at which she is to load under 
 
 ceed with. j.r i. j. 
 
 diligence, the Carter partjr, it is the duty of the shipowner, subject to 
 
PROCEEDING TO PORT OF LOADING. 
 
 249 
 
 express qualifloations, to take her there with reasonahle diligence. Sect. 218. 
 There oiight to be no unreasonahle delay in setting sail, and no 
 needless deviation or dilatoriness on the way. 
 
 Usually the charter party stipulates that the ship shall sail 
 and proceed " with all convenient speed," or " with all possible 
 dispatch ; " or uses some other similar expression. These do not 
 apparently extend the common law obligation to be diligent. 
 Thus in Hudson v. Hill {a) it was held that to proceed " forth- 
 with " only meant " without unreasonable delay." 
 
 The vessel in that case was in dry dock, undergoing repairs, 
 at the time the charter was made, December 28th, 1870 ; and did 
 not leave it imtil January 6th. On the 10th a charter for an 
 outward cargo of coals, which she was at liberty to take, was con- 
 cluded, and she finished taking in that cargo on the 27th. She was 
 then detained by adverse weather and tides, until February 8th, 
 when she sailed. The jury were directed that she had proceeded ^ 
 " forthwith " if there was nc unreasonable delay, and they found 
 in favour of the ship. The direction was approved by the Court. 
 
 219. But sometimes the charter party definitely fixes a time Time fixed 
 before which the ship is to sail for the port of loading, or by condition, 
 which she is to etrrive there. Such a stipulation must be strictly 
 conformed to. The shipowner, if he fails in it, is liable to pay 
 damages to the charterer : and the charterer, upon such a failure, 
 is generally at liberty to decline to load the ship. 
 
 In Griaholm v. Hays (5), a ship had been chartered " to sail 
 from England " for the port of loading " on or before the 4th of 
 February next ; " she delayed sailing until the 22nd, and then 
 proceeded ; the charterer refused to load, and he was held to be 
 exonerated by the delay. 
 
 And in a similar case the same view was taken, although the 
 sailing by the fixed date was prevented by bad weather, amount- 
 ing to an act of Grod, and although the act of Grod was expressed 
 to be "throughout the charter party always excepted " (c) . 
 Martin, B., delivering the judgment of the Court, said : " Then 
 does the word 'throughout' make any difference? We think that it 
 does not. It might, perhaps, operate to exonerate the plaintiif from 
 an action in the event of the ship being prevented from sailing on 
 the 15th of March by any of the matters excepted ; but we think 
 
 (a) 43 L. J., C. P. 273. (c) Crookewit v. Fletolier, 26 L. J., 
 
 (i) 10 L. J., C. P. 98. Ex. 153. 
 
250 
 
 THE VOYAGE. 
 
 Meaning of 
 "sailing." 
 
 Sect. S19. it does not affect the condition precedent, upon the performance of 
 which the defendant contracted to take and load the ship " {d). 
 
 On the other hand, a stipulation that the ship should " sail with 
 the first favourahle wind," has been held not to be a condition 
 precedent (e). 
 
 220. The condition of sailing on or before a particular date will 
 not be satisfied unless the ship has definitely left the dock or 
 moorings at which she was lying, ready for her voyage, and with 
 the intention, on the part of those in charge, of proceeding upon it 
 forthwith. It would not be enough for the ship to have left her 
 moorings, or even the harbour, if there was no intention of proceed- 
 ing until something more had been done (/). Thus, where a ship, 
 laden and fit for sea, left the harbour, and it was intended that she 
 should proceed as soon as her clearances were completed, and biUs 
 of lading signed, it was held that, as these things had not been 
 done, she had iiot sailed {g). 
 
 Where the condition is, that the ship shall "finally sail," or 
 shall " sail from " a port, or shall " depart," on or before a given 
 day, it will not be satisfied unless she has not only sailed, but has 
 got out of the port by that time (A). Whether she has done so 
 or not is to be ascertained by reference to the popular or general 
 sense of the name used in describing the place («) . 
 
 A charter party provided that the ship should " sail and proceed 
 from Amsterdam with aU convenient speed to Liverpool, to leave 
 Amsterdam not later than all March." The ship left the docks at 
 Amsterdam, with part of her ballast only on board, on the 30th of 
 March ; she arrived at Alkmaar, outside the port of Amsterdam, 
 on the 31st of March ; there took in the remainder of her ballast 
 on the 1st and 2nd of April, and sailed for Liverpool on the 3rd. 
 It was held that the charter party had been complied with (Ic). 
 
 221. If the ship is expressly to arrive, or to be ready to load at 
 the port of loading by an appointed date, the performance of that 
 
 Time fixed 
 for arrival — 
 condition. 
 
 [d) 26 L. J., Ex. p. 159. 
 
 («) Bommann v. Tooke, 1 Camp. 377. 
 
 (/) Tliompson v. Gillespie, 24 L. J., 
 Q. B. 340 ; Hudson v. BUton, 26 L. J., 
 Q. B. 27. 
 
 (^) Hudson V. Bilton, 26 L. J., Q. B. 
 27. And see Eidsdale v. Newnham, 3 
 M. &S. 456. 
 
 [h) Moirjj. Eoyal Exotange Ass. Co., 
 3 M. & S. 461 ; Eoelandts v. Harrison, 
 23 L. J. Ex. 169. 
 
 (i) Lang V. Anderdon, 3 B. & C. 495 ; 
 Price V. Livingstone, 9 Q. B. D. 679. 
 See infra, ss. 448, 567. 
 
 [k) Van Baggeu v. Baines, 23 L. J., 
 Ex. 213. Cf. Sharp v. Gibbs, 1 H. & 
 N. 801. 
 
PROCEEDING TO PORT OP LOADING. 261 
 
 undertaking is a condition precedent to tlie charterer's obligation sect. 221 
 to load lier. 
 
 Thus, where the ship "was to be " ready to receive cargo in all 
 May, guaranteed by the owners to sail in all June," and she was 
 not ready to receive cargo in May, the charterers were dis- 
 charged Q). 
 
 And so where the charterers ~ were to have the option of 
 cancelling the charter party, if the steamer had not arrived at the 
 ■ loading port, " free of pratique and ready to load on or before the 
 15th of December ; " and she had arrived there, but was not " free 
 of pratique," because communication with the shore was impossible, 
 owing to the state of the weather : it was held that the charterers 
 had the right to cancel (m). 
 
 And the vessel is not "ready to load" within the meaning "Eeadyto 
 of such a clause, unless she is discharged and ready in all her 
 holds, so as to give the charterer complete control of every 
 portion of the ship available for cargo (n) ; except so much as is 
 reasonably required for ballast to keep her upright (o) . Also, the 
 ship must be legally able to communicate with the shore. So that 
 where charterers had the option of cancelling " if the steamer does 
 not arrive at port of loading, and be ready ^to load on or before 
 midnight of 10th October," and she arrived at 11 p.m. on 
 October 10th, but no one could leave the ship or come on board 
 until after the health officer had visited her on the following 
 morning, it was held that she was not ready in time. The health 
 'regulations disqualified her (p). 
 
 But the condition does not require that the holds shall have 
 been prepared for the particular cargo. A ship was held " ready to 
 receive cargo," although her holds were not lined in the manner 
 usual for a wheat or flour cargo, which the charterer was about to 
 ship (q) . Nor does the condition require that the ship shall be in 
 a loading berth (r). 
 
 Where the charter party gave the charterer the option of Subject to 
 
 special 
 
 {1} OUver V. Pielden, 18 L. J., Ex. (o) Vaughan v. CampteU, 2 T. L. R. ^^"^P*^""" 
 
 353 ; Shadfortli v. Higgin, 3 Camp. 385. 33. 
 
 Cf. DefEel v. BrocklebaBk, 3 Bligh, 561. {p) The Austin Friars, 71 L. T. 27 ; 
 
 ^ „ WHte »-. S.S. Wiuoliester Co.,23 So., 
 
 (m) Smith V. Dart, 14 Q. B. D. 105. -^ jj g^g 
 
 Cf. BaJIey v. De Airoyaye, 7 A. & E. '(j) Vaughan .. CampheU, 2 T. L. R. 
 
 33 ; Grampian Steamship Co. v. Carver, 
 
 («) Groves v. Volkart, 1 Cab. & EU. 9 T. L. R. 210. 
 
 309, W Hick V. Tweedy, 63 L. T. 765. 
 
252 
 
 THE VOYAGE. 
 
 Sect. 221. 
 
 Ship must 
 go notwith- 
 standing 
 charterer's 
 option of 
 refusal. 
 
 Owner must 
 he diligent, 
 though date 
 for arrival 
 named. 
 
 refusing to load if the ship did not arrive at tlie port of loading 
 by November 28tb, unless "prevented by stress of weather or 
 other unavoidable impediment," and owing to adverse wind and 
 bad weather she did not arrive until January 20th, the charterer 
 was not entitled to refuse to load her ; although the ship had been 
 to an intermediate port, and had taken the full usual time in 
 discharging there. Tindal, 0. J., held that the charterer's option 
 did not arise if ordinary diligence had been used, even though the 
 delay might have been avoided by unusual efforts (s). 
 
 222. The fact that the charter party gives the charterer the right 
 to refuse to load the vessel if she does not arrive at the loading 
 port by a given date, does not excuse the shipowner in neglecting 
 to send her there, although it may have become impossible to get 
 her there by the time named. 
 
 Thus, in Shubrick v. Salmond (t), a vessel was chartered to go to 
 Winyaw, in South Carolina, after discharging an outward cargo at 
 Madeira ; and the charter provided that if she did not arrive at 
 Winyaw by the 1st of March, 1763, the charterer was to have the 
 option of loading her on the charter terms, or at the then current 
 freight at Winyaw, or to refuse her entirely. To an action for 
 not proceeding to Winyaw, and for not arriving there on the 1st, 
 of March or at any time, it was pleaded that by reason of contrary 
 winds and bad weather the ship was prevented from arriving at 
 Madeira until February 16th, 1763 ; so that it was impossible, 
 after discharging the outward cargo, to arrive at Winyaw by the 
 1st of March. A demurrer to this plea was allowed. Lord 
 Mansfield said: "The words are positive and express, 'that he 
 should go thither.' The parties plainly meant that the ship was 
 to go thither." 
 
 Moreover, the shipowner cannot require the charterer to declare 
 his election, whether he will load or not, before the ship has arrived 
 at the loading place, although the date for arrival may have already 
 passed {u). 
 
 223. If no time is fixed for sailing to, or arriving at, the loading 
 port, the shipowner is still bound to use all reasonable diligence in 
 despatching her and bringing her there. If he fails in this he 
 is hable to the charterer. And the fact that a date is named in 
 
 (s) Granger v. Dent, M. & M. 476. 
 («) 3 Burr. 1637. And see The Pro- 
 greso, 60 Fed. Eep. 835. 
 
 (m) The Samuel W. HaU, 49 Ted. 
 Eep. 281 ; The Progreso, 60 Fed. Eep. 
 835. 
 
PROCEEDING TO POET OF LOADING. 253 
 
 the cTiarter party tefore wMoli the ship must arrive, if the charterer Sect. S23. 
 is to be bound to load, does not entitle the owner to delay sending 
 her until that date. 
 
 In M'Andrew v. Adams (v) a ship had been chartered to proceed 
 in ballast to St. Michael's and there load a cargo of fruit, the 
 charterer to have the option of declining to load her should she 
 not be ready for her cargo by January 31st. By sailing direct 
 she might reasonably have been expected to bring her cargo to 
 London by January 1st ; but she made an intermediate voyage to 
 Oporto ; and thus, though she arrived and loaded at St. Michael's 
 some weeks before January 31st, she did not arrive in London 
 until February 1st. Held, that the owner was liable in damages 
 for the delay. 
 
 224. If the loading port is not named in the charter party, but The charterer 
 remains to be determined by the charterer, he must, subject to the port of 
 special agreement, name it before he can require the ship to sail. gaOi^tmd"'^^ 
 Thus, where she was to proceed to a " safe port near Capetown," it without 
 was held not to be enough that the charterer was ready to put an 
 agent or supercargo on board, who would give the order later («). 
 And if the charterer delays unreasonably in naming the port, he 
 will be liable for the shipowner's loss by the detention of the 
 ship (y). 
 
 In WooUey i\ Eeddelien (z), a ship which was outward bound 
 with cargo to Malta was chartered for a homeward voyage. The 
 charter party provided that the ship, " after delivering her outward 
 cargo, should with all convenient speed sail and proceed to 
 Marseilles, Genoa, or some other safe port on the east coast of 
 Italy, not higher than Manfredonia, as should be ordered at 
 Malta," and there load the homeward cargo. It was held, on 
 demurrer, that the charterer was bound to give his orders, as to the 
 port of loading, within a reasonable time of the ship's arrival at 
 Malta, and that that might be before she had discharged her out- 
 ward cargo. 
 
 Where the agreement was that the ship should proceed to Orders to 
 Honduras and load "at one of the usual and customary ports or ^"J^port**^ 
 places of loading," and the freighter directed the master to proceed 
 to Belize, in the Bay of Honduras, and address himself to a 
 
 (v) 1 Bing. N. 0. 29; of. Gill v. {y) As to the meaning of "port" and 
 
 Browne, S3 Fed. Kep. 394. '.'safe port," see s. 448 et seq. 
 
 {x) Rae V. Hackett, 13 L. J., Ex. 216, (z) 12 L. J., 0. P. 152, 
 
254 THE "VOYAGE. 
 
 Sect. 224. certain person, who wonld furnisli him with a cargo " agreeable to 
 charter party," it was held to he a question for the jury whether 
 the ship was sent to Belize as her port of loading. The person 
 named put a small quantity of cargo on board at Belize; then 
 directed the ship to go to Ulna, where she received about half her 
 cargo, and afterwards to two other ports, where she completed it. 
 The jury were directed that, if Belize was the agreed loading 
 port, then aU the extra expenses of going to the other places must 
 be paid by the freighter ; and, if not, he would still be liable for 
 the expenses of going to the places subsequent to Ulna (a). 
 "So near 225. The ship is generally to proceed to the loading port "or 
 
 ^^nfatelj ^^^ SO near thereto as she can safely get." It has been said that the 
 get." meaning of this " must be, that she should get within the ambit 
 
 of the port, though she may not be able to enter it"(&). ' 
 But this is not the natural effect of the words; and the later 
 authorities seem to show that the shipowner's undertaking may be 
 satisfied although the ship, has not come within, or even near, 
 the port, if she is prerented from doing so by an obstruction of a 
 "permanent" character (c) . Perhaps, however, in such a case 
 the charterer would not be bound to load her, on the ground that 
 it was contemplated that the loading should be in the agreed port, 
 and not elsewhere. And if the obstruction to the ship's progress, 
 either to the port, or to the proper place of loading in the port, is 
 only of a temporary kind, the clause does not entitle the ship- 
 owner to refuse to wait and proceed after it has been removed. 
 
 In Schilizzi v. Derry (d), a ship had been chartered to proceed 
 to Galatz or Ibrail, " or any other safe port on the river Danube 
 not higher than Ibrail, or so near thereto as she may safely get," 
 and there load a cargo. She proceeded in ballast to Sulina, at the 
 entrance to the Danube, arriving there on the 6th of November, 
 1853. She could not then go on to Galatz, as there was not water 
 enough to enable her to cross the bar of the river at Sulina; 
 Galatz is 95 miles up, and Ibrail is 20 miles above Galatz. The 
 master gave notice to the charterers' agents that he had arrived as 
 near to Galatz as he could safely get, and that he was ready to 
 receive cargo. But no cargo was sent ; and after waiting off 
 
 {a) Brown v. Johnson, Oar. & M. 440. („) ^^i^^^ ^ D^y^ 12 Ch. D. 568 ; 
 
 (i) Per Lord Campbell in Schilizzi d. ^ .rxr-., ^ ^ t. -^ ,„^ 
 
 Derry, 24 L. J., Q. B. p. 197 ; adopted ^''^^'' "■ ^^^^''«' ' «• ^- »• ''^ ' 
 
 by the Q. B. D. in MetoaUe v. Britannia '^^7^°^ ^- Irwin, 5 0. P. D. 130. 
 
 Ironworks Co., 1 Q. B. D. 613. W 24 L. J., Q. B. 193. 
 
PEOCEEDING TO POET OF LOADING. 
 
 255 
 
 Sulina until December 11th lie sailed for Odessa, the nearest safe Sect. 225. 
 
 port to which the ship could go, and there loaded a cargo from 
 
 other merchants. After the ship had left Sulina the water got 
 
 deeper ; and on and after the 7th of January, 1854, she might 
 
 have crossed the har, taken in a cargo at Galatz, and sailed out of 
 
 the river with it. The charterers would in this case have been 
 
 able to make a profit of 1,000^. by sub-chartering her. It was 
 
 held that the ship had not got as near to Galatz as she safely 
 
 could within the meaning of the charter party : and the charterers 
 
 recovered damages for their loss (e). 
 
 It is now established that a shipowner may have satisfied his 
 undertaking to get as near as he safely can, although the obstacle 
 which prevents his going further may not be a physical one ; nor 
 one that is absolutely permanent (/). In each case the question is 
 whether the impediment could " be overcome by the shipowner by 
 any reasonable means except within such a time as, having regard 
 to the objects of the adventure of both charterer and shipowner, 
 was, as a matter of business, wholly unreasonable " {g). 
 
 In SchiHzzi v. Derry {h), it was further contended that the 
 shipowner was excused by the exception " dangers and accidents 
 of the seas, rivers and navigation of what nature and kind soever 
 during the voyage." But the Court held that as the impediment 
 was only temporary, the contract did not come to an end, and 
 both parties remained bound by it when performance became 
 possible. 
 
 226. " So near thereto as she can safely get " has relation to Relates to 
 the ship's safety, not only in going into the port of loading, but -well as enter- 
 also in getting away from it when loaded. A ship was chartered ^^^ ^ ^""^ " 
 to proceed to Eiga vi^ Bolderaa, or as near thereto as she could 
 safely get, and there load a full cargo. Both parties knew that a 
 full cargo could not be loaded inside the bar at Bolderaa, which is 
 a bar harbour. The ship went to Bolderaa, took in as much 
 cargo as she could carry over the bar, and then left the harbour 
 and came to anchor outside, as near as she could safely lie, for the 
 purpose of taking in the rest of the cargo. But the charterers 
 
 (e) Of. Parker -o. Winlo, 27 L. J., {g) Per Brett, L. J., in Nelson v. 
 
 Q. B. 49. • Dahl, 12 Oh. D. 568, at p. 593. The 
 
 subject Is more fully discussed infra, 
 if) Nelson v. Dahl, 12 Ch. -D. 668 ; gg. 453 et seq. 
 
 6 A. 0. 38. {V) 24 L. J., Q. B. 193. 
 
256 THE VOYAGE. 
 
 Sect. 226. refused to incur the expense of loading any more cargo outside the 
 bar, and the ship sailed with a part cargo only. It was held that 
 the charterers ought to have completed the loading outside, and 
 that the vessel need not have crossed the bar at all («). 
 
 When a port was to be named for loading, under a charter for a 
 
 full cargo, and the amount of freight depended upon the quantity 
 
 of cargo carried, it was held that the charterers could not order the 
 
 vessel to a port at which she could not load a full cargo, owing to 
 
 a bar which would have to be crossed {k) . 
 
 Does owner 227. The question arises, does the shipowner undertake to do 
 
 that the ship more than be diligent in bringing the ship to the port of loading ? 
 
 the porTo/ ^ Does he absolutely promise that she shaU. arrive there and take in 
 
 loading? cargo, unless prevented by the excepted perils ? And if so, does 
 
 he undertake that she shall do so in any particular time ? 
 
 If there is an express undertaking that the ship shall arrive, the 
 shipowner must perform it, or must pay damages for not per- 
 forming it, unless the exceptions excuse him {T). For the rule of 
 English law is strict, that one " who expressly contracts absolutely 
 to do a thing not naturally impossible is not excused for non- 
 performance because of being prevented by vis major" (m). But 
 when the ordinary words are used, such as that the ship shall with 
 all convenient speed, or with all possible despatch, sail and proceed 
 to the port of loading, and there load the cargo, the matter seems 
 to be open to doubt. The introduction of qualifying expressions, 
 such as " convenient," &c., rather shows that the shipowner does 
 not mean to warrant that she will get there without delay, or at 
 all ; but that he will do his best to bring her there. On the other 
 hand, the insertion of express exceptions, which may relate to the 
 voyage to the port of loading (m), goes to show that the obligation 
 to accomplish that voyage is only limited by those exceptions. 
 
 The question is one of construction, and does not appear to have 
 been settled. But there are dicta to the effect that (subject to the 
 exceptions) the owner does undertake to bring the vessel to the 
 place of loading ; and to do so in a reasonable time, having regard 
 to the adventure contemplated. Thus, in Jackson v. Union Marine 
 
 (i) Shield v. WiUdna, 19 L. J., Ex. by the exception clause, although the 
 
 238. See The Alhambra, 6 P. D. 68. ship was " guaranteed for cargo aU this 
 
 (A) Charpentier «?. Dunn, 16 Sc. L. E. month." 
 
 726. («») Per Bowen, L. J., Jacobs v. 
 
 (?) In Barker v. M'Andrew, 34 L. J. Credit Lyonnais, 12 Q. B. D. p. 603. 
 
 0. P. 191, the-shipowner was excused («) Siipra, Chap. IV., s. 30. 
 
PROCEEDING TO PORT OF LOADING. 267 
 
 Ins. Co. (o), Bramwell, B., after holding that the ship must arrive in Sect. 227. 
 
 a reasonable time for the adventure in order to bind the charterer, 
 
 added : " Now what is the effect of the exception of perils of the 
 
 seas, and of delay being caused thereby ? Suppose it was not 
 
 there, and not implied, the shipowner would be subject to an action 
 
 for not arriving in a reasonable time, and the charterers would be 
 
 discharged." And again : " There is then a condition precedent 
 
 that the vessel shall arrive in a reasonable time ; on failure of this 
 
 the contract is at an end, and the charterers discharged, though 
 
 they have no cause of action as the failure arose from an excepted 
 
 peril" (p). 
 
 If the implied undertaking is that the ship shall arrive within a 
 reasonable time, having regard to the adventure, that must mean 
 a time free of extraordinary delay ; a period which has a calculable 
 limit ; and if it was intended that the shipowner should be bound 
 to this, it might have been so expressed. Generally an absolute 
 obligation to do a thing which may become impossible of perform- 
 ance owing to causes which the contracting party cannot foresee, 
 and cannot control, is not imposed on him by implication when he 
 has not undertaken it expressly (q). 
 
 228. Cunningham v. Dunn (>•) is a case in which a charter was Cunmngham 
 held to have come to an end through a failure to reach the port of *' •'^"""• 
 loading, and is very remarkable. It was agreed by charter party 
 that the ship Rainton, " now on her way to Genoa and Malta, shall 
 with all convenient speed, after loading dead weight at Malta for 
 owner's benefit, sail and proceed " to a Spanish port, to be ordered 
 by the charterer, " or so near thereto as she may safely get," and 
 there log,d from the charterer's factors the remaining measurement 
 space of light cargo, for London. The perils excepted were the 
 ordinary ones, but did not include restraints of princes. 
 
 The dead weight to be taken in at Malta was a quantity of 
 mihtary stores; and the charterer knew this. Also he became 
 aware, before ordering the ship to Valencia, that with military stores 
 on board she would not under Spanish law be allowed to load 
 
 (o) L. R., 10 C. P. 126. Of. per (?) See per Martin, B., Ford «i. Cotes- 
 
 CressweU, J., in Hurst v. Usbome, 26 -n^ortli, D. R., 5 Q. B. p. 648 ; per 
 
 T T P P 9nQ t 2n Lindley, L. J.^iaHiok ». Rodooanachi, 
 
 ■' ' ^' ■ (1891) 2 Q. B. p. 638 ; Taylor v. G. N. 
 
 (p) L. R., 10 0. P. at pp. 144, 146. ^^^ ^o., L. R., 1 0. P. 385 ; cf. Tay- 
 
 And see Cunningham v. Dunn, 3 0. P. lor v. Caldwell, 32 L. J., Q. B. 164. 
 
 D. 443, cited infra, s. 228. (r) 3 C. P. D. 443. 
 
 C. — C. S 
 
258 THE VOYAGE. 
 
 Sect. 228. other cargo there. Efforts were made through the British Minister 
 at Madrid to induce the Spanish G-overnment to allow The Eainton 
 to load at Yalencia ; but this permission could not be obtained, and 
 she sailed away, without loading, immediately after her arrival 
 there. The charterer sued for the breach of the charter party. 
 But the Court of Appeal, affirming Lord Coleridge, C. J., held 
 that the shipowners were not liable. 
 
 BramweU, L. J., said that the shipowner had " committed no 
 default at Valencia. I think that this case is governed by the 
 principle laid down in Ford v. Cotesworth (s) ; the plaintiff, as 
 charterer, was willing to put a cargo on board, but a power over 
 which neither party had any control prevented the defendants as 
 shipowners from receiving it. ...... , 
 
 My judgment is for the defendants, and the grounds of it are, first, 
 that there was at Yalencia a joint inability to perform the charter 
 party, and not a refusal by the defendants so to do ; secondly, that 
 there was no warranty that the dead weight should be such as to 
 allow the Vessel to be loaded ; thirdly, that if the defendants were 
 bound not to disable themselves from taking on board the plaintiff's 
 cargo, they did not know at the time of entering into the charter 
 party that they would so disable themselves ; and fourthly, that 
 the plaintiff gave the defendants Ueence to sail to Yalencia with 
 the military stores on board" (t). 
 
 Brett, L. J., said : " The defendants had done nothing inconsis- 
 tent with their contract, and had done only what they were entitled 
 to do. But by reason of Spanish law, and of the refusal of the 
 Spanish Government to mitigate it, the defendants were not ready 
 to load, but also the plaintiff was not ready to put the cargo on 
 board : the law of Spain prevented the parties from performing 
 what they had respectively undertaken to do. Ford v. Cotesworth (m) 
 is in point, and seems to me to decide this case ; it establishes that 
 where neither party is ready to perform his undertaking, because 
 both are prevented by some superior power, neither party can 
 maintain an action against the other. For these reasons I think 
 that the judgment of Lord Coleridge ought to be affirmed " {x). 
 
 Cotton, L. J., said : " We may assume that the plaintiff had 
 provided a cargo ; but both parties were prevented from perform- 
 
 W L. R., 4 Q. B. 127 ; L. E., 5 Q. B. («) L. E., 4 Q. B. 127 ; L. E., 5 Q. B. 
 
 544. g44_ 
 
 (t) 3 C. P. D. pp. 447, 448. {^) 3 0. P. D. pp. 448, 449. 
 
PROCEEDING TO PORT OF LOADING. 259 
 
 ing their respeotiTe undertakings by the prohibition of the Spanish Sect. 228. 
 
 Government .... All that the shipowners have done has been 
 
 in accordance with the terms of the contract. The charterer 
 
 cannot say that the ship has not been loaded tbrough the default 
 
 of her owners : the act of the Spanish Government has prevented 
 
 the contract between the parties from beiag carried out "(«/). 
 
 229. The ground of joint inability of the, parties to the contract, Principle of 
 partly relied on by aU the judges in this case, is very difficult to ability, 
 understand. For it does not appear that the charterers were 
 under any difficulty as to loading the cargo, except indirectly 
 through the inability of the shipowners to keep their ship in port. 
 They were, it seems, ready with a cargo, upon the loading of 
 which no prohibition was placed ; and so far as appears it was no 
 part of their duty to assist in bringing the ship to the place of 
 loading, or in keeping her there in safety. They were as fuUy 
 able to perform their part of the contract as a freighter can be in 
 any case in which the shipowner fails to send his ship to the port 
 of loading. 
 
 There is a similar difficulty in understanding how the principle of 
 joint inability was applicable in the case of Ford v. Ootesworth (z), 
 cited in Cunniagham v. Dunn. There the charterer was sued 
 for detention at the port of discharge. The discharging had to be 
 done by lighters, to be sent by the charterer to the ship ; but they 
 were not sent, for the landing of the cargo was prevented by the 
 authorities of the port. The- shipowner's part, of unloading the 
 cargo into the lighters, however, was not interfered with, except 
 indirectly through the interference with the charterer. Yet, it 
 was held that both parties had been disabled from performing the 
 contract by the action of the authorities. 
 
 Both m Ford v. Ootesworth and in Cunningham v. Dunn, it 
 appears that there were sufficient grounds for the judgment, apart 
 fi'om this doctrine of joiat inability. And in neither case does 
 there appear to have been any intention to overrule earlier cases, 
 such as Barker v. Hodgson (a), and Sjoerds v. Luscombe(J), to 
 which that doctrine would seem to apply with equal force. No 
 reliance seems to have been placed on the doctrine in Scotland, in 
 the recent case of White v. Steamship Wiachester Co. (c), where 
 
 {y) 3 C. P. D. pp. 449, 450. {a) 3 M. & S. 267. 
 
 («) L. E., 4 Q. B. 127 ; L. R., 5 Q. B. {b) 16 East, 201. 
 
 544, discussed infra, a. 616. [c] 23 So. L. R. 342 (1886). 
 
 s2 
 
260 THE VOYAGE. 
 
 Sect. 229. the charterers' failure to load within the lay days was due to 
 quarantine regulations, and was held to he excused on the ground 
 that the ship could pot he placed at their disposal ready for cargo. 
 Nor was the doctrine relied on by the Court in Budgett v. Bri- 
 mington {d), where the merchant was held liable for demurrage, 
 though both ship and merchant were disabled from effecting the 
 discharge by a strike. . 
 
 Loading not 230. A neglect of the shipowner to proceed to the port with 
 excused by diligence does not generally entitle the charterer to refuse to 
 
 delay in 1 ,1 /■ ^ 
 
 proceeding. J-Oaa \e). 
 
 A charter of a new steamer, The Ephesus, provided that she 
 should "with all convenient speed (on being ready), having 
 liberty to take an outward cargo for owner's benefit direct, or on 
 the way, proceed to Alexandria," and there load a cargo of cotton 
 from the freighters. Instead of going direct to Alexandria, The 
 Ephesus took out a cargo for Malta, Syra, Constantinople, Smyrna, 
 and Alexandria ; and she deviated from her direct course in going 
 that round. She thus arrived at Alexandria later than she should 
 have done: freights for cotton had meanwhile fallen there, and 
 the charterers refused to load. It was held they had no right to 
 do so, and that they must compensate the owners for the loss of 
 freight sustained through the refusal (/). 
 
 otherwise if 231. But when the delay is such as in effect to frustrate the 
 the attTenture 
 
 is frustrated intended adventure, the charterer may be entitled to reject the 
 hy the delay. ^^^.^^ 
 
 In MacAndrew v. Chappie, Willes, J., said {g) : " It seems to 
 be now settled that delay by deviation is the same as a delay in 
 starting ; and it is also settled, at any rate in this Court, that a 
 delay or deviation which, as it has been said, goes to the whole 
 root of the matter, deprives the charterer of the whole benefit of 
 the contract, or entirely frustrates the object of the charterer in 
 chartering the ship, is an answer to an action for not loading a 
 cargo: but that loss, delay, or deviation short of that gives an 
 action for damages, but does not defeat the charter. From the 
 time of Boone v. Eyre (A), Eitchie v. Atkinson (i), and Davidson 
 
 M 26 Q. B. D. 320 ; (1891) 1 Q. B. 35. 0. P. 643. See also CUpsham :;. Vertue, 
 
 (e) Tarrahoohia v. Hickie, 26 L. J., 13 L. J., Q. B. 2. 
 
 Ex. 26 ; Dimeoh v. Oorlett, 12 Mo. P. C. (y) L. R., 1 C. P. at p. 648. 
 
 199- W 1 H. Bl. 273, n. 
 
 (/) MacAndrew v. Chappie, L. K., 1 (i) 10 Eaat, 295. 
 
PROCEEDING TO PORT OF LOADING. 261 
 
 V. Grwynne (k), this rule 'has heen applied. In the present case I Sect. 231. 
 
 apprehend the hreaohes resolve themselves into such a delay as can 
 
 he compensated for by damages. The vessel was not engaged for 
 
 any particular cargo, but the contract was merely a speculation on 
 
 the rise or fall of freight ; and the object of the voyage, therefore, 
 
 was in no sense frustrated." 
 
 That view was in accordance with the earlier case of Freeman v. 
 Taylor (l) . A ship had been chartered to take cargo to the Cape 
 of Grood Hope, and thence to go with all convenient speed to 
 Bombay, and there load a cargo of cotton from the charterers. 
 She discharged her cargo at the Cape ; but then, instead of pro- 
 ceeding direct to Bombay, took on board a cargo of mules and 
 cattle and carried them to the Mauritius, on the captain's account. 
 There was thus a delay of six or seven weeks in reaching Bombay, 
 and the charterer refused to load. The jury was asked to say 
 whether the delay was of such a nature as "to put an end to the 
 ordinary objects the freighter might have had in view when he 
 entered into the contract," and, their answer being in favour of 
 the charterer, he was held excused from loading {m). 
 
 Dissolution of the Contract. 
 
 232. The foregoing were cases in which the delay was due to a Where delay- 
 default by the shipowner ; but the principle involved in them has adventure. 
 a wider application. A charter party is ordinarily made with the 
 view of carrying out a commercial object, which may be frustrated 
 by an unusually prolonged delay ; and the parties must be con- 
 sidered to have entered into it contemplating that a delay might 
 have that effect. Hence it may be inferred that the intention was 
 that the agreed voyage was to be performed, provided that no 
 delay should occur such as to frustrate its object before it com- 
 menced ; but that if such a delay should arise, without any default 
 of either party, the transaction was not to be carried through. If, 
 then, a delay of this kind has occurred before the loading, either 
 party may treat the contract as dissolved and at an end (m). 
 In Jackson v. Union Marine Insurance Go. (o) the question was, 
 
 (i) 12 East, 381. 125, overruling on ^s point Hurst v. 
 
 (I) 8 Bing. 124. IJsbome, 25 L. J., C. P. 209. Of. 
 
 Touteng v. Hubbard, 3 B. & P. 291 ; 
 M Cf . The Alert, 61 Fed. Rep. 504. ^aid v. Hine, 39 Fed. Eep. 818 (1889). 
 («) Jackson 4). Union Marine Ins. Co., (o) L. R., 8 C. P. 572; L. E., 10 
 
 L. E., 8 C. P. 572 ; L. E., 10 C, P. C. P, 125, 
 
262 THE VOYAGE. 
 
 Sect. 233. whether charterers were entitled to thl-ow up a charter party, 
 -under which a vessel was to proceed with all conyenient speed 
 from Liverpool to Newport, and there take a cargo of iron rails 
 for San Francisco ; the dangers and accidents of navigation being 
 excepted. The ship, on her way to Newport, took the rocks in 
 Carnarvon Bay on January 4th, 1872. After considerable delay 
 she was got off, and taken back to Liverpool, and repaired; the 
 repairs taking several months. The charterers had chartered her 
 for the purpose of carrying rails that were wanted for the con- 
 struction of a railway at San Francisco; time was important to 
 them, and on the 16th of February, 1872, they chartered another 
 vessel to carry the rails. The jury found that the time for 
 getting the ship off and repairing her " was so long as to put an 
 end, in a commercial sense, to the commercial speculation entered 
 upon by the shipowner and the charterers ; " and on this finding 
 it was held by the Exchequer Chamber, affirming the Common 
 Pleas, that the charterers were entitled to throw up the charter 
 party. 
 
 Brett, J., in the Court below, said [p) : " These authorities seem 
 to support the proposition, which appears on principle to be very 
 reasonable, that when a contract is made with reference to certain 
 anticipated circumstances, and where, without any default of either 
 party, it becomes wholly inapplicable to or impossible of applica- 
 tion to any such circumstances, it ceases to have ani/ application, it 
 cannot be applied to other circumstances which could not have 
 been in the contemplation of the parties when the contract was 
 made." Keating, J., agreed with this; but Bovill, 0. J., took a 
 different view, and considered that the charterers remained bound 
 notwithstanding the delay. 
 
 In the Exoh. Chamber, Cleasby, B., agreed with BovDl, C. J. ; 
 but the majority of the Court (Bramwell and Amphlett, BB., 
 Blackburn, Mellor, and Lush, JJ.) took the other view, and 
 affirmed the judgment. Bramwell, B., delivered the judgment of 
 the majority, and in the course of it he said (q) : " The question 
 turns on the construction and effect of the charter. By it the 
 vessel is to sail to Newport with all possible despatch, perils of the 
 seas excepted. It is said that this constitutes the only agreement 
 as to time, and, provided all possible despatch is used, it matters 
 not when she arrives at Newport. I am of a different opinion. 
 
 {p) L. R., 8 C. P. p. 581. (y) L. R., 10 0. P. pp. 142, US. 
 
DISSOLUTION OF THE CONTKACT. 263 
 
 If this charter party be read as a charter for a definite voyage or Sect. 232. 
 adventure, then it follows that there is necessarily an implied con- 
 dition that the ship shall arrive at Newport in time for it. Thus, 
 if a ship was chartered to go from Newport to St. Michael's in 
 terms in time for the fruit season, and take coals out, and hring 
 fruit home, it would follow, notwithstanding the opinion expressed 
 in Touteng v. Huhhard (r), on which I will remark afterwards, 
 that if she did not get to Newport in time to get to St. Michael's 
 for the fruit season, the charterer would not be bound to load 
 at Newport, though she had ,used all possible despatch to get 
 there, and though there was an exception of perils of the seas. 
 The two stipulations, to use all possible despatch, and to arrive in 
 time for the voyage, are not repugnant ; nor is either superfluous 
 or useless. The shipowner, in the case put, expressly agrees to use 
 all possible despatch : that is not a condition precedent ; the sole 
 remedy for and right consequent on the breach of it is an action. 
 He also impliedly agrees that the ship shall arrive in time for the 
 voyage: that is a condition precedent as well as an agreement: 
 and its non-performance not only gives the charterer a cause of 
 action, but also releases him. Of course, if these stipulations, owing 
 to excepted perils, are not performed, there is no cause of action, 
 
 but there is the same release of the charterer That 
 
 reasoning also applies to the present ease. If the charter be read 
 as for a voyage or adventure, not precisely defined by time or 
 otherwise, but still for a particular voyage, arrival at Newport in 
 time for it is necessarily a condition precedent " (s). 
 
 On the other hand, in Hudson v. Hill {t), a ship had been 
 chartered to proceed forthwith to Barbadoes, " being allowed to 
 take in cargo of coals to a port outwards for owner's benefit, or to 
 the Brazils, and as ordered load afloat a full and complete cargo 
 of sugar or other lawful merchandize." The charter party was dated 
 December 28th, 1870. The vessel took out a cargo of coals to Eio 
 in Brazil, and proceeded thence to Barbadoes. Owing to adverse 
 weather and other circumstances for which the owner was not 
 responsible, she did not reach Barbadoes until July 28th. The 
 season there for exporting sugar lasts from April to July, and on 
 July 28th all the crop had been exported. The charterers' agents, 
 therefore, refused to load the vessel, but offered to give her a cargo 
 
 (r) 3 B. & P. 291. Q. B. 404. 
 
 (») Of. Geipel v. Smith, L. R., 7 W 43 L. J., C. P. 273. 
 
264 THE VOYAGE. 
 
 Sect. 232. of sugar at St. Vincent, ninety miles ofE. This the captain 
 declined, unless he received an indemnity, which was not given. 
 
 In an action against the charterers for not loading, the jury 
 found that the delay did not put an end in a commercial sense to 
 the commercial speculations entered upon by the shipowners and 
 the charterers; hut that it was greater than either party could 
 have contemplated when entering into the charter party. Held, 
 that the shipowner was entitled to judgment. 
 
 Brett, J., said (u) : " When the delay is so long as to frustrate 
 the mercantile adventure as at first contemplated by both parties, 
 the original contract is determined and cannot he enforced. In 
 the present case the mercantile adventure on the part of the 
 charterers was to send a cargo of sugar from Barbadoes to England 
 during the proper season, but the adventure on the part of the 
 owners of the ship was that she should earn freight. The mere 
 failure of the vessel to arrive in time to carry out the charterers' 
 intention did not frustrate her owners' purpose in entering upon 
 the contract of affreightment. They were not bound to recognize 
 the charterers' object. It was no part of the owners' intention that 
 their ship should be loaded at a profit to the charterers, and, there-" 
 fore, the contract remains in force, although no profit from putting 
 a cargo on board can accrue to the charterers." 
 
 Shipowner 233. If the delay in reaching the port of loading has frustrated 
 
 charged if not the adventure, and this has occurred from causes for which the 
 
 for^the ^deLv ^^ipo"'™®^' ^ ^°^ responsible, then he, as well as the charterer, may 
 
 decline to perform the charter party any further. The reasons for 
 
 allowing the contract to be dissolved, under the new conditions, 
 
 apply to both parties (x). 
 
 And where circumstances have arisen which show that, without 
 any default of the parties, the contract cannot be carried out as 
 contemplated within a reasonable time, the shipowner is excused 
 from going to the port of loading at aU. 
 
 In Geipel v. Smith (y), a British ship was chartered to load a 
 cargo of coals in England to be carried to Hamburg ; restraints 
 of princes and rulers excepted. Before anything had been done, 
 Hamburg was blockaded by the French, at war with Germany ; 
 England remaining neutral. The shipowner refused to take a 
 
 (m) 43 L. J., 0. p. at p. 279. per BramweU, B., L. E., 10 0. P. p. 
 
 (x) Jackson v. Union Marine Ins. Co., 144. 
 per Brett, J., L. E., 8 0, P. p. 578 ; (y) L. E., 7 Q. b, 404, 
 
DISSOLUTION OF THE CONTKACT. 265 
 
 cargo on board ; and to an action by the charterer, he pleaded that Sect. 233. 
 the charter party could not have been carried out and fulfilled 
 within a reasonable time in that behalf, except by running the 
 blockade. It was held that this was a sufficient defence. For the 
 blockade, being assumed to be effective, was within the exception 
 of restraints of princes ; and " the effect of such a state of things 
 as an effective blockade of the port of discharge is not merely to 
 excuse delay in the carrying out of the contract, but that, after a 
 reasonable time, it relieves the parties, the contract being altogether 
 executory, from the performance of it. . 
 
 The object of each of them was a carrying out of a commercial 
 speculation within a reasonable time ; and if restraint of princes 
 intervened, and lasted so long as to make this impossible, each had 
 a right to say, ' Our contract cannot be carried out ' ; and, there- 
 fore, the shipowner had a right to sail away, and the charterer to 
 sell his cargo or refrain from procuring one, and to treat the 
 contract as at an end" (z). 
 
 The contract was one entire contract; and as there was an 
 obstacle to the complete performance of it, the shipowner was not 
 bound to perform that part which, though possible, was by itseM 
 useless (a). 
 
 Further, a plea of the blockade was sufficient. Lush, J., said, 
 " I think the fifth plea may also be treated as valid. It alleges 
 the breaking out of a war between France and Germany, and a 
 blockade of the port of Hamburg. If the impediment had been 
 in its nature temporary I should have thought the plea bad ; but 
 a state of war must be presumed to be likely to continue so long, 
 and so to disturb the commerce of merchants, as to defeat and 
 destroy the object of a commercial adventure like this " (J). 
 
 The declaration there showed that " restraints of princes and 
 rulers " was excepted in the charter party. Whether the decision 
 of the Court would have been the same had there been no such 
 exception does not appear. The question in such a case would 
 be, whether the shipowner has been excused by a change of cir- 
 cumstances, not provided against by the charter party, but which 
 has happened before the loading, and is such as to frustrate the 
 intended adventure. 
 
 (is) PerBlaoktum, J., L. R., 7 Q. B. (S) Cf. Medeiros ». HiU, 8 Biiig. 231, 
 
 pp. 412, 413. where the charter party was made after 
 
 (a) Per Cockbnm, C. J., at p. 411. notice of the blockade. 
 
266 THE VOYAGE, 
 
 Sect. 234. 234. In the following case the contract, was for a series of 
 Contract for Voyages, and it was held that an unexpected delay in the earlier 
 Toyaff?s°* voyages did not excuse the shipowner from completing the re- 
 mainder. A charter party provided, " That this charter shall he 
 in force for six successive voyages, and that they shall be made 
 not later than the last day of February, 1853." To an action for 
 not making more than three voyages, the owner pleaded that 
 during those voyages he sustained damage, by excepted perils, 
 which could not be repaired by the last day of February, 1853. 
 It was held that this did not excuse him from performing the six 
 voyages. " There is an absolute contract to perform six voyages, 
 and an undertaking that the party wUl use due diligence to 
 perform them within the time specified" (c). 
 Owner dis- 235. A refusal by the charterer to load in the agreed manner 
 
 refnlatofoad "^^^^ excuse the shipowner from proceeding to the port of loading. 
 
 at the agreed ^^^ when the charterer breaks his contract in this way on one of 
 place. _ _ 
 
 an agreed series of voyages, that may entitle the shipowner to treat 
 
 the whole as at an end. In Bradford v. Williams {d), a vessel was 
 
 chartered, in May, 1871, to carry cargoes of coal from Bullo to 
 
 Highbridge or DunbaU, until the end of March, 1872. " Vessel 
 
 to load with GoUop & Co., or Gould & Co., till end of September, 
 
 with captain's option; after September at Gould & Co." The ship 
 
 made several voyages under the charter party, until September, 
 
 1871. To an action by the charterer for not sending the ship to 
 
 load after the commencement of September, the owner pleaded 
 
 that the captain had elected to load from Gollop & Co., and that 
 
 the plaintiffs were not ready, and had refused to load there during 
 
 September or at any subsequent time. It was held on demurrer 
 
 that this was a good defence. The refusal to load at Gollop & Co. 
 
 not only excused the shipowner from sending the ship during 
 
 September, but also entitled him to treat the charter party as at an 
 
 end altogether. " The contract was for the continuous employment 
 
 of the ship, and the defendant, owing to the plaintiff's refusal to 
 
 perform what was in my judgment a material part of the bargain, 
 
 was unable to go on as he expected earning his freight" (e). 
 
 Express 236. The following are eases of express agreements for the cancel- 
 
 to oanoef * lation of the contract in particular events. In Avery v. Bowden (/) , 
 
 (c) Pope V. Savidge, 10 Ex. 73, per {«) Per Martin, B., at p. 261. 
 Martin, B. (/) 25 L. J., Q. B. 49; 26 L. J., 
 
 [d) L. E., 7 Ex. 259. Q. B. 3. 
 
DISSOLUTION OF THE CONTRACT. 267 
 
 a ship was oliartered. to proceed in ballast to Constantinople, and Sect. 236. 
 
 thence to Odessa and load ; hut it was stipulated that " in case of charter party 
 
 war having commenced previous to and continuing on the ship's ^^ certain 
 
 arrival at Constantinople " the charterer should load her at that 
 
 port at a lower freight. After the charter was made, and before 
 
 the ship's arrival at Constantinople, war broke out between Russia 
 
 and Turkey : subsequently to her arrival war broke out between 
 
 Russia and England. And the question was as to the meaning of 
 
 " war" in the above clause. It was held that it meant such a war 
 
 as would render the voyage of an English ship from Constantinople 
 
 to Odessa unlawful, and did not comprise war between Russia and 
 
 Turkey. The charterer was therefore not bound to load at 
 
 Constantinople. 
 
 In Adamson v. The Newcastle Steamship Freight Insurance 
 Co. {g), a ship had been chartered to proceed from Grenoa, whither 
 she went on an intermediate voyage, to Gralatz for orders, and to 
 load a cargo of grain either there or at Braila or IsmaHa. The 
 charter provided that, " in the event of war, blockade, or prohibi- 
 tion of export preventing loading," the charter party should be 
 cancelled. 
 
 Before the ship reached Genoa, the loading ports were all closed 
 by Russia, which was then at war with Turkey. The charterer 
 was requested to cancel the charter party, but he refused, and the 
 ship was therefore sent on towards Gralatz in ballast ; but on 
 reaching Constantinople, as the ports were still closed, she took a 
 homeward cargo at a less freight. The shipowners claimed for 
 loss of freight under a policy of insurance, and the question was 
 whether the charter party had come to an end before the ship left 
 Genoa. It was held by Cockburn, C. J., and Manisty, J., that 
 the act of closing the ports by the Russian Government was a 
 "prohibition of export preventing loading," within the meaning 
 of the charter party ; and that upon that event the charter party 
 came to an end, without any election by either party. On the 
 other hand. Lush, J., did not think that the parties intended to 
 place themselves in that position. He read the clause to mean 
 that in the stated events it was to be cancelled " at the option of 
 either of the parties : and thus, that it would remain in force until 
 one of the parties elected to avoid it ; but it would be optional to 
 either of them to put an end to it upon the happening of either of 
 
 (y) 4 Q. B. D. 462. 
 
268 THE VOYAGE. 
 
 Sect. 236. the specified events, provided he did so within a reasonable time, 
 and before the other party had altered his position upon the faith 
 of his having waived it " ih). 
 
 In Soames v. Lonergan (»), the ship St. Patrick was chartered to 
 bring a homeward cargo from Gnayaquil, but the charter party 
 was to be void " in the event of non-arrival " of another ship (The 
 Grant), which was then on an outward voyage. The intention was 
 that The St. Patrick should bring home the proceeds of the cargo 
 of The Grant. The charter provided that The St. Patrick should lie 
 to receive and discharge the cargo 120 running days in the whole, 
 and twenty days on demurrage. It was held that the condition 
 meant that the charter party was to be void unless The Grant 
 arrived within such a time as to answer the purposes of the 
 adventure. And that no action lay against the charterer for not 
 loading, The Grant not having arrived until long after the expiring 
 of the lay days of The St. Patrick, and after The St. Patrick had 
 sailed away. 
 
 Charter party 237. The contract is dissolved if performance of it becomes 
 dissolved on . . , - 
 
 becoming illegal ; it ceases to be valid, and the parties to it are discharged. 
 
 ^^_ ™^ If it was niegal in the first instance, for example as infringing the 
 
 revenue or navigation (/c) laws, or as a trading with an enemy, it 
 
 cannot be enforced by either party; even though he may have 
 
 done his part [1). Such a charter party is void, and without legal 
 
 effect. 
 
 But the contract may have been lawful originally, and yet its 
 performance may have become unlawful by a subsequent act of the 
 government : as, by an order prohibiting the trade ; or by an 
 outbreak of war with the country to which the ship belongs, or 
 from which the intended cargo is to be procured and shipped. 
 Where this happens before a cargo has been put on board, the 
 contract is dissolved. 
 
 " That no contract can properly be carried into effect which was 
 originally made contrary to the provisions of law ; or which being 
 made consistently with the rules of law at the time, has become 
 illegal in virtue of some subsequent law ; are propositions which 
 admit of no doubt. Neither can it be questioned that if, from a 
 change in the political relations and circumstances of this country, 
 
 (A) Per Lush, J., 4 Q. B. D. at p. (Jc) Cunard^.Hyde, 29L. J., Q. B. 6; 
 
 468. Blanok v. Solly, IB. Moore, 631. 
 
 (i) 2 B. & C. 664, (Z) Mnller v. Gemon, 3 Taun. 394. 
 
DISSOLUTION OF THE CONTEACT. 269 
 
 witli reference to any other contracts which were fairly and Sect. 237. 
 
 lawfully made at the time, they have become incapable of being 
 
 any longer carried into efEect without derogating from the clear 
 
 public duty which a British subject owes to his Sovereign, and the 
 
 State of which he is a member, the non-performance of a contract 
 
 in a state so circumstanced is not only excusable, but a matter of 
 
 peremptory duty and obligation on the part of the subject " (w). 
 
 And in Barker v. Hodgson («), Lord EUenborough said: "If 
 indeed, the performance of this covenant had been rendered 
 unlawful by the government of this country, the contract would 
 have been dissolved on both sides, and this defendant, inasmuch as 
 he had thus been compelled to abandon his contract, would have 
 been excused for the non-performance of it, and not liable to 
 damages." 
 
 In Esposito «. Bowden (o), a ship had been chartered to load a 
 cargo of wheat at Odessa, but before she arrived there war was 
 declared between England and Russia. To an action for not 
 loading the charterer pleaded that he was a British subject, and 
 that owing to the war it became impossible for him to perform the 
 contract without dealing and trading with the Queen's enemies. 
 This was held to be a good defence ; for the declaration of war 
 rendered commercial intercourse with the inhabitants of the 
 enemy's country illegal, unless with the licence of the Crown ; and 
 • its effect, therefore, was to dissolve the charter party, and absolve 
 both parties from further performance of it. 
 
 Also, it was held that this efEect was not altered by the fact that, 
 after the declaration of war had been made, an Order in Council 
 was made, that British subjects might trade with all ports which 
 were not blockaded. 
 
 238. The contract may be dissolved by a declaration of war. Effect of war 
 although the vessel may have been lying at the loading port, ready ^„ntry^of 
 for cargo, for some time before the declaration was made. Thus, a ^^^^s- 
 charterer was excused for not loading where war was declared after 
 the vessel had arrived, but before the lay days had expired (p). 
 
 And even where the cargo has been loaded on board, if the 
 
 (m) PerLordEllenboroughmAtkinBon (o) 24 L. J., Q. B. 210; 27 L. J., 
 
 V. Ritchie, 10 East, p. 534. Q. b. 17. 
 
 (n) 3 M. & S. 267, p. 270. And see 
 
 BaUey v. De Orespigny, L. E., 4 Q. B. (^) ^^^"^ "• ^°^i^^, 25 L. J., Q. B. 
 
 180 ; Touteng v. Hubbard, 3 B. & P. 49 ; 26 L. J., Q. B. 3 ; Eeid f.Hoskins, 
 
 291. 25 L. J., Q. B. 55 ; 26 L. J., Q. B. 6. 
 
270 THE VOYAGE. 
 
 Sect. 238. carriage of it to its agreed destiaation afterwards becomes illegal, it 
 seems that the contract is dissolved, and that the cargo should he 
 relanded {q). The rule is thus stated in Abbott on Shipping {r) : 
 "If, therefore, before the commencement of a voyage, war or 
 hostilities should take place between the State to which the ship or 
 cargo belongs, and that to which they are destined, or commerce 
 between them be wholly prohibited, the contract for conveyance is 
 at an end (s), the merchant must unlade his goods, and the owners 
 find another employment for their ship. And probably the same 
 principles would apply to the same events happening after the 
 commencement and before the completion of the voyage, although 
 a different rule is laid down in this case by the French Ordinance {t), 
 as I have before observed. But if war or hostilities break out 
 between the place to which the ship or cargo belongs, and any other 
 nation, to which they are not destined ; although the performance 
 of the contract is thereby rendered more hazardous, yet is not the 
 contract itself dissolved, and each of the parties must submit to 
 the extraordinary peril, unless they mutually agree to abandon the 
 adventure." 
 
 War of the 239. The rule that war with the country where the cargo is 
 
 country to , 
 
 which ship to be loaded puts an end to the contract, applies when war has 
 eongs. hroken out between the country to which the ship belongs, and 
 
 that to which she is to go under the charter party ; though the 
 charterer may be a neutral. " This is not an unequal law, because 
 if war had broken out between the Czar and the King of the Two 
 Sicilies instead of her Majesty, the vessel would, according to the 
 principle stated above, have been absolved from going to Odessa, 
 and might forthwith have proceeded upon another voyage" (m). 
 Performance of the contract by the ship in such a case would be 
 illegal according to the law of her own country. 
 
 And where a cargo has been shipped in a foreign ship, and 
 war has broken out between the country to which she belongs 
 and the country of the port of discharge, the neutral owner of 
 the goods cannot complain of her not going there. " It appears 
 to their Lordships, however, that when an English merchant ships 
 
 [q] See The Hoop, 1 C. Eob. 196, Art. 276. 
 
 p. 216. (*) Llv. 3, tit. 3, Fret, Art. 15 ; Code 
 
 (r) 5th ed. p. 427 ; 13th ed. p. 754. de Comm. Art. 299. 
 
 («) French Ordin. liv. 3, tit. 1, des {«) Per Willes, J., Esposito v. Bow- 
 
 Oharte-parties, Art. 7 ; Code de Comm. den, 27 L. J., Q. B. 16, p. 25. 
 
DISSOLUTION OF THE CONTRACT. 271 
 
 goods on toard a foreign ship, he cannot expect that the master Sect. 839 . 
 will act in any respect differently towards his cargo than he would 
 towards a cargo shipped by one of his own country, and that it 
 cannot he contended that the master is deprived of the right of 
 taking reasonable and prudent steps for the preservation of his 
 ship, because from the accident of the cargo not belonging to 
 his own nation, the cargo is not exposed to the same danger as 
 the ship" (»). 
 
 240. Where goods have been loaded and partly carried on "Where car- 
 the agreed voyage, though the exact performance of the contract performed.'' 
 may become legally impossible, it wiU not be regarded as com- 
 pletely at an end, if it can by any reasonable construction be 
 treated as still capable of being performed in substance. Thus, 
 where a Prussian vessel, carrying goods under charter, had been 
 ordered to discharge at Dunkirk, and it became impossible for her 
 to do so, because war broke out between France and Grermany, it 
 was held in the Privy Council, that the contract was not dissolved, 
 and that the shipowner might still hold the goods at Dover, where 
 he had taken the ship, for the freight which would have been pay- 
 able under the charter party had she been ordered to that port {y) . 
 
 MeUish, L. J., delivering the judgment, said : " There is no 
 authority on the proper construction of the charter party in this 
 respect, but their Lordships are of opinion, that they ought not to 
 hold that the contract between the parties has become impossible of 
 performance, and is, therefore, to be treated "as dissolved, if by 
 any reasonable construction it can be treated as still capable, in 
 substance, of being performed. Although it is true that the Court 
 ought not to make a contract for the parties which they have not 
 made themselves, yet a mercantile contract, which is usually 
 expressed shortly, and leaves much to be understood, ought to be 
 construed fairly and liberally for the purpose of carrying out the 
 object of the parties ; and it would seem very unjust to hold, 
 because the consignee has named a port at which, without any 
 fault on the part of the shipowner, it is impossible for the cargo to 
 be delivered, that, therefore, the consignee is entitled to the 
 possession of the cargo at the nearest neighbouring port, which, in 
 a charter party framed like this, must necessarily be one of the 
 
 {x) Per MeUish, L. J. , The Teutonia, Of. per Lord Watson, in Dahl v. Nelson, 
 L. E., 4 P. C. 171, p. 180. 6 A. C. 38, at p. 62; and per Lord 
 
 (j^) The Teutonia, L. E., 4 P. C. 171. Blackburn at p. 53. 
 
272 
 
 THE VOYAGE. 
 
 EfBeot given 
 to charter 
 party wliere 
 legally 
 possible. 
 
 Sect. 240. ports named in the charter party, without paying for the cargo any 
 freight whatever. The ship, without any breach of contract on the 
 part of the shipowner, has arrived at Dover ; the consignee has 
 required the master to deliver him the cargo there, and he has not 
 required the master to proceed to any other port except Dunkirk, 
 where it was impossible for him to go. The charter party provides 
 what freight is to be paid if the cargo is delivered at Dover, and 
 how it is to be paid ; and, therefore, it appears to their Lordships, 
 that they ought to hold that the contract was not dissolved by the 
 impossibility of delivering the cargo at Dunkirk, and that the ship- 
 owner had not lost his chartered freight, nor his lien for it, at the 
 time when the cargo was demanded at Dover" (z). 
 
 241. And where the contract can be carried out in a legal man- 
 ner, though not that exactly which was intended by the parties, 
 it will be taken to be valid, as a contract to be performed in the 
 lawful manner, unless there was a real intention to break the law. 
 Thus, a charter party was made in France, under which the ship 
 was to carry a cargo of pressed hay to London, to be taken there 
 from alongside the ship ; the master was told by the charterer's 
 agent that the consignees would require the hay to be delivered to 
 them at a particular wharf, and the master promised to proceed 
 thither. But before thfe charter party, though unknown to the 
 parties, an Order in Council had been made under the Contagious 
 Diseases (Animals) Act, 1869, forbidding the landing in Great 
 Britain of any hay brought from France. The hay could not 
 therefore be landed ; but, after a considerable delay, the charterer 
 received the cargo from alongside the ship into another vessel and 
 exported it, there being no legal objection to that being done. 
 The shipowner was held entitled to compensation for the delay 
 under the charter party (a). 
 
 " "When it turned out that the defendant had named a place for 
 the performance of the contract where the performance was im- 
 possible, because illegal, that did not put an end to the contract, if 
 the performance in any other way was legal and practicable . . 
 We quite agree that, when a contract is to do a thing which cannot 
 be performed without a violation of the law it is void, whether the 
 parties know the law or not. But we think that, in order to avoid 
 
 («) Cf . per Lord Kansfield in Christy 
 V. Eo-w, 1 Taun. 300, p. 314. 
 
 («) Waugh V. Morris, L. R., 8 Q. B. 
 202. See Cargo ex Argoe, L. R., 5 
 P. C. 134. 
 
DISSOLUTION OF THE CONTRACT. 273 
 
 a oontraot which can be legally performed, on the ground that Sect. S4l. 
 there was an intention to perform it in an illegal manner, it is 
 necessary to show that there was the wicked intention to break 
 the law; and if this be so, the knowledge of what the law is 
 becomes of great importance." 
 
 242. If the voyage is only temporarily restrained, the contract Temporary 
 is not dissolved. In Hadley v. Clarke (6) goods were shipped at voyage. 
 Liverpool to be carried to Leghorn, the dangers of the seas only 
 excepted. The ship sailed to Falmouth to join convoy for the 
 voyage, and arrived there on June 30th, 1796. While waiting 
 there an embargo was laid, by order of the King in Council, on all 
 ships bound to Leghorn, and the vessel was, therefore, prevented 
 from proceeding. She waited at Falmouth for more than two 
 years, until August, 1798, and then returned to Liverpool and 
 relanded the cargo. The shippers sued the shipowner for not 
 performing his contract. The embargo was, in fact, taken off in 
 October, 1798. It was held that the shipowner was liable. For 
 though the embargo was a legal interruption of the voyage, it 
 was only a temporary restraint, and did not put an end to the 
 contract (c). 
 
 In The Isabella Jacobina (d), a cargo of pilchards had been 
 shipped on a Swedish vessel at Eadstow, for Yenice, under a 
 charter party.. The vessel had proceeded a few days on her voyage, 
 but had met with bad weather and become leaky, and put back to 
 Falmouth. There she was detained under an embargo placed upon 
 
 {i) 8 T. R. 259. at Falmouth or immediately after she 
 («) Lord Kenyon said: "It is ad- sailed for Liverpool? It ■would afford 
 mitted that an embargo heing imposed an argament against the defendants 
 during the war -was a legal interruption in this particular case that they kept 
 of the voyage ; but it would be attended the goods on board during all this 
 with the most mischievous consequences time and thought they were bound by 
 if a temporary embargo were to put an this oontraot. However, I do not 
 end to such a contract as this : because, decide this case on that ground, but on 
 if it were to have that effect, it might the general ground that a temporary 
 also have the effect of putting an end to interruption of a voyage by an embargo 
 all contracts for freight and for wages. does not put an end to such a contract 
 The difSoulty in this case is to draw the as this. If this contract were put an end 
 line; the defendants contracted with the to, it might equally be said that inter- 
 plaintiff to carry his goods to Leghorn ; ruptiona to a voyage from other causes 
 that contract was certainly obligatory at would also have put an end to it, e.g., 
 the time when it was made, and it must a ship being driven out of her course ; 
 continue to be binding unless it has and yet that was never pretended." 
 since been put an end to. Then, at See also Beale v. Thompson, in error, 
 what time was it put an end to ? Was i East, 540. 
 It put an end to during the ship's stay {S) 4 0. Rob. 77. 
 
 C. — C. T 
 
274 THE VOYAGE. 
 
 Sect. 248. Swedisli ships. The cargo, owing to its nature, could not wait 
 ^~~ until the embargo might he taken off, and was, therefore, un- 
 shipped and given up to its owners. It was held in the Admiralty 
 Court that no freight was payable ; Falmouth being " so much in 
 the neighbourhood of Eadstow that it may be taken as the port of 
 departure ; " but that if any expenses had been incurred by the 
 ship on account of the cargo they must be paid. 
 Capture and Where a vessel has been captured and afterwards recaptured, or 
 recap ure. lijjerated, the better opinion seems to be that the contract has not 
 necessarily been dissolved (e) ; even where the captured vessel has 
 been condemned, and the condemnation only set aside on appeal (/). 
 But where the cargo has been discharged from the ship under the 
 order of the Court, that has been considered to put an end to the 
 contract {g) . 
 EfEeot of war 243. Contracts may be dissolved by the outbreak of war, owing 
 subjects with to the rule that a trading by a subject with an enemy, except under 
 enemy. licence of the government, is illegal, and subjects the property to 
 confiscation (A). That rule is a strict one with regard to subjects 
 domiciled in this country, or in the colonies ; though it is relaxed 
 as to British subjects domiciled in a neutral country (i). Lord 
 Stowell, in the great case of The Hoop {k), said : " The cases which 
 I have produced prove that the rule has been rigidly enforced : — 
 Where Acts of Parliament have on different occasions been made to 
 relax the navigation law and other Revenue Acts ; where the 
 government has authorized, under the sanction of an Act of 
 Parliament, a homeward trade from the enemy's possessions, but 
 has not specifically protected an outward fa-ade to the same, though 
 intimately connected with that homeward trade, and almost neces- 
 sary to its existence : that it has been enforced where strong 
 claims, not merely of convenience but of necessity, excused it on 
 behalf of the individual ; that it has been enforced where cargoes 
 have been laden before the war, but where the parties have not 
 
 {e) Moorsom v. Greaves, 2 Camp. The Hoffnung, 6 C. Bob. 231. But 
 
 627 ; per Lord Alvanley, in Beale v. see The Newport, Swab. 336, p. 340. 
 Thompson, in C. P., 3 B. & P. 405, p. (h) The Hoop, 1 C. Rob. 196 ; Potts 
 
 430 ; The Racehorse, 3 C. Rob. 101 ; v. Bell, 8 T. R. 548. 
 Bergstrom v. Mills, 3 Esp. 36 ; Macl. (i) Bell v. Reid, 1 M. & S. 726. As 
 
 491 ; Ang. Carr. s. 401 ; Pars. Sh. I. to who are subjects, and who enemies; 
 
 336. Of. Curling v. Long, 1 B. & P. and as to what is trading, and the 
 
 ^^*- effect of licences, see the notes to The 
 
 (/) The Newport, Swab. 336. Hoop in Tudor's Leading Cases, 921. 
 
 is) The Martha, 3 C. Rob. 106 ; {k) 1 C. Rob. 196, p 216 
 
DISSOLUTION OF THE CONTRACT. 275 
 
 iised all possible diligence to countermand the voyage after the Sect. 243. 
 
 first notice of hostilities ; and that it has been enforced not only 
 
 against the subjects of the Crown, but likewise against those of 
 
 its allies in the war, upon the supposition that the rule was founded 
 
 on a strong and universal principle, which allied states in war had 
 
 a right to notice and apply mutually to each other's subjects." 
 
 If the ship is British, and the loading is to take place at the 
 port of an enemy, the contract is dissolved whether the charterers 
 are British subjects or not (l) . And if the charterers are British 
 subjects, it is dissolved, although the ship may be a neutral. 
 
 Willes, J., delivering the judgment of the Exchequer Chamber 
 in Esposito v. Bowden (m), said : " We entirely concur in the 
 decision of Eeid v. Hoskins, and in the reasons advanced in the 
 argument, either of which, however, would, in our opinion, have 
 been sufficient. The fact that it was the duty of the master in 
 that case to leave Odessa, and that he could not have received a 
 cargo without dealing and trading with the enemy, was a sufficient 
 ground for the decision that his owners could not recover against 
 the charterers for not loading a cargo which he could not lawfully 
 have received. But that was not the only reason stated in the 
 judgment by which it could have been supported. The argument, 
 'which was again urged in this case, that apart from any considera- 
 tions affecting the shipowner only, the defence was valid by reason 
 of the law also forbidding a charterer to load a cargo, and, as a 
 consequence of that prohibition, dissolving the charter party, and 
 absolving both parties from further performance, remains to be 
 considered. In order to escape the application of this latter argu- 
 ment, founded upon the principles above stated, it is necessary 
 for the shipowner to establish that the plea of the charterer can- 
 not be true, in alleging an impossibility of performance without 
 dealing and trading with the enemy ; or, in other words, that 
 the charterer could, but for some default of his own, and not- 
 withstanding the war, have fulfilled his contract in a lawful 
 manner. We proceed to consider the argument advanced for that 
 purpose. In the first place, it is said that the contract admitted of 
 being fulfilled after the war by pui-chasing the cargo from her 
 Majesty's subjects or those of her allies at Odessa, who may have 
 had wheat, seed, or other grain which they were willing to dispose 
 of, and may have been about to leave the enemy's country, and it 
 
 (?) Eeid V. Hoskins, 24 L. J., Q. B. 315. {m) 27 L. J., Q. B. 17. 
 
 t2 
 
276 THE VOYAGE. 
 
 Sect. 343. is assumed that the charterer might lawfully have purchased the 
 cargo from such persons, and lawfully have shipped it when so 
 purchased. Assuming, for argument sake, that this conclusion is 
 correct in point of law, which, independently of express authority, 
 we should have doubted, inasmuch as persons inhabiting an enemy's 
 country are prim& facie enemies (The Berners (w) ) — and even the 
 Queen's subjects become absolutely enemies if they remain and 
 trade in the enemy's country" after they know the breaking out of 
 war (O'Mealy v. Wilson (o))— still it should seem a harsh and 
 inequitable position that the charterer, who, by no wrongful act or 
 default of his own, but by the unquestionably rightful act of his 
 Sovereign in declaring war m. the exercise of her undoubted 
 prerogative against a public enemy, should be reduced to the 
 necessity of seeking out at his peril, in an enemy's country, persons 
 who had themselves acquired the goods before war, and were 
 possessed of them under circumstances which established a right to 
 remove them from an enemy's country without a licence. What if 
 it had happened that there were no British or French subjects in 
 the enemy's country having such property in their possession to 
 sell, or if there were, that the charterer had purchased from one 
 professing at the time of the sale that he was about to depart, but 
 who afterwards remained, so as to acquire the character of an alien* 
 enemy? Without, however, resorting to that supposition, it is 
 enough to refer to Potts v. BeU, already cited, where it was 
 expressly held, that goods purchased in the enemy's country since 
 the war, though not from enemies, could not without a licence be 
 lawfully shipped from an enemy's port, even iu a neutral vessel. 
 Moreover, it is not correct to say that the charterer, even i£ he could 
 have succeeded in lawfully acquiring the goods, could have lawfully 
 shipped them, if doing so involved dealing or trading with the 
 enemy. It is more than likely that the cargo could not have been 
 put on board without passing through the enemy's custom-house 
 and paying export duties. The passing it through the custom-house 
 and obtaining a Eussian permit for its shipment might have been 
 but a slight case, stiU it would have been dealing with the enemy. 
 The payment of export duties would have supplied him directly 
 with the means of carrying on the war. If it were proved 
 to be necessary in point of fact, it would sustain the defence 
 raised by the plea. . . . 
 
 in) 1 Rob. 204. (o) 1 Camp. 482. 
 
DISSOLUTION OP THE CONTRACT. 277 
 
 " We are of opinion that for a British subject not domiciled in a Sect. S43. 
 neutral country, which the defendant cannot be presumed to be, to 
 ship a cargo from an enemy's port, even in a neutral vessel, without 
 licence, is an act, prima facie, and under all ordinary circumstances, 
 of dealing and trading with the enemy, and therefore forbidden by 
 law ; that it lies on the person alleging it to be legal to establish 
 the fact ; and that, in the absence of proof that it would be legal, 
 neither a British subject nor alien friend can found any action 
 upon the fact of its not haviug been performed." 
 
 244. When a foreign war is being carried on, the trade of Effect of a 
 neutrals with the belligerents is hampered by two restrictions, on British 
 They are not at liberty to give help to one of the belligerent States ^^^ ^ ^' 
 by conveying to it certain classes of goods which will assist it in 
 
 the war j these ai-e termed emitraband {p) ; nor are they at liberty 
 to trade with ports of one belligerent State which have been 
 blockaded by the other (q). 
 
 These restrictions are imposed by the established usage and 
 recognition of nations, and are enforced by the rights of visitation 
 and search of neutral vessels, and of capture and condemnation 
 when they transgress, which also are allowed by international 
 usage. 
 
 But though neutral States recognize these restrictions upon the 
 actions of their subjects, and acquiesce in the condemnations which 
 follow upon breaches of them, it does not necessarily follow that 
 those breaches are illegal in the view of the law of the neutral 
 State; nor that the tribunals will decline to enforce contracts 
 which have been made with the object of breaking through those 
 restrictions, as by carrying contraband goods, or running 
 blockades. 
 
 245. Thus, in Ex parte Chavasse, In re Grazebrook (r), it was Contracts for 
 held by Lord Westbury, that it was not illegal for neutrals to traband." ^' 
 trade iu contraband of war with a belligerent, and that a contract 
 
 made with that object was vaM. He said, " In the view of inter- 
 national law, the commerce of nations is perfectly free and un- 
 restricted. The subjects of each nation have a right to interchange 
 
 {p) As to what are contraband goods ; Tudor's Leading Cases, 981. 
 the Toyages upon which they are (?) As to blockades, and violations of 
 
 seizable ; and the rights of belligerents blockade, see the notes to The Frederick 
 
 to capture or pre-empt them, see the Molke in- Tudor's Leading Cases, 1011. 
 notes to The Jonge Margaretha in (r) 34 L. J., Oh. 17. 
 
278 THE VOYAGE. 
 
 Sect. 245. the products of labour with, the inhabitants of every other country. 
 If hostilities occur between two nations, and they become bellige- 
 rents, neither belligerent has a right to impose, or to require a 
 neutral government to impose, any restrictions on the commerce of 
 its subjects. The belligerent power certainly acquires certain 
 rights which are given to it by international law. One of these 
 is the right to arrest and capture, when found on the sea, the high 
 road of nations, any munitions of war which are destined and in 
 the act of being transported in a neutral ship to its enemy. This 
 right, which the laws of war give to a beUigerent for his protection, 
 does not involve as a consequence that the act of the neutral subject 
 in so transporting munitions of war to a belligerent country is 
 either a personal offence against the belligerent captor, or an act 
 which gives him any ground of complaint either against the 
 neutral trader personally or against the government of which he is 
 a subject. The title of the belligerent is limited entirely to the 
 right o"f seizing and condemning as lawful prize the contraband 
 articles. He has no right to inflict any punishment on the neutral 
 trader, or to make his act a ground of representation or complaint 
 against the neutral State of which he is a subject. In fact, the 
 act of the neutral trader in transporting munitions of war to the 
 belligerent country is quite lawful, and the act of the other bellige- 
 rent in seizing and appropriating the contraband articles is equally 
 lawful. Their conflicting rights are co-existent, and the right of 
 the one party does not render the act of the other party wrongful " 
 or illegal. There is, however, much incorrectness of expression in 
 some writers on the subject, who, in consequence of this right of 
 the belligerent to seize in transitu munitions of war, while being 
 conveyed by a neutral to his enemy, speak of this act of transport 
 by the neutral as unlawful and prohibited commerce. But this 
 commerce, which was perfectly lawful for the neutral with either 
 belligerent country before the war, is not made by the war unlaw- 
 ful or capable of being prohibited by both or either of the bellige- 
 rents ; and all that international law does is to subject the neutral 
 merchant who transports the contraband of war to the risk of 
 having his ship and cargo captured and condemned by the bellige- 
 rent power for whose enemy the contraband is destined." 
 
 Contracts to 246. With regard to blockades, also, it is clearly laid down that 
 es. ^ contract made with the object of blockade running is not illegal 
 
DISSOLUTION OF THE CONTEACT. 279 
 
 in the view of our law ; and that it may be enforced in our Sect. 246. 
 Courts. 
 
 In The Helen (s), Dr. Lushiagton said : " What is the usage as 
 to hlockade ? There are several conditions to he observed in order 
 to justify the seizure of a ship for breach of blockade ; the blockade 
 must be effectual and (save accidental interruption by weather) 
 constantly enforced ; the neutral vessel must be taken in delicto ; 
 the blockade must be enforced against all nations alike, including 
 the belligerent one. When all the necessary conditions are satisfied, 
 then, by the usage of nations, the belligerent is allowed to capture 
 and condemn neutral vessels without remonstrance from the neutral 
 State. It never has been a part of admitted common usage that 
 such voyages should be deemed illegal by the neutral State, still 
 less that the neutral State should be bound to prevent them ; the 
 belligerent has not a shadow of right to require more than 
 universal usage has given him, and has no pretence to say to the 
 neutral, ' Tou shall help me to enforce my belligerent right by 
 curtailing your own freedom of commerce, and makiag that illegal 
 by your own law which was not so before.' This doctrine is not 
 inconsistent with the maxim that the law of nations is part of the 
 law of the land. The fact is, the law of nations has never declared 
 that a neutral State is bound to impede or diminish its own trade 
 by municipal restriction." 
 
 In that case the contract in question was between the master 
 and owners of a ship, made with the object of running blockades. 
 In Medeiros v. Hill (t), it was held to be no defence to an action 
 for not taking the agreed cargo, that the port of discharge 
 was blockaded at the time of making the charter party, to the 
 knowledge of the parties, and that the contract was therefore 
 illegal. But there was no evidence there of any intention to break 
 the blockade if it should be found to be in force when the ship 
 arrived ; and stress was laid upon that fact {u). Now, however, it 
 seems to be established that the existence of such an intention 
 would not any the more make the charter party an illegal 
 transaction («). 
 
 («) L. R., 1 A. & E. 1, at p. 4. 6 0. Rot. 177, at p. 181. 
 
 ffl 8 Binff 231 ^^' "^^ V^rte Chavasse, Ee Graze- 
 
 ^' ^' ' brook, 34 L. J., B. 17; The Helen, 
 
 («) See also Harratt». Wise, 9B. &C. L. E., 1 A. & E. 1 ; Geipel v. Smith, 
 
 712 ; Naylor v. Taylor, 9 B. & C. 718 ; L. R., 7 Q. B. 404. Cf. Burton v. 
 
 and cf. per Sir W. Scott in The Tutela, Pinkerton, L. R., 2 Ex. 310. 
 
280 
 
 THE VOYAGE. 
 
 Sect. 246. 
 
 Illegality of 
 performance 
 at port of 
 loading does 
 not dissolve 
 contract. 
 
 Contracts to 
 break foreign 
 revenue laws. 
 
 The risk of capture involved in blockade running is not an 
 excuse for a non-performance of the contract i£ it was made by the 
 parties with knowledge of what they were doing. "As the 
 blockade had been publicly notified to the government of England, 
 the contracting parties must be taken to have entered into the 
 charter party with an equal knowledge of its existence ; no 
 difficulty, therefore, attending the performance of the contract can 
 be set up as an excuse for its non-performance " (y). 
 
 247. As we have seen in the last chapter, a contract is not 
 generally dissolved merely because performance of it will involve 
 a breach of the law of another country. Thus the charterer is not 
 excused from loading by laws of the port of loading which prevent 
 communication with the ship (s), or prohibit the export of the 
 intended cargo (a). 
 
 And a contract may in some cases be enforced although it was 
 made with the object of breaking the law of a foreign country ; 
 as where a charter party, made with the intention of defeating 
 the Erench revenue laws, was held to be valid, on the ground 
 that " one nation does not take notice of the revenue laws of 
 another" (6). 
 
 (y) Per Tindal, C. J., Medeiros v. 
 Hill, 8 Bing. 231, p. 235. 
 
 (a) Barker v. Hodgson, 3 M. & S. 
 267. Cf. Cunningliam v. Dunn, 3 
 0. P. r>. 443 ; WHte v. S.S. Wiuohester 
 Co., 23 Sc. L. R. 342. 
 
 («) BUght V. Page, 3 B. & P. 295, n. ; 
 Kirk V. Gribbs, 26 L. J., Ex. 209; 
 
 Jacobs V. Credit Lyonnais, 12 Q, B. D. 
 589. 
 
 (A) Blanche v. Eletoter, 1 Doug. 251, 
 per Lord Mansfield. See Simeon v. 
 Bazett, 2 M. & S. 94; 6 Taun. 824. 
 Cf . per Lord Denman in Spenoe v. Chad- 
 wick, 16 L. J., Q. B. 313. 
 B. 216. 
 
CHAPTER IX. 
 
 THE LOADING. 
 
 281 
 
 BEOT. 
 
 Charterer to provide cargo 248 
 
 Ship must receive at usual loading 
 place — Charterer's option where 
 several places — Notice of readi- 
 ness 249 
 
 The manner of loading — "Along- 
 side" 250 
 
 Commencement of shipowner's re- 
 sponsibility 251 
 
 Cargo to be taken from shore " at 
 
 ship's risk " 251a 
 
 Charterer must have cargo ready — 
 
 Usual storing places 232 
 
 Kay V. Meld 253 
 
 Cargo from agreed place — Known 
 
 sources of delay 254 
 
 Keadiuess of cargo in turn 234a 
 
 Charterer not excused by impos- 
 sibility 235 
 
 Quaere, when cargo is specific . . , , 256 
 Special exception clauses — ^Usually 
 
 relate to actual loading only .... 257 
 Exceptions to charterer's duty to 
 
 provide cargo 257a 
 
 Do these relate to charterer's par- 
 ticular cargo P 257b 
 
 " Accidents " — " Strikes "— 
 " Civil commotion" — "Politioal 
 
 disturbance," &c 258 
 
 "Causes beyond charterer's con- 
 trol" 258a 
 
 Exceptions do not generally apply 
 
 to time on demurrage 258b 
 
 Colliery guarantees — " Colliery 
 
 working days " 258c 
 
 Effect of interruption to loading , , 239 
 
 SECT. 
 
 Loading once completed 260 
 
 Charterer must load the ship's whole 
 
 carrying space 261 
 
 Not cabins or deck — not ballast — 
 Shipowner may load space not 
 
 chartered 262 
 
 " Merchandise " and " produce " . . 263 
 Various articles — Charterer's op- 
 tion 264 
 
 " Pull and complete cargo " — 
 
 Custom — BaUast instead of cargo 265 
 Goods to be prepared as customary. 266 
 
 Cost of preparation 267 
 
 Bight of charterer to have goods 
 
 relanded 268 
 
 Eight of shipper in general ship . . 269 
 Ship should wait the agreed time. . 270 
 
 Must take a full cargo 271 
 
 Unskilful stowage 272 
 
 Shipowner bound to stow care- 
 
 . fully 273 
 
 Where charterer appoints steve- 
 dore 274 
 
 Indorsee of bill of lading without 
 
 notice not usually affected 275 
 
 Bad stowage through ignorance . , 276 
 Where charterer ships unsafe 
 
 cargo 277 
 
 Liability of shipper shipping dan- 
 gerous goods without notice .... 278 
 No warranty of safety where ship- 
 owner has notice 279 
 
 Statutes as to dangerous goods. . . . 280 
 
 Stowage on deck 281 
 
 Statute as to deck timber cargoes. . 282 
 Statutes as to grain in bulk 283 
 
 248. The shipowner is to bring his ship to the agreed port of Charterer to 
 loading, and to the proper place in that port for taking in the ^^°^ e cargo, 
 agreed cargo. That is his undertaking. On the other hand, the 
 charterer undertakes that when she has got to the proper place he 
 
282 THE VOYAGE. 
 
 Sect. 248. will provide her with a cargo, in accordance with the charter 
 party. That is an absolute undertaking on his part, and it 
 must be performed in the proper manner and without improper 
 delay. 
 
 As to the time in which the loading ought to be accomplished, 
 and as to when the ship is considered to have arrived, so' that the 
 time begins to run against the charterer, these are questions which 
 will be more conveniently dealt with later («). At present we have 
 to consider what cargo the charterer is to provide ; what excuses a 
 failure in providing it ; and how it is to be delivered to the ship- 
 owner, and received and stowed by him. 
 
 Ship must 249. The ship must be ready to receive the cargo at the place in 
 
 usual loading which cargoes of the agreed kind are usually loaded. If there are 
 ^ "®' several usual loading places in the port, and no express agreement 
 
 has been made on the point, the charterer has, it seems, the option 
 Charterer's of requiring her to load at any one of them (S). But such an ■ 
 sevCTalplaoes. Option ought to be exercised in time to avoid putting the ship to 
 
 extra expense in moving from one place to another; otherwise, 
 
 probably, such expenses might be recovered by the shipowner from 
 
 the charterer (c). 
 
 Notice of Also the charterer must be informed that the ship is ready for 
 
 readmesB. . . j. ./ 
 
 cargo. Where he has received no notice, and has not the means 
 of knowing that the ship is ready, he is not responsible for delay 
 in. commencing the loading (d). 
 
 Where the contract is express, its terms must, of course, be 
 obeyed. In The Curfew (e) the ship was chartered to load a full 
 cargo, always afloat, in the North Dock, Swansea. But it was 
 agreed that if she was unable to complete the loading at that dock, 
 the charterers were to bear the expense of completing elsewhere. 
 The ship could have completed, always afloat, ui the North Dock ; 
 but had she done so she would have been neaped, and detained 
 several days. The shipowner moved her when partly loaded to 
 another dock. It was held that he must bear the expense of 
 bringing round the rest of the cargo to that place. 
 
 (a) Infra, Cliap. XVII. 486 ; (1897) 2 Q. B. 485. 
 
 (S) Pyman v. Dreyfus, 24 Q. B. D. (d) Stanton v. Austin, h. R., 7 C. P. 
 
 152 ; The Febx, L. B., 2 A. & E. 273. 651 ; Fairbridge v. Pace, 1 0. & K. 317 ; 
 
 (c) Ibid. See Brown v. Johnson, per Brett, L. J., in Nelson i). Bahl, 12 
 
 Car. & M. 440; of. Carlton Steamship Ch. D. at p. 881. 
 
 Co. V. Castle, &o. Co., (1898) A. C. («) (1891) P. 131. 
 
THE LOADING. 283 
 
 250. The maimer in whici. the goods are to be shipped is Sect. 250. 
 ascertained, so far as not expressly agreed upon, by reference to The maimer 
 the usages of the place, and having regard to the regulations ° °* ^' 
 and laws there prevailing (/). The ordinary practice generally 
 determines how, and by whom, the goods are to be taken along- 
 side and put on board. 
 
 Apart from special agreement, or custom, the shipper must at 
 his own expense bring the goods to the place where the ship is 
 lying. The expense of putting the goods on board and stowing 
 them is then borne by the shipowner {g) . 
 
 When the contract provides that the cargo is to be brought "Alongside." 
 " alongside " by the charterer, that means, it seems, actually to 
 the side of the ship. It is not sufficient for him to place the 
 goods on the wharf near the ship, and so throw the expense of 
 moving them to the edge of the wharf upon the shipowner (A). 
 And if the loading is done by lighters, the cost of lightering must 
 be paid by the charterer, though the vessel may not be able to lie 
 at the usual loading place (*). 
 
 In Scrutton v. Childs {K), the printed form on which a charter 
 party was made contained the clause, " to be brought to and taken 
 from alongside at merchant's risk and expense." These words were 
 not struck out; but the clause, " cargo to be loaded at Trinidad as 
 customary," was added in writing. It was customary at Trinidad 
 for shipowners to bear the expense of lighters used in loading; 
 but the master had refused to do so. Held that the written words 
 prevailed, as against the printed clause, and that under them the 
 shipowner must pay the lighterage. But that decision has, in 
 efEeet, been overruled by The Nifa {I). The stipulation that the 
 loading should be " as customary " was not really in conflict with 
 the merchant's obligation to bring the cargo alongside at his own 
 
 (/) As to Customs regulations in {h) Fletcher v. Gillespie, 3 Bing. 635 ; 
 
 United Kingdom, see Customs Laws of. Holman v. Dasnieres, 2 Times L. E. 
 
 Consolidation Act, 1876 (39 & 40 Vict. 607 ; Petersen v. Freebody, (1895) 2 
 
 c. 36, ss. 100—126). Q. B. 294; The Nifa, (1892) P. 411. 
 
 is) Eventhoughtheshipownerbebuy- ^"t ^ee Aktieselkab HeUos v. Ekman, 
 
 ing the goods from the shipper on f.o.b. (1^97) 2 Q. B. 83 ; Stephens k. Wiu- 
 
 terms, Glengamock, &c. Co. v. Cooper, tringham, 3 Com. Ca. 169. As to the 
 
 22 Sess. Ca. (4th) 672. For an illus- duty to have appUances ready for taking 
 
 tration of a contract requiring the alongside, see ««/?•«, ss. 618, 619. As to 
 
 charterer to stow the cargo (timber) on taking " from alongside," infra, o. 463. 
 
 board, after it has been delivered to the (i) Trindade v. Levy, 2 F. & F. 441. 
 
 ship, see Baldwins. Sullivan Timber Co., (A) 36 L. T. 212. 
 
 142 N. T. 279. (0 (1892) P. 411 ; infra, s. 463. 
 
284 
 
 THE VOYAGE. 
 
 CoTtimence- 
 ment of ship 
 owner's re- 
 sponsibility. 
 
 Sect. 250. expense ; for " as customary " related only to the manner and 
 place of loading {m). 
 
 251. The responsibility of the shipowner for the goods attaches 
 as soon as they are delivered to his servants. Usually the shipper 
 only brings them to the quay at which the vessel is lying, and 
 there delivers them to the mate or other officer in charge of the 
 ship ; and that is sufficient to bind the shipowner («). " But the 
 delivery must be to an officer or person accredited on board the 
 ship, it cannot be delivered to the crew at random ; but the mate 
 is such a recognized officer on board the ship that delivery to him 
 is a good delivery, and the responsibility of the ship attaches if the 
 jury believe that the mate received the goods " (o). 
 
 And the delivery must be to a person who is acting in the 
 matter on behalf of the shipowner. If they are delivered to the 
 master under a private arrangement with him, the shipowner does 
 not become responsible (p). 
 
 The subsequent expenses and risks of putting the goods into the 
 ship are generally borne by the shipowner. Subject to any express 
 agreement (g), he must provide the men and tackle to bring them 
 to the ship's side, and to place them on board. And any accidental 
 loss or damage which may happen in doing this will fall upon him 
 unless the contract relieves him of it (r). 
 
 251a. The ease of Nottebohn v. Eichter (s) illustrates the position 
 of the shipowner where he has agreed to receive the goods at a 
 distance from the ship. A ship was chartered to proceed to 
 Fecolutla, and there load a cargo of mahogany ; "the cargo to 
 be taken from the bank of the river inside the bar or river shore 
 afloat by the ship's boats and crew at ship's risk and expense." 
 After loading she was to proceed to a port of discharge, " the act 
 of God, &c., always excepted," and deliver the cargo. 
 
 The mahogany was delivered by the charterers at the river bank, 
 and taken to the ship by her boats. Forty-six logs were lost by 
 perils within the exceptions before they were got on board. The 
 
 {p) Ang. Carr. s. 146. Supra, s. 68. 
 
 Cargo to be 
 taken from 
 shore ' ' at 
 ship's risk." 
 
 {m) See infra, s. 614. 
 
 («) British Columbia Sawmill Co. v. 
 Nettleship, L. R., 3 C. P. 499 ; Cobban 
 V. Downe, 6 Esp. 41. But see as to 
 claims by indorsees of the bill of lading, 
 Thorman v. Burt, 54 L. T. 349. 
 
 (o) Per Lord EUenborough, Cobban 
 V. Bowne, 5 Egp. 41. 
 
 (?) See Fletcher 
 635. 
 
 GriEeBpie, 3 Bing. 
 
 {r) Goff ». Clinkard, cited 1 Wils. 
 282 ; Abb. (5th) p. 224 ; (llth) iv. 5, 1 ; 
 Pragano v. Long, 4 B. & 0. 219. 
 
 («) 18 Q. B. D. 63. 
 
THE LOADING. 285 
 
 question was whether the exceptions of perils applied. It was held Sect. 251a. 
 that they did, and the shipowner was not liable. 
 
 Lord Esher said : " If it were not for this exceptional clause the 
 shipowner would have nothing to do with the goods during transit 
 from the shore to the ship. Supposing that without such a clause 
 the shipowner, not being under any obligation to carry from the 
 shore to the ship, were to agree with the charterer that he would 
 do so. That would be an independent contract, and would certainly 
 not bring the goods within the charter party. In the present case 
 it is put into the charter party that the shipowner will do it, but 
 he does not undertake that he will take the goods at all risks, but 
 at ship's risk. To my miad, it is clear that this means that he 
 wlU take them at the same risk as the ship would be liable to when 
 the goods were on board. The expression 'at ship's risk' cannot 
 be strictly correct, because the ship has no risk, but I cannot doubt 
 that the meaning is that the shipowner will take the goods, and, 
 when once they are in his possession, treat them as to risks as if 
 they were on board the ship." 
 
 252. In the absence of express qualifications, the undertaking of Charterer 
 the charterer to supply a cargo is absolute (t). And further, he cargo ready. 
 undertakes absolutely that the cargo shall be ready at the place at 
 which the loading is agreed to be done. The charter party does 
 not usually deal with the manner in which the charterer is to get 
 the cargo ; it assumes that he has it in readiness at the port. Any 
 difficulty that may arise in bringing it there is outside the contract, 
 and cannot be a matter of excuse in estimating whether proper 
 despatch has been used, unless it is covered by an express stipula- 
 tion (u). 
 
 But there is sometimes a difficulty in saying where in the port Usual storing 
 the cargo is to be assumed to be ia readiness. Ordinarily the P*"®^- 
 presumption is that it is to be on the quay from which the ship is 
 to be loaded. But where it is necessary that the goods be brought 
 direct from storing places at a distance from the spot at which the 
 loading is done, that being the invariable course of business of the 
 place, it will suffice if the cargo be in readiness at those places («). 
 
 (i) Per Lord Blackburn, Postlethwaite son, 31 L. J., Ex. 1 ; Elliott v. Lord, 48 
 
 V. Freeland, 5 A. C. p. 620. L. T. 542. Cf. Fenwiok v. -Schmalz, 
 
 {u) Stephens ff. Harris, 57 L. J., Q. B. L. E., 3 0. P. 313. 
 
 203; Adams 1). Royal Mail Steam Packet (k) See per Lord Selbome, Grant v. 
 
 Co., 28 L. J., C. P. 33 ; Kearonv. Pear- Ooverdale, 9 A. C. ilO, p. 477. 
 
286 THE VOYAGE. 
 
 Sect. 253. In Hudson v. Ede (y), a cargo of grain was to he loaded in a 
 fixed time in the vessel Fria, at Sulinali, at the mouth of the 
 Danuhe. " Detention hy ioe and quarantine not to be reckoned 
 as laying days." It appeared that there were no storehouses for 
 grain at Sulinah itself, and that the course of trade was for the 
 grain to be kept higher up the river, and to be brought down in 
 steam lighters to the ships at Sulinah. The cargo for The Fria 
 was stored at Gralatz, one of the usual storing places ; and it could 
 not be brought down owing to ice in the river between Sulinah 
 and G-alatz, though the port of Sulinah itself was free. Held that 
 the course of trade was the basis of the contract, and that the 
 charterer was not bound to have the cargo in readiness at Sulinah. 
 " The conveyance by the river between Gralatz and the ship at 
 Sulinah may be considered as a part of the act of loading, and as 
 there were no storehouses for grain at Sulinah the case seems to 
 be the same as if the ice lay between the shore, from which, of 
 necessity, the grain must be brought, and the vessel in which it 
 was to be loaded, and so that the parties must have contemplated 
 that portion of the river as a part of the waters through which the 
 cargo was to be conveyed between the shore and the ship, and in 
 which detention by ice was to be provided against and excepted in 
 the charter party." ..." Whenever there was no access to 
 the ship, by reason of ice, from any one of the storing places from 
 which merchandise was conveyed direct to the ship, the exception 
 in the charter party would apply " (z). 
 
 In AUerton Co. v. Falk (a), a similar question arose in relation 
 to a salt cargo loaded at Birkenhead. By the charter party 
 " neaps " and " stoppage of navigation " were mutually excepted. 
 It appeared that all salt shipped at Liverpool or Birkenhead for 
 exportation came by flats from Winsford or Northwich, by way of 
 the river Weaver and the Mersey. The salt was stored at Wins- 
 ford and Northwich, and never at Birkenhead. There were no 
 storage places at Birkenhead with special provisions for storing 
 salt ; and though it could be brought down by rail the rates were 
 in a commercial sense prohibitive, and it was never so brought. On 
 these facts, Charles, J., held that the charterer was not liable for a 
 delay caused by the neaping of some of the flats which brought the 
 salt from his storehouses at Winsford. 
 
 (y) L. E.., 2 Q. B. 666 ; L. R., 3 judgment of the Exchequer Ohamher, 
 Q. B. 412. L. B,., 3 Q. B. pp. 4U, 415. 
 
 (2) Per Kelly, C. B., delivering the («) 6 Asp. M. C. 287. 
 
THE LOADING. 287 
 
 In Smith v. Eosario Nitrate Co. {b), the cargo was nitrate, to be Sect. 252. 
 loaded at Iquique. It was found that the customary mode of 
 loading there was by sending the nitrate down direct by rail from 
 the mines to the port and the quay, and putting it on board the, 
 vessel as acquired at the mines. A delay in loading caused by 
 civil war in the country, away from the port, which interfered with 
 the working of the railway, was held to be covered by an exception 
 of " political disturbances or impediments." 
 
 253. In Kay v. Field (c), an attempt was made to carry this Kay «;. Field, 
 doctrine a good deal further. There a cargo of rail iron was to be 
 loaded in The Cid at Cardiff, East Bute Dock, in the " customary 
 manner," by the agents of the freighters. " Detention by frost, 
 floods, &c. not to be reckoned as lay days." There were two docks 
 at Cardiff, the East Bute Dock and the West Bute Dock, connected 
 by a canal ; and the West Bute Dock was connected by a canal 
 with the Griamorganshire Canal. It appeared that the iron rails 
 shipped at Cardiff were almost entirely manufactured by five or 
 six makers, among whom were Orawshay & Co : and that all these 
 manufacturers, except Crawshay & Co., had wharves or quays in 
 the docks themselves ; while Crawshay & Co. had a wharf on the 
 Griamorganshire Canal, which they had occupied for many years. 
 The iron rails for The Cid were to be supplied by Crawshay & Co., 
 though this had not been known to the shipowner; and the 
 loading was delayed by the freezing of the canal between their 
 wharf and the docks. It was found that no reasonable means 
 could have been adopted to prevent the delay, and that no market- 
 able railway iron could have been obtained from any other source. 
 
 PoUock, B., held that the charterer was not in default. But 
 his decision was reversed by the Court of Appeal (d). Brett, L. J., 
 said (e) : " The first question is whether this charter party ought to 
 be construed in this case as if the East Bute Dock was the only 
 dock at Cardiff ; that is to say, the port there. I think, according 
 to authority, that the only place to be considered with reference to 
 the loading of the ship is the East Bute Dock, and that one has no 
 right to consider anything with regard to the West Bute Dock or 
 
 (*) (1894) 1 Q. B. 174; afBrming, (c) 8Q. B. D. 394; 10 Q. B. D. 241. 
 
 (1893) 2 Q. B. 323. See alsoFumess v. {d) Cf. Kearon v. Pearson, 31 L. J., 
 
 Forwood, 77 L. T., 95 ; 2 Com. Ca. 223. Ex. 1 ; Eenwiok v. Sohmalz, L. E., 3 
 
 But cf. Stephens v. Harris, 67 L. J., 0. P. 313. 
 
 Q. B. 203 ; infra, B. 257. (e) 10 Q. B. D. 241, at p. 247. 
 
288 THE VOYAGE. 
 
 Sect. 253. any part of the town of Cardiff. Then if a loading is to be at 
 a particular dock, when can it be considered to commence ? All 
 stipulations as to loading apply, I think, to that place at which it 
 is actually to take place, unless there is something in the charter 
 party to the contrary, and, therefore, in the present case they all 
 apply to the Bast Bute Dock. Whatever is done with the goods 
 or happens to them duriug their conveyance before they get there 
 is no part of the loading." 
 
 Liadley, L. J., said (/) : "The first part" (of the charter party) 
 " relates to the duty of the shipowner ; he is to send his ship to the 
 East Bute Dock, and there load in the customary manner. This 
 first part does not profess to define the duty of the shippers, and it 
 has no application as to the method of getting the goods to the 
 East Bute Dock ; the goods are supposed to be there, and being there 
 the shippers are to load the ship. The other part of the charter 
 party which relates to the shippers and requires the cargo to be 
 loaded as fast as the vessel can take on board and stow, contains a 
 clause exonerating the shippers in case of detention by frost and 
 the other causes there mentioned. Now we are asked to apply 
 that to a case where the detention by frost has prevented the 
 shippers from getting the cargo to the East Bute Dock. I 
 apprehend we cannot do so, and that according to the true 
 construction of the charter party, the stipulation exonerating the 
 shippers applies only to a detention from the causes there 
 mentioned after the cargo has been brought to the place of 
 loading." 
 
 Cargo from 254. On the other hand the charterer cannot be assumed to have . 
 
 agreedplaoe — . i -j. •, • 
 
 Known source the cargo ready n it is expressly to be provided from a particular 
 
 ^ ^^" place, and the charter has been made in view of circumstances by 
 
 which, as the parties know, the procuring of a cargo from that 
 
 place may be delayed. And if, in such a case, no arrangement is 
 
 made as to the time in which the loading is to be done, the 
 
 charterer will be allowed a reasonable time for getting the cargo, 
 
 having regard to the known sources of delay. 
 
 That was so held where a cargo of coals was to be loaded from a 
 
 particular colliery which was known to be temporarily ofE work, 
 
 owing to an accident to the engine boiler (g). And where the 
 
 (/) 10 Q. B. D. at p. 249. 
 
 {ff) Harris v. Bieesman, 23 L. J., Ex. 210. 
 
THE LOADING. 289 
 
 known source of delay is beyond the charterer's control, lie is Sect. 254. 
 prohaUy not liaUe for an unexpected continuance of it {h). 
 
 254a. At some ports, with regard to certain kinds of cargo, e.g., Eeadiness of 
 coal, vessels are not allowed to go into berth until their cargoes are 
 ready for them in such a position as the custom or rule of the place 
 requires. Where that is the case the charterer is in default if, by 
 not having his cargo in readiness, he prevents the ship from getting 
 a berth in the agreed, or usual, course. And he will be liable to . 
 pay for the detention, although it may be agreed that the lay days 
 are to count from the time when the vessel is in berth {i) . 
 
 On the other hand, it has been held, in the House of Lords, that 
 there is no obligation in such a ease to have the cargo constantly 
 ready, so as to enable the ship to. get a berth, if an opportunity 
 arises, out of her expected turn (It). 
 
 A cargo of coals was to be loaded at Bo'ness in sixty hours from 
 the time of the vessel (the Eiver Ettrick) being berthed and 
 ready, and notice given. The practice of the port was to load 
 coals at certain berths in turn. A number of vessels were waiting ; 
 but owing to want of cargo for those in turn one of the berths 
 became vacant, and the Eiver Ettrick might have been berthed 
 there on October 21st if her cargo had been ready. It was not 
 ready, and she was not, in consequence, berthed until October 26th. 
 In ordinary turn she could not have been berthed before that day. 
 It was held that no claim could be made. 
 
 Lord Herschell there said : — " I do not for a moment deny that he 
 (the charterer) is bound to do whatever is reasonable on his part 
 with a view of getting the ship berthed at the earliest period that 
 is reasonably possible ; and it may be that in certain circumstances, 
 owing to the custom of the port, owing to the contingencies of this 
 kind being very, common, owing to the provision that is made to 
 facilitate cargo remaiaing there for a few days, and a variety of 
 other circumstances, it would be the duty of the shipper to be 
 prepared by having his cargo there to enable the vessel to obtain 
 an earlier berthing than would otherwise have been obtaiued. All 
 that, I say, may be the case ; but no such facts are found in the 
 present case" (l). 
 
 [h) Per Parke, B., ihid. at p. 213. (A) Little v. Stevenson, (1896) A. C. 
 
 (i) LiUy V. Stevenson, 22 Sess. Oa. 108 ; afarming 22 Sess. Oa. (4th) 796. 
 (4th) 278. « (0 (1896) A. C. at p. 119. 
 
 c. — c. u 
 
290 THE VOYAGE. 
 
 Sect. 255. 255. The cliarterer is not, generally, excused from providing a 
 Charterer not Cargo by the fact that it has hecome impossible for him to do so, 
 S^Tsibmty. whether this arises from natural causes or from acts of the govern- 
 ment of the place at which the shipment is to take place. Though, 
 as we have seen, he is excused if the loading has been made un- 
 lawful by the government of this country {m). 
 
 To an action against a charterer for not loading a full cargo of 
 guano at the Chincha Islands, it was no defence that the government 
 of Peru would not allow more than a limited quantity, less than a 
 full cargo, to be loaded on the ship : there being no allegation that 
 she was not in a proper condition to load a full cargo («). And 
 the same was held where the ship was to load a cargo of barley at 
 Liebau, and the loading was prevented by an order of the Russian 
 Grovernment prohibiting the export of barley (o). 
 
 So, too, where intercourse with the ship was prohibited by the 
 law of the port in consequence of a pestilence prevailing in the 
 place (p) ; and where the loading was prevented by a refusal of 
 permit at the custom-house, owing to an embargo (q) : unless the 
 authority of these cases is doubtful, having regard to the dicta in 
 Cunningham v. Dunn (r) as to a joint inability to perform the 
 charter party. 
 
 In HiUs V. Sughrue (s), a shipowner who had undertaken to load 
 at the island of Ichaboe a full and complete cargo of guano, free 
 from dirt and rubbish, by the ship's boats and tackle, and by the 
 labour of the crew, was held liable to the charterer for not doing 
 so, although there was not any guano free from dirt and rubbish to 
 be found on the island. 
 
 Specific cargo. 256. But where the obligation is to load specific goods, and these 
 goods are destroyed before the time for loading has arrived, with- 
 out fault of the charterer, it may be that his obKgation is at an 
 end (t) ; or if the contract were to load part of a specific crop, or 
 part of the produce of a particular mine, and that crop or mine 
 failed, without default of the charterer, in such a case also he 
 would probably be excused his failure to load (u) . The presumption 
 
 (m) Supra, sa. 237 et. seq. (s) 15 M. & W. 253. Of. CUfford v. 
 
 (k) Kirk D. aibbs, 26 L. J., Ex. 209. Watts, L. E., 5 C. P. 577. 
 
 (o) Blight V. Page, 3 B. & P. 295, u. (i) Taylor v. CaldweU, 32 L. J., Q. B. 
 
 {p) Barker v. Hodgson, 3 M. & S. 267. 164. 
 
 (?) Sjoerds v. Lusoombe, 16 East, 201. («) Howell v. Coupland, L. R., 1 Q. B. 
 
 (r) 3 C. P. D. 443; mpra, ss. 228, 462; 1 Q. B. D. 268. Cf. Ashmore v. 
 
 229. Cox, (1899) 1 Q. B. 436. 
 
THE LOADING. 29X 
 
 in such oases is that the parties iiitended their contract to depend Sect. 256. 
 upon the existence of the contemplated subject-matter. " Where, 
 from the nature of the contract, it appears that the parties must 
 from the beginning have known that it could not be fulfilled, 
 unless some particular specified thing continued to exist ; so that 
 when entering into the contract they must have contemplated such 
 continued existence as the foundation of what was to be done ; 
 then, in the absence of any express or implied warranty that the 
 thing shall exist, the contract is not to be construed as a positive 
 contract, but as subject to an implied condition that the parties 
 shall be excused in case, before breach, performance becomes 
 impossible from the perishing of the thing, without default of the 
 contractor" {x). 
 
 257. Special clauses are often iaserted to protect the charterer from Special excep- 
 liabUity iu case of delay or prevention of the loading. The ordinary 
 clause of exceptions does not, as we have seen {y), always apply to 
 him. 
 
 The presumption being that the cargo is, or will be, ready and UsuaUy relate 
 waiting at the proper place from which to take it on board (2), loading only, 
 these clauses protecting the charterer are usually read to apply 
 only to matters which prevent or delay the actual loading ; and not 
 to difficulties ia getting the cargo, or bringing it to the place of 
 loading. Thus, in Kay v. Field (a), the exception " detention by 
 frost, floods, riots, and strikes of workmen, accidents to machinery 
 or quarantine, not to be reckoned lay days," was held not to apply 
 to a detention of the cargo by frost outside the particular dock in 
 which the vessel was to load. 
 
 In Grant v. Coverdale {b), cargo was to be supplied as fast as 
 the steamer could receive it, and time was to commence from the 
 vessel being ready to load, " except in case of hands striking 
 work, or frosts or floods, or any other unavoidable accidents pre- 
 venting the loading and unloading ; in which case owners to have 
 the option of employing the steamer in some short voyage trade 
 until receipt of written notice fi-om charterers that they are ready 
 to resume employment without delay to the ship "(c). It was 
 
 (a;) Per Blackburn, J., in Taylor i). (J) 9 A. C. 470 ; afBrming 11 Q. B. 
 
 CaldweU, 32 L. J., Q. B. at p. 166. p. 543. 
 
 ,s c ' \r^' {») The clause was a printed one. See 
 
 («) Supra, 8. 252. ^ ' ^ 
 
 {») 10 Q. B. D. 241, cited supra, <^e observation of Lord Selborne upon 
 
 s. 263. Cf. Hudson «;. Ede, supra, s. 252. this, 9 A. C. at p. 474. 
 
 u2 
 
292 THE VOYAGE. 
 
 Sect. 257. held that this did not excuse delay, caused by frost, in bringing" 
 the cargo to the agreed loading dock. " It would appear to 
 me to be unreasonable to suppose, unless the words make it 
 perfectly clear, that the shipowner has contracted that his ship 
 may be detained for an unlimited time on account of impediments, 
 whatever their nature may be, to those things with which he 
 has nothing whatever to do, which precede altogether the whole 
 operation of loading, which are no part whatever of it, but 
 which belong to that which is exclusively the charterer's busi- 
 ness " id). 
 
 In Stephens v. Harris (e), a cargo of iron ore was to be loaded 
 at Bilbao, at the rate of 400 tons per working day, " weather 
 permitting, no demurrage to be paid the vessel in case of any hands 
 striking work, frosts or floods, &c., which may hinder the loadiug 
 or discharge of the said vessel." It appeared that on the river at 
 Bilbao there are several wharves where ships load from spouts. 
 These wharves are connected by railways with places of deposit for 
 the ore some miles away. There were no places of deposit at the 
 wharves. It further appeared that ships are also loaded out in the 
 river, from lighters which bring the ore from other places of deposit 
 up the river. 
 
 The ship was loaded at one of the wharves, and the loading had 
 been delayed by bad weather, and other causes, which hindered the 
 railway transit from the places of deposit. It was held by the 
 Court of Appeal that, assuming these causes to be within the 
 terms of the exception, still the charterer was not relieved from 
 paying for the delay. For the transit by railway was not part 
 of the loading within the meaning of the clause. Hudson v. 
 Ede (/) was distinguished, on the ground that there had there been 
 only one mode of loading the cargo {g) . 
 
 So, it has been held in America that an exception of " drought,'* 
 in a charter for a timber cargo, does not excuse a charterer who has 
 
 {d) Per Lord Selborue, 9 A. C. at p. wtile it is going on." 
 
 475. Pollock, B., whose judgment on (e) 67 L. J., Q. B. 203. See the 
 
 the main question in Grant v. Coverdale comment on this case in Fumess v. For- 
 
 ■was reversed, held that the exception wood, 2 Com. Oa. 223, at p. 227. 
 
 included causes which arose after the (/) L. E., 2 Q. B. 566 ; L. E., 3 Q. B, 
 
 loading had commenced, as well as 412 ; supra, s. 252. 
 
 causes which prevented its commence- (g) 67 L. J., Q. B. pp. 207, 209. Cf. 
 ment. " 'Preventing the loading' means Allerton Co. „. Falk, 6 Asp. M. C. 287 ; 
 preventing in the sense of stopping it, The Eookwood, 10 T. L. E. 314 ; Fur- 
 either before it has been commenced, or ness v. Forwood, 2 Com. Ca. 223. 
 
THE LOADING. 293 
 
 ■been prevented by want of water from bringing his timber down sect. 257. 
 to the usual place of storage Qi). ' 
 
 257a. But, though there is a presumption that these exception Eioeptions to 
 clauses relate only to the work of loading, that, as we have seen {h), duty to 
 may include the work of bringing the goods from their storing car^*^^ 
 places, or from the places at which they are produced, to the spot 
 at which the actual loading is done. And, further, the form of the 
 clause frequently shows that its scope is not meant to be confined to 
 the mere loading. It has become not uncommon, especially with 
 mineral cargoes, to except causes which may prevent or delay the 
 getting of the agreed cargo, or the bringing it to the loading 
 place. This is done sometimes in express terms. At other times 
 it is done inferentially, by including causes which plainly refer to 
 the work of getting or bringing down the cargo, and not to the 
 work of putting it on board ; e.g., " accidents to mines or railways." 
 
 In Fenwick v. Schmalz (i) exceptions of " riots " and " strikes," 
 in a coal charter, were considered to relate to bringing the coal from 
 the pit, and therefore to have the wider meaning. 
 
 In Petersen v. Dunn (k), an exception of " strikes and lock-outs 
 of pitmen and others " excused delay of the charterers in getting 
 a cargo, caused by a general strike of miners, though that only 
 occurred after seven of the twelve lay days had elapsed. 
 
 In Furness ®. Fprwood (^), "stoppages of trains, miners, and 
 workmen " was held to apply not only to causes preventing the 
 shipment of ore by railway trucks, but also to causes which pre- 
 vented the ore from being brought to the port (»?). 
 
 257b. In such eases a question of much importance arises, as to Do exoeptiona 
 whether the exceptions relate to the particular cargo which the charterer's 
 charterer has in fact arranged to ship, and to the steps which he P^^rtioular 
 must take in order to bring down that cargo to the place of ship- 
 ment. Must the charterer show that all practicable modes of getting, 
 and bringing down, any cargo of the kind agreed upon have been 
 prevented by the excepted causes ? 
 
 If the charter party provides that the cargo shall come from 
 some particular place, say from a mine, colliery, or factory which is 
 
 (A) Sorensen v. Keyser, 52 Fed. Rep. (?) 2 Com. Ca. 223. 
 
 163. (m) See also Riohardsons v. Samuel, 
 
 (A) Supra, s. 252. (1898) 1 Q. B. 261 ; 66 L. J., Q. B. 679. 
 
 (i) L. B. 3 C. P. 312, p. 316. Cf. Gardiner v. Maofarlane, 20 Seas. Ca, 
 
 • (A) 1 Cora. Ca. 8. (4tli) 414.- 
 
294 THE VOYAGE. 
 
 Sect. S57b. named, or is to be named, exceptions wliicli relate to getting or 
 bringing down tbe cargo must be read with reference to that place. 
 But, when the place from which the cargo is to come is not 
 specified, the general rule is that the charterer is not excused unless 
 aU practicable modes of loading have been prevented (w). 
 
 In The Eookwood (o) it was held by the Court of Appeal, 
 afiirming Sir F. Jeune, that a mere notice to the shipowner of the 
 place from which the cargo would come, though given before the 
 charter party was signed, did not make the exceptions relate to that 
 particular cargo. The ship was to load a cargo of bricks and 
 cement at Antwerp, subject to an exception of " strikes or cessation 
 of work on the part of pitmen or other hands engaged in the 
 getting, carriage, or loading of the said cargo, from whatever cause, 
 or by reason of accidents in mines or to machinery, or any events 
 beyond the control of the charterers or shippers." The cargo 
 which the charterers intended to ship was of a peculiar make and 
 quality, produced at North's Portland Cement Works, near 
 Antwerp, and not procurable elsewhere. They informed the ship- 
 owners, before the charter party was made, that North's works 
 would load the ship. The only practicable way of bringing the cargo 
 to Antwerp from those works was by canal. When the ship reached 
 Antwerp one lighter with part of the cargo was waiting for her ; 
 but the other lighters were either frozen in the canal or prevented 
 from getting down, by ice, and the ship was consequently delayed. 
 It appeared, however, that a cargo of bricks and cement might 
 have been obtained by the charterers, and loaded at Antwerp, not- 
 withstanding the frost ; and as that was the case, and as the charter 
 party did not specifically refer to bricks, &c., from North's 
 works, it was held that the charterers were not protected by the 
 exceptions {p). 
 
 [n) The Eook-wood, 10 T. L. E. 314 ; he needs the protection of an exception 
 
 and see Stephens v. Harris, 57 L. J. clause, he needs it with reference to that 
 
 Q. B. 203 ; Hudson v. Eds, L. E. 3 cargo. The possibility of being able to 
 
 Q. B. 412, p. 414. buy and ship another cargo, from else- 
 
 ip) 10 T. L. E. 314. Cf. Harris v. ■where, will seldom be of service to him. 
 
 Dreesman, 23 L. J., Ex. 210. Moreover, the place of origin is often 
 
 {p) This decision greatly limits the not definitely arranged when the charter 
 
 value to the charterer of such exception party is made, and, so cannot be stated 
 
 clauses as we are considering. A mer- in the charter party. In such cases 
 
 chant charters a ship for the purpose of some general words seem to be needed, 
 
 carrying definite cargo, or cargo which making the exceptions apply to the 
 
 wm be definitely arranged for before cargo which the charterer shall have 
 
 the ship arrives at the loading place. If contracted for. See DobeE v. Green, 
 
THE LOADING. 295 
 
 On the other hand, where the ship was to load a cargo of coals Sect. 257b. 
 "in one or more lots as ordered, at the berth or berths pointed out 
 by charterers' agents," it was held that a strike at the colliery at 
 which the vessel was booked by the charterers was within an 
 exception of " strikes delayingthe obtaining, providing, loading, or 
 discharging of cargo " ; and the charterers were excused (q). 
 
 258. These exception clauses, relating to the charterer's work of 
 loading or discharging, take various shapes. The following are 
 some instances which have given rise to decisions. 
 
 In Fenwick v. Schmalz (r), charterers agreed to load a ship "Accidents." 
 with coals " in regular and customary turn except in case of riots, 
 strikes, or any other accidents beyond their control which might 
 prevent or delay the loading." They were held liable for a delay 
 caused by snow ; snow not being an accident within the clause. 
 
 In Stephens v. Harris (s), it was held that "strikes" and "Strikes." 
 " striking work " did not cover stoppage of work by miners through 
 fear of cholera, but only " striking in the ordinary sense of the 
 word against employers — standing out for more wages on the part 
 of the workmen." And in Eiehardsons v. Samuel (t), it was said 
 by the Court of Appeal that " strikes " and " lock-outs " refer to 
 labour disputes, and to difficulties forced upon the person claiming 
 to be protected ; and not to time lost by the charterer's agent dis- 
 missing men in his own interest. 
 
 An exception of " strikes " has been held to excuse the 
 charterer from sending lighters to receive cargo where a strike has 
 prevented the lighters of the port from being available (m). But 
 the exception wUl not protect a charterer where he could by 
 reasonable exertions have avoided the strike, or its consequences (x). 
 
 In Letricheux v. Dunlop (p), the exception was of " detention hy "Detention 
 raihoays of whatever nature and kind soever during the said voyage ■'' ^^^ ^^J^- 
 always mutually excepted ; " delay occm-red at Port Glasgow, the 
 port of discharge, through the refusal of the Caledonian Railway 
 Company to supply trucks, into which the cargo was, by the terms of 
 
 (1900) 1 Q. B. 526 ; Gardiner v. (i) (1898) 1 Q. B. 261. 
 
 Maofarlane (20 Sess. (4th) 414), infra, („) T^e Alne Holme, (1893) P. 173. 
 
 B. 2S8a 
 
 (( 
 278 
 
 (?) Lilly V. Stevenson, 22 Sess. (4th) W ^^ ^"^'"^'^ "" ^«'^^i<='^. (l^^*) 1 
 
 g ^ ' Q. B. 179, p. 185 ; and per Vaughan 
 
 W L K 3 C P 313 WiUianis, J., Budgett v. Binnington, 
 
 («) In the Q. B. D. 57 L. T. 618, per ^^ ^- ^- ^■' P" ^^''■ 
 
 Lord Coleridge, p. 619. (y) 19 Sess. (4th) 209. 
 
296 THE VOYAGE. 
 
 Sect. 258. the charter party, to be delivered. That delay was held to be covered 
 by the exception, although the corapany's refusal was due to 
 the charterers having kept too many trucks unloaded at their 
 works, in breach of the company's regulations, 
 m^m " °" -"-^ '^^^ Village Belle (s) the exceptions included " civil commo- 
 tion, strikes, riots, stoppage of trains, &c." The port of loading 
 was Bilbao, and that place was at the time threatened by CarUst 
 forces, who cut the railway for some days. But Sir E. Phillimore 
 held that, to excuse the charterer for delay in the loading, it was 
 not sufficient to show a general civil disturbance, and a stoppage 
 of the railway for a short period : it must be shown that there was 
 a disturbing cause of such a character as to prevent, and that it 
 actually did prevent, the loading. 
 "Political dis- On the other hand, " political disturbances or impediments " was 
 turtances." j^^^^^^ ^^ g^.^j^ ^_ Eosario Nitrate Co. (a), to cover delay by the 
 
 impossibility of working railways owing to civil war, which was 
 going on in the country inland; and also to cover delay at a 
 coaling port (Coronel) owing to a fresh demand for export duty on 
 the cargo, by the Grovernment at that place, after the duty had 
 been already paid to the competing Government at the loading 
 port, Iquique (b). 
 
 Causesbeyond 258a. The exception is sometimes in more general terms, as 
 " unavoidable hindrances," or " causes beyond charterer's control." 
 
 In Gardiner v. Macfarlane (e), the exception was of " strikes, 
 lock-outs or accidents at the colliery directed, or on railways, or 
 any other hindrances of what nature soever beyond the charterers' 
 or their agents' control." Delay occurred in supplying coal from 
 the colliery directed, owing to pressure of other business there 
 which sprung up in consequence of a strike at a neighbouring 
 colliery. The charterers were not excused. It was considered 
 that they might have made arrangements for a supply to be given 
 in proper time, and had not done so. 
 
 But Lord Trayner, delivering the leading judgment, also put 
 the decision on a broader ground. " The fact that the charterer 
 could not procure the commodity in the market (it not being there 
 for sale) which he had bound himself to put on board the chartered 
 vessel, when that vessel was ready to receive it, is no excuse, on 
 
 (z) 30 L. T. 232. (i) Of. MoLeod v. 1,600 tons of nitrate 
 
 («) (1894) 1 Q. B..174 ; (1893) 2 Q. B. of soda, 55 Fed. Eep. 628. 
 323, (c) 20 Sess. (4th) 414. 
 
THE LOADING. 297 
 
 the ground of ' hindrances over which he had no control,' for the Sect. 258a. 
 non-performance of his ohligation ; any piore than would be the 
 excuse that having become bankrupt he had no money to purchase 
 the commodity, it being procurable in the market " (d). 
 
 In Eiichardsons v. Samuel (e) the exception was (amongst other 
 things) of " strikes, lock-outs, accidents to railway, factories or 
 machinery, .... or other causes beyond charterer's control." 
 The cargo of oil, in cases, was to be shipped at Batoum, at a certain 
 rate, from a certain factory. It could not be loaded at once 
 because, owing to an accident to the railways, there was no oil in 
 Batoum when the ship arrived. When oil began to come in 
 again the packing of it in cases was delayed, because the packers 
 had been allowed to disperse, and had to be got together agaia. 
 This delayed the loading. Also the loading was delayed because 
 other ships which had arrived at Batoum, to the same shippers, 
 before the plaintiffs' ship, were loaded before her. Neither excuse 
 availed the charterers. The loading time was held to begin as 
 soon as there was sufficient oil at the factory. 
 
 In Crawford v. Wilson (/), the plaintiffs' vessel was one of 
 several with cargoes of coal, chartered by the defendants, which 
 lay at Eio during the revolution in 1893 and 1894. Owing to the 
 revolution the coal could not be landed, and discharging into 
 lighters was greatly interfered with. But portions of the cargoes 
 were lightered from the several vessels, by turns, to ships which 
 required bimker-coals. This was done under arrangements made 
 by the Commander of a British squadron, with the Brazilian 
 Government, and with the insurgent leader. The plaintiffs con- 
 tended that the defendants could have received the cargo into 
 lighters in the time stipulated by the charter, and would have 
 done so but for the discharging done from the other ships, and 
 that they were not therefore " unavoidably hindered." But the 
 Court of Appeal, affirming Mathew, J., held the charterers excused. 
 Lord Esher said : " If, by something happening at the port of 
 discharge which the defendants could not possibly avoid, they could 
 not take delivery without doing something which it was wholly 
 unreasonable that they should be called upon to do, they would be 
 hindered ; although by doing the unreasonable thing they might 
 possibly have taken delivery." 
 
 (<i) Per Lord Trayner, 20 Seas. Ca. {e) (1898) 1 Q. B. 261. 
 
 (4th), p. 427. (/) 1 Com. Ca. 164, 277. 
 
298 
 
 THE VOYAGE. 
 
 Sect. S58b. 
 
 Exceptions do 
 not generally 
 apply to time 
 on demurrage. 
 
 Colliery 
 guarantees. 
 
 "CoUiery 
 
 working 
 
 day." 
 
 258b. When a ship is on demurrage, the time for which de- 
 murrage has to be paid generally runs on continuously; the excep- 
 tions to the charterers' obligation usually cease to apply. 
 
 This may -however be varied by the terms of the demurrage 
 clause {g) . Thus in Lilly v. Stevenson (h) , the cargo of coals was to be 
 loaded in sixty hours: "if longer detained demurrage to be paid at 
 12s. 6d. per hour unless detention arises from a look-out, strike, &c." 
 The vessel could have been berthed on November 14; but there was 
 no cargo ready for her until November 22, and she was therefore 
 only berthed on that day. On November 23 a strike took place 
 at the colliery at which the vessel had been booked ; and in conse- 
 quence the loading was not completed till December 11. It was 
 held that the lay days began on November 14 ; but that no 
 demurrage was payable for the period, commencing November 23, 
 during which the colliery was on strike, as that was covered by the 
 exception. 
 
 258c. In the coal trade, the conditions under which a ship is 
 loaded are commonly determined by a document known as a 
 colliery guarantee. The charter party stipulates that the loading 
 shall be done in a certain number of days " as per coUiery 
 guarantee " ; and this guarantee is one obtained, or to be obtaiaed, 
 by the shipper from the colliery which is to supply and ship the 
 coal for him. The effect is that the terms of the colliery guarantee 
 as to the commencement and duration of the lay days, and the 
 exceptions excusing failure to load, govern the obligations as 
 between charterer and shipowner («'). 
 
 In Olink v. Hickie (2) {k), the charterers undertook to load at 
 Barry, "in days to be arranged, colliery working days, as per 
 colliery guarantee form, a full and complete cargo " of Femdale 
 coal. The guarantee in the form referred to, fixed the lay days at 
 fifteen, and also fixed a rate for the supply of stiffening ; and it 
 provided that demurrage should be upon a certain scale payable 
 2?er colliery working day. The guarantee contained a series of 
 clauses headed, " The following exceptions not to be computed as 
 
 (jj) See Clink 41. Hickie (2), 4 Com. Ca. 
 292 ; Saxon Ship Co. v. Union Steam- 
 ship Co., 4 Com. Ca. 298. Cf. Tyne, &c. 
 Co. V. Leech, 6 Com. Ca. 155. 
 
 (A) 22 Sess. (4th) 278. 
 
 («) Monsen v. Macfarlane, (1895) 2 
 Q. B. 562 ; Saxon Ship Co. v. ITnion 
 
 Steamship Co., 4 Com. Ca. 298. As to 
 incorporation of an arbitration clause in 
 the coUiery guarantee, see Weir v. Pirie, 
 3 Com. Ca. 263, 271 ; CUnk v. Hickie 
 (1), 3 Com. Ca. 276. 
 
 (A) 4 Com. Ca. 292 ; affirming 3 Com. 
 Ca. 280. 
 
THE LOADING. 299 
 
 part of the aforesaid loading or stiffening time unless used," Sect. 258c. 
 among whioL. were : — 
 
 " All holidays, whether puhlio holidays or colliers' holidays, 
 whereby work is suspended either at the docks or at our 
 coUiery or collieries. Time from 6 p.m. on Saturday till 
 7 a.m. on Monday. . . . Any time lost through riots, 
 strikes, . . . ." 
 
 "For the purpose of this guarantee all holidays and full 
 day stoppages at our collieries shall he deemed to commence 
 at 5 p.m. the working day preceding, and to end at 7 a.m. 
 the working day following such hoKday or stoppage." 
 
 " In case the vessel, whether on demurrage or not, can 
 complete loading the cargo by 5 p.m. on the day preceding 
 any Sunday, holiday, or other stoppage of work, and such 
 completion is prevented otherwise than by our act or default, 
 time shall not count either for loading or demurrage until 
 7 a.m. on the day on which work is resumed." 
 
 The fifteen lay days expired on March 12 ; the loading was not 
 completed till April 13 ; and the question was as to what deductions 
 were to be made from this period of thirty-two days, in calculating 
 the demurrage to be paid. That turned upon the meaning, in the 
 colliery guarantee, of " colliery working day." It was held that 
 the document showed that Sundays and holidays were to be 
 excluded ; also that the clause beginning " For the purpose of this 
 guarantee " applied to the time on demurrage, as well as to the lay 
 days ; so that the periods of seven hours before and after a Sunday, 
 or holiday, were to be also excluded. 
 
 In Saxon Ship Co. ». Union Steamship Co. (/), the colliery 
 guarantee was in the same form as in Clink v. Hickie (supra). 
 The lay days expired on March 31. On April 9 a strike com- 
 menced at the colliery, and no work was done there until after 
 June 17. On May 24 the colliery company gave notice that owing 
 to the strike they could not load the ship. No part of the cargo 
 had been shipped, and the ship left the port on June 17 under 
 another charter at a lower rate of freight. The question was 
 whether demurrage was payable during the period from April 9 to 
 June 17. The Court of Appeal, reversing Lord Eussell, L. C. J. (m), 
 held that demurrage was not payable. The language of the colliery 
 
 (Z) 4 Com. Oa. 298. (m) i Com. Oa. 29. 
 
30Q 
 
 THE VOYAGE. 
 
 Practice as to 
 guarantee. 
 
 Option as to 
 colliery. 
 
 Sect. S58o. guarantee showed that " days on which the Femdale Collieries are 
 not worked are not to be treated as working days. The colliery 
 owners could not, of course, avail themselves of this language to 
 protect themselves from the consequences of a stoppage attributable 
 to their own unjustifiable acts or defaults ; but excluding stoppages 
 so caused, days on which the collieries are not worked and cannot 
 be worked are not colliery working days within the meaning of this 
 particular agreement" («). 
 
 It frequently happens that the colliery guarantee is not obtained 
 by the shipper until after the charter party has been made ; and 
 sometimes the number of days is left to be arranged by the 
 charterer with the colliery. The form of guarantee obtained, if 
 not agreed, must be one usual at the port (o). 
 
 In Dobell v. Green {p), the ship was chartered to load a cargo of 
 steam coals " as ordered by charterers " ; to be loaded " as 
 customary, but subject in all respects to colliery guarantee, in {blank) 
 colliery working days as may be arranged ; any claim for demurrage 
 to be settled with coUiery direct." The obligation to load was 
 subject to an exception of strikes of pitmen. In February, 1898, 
 shortly after making the charter party, the charterers agreed for a 
 cargo of H. coal to be loaded under usual colliery guarantee. On 
 April 21 the ship was stemmed with the Glamorgan Coal Co., the 
 owners of the H. Colliery, and the shipowners were informed that 
 she would be loaded by a colliery then on strike. On April 27 the 
 charterers handed them a guarantee by the Glamorgan Coal Co. It 
 was in the form used in Clink v. Hickie {supra), and contained the 
 exception of strikes. A general strike of colliers in South Wales 
 had begun on April 6, and lasted tUl the end of August. But 
 about 15 per cent, of the collieries remained at work, so that 
 South Wales coal was procurable. The question was whether the 
 charterers were bound to load from some other colliery, and to 
 obtain some other guarantee. Held by the Court of Appeal, 
 afiirming Bigham, J., that they were not. The guarantee would 
 have been good, within the charter party, if obtained before the 
 strike commenced ; and the fact that it was obtained after made 
 no difference. 
 
 t"i^'^*^°'^ 259. An enforced interruption of the loading wiU not excuse 
 the charterer from completing it, unless the effect has been to 
 
 - (») Per SirN. Lindley, M. R., 4 Com. 
 Ga. p. 305. 
 (o) As tQ the " usual " form at 
 
 Grimsby, Shamrock Steamship Co. v. 
 Storey, 6 Com. Ca. 21 ; 4 Com. Oa. 80. 
 {p) (1900) 1 Q. B. 526. 
 
THE LOADING, 301 
 
 change the commercial character of the voyage. During the Sect. S59. 
 loading of a cargo of cotton a fire broke out on board, and the 
 master scuttled the vessel to put the fire out. Part of the cargo 
 had been put on board, and another portion had been delivered 
 alongside and bills of lading signed for it. The vessel was raised 
 and repaired within two months, which was as soon as it could 
 be. The damaged cargo was sold, and the cotton that had been 
 lying alongside was forwarded by the master in another ship. It 
 was held that the charterer was bound to complete his ship- 
 ment, by providing so much cotton as would, together with the 
 quantities shipped and delivered alongside before the fire, have 
 made up a full cargo {q). 
 
 In Aitken v. Emsthausen (r) a fire occurred when the ship was 
 partly loaded, and destroyed some of the cargo on board. It was 
 held that the charterers were bound to supply the remainder of 
 the cargo, notwithstanding an exception of fire ; but were neither 
 liable nor entitled to ship goods in place of those which had been 
 burnt. 
 
 260. But if the loading has been once completed the charterer Loading once 
 has discharged his obligations, even though it may become neces- 
 sary to unload again. As where a cargo had been loaded within 
 the bar of the port of Hjesting, and the ship, having sailed, 
 could not cross the bar, so that part of her cargo had to be 
 unloaded. It was held that the charterer was not bound to load 
 that part over again, outside the bar, though he would have 
 been bound to do so had not the cargo been already once 
 shipped (s). 
 
 A ship having loaded about three-fourths of a cargo of wheat 
 at a quay in the Hiver Orwell, left the quay and proceeded down 
 the river to take in the remainder, in accordance with the usual 
 practice. On the way she got aground, and the master required 
 the charterers to unload the wheat already shipped, that he might 
 have the ship examined. They did this at their own expense, 
 and, as time was important, they despatched the whole intended 
 cargo to its destination in other vessels. A few days after, the 
 ship having been repaired, the master asked for cargo, but none 
 was shipped. It was held that the charterers might refuse to load 
 
 (g) Jones '». Holm, L. E., 2 Ex. 335. Q,. B. 46. 
 
 (V) (1894) 1 Q. B. 773; of . Weir v. («) General Steam NaT. Co. ». Slipper, 
 
 Girvin, (1899) 1 Q. B. 193 ; (1900) 1 31 L. J., 0. P. 185. 
 
302 
 
 THE VOYAGE. 
 
 Sect. 260. any further ; apparently on the ground that the master had put 
 an end to the charter party {t). 
 
 Charterer ^^^" ^^^ charterer's engagement usually is to load "a full and 
 
 must load the complete carffo not exceeding what she can reasonahly stow and 
 ship's whole '■ ° ° • • j j? ■< )> 
 
 carrying carry over and above her tackle, apparel, provisions and lumiture ; 
 
 the cargo to be either of lawful merchandise generally, or of some 
 
 named kinds. And where the charterer is to provide a cargo, the 
 
 engagement to load a full cargo will generally be implied. But 
 
 in each case the whole contract must be looked at, to ascertaia 
 
 whether the charterer is bound, or is entitled, to load the whole 
 
 ship [u). 
 
 In Miller v. Borner («), the charterers were to load " a cargo of 
 ore, say about 2,800 tons." The ship could carry 2,880 tons; and 
 the charterers shipped 2,840. It was held that they had performed 
 their obHgatio'n ; 2,840 tons, though not a full cargo, was a 
 " cargo " of the kind indicated. 
 
 Where the obligation is to load as much cargo as the ship can pro- 
 perly carry, it will not suffice to load goods of a tonnage equal to 
 the ship's tonnage, as described in the charter party. Where, for 
 example, she was described to be " of the burden of 261 tons or 
 thereabouts," but could in fact carry 400 tons, the charterer was 
 held bound to load the full 400 {y). 
 
 On the other hand, where the promise was to load a " fuU and 
 complete cargo, say about 1,100 tons," it was held that the words 
 " say about 1,100 tons " were intended as a guide to the charterer. 
 The ship could in fact carry 1,210 tons ; but the charterer was 
 held to be only bound to load " about 1,100," and 3 per cent, 
 excess was considered to represent the effect of " about." " We 
 can give effect to all the words used by holding the meaning 
 to be that the shipowner will be content with a cargo of 
 about 1,100 tons if the ship will hold more ; and if she can only 
 carry less, of course the undertaking of the charterer would be 
 fulfilled by loading a complete cargo " (s) . 
 
 Where a steamer was to load " a f uU and complete cargo of rails 
 . . . say about 2,850 tons, and not more than 3,000 tons," Mathew, J., 
 
 (<) Strugnell v. Eriederiohsen, 12 [y) Hunter v. Ery, 2 B. & Aid. 421 ; 
 
 C. B., N. S. 452. Thomas v. Clarke, 2 Stark. 450. 
 
 (m) See CafBn v. Aldridge, (1896) 2 («) Morris v. Levison, 1 C. P. D. 155. 
 
 Q. B. 366, 648 ; Miller v. Borner, 82 Cf . MoLay v. Perry, 44 L. T. 152 ; 
 
 I'- T. 258. MoConnel v. Murphy, L. E., 5 P. C. 203 ; 
 
 («) 82 L. T. 258. Bourne v. Seymour, 24 L. J., 0. P. 202. 
 
THE LOADING. 303 
 
 held that she was entitled to have the full 3,000 tons if she could Sect. 261. 
 
 carry them (a). 
 
 In Potter v. New Zealand Shipping Co. (b), the ship was to load 
 a part cargo of ore in New Caledonia for the plaintiffs, and then to 
 proceed to New Zealand, where the defendants were to load " a 
 cargo of any sort of lawful merchandise, say 1^ tons, as specified 
 below." Freight to be 30s. per ton of forty cubic feet. And the 
 plaintiffs guaranteed " between 5,000 and 5,600 tons space of 
 forty cubic feet fit for dry and perishable cargo." The ship arrived 
 in New Zealand with a space of 5,450 tons of forty cubic feet. 
 The defendants loaded heavy cargo which put the ship down to 
 her marks, but did not fill the space. It was held that they were 
 nevertheless liable for freight on 5,450 tons. 
 
 262. The charterer is only bound to load the holds or other parts Not cabins or 
 of the ship ordinarily used for containing goods, even though 
 additional goods might safely be stowed in her, as in the cabins or 
 on deck. And, on the other hand, he is not entitled to load goods 
 in the cabins (c) or on the deck (d), even though that would be 
 safe. Should he do so, in the absence of express agreement- or 
 custom giving him the right, he will be liable to pay freight on 
 those goods at the current rate at the time of loading, without 
 regard to the charter party rate (e). 
 
 In NeUl V. Ridley (/), the charter gave the charterers the right 
 to load " the full reach of the vessel's hold from bulkhead to bulk- 
 head, including the half-deck," for a lump sum freight. It was 
 held that the shipowner was entitled to the freight on some cattle 
 shipped on the deck by third persons under agreement between 
 them and the charterers. 
 
 Further, a charterer under a charter party by which a lump 
 freight is payable for the use and hire of the ship, is not entitled 
 to require the shipowner to carry passengers in the cabins (g) . 
 
 And, again, the charterer is not boimd to provide ballast (A). Not ballast. 
 That is part of the shipowner's duty ; and, on the other hand, it 
 
 (a) Carlton Steamship Co. v. Castle, v. Burrell, 21 Seas. Oa. (4tli) 527. 
 &c. Co., 2 Com. Ca. 173. («) Miteheson v. Niool, 21 L. J., Ex. 
 
 (i) 1 Com. Ca. 114. Cf. S.S. Heath- 323. Custom for master to take goods, 
 
 field Co. V. Eodenacher, 1 Com. Ca. Donaldson v. Forster, Abb. (5th) 208. 
 446 ; 2 Com. Ca. 55 ; S.S. Rotherfield (/) 9 Ex. 677. So also WiUa v. 
 
 Co. V. Tweedy, 2 Com. Ca. 84. Burrell, stipra. 
 
 («) Mitoheson i)..Niool, 21 L. J., Ex. (g) Shaw :;. Aitken, 1 Cab. & EU. 195. 
 
 323. (A) Moorson v. Page, 4 Camp. 103 ; 
 
 (a!) NeiU v. Bidlej; 9 Ex. 677 ; WiUs Irving v. Clegg, 1 Bing. N. C. 53. 
 
304 
 
 THE VOYAGE, 
 
 Shipowner 
 may load 
 space not 
 chartered. 
 
 Sect. 262. is his privilege. He is entitled to take merchandise as ballast, 
 bearing freight, provided it occupies no larger space than ordinary 
 ballast would do, and leaves to the charterer the full space of the 
 vessel proper to be filled with his cargo («'). 
 
 Sometimes the charter party only relates to part of the ship's 
 space, or carrying capacity. In that ease the shipowner will 
 generally he at liberty to use the remaining space for his own pur- 
 poses. In Caffin v. Aldridge (k), the charter party, after stating 
 that the ship's "dead weight capacity" was 125 tons, provided that 
 she should load " a cargo or estimated quantity of 470 quarters 
 wheat in sacks ^ other lawful merchandise." The ordinary 
 words " full and complete," before " cargo," in the printed form, 
 had been struck out ; and 470 quarters of wheat would only weigh 
 102 tons. The charter party gave liberty to call at any port. It 
 was held that the shipowner was at liberty to carry other cargo 
 than the wheat, for other persons. 
 
 "Merchan- 
 dise " and 
 "produce." 
 
 263. General expressions, such as " merchandise," or " produce," 
 used to describe the intended cargo, denote things which have 
 those characters in the particular trade, having regard especially to 
 the particular port of loading. " Produce " has been said to mean 
 " anything produced by the country in the neighbourhood of the 
 port of loading, and being an ordinary subject of importation" (/). 
 Government stores (ordnance, ammunition, &o.) have been held to 
 be not covered by " lawful merchandise " (m). 
 
 In Capper v. Forster (m), the charter party provided that the 
 ship should take an outward cargo to Eio Nunez, and there load a 
 full and complete homeward cargo of lawful merchandise ; and 
 this was to be delivered in London on payment of " freight as 
 follows, in fuU for the above voyage," — then followed a list of 
 particular kinds of merchandise, with rates of freight, and the 
 words " all or either at the option of the charterer." The vessel 
 was to call at St. Mary's on the homeward voyage, and should she 
 
 (t) Towse B.Henderson, 19 L. J., Ex. 
 163. Of. The Port Adelaide, 59 Eed. 
 Rep. 174. As to the obKgation of the 
 shipowner to provide ballast under » 
 time charter, see Weir v. TJnion Steam- 
 ship Co., (1900) 1 Q. B. 28. 
 
 {k) (1895) 2 Q. B. 366, 648. Cf. 
 Aitten v. Erusthausen, (1894) 1 Q. B. 
 773. 
 
 (Z) Per Maule, J., in Warren i/. Pea- 
 hody, 19 L. J., C. P. p. 46. 
 
 (m) Per Charles, J., in Vanderspar v. 
 Duncan, 8 T. L. E. 30; he considered 
 that the meaning of "merchandise,"' 
 established by usage, confined it to 
 " goods ordinarily shipped from the port 
 of shipment." 
 
 (n) 3 Bing. N. C. 938. 
 
THE LOADING. 305 
 
 not be full at Eio Nunez, the charterer was to have the liberty of Sect. 863. 
 filling her up at St. Mary's. About one-seventh of a full cargo ~ ~' 
 
 was loaded at Eio Nunez, and the charterer filled up the ship at 
 St. Mary-'s, partly with paddy and hides, which were among the 
 enumerated articles, and partly with teak wood, which was not, 
 but was the staple commodity of St. Mary's. 
 
 The jury found that the charterer might have loaded a full cargo 
 at Eio Nunez ; and that he did not fill up at St. Mary's a full and 
 complete cargo of lawful merchandise, according to the true intent 
 of the charter. And this was approved by the Court. For the 
 liberty of filling up at St. Mary's meant that the charterer might 
 there supply any deficiency of the contemplated cargo which he 
 might be unable to procure at Eio Nunez. 
 
 Where in such cases the cargo loaded is smaller than it should 
 be, or not of the agreed goods, the rule for estimating the damages 
 is to calculate the freight which would have been earned had 
 average quantities of all the enumerated articles been shipped (o). 
 
 264. Where the charter authorizes the loading of several articles. Various 
 the charterer may load a full cargo of any one or more of them, charterer's 
 unless there is a stipulation to the contrary, although that cargo °P*^°'^' 
 may not produce so large a freight as would have resulted from the 
 cargo anticipated. Thus, in Southampton Steam Colliery Co. v. 
 Clarke (jo), the ship was to load at Archangel " a full and complete 
 cargo of oats or other lawful merchandise," to be delivered on being 
 paid freight as foUows : " 4s. Qd. per 320 lbs. English weight 
 delivered for oats, and if any other cargo be shipped to pay in full 
 and fair proportion thereto according to the London-Baltic printed 
 rates, taking as a basis for natural weight of the oats 36 lbs. 
 (English) per bushel." The charterer loaded a cargo of flax cedilla 
 and tow, articles included in the London-Baltic printed rates ; but 
 the freight thus earned was much less than would have been earned 
 had a cargo of oats been shipped. The charterer was held to be 
 liable for the freight actually earned only. 
 
 In the Court of Exchequer the opinion was expressed that the 
 only kinds of " other merchandise " that might be shipped under 
 
 (o) Capper v. Forster, 3 Bing. N. C. L. J., C. P. 43. But of. Benson v. 
 
 938 ; Thomas v. Clarke, 2 Stark. 450. Schneider, 7 Taun. 273. 
 
 And see Oockbum v. Alexander, 18 (p) L. E., i Ex. 73 ; L. E., 6 Ex. 
 
 L. J., C. P. 74 ; Warren v. Peabody, 19 53. 
 
 0. — C. X 
 
306 
 
 THE VOYAGE. 
 
 Sect. 264. that charter party were those " specified in the London and Baltic 
 tables as bearing certain proportions to oats " {q). 
 
 Again, where the shipment was to be of " copper, tallow and 
 hides, or other goods," the charterer was entitled to load tallow and 
 hides only, without any copper; though ballast was required in 
 consequence {r). 
 
 In Warren v. Peabody (s) the cargo was to be of produce, and 
 freight was to be paid " at and after the rate of 5s. &d. per barrel 
 of flour meal and naval stores, and lis. per quarter of 480 lbs. for 
 Indian corn or other grain." It was held that the words " other 
 grain " did not include oats, but only such grain as, like Indian 
 corn, would weigh about 480 lbs. per quarter^oats being far more 
 bulky rfor the same weight. 
 
 Where a cargo was stipulated for on which the rates of freight 
 should average 40s. a ton, and the charterer loaded goods on which 
 the average rate was 32s. a ton, it was held no sufficient excuse 
 that he had also shipped extra passengers, whose payments made 
 the ship's earniags equal to 40s. a ton. For the words " cargo " 
 and "freight " Tehiie, primA facie, to goods only (t). 
 
 265. Some kinds of cargo cannot be loaded so as to completely 
 fill the ship's holds. Spaces are left, which are called broken 
 stowage. If the charterer is to load a full cargo, and has the 
 option of loading what he pleases, he cannot choose to load goods 
 which leave broken stowage, and no others ; he is bound to fill up 
 the spaces (m) . 
 Custom. But this may be varied by usage. In Cuthbert v. Cummiag {x), 
 
 the contract was to load " a full and complete cargo of sugar, 
 molasses ^ other lawful produce " ; and it was proved that by the 
 custom of the port of loading, Trinidad, a fuU and complete 
 cargo of sugar and molasses, packed in hogsheads and puncheons, 
 constituted a full and complete cargo of sugar and molasses. The 
 charterer had shipped sugar and molasses in hogsheads and 
 puncheons, which was the best mode of packing them ; but after 
 shipping as many hogsheads and puncheons as could be stowed, 
 broken stowage was left, which he did not fill up, as he might have 
 done, with small packages. It was held by the Exchequer Chamber, 
 
 p. 78. 
 
 "Full and 
 
 complete 
 
 cargo." 
 
 (?) L. E., 4 Ex 
 
 (»•) Moorson v. Page, 4 Camp. 103. 
 And see Irving v. Clegg, 1 Blng. N. C. 
 53. 
 
 W 19 L. J., C. P. 43. 
 (i!) Lewis V. Marsliall, 7 M. & (J. 729. 
 [u) Cole ». Meek, 33 L. J., 0. P. 183. 
 (») 24 L. J., Ex. 198, 310. 
 
THE LOADING. 307 
 
 affirming the Court of Exchequer, that the custom was a reasonable Sect. 265. 
 one, and protected the charterer from liability. 
 
 In Furness v. Tennant (t/) the ship was to be loaded with " a 
 full and complete cargo of sugar in hogsheads ^ bags or other 
 lawful merchandise," at San Fernando, Trinidad. The shipowner 
 claimed dead freight on the ground that part of the hold and the 
 alleyways were not filled, as they might have been, with bags of 
 sugar. The charterers had tendered hogsheads of sugar which 
 could not be stowed in those parts of the ship, and they contended 
 that the master had improperly stowed bags of sugar in the hold 
 which might have gone into the alleyways, and so prevented the 
 loading of more hogsheads. The Court of Appeal, affirming 
 "Wright, J., held that the shipowner's claim failed. " The master 
 had no right to assume without inquiry that the cargo would come 
 in the one form or the other. If, for his guidance in stowing it, he 
 required iuformation as to this, he should have enquired of the 
 charterers. If they had misled him he would have ground for 
 complaint ; but there was no misleading." He had chosen " to 
 leave stowage which was only suitable for bags, and not for hogs- 
 heads, which the charterers had an equal right to send." 
 
 In Steamship Isis Co. v. Bahr (s), the ship was to be loaded 
 with " a full and complete cargo of wet wood pulp, which 
 contains about 50 per cent, of water," and the loading was to take 
 place in winter, on the Eiver Penobscot, Maine, U.S. Wet wood 
 pulp is of two kinds, distinguished as chemical and mechanical. 
 The former kind is packed in square compressed bundles, the 
 stowage of which is not affected by frost. The mechanical kind is, 
 in practice, made up in bundles of folded sheets tied together, of 
 less regular shapes ; these are fl.exible and compressible when 
 moist, and can be stowed closely ; but not so when frozen. The 
 larger part of the cargo shipped was of this latter kind ; and, 
 the bundles being frozen.hard when shipped, the vessel could not 
 take so much as otherwise she could have done by 440 toUs. It 
 was held (by Smith, and Eigby, L. JJ., Yaughan "Williams, L. J., 
 dissenting), that the charter party contemplated the possibility of 
 the cargo being frozen when shipped, and allowed the charterers to 
 ship the irregular bundles in that state; and that as they had 
 shipped as much as the ship could take there had been no breach. 
 
 (t/) 66 L. T. 635. Cf. Harris v. Best, 68 L. T. 76, per Lord Esher, p. 78. 
 (z) (1899) 2 Q. B. 364. Affirmed in H. L., May 14, 1900. 
 
 x2 
 
308 
 
 THE VOYAGE. 
 
 Sect. 26d. 
 
 Ballast 
 instead of 
 cargo. 
 
 Vaugban Williams, L. J., dissented, on the ground that as the 
 cargo shipped was not such as to fill the ship's holds it was not a 
 full and complete cargo, unless hy custom such a cargo constituted 
 a full and complete cargo ; and that the evidence to establish such 
 a customary meaning of the words must show not only that 
 mechanical wood pulp is in winter shipped in a frozen condition, 
 " but also that when so shipped it is accepted as a full and complete 
 cargo, without any claim being admitted for shortage by reason of 
 the broken stowage and unfilled spaces in the ship's hold." 
 
 A charter party provided for a " full and complete cargo of 
 sugar in cases, or other lawful merchandise, with sufficient bags 
 for stowage ;" freight to be paid for sugar at specified rates, and 
 for " other produce a rate proportionate to sugar in casks, with 
 sufficient bags for broken stowage, agreeably to the custom of the 
 port of loading." The charterer shipped cotton instead of sugar, 
 and put stone on board for ballast; and the jury found that, 
 according to the custom of the port of loading, the cotton shipped 
 was a fuU and complete cargo. It was contended by the ship- 
 owner that bags of sugar should have been shipped, instead of the 
 stone ballast. But the Court held that there was no such obliga- 
 tion (a). 
 
 Goods to he 
 prepared as 
 customary. 
 
 266. If there is a customary mode of preparing particular goods 
 for shipment at the port of lading, the expression " full and com- 
 plete cargo," in relation to those goods, must be construed with 
 reference to that practice. The custom of the sugar trade at 
 Trinidad, to pack sugar and molasses in hogsheads and puncheons, 
 was approved, as we have seen, in Cuthbert «. Gumming (b). 
 
 In Benson v. Schneider (c) it was shown that cotton shipped at. 
 New Orleans was usually re-pressed before loading, at the shipper's 
 expense, and it was held that a " fuU cargo " of cotton was not 
 supplied unless the bales were pressed according to that custom. 
 
 In Haynes v. Halliday {d), under a contract for the carriage of a 
 boat of certain dimensions, the shipper presented a decked boat for 
 shipment. Evidence was given that it was the practice to take the 
 decks out of such boats on shipment, as they obstructed the naviga- 
 tion. The shipper refused to let this be done. It was held that he 
 
 {a) Duokett v. Satterfield, L. R., 3 
 C. P. 227. 
 
 (i) 24 L. J., Ex. 198, 310. 
 
 (c) Benson v. Schneider, 1 Moore, 21, 
 76 ; 7 Taun. 273. 
 W 7 Bing. 587. 
 
THE LOADING. 
 
 309 
 
 could not recover against tlie shipowner for refusing to carry it Sect. 266. 
 without the deck being taken out. 
 
 267. The preparation of the goods for loading is ordinarily the Costof pre- 
 duty of the charterer. And when a cargo of wool was to be 
 shipped, different rates of freight being stated for pressed and for 
 unpressed wool, and the charter being silent as to the cost of 
 pressing, it was held that a custom of the port to throw that 
 expense on the shipowner could not be imported into the con- 
 tract (e) . 
 
 268. The fact that a charterer has put goods on board the ship Kight of 
 
 ..,!.» T • n charterer to 
 
 under the qharter party does not disentitle him from having tnem have goods 
 
 landed there again ; unless bills of lading have been given by the "^^ ^"^ ® • 
 
 master for the goods, and have got into the hands of third 
 
 persons (/) ; or unless the shipowner has acquired a lien on them. 
 
 In Thompson v. Small (g) goods had been shipped in London 
 
 under a charter party, hy which the charterer acquired the whole 
 
 use of the ship for the voyage for a lump sum, which was to be 
 
 paid in London two months after the ship cleared at the Custom 
 
 House. It was held that the charterer had the right to remove 
 
 the goods before the ship sailed. Tindal, 0. J., in delivering the 
 
 judgment of the Court, said : " He had the entire use of the ship 
 
 under the charter ; and there was nothing to prevent him from 
 
 taking out the cargo before the ship sailed, if circumstances had 
 
 rendered it expedient, and changing such cargo for another, or 
 
 even from sending the ship empty to Sydney, or from loading her 
 
 entirely with the goods of other persons, the freight of which had ° 
 
 been paid to him in advance, there being no agreement on his part 
 
 to put a full cargo or indeed any cargo on board, and the payment 
 
 for the hire of the ship being made quite independent of the 
 
 delivery of any cargo." 
 
 269. But the case is different when goods have been shipped Eelanding 
 in a general ship. The contract is that these goods shall be sMp!^^"^'^^ 
 carried to the agreed destination, and it cannot if valid be put 
 
 an end to by one party only. " A merchant who has laden goods 
 cannot insist upon having them relanded and delivered to him 
 without paying the freight that might become due for the carriage 
 
 (.) Oookbum V. Alexander, 18 L. J., (•^) See Davidsons, awynne, 12 Bast, 
 
 "■' ' ' 381. 
 
 ^- ^- '^*- (ff) U L. J., 0. P. 157, 
 
310 THE VOYAGE. 
 
 Sect. 269. of them, and indemnifying the master against the consequences of 
 any bill of lading signed by him " (A). In Tindall v. Taylor («) 
 Lord Campbell cited this passage with approval, and proceeded, 
 " It is argued that there can be no lien on the goods for freight not 
 yet earned or due ; but when the goods were laden, to be carried on 
 a particular voyage, there was a contract that the master should 
 carry them in the ship upon that voyage for freight; and the 
 general rule is that a contract once made cannot be dissolved, 
 except with the consent of both the contracting parties. By the 
 usage of trade, the merchant, if he re-demands the goods in a 
 reasonable time before the ship sails, is entitled to have them 
 delivered back to him on paying the freight that might become due 
 for the carriage of them, and on imdemnifying the master against 
 the consequences of any bills of lading signed for them ;.but these 
 are conditions to be performed before the original contract can be 
 affected by the demand of the goods." 
 
 And in Thompson ». Trail (A), Abbot|, 0. J., said: "If the 
 captain had said when the goods were demanded, ' I cannot give 
 them up ; they are on board, and I must take them to Leghorn,' I 
 should have held that that was no conversion." But as the captain 
 in that case had refused to re-deliver to the shippers, on the ground 
 that he had signed bills of lading to deliver them to other persons, 
 he was held liable for a conversion. And it was considered that he 
 had dispensed with a tender of the freight and expenses {I). 
 
 Ship should 270. The ship ought, if necessary, to wait for cargo at the port 
 agreed time, of loading during all the agreed lay days ; unless the charterer has 
 definitely refused to provide a cargo (m). Until they have expired, 
 the charterer's breach in not loading is not complete (w). Perhaps, 
 too, in order to make the breach complete, the ship ought to stay 
 during the agreed days on demurrage, if any ; unless the charterer 
 has refused to load. At any rate she ought to stay if required to 
 do so by the charterer (o). 
 
 [h) Abbott (5th), p. 426 ; (13th), 749 ; («) Avery v. Bowden, 25 L. J., Q, B. 
 
 Parsons, Shipping, pp. 174—179. 49 ; 26 L. J., Q. B. 3 ; Eeid v. Hoskins, 
 
 (i) 24 L. J., Q. B. 12. 25 L. J., Q. B. 55 ; 26 L. J., Q. B. 6. 
 
 (/c) 2 C. & P. 334 ; 6 B. & C. 36. Of. Danube and Black Sea Rail. Co. v. 
 
 (T) Of. Palk V. Matcher, 34 L. J., Xenos, 31 L. J., C. P. 284. 
 C. P. 146 ; Jones v. Hough, 5 Ex. D. 
 115 ; swpra, s. 68. W ^^^ Connor v. Smythe, 5 Taun. 
 
 (m) Harries :;. Edmonds, 1 C. & K. 6^4 ; Dimech v. Corlett, 12 Moo. P. C. 
 
 686. 199, at p. 231. 
 
THE LOADING. '311 
 
 But if the ■whole agreed period for loading has expired, and no Sect. S70. 
 cargo has heen provided, or if hefore any demurrage has been 
 incurred there has been a definite refusal by the charterer to supply 
 a cargo, and the shipowner still chooses to keep the ship at the 
 port, he will do so at his own risk, and will not be entitled to 
 additional damages for the subsequent detention {p). 
 
 And in all cases where the charterer has failed to perform his 
 contract, the shipowner is bound to do what may be reasonable to 
 mitigate the consequent loss to himself. If he can get cargo from 
 other persons, and so earn freight in place of that agreed for by 
 the charter party, he ought to do so. What may be reasonably 
 required from him in this regard must depend upon the circumstances 
 of the particular case {q). 
 
 271. The shipowner is bound to take, as well as the charterer to Must take a 
 supply, a full cargo. If he fails to do so he is liable in damages. 
 
 In Atkinson v. Ritchie (r) a cargo of hemp was to be loaded at 
 Cronstadt ; and thirty running days were allowed for loading. 
 The ship arrived on September 16th, 1807, and the loading went 
 on until the 25th. On that day there was every appearance that 
 the Hussian Government was about to lay an embargo on British 
 ships in the port ; and in consequence the master of the ship gave 
 directions to leave off screwing down any more hemp, the usual 
 mode of loading, and to fill up as fast as possible by hand ; and he 
 sailed away that evening. The cargo on board was much less than 
 might have been loaded in the ship ; and there was at the time 
 other hemp of the charterers lying in lighters alongside her, 
 sufficient to have made a full cargo. No embargo was in fact laid 
 for several weeks after. It was held that the master was liable, 
 in damages, for not having taken a complete cargo ; although 
 restraint of princes and rulers was excepted. 
 
 If the loading takes place within a bar-harbour the vessel is not 
 bound to take on board more cargo than she can safely cross the 
 bar with. But where a ship was chartered at a lump freight for 
 a full cargo, and the master sailed with only a part cargo in order 
 to cross the bar at a low state of the tides, it was held that the 
 shipowner was liable. The ship ought to have taken as much as 
 would allow her to cross on the highest spring tide (s). 
 
 (j>) Blight V. Page, 3 B. & P. 295, n. ; [r) 10 East, 630. Cf. Bnmner v. 
 
 Dimeoli v. Corlett, supra. 'Webster, 5 Com. Ca. 167. 
 
 (?) See »/?•«, s. 720. Cf. Atbbtt (5th) («) Gifford v. Dishington, 8 So. L. E. 
 
 179. 665 ; The Curfew, (1891) P. 131. 
 
312 THE VOYAGE. 
 
 •Sect. 272. 272. So the shipowner is liable in damages if he fails to take a 
 Unskilful fuU cargo, owing to the goods heing stowed unskilfully by his 
 sei-vants (t). He is bound to have the ship stowed with skill, so as 
 to carry aU she reasonably can (m). And he is not excused by the 
 fact that it was agreed that the charterer should appoint a steve- 
 dore, if in fact he did not do so. " The master is by law required 
 to be a competent stevedore himself" («). 
 
 But where a full cargo was not taken owing to the manner of 
 stowing, and the shipper and his broker were on board from time 
 to time while that was being done, and made no objection, it was 
 held to be a question for the jury whether the shipper had not 
 induced the shipowner to suppose that he consented to the mode of 
 stowing ; in which case he lost his right of action (y). 
 
 A charter provided that the ship should take a deck cargo if she 
 was loaded with timber. It was estimated in the charter party 
 that she would carry 1,200 tons. Before loading, the master, on 
 the advice of the charterer's agent, took only seventy-five tons of 
 ballast on board ; 1,080 tons of oak were then loaded : and the 
 ship was then so tender that the master refused to take more than 
 six logs on deck. The charterer sued the shipowner for not carry- 
 ing 1,200 tons. But it was held by the Common Pleas that, as 
 the want of ballast was due to the charterer's advice and request, 
 the action could not be maintained. The cargo would require 
 more or less ballast according to the kind of timber shipped ; and 
 the owner could only act as he was advised by the charterer (s). 
 
 The charterer cannot require the goods to be stowed unsafely, 
 with a view to taking a larger quantity. 
 
 In Mackill v. Wright (a) the owners, by the charter, guaranteed 
 that the vessel should " carry not less than 2,000 tons dead weight 
 of cargo." The cargo was machinery and coal, but so much large 
 machinery was shipped that, with that cargo, the 2,000 tons could 
 not be carried unless the coal was stowed among the machinery. 
 That is often done by arrangement ; but it damages the coal, if 
 not also the machinery. The charterers contended, without effect, 
 
 (<) Anglo-African Co. «/. Lamzed, 469; Major v. WMte, 7 C. & P. 41. 
 
 L. R., 1 C. P. 226. But of. Ohrloff v. Brisoal, L. E., 1 P. C. 
 
 (m) Not necessarily the wliole space, if 231; Hutchinson v. Guion, 28 L. J., 
 
 that "would make her unsafe : "Weston ». C. P. 63. 
 Foster, 2 Curtis, 119 (U.S.). (z) Crow v. Armstrong, Stevens on 
 
 (x) Per WiUes, J., Anglo- African Co. Stowage (5th), p. 607. Of. Purness ». 
 
 V. Lamzed, L. E., 1 C. P. p. 229. Tennant, 66 L. T. 635 ; supi-a, s. 265. 
 
 {y) HpviU V. Stephenson, 4 0. & P, (a) 14 A. 0. 106. 
 
THE LOADING. 
 
 313 
 
 that it was tlie duty of the shipov?ners to obtain permission from Sect. 872. 
 the owners of the coal and machinery to stow them together. 
 
 273. The duty of stowing the cargo in the ship lies on the Shipowner 
 
 . , . - , 1)01111(1 to stow 
 
 owner, and on the master as his representative, unless there is an carefully. 
 
 agreement to the contrary. The master ought to be a competent 
 stevedore, and he must see that the stowage is done with skill and 
 care (h). Moreover, the ship must provide whatever dunnage may 
 be required (c) ; such as mats, battens, loose wood, &c. These are 
 needful to keep the goods in their places ; to prevent their being 
 injured by contact with other goods, or with the sides of the ship ; 
 and to maintain the spaces required for ventilation and for allow- 
 ing any drainage, and any leakage of the ship, to pass harmlessly 
 into the bilges. 
 
 We have seen that it is not generally necessary to show negli- 
 gence in order to make the shipowner responsible for the safety and 
 good condition of the goods. Subject to the exceptions stipulated 
 for in the contract, and those prescribed by the law, he is absolutely 
 liable for their safety. For example, where flour became tainted 
 by the fumes of some turpentine which formed part of the same 
 cargo, the shipowner was liable, though there was no want of care 
 in the stowing (d). The duty to stow carefully may seem, there- 
 fore, to be included in the more general obligation. But that 
 general obligation is subject to exceptions ; and the effect of such 
 subsidiary duties as that of stowing properly is to qualify those 
 exceptions. Thus, goods may have been injured by fumes or 
 leakage from another part of the cargo, and that risk may have 
 been expressly excepted; stUl, if they would have escaped the 
 injury but for negligence in the stowage, the exception will not 
 protect the shipowner. 
 
 274. Though it may be agreed that the charterer shall appoint Where ohar- 
 a stevedore to do the stowing, still it remains the right and the gteTedore" 
 duty of the master to control the stevedore, if he is endangering 
 
 ' the ship's safety. Whether the charterer can complain, against 
 either shipowner or master, of the manner in which the stowing 
 has been done, if he himself appointed the stevedore who did it, 
 
 (i) As to stowage under oiroumstanoes W Ahhott (5th), p. 224; (13th), 
 
 391 
 of difficulty, for which the shipowner ,',„.„ . _ 
 
 ., , „. „.„ W GiUespie v. Thompson, 6 E. & B. 
 
 was not responsible, Zipsey v. Hill, 1 ^„_^_. Stevens on Stowage (Sth), p. 456; 
 F- & F. 570. gupra, s. 95. 
 
314 
 
 THE VOYAGE. 
 
 Sect. 274. and if the master did Bot in fact interpose, is a matter upon ■which 
 differing decisions have been given (e). 
 
 The mere fact that the charterer or shipper knew how the goods 
 were being shipped, and assented to what was done, will not 
 generally excuse the shipowner (/). 
 
 In Blaikie «>. Stembridge (e), an action was brought by a 
 shipper against the master, for damage done by negligence of the 
 stevedore in taking goods on board. The ship was under charter 
 to one who had arranged with the shipper for the shipment ; and 
 the charter party provided that the stevedore should be appointed 
 by the charterer, but should be paid by and should act under the 
 captain's orders. It was held that this did not "create any 
 liability on the part of the master for the acts of the stevedore, not 
 done in pursuance of his orders. The stevedore was to be appointed 
 by the charterer, and, therefore, to act for him and represent his 
 interests. For this purpose he had the charge and custody of the 
 goods until they were laden and stowed on board. The master on 
 the part of the owners, with a view to the trim and safety of the 
 ship, had control over the stevedore, but there was ' no stipulation 
 that he should in any other way assist the latter. The payment of 
 the stevedore was merely matter of bargain between the owner and 
 the charterer, and did not make the stevedore the servant of the 
 master: see Quarman v. Burnett (g). The true construction of 
 the charter party appears to be that the cargo is to be brought 
 alongside at the risk and expense of the charterer, and that it is to 
 be shipped and stowed by his stevedore, consequently at his risk ; 
 though at the expense of the shipowner, and subject to the control 
 of the master on behalf of the shipowner, with a view to protect 
 his interests" (/*). 
 
 In The Catharine Chalmers («),the charter party provided that 
 the vessel was " to be stowed by charterers' stevedore at risk and 
 
 {«) BlaiHe v. Stembridge, 6 C. B., (ff) 6 M. & W. 499. 
 
 N. S. 894 (1859) ; The Catharine Chal- (*) Per "WiUes, J., 6 C. B., N. S. 894, 
 
 mere, 32 L. T. 847 (1874) ; Swainston v. P- 908. This judgment was affirmed in 
 
 Garrick, 2 L. J., N. S., Ex. 256. Cf. tlie Ex. Ch., 6 0. B., N. S. 911, hut on 
 
 Sandenmn v. Sourr, L. E.., 2 Q. B. 86 the ground only that the master was not 
 
 (1866) ; Steinmann v. Angier, (1891) 1 liable, as there was no contract made by 
 
 Q. B. 619 ; Harris v. Best, 68 L. T. 76 li™> and no act done by him or the 
 
 (1892). crew which led to the damage. And it 
 
 was doubted whether the stevedore 
 
 (/) Cf . Hutchinson v. Guion, 28 L. should not be considered as the master's 
 
 J., C. P. 63 ; Hovill v. Stephenson, i servant. 
 0. & P. 469. (i) 32 L. T. 847 (1874). 
 
THE LOADING. 316 
 
 expense of vessel " ; and tlie cargo was put on toard by a stevedore Sect. 274. 
 appointed by the ebarterers, but paid by tbe shipowner; the 
 officers of the ship not interfering. Held, by Sir E. Phillimore, 
 that the shipowner was not responsible to the charterers for 
 damage by bad stowage. 
 
 On the other hand, in Sack v. Ford (k), the charter party 
 provided that " the cargoes are to be taken on board and dis- 
 charged by the charterers, the crew of the vessel rendering 
 customary assistance so far as they may be under the orders of the 
 master, and the charterers are to have the liberty to employ steve- 
 dores and labourers to assist in the loading, stowage and discharge 
 thereof ; but such stevedores and labourers being under the control 
 and direction of the master, the charterers are not in any case to 
 be responsible to the owners for damage or improper stowage." 
 And " the master and the owners of the said ship shall devote the 
 same attention to the cargo . . . and shall in every respect be and 
 remain responsible to all whom it may concern, as if the said ship 
 was loading and discharging her cargoes and performing her 
 voyages for account of the said owner and independently of this 
 charter party." Stevedores were appointed by the charterers, who 
 superintended the stowage of a cargo, and it was injured through 
 being improperly stowed. The master had been on board, and 
 in some instances had given directions to the crew and labourers 
 engaged in the stowing. It was held that the owner was liable 
 to the charterers for the bad stowage, by the terms of the charter 
 party ; and it was considered that the first of the above clauses, 
 without the aid of the latter, would have sufficed to impose that 
 Uability. 
 
 In Ohrloff v. Briscal (/), Dr. Lushingtbn took a similar view of 
 a clause by which charterers were " allowed to appoint a head 
 stevedore, at the expense and under the inspection and responsi- 
 bility of the master for proper stowage." 
 
 In Sandeman v. Seurr (m), it was held that, as against an 
 independent shipper, the fact that the stevedore had been appointed 
 by the charterer was immaterial. And in Steinmann v. Angier (n), 
 a shipper recovered from the shipowner in respect of a theft com- 
 mitted by men employed by a stevedore who was appointed by the 
 
 (k) 32 L. J., 0. P. 12 (1862). (^) l. tr., 2 Q. B. 86 
 
 (A L. E., 1 P. 0. 231 ; The Helene, 
 8. C. (1866). W (1891), 1 Q. B. 619 
 
316 
 
 THE VOYAGE. 
 
 Sect. 274. otarterers, but paid by the shipowner, notwithstanding an excep- 
 tion of " thieyes." 
 
 In Harris v. Best (o), the stevedore was " to be appointed by the 
 charterers . . . , but employed and paid for by owners at current 
 rate " ; and the question was whether the charterers were liable 
 for improper delay of the stevedore in loading the ship. It was 
 held by the Court of Appeal that the stevedore was the servant of 
 the shipowner, and that the charterers were not liable. 
 
 These cases seem to show that the view of WiUes, J., in 
 Blaikie v. Stembridge (p), that the stowage by the stevedore was 
 at charterer's risk, was mistaken ; also that the decision in The 
 Catharine Chalmers (?) was wrong. 
 
 Indorsee of 275. And even though the shipper may be estopped, by his acts 
 
 ■without notice at the time of shipment, from complaining of the stowage, the 
 affected? ^ same is not, it seems, true with regard to an indorsee of the biU. of 
 
 lading to whom the goods have passed, without notice of any 
 
 agreement or act creating such an estoppel (r). 
 
 276. Though the master ought to be skilful in the matter of 
 stowing ships, this is to be construed reasonably ; and mere igno- 
 rance of the efEect of stowing particular kinds of goods together 
 will not be imputed to him as negligence, unless as a competent 
 person he would reasonably be expected to know it. 
 
 In Ohrloff v. Briscal (s), it was held not to be misconduct in the 
 master to allow casks of oil to be stowed in the same hold with 
 bales of wool and bales of rags, in ignorance that the wool and 
 rags might become heated, and so might dry the staves of the 
 casks, and render them leaky. 
 
 " If the shipowners were ignorant of the consequences of taking 
 such a cargo, we do not think it amounted to culpable negligence 
 on their part to stow, in the only place they could be stowed, the 
 goods which under the charter party the charterers had a right to 
 insist, and did insist, should form part of the cargo. On this 
 question it is, in our opinion, very material to consider not only 
 that the charterers so insisted, but also that the cargo was, 
 according to the terms of the charter party, received on board, 
 and stowed as it was presented for shipment by them ; and that 
 
 Bad stowage 
 
 through 
 
 ignorance. 
 
 (o) 68 L. T. 76 (1892). 
 
 Ip) 6 C. B., N. S. 894. 
 
 (?) 32 L. T. 847. 
 
 (r) See per Dr. Lushingfton, Ohrloff 
 
 V. Briscal (Th&.Helene), L. E., 1 P. C. 
 231, at p. 250 ; supra, s. 63. 
 (s) L. R., 1 P. 0. 231 ; The Helene, 
 
 s. a 
 
THE LOADING. 317 
 
 thej were shown to be very frequently on board, as the stowage Sect. 276. 
 progressed, and were well acquainted with the mode of stowage 
 (which was effected in a masterly way), and never made any 
 complaint or objection to it. Nor do we think the ignorance of 
 the shipowners in itself amounted to negligence. It can hardly 
 be imputed as misconduct that the shipowners should be ignorant 
 of latent mischief of this nature, when Lloyd & Co., who are 
 proved to have had very great experience as oil merchants, were in 
 the same state of ignorance." 
 
 277. "Even if the appellants knew, or ought to have known, Where 
 what the consequences of such stowage must be, we are not pre- gj^ipg unsafe 
 pared to say that they were guHty of negligence in not putting up "argo. 
 bulkheads. Assuming that they could have been so constructed as 
 to protect the part of the hold where the pil was stowed from the 
 influence of the heat generated by the wool and rags, still this 
 could not have been done without much trouble and considerable 
 expense, which we cannot concede that the shippers had a right to 
 throw on the shipowners, because the shippers chose to load the 
 ship they had chartered with a cargo of such a nature. And to 
 this we may add that, even supposing the shipowners to have been 
 aware of the usual consequences of stowing such a cargo in the 
 same hold, they might have well come to the conclusion that the 
 shippers were also aware of them, and would not have put such a 
 cargo on board unless they had been assured that the casks were of 
 such extraordinary strength and goodness as to be capable of 
 resisting the usual influence of a heated temperature " (t). 
 
 In Hutchinson v. Gruion (u), to an action for negligently stowing 
 a quantity of saltcake, the shipowners pleaded that the saltcake 
 was a corrosive substance, rotting casks, cask hoops and other sub- 
 stances in contact with it, which the plaintiffs knew, but the 
 defendants did not know and could not reasonably be expected to 
 know ; that the plaintiffs did not inform the defendants, and im- 
 properly shipped the saltcake in bulk, so that it was stowed 
 amongst casks of salt provisions, which it corroded and so caused 
 the damage. To this the plaintiffs replied that saltcake is an 
 article of merchandise well known in trade and commerce, and the 
 
 {t) L. E., 1 P. 0. pp. 239, 24Q. plea to a claim by a charterer that the 
 
 (.«) 28 L. J., C. P. 63. Of. Alston v. iniury was from sulphuric acid shipped 
 
 Herring, 25 L. J., Ex. 177, where on by the charterer's shippers, without 
 
 demurrer it was held not to be a good notice to the shipowner. 
 
318 
 
 THE VOYAGE. 
 
 Sect. S77. nature and properties of which are well known in trade and 
 commerce, and that it is commonly carried in ships, and its nature 
 and properties are well known to persons carrying on the busiaess 
 of carriers in ships and hy water. 
 
 It was held that the plea was good, and that the replication was 
 no answer to it. "The plaintiffs deliver an article which they 
 know is liable to cause injury, and very capable of doing injury to 
 other goods besides causing its own injury, and an injury is the 
 direct consequence of so doing ; they deliver that article on board 
 the ship, or with whomever is in charge of the ship, without com- 
 municating the fact of its beiag liable to cause injury (its character 
 being xmknown, or not stated to be known^ to the persons who 
 may be there to receive it) ; and it is no answer to say that it is an 
 article known in commerce, and the defendants might or ought to 
 have known what sort of a thing it was " («). 
 
 Liability of 
 shipper 
 fihipping 
 daogerous 
 goods with- 
 out notice. 
 
 278. The rights and duties of shipper and shipowner where 
 dangerous goods are shipped were much discussed in Brass v. 
 Maitland(y). Bleaching powder containing chloride of Ume had 
 been shipped in casks ; and fumes from it had escaped and corroded 
 other goods which the master had, in ignorance, stowed with the 
 casks. The shipowners, having been compelled to make good this 
 damage to the owners of those goods, sued the shippers of the 
 powder : iirst, for having shipped it, knowing its dangerous cha- 
 racter, in casks that were insufficiently secure ; and secondly, for 
 having shipped it, knowing its dangerous character, without giving 
 notice of the danger to the master or any of the plaintiff's servants. 
 
 The Court were agreed that it is the duty of a shipper to pack 
 sufficiently for safety, and to give warning of any danger, when 
 he is himself aware of it (s) ; but they differed as to his obligations 
 when he is himself ignorant. 
 
 Lord Campbell said («) : " It seems much more just and expe- 
 dient that although they were ignorant of the dangerous quality of 
 the goods, or the insufficiency of the packing, the loss occasioned 
 by the dangerous quality of the goods and the insufficient packing 
 should be cast upon the shippers than upon the shipowners. Lord 
 Tenterden, in the 7th Chapter of his Treatise on Shipping, where 
 he treats of the general duties of the merchant, lays down the 
 
 {x) Per WiUes, J. {') -^^ cf- Farrant v. Barnes, 31 
 
 li. J., 0. P. 137. 
 W26L.J.,Q.B.49. W26L.J.,Q.B.atp.54. 
 
THE LOADING. 319 
 
 general principle on which the doctrine rests : ' The hirer of any- Sect. 278. 
 thing must use it in a lawful manner, and according to the purposes 
 for which it is let.' He then gives us an instance : ' The mer- 
 chant must lade no prohibited or uncustomed goods by which the 
 ship may be subject to detention or forfeiture.' Pari ratione, the 
 merchant must not lade goods of a dangerous nature which the 
 master and those employed in the nayigation of the ship have no 
 means of knowing to be of a dangerous nature, without giving 
 notice of their nature, so that the master and those employed in the 
 navigation of the ship may exercise an option to refuse to accept 
 them, and if accepted may stow them where they will not endanger 
 the rest of the cargo." And Wightman, J., appears to have 
 agreed in this view (6). 
 
 But, on the other hand, Orompton, J., delivered an instructive 
 opinion to the contrary (c), which seems to be more in accordance 
 with the later authorities {d). He said : " What, then, is the nature 
 and extent of this duty or engagement on the part of shippers of 
 goods ? On the one hand, it is clearly a tortious act, for the eon- 
 sequences of which the shippers are responsible, to ship goods 
 apparently safe and fit to be carried, and from which the 
 shipowner is ignorant that any danger is likely to arise, without 
 notice of such goods being dangerous. If the shipper is aware of 
 such danger, such shipment, when the scienter is made out, is 
 clearly wrongful and tortious, and perhaps an action on a contract 
 to give notice in such a case might be supported, though it would 
 seem rather to be the subject of an action of tort. On the other 
 hand, I cannot agree with the doctrine contended for on the part 
 of the plaintiffs, that there is an absolute engagement on the part 
 of the shipper that the goods are safe and fit to be carried on the 
 voyage. Such a warranty would include the oases where the goods 
 may be openly seen, and are known by the shipowner to be dan- 
 gerous. It does not seem that there is any authority decisive on 
 the point as to whether the shipper is liable for shipping dangerous 
 goods without a communication of their nature, when neither he 
 nor the shipowners are aware of the danger. It seems very difficult 
 that the shipowner [? shipper} can be liable for not communicating 
 
 (J) The same view has been taken in (c) 26 L. J., Q. B. p. 57. 
 
 theU.S.: Pierce. .Winsor 2 Sprague, See Aoato3..Bums, 3Ex. D. 282. 
 
 36. Astoprohibitedgoods, Pars. Sh. I. "- ' ^ ^ „ 
 
 266, citing Sparks ■.. West, 1 Wash. Cf. Heame t>. Garton, 28 L. J., M. 0. 
 C. 0. 238. 216. 
 
320 THE VOYAGE. 
 
 Sect. 278.' what he does not know. Supposing that hay or cotton should be 
 shipped, apparently in a fit- state, and not dangerous to the know- 
 ledge of the shippers or shipowners, but really being then in a dan- 
 gerous state, from a tendency to heat, are the shippers to be liable 
 for the consequences of fire from the heating of such goods ? This 
 is a most important question, for if this be the law the underwriters 
 on the ship, who really ought to be the persons to suffer from such 
 unexpected fire, might bring an action in the name of the ship- 
 owners against the shippers of goods, who would be made respon- 
 sible for the accidental fire, when they were innocent, and would 
 not be insured against the injury to the ship. Again, suppose 
 that there is a new article of commerce, which neither shippers or 
 shipowners knew to be dangerous, is the innocent shipper to be 
 liable ? Lord Ellenborough's dictum, in Williams v. The East 
 India Co. (e), above referred to, would tend to show that knowledge 
 of the party shipping is an essential ingredient. On the other hand, 
 it is stated in the passage from Abbott on Shipping, p. 402, 8th 
 edit., that the merchant must load no prohibited or imcustomed 
 goods by which the ship may be subjected to detention or for- 
 feiture ; and this is laid down without any express qualification as 
 to the knowledge of the shipper. In case of such goods, however, 
 the merchant generally knows, or ought to know, from what he is 
 presumed to be acquainted with, as to the nature of his trade, 
 whether the goods he is shipping can properly be sent to their pro- 
 posed destination; and the passage in question is hardly a sufficient 
 authority for the proposition, that where the shipper is perfectly 
 innocent and without any means of knowledge, he should be liable 
 to the shipowners for the consequences of a mistake, which neither 
 of them could have avoided. Suppose, for instance, that a ship- 
 ment was made of goods for a foreign port, to which, according to 
 the information known at the shipping port, such consignments 
 might be properly and safely made, but that by some recent law 
 the foreign country has made such shipment illegal, would the 
 shipper be liable in such case ? I entertain great doubt whether 
 either the duty or the warranty extends beyond the cases where 
 the shipper has knowledge, or means of knowledge, of the 
 dangerous nature of the goods when shipped, or where he has been 
 guilty of some negligence as shipper, as by shipping without com- 
 municating danger, which he had the means of knowing, and 
 
 («) 3 East, 192. 
 
THE LOADING. 
 
 321 
 
 ought to have communicated. Probatly, an engagement or duty Sect. 278. 
 may be implied, that the shipper will use and take due and proper 
 care and diligence not to deliver goods apparently safe, but really 
 dangerous, without giving notice thereof, and any want of care in 
 the course of the shipment in not communicating what he ought to 
 communicate might be negligence for which he would be liable ; 
 but where no iiegHgence is alleged, or where the plea negatives any 
 alleged negKgenoe, I doubt extremely whether any right of action 
 can exist" (/). 
 
 279. But if the master or person in control of the ship chooses No warranty 
 
 . . . of safety 
 
 to receive the goods on board, knowing their nature, and the -t^iiere sMp- 
 manner in which they are packed, the shipper will not be liable (g). notice. 
 And where goods, such as maize, known to be liable to become 
 dangerous by heating, are shipped in such a manner as to be open 
 to the inspection of the master, there is no warranty by the shipper 
 that they are fit to be shipped (k). 
 
 In Brass v. Maitland it was held to be a good defence that the 
 master knew that the casks contained bleaching powder, and had 
 the means of knowing and reasonably might and could and ought 
 to have known that it contained chloride of lime, and that he had 
 the means of judging of the state and sufficiency of the casks and 
 of the packing of the contents. " A mere allegation of ' means of 
 knowledge ' I think would not have been sufficient, as this might 
 be satisfied by calling in skilful chemists and resorting to investi- 
 gations inconsistent with the usual course of commercial business. 
 But the shippers were justified in acting upon the supposition that 
 the master to whom the goods are alleged to have been delivered 
 did know what ' he reasonably might and could and ought to have 
 done"'(«). 
 
 When a shipowner relies on a default of the shipper in not giving 
 notice of the dangerous character of goods shipped by him, the 
 burden of proving that no notice was given lies upon the ship- 
 owner (A). 
 
 {/) It has not apparently been decided offered for shipment under a charter 
 
 whether a shipper of dangerous goods is party if they are not in a reasonably 
 
 liable to other shippers. But see per safe condition to be stowed with the 
 
 WiUes, J., in Farrant v. Barnes, 31 cargo already in the ship : Boyd v. 
 
 L. J., 0. P. 137. Moses, 7 "Wall. 316 (U. S.). 
 
 {g) Brass v. Maitland, 26 L. J., Q. B. (i) Per Lord Campbell, 26 L. J., 
 
 49. Q. B. at p. 65. 
 
 (h) Aoatos V. Bums, 3 Ex. D. 282. (k) WiUiama v. The East India Go., 3 
 
 The master may refuse to receive goods East, 192. 
 
 C, — C. Y 
 
322 THE VOYAGE. 
 
 Sect. 880. 280. Statutes have from time to time been framed controlling 
 statutes as to the shipment of certain classes of goods. 
 
 gooir™^ By the Merchant Shipping Act, 1894, s. 446, every shipper of 
 
 " aquafortis, vitriol, naphtha, benzine, gunpowder, lucifer-matches, 
 nitro-glycerine, petroleum, any explosives within the meaning of 
 the Explosives Act, 1875, and any other goods of a dangerous 
 nature " (l), is bound to mark the nature of the goods distinctly on 
 the outside of the package containing them, and to give notice of 
 their nature, and of the name and address of the sender or carrier 
 to the master or owner of the vessel, at or before sending the same 
 to be shipped or taking the same on boa,rd. In default he becomes 
 liable to a penalty of 100^. for each offence ; or, if he can show 
 that he was merely an agent, and was not aware, and had no 
 reason to suspect, that the goods were dangerous, to a penalty 
 of 10/. 
 
 By sect. 447, if the goods are shipped, knowingly, under a false 
 description, or with a false description of the sender, a penalty of 
 500/. is incurred. 
 
 By sect. 448, the master or owner of the vessel may require any 
 package which he suspects to contain such goods, to be opened ; 
 and may refuse to take it on board. Or if such goods have been 
 actually shipped without being marked, or without notice being 
 given as prescribed, the master or owner may have them and their 
 packages thrown overboard without being in any way liable, 
 civilly or criminally. 
 
 And by sect. 449, any breach or attempted breach of these 
 regulations renders the goods liable to be forfeited by a Court 
 of Admiralty. 
 
 Also, by the Explosive Substances Act, 1883 (m), s. 8, the 
 master or owner, if he has reasonable grounds for suspecting that 
 any such dangerous goods are concealed on board, may search the 
 vessel for them, and for that purpose may, if necessary, break open 
 any box, package, parcel or receptacle on board without being 
 subject to any liability, civil or criminal. 
 
 As to petroleum and other mineral oils, see 34 & 35 Yict. c. 105, 
 and 42 & 43 Yict. c. 47. 
 
 Stowage on 281. The question whether cargo may properly be stowed on 
 
 deck depends on the probable circumstances of the intended 
 
 {I) Dangerous apotheoaiy -n-ares— v. -Stewart, Stevens on Stowage (Stli), 
 spirits of nitre, sulpliuiio ether : see K. 149. (m) 46 & 47 Vict. c. 3. 
 
THE LOADING. 323 
 
 voyage, and on tlie condition of tlie ship. Goods ought not to be Sect. 281. 
 carried on deck, if they are there exposed to a greater risk than 
 when stowed in the usual carrying part of the ship, unless the 
 shipper has assented to their heing so carried (w), or unless a 
 custom to carry in that way exists in the particular trade (o). 
 
 Where the hiU of lading is silent as to the place of stowage the 
 contract is for carriage of the goods under deck, or in the ordinary 
 proper carrying space of the ship {p) ; and it has been held that 
 evidence of the shipper's verbal assent to a stowage on deck cannot 
 be given to vary the bill of lading (q). In some trades goods are 
 carried on deck at lower freights, and the fact is stated in the bill 
 of lading (r). 
 
 In Grould v. Oliver (s) the charter provided that a full cargo 
 of timber should be loaded at Quebec. When the hold was full 
 the master applied to the charterer's agent for further timber for a 
 deck-load. This was supplied, though whether with the charterer's 
 knowledge or not did not appear. The ship met with bad weather, 
 and some of the deck cargo was jettisoned. The charterer claimed 
 the value of it from the shipowner, on the ground that it had been 
 improperly stowed. At the trial the jury were told that- it was for 
 them to say " whether the stowage was such as to increase the 
 perils of the navigation. That if it increased the danger to the 
 ship, or the danger to that part of the cargo, it was an improper 
 stowage, because it tended to the injury of the shipper of the 
 goods." The jury found for the plaintiff, and the direction was 
 approved by the Court. But Tindal, 0. J., said, " If a particular 
 mode of stowage be conformable to the established usage of trade, 
 it may not be improper, although another mode of stowage may be 
 
 more safe Primd facie, the deck is an improper place for 
 
 the stowage of the cargo, or any part of it. The duty of stowing 
 belongs to the master, and no evidence was given of a general 
 custom to load a deck cargo at the risk of the shipper. So far as 
 
 («) As to, the ■warranty of seaworthi- Neptune, 16 L. T. 36. 
 ness wiere that is the case, see Laurence (p) Royal Exchange Shipping Co. v. 
 
 V. Mintum, 17 How. 100 (U. S.) ; Dixon, 12 A. 0. 11. 
 
 Daniels v. Harris, L. R., 10 C. P. 1. / \ mi, tv i ii -nr n ,»„ 
 
 , , TO-, ,, ' 1 ' , , , (? Tte Delaware, U Wall. 579 
 
 (o) where the vessel Delonged to one nr a •, t j tit j nA/-> t> t^ <», 
 
 . , , ,■,.., i, ,.,, . U.S.); Leducs.Ward, 20Q.B.D.475. 
 
 or a class constructed with the object of 
 
 carrying goods on deck, under cover of W Mellor v. Chappie, cited Stevens 
 
 a hurricane deck, it was held in the U.S. on Stowage (5th), 143; Corryji. Rohin- 
 that shippers must be deemed to have 8°''; **• PP- ^^^t ^^l. 
 consented to their being so stowed : The (s) 2 M. & G. 208. 
 
 y2 
 
324 
 
 THE VOYAGE. 
 
 Sect. 281. the evidence upon this subject went, it showed that whenever a 
 loss had occurred it had been made good by the shipowner, and 
 consequently that he had no right by custom to throw the loss 
 upon the shipper" (if). 
 
 In Dixon v. Eoyal Exchange Shipping Co. {ii), Brett, M. E., 
 said, that a custom to carry goods on deck must, iu order to give 
 rise to an impHed assent by shippers, be so general and universal 
 in the trade, and at the port of shipment, that everybody shipping 
 goods there must be taken to know that his goods may probably 
 be stowed on deck. 
 
 In the same case the Master of tho^ EoUs also held that goods 
 placed in a deck-house must be regarded as loaded on deck, and 
 not in the ordinary carrying part of the ship. But this appears 
 to be a question of fact in each case ; and having regard to the 
 manner in which steamers are now commonly built, it cannot 
 perhaps be said that cargo must always be below the main deck in 
 order to be ia the ordinary loading space of the ship (iz;). 
 
 Statutes as to 282. The carriage of deck-loads of timber into ports of the 
 United Kingdom during the winter months is prohibited by the 
 Merchant Shipping Act, 189i. 
 
 By sect. 451, — 
 
 "(1) If a ship, British or foreign, arrives between the last day of 
 October and the sixteenth day of April in any year at any port in the 
 United Kingdom from any port out of the United Kingdom, carrying 
 as deck cargo, that is to say, in any uncovered space upon deck, or in 
 any covered space not included in the cubical contents forming the 
 ship's registered tonnage, any wood goods as hereinafter defined, the 
 master of that ship, and also the owner, if he is privy to the offence, 
 shall be Hahle to a fine not exceeding five pounds for every hundred 
 cubic feet of wood goods carried in contravention of this section. 
 
 " (2) Provided that a master or owner shall not be Hable to any fine 
 under this section — 
 
 " fa) in respect of any wood goods which the master has considered 
 it necessary to place or keep on deck during the voyage on 
 account of the springing of any leak, or of any other damage 
 to the ship received or apprehended ; or 
 " (b) if he proves that the ship sailed from the port at which the 
 wood goods were loaded as deck cargo at- such time before 
 the last day of October as allowed a sufficient interval 
 
 (0 2 M. & a. p. 236. [x) See Lowndes' Gen. Av. (4th)j 
 
 («) Times, May 19, 1885 ; affirmed 12 p. 63; The Neptune, 16 L. T. 36; 
 
 •A- C. 11. York- Antwerp Rules, 1890, I., App. 0^ 
 
THE LOADING. 
 
 325 
 
 according to the ordinary duration of the voyage for the ship Sect. 282 
 to arriTO before that day at the said port in the United 
 Kingdom, hut was prevented from so arriving by stress of 
 ■weather or circumstances beyond his control ; or 
 "(c) if he proves that the ship sailed from the port at which the 
 ■wood goods were loaded as deck cargo at such time before 
 the sixteenth day of April as allowed a reasonable interval 
 according to the ordinary duration of the voyage for the ship 
 to arrive after that day at the said port in the United 
 Kingdom, and by reason of an exceptionally favourable 
 voyage arrived before that day. 
 " (3) For the purposes of this section the expression " wood goods " 
 means — 
 
 "(a) any square, round, waney, or other timber (y), or any pitch 
 pine, mahogany, oak, teak, or other heavy wood goods 
 whatever ; or 
 " (b) any more than five spare spars or store spars, whether or not 
 
 made, dressed, and finally prepared for use ; or 
 "(c) any deals, battens, or other light wood goods of any descrip- 
 tion, to a height exceeding three feet above the deck. 
 "(4) Nothing in this section shall affect any ship not bound to a 
 port in the United Kingdom which comes into any port of the United 
 Kingdom under stress of weather, or for repairs, or for any other 
 purpose than the delivery of her cargo." 
 
 Under a former statute (16 & 17 Yict. c. 107, ss. 170—172), 
 now repealed, by which ships -were prohibited from clearing out of 
 certain British ports ■with deck loads of timber between Septem- 
 ber 1st and May 1st, and mast^s of ships carrying timber were 
 required before sailing to obtain certificates to the effect that the 
 whole cargo was below deck, it was held that a voyage commenced 
 after September 1st, with a timber cargo, partly on deck, and 
 ■without the prescribed certificate, was illegal ; and that a policy 
 of insurance on the goods, where the assured knew of the illegal 
 conduct, and assented to it, was void (s). But not so where the 
 assured was ignorant of the illegal intention (a). 
 
 The shipowner in such a case is not implicated by his master's 
 illegal conduct, if he has been personally innocent. For, although 
 the master has implied authority to direct the manner in which 
 the cargo shall be stowed, that authority is limited to conduct 
 that is la^wful. In the absence of express orders to the contrary, 
 
 (y) Morriss ». Thormondsen, 60 J. P. (a) Ibid, (on demurrer), 27 L. J., Q. B. 
 
 644. 408 ; Wilson v. Rankin, 34 L. J., Q. B. 
 
 («) Ounard v. Hyde, 29 L. J., Q. B. 6. 62 ; L, R., 1 Q. B. 162. 
 
326 
 
 THE VOYAaE. 
 
 Sect. S82. obedience to the law is implied in the shipowner's instructions (6). 
 And the mere absence of the clearance certificate does not make 
 the ship unseaworthy, so as to vitiate a policy on freight (c). 
 
 Statute as to 283. The loading of grain cargoes in bulk is also controlled 
 gram m . ^^ ^^^ Merchant Shippiag Act. Grain, for the purpose of the 
 Act, means any corn, rice, paddy,, pulse, seeds, nuts, or nut 
 kernels. And the Act applies to ships carrying cargoes of which 
 grain forms a portion amounting to more than one-third of their 
 registered tonnage — ^reckoning one hundred cubic feet, or two 
 tons weight, as the case may be, of grain, to each ton of registered 
 tonnage (sect. 456). 
 
 By sect. 452,— 
 
 " (1) Where a grain cargo is laden on board any British, ship all 
 necessary and reasonable precautions (whether mentioned in this part 
 of this Act or not) shall be taken ia order to prevent the grain cargo 
 from shifting. 
 
 " (2) If those precautions have not been taken in the ease of any 
 British ship, the master of the ship and any agent of the owner who 
 was charged with the loading of the ship, or the sending of her to 
 sea, shall each be liable to a fine not exceeding three hundred pounds, 
 and the owner of the ship shall also be liable to the same fine, unless 
 he shows that he took all reasonable means to enforce the observance 
 of this section, and was not privy to the breach thereof." 
 
 By sect. 453,— 
 
 " (1) Where a British ship laden with a grain cargo at any port in 
 the Mediterranean or Black Sea is bound to ports outside the Straits 
 of Gibraltar, or where a British ship is laden with a grain cargo, on 
 the coast of North America, the precautions to prevent the grain cargo 
 from shifting set out in the 18th schedule to this Act shall be adopted, 
 unless the ship is loaded in accordance with regulations for the time 
 being approved by the Board of Trade (<^), or is constructed and loaded 
 in accordance with any plan approved by the Board of Trade. 
 
 (J) Wilsont'. EanMn, 34 L. J., Q. B. grain cargoes laden at those ports in 
 62 ; L. R., 1 Q. B. 162. accordance with certain approved rules 
 (c) Hid. of (1) the Board of Underwriters of New 
 {d) OflScial notices have from time to York, (2) the National Board of Maiine 
 time been issued by the Board of Trade Underwriters, New York, (3) the New 
 sanctioning modifications of the rules ia Orleans Board of Underwriters, (4) the 
 the Schedule. The notices now in force Wheat TariflE Association at San Fran- 
 are dated April, 1897. They provide, as cisoo, (5) certain regulations for loading 
 to grain cargoes from ports on the coast grain cargoes in bags at San I^ancisoo, 
 of North America, that the precautions or (6) certain rules of the ofiSce of the 
 required by the Act shall not apply to port warden of the harbour of Montreal, 
 
THE LOADING. 
 
 327 
 
 " (2) If tHs section is not complied with in tte case of any ship, Sect. 283. 
 reasonable precautions to prevent the grain cargo of that ship from 
 shifting shall be deemed not to have been taken, and the owner and 
 master of the ship charged with loading her or sending her to sea 
 shall be liable accordingly to a fine under this part of this Act. 
 
 " (3) Nothing in this section shall exempt a person from any 
 liability, civil or criminal, to which he would otherwise be subject 
 for failing to adopt any reasonable precautions which, although not 
 mentioned in this section, are reasonably required to prevent grain 
 cargo from shifting." 
 
 The 18th Schedule to the Act is as follows : — 
 " (1) There shall not be carried between the decks, or, if the ship 
 has more than two decks, between the main and upper decks, any 
 grain in bulk, except such as may be necessary for feeding the cargo 
 in the hold, and is carried in properly-constructed feeders. 
 
 " (2) Where grain (except such as may be carried in properly-con- 
 structed feeders) is carried in bulk in any hold or compartment, and 
 proper provision for filling up the same by feeders is not made, not 
 less than one-fourth of the grain carried in the hold or compartment 
 (as the case may be) shall be in bags supported on suitable platforms 
 laid upon the grain in bulk : Provided that this regulation with respect 
 to bags shall not apply — 
 
 " (a) To oats, or cotton seed ; nor 
 
 " (b) To a ship which is a sailing ship of less than four hundred 
 tons registered tonnage, and is not engaged in the Atlantic 
 trade ; nor 
 " (c) To a ship laden at a port in the Mediterranean or Black Sea 
 if the ship is divided into compartments which are formed 
 by substantial transverse partitions, and are fitted with 
 longitudinal bulkheads or such shifting boards as herein- 
 after mentioned, and if the ship does not carry more than 
 one-fourth of the grain cargo, and not more than one thousand 
 five hundred quarters in any one compartment, bin, or division, 
 and provided that each division of the lower hold is fitted 
 with properly-constructed feeders from the between decks; 
 nor 
 " (d) To a ship in which the gi-ain cargo does not exceed one- 
 haK of the whole cargo of the ship, and the rest of the 
 cargo consists of cotton, wool, flax, barrels or sacks of flour, 
 or other suitable cargo so stowed as to prevent the grain 
 in any compartment, bin, or division from shifting. 
 "(3) "Where grain is carried in the hold or between the decks, 
 whether in bags or bulk, the hold or the space between the decks 
 
 sanctioned by the Montreal Board of Trade, by its notice of the above date, 
 Trade. With regard to the Mediter- approved certain regulations specified 
 ranean and Black Sea the Board of in the notice. 
 
328 
 
 THE VOYAGE. 
 
 Sect. S83. shall be divided by a longitudinal bulkhead, or by sufficient shifting 
 boards, -which extend from deck to deck or from the deck to the 
 keelson, and are properly secured, and if the grain is in bulk, are 
 fitted grain-tight with proper fillings between the beams (e). 
 
 " (4) In loading, the grain shall be properly stowed, trimmed and 
 secured." 
 
 Sect. 454 provides that the master shall, under penalty, give 
 certain notices as to the ship's draught and clear side, and as to 
 the cargo and the mode in which it is stowed, to the consular 
 officer or officers of customs at the ports of loading and discharge. 
 
 («) See The Eothbiiry, 13 P. D. 119. 
 
CHAPTER X. 
 
 PEOCEEDING ON THE VOYAGE — POETS OF EEFUGE. 
 
 329 
 
 SEOT. 
 
 Commenoement of voyage 284 
 
 Must he prosecuted -without delay 
 
 or deviation 285 
 
 "Liberty to call" 286 
 
 Losses during improper deviation. . 287 
 
 Loss after deviation ended 288 
 
 Deviation justified to avoid danger. 289 
 
 Temporary obstacle 290 
 
 Danger peculiar to ship or to cargo 291 
 Deviation justified to save life , . . , 292 
 " Liberty to tow and assist " ...,292a 
 Duty to prevent spread of mischief 
 
 in cargo 293 
 
 Master's authority for cargo owner 
 
 on emergency 29i 
 
 Authority to incur expenses for 
 cargo owner — Duty to communi- 
 cate 295 
 
 LiabUityof cargo ownerfor expenses 296 
 Authority to sell perishing goods 
 when necessary — Meaning of ne- 
 cessary 297 
 
 Duty to save cargo — Sale in one 
 
 mass 298 
 
 Owners to be communicated with if 
 
 practicable 299 
 
 Shipowner responsible for improper 
 
 sale-^Though voyage terminated. 300 
 Sale without authority does not 
 
 transfer the goods 301 
 
 Ship disabled — ^Duty to repair and 
 complete voyage 302 
 
 SECT. 
 
 Opinion of Oookbum, C. J., in At- 
 wood V. Sellar 303 
 
 Shipowner's right to tranship .... 304 
 
 Duty to act for cargo owner if 
 voyage abandoned 305 
 
 Contract for cargo owner must be 
 fair 306 
 
 Effect on freight of abandoning 
 voyage 307 
 
 Abandonment at sea 308 
 
 Master may delay reasonably be- 
 fore abandoning at port of refuge 309 
 
 JBottomrt/. 
 Power to hypothecate or sell cargo 
 
 for repairs 310 
 
 Must be done prudently in interest 
 
 of cargo owner 311 
 
 Hypothecation by bottomry bond. . 312 
 Where part of cargo charged left 
 
 behind 313 
 
 Bottomry for necessaries 314 
 
 Cargo must have been shipped .... 315 
 
 Duty to communicate 316 
 
 Enforcement of bottomry bonds — 
 
 Prior charges on ship 317 
 
 Cargo not resorted to till ship and 
 
 freight exhausted 318 
 
 Prior claims on cargo 319 
 
 Indemnity for goods sold or bot- 
 tomried for repairs — Shipowner 
 liable for proceeds of sale 320 
 
 284. It is the shipowner's duly to make the ship ready for Commenoe- 
 sailing, and to do whatever is necessary to enable her to get TOvage. 
 away. Thus he must pay the port charges {a), and obtain the 
 requisite clearances and other papers (b). The ship ought to be 
 
 («) Abbott (5th), p. 226 ; (13th) 396. 127—133. As to the meaning of " olear- 
 (J) See Customs Laws Consolidation ance," see Thahnanu v. Texas Star 
 Act, 1876 (39 & 40 Vict. c. 36), ss. Flour Mills, 4 Com. Ca. 265. 
 
330 
 
 THE VOYAGE. 
 
 Sect. 284. provided with all such papers as may he needful to enahle her to 
 perform the intended voyage with safety and despatch (c) . 
 
 And the voyage ought to he commenced without needless delay. 
 If there has heen an improper loss of time after the goods have 
 been delivered by the shippers for shipment, and damage or loss 
 results, the shipowner is answerable. Thus, where there had been 
 negligent delay in provisioning the ship, so that she was detained 
 at the port of loading, and was, consequently, frozen up there 
 for a long time, the shipowner was liable to the charterers for 
 consequent damages (d) . 
 
 But the master ought not to sail unless it is prudent to do so, 
 having regard to the state of the weather. And if the port is 
 one of difficulty, and a pilot can be procured, he ought not to 
 sail without one (e). 
 
 Must be pro- 285. The voyage must be prosecuted without unnecessary 
 out delay or delay or deviation. The shipowner's undertaking is that he will 
 be diligent in carrying the goods on the agreed voyage, and vdll 
 do so directly, without any unnecessary deviation. But this under- 
 taking is to be understood with reference to the circumstances that 
 arise during the performance of the contract ; he is not answerable 
 for delays or deviations which are occasioned or become necessary 
 without default on his part (/). Subject to any customary 
 practice, the ship ought to take the most direct, safe, course to her 
 destination. If the voyage is to a round of ports they ought to 
 be taken in the order in which they are named in the contract, 
 whether that is their geographical order or not(g'). But i£ the 
 intended places of call have not been named, but denoted by a 
 general description, as " ports in the West India Islands," they 
 must be taken in the order in which they occur on the agreed 
 voyage (A). 
 
 Where, however, there is a settled usage for ships upon the 
 agreed voyage to take some particular course, or to call at 
 
 {c) Levy v. Coaterton, 4 Camp. 389. 226 et seq. ; (13tli) 396 ; Maol. 420, 
 Cf. Button v. Powlea, 30 L. J., Q. B. (yj Briddon ■.-. G. N. RaU. Co., 28 
 
 169 ; 31 L. J., Q. B. 191. l. j._ ^^ gj . Baylor v. G. N. RaU. 
 
 («0 The Wmielm, 2 Asp. 0. S. 343. Co., L. R., 1 0. P. 385 ; Story's Bail. 
 
 See M'Audrew v. Adams, 1 Bing. N. C. «. 545 (a) ; Aug. Carr. s 289. 
 29. 
 
 {e) See Phillips v. Headlam, 2 B. & (^) ^eatsou v. Haworfch, 6 T. R. 531. 
 
 Ad. 380 ; Law v. Hollingworth, 7 T. R. ^^« Marsden v. Eeid, 3 East, 572. 
 • 160 ; The WiUiam, 6 C. Rob. 316. As (A) Gairdner v. Senhouse, 3 Taun. 
 
 to sailing with convoy, see Abb. (5th), 16 ; Andrews v. MelUsh, 5 Taun. 496. 
 
PEOCEEDINa ON THE VOYAGE. 331 
 
 particular intermediate ports, that usage -will form part of tlie Sect. 885. 
 contract, unless it is expressly excluded (i). It is said that 
 the practice must he a constant one, and not merely occa- 
 sional (k) ; but this, perhaps, depends upon the kind of voyage 
 undertaken. On a coasting voyage, for example, the practice 
 as to the ports to he called at may be less regular than on long 
 voyages {I). 
 
 286. The contract sometimes gives liberty to touch and stay "Liberty to 
 at intermediate ports, or to do other things which would other- 
 wise be deviations from the voyage. Such clauses, however, are 
 more frequently found in policies of insurance, and the cases 
 upon them have arisen out of contracts of that kind. The whole 
 subject of deviation will be found discussed in works on marine 
 insurance. 
 
 Liberty to do something outside the voyage must be construed 
 with reference to that, and as iatended to be consistent with it. 
 §0 that a general liberty to call will be understood to mean at 
 ports lying in or near the usual and direct course of the agreed 
 voyage (m) ; and it will not generally warrant putting in for 
 purposes not connected with the voyage (m). If, however, the 
 shipment is of a part cargo only the general liberty may justify 
 calling at other ports, or at other parts of the named loading and 
 discharging ports, for the purpose of taking in or discharging 
 other cargo (o). In acting upon a liberty of this kind there must 
 be no unnecessary delay in doing what is permitted (p). 
 
 In Leduc v. Ward (q), goods were shipped at Fiume to be 
 carried to Dunkirk. The bill of lading reserved " liberty to call 
 at any ports in any order, and to deviate for the purpose of saving 
 life or property." Instead of proceeding direct to Dunkirk, the 
 ship went first to Glasgow, out of her course, and was lost, with 
 her cargo, off the Clyde. It was held that the shipowners were 
 not protected by the clause giving liberty to call. 
 
 (j) See. Oormack -i/. Grladstone, 11 («) Hammond v. Eeid, 4 B. & Aid. 
 
 East, 347. 72 ; Solly v. Whitmore, 5 B. & Aid. 45. 
 
 (k) See Amould, Mar. Ins. (6th), , \ n xa au -j ,ir,n^\ ^ n i^ 
 
 ^ ' ' (") CafBu V. Aldndge, (1895) 2 Q. B. 
 
 P' *^^- 366, 648. 
 
 (l) See as to coasting voyages, Lowry 
 
 ». 
 
 Eussell, 8 Pick. 366; Ang. Carr., (*) African Merchants v. British and 
 
 179. 
 
 Foreign Mar. Ins. Co., L. E., 8 Ex. 
 
 (m) Leduc v. Ward, 20 Q. B. D. 475 ; ^^^' "Williams v. Shee, 3 Camp. 469. 
 Amould Ins. (6th), p. 472. (?) 20 Q. B. D. 475. 
 
332 
 
 THE VOYAGE. 
 
 Sect. 886. Lord Esher said (r), "It was argued that that clause gives 
 liberty to call at any port in the world. Here, again, it is a 
 question of the construction of a mercantile expression used in a 
 mercantile document, and I think that as such the term can have 
 hut one meaning, namely, that the ports, liberty to call at which 
 is intended to he given, must he ports which are substantially 
 ports which will he passed on the named voyage. ... I believe 
 the term has always been interpreted to mean that the ship may 
 caU at such ports as would naturally and usually be ports of call 
 on the voyage named. If the stipulation were only that she 
 might call at any ports, the invariable construction has been that 
 she would only be entitled to call at such ports in their geographical 
 order ; and therefore the words ' in any order ' are frequently 
 added ; but in any case it appears to me that the ports must be 
 ports substantially on the course of the voyage." 
 
 In Glynn v. Margetson (s) a similar limited construction was put 
 by the House of Lords, affirming the Court of Appeal, upon a 
 clause giving " liberty to proceed to and stay at any port or ports 
 in any rotation in the Mediterranean, Levant, Black Sea or 
 Adriatic, or on the coasts of Africa, Spain, Portugal, France, Great 
 Britain and Ireland, for the purpose of delivering coals, cargo or 
 passengers, or for any other purpose whatsoever." Oranges were 
 loaded at Malaga, under a bill of lading which described the ship 
 as " now lying in the port of Malaga bound for Liverpool ; " but 
 after loading the oranges she went for further cargo to Burriana, 
 a port on the north-east coast of Spain, before proceeding to 
 Liverpool. The shipowners were held responsible for the decayed 
 condition of the oranges, consequent on the delay. 
 
 In The Dunbeth {t), the charter party provided that "should 
 frost ensue .... after the steamer had arrived at port of loading, 
 and the vessel is compelled to leave to avoid being frozen in, the 
 master is at Kberty to leave .... with part cargo, and to fill up 
 for steamer's benefit at any open Black Sea, AzofE or Mediterranean 
 port, for United Kingdom, Continent or Mediterranean." Gorell 
 Barnes, J., held that there must be no unreasonable departure 
 from the original voyage ; either in filling up or in discharging the 
 additional cargo so taken. 
 
 (r) 20 Q. B. D. at p. 482. 337 ; and see White v. Granada Steam- 
 
 ship Co., 13 T. L. E. 1. 
 (5) (1893) A. C. 351 ; (1892) 1 Q. B. (<) (1397) p. jgg. 
 
PROCEEDING ON THE VOYAGE. 333 
 
 287. When a vessel has deviated from her proper course, the Sect. 387. 
 shipowner is not only liahle for the delay, hut he hecomes ahso- Loss during 
 lutely responsible for any loss or damage to the goods which may deviation, 
 occur during the deviation, and which can be attributed to it. He 
 is not protected by the exception of perUs in the contract. 
 
 " If a bailee elects to deal with the property entrusted to him 
 in a way not authorized by the bailor, he takes upon himself the 
 risks of so doing, except where the risk is independent of his acts 
 and inherent in the property itself " (m). 
 
 Goods were shipped at Hull on a vessel trading to Stockwith 
 and G-ainsborough, under an express promise to deliver them at 
 Stockwith on the way to Gainsborough. On arrival at Stockwith 
 the master refused to deliver the goods then, and carried them 
 on, intending to deliver on the return voyage. The vessel sank, 
 however, before reaching Gainsborough, without any fault of the 
 master or crew, and the goods were damaged. It was held that 
 the shipper was entitled to full compensation from the owners of 
 the vessel ; although they had given notice that they would not 
 be liable for any damage, unless it resulted from want of ordinary 
 care and diligence in the master and crew, and then only for ten per 
 cent, of it {x). 
 
 It was contended that the shipowners were not liable, on the 
 ground that the non-delivery was misconduct on the part of the 
 master ; but Lord Kenyon said, " The defendants are responsible 
 for the acts of their servant in those things that respect his duty 
 under them, though they are not answerable for his misconduct 
 in those things that do not respect his duty to them ; as if he 
 were to comimit an assault upon a third person in the course of his 
 voyage." 
 
 In Davis v. Garrett (y), a vessel carrying lime under a contract 
 which excepted fire and all and every other dangers and accidents 
 of the seas, &c., was taken out of her proper course, and while out 
 of it fell in with bad weather. The lime was consequently wetted 
 and heated, so that the vessel took fire, and had to be run ashore ; 
 
 («) Per Grove, J., in LiUey v. Double- quent upon failure to stow it in aocor- 
 day, 7 Q. B. D. 510, p. 511. Cf. Lind- dance with the contract. 
 Bay V. Soholefield, 24 Seas. Oa. (4th) 530, , , „, . 
 
 / [■ i! <i • -u i J W Ellis ». Turner, 8 T. R. 631. Cf. 
 
 where an exception of "inherent de- ^ ' " " ■•■ "=*) " ■^- "■ "u^- vji. 
 
 terioration " did not protect from Ka- BaKan v. Joly, 6 T. L. R. 345. 
 
 bility for deterioration of fruit conse- (,y) 6 Bing. 716. 
 
334 THE VOYAGE. 
 
 Sect. 287. and the lime was lost. It was held that the shipowner was Hahle 
 to the shipper for its value. 
 
 To the contention that there was no natural or necessary con- 
 nection between the deviation and the loss, Tindal, 0. J., said, 
 " "We think the real answer to the objection is that no wrongdoer 
 can be allowed to apportion or qualify his own wrong ; and that 
 as a loss has actually happened whilst his wrongful act was in 
 operation and force, and which is attributable to his wrongful act, 
 he cannot set up as an answer to the action the bare possibility of 
 a loss if his wrongful act had never been done. It might admit of 
 a different construction if he could show, not only that the same 
 loss might have happened, but that it must have happened if the 
 act complained of had not been done " (s). 
 
 In Scaramanga ». Stamp («) the steamer Olympias was carrying 
 a cargo of wheat under a charter party, when she sighted another 
 steamer. The Arion, in distress ; and on nearing her found that 
 her machinery had broken down, and that she was helpless. The 
 weather was fine, and there would have been no difficulty in 
 taking off the crew ; but, instead, an agreement was made that 
 the Olympias should tow the Arion to the Texel for the sum of 
 1,000^. On . the way to the Texel with the Arion iu tow the 
 Olympias got ashore on the Terschelling Sands, and she and her 
 cargo were ultimately lost. It was held that the deviation was 
 not justifiable; and that the shipowner was liable for the loss, 
 though it was occasioned by perils of the sea, and those were 
 excepted in the charter. 
 Loss after 288. Both in Davis v. Grarrett and Scaramanga v. Stamp the 
 
 deviation , , , o a 
 
 ended. loss occurred during the deviation; but the authority of the 
 
 former case, at any rate, seems to extend to eases in which the loss 
 has occurred at any time after the deviation has commenced, even 
 though the ship has got back to her proper course, so that in a 
 geographical sense the deviation has come to an end. For as 
 some delay will have occurred, the shipowner will fail to show, in 
 the language of Tindal, 0. J., that the loss " must have happened " 
 notwithstanding the deviation. 
 
 Moreover, a deviation often has the effect of invalidating the 
 insurances on the goods, both in respect of loss during the devia- 
 
 {z) 6 Bing. p. 724. Cf. Lavaljre v. Wilson, 1 Doug. 284, p. 291. 
 (a) 4 C. P. D. 316 ; 5 C. P. D. 295. 
 
PROCEEDING ON THE VOYAGE. 335 
 
 tion and after it. The mereliant, therefore, loses the henefit of Sect. 288. 
 his indemnity, owing to the shipowner's breach of contract in 
 deviating ; and it would prohably be considered that the contract 
 of carriage was so far made in contemplation of the ordinary 
 practice of insuring the goods as to make the loss of the insurance 
 the natural consequence of the breach (6) . 
 
 289. A deviation may, however, be justifiable and even obliga- Deviation 
 tory. Where the safety of the adventure under the master's ivold danger 
 control requires that he should delay, or go out of his course, he 
 is not only justified in doing so, but that becomes his duty in the 
 right performance of the contract made with the owners of the 
 cargo. The shipowner, through his master, is bound to act with 
 prudence and skiU and care in avoiding dangers, and in mitigating 
 the consequences of any disaster which may have been met 
 with (c). 
 
 Thus the master is entitled to delay in a neutral port if he is 
 under a reasonable apprehension of capture by hostile cruisers. 
 " An apprehension of capture, founded on circumstances calculated 
 to affect the miad of a master of ordinary courage, judgment 
 and experience, would justify delay " {d). 
 
 In The Teutonia (e), a Grerman ship having English goods on 
 board was ordered to Dunkirk. On arriving o£E that port on 
 July 16th, 1870, the master was informed by the pilot that war 
 had been declared between France and Germany. He had 
 previously learnt that war was imminent, and, on hearing this, he 
 proceeded to the Downs, and on July 19th to Dover, after 
 communicating with his owners by telegram. He then ascer- 
 tained that wax had been declared on July 18th. It was held in 
 the Privy Council, affirming the judgment of Sir R. PhUlimore, 
 that the master was entitled, on receiving the pilot's information, 
 to pause and to take a reasonable time to make inquiries, and that 
 he had not exceeded the limits of a reasonable time. 
 
 (J) See Peel v. Price, 4 Camp. 243 ; 301 ; Pole v. Cetoovitoh, 30 L. J., 0. P. 
 
 Parkers. James, 4 Camp. 112; Lilley 102. As to attacking an enemy in self- 
 
 V. Doubleday, 7 Q. B. D. 510. defence, see Parr v. Anderson, 6 East, 
 
 {c) "Worms v. Storey, 25 L. J., Ex. 1 ; 202. Effect of enforced deviation on 
 
 Notara v. Henderson, L. E., 5 Q. B. policy, Scott v. Thompson, 1 B. & P. 
 
 346 ; 7 Q. B. 225 ; The Eona, 51 L. T. TS. K. 181. 
 
 28; Phelps v. ffill, (1891) 1 Q. B. 605. [e) L. B., 3 A. & E. 394; 4 P. C. 
 
 {i) The San Eoman, L. E., 5 P. C. 171 ; TheExpress, L. E., 3 A. & E. 697. 
 
336 THE VOYAGE. 
 
 Sect. 290. 290. But the master is not justified in altering the course of the 
 Temporary voyage in such a way as to make it a substantially different voyage 
 obBtacle. from that which was agreed upon, in order to avoid a merely tem- 
 
 porary impediment or danger. 
 
 In Hand v. Baynes (/), goods were shipped to be carried from 
 Philadelphia to Baltimore " via Chesapeake and Delaware Canal," 
 the " dangers of the navigation," &c. excepted. The vessel left 
 Philadelphia, but on arriving at the entrance to the canal the 
 captain was informed that the locks were out of order, and that he 
 could not pass through. He then proceeded out to sea, intending 
 to go round to Baltimore ; but the ship and cargo were lost in a 
 gale of wind. It was held that the deviation was not justified. 
 The altered voyage exposed the shipper to different risks. The 
 master ought to have remained in a place of safety until the 
 obstacle had been removed, or to have returned and informed the 
 shippers. 
 
 In Crosby v. Fitch {g), a vessel bound from New York to 
 Norwich in Connecticut performed her voyage by going out to sea 
 to the south of Long Island, instead of by the regular route 
 through Long Island Sound, which was obstructed by ice at the 
 time. It was held that the deviation was not justified, and that 
 the shipowner was liable for a loss by perils of the sea. 
 
 Danger peon- 291. A deviation may be justified although the danger to be 
 to cargo. avoided threatens the ship only, and not the cargo. As where the 
 cargo belongs to a different nationaHty, and so is not exposed to 
 the same danger as the ship Qi). 
 
 Whether a deviation would be justified where the only object 
 was to save cargo which was damaged and perishing seems to be 
 doubtful. The master is bound to make all reasonable efforts for 
 the safety of each portion of the cargo ; but he is not generally 
 bound to deviate from his course in order to preserve a part of it. 
 " It cannot be contended that if a vessel happened to ship a heavy 
 sea, and goods on board became wetted and liable to be damaged, 
 but the ship still remained in a fit condition to prosecute the voyage, 
 the master would be bound to put into the nearest port in order to 
 tranship and dry the cargo. Nor would it be more reasonable to 
 
 (/) 4 Wtart. 204 ; Aug. Carr. b. 177. [h) The Teutonia, L. E., 4 P. C. 171, 
 
 (g) 12 Oonn. 410 ; Ang. Carr. s. 76. p. 180. 
 
PROCEEDING ON THE VOYAGE. 
 
 337 
 
 hold that, having been compelled to put into port to repair, he is Sect. 291. 
 hound, heyond doing all that he reasonably can do, during his stay 
 there, to improve the condition of the damaged cargo, and to 
 mitigate the injury as far as possible, to wait till the cargo is fit 
 to be carried on, though the voyage might be thereby unduly 
 protracted " (4). 
 
 On the other hand, the master is bound to take into account the 
 interests of the cargo as well as those of the ship. He must act 
 prudently for all concerned. And if it be reasonable and prudent 
 to deviate in order to do necessary repairs, he ought to do so, 
 though that may be in the interest of the cargo only. 
 
 In The Eona {k), the question was whether the master ought to 
 have put back to New York, the port of loading, after the vessel 
 had stranded in coming out of the harbour. She was carrying a 
 general cargo, part of which was flour, and this became damaged 
 on the voyage by water which came through the deck. This was 
 due to the waterways and deck having been strained during the 
 stranding ; and the master had known of that. Held, that he was 
 negligent in going on without first having the waterways and decks 
 caulked. Sir J. Hannen said, " I am not prepared to hold that the 
 instant it becomes clear that by going on some mischief wiU be 
 done to some portion of the cargo, that it becomes the duty of the 
 captain to go back, and perhaps put all concerned to a very 
 enormous expense ; neither, on the other hand, can I assent to the 
 proposition that the liability of the owner depends upon the 
 honesty of the belief of the captain that what he proposes to do is 
 the right thing (l). . . He must not consider only the question of 
 the ship, he must consider the question of the whole venture." 
 
 In Phelps ®. Hill (m), the master, having put into Queenstown 
 in distress, proceeded for repairs towards Bristol, where the ship- 
 owners had a repairing yard. On her way the ship was sunk by 
 collision with another vessel. In an action by cargo-owners it 
 was contended that the proceeding to Bristol was a deviation, not 
 justified by necessity. The repairs to the ship could have been 
 done at Queenstown ; but that was not apparently a suitable place 
 for reconditioning the cargo, consisting of tin-plateg. The repairs 
 
 (i) Per Cocktum, 0. J., in Notara v. (I) Of. Cohn v. Davidson, 2 Q. B. D. 
 
 Henderson, L. R., 5 Q. B. p. 354. And 455. gee Phelps v. HiU, (1891) 1 Q. B. 
 
 see per Willes, J., in the Ex. Ch., L. R., „„ , 
 7 Q. B. p. 237. 
 
 (A) 51 L. T. 28 ; 5 Asp. 259. (m) (1891) 1 Q. B. 605. 
 
 C. — C. ' Z 
 
338 
 
 THE VOYAGE. 
 
 Sect. 891. could also have been done at Swansea, wMcli was about sixty- 
 miles nearer than Bristol; but it appeared that it would be a 
 saving of expense to the owners to repair the ship themselves at 
 Bristol; also that they could do the work more quickly than 
 others could, as they had duplicates of the machinery ; also that 
 transhipment of the cargo (if necessary) would be easier at Bristol. 
 The jury found that the master exercised the discretion of a 
 reasonable man, in the interests of the ship and cargo, in going to 
 Bristol. The Court of Appeal held that this was sufficient to 
 justify the course taken. "In considering what is reasonably 
 possible, or reasonably necessary, every material circumstance must 
 be taken into account — e.g., danger, distance, accommodation, 
 expense, time, and so forth. No one of these can be excluded " (w). 
 It was also held that the master was not bound under such 
 circumstances to consult with the cargo owners before selecting 
 the port at which to get the repairs done. 
 
 Deviation 292. Again, the master may deviate, either by going out of his 
 
 save life. course, or by delaying, in order to assist or save the lives of those 
 on board another vessel in distress. But he is not justified in 
 deviating for the mere purpose of saving property, nor in continu- 
 ing a deviation, made in the first instance to save life, after that 
 has been e£Eected, with a view of rescuing the property also. This 
 was established by Scaramanga v. Stamp (o). Cockburn, G. J., in 
 giving judgment in the Court of Appeal, stated the law on the 
 subject as follows {p) : — " Deviation for the purpose of saving life 
 is protected, and involves neither forfeiture of insurance nor 
 liability to the goods owner in respect of loss which would other- 
 wise be within the exceptions of ' perils of the seas.' An d as a 
 necessary consequence of the foregoing, deviation for the purpose 
 of communicating with a ship in distress is allowable, inasmuch as 
 the state of the vessel in distress may involve danger to life. On 
 the other hand, deviation for the sole purpose of saving property 
 is not thus privileged, but entails all the usual consequences of 
 deviation. If, therefore, the lives of the persons on board a 
 disabled ship can be saved without saving the ship, as by taking 
 them off, deviation for the purpose of saving the ship will cany 
 with it all the consequences of an unauthorized deviation. But 
 
 W (1891) 1 Q. B. at p. 611. act of the master, The Thetis, L. B., 
 
 (o)4C.P.D. 316;oC.P.D.295. As 2 A. & E. 365. 
 to the shipowner's responsihility for the (p) 5 0. P. D. p. 304. 
 
PROCEEDING ON THE VOYAGE. 339 
 
 where the preservation of life can only be effected through the Sect. S92. 
 concurrent saving of property, and the hond, fide purpose of saving 
 life forms part of the motive ■which leads to the deviation, the 
 privilege wiU not be lost by reason of the purpose of saving 
 property having formed a second motive for deviating." 
 
 292a. The contract very commonly reserves to the shipowner "Liberty to 
 the right to deviate from the voyage for the purpose of towing assist." 
 or assisting vessels. 
 
 In Stuart v. British and African Steam Navigation Co. {q), the 
 bill of lading gave " liberty to tow and assist vessels in all situa- 
 tions." The ship, in the course of her voyage, called at Brass 
 River. After discharging part of her cargo there she went to the 
 assistance of another vessel, The Monrovia, which had got aground 
 on the bar at the mouth of the river. While endeavouring to tow 
 this vessel off, she herself stranded, and was lost with the plaintiff's 
 goods. It was held that the deviation was excused by the clause, 
 although no life was in danger on The Monrovia. 
 
 But the Court considered that some limit must be implied to the 
 general liberty " to tow and assist," though they did not define 
 that limit. Perhaps it may be said that the deviation, to be 
 within the clause, must at the time be apparently consistent with 
 the main purpose of the voyage (r) ; and must not be wider, or of 
 greater duration, than is reasonably required for the purpose of 
 saving the vessel assisted (s). 
 
 293. The shipowner, through his master, is bound to be careful Duty to pre- 
 and skilful in protecting each part of the cargo. All reasonable ^ch^TL ° 
 precautions ought to be taken, by pumping, ventilation, and so °^^s°- 
 forth, to prevent the goods being damaged either through the 
 action of causes external to them, or by their own infirmities. And 
 where damage has happened, all measures which are reasonably 
 available, under the circumstances, ought to be taken to arrest or 
 check the further destruction or deterioration of the goods. 
 
 And that is so whether the original cause of the mischief was 
 or was not a peril for which the shipowner was responsible under 
 the contract. There is "a duty imposed upon the master, as 
 
 (?) 32 L. T. 257. 351 ; (1892) 1 Q. B. 337 ; supra, a. 286. 
 
 \r) See Potter v. BnrreU, (1897) 1 Q. (s) TheWeUs City, 61 Ped. Eep. 857 ; 
 
 B. 97. Cf . Leduo ». "Ward, 20 Q. B. D. Tlie Meyer, 74 Ped. Eep. 881, supra, 
 
 476 ; Glynn v. Margetson, (1893) A. C. s. 103 (f). 
 
 z2 
 
340 THE VOYAGE. 
 
 Sect. 293. representing the shipowner, to take reasonable care of the goods 
 intrusted to him, not merely in doing what is necessary to preserve 
 them on hoard the ship duriag the ordinary incidents of the 
 voyage, hut also in taking reasonable measures to check and arrest 
 their loss, destruction or deterioration, by reason of accidents, for 
 the necessary effects of which there is, by reason of the exception 
 in the bill of lading, no original liability " {t) . 
 
 " Safe custody is as much the duty of a carrier as conveyance 
 and delivery. ... He is still bound by the original obligation 
 to take all possible care of the goods, and is responsible for every 
 loss or injury which might have been prevented by human fore- 
 sight, skOl, and prudence " (m). 
 
 In Notara ». Henderson (»), a quantity of beans had been 
 shipped in a steamer at Alexandria for Grlasgow, under a bill of 
 lading, the ship being at liberty to call at Liverpool to diecharge 
 part of her cargo. She did call there, and when coming out of 
 the Mersey was injured by collision with another steamer, and the 
 beans were wetted. The plaintiffs (the owners of the beans) 
 carried on business at Liverpool, and they requested that the beans 
 should be given up to them there, as they were; or that they 
 should be dried before being carried on. The defendants' agent at 
 Liverpool refused to give them up without payment of the fuU 
 freight on them to Glasgow ; and this the plaintiffs refused to 
 make. 
 
 Part of the beans were taken out to lighten the ship ; and she 
 was put into a graving dock and repaired. But no steps were 
 taken to dry the beans, and after a short delay the ship proceeded 
 to Grlasgow with them in their wet condition. They consequently 
 suffered much additional damage, which might have been avoided 
 by drying them at Liverpool. It was held by the Queen's Bench 
 and the Exchequer Chamber that the shipowners were responsible 
 for this additional loss. 
 
 {t) Per WiUes, J., Notara v. Hender- was held that the shipowner was not 
 son, L. E.., 7 Q. B. at p. 235. And see hound to incur expense in assorting the 
 Adam v. Morris, 18 Sess. Ca. (4th), 153 ; cargo at the destination for the shipper's 
 Tronson v. Dent, 8 Moo. P. C. 419 ; benefit. " His duty, we think, does not 
 King V. Shepherd, 3 Story, 349 (U. S.) ; go beyond safe custody, and protection 
 Niagara v. Cordes, 21 Howard, 7 (TJ. S.). from injury or damage." 
 As to the duty of the master in relation 
 
 to saving goods of high value, see -per W Supreme Court, IT. S., in Niagara 
 
 Wills, J., in Royal MaU S. P. Co. v. "• hordes, supra. 
 
 English Bank of Eio, 19 Q. B. D. 362. {x) L. E., 5 Q. B. 346 ; L. E., 7 Q. B, 
 
 Cf. The Norway, 13 L. T. 50, where it 225. 
 
POETS OF REFUGE. 341 
 
 The extent of the efforts ■which the master ought to make, and of Sect. 293. 
 the delay whioh he ought to he willing to incur, were not clearly 
 shown {y). 
 
 In the Exchequer Chamber the conclusion come to was, that the 
 heans might have been dried " during an insignificant delay, at a 
 moderate expense, which there would have been no difficulty in 
 providing from or upon the credit of the shippers ; and no circum- 
 stance is stated to show any special risk, trouble, inconvenience or 
 other objection" (s). And the judgment does not indicate what 
 ought to have been done had that not been the case. 
 
 In the Queen's Bench, however, the judges considered that the 
 drying would have required a period duriag which it would have 
 been unreasonable to expect the ship to wait ; and they held, in 
 effect, that the master ought to have either given the beans up to 
 the owners, or to have left them behind to be dried, and forwarded, 
 when dry, in another ship. 
 
 In Nobel's Explosives Co. v. Jenkins {a), it was held that the 
 master of the ship was justified in landing some dynamite, which 
 had become contraband of war, at an intermediate port, and in 
 proceeding to the destination without it ; on the grounds that the 
 dynamite would have been liable to capture and confiscation, and 
 that it was uncertaiu how captors would have dealt with the ship 
 and the rest of the cargo. 
 
 In Adam v. Morris (5), some oil-cake was damaged after arrival 
 
 [y) "It is obvious that tlie proper could not be insisted upon if a deviation 
 
 answer must depend upon the ciroum- were involved. The place, the season, 
 
 stances of each particular case, and that the extent of the deterioration, the 
 
 the question, whether active special opportunity and means at hand, the 
 
 measures ought to have been taken to interests of other persons concerned in 
 
 preserve the cargo from growing damage the adventure, whom it might be unfair 
 
 by accident, is not determined simply by to delay for the sake of the part of the 
 
 showing damage done and suggesting cargo in peril ; in short, -all circum- 
 
 measures which might have been taken stances affecting risk, trouble, delay and 
 
 to prevent it. A fair allowance ought inconvenience must be taken into ac- 
 
 to be made for the difficulties in which count. , Nor ought it to be forgotten 
 
 the master may be involved. The per- that the master is to exercise a discre- 
 
 formance of such a duty, whether it be tionary power, and that his acts are not 
 
 for the joint benefit of the shipowner to be censured because of an unfortunate 
 
 and the shipper, or for the benefit of the result, unless it can be affirmatively 
 
 shipper only, could not be excused by made out that he has been g^uilty of a 
 
 reason of insignificant delay not amount- breach of duty." PerWflles, J.,L. E., 
 
 ing to deviation ; and there are many 7 Q. B. p. 237. 
 cases of reasonable delay in ports of oaU, M l_ ii_ 7 Q. B. p. 238. 
 
 for purposes connected with the voyage, 
 
 AT, I, 4. * -i , i.- (a (1896) 2 Q. B. 326. 
 
 though not necessary for its completion, \ i ^ / >» 
 
 ■which do not amount to deviation. It (i) 18 Sess. Ca. (4th), 153, 
 
342 THE VOYAGE. 
 
 Sect. 293. at the port of disoliarge by negligence of an engineer, for whicli, 
 hj the terms of the contract, the shipowner was not liable. If 
 immediate information had been given to the receivers, the damaged 
 cake could have been removed from the hold and so treated as to 
 make the damage slight ; but the information was kept back by 
 the master and owners with a view to concealing the cause of 
 damage. The owners were held liable for the consequent aggra- 
 vation of the loss. 
 
 Master's 294. The master of the ship is tjie servant of the shipowner, 
 
 c^Tgo'l^eJ and has custody of the cargo primarily for the purpose of carrying 
 on emergency, ^^j. ^-^^ shipowner's contract. Emergencies, however, sometimes 
 occur during the course of a voyage, in which a need arises for the 
 presence of someone who can act on behalf of the owner of the 
 goods, with an authority beyond that ordinarily given by the 
 contract. And in such cases the master, or other person in com- 
 mand of the ship, has this authority and duty to act for the cargo 
 owners. He carries with him a power, in case of necessity, to deal 
 with their goods as though he represented them (o). 
 
 Thus he is empowered, in cases of need, to sell or pledge the 
 goods without any communication with the owners, and to give 
 a complete title to them to the buyer or pledgee ; or he may at 
 times incur special expenditure for the purpose of preserving 
 particular goods, or of forwarding them to their destination, for 
 which expenditure the owner of the goods will be liable (d). 
 
 But although such acts are done by the master on behalf of the 
 owner of the goods, and with his implied authority, so as to bind 
 him, they are stUl done by the master as servant of, and as repre- 
 senting the shipowner. And the shipowner is responsible if he 
 exercises that power improperly. " The master is the general 
 agent of the owner for the purpose of the voyage, and for the 
 exercise of that agency is entrusted with powers, to be used at his 
 discretion, in which the owner who selects him is satisfied to 
 confide. If, therefore, the master exercises a power which circum- 
 stances might justify, so that it is within the general scope of his 
 functions, and it turns out that the facts do not warrant its exercise 
 in the particular instance, as, for instance, if he unnecessarily 
 throw goods overboard in a panic, or sell goods without justifying 
 
 (c) The Gratitudine, 3 C. Rob. 240. against a colliding ship, in a foreign 
 
 (d) As to the master's authority to port, see per Butt, J., in The Reinbeok, 
 institute a suit in rem on behalf of cargo 60 L. T. 209. 
 
POETS OF REFUGE. 343 
 
 need, the owners are held liable for his acts, according to the rule Sect. 294. 
 ' omnia facta magistri dehet prEestare qui eum praeposuit ' — Pothier, 
 Louages Maritimes, 48 ; Ewhank v. Nutting (e) ; and for a like 
 reason they must be liable for his culpable omissions " (/). 
 
 295. Where, then, it becomes in prudence necessary to incur Authority to 
 extraordinary expenses for the preservation of the cargo, as by for cargo 
 unloading and drying it, or by employing men to save it from the °'"''^'"- 
 ■wreck of the ship, the master is authorized to incur such expenses 
 
 on behalf of the owner of the goods {g). And if he has properly 
 incurred and paid expenses of this kind, and the damage arose 
 from causes for which the shipowner was not responsible, he has a 
 lien upon the goods for the amount {h). Also, the master may, if 
 necessary, raise money by a respondentia bond upon the goods, in 
 order to do what is required for their safety (») . 
 
 This authority of the master does not arise where the owner of Duty to oom- 
 
 ,■, , ,. j.j.''j.i,-j T. -ij munioatewith 
 
 the goods or his representative is at hand, or can be communicated cargo owner. 
 
 with, without imprudent delay (/c) . The power is analogous to 
 
 that with which the master is clothed, when necessary, of selling 
 
 the goods at a port of refuge if they cannot be prudently carried 
 
 to their destination. And the cases, to be referred to presently, 
 
 upon that subject show how strictly the master is required to 
 
 obtain and act upon instructions from the owner of the goods, if 
 
 that is practicable (/). 
 
 But where the owner was at the port into which the ship had 
 
 put, and refused to give any instructions, he was held liable to 
 
 repay expenses which the master had properly incurred in treating 
 
 the cargo, in order to carry it on (m). 
 
 296. The cargo owner is only bound to repay expenses which Liability of 
 have been incurred specially for the benefit of his goods. Ex- for^xpeMes. 
 penditure on behalf of the adventure generally, as, for example, in 
 
 («) 7 0. B. 797. 367. Cf. G. N. Rail. Co. v. Swaffield, 
 
 (/) Per Willes, J., Notarat;. Hender-. L. E., 9 Ex. 132. 
 
 son, L. E., 7 Q. B. p. 236. And see (i) Cargo ex Sultan, Swa. 504; The 
 
 per Brett, L. J., Whiteoross Wire Co. v. Glen Manna, Lush. 115. 
 
 Sa-rill, 8 Q. B. D. 653, at p. 663. (A) Cargo ex Argos, L. E., 6 P. C. 
 
 (ff) Cargo ex Argos, L. E., 5 P. C. 134 ; Cargo ex Sultan, supra. 
 
 134 ; Hingston ». Wendt, 1 Q. B. D. (0 Aoatos v. Bums, 3 Ex. D. 282 ; 
 
 367 ; Notara v. Henderson, L. E., 7 Australasian Steam Nav. Co. v. Morse, 
 
 Q. B. p. 235 ; G. N. Eaal. Co. v. L. R., 4 P. C. 222 ; The Hamburg, 33 
 
 SwafBeld, L. E., 9 Ex. 132. Cf. The L. J., Ad. 116 ; infra, s. 299. 
 
 Norway, 13 L. T., N. S. 50. (m) Garriook d. "Walker, 1 Sess. Ca. 
 
 (A) Hingston v. Wendt, 1 Q. B. D. {4th), 100. 
 
341 THE VOYAGE. 
 
 Sect. S96. putting into a port of refuge, can only be charged to him as a 
 matter for general average contribution, of which we shall speak 
 later. 
 
 In the Cargo ex Argos (n), barrels of petroleum had been shipped 
 at London for Havre. The authorities at Havre would not allow 
 them to be landed there, and the shipper failed to present the bill 
 of lading and take delivery. The master, therefore, brought them 
 back to London. It was considered that that was the best course 
 that could be taken in the shipper's interest ; and the shipowner 
 was held entitled to compensation for bringing them back, and to 
 be repaid certain expenses at Havre. But he was not allowed to 
 charge expenses which had been incurred in endeavouring, without 
 success, to land the goods at Honfleur and TrouviUe. 
 
 The liability for the expenses appears to be upon the owner 
 of the goods for the time being ; not necessarily upon the party to 
 the contract of carriage (o). 
 
 Authority to 297. Again, in case of necessity, the master has power, and it 
 
 sell perishing .■,.-,,. , . , , ,, . 
 
 goods when IS his duty, to Sell the goods, m order to save their value, or some 
 
 necessary. ^^^ ^^ ^^^ rj\^^ ^j^jp ^^^^ h&Ye reached an intermediate port with 
 the goods so damaged, or perishing from their own infirmities, that 
 it may be impossible to take them to their intended destination 
 without sacrificing them ; or the cost of putting them into a 
 condition in which they might be carried on may be so great as to 
 exceed their value when put in order. If, then, the master is the 
 only person within reach who can decide what shall be done, he 
 becomes empowered to sell the goods on behalf of their owner. 
 
 The conditions necessary in order to make such a sale valid 
 are — (1) that a real necessity must exist for the sale, and (2) that 
 it must be practically impossible to get the owner's instructions in 
 time as to what shall be done. 
 
 In Oannan v. Meabum {p), a- ship on a voyage from Calcutta to 
 London put into the Mauritius in a sinking state, the effect of bad 
 weather. The captain, finding, as he considered, that the expense 
 of repairing the ship would be so great as to frustrate the 
 adventure, placed her and her cargo at the disposal of the Yice- 
 
 («) L. E., 5 P. 0. 134. Cf . Christy v. reqtuire that the master shall do what 
 
 Row, 1 Tauu. 299. becomes necessary. 
 
 (o) See Christy v. Row, 1 Taun. 300, {p) 1 Biug. 243. Cf. Underwood ■^. 
 
 p. 315. Cf . Soaife v. Tobin, 3 B. & Ad. Robertson, 4 Camp. 138. Under the law 
 
 623. But this seems inconsistent with of Germany, see The August, (1891) P. 
 
 the right of the party to the contract to 328, supra, s. 211. 
 
POKTS OF REFUGE. 345 
 
 Admiralty Court, and they were sold by order of tliat Court. Sect. 297. 
 PlaintifE was the owner of seventy-two chests of indigo, which 
 formed part of the cargo, and he sued the shipowners for not 
 deUTering them. The jury found that the ship might have been 
 repaired, and also that the goods might have been transhipped and 
 forwarded. It was held that the sale was not justified, and that 
 the shipowners were liable. 
 
 In The Australasian Steam Nav. Co. i\ Morse {q), a vessel with a 
 cargo of wool was wrecked off the coast of Queensland, and the 
 wool was taken out of her in a damaged state and brought to 
 Eockhampton. It appeared that it was in such a state that it 
 could neither be carried on nor stored ; that it would in two or 
 three days have lost nearly all value, unless it were at once treated 
 by various processes ; and that such treatment could not be obtained 
 on a large scale. The wool was accordingly sold by the master to 
 a number of purchasers in small lots. And the jury found that he 
 had acted for the best, and as a wise and prudent man, for the 
 interest of the owners of the wool. It was held in the Privy 
 Council that the sale was justified. 
 
 " The word ' necessity,' when applied to mercantile affairs, where Meaning of 
 the judgment must in the nature of things be exercised, cannot, of "'^"^^^^'^y 
 course, mean an irresistible compelling power. What is meant by 
 it in such cases is the force of oircimistances which determine the 
 course a man ought to take. Thus, where by the force of circum- 
 stances, a man has the duty cast upon him of taking some action 
 for another, and under that ■obligation adopts a course which, to 
 the judgment of a wise and prudent man, is apparently the best 
 for the interest of the persons for whom he acts in a given 
 emergency, it may properly be said of the course so taken that it 
 was in a mercantile sense necessary to take it. ... A sale of 
 a cargo by the master may obviously be necessary in the above 
 sense of the word, although another course might have been taken 
 in dealing with it. For instance, if in this case the wool, which 
 had no value but as an article of commerce, could have been dried 
 and re-packed, and then stored or sent on, but at a cost to the 
 owner clearly exceeding any possible value of it to him when so 
 treated, it would plainly have been the duty of the master to sell, 
 as a better course for the interest of the owner of the property, 
 than to save it by incurring on his behalf a wasteful expenditure. 
 
 (?) L. E., 4 P. 0. 222. 
 
346 
 
 THE VOYAGE. 
 
 Sect. 297. In other words, a commercial necessity for the sale would then 
 arise, justifying the master in resorting to it " (r). 
 
 Duty to save 298. The rule thus laid down was approved of by the Court of 
 cargo. 
 
 Appeal in Acatos v. Burns (s). But the subsequent case of The 
 
 Atlantic Mutual Ins. Co. v. Huth (i) shows that it is not sufficient 
 for the master to come prudently, and in good faith, to the con- 
 clusion that a sale is the best course for the persons interested. 
 
 A ship, with a valuable cargo, had been wrecked on April 19th, 
 on a rock off Point Padrone, on the eastern side of Algoa Bay, a 
 place distant fifty miles by sea and about eighty by land from Port 
 Eliiiabeth. News of the wreck soon reached Port Elizabeth, and 
 many persons came to the scene of it. The captain, after taking 
 advice, decided that the best thing to be done was to sell the ship 
 and cargo as they lay ; and accordingly they were sold by auction, 
 after a brisk competition, on April 30th. The purchasers rescued 
 much of the cargo, but on the 19th of June, while a large part was 
 stiU on the wreck, the ship went to pieces. It was held that the 
 gale was made improperly, without any implied authority from the 
 cargo owners ; and that their underwriters, to whom they had 
 abandoned, were entitled to claim the rescued goods, subject to an 
 allowance to the purchasers for salvage, and for expenses incurred 
 in saving and forwarding them. " In our opinion, purchasers of a 
 cargo from a master cannot justify the sale unless it is established 
 that the master used all reasonable efforts to have the goods 
 conveyed to their destination, and that he could not by any means 
 available to him carry the goods, or procure the goods to be carried, 
 to their destination as merchantable articles, or could not do so 
 without an expenditure clearly exceeding their value after their 
 arrival at their destination. ... It is, in our opinion, under 
 these circumstances impossible to hold that it is established that 
 the captain could not have induced some person to undertake the 
 salvage of the cargo. Certainly the master did not use all means 
 within his power, or make any effort either to procure funds for 
 enabling him to save the cargo, or to induce others to save the 
 cargo " (««). 
 
 (r) Australasian Steam Nav. Co. v. (t) 16 Ch. D. 474. 
 
 Morse, L. K., 4 P. C. 222, per Sir , n »xi ^- -.r . -r ^ ^ „ 
 
 T\T t a -Ii, i o9n r« Tji. 1 M Atlantic Mut. Ins. Co. i). Huth, 
 
 Montague Smith, at p. 230. Cf. Phelps 
 
 «. Hill, (1891)1 Q.B. 605; The Curfew, ^® ^^- ^- PP- ^^^' ^^S. See also 
 
 (1891) P. 131. Tronson v. Dent, 8 Moo. P. C. 419; 
 
 (s) 3 Ex. D. 282. Underwood v. Eobertson, 4 Camp. 138. 
 
POETS OF REFUGE. ^47 
 
 A further impropriety in tlie sale was that the ship and the Sect. 898. 
 various portions of the cargo, not all exposed to equal risks, were Sale of cargo 
 
 . ° . . , in one mass. 
 
 all sold m one mass. " It is difficult to see how, as against the 
 owners of the goods practically not perishable, the master could 
 under any circumstances justify the sale, in one mass, of the 
 chances of saving hoth the perishable and non-perishable portions 
 of the cargo, and the vessel" («). 
 
 299. The other condition of the master's authority to sell is, Owners to be 
 that the owners of the cargo must have been communicated oatedwith 
 with and their instructions taken before selling, if practicable. ^"^^^ ^""^ ®' 
 Whether that was so must be judged having regard to all the 
 circumstances of the particular case. The master is not to delay 
 for instructions where delay would be clearly imprudent. But if 
 there is a fair expectation of obtaining directions, either from the 
 owners of the goods, or from agents known by the master to have 
 authority to deal with the goods, within such a time as would not 
 be imprudent, the master must make every reasonable endeavour 
 to get those directions ; and his authority to sell does not arise 
 until he has failed to get them (y) . 
 
 Should the master fail to seek for instructions when he might 
 get them, or should he act against the instructions he receives, 
 any sale or hypothecation of the cargo he may make under those 
 circumstances is wrongful and void. 
 
 In Acatos v. Burns (z), maize had been shipped in a general 
 ship at Constantinople for Liverpool. On putting into Smyrna 
 the master found that the maize had become heated, and could 
 not be kept on board without danger to the rest of the cargo. 
 He therefore discharged it into lighters ; and endeavours were 
 made, without success, by the ship's agent, to get it taken to 
 Liverpool by other steamers. 
 
 The shipper of the maize, agent of the owner of it, was com- 
 municated with, and he required the maize to be forwarded ; but 
 after about a fortnight's delay it was sold by auction, in spite of 
 the shipper's protest. The jury found that the sale was a prudent 
 measure ; but that it was not of such urgent necessity as to give 
 no time for communicating with the owner. Held that the 
 
 {x) 16 Cli. D. p. 483. burg, 32 L. J., Ad. 161 ; 33 L. J., Ad. 
 
 (y) Australasian. Steam- Nav. Co. v. 116; The Bonaparte, 8 Moo. P. 0. 459. 
 Morse, L. R., 4 P. 0. 222 ; The Ham- («) 3 Ex. D. 282. 
 
348 
 
 THE VOYAGE. 
 
 Shipowiier 
 responsible 
 for improper 
 sale: 
 
 Though 
 
 voyage 
 
 teiminated. 
 
 Sect. 299. shipowner was liable for what the maize would have been worth to 
 the owner if it had not been sold. 
 
 300. Where goods have been sold improperly by the master, 
 he is responsible for their value {a). And if the sale was made 
 by him in good faith, meaniag to perform the duties of his 
 employment as master, but was improper, then the shipowner also 
 is responsible for his act to the owner of the goods (5). And 
 should the master sell fraudulently, the shipowner will still be 
 liable on the contract to carry, unless he is excused by some 
 exception. 
 
 Or if the master has neglected to sell the goods when he ought 
 to have done so, having regard to the freighter's interests, the 
 shipowner is answerable for the consequences of that neglect (c). 
 
 This responsibility of the shipowner probably continues, 
 although the acts or omissions of the master have occurred after 
 the voyage has in fact been abandoned, and though the completion 
 of the voyage may have been prevented by excepted perils. For 
 there is, it seems, an implied undertaking on the part of the 
 shipowner that, in the event of the voyage being in any way 
 prevented, he wUl still, by his servants, do whatever may be 
 practicable, either to tranship and forward the goods to the 
 intended destination, or to preserve them and deliver them over 
 to their owners {d). 
 
 301. Where a sale of cargo has been made by the master 
 under circumstances which gave him no authority to sell, and the 
 owner of the cargo has done nothing to ratify the master's action, 
 the sale does not pass the property in the goods to the purchaser. 
 The true owner remains entitled to follow and claim them, 
 wherever they have got to (e) ; unless the goods have been sold 
 in market overt to a purchaser who had no knowledge of the 
 circumstances (/). 
 
 The master's authority to sell is to be determined by reference 
 to the law of the country to which the vessel belongs, wherever the 
 
 Q. B. at p. 236. 
 
 Sale without 
 authority does 
 not transfer 
 the goods. 
 
 (a) Tronson ■!!. Dent,' 8 Moo. P. 0. 
 419. In Atlantic Mut. Ins. Co. v. 
 Huth, 16 Ch. D. 474, the action against 
 the master was dismissed. 
 
 (S) Cannan v. Meabum, 1 Bing. 243 ; 
 Ewbankv. Nutting, 7 C. B. 797 ; Aoatos 
 V. Bums, 3 Ex. D. 282. 
 
 {o) Notara ». Henderson, L. R., 7 
 
 w 
 
 ■a, B. 293. 
 
 (e) Atlantic Mutual Ins. Co. v. Huth, 
 IG Ch. D. 474 ; Freeman v. East India 
 Co., 6 B. & A. 617 ; Morris ii. Robinson, 
 3 B. & C. 196. 
 
 (/) Benj. Sale (3rd), pp. 7 ei seq. 
 
POETS OF REFUGE. 349 
 
 sale may have taken place. By the act of shipping the goods Sect. 301. 
 authority is impliedly conferred upon the master to deal with 
 them, suhjeot to the express contract, in accordance with the rules 
 of law and of the flag (g). 
 
 And no other authority than that can he implied. But if the 
 master sells the goods in a country foreign to his flag, under 
 circumstances in which by the law of that country he is empowered 
 to do so, the purchaser acquires a good title ; although hy the law 
 of the flag the master may not have had authority to sell under 
 those circumstances. 
 
 This was decided in Cammell v. Sewell (/«), in the Exchequer 
 Chamber. A cargo of deals had been shipped in Eussia for an 
 English merchant on board a Prussian vessel, and were consigned 
 to him at Hull. The vessel was wrecked on the coast of Norway ; 
 but the cargo was saved, and might have been sent on. The 
 captain, however,, sold it to one who purchased in good faith ; and 
 he re-sold it to the defendants, who sent it to England. There it 
 was claimed by the plaintiffs in right of the original owner. 
 
 It appeared that by the law of Norway the captain, though 
 responsible to his owners and to the cargo owners, was able to and 
 did confer a good title upon the innocent purchaser. That being 
 so, it was held by the Exchequer Chamber (Byles, J., dissenting) 
 that the property passed upon the sale, and did not again change 
 when the goods were brought to England. " "We think that the 
 law on this subject was correctly stated by the Lord Chief Baron 
 in the course of the argument in the Court below, where he says, 
 ' If personal property is disposed of in a manner binding according 
 to the law of the country where it is, that disposition is binding 
 ieverywhere ' ; and we do not think that it makes any difference 
 that the goods were wrecked, and not intended to be sent to the 
 country where they were sold " (i). 
 
 302. When the ship has been disabled, and has put into a port ship diaatlei. 
 of refuge, it is clear that the master, acting on behalf of his 
 employer, the shipowner, must do all that he prudently can to 
 preserve the ship, and to earn the freight by completing the voyage. 
 It is his business to get the ship repaired, and to carry the cargo to 
 
 {g) The Gaetano and Maria, 7 P. D. 1, 360. 
 137; The Kamak, L. E., 2 P. 0. 505; (i) 29 L. J., Ex. p. 353. Of. The 
 
 .Uoyd V. Guibert, L. R., 1 Q. B. 115. Eliza Cornish, 1 Sp. Eo. & Ad. 36 ; 
 
 (h) 27 li. J., Ex. 447 ; 29 L. J., Ex. and Alcook v. Smith, (1892) 1 Ch. 238. 
 
350 THE VOYAGE. 
 
 Sect. 302. its destination in her (Jc) ; and if that cannot prudently he done, 
 
 he ought to tranship the goods iato another vessel and forward 
 
 them, if it he possible to do so on such terms as to make it 
 
 profitable to his employer. 
 
 Duty to ]B^f ag towards the owners of the cargo, there has been some 
 
 repair and ' i i .i t_ • 
 
 complete uncertainty as to the obligations of the master and the shipowner 
 
 voyage. -^Iiom he represents. Is he bound to repair if he can ? And if he 
 
 does repair, is he bound to carry on the goods ? And, on the 
 
 other hand, if he does not repair, must he seek for another ship 
 
 and send the goods on ? 
 
 When repairs are done at a port of refuge, the cost of them falls 
 entirely upon the shipowner (l), unless the damage repaired was 
 the result of a general average sacrifice (m) ; and it seems to be 
 certain that he is not bound to incur the cost of repairing the ship, 
 so as to enable her to complete the voyage, if that cost will exceed 
 the value of the ship when repaired, together with the net freight 
 which she can earn by completing the voyage. Though if he does 
 so he must still bear the whole expense (m) . Where the ship is in 
 this sense not worth repairing, the shipowner is, in a business sense, 
 prevented from carrying the goods to their destination ; and if the 
 preventing causes are excepted, he is excused from performing his 
 contract (o). 
 
 If, however, the ship can be repaired without unreasonable 
 sacrifice on the part of the shipowner, and funds for the purpose 
 can be procured, then he is bound to repair her ; and, having done 
 so, is bound to carry on the goods to their agreed destination. He 
 has not in that case been prevented, in a business sense, from 
 performing his contract. 
 
 Abbott, dealing with the duties of the master to the owners of 
 cargo, said (p) : " The disposal, however, of the cargo by the 
 master is a matter that requires the utmost caution on his part. 
 He should always bear it in mind that it is his duty to convey it to 
 the place of destination. This is the purpose for which he has been 
 entrusted with it, and this purpose he is bound to accomplish by 
 every reasonable and practicable method." And Lord Denman, 
 
 (Jc) See Benson o. Chapman, 2 H. L. [m) See Chap. XII. 
 
 0. 696 ; The Hamburg, 33 L. J., Ad. («) Benson v. Duncan, Hallett v. 
 
 P- 117. Wigram, supra. 
 
 (T) Benson v. Duncan, 17 L. J., Ex. (o) De Cuadra v. Swann, 16 C. B., 
 
 238; 18 L. J., Ex. 169; Hallett v. N.S. 772 ; Worms «. Storey, 11 Ex. 427. 
 
 "Wigram, 19 L. J., C. P. 281. {p) (5th), p. 241 ; (13th), p. 412. 
 
POETS OF REFUGE, 351 
 
 0. J., in Shipton v. Thornton {q), after quoting this passage said : Sect. 302. 
 " It is clear that by the contract the shipowner (and the master as 
 his agent) is bound to carry the goods to their destination if not 
 prevented by some event which he has not occasioned and over 
 ■which he has no control." 
 
 In Moss V. Smith (r), Cresswell, J., put the matter very distinctly: 
 " What is the contract between the shipowner and a person who 
 puts goods on board to be carried on freight? The shipowner 
 contracts to carry them from port to port : his contract, in the first 
 instance, would be absolute, but he introduces an exception, ' unless 
 prevented by the perils of the sea.' Now, when is a shipowner 
 said to be prevented by the perils of the sea from fulfilling his 
 contract ? Why, when the ship is so much damaged, by perils of 
 the sea as to be rendered incapable of performing the voyage. That 
 is the case when perils of the sea are the only exception introduced 
 into the contract. When a ship has sustained sea damage to a 
 certain extent, she is not, therefore, incapable of performing the 
 voyage because she wants repairs, otherwise the most casnal injury, 
 as the loss of the rudder, without which a ship could not navigate 
 in safety a single mile, would render her incapable. If a ship 
 sustains so much sea damage that she cannot be repaired : if she is 
 at a place where she cannot be repaired and rendered competent to 
 navigate, then she is prevented from fulfilling the voyage by perils 
 of the sea. The Courts have also engrafted this further qualifica- 
 tion, that if the owner can show that the damage sustained by the 
 perils of the sea is so great that he could not prudently and reason- 
 ably be called upon to repair the damage, that he is then prevented 
 from fulfilling his contract by perils of the sea, and he may treat 
 such damage as a total loss ; and the language of the Courts is, 
 that such a measure of damage is a total loss of the ship " (s). 
 
 A different view of the shipowner's obligation was taken in the 
 careful judgment of Coekburn, 0. J., concurred in by Mellor, J., 
 in Atwood v. Sellar {t). But the doctrine of that judgment has 
 been dissented from {u). And the rule is now established that the 
 shipowner is bound to repair and complete the voyage, unless the 
 
 (q) 9 A. & B. 314, at p. 333. 9 C. P. 595, p. 601 ; and per Lindley, 
 
 [r] 19 L. J., C. P. 225, p. 230. J., in Hill v. Wilson, 4 C. P. D. 329, 
 
 («) And see per Blackburn, J., in p. 333. 
 
 WUson v. Bank of Victoria, L. R., 2 (t) i Q. B. D. 342. 
 
 Q. B. 203, p. 211; per Brett, J., in («) See per Lord Blackburn, in Svend- 
 
 Mavro v. Ocean Mar. Ins. Co., L. E,, sen v. Wallace, 10 A. 0. 404, p. 417. 
 
352 THE VOYAGE. 
 
 Sect. 302. damage by excepted perils is such that it would be unreasonable to 
 require him to repair her («). 
 
 " In order to show that she (the ship) was prevented from 
 performing the voyage agreed upon by the perils of the sea, she 
 must have become unnavigable for that voyage, either on the 
 ground that it was impossible to get her afloat again, or that on 
 account of the extraordinary expenditure necessary for that purpose 
 it would be unreasonable to require the shipowner to incur it " {y). 
 
 And where the shipowner has in fact repaired the ship at the 
 port of refuge, and might have carried on the cargo in her, his 
 failure to do so is a breach of the contract, whether the repairing 
 could reasonably have been required or not (s). 
 
 303. There is, however, still some uncertainty as to the precise 
 test to be applied in determining whether the shipowner is absolved 
 from further carrying the goods. In estimating whether he can 
 reasonably be required to repair the ship, for that purpose, ought 
 the freight which will be earned by completing the voyage to be 
 taken into account ? And ought the value of the ship if sold in 
 her damaged state to be considered ? 
 
 If the obligation to repair and proceed depends upon whether 
 the shipowner would thereby sustain a pecuniary loss, it is obvious 
 that both those elements should generally be brought into the 
 calculation. But if the true test is whether the ship, as a ship, is 
 worth repairing, that is to say, whether when repaired she will be 
 worth the cost of repairing, those elements should be excluded. 
 
 In Assicurazioni Grenerali v. S.S. Bessie Mon-is Co. {a), the 
 Court of Appeal, affirming Collins, J., held that the shipowner 
 was bound to repair and complete the voyage, if that was practicable 
 in a business sense. Collins, J., had considered that a test of this 
 would be whether the ship was a constructive total loss. But Lord 
 • Esher thought that the rules as to constructive total loss were not 
 applicable as between shipper and shipowner. Without suggesting 
 a definite test. Lord Esher said, " If the cost of the repairs necessary 
 to enable her to complete the voyage contracted for would be more 
 than the benefit which the owner would derive from them, then it 
 would be impossible in a business sense to repair her." 
 
 (ic) Assiourazioiii Generali v. S.S. at p. 659. 
 
 Bessie Morris Co., (1892) 1 Q. B. 671 ; (z) Assicurazioni General! v. S.S. 
 
 2 Q. B. 652. Bessie Morris Co., supra. 
 
 (y) Per Bowen, L. J., (1892) 2 Q. B., (a) (1892) 1 Q. B. 571 ; 2 Q. B. 652. 
 
PORTS OF REFUGE. 353 
 
 The questions of diflSoulty, however, are whether it is sufficient Sect. 303. 
 for the shipowner, in order to excuse himself, to show that he will 
 not under all the circumstances be benefited by repairing and com- 
 pleting the voyage ; or, on the other hand, whether he is bound to 
 repair and proceed if he can repair the ship without losing by 
 that. 
 
 It is submitted that the value of the damaged ship, as a ship, is 
 not an element to be considered. If it were, the shipowner's 
 obligation to the shipper would depend upon the market for 
 damaged ships at the port of refuge, and might disappear although 
 the damage suffered were only slight {b) . 
 
 The question whether the freight which may be earned by com- 
 pleting the voyage should be brought into account is more difficult. 
 It may seem reasonable to require the shipowner to repair if he can 
 thereby earn a freight which wUl repay the cost ; even though the 
 repaired ship alone will not be worth that cost. On the other 
 hand, it seems anomalous to allow the measure of the shipowner's 
 obligation to depend upon whether the freight has been paid in 
 advance or not. Where freight has been paid in advance the ship- 
 owner retains it, although the voyage be abandoned (c). His 
 obligation to complete the voyage in such a case should not be 
 lower than where the freight depends on arrival at the destination. 
 Either, then, the freight should be brought iuto the calculation 
 whether it is payable in advance or upon arrival, or else the obli- 
 gation to repair and proceed should be confined to cases in which 
 the value of the repaired ship will equal the cost of repairing. 
 
 304. The voyage ought to be completed in the same ship. But SMpowner's 
 " if by reason of the damage done to the ship, or through want of tranship. 
 necessary materials, she cannot be repaired at all, or not without 
 very great loss of time, the master is at Ulerty to procure another 
 ship to transport the cargo to the place of destination" {d). And 
 having done so, although at a rate of freight lower than that agreed 
 
 [b) On the oorr&ponding question ia Amould Insur. (6th) 1051. 
 
 relation to constrnotiTe total loss, see («) De Silvale v. Kendal, 4 M. & S. 
 
 Young V. Turing, 2 M. & Gr. 593 ; but 37 ; Havelook v. Geddes, 10 East, 855 ; 
 
 see the view there taken questioned in Byrne v. Schiller, L. E., 6 Ex. 20, 319. 
 
 MoArthur Insur. (2nd) 149 ; Lowndes {d) Abbott (5th), p. 240 ; (13th), 
 
 Insur. B. 228 ; and of. the definition of a p. 411. And see Luke v. Lyde, 2 Burr, 
 
 constructive total loss ia Moss v. Smith, 882; Matthews v. Gibbs, 30 L. J., Q. B. 
 
 19 L. J., 0. P. 225 ; 9 0. B. 94 ; and in 65. 
 
 C. — C. A A 
 
354 
 
 THE VOYAGE. 
 
 Seot.-304. for in the original contract, he will he entitled to the fuU agreed 
 freight should the goods arrive (e). 
 
 When, as in a case of that kind, the master effects the tranship- 
 ment for the henefit of the shipowner, he must be regarded as 
 contracting on his behalf, and not as agent for the owner of the 
 cargo (/) ; and the shipowner continues under the same risks and 
 obligations to the cargo owner during the substituted transport as 
 he would have been under if the conveyance had been continued in 
 his own ship. 
 
 In The Bemina {g) the master, after a collision, had transhipped 
 the goods into The Avebury, under bills of lading, which excepted 
 negligence in navigation. The transhipment was justifiable, and 
 was done on account'of the shipowners, with a view to earning the 
 freight, and not on account of the plaintiff, the cargo owner. The 
 original shipment was under a charter party which did not except 
 negligence. The goods were lost by negligent navigation of The 
 Avebury. Sir J. Hannen held that the shipowners were liable ; 
 they " were not entitled as between themselves and the plaintiff to 
 substitute any other terms upon which the cargo was to be carried 
 than those which had been agreed upon in the original charter 
 party." 
 
 But the shipowner is not bound to employ another vessel to 
 complete the voyage to his own loss. If, therefore, the only terms 
 upon which another ship can be got are such that the whole agreed 
 freight and more wiU be absorbed by the expenses of forwarding, 
 the master is entitled, and in duty to the shipowner is bound, to 
 abandon the voyage unless he can complete it in his own ship. 
 And, presumably, the same is true where the freight has been paid 
 in advance. 
 
 Duty to act 305. StUl the master is bound, as we have seen, to take such 
 
 for cargo 
 
 owner if steps as may be prudent to protect the interests of the cargo 
 
 abandoned, owners ; the shipowner beiug responsible for his performance of 
 
 that duty. If, then, the further prosecution of the voyage is 
 
 abandoned, the master has power, and he ought, to act for the cargo 
 
 owners in transhipping, or making such other arrangements as may 
 
 be in prudence requisite ; and he may contract on their behalf for 
 
 the forwarding of the goods. If it is practicable he should obtain 
 
 («) Shiptonu. Thornton, 9 A. &E. 314. Q. B. 65. 
 
 (/) See Matthews v. Gibbs, 30 L. J., {g) 12 P. D. 36. 
 
POETS OP REFUGE. 355 
 
 their Instructions before doing so ; but where, owing to the perish- Sect. 305. 
 able nature of the cargo, or to the expense of storing it, it would 
 be plainly imprudent to delay until they have been communicated 
 with, he has authority to act without instructions {h). And if 
 means of forwarding the goods to their destination upon advan- 
 tageous terms may be obtained by reasonable exertions, then it 
 seems that the shipowner, through his master, is bound to act for 
 the cargo owners in that way (^). 
 
 " The case now put supposes an inability to complete the con- 
 tract on its original terms in another bottom, and, therefore, the 
 owner's right to tranship will be at an end ; but still, all circum- 
 stances considered, it may be greatly for the benefit of the freighter 
 that the goods should be forwarded to their destination even at an 
 increased rate of freight ; and if so it wUl be the duty of the master, 
 as his agent, to do so. In such a case the freighter will be bound 
 by the act of his agent, and of course be liable for the increased 
 freight. The rule wiU be the same whether the transhipment be 
 made by the shipowner or by the master; and in applying it 
 circumstances make it necessary, on the one hand, to repose a large 
 ■ discretion in the master or owner, while the same circumstances 
 require that the exercise of that large discretion should be very 
 narrowly watched" {k). 
 
 306. A contract thus made by the master must be fair in the Contract for 
 interest of the owner of the goods, or he will not be bound by must°bTfaS. 
 it {I). In Matthews v. Gibbs {I), The Planter had been chartered 
 by the defendants to bring a cargo of guano from the Chincha 
 Islands to England, for a freight of 70s. a ton. A cargo was 
 loaded at the Islands and the vessel returned to Callao, whence 
 she was finally to clear. Advances were then made by the defen- 
 dants' agents against the freight. After sailing from Callao The 
 Planter was compelled to put back owing to a leak, and it was 
 found that the cargo must be discharged. The master thereupon 
 chartered The Alarm and another vessel to take the cargo on ; the 
 defendants' agents at Callao refusing to interfere. 
 
 (A) SHpton V. Thornton, 9 A. & E. 3 0. Rob. 240 ; The Hamburg, 32 L. J., 
 
 p. 337 ; Matthews v. Gibbs, 30 L. J., Ad. 161 ; 33 L. J., Ad. 116 ; Atwood v. 
 
 Q. B. 65. Of. Gibbs v. Grey, 26 L. J., SeUar, 3 Q. B. D. 342 ; Niagara v. 
 
 Ex. 286. Oordea, 21 Howard, U. S. E. 7. 
 
 (j). Shipton V. Thornton, 9 A. & E. {Je) Per Lord Denman, C. J., Shipton 
 
 314 ; Oamian v. Meabum, 1 Bing. 243 ; v. Thornton, 9 A. & B. at p. 337. 
 Abbott (5th), p. 240; (13th), p. 411; {t) Matthews v. Gibbs, SOL. J., Q. B. 
 
 Ang. Carr. s. 187. Of. The Gratitudine, 55 ; Gibbs v. Grey, 26 L. J., Ex. 286. 
 
 aa2 
 
356 
 
 THE VOYAGE. 
 
 Sect. 306. The freight made payable by the charter of The Alarm was 
 70s. a ton, though the ruling freight at the time from Callao to 
 England was 40s. a ton ; but by private arrangement the differ- 
 ence of 30s. a ton was to be paid by the master of The Alarm to 
 the master of The Planter. The defendants, however, refused to 
 pay the 70s. a ton without first deducting the advances already 
 made by them to The Planter at Oallao, and it was held that 
 they were not liable to do so. The Alarm must be considered 
 to have been chartered on behalf of the owner of The Planter, 
 and not of the defendants ; for otherwise it would have been a 
 fraud upon them : and no greater lien for freight was given to 
 the owners of The Alarm than was possessed by the owners of 
 The Planter. 
 
 It was also held that if the charter of The Alarm was made 
 on behalf of the defendants it was made without authority. " It 
 must be understood that this implied authority of the master is 
 co-extensive with, and limited by, the necessity out of which it 
 arises, just as it also is when he acts under extraordinary circum- 
 stances as the agent of his owners with regard to pledging their 
 credit, or the ship itself, for necessaries for the ship. . . . Now 
 in this case it is clear there was no necessity for the contract into 
 which Carlisle, the master, entered. There might be a necessity, 
 indeed, under the particular circumstances for his procuring other 
 vessels in order to transmit the cargo to its place of destination ; 
 but there was none for his entering into a contract to pay freight 
 at the rate of 70s. per ton " (m). 
 
 307. Should the master relinquish the attempt either to carry 
 on the goods in his own ship or to send them to their destination 
 in another ship, he will thereby wholly abandon any claim for 
 freight in respect of them, unless it has been made payable in 
 advance, or irrespective of delivery. Where freight is only pay- 
 able on delivery, no part is earned until it is earned completely. 
 So that whether the abandonment of the voyage be due to in- 
 ability, or prevention of the ship (n), or to the necessity of selling 
 the goods, either to raise funds for the ship's repairs (o) or 
 
 EeBeot on 
 freight of 
 abandoning 
 Toyage. 
 
 (m) Per Oooktum, C. J., 30 L. J., 
 Ex. p. 63. 
 
 («) Cook V. Jennings, 7 T. E. 381 ; 
 Metcalfe v. Britannia Ironworks Co., 1 
 
 Q. B. D. 613; 2 Q. B. D. 423; The 
 Kathleen, L. B., 4 A. & E. 269 ; The 
 Cito, 7 P. D. 5. 
 
 (o) Hopper v. Burness, 1 C. P. D. 
 137. 
 
POETS OP REFUGE. 357 
 
 in their owner's interest (p), the shipowner loses the whole Sect. 307. 
 freight. 
 
 On the other hand, if the cargo be accepted at the port of refuge 
 under an agreement that delivery there shall be treated as a per- 
 formance by the shipowner of his contract (q) ; or if the owner of 
 the goods, by any act or default, prevents the shipowner from 
 carrying them on to their destination (r), the whole of the freight 
 becomes at once payable. 
 
 Also sometimes the shipowner becomes entitled, by agreement, 
 on deKvery at a port of refuge, to freight in proportion to the part 
 of the voyage which has been accomplished. This subject will be 
 discussed more fully hereafter (s). Here it is enough to say that 
 no agreement of this kind can arise, by implication, unless the 
 cargo owner has consented to accept the goods under circumstances 
 which left him an option to have them carried on to their destina- 
 tion by the shipowner, in his own or some other vessel (t). 
 
 308. Where the vessel has been abandoned at sea by the master Abandonment 
 and crew, without any intention of returning to her, the freighter 
 is entitled to treat the contract as abandoned ; so that if she be 
 brought into port by salvors, he may claim the goods without 
 becoming liable to pay freight (w). 
 
 In The Cito («), the Court of Appeal decided that the shipowner 
 had no claim for freight after the abandonment ; but declined to 
 say that that put an end to the contract of affreightment. By the 
 abandonment the shipowners gave the cargo owners a right to elect 
 to treat the contract as at an end. " We do not decide what would 
 have been the result if, after the ship had been brought in as it was 
 by the salvors, and before the cargo owners had come in and 
 exercised their right to the cargo, the shipowners had given bail for 
 the ship and cargo, and had carried the cargo on " (</) . 
 
 In The Amo (s), the ship, after being abandoned by the master 
 and crew, was picked up by the steamship Merrimac. The owner 
 
 (p) VUerboom v. Chapman, 13 M. & {t) Hopper v. Bumeas, 1 C. P. D. 
 
 W. 230 ; Hunter v. Prinsep, 10 East, 137 ; HiU v. WUsou, i C. P. D. 329. 
 378 ; HiU v. WUson, 4 C. P. D. 329. („) The Kathleen, L. E., 4 A. & E. 
 
 {q) See Cihristy v. Eow, 1 Tann. 300. 269 ; The Cito, 7 P. D. 6. Cf. The 
 
 (r) Cargo ex Galam, 33 L. J., Ad. Leptir, 52 L. T. 768. 
 97 ; The Soblomsten, L. E., 1 A. & E. (i!;\ 7 P D 5 fl8811 
 
 p. 297. SeeBlasco». Fletcher, 32 L. J., , ! t. -o \. x t „ t, t. 
 
 y, T> CC4 ■ ^ ,,- («) Per Brett, L. J., 7 P. D. p. 9. 
 
 C. P. 284 ; mfra, a. 554. ^' ' ' *^ 
 
 (s) Chap. XVI. W 72 L. T. 621 (1895). 
 
358 
 
 THE VOYAGE. 
 
 Sect. 308. of The Arno, hearing of this, ohtained an undertaking from the 
 owners of The Merrimac that they would hold The Arno for him 
 on her arrival at a port in the United Kingdom. He also sent 
 out a tug to meet The Arno ; and on her arrival at Liverpool, 
 which was her destination, he got possession of her from the 
 salvors. Still, it was held hy the Court of Appeal, affirming 
 Bruce, J., that, as the cargo owners had given notice before the 
 ship's arrival, that they treated the contract as ended, they were 
 entitled to have the cargo without paying any freight. The 
 question whether the shipowners, if they regained possession before 
 the cargo owners elected to treat the contract as ended, could 
 claim to resume the contract without any fresh agreement, was 
 regarded as still open. 
 
 In the United States it has been held, by a Circuit Court of 
 Appeals, in the case of The Eliza Lines (a), that the contract of 
 carriage still continues after an abandonment at sea. 
 
 309. The master is entitled to delay for such a period as may be 
 reasonable under the circumstances, before deciding on the course 
 he will adopt. He may claim a fair opportunity of carrying out 
 the contract, and earning the freight, whether by repairing or 
 transhipping {b). But if he has had such an opportunity, and has 
 failed to avail himself of it, the owner of the goods may claim 
 that they shall be given over to him. Should the repair of the ship 
 be undertaken, it must be proceeded with diligently ; and if so 
 done, the freighter will have, no ground of complaint, although the 
 consequent delay be a long one. Unless, indeed, the cargo is 
 perishable, and likely to be injured by the delay. Where that is 
 the case, it ought to be forwarded, or sold, or given up, as the case 
 may be, without waiting for the repairs. 
 
 Master may 
 delay reason' 
 ably before 
 abandoning 
 at port of 
 refuge. 
 
 Power to 
 hypothecate 
 or sell cargo 
 for repairs, 
 &c. 
 
 Bottomry. 
 
 310. The money for repairs and other expenses necessary to 
 enable the ship to complete the voyage can frequently only be 
 
 into the Admiralty Court, is only a par- 
 ticular phase, not differing in essentials 
 from other phases of the incidents of 
 the perils of navigation, from which 
 the ship is bound to relieve the cargo bo 
 far as circumstances will permit, and 
 ■which -will not deprive the vessel of its 
 freight if prepared to earn it" (p. 330). 
 (4) See The Blenheim, 10 P. D. 167. 
 
 (a) 61 Fed. Rep. 308 (1894). After 
 commenting upon the English decisions, 
 and text books, as presenting an " in- 
 harmonious and imsettled " result, the 
 Court said as follows : " We feel com- 
 pelled to hold that the circumstance of 
 derelict, followed by the further circum- 
 stance that the derelict comes into the 
 hands of salvors, and from their hands 
 
BOTTOMRY. 
 
 359 
 
 procured ty giving the property which is under the master's control Sect. 310. 
 as security. Where the master is without credit (c), and the repairs 
 cannot prudently be postponed until he has been put in funds by 
 the shipowner, or by others interested, he is empowered to hypo- 
 thecate the property in order to obtain the necessary funds. 
 
 The hypothecation for repairs ought, in the first iastance, to be 
 of the ship and her freight. But if these are an insufficient secu- 
 rity, the master or person in command of the adventure (d) may, 
 in oases of necessity, and when the interests of the cargo owner 
 require it, hypothecate the cargo also ; or even sell a portion of it, 
 for the same purpose (e). 
 
 He has conditional authority to do this from the owner of the 
 goods, implied from the fact that they have been shipped in that 
 ship for that voyage. Brett, L. J., in The Gaetano and Maria (/), 
 said : " This authority of the master of the ship to hypothecate 
 the ship or cargo is peculiar. It does not arise merely out of a 
 contract of bailment, for that contract gives no such right. It 
 does not arise even out of a contract of carriage on land. I doubt 
 whether it arises on a contract of sea carriage, where it is all 
 within the realm, but it is not necessary that this should be now 
 decided. It does arise where the goods are shipped on board a ship 
 to be carried from one country to another. That is acknowledged 
 by the maritime law of England, and, as far as I know, is equally 
 acknowledged in every maritime country. It arises from the 
 necessity of things; it arises from the obligation of the ship- 
 owner and the master to carry the goods from one country to 
 another, and from its being inevitable from the nature of things 
 that the ship and cargo may at some time or other be in a strange 
 port where the captain may be without means, and where the ship- 
 owner may have no credit because he is not known there, that for 
 the safety of all concerned, and for the carrying out of the ultimate 
 object of the whole adventure, there must be a power in the master 
 not only to hypothecate the ship but the cargo " (g). 
 
 (c) The Hero, 2 Dods. 139 ; The bond camiot be given : The Hebe, 2 W. 
 
 Faithful, 31 L. J., Ad. 81 ; TheEmpire Rob. 146. 
 
 of Peace, 39 L. J., Ad. 12; The Stafford- (d) See Parmeter v. Todhunter, 1 
 
 shire, L. E., i P. C. 194. As to the Camp. 541. 
 
 master's power to pledge the ship- («) The Gratitudine, 3 0. Rob. 240 ; 
 
 owner's credit, see Arthur v. Barton, 6 The Karnak, L. R., 2 A. & E. 289 ; 
 
 M. & W. 138 ; Beldou v. Campbell, 20 L. E., 2 P. 0. 505. 
 
 L. J., Ex. 342. Where the lender is a (/) 7 P. D. 137, at p. 145. 
 
 debtor of the shipowner, a bottomry (g) This case decided that the autho- 
 
360 
 
 THE VOYAGE. 
 
 Sect. 311. 311. An hypothecation will not, however, be valid unless it is 
 Must he done made prudently, having regard to the interests of the cargo owner, 
 fnterest^of '"^ ^^ The Gratitudine {h) , Lord StoweU said : " In all eases it is the 
 cargo owner., prospect of benefit to the proprietor that is the foundation of the 
 authority of the master. It is therefore true, that if the repairs 
 of the ship produce no benefit or prospect of benefit to the cargo, 
 the master cannot bind the cargo for such repairs ; but it appears 
 to me that the fallacy of the argument, that the master cannot 
 bind the cargo for the repairs of the ship, lies in supposing that 
 whatever is done for the repair of the ship is in no degree, and 
 under no circumstances, done for the benefit, or with a prospect of 
 benefit, to the cargo ; whereas the fact is, that though the prospect 
 of benefit may be more dixect and more immediate to the ship, it 
 may still be for the preservation and conveyance of the cargo, and 
 is justly to be considered as done for the common benefit of both 
 ship and cargo " (i). 
 
 In The Onward [k), Sir E. PhiUimore said : " The master must 
 endeavour to hold the balance evenly between his two principals ; 
 he must not sacrifice the ship to the cargo, or the cargo to the ship. 
 In this case, the outlay on the ship which the cargo is to pay is 
 very great. The master is asked ' Whether by the repairs she was 
 made as good a ship as she was at the outset ? ' He answers, 
 ' Better ship than she was the day I took her.' I do not think, 
 upon the evidence before me, that a reasonable and prudent owner, 
 if present, would have allowed his cargo to be bottomried for such 
 very extensive repairs. He would rather have paid the freight 
 and re-shipped the goods." 
 
 Hypotheoa- 
 tion by bot- 
 tomry bond. 
 
 312. The hypothecation is effected by a contract which is known 
 as a bottomry bond where the ship as well as the cargo is included, 
 or as a respondentia bond where the cargo alone is charged. It is 
 a contract by which a charge is given upon the property in the 
 event of its arrival at its destination. The grantee of the bond 
 takes the risk of the voyage, and in consideration of that a 
 premium or high rate of interest is usually included in the 
 
 rity is determined by the law of tte 
 iiag': supra, a. 211. 
 
 (A) C. Eob. 240, p. 261. 
 
 (i) The dicta in this case regarding 
 the master's authority for the cargo 
 owner are to be read in reference to the 
 power of binding the cargo to the lender 
 
 of money, not as determining the rights 
 of shipper and shipowner inter se. See 
 Benson v. Duncan, 18 L. J., Ex. 169, at 
 p. 172. 
 
 (/c) L. E.., 4 A. & E. 38, at p. 58. 
 Cf. The Hamburg, 32 L. J., Ad. 161 ; 
 33 L. J., Ad. 116. 
 
BOTTOMRY. 361 
 
 amount. The bond does not pass the property in the ship or cargo Sect. 313. 
 to the grantee, but gives him a maritime lien upon them, which 
 may be enforced by process of the Admiralty Court {I). 
 
 This contingent character of the contract is essential to its 
 vaKdity as a bottomry transaction (m). And probably the master 
 cannot hypothecate the cargo except subject to the contingency of 
 arrival. Even with regard to the ship, his power of hypothe- 
 cating only extends to giving a lien upon her, to be enforced 
 by Admiralty process : he cannot mortgage or pledge her, so as to 
 pass the right of property or of possession («). And in order to 
 confer a maritime lien enforceable by process the hypothecation 
 must be conditional upon arrival, whether maritime interest is 
 secured or not (o). 
 
 313. In the Cargo ex Sultan (p), money had been advanced at a Wliere part of 
 port of refuge (Key West), under agreement for a respondentia leff behind?^ 
 bond, to discharge salvage incurred by the cargo of The Sultan, 
 which had stranded, after the advance part of the cargo was 
 transhipped into The Otseonthe. But she caught fire and was 
 destroyed ; and such of those goods as were saved were sold, and 
 their net proceeds remained in Court at Key West. The rest of 
 the cargo was shipped in The T. J. Roger, and arrived. Before 
 The T. J. Roger sailed, the master of The Sultan gave a respon- 
 dentia bond to the lender for the whole advance, covering the 
 goods shipped on The Otseonthe as well as those in The T. J. Roger, 
 but making the whole sum payable in the event of the arrival of 
 the latter. Upon proceedings against these goods it was held that 
 the bond was good in part, though it covered property not exposed 
 to maritime risk, viz., that which had been shipped in The 
 Otseonthe, and that the owners of what had been brought home 
 must " pay not the whole amount of the bond, but a proportion of 
 that amount according to the value of the property delivered, and 
 that the bondholder should seek his remedy for the remainder 
 against the proceeds of the cotton at Key West." 
 
 (Z) Stainbank v. Shepard, 22 L. J., Sess. Ca. (2iid), 548; The Haabet, 
 
 Ex. 341. (1899) P. 295. 
 
 {m) Ibid. ; The Atlas, 2 Hagg. 63 ; („) Stainbank v. Shepard, 22 L. J., 
 
 The Emancipation, 1 W. Bob. 124 ; The jjx. 341 ; Stainbankii. Fenning, 20 L. J., 
 
 Indomitable, Swab. 446. The bond q_ p. 226. 
 may be a collateral seoiority for bills of 
 
 exchange . Jbid. ; The Staffordshire, (") ^^• 
 
 L. R., 4 P. C. 194 ; The Onward, L. R., {p) Swab. 504. Cf . as to freight, The 
 
 4 A. E. 38 ; Cochrane v. GHlMson, 16 Staffordshire, L. R., 4 P. C. 194, p. 210. 
 
362 
 
 THE VOYAGE. 
 
 Sect. 314. 314. The power to bottomry the cargo, or to sell part of it, is 
 Bottomry for not confined to raising money for repairs. The object may be to 
 obtain supplies ; or to meet other necessary disbursements at the 
 port of refuge ; or in other ways to enable the ship to prosecute 
 and complete her voyage. What is essential is that the money 
 should be necessary for the furtherance of the voyage on which 
 she is carrying that cargo {q), and that the hypothecation of the 
 cargo should be necessary in order to obtain it. Thus, a bottomry 
 bond given for a previous debt of the shipowner, or in respect of 
 charges incurred on a previous voyage, will not bind the cargo (r). 
 Nor will a bond be valid against it which has been given to secure 
 a loan originally made on personal credit, and not in the expecta- 
 tion of security being given (s) . But the Court is apt to presume 
 that bottomry was intended {t). 
 
 Where a bond has been given ia respect of expenditure which 
 has only in part been necessary for the purposes of the voyage, it 
 will be valid against the cargo to that extent and no further. 
 And the question to be determined is, whether the work or pay- 
 ments were really necessary ; not whether the lender thought, or 
 had reasonable grounds for thinking, that they were (u). 
 
 Cargo must 315. The master cannot charge cargo by a bottomry bond before 
 shipped. it has been shipped, if the shippers have not assented. In The 
 
 Jonathan Goodhue («) the ship had been repaired at Calcutta in 
 November and December, 1856 ; and was there chartered on 
 December 31st to proceed to Rangoon, and take a cargo for the 
 United Kingdom. On. January 8th, before saiHng from Calcutta, 
 the master gave a bottomry bond, which recited the charter, and 
 purported to bind the ship, the cargo to be laden under the 
 charter, and the freight to become due upon it. The charterers 
 did not consent to this ; and they had no interest in the debt 
 for which the money was borrowed. It was held by Dr. Lushing- 
 ton that the bond was not valid against the cargo. " There is no 
 authority for giving a bottomry bond on cargo before it is put 
 
 [q) As to what are necessaries, see Empire of Peace, 39 L. J., Ad. 12 ; The 
 
 Wm. & Br. Ad. (2nd), 181 et seq. ; The Ida, L. E.., 3 A. & E. 542. 
 
 Karnak, It. R., 2 P. C. 506. ,,, „, „.,.,. , .^rr x, , 
 
 / \ rr^ r> T o -nr -D 1, , no oiu W The Vibilia, 1 W. Eoh. 1 : The 
 
 ()■) The Osmanh, 3 W. Rob. 198 ; The /n ,i . „ T,r i , „ ™ J 
 
 T ^i, n jv, a -u o^c rri. Gauntlet, 3 W. Rob. 82 ; The Laurel, 
 
 Jonathan Goodhue, Swab. 36S ; The q^t T Ail T? """o^, 
 
 Edmond, 29 L. J., Ad. 76 ; The North "' 
 
 Star, 29 L. J., Ad. 73. (") ^he Pontida, 9 P. D. 102, 177. 
 
 («) The Augusta, 1 Dods. 283 ; The {x) Swab. 355. 
 
BOTTOMRY. 363 
 
 on board. It is the necessity of the cargo, and the required Sect. 315. 
 completion of the voyage which has been interrupted, which 
 warrant the bond to extend to cargo. I take it to be quite clear 
 that where a ship is lying in her original port, and is in need 
 of repairs in consequence of a former voyage, or in need of 
 necessaries, no bottomry bond can be given on cargo which is 
 not shipped : and that for the obvious reason that the master has 
 no control over the cargo tiU it is on board the ship." 
 
 316. The necessity for hypothecation or sale of the cargo to Duty to oom- 
 p 1 .1 J J • J -J • municate. 
 
 raise lunds must be so urgent as to give no opportunity, in a 
 
 practical sense, of communicating with the owners or agents of 
 
 the cargo : otherwise the authority of the master to act on his 
 
 own responsibility does not arise. If he can prudently wait to 
 
 communicate he must do so, and a sale or hypothecation made 
 
 without doing so is invalid («/) . 
 
 " The master is invested by presumption of law with authority 
 
 to give directions on this ground — that the owners have no 
 
 means of expressing their wishes. But where such means exist, 
 
 where communication can be made to the owners, and they can 
 
 give their own orders, the character of agent is not imposed 
 
 upon the master, because the necessity which creates it does not 
 
 arise" (s). 
 
 And the absence of an attempt to communicate is not excusable 
 
 on the ground that probably no reply would have been obtained. 
 
 " If it be rational to expect that he may obtain an answer within 
 
 a time not inconvenient with reference to the circumstances of the 
 
 case, then it must be taken upon authority and principle that it is 
 
 the duty of the master to do so, or at least to make the 
 attempt" (a). 
 
 Also the communication with the owners must be such as to 
 
 show them that it is intended to hypothecate the cargo, if that is 
 
 the case {b). 
 
 (y) Kleiuwort v. Casa Marittima of {«) The Hamburg, 33 L. J., Ad. 116, 
 
 Genoa, 2 A. C. 156 ; The Onward, L. E., p. 118. Where owner has an agent at 
 
 4 A. & E. 38 ; The Hamburg, 32 L. J., the port : Gunn v. Roberts, L. E., 9 
 
 Ad. 161 ; 33 L. J., Ad. 116 ; The Bona- 0. P. 331. 
 
 parte, 18 Moo. P. 0. 459 ; The Oriental, (a) Hid., correcting a passage in the 
 
 7 Moo. P. C. 398 ; The Stafiordshire, judgment in The Bonaparte, 18 Moo. 
 
 L. R., 4 P. 0. 194. Of. The Lizzie, P. C. 469. Of. The Lizzie, L. R., 2 
 
 L. E., 2 A. & E. 254 ; Cargo exOUvier, A. & E. 254. 
 
 31 L. J., Ad. 137 ; Glaaoott v. Lang, 2 (i) Kleinwort v. Caaa Mar. of Genoa, 
 
 Phillips, 310 ; Cargo ex Sultan, Swa. 2 A. 0. 156 ; The Onward, L. E., 4 
 
 504. A. & E. 38. 
 
364 
 
 THE VOYAGE. 
 
 Sect. 317. 317. A bottomry bond is enforced by proceedings in rem in the 
 Enforcement Admiralty Court against the property charged. If necessary that 
 bonds. ■wUl be sold, and the proceeds distributed amongst the various 
 
 persons entitled to charges upon it. And where the ship and 
 freight are insufficient, some part of the obligation may fall upon 
 the cargo, if the bond includes that. If there are other liens on tlie 
 ship and freight, competing with the bond, the liability of the 
 cargo to satisfy the bond may depend upon the order in which the 
 several Hens are paid off. For that liability only arises where ship 
 and freight have been exhausted ; and the ship and freight may, 
 or may not, be applied in satisfying the bond in priority to claims 
 which cannot fall on the cargo. 
 Prior charges Claims upon the ship and freight for salvage (c), or for damage 
 done subsequent to the bond {d), or for wages of the master or 
 crew (e) accrued during the voyage (/), or for pilotage, towage or 
 dues {g), must be satisfied before the ship and freight can be applied 
 to the discharge of bottomry claims. But not so other unsecured 
 claims for necessaries ih). The claims for salvage, wages and 
 pilotage, &c. are payable out of the ship and freight rate- 
 ably («■). 
 
 Where the master is a party to the bond, indeed, he cannot claim 
 priority for his wages to the prejudice of the bondholder ; but this 
 does not prevent him from claiming that priority where the bond- 
 holder will not be prejudiced by his doing so, although the cargo 
 owner may be (/c). 
 
 As between different bondholders their Hens rank in the inverse 
 order of the dates of their bonds, the earlier bond being postponed 
 to the later IJ) ; for the later bond is, in effect, in aid of the 
 earlier. But if loans are made by different persons as parts of one 
 transaction, iu privity and concert with one another, they are put 
 
 {e) The Gustaf, 31 L. J., Ad. 207. 250. Of. The Andalina, 12 P. D. 1. 
 
 {£) The Aline, 1 W. Rob. Ill ; The (a) gee The Hope; The WUUam F. 
 
 Elin, 8 P. D. 39, 129. There seems SaflBord, s«pra ; The Heinrich Bjom, 11 
 
 also to be little doubt that claims for _a.. c. 270 ; 10 P. D. 44 • The Chioggia 
 
 damage done by the ship prior to the (1898) P. 1. Cf. The Gustaf, supra. 
 bond are payable in priority to that ; 
 
 except where the bond has been given (') '^^ Dowthorpe, 2 W. Eob. 73; 
 
 to payfor repairs done after the damage. '""^^ Constancia, ib. 460. 
 
 See The AUne, supra. W The Edward Oliver, L. E,., 1 A. 
 
 («) The William F. SafiEord, Lush. 69. & E. 379 ; The Eugenie, L. E., 4 A. & 
 
 (/) See The Hope, 28 L. T. 287. E- 123. 
 
 ig) The Constancia, 2 W. Eob. 460. {I) The Prisoilla, Lush. 1; IL. T. 272; 
 
 Dock dues : The St. Lawrence, 5 P. D. The William F. Safford, Lush. 69. 
 
BOTTOMRY. 365 
 
 on an equal footing, notwithstanding a difEerenoe of dates in the Sect. 317. 
 bonds (to). 
 
 318. The cargo cannot be resorted to in satisfaction of a bottomry ^^^s° no* 
 
 ° _ ... resorted to 
 
 bond given for ship's expenses until the ship and freight have been till sUp and 
 exhausted ; even though the bond may not in terms comprise the eihausted. 
 ship and freight (»). 
 
 And this rule is still followed, although there may be an earlier 
 bond on ship alone, which will in consequence go unpaid (o). " If 
 the holders of the last bond which is upon ship, freight and cargo, 
 have the same and equal right to proceed against the cargo as 
 against the ship and freight, I should be disposed to hold that in 
 equity they should be compelled to proceed against both, and, in 
 aid of the other bonds, to resort in the first instance to the cargo. 
 But I apprehend that, upon the authority of the Prince Eegent 
 and the reasoning of Lord Stowell's judgment in The Grratitudine 
 (3 C. Eob. 240), the holders of the last bond have no such right 
 against the cargo ; they cannot make the cargo answerable until 
 the ship and freight have been exhausted. The owners of the cargo 
 have a perfect right to avail themselves of the principle of that 
 decision. They have a right to say that by law the cargo, though 
 legally hypothecated, cannot be touched till the ship and freight 
 have been exhausted. They are strangers to all previous bonds on 
 ship and freight " (p). 
 
 In The Ohioggia (q), one who had judgment for necessaries 
 against ship and freight claimed that the holders of a bond on ship, 
 freight, and cargo, should not take the proceeds of ship and freight, 
 but should be paid out of cargo, as otherwise his remedy would be 
 lost. That was not allowed. GroreU. Barnes, J., said : " Mar- 
 shalling cannot be permitted to the prejudice of third persons. 
 According to equitable doctrines, in order to marshal, not only 
 should there be two creditors of the same person, but one of 
 them should have two funds belonging to the same person to 
 which he can resort. (See Aldrich v. Cooper (r) ; Douglas ». 
 Cooksey (s).) In the present case the two funds belong to different 
 persons, namely, the shipowners and cargo owners respectively, and, 
 
 {m) The Exeter, 1 0. Eob. 174. {p) Per Dr. Lushingtou, Tlie Priscilla, 
 
 ,(«) The Constanoia, 2 W. Eob. 404, stipra. 
 460. (y) (1898) P. 1. 
 
 (o) Ibid. ; The PrisoiHa, Lush. 1 ; 1 
 L. T. 272. See Will. & Bruce, Ad. ^ * ^^^- ^®^- 
 
 (2nd), 69, n. («) Ir. Eep., 2 Eq. 311. 
 
366 THE VOYAGE. 
 
 Sect. 318. in my opinion, the neoessaries men have no right of marshalling. 
 They have no equity to have the claims adjusted so as to compel 
 the cargo owners in effect to provide the means of discharging the 
 claim for necessaries." 
 
 Prior claims 319. Also before the cargo can be made available for the bond- 
 on cargo. j^oiijer any prior claims upon it must be satisfied. Thus, claipis 
 for salvage due in respect of it must be paid. And where freight 
 became due on a subsequent transhipment of the goods, the 
 shipowner's lien for that was first satisfied. " The subsequent 
 carrying on of the cargo was essential to making it available 
 either for the holder of the respondentia bond or for anybody 
 else. It was in the nature of salvage service; and in a com- 
 petition of liens, the shipowner who has rendered a service of this 
 description is entitled to priority over the holder of a respondentia 
 bond who has done nothing, and whose money has contributed 
 nothing towards forwarding the cargo to its destination " (t). 
 
 So also a claim by the master on the cargo for general average 
 sustained during the voyage, for which he has a possessory lien, 
 must be satisfied in priority to the earlier bondholder (m). 
 
 Indemnity for 320. If the expenditure has been incurred for the safety of the 
 botto^ried"'^ ship and cargo generally, so as to be general average, it must be 
 for repairs. contributed to by the owners of the property which is ultimately 
 saved. And if part of the cargo has been sold to defray the 
 expenses, or if the cargo has been hypothecated for the same 
 purpose, and a liability has thereby fallen upon its owners, the loss 
 so occasioned must be contributed to as general average {x). 
 
 But where the expenditure has been upon repairs of the ship, 
 not the result of a general average act, the burden is the ship- 
 owner's, and it must be borne by him. If, then, the cargo has 
 been bottomried to defray the expense of such repairs, or other 
 expenditures which ought to be borne by the shipowner, the 
 owners of the cargo may look to him for an indemnity against 
 Shipowner all consequent loss {y). And if part of the cargo has been sold 
 oeeds of "sa^"" ^J ^^ master in order to repair, the shipowner becomes at once 
 indebted to the owner for the amount of the proceeds ; and must 
 
 [t) The Cargo ex Galam, 33 L. J., W See Chap. XII. 
 
 Ad. 97, at p. 102. (^) ^snson v. Duncan, 18 L. J., Ex. 
 
 169 ; afBiming 17 L. J., Ex. 238 ; 
 W ^^^- Hallett V. "Wigram, 19 L. J., C. P. 281. 
 
BOTTOMRY. 367 
 
 pay that whether the ship ever arrives at the destination to which Sect. 320. 
 the goods were to have been brought or not (s). 
 
 In Hopper v. Burness {a), part of a cargo of coals was sold at a 
 port of refuge for repairs, at a price higher than that obtainable 
 at the destination. It was held that the owner of the coals was 
 entitled to claim from the shipowner the full amount realised by 
 the sale ; without any deduction of pro raid freight to the Cape 
 of Q-ood Hope (a). 
 
 Also, the owner of the goods will not be confined to a claim 
 for these proceeds if the ship afterwards reaches her destination. 
 He will in that case be entitled, at his option, to an indemnity for 
 his loss through the non-delivery ; which will exceed the proceeds 
 of sale if he could have realised more for them at the destination, 
 taking the freight into account (b) . 
 
 The claim of the owner of cargo for the value of goods sold for 
 repairs of the ship does not give him a lien upon thfe ship, so as to 
 enable him to claim against her in priority to, or on an equality 
 with holders of bottomry bonds (c). 
 
 But he may set off the amount of the proceeds of the sale 
 against the freight which may be due from him on other, goods; 
 even though that may have been assigned by the shipowner {d). 
 
 (z) Benson v. Duncan, 18 L. J., Ex. (J) Hopper v. Burness, 1 C. P. D. 
 
 169; HaUett v. Wigram, 19 L. J., 137, per Brett and Archibald, JJ. ; Abb. 
 
 C. P. 281 ; per Brett, J., in Hopper v. , ^j^j . ^. j , 
 
 Bnmess, 1 C. P. D. 137, p. Ul. Gi. ^ " ' ^ " 
 Atkinson v. Stepbeus, 21 L. J., Ex. 329. («) The Constancia, 2 "W. Rob. 487. 
 
 (o) 1 C. P. D. 137. See Richardson (d) Campbell v. Thompson, 1 Stark. 
 
 V. Nourse, 3 B. & Aid. 237. 490. 
 
368 
 
 THE VOYAGE. 
 
 CHAPTER XI. 
 
 SALVAGE AND WRECK. 
 
 SECT. 
 
 Introductory 321 
 
 The right to salvage — Confined to 
 
 ships and cargoes 322 
 
 Object of the rule — No correspond- 
 ing rule on land i 323 
 
 The remedies of a salvor 324 
 
 Personal remedies 324a 
 
 His right limited by the amount 
 
 of property saved 325 
 
 Unless services employed 326 
 
 Agreement to pay in any event 
 
 not generally implied 327 
 
 Distinctions between employed and 
 
 unemployed salvors 328 
 
 Merchant Shipping Act, 1894 .... 329 
 Liability under the Act depends on 
 property being saved — Common 
 responsibility for life salvage. . . . 330 
 
 Life salvage 331 
 
 The ship or goods must be saved 
 
 from impending danger 332 
 
 The service must have had a valu- 
 able efleot 333 
 
 Otherwise if service employed .... 334 
 Who may be salvors ? — Not crew un- 
 less their service has terminated . . 335 
 Passengers not generally salvors . . 336 
 Pilot not generally a salvor -when 
 on duty as pilot — Boarding a 
 
 vessel ia danger 337 
 
 Pilotage may become salvage 338 
 
 Tug engaged to tow : owners and 
 crew not salvors unless character 
 
 of service altered 339 
 
 Distinction between towage and 
 salvage 340 
 
 SECT. 
 
 Effect on liability of cargo to con- 
 tribute 341 
 
 Where salving and salved vessels 
 belong to same owner 342 
 
 Where one is under charter to the 
 owner of the other 343 
 
 Considerations governing the 
 amount of salvage 344 
 
 Damage to salving ship and loss 
 of her services 345 
 
 Misconduct of salvors 346 
 
 Agreements as to amount — Must 
 not be unfair 347 
 
 When upheld 348 
 
 Master's authority to make 349 
 
 Contribution to salvage in propor- 
 tion to value 350 
 
 Freight contributes — Salvage 
 awarded on freight though not 
 completely earned 351 
 
 Cargo separately liable to salvors 
 — Valuation of cargo 352 
 
 Shipowner has lien for contribution 363 
 
 Unless he has been in fault 354 
 
 The right to wreck at common law. 355 
 
 Statutes relating to wreck 356 
 
 Remedy for damage by wreckers . . 357 
 Eoreign ship : owner represented 
 
 by consul-general 358 
 
 Removal of wrecks : liability of 
 
 ship and cargo for expenses .... 359 
 Removal of Wrecks Act, 1877 .... 360 
 
 Introduotory. 321. The liaMlity to remunerate salvors is an incident of a mari- 
 time adventure ■which, affects both freighter and shipowner, so that 
 the questions relating to it form part of our subject. It is not, 
 
SALVAGE AND WKECK. 369 
 
 towever, proposed to enter more than may be necessary into Sect. 381. 
 questions of the jurisdiction and practice of the Courts in which 
 the remedies of salvors are enforced; nor into the manner in 
 which salvage rewards are distributed among the salvors. These 
 matters will be found discussed in works on Admiralty Practice. 
 
 Here we have to consider the nature of salvage rewards, the 
 cases in which they can be claimed, and the liabilities of ship, 
 freight and cargo to contribute in payment of them. 
 
 322. One who saves, or helps in saving, a vessel to which he is a Tie right to 
 stranger, from danger at sea, is entitled to a reward for his services ; 
 and if he has obtained possession of the vessel, he may retain 
 possession until he has been paid the due reward. 
 
 So, also, with regard to cargo or other property belonging to a 
 vessel at sea which is rescued from danger, whether while in the 
 vessel or after having been thrown or washed out of her ; those 
 who rescue such property are entitled to reward, and to a lien 
 upon the property for that reward (a). 
 
 This right to reward also arises where such services have been 
 rendered to a ship, or to the cargo of a ship, within a river or 
 harbour (6), or even in a dock. 
 
 But, whether in a river or at sea, the property saved must be a Confined to 
 ship, or her apparel, or cargo, or the wreck of them (c). The cargoes. 
 right does not arise on saving property of other kinds which may 
 have been moored afloat, and have got adrift ; such as a raft of 
 timber (d), a buoy (e), or a floating dry dock (/). 
 
 The reward thus payable to salvors is called salvage. Some- 
 times, too, that word is used to denote the property which has been 
 salved ; or again, more broadly, property which has been saved, 
 without regard to hoto saved. 
 
 But though these rights are recognized in all our Courts, it is 
 in Courts of Admiralty that they practically have effect. The 
 rules which govern and define them are to be found for the most 
 
 (a) Hartfort v. Jones, 1 Ld. Bay. 393 ; 345 ; suggesting that goods in tow may 
 
 Nicholson v. Chapman, 2 H. Bl. 254. be cargo, and that some rafts may be 
 
 [h) The Carrier Dove, 2 Moo. P. C, ships. 
 
 N. S. 243 ; The Gas Float Whitton, (<?) Nicholson v. Chapman, 2 H. BI. 
 
 No. 2, (1895) P. 301. 254 ; Palmer v. Rouse, 27 L. J., Ex. 
 
 (c) The Gas Float Whitton, No. 2, 437 ; Raft of timber, 2 W. Rob. 251. 
 
 (1897) A. C. 337; (1896) P. 42. Ken- («) The Gas Float Whitton, No. 2, 
 
 nedy, Salvage, p. 2. As to the meaning supra. 
 
 of ship and cargo in this connection, see (/) Cope v. Vallette Dry Dock Co., 
 
 per Lord Hersohell, (1897) A. 0. at p. 119 IT. S. Eep. 625. 
 
 C. — C. B B 
 
370 THE VOYAGE. 
 
 Sect. 322. part in the decisions of the Admiralty Court, and are based upon 
 
 the principles of maritime law as there understood and adopted. 
 Object of 323. The rule of rewarding salvors is grounded on policy. It is 
 
 desirable to encourage those who chance to be in a position to help 
 vessels in distress to use their best exertions, to risk if necessary 
 their own lives and property, and to delay their own adventures, 
 for that purpose. The prospect of a reward, which is generally 
 assessed liberally, brings out a readiness and strenuousness which 
 cannot always be expected without that motive, and both lives and 
 property at sea are thus made more safe. 
 
 On the other hand, the right to salvage is, generally speaking, 
 confined to persons who are strangers to the vessel in distress, and 
 thus the evil is avoided of holding up inducements which may lead 
 men to produce disaster in order to reap gain from it. 
 No cor- No corresponding rule exists with regard to saving property 
 
 rule on land, upon land. Salvage services rendered, for example, in the case 
 of a house on fire do not entitle the salvor to reward, nor give 
 him any right to retain possession of the property he may have 
 saved. He only has a right to reward when his services have been 
 employed: whereas in the case of ships and cargoes the right springs 
 from the services themselves ; though it may also be the result of 
 a contract of employment. 
 
 Also, as above pointed out, services rendered to floating property, 
 although on the sea, are only rewarded by the Court when the 
 property is or has been a ship, or her cargo. 
 
 rf'IsXof^^ 324. A salvor, though entitled to reward, had no right of action 
 for that reward at common law, unless he was employed to do the 
 work, or acted under some contract [g). In Newman v. Walter Qi), 
 indeed, a passenger who stayed on board the vessel after her 
 captain had left, and at the request of the mate and crew under- 
 took the navigation, and brought her into port, was held, entitled 
 to sue the owner for salvage. But this appears to have been 
 allowed upon the ground that he acted on the request of those 
 who represented the owner ; or that he acted for the owner, who 
 ratified his action. 
 
 A salvor who is in possession of property which he has saved 
 has a possessory lien upon the property («) ; and, whether in pos- 
 
 [g) Lipson v. Harrison, 2 W. R. 10 ; (i) Hartfort v. Jones, 1 Ld. Ray. 393. 
 
 Atkinson v. WoodaU, 31 L. J., M. C. As to the duty to deUver to the receiver 
 174. (A) 3 B. & P. 612. of wreck, see infra, s. 366. 
 
SALVAGE AND WRECK. 3'M 
 
 session or not, lie has, the more extensive right of maritime lien, Sect. 324. 
 which he can enforce through the trihunals having Admiralty 
 jurisdiction. 
 
 By virtue of this maritime lien the salvor may proceed against 
 the property itself ; he can procure an arrest of it, into whose 
 hands soever it may have come, if it is within the jurisdiction of 
 the tribunal : and if necessary it will be sold, and his claim, when 
 allowed, satisfied out of the proceeds of sale. This maritime lien 
 arises and may be enforced although the salvor may never have 
 had actual possession of the property (/«) ; or though he has had 
 possession and has given it up {!). In general it is the remedy 
 to be relied upon; and a needless detention of the property is 
 looked upon by the Court with disfavour (m) . The lien extends 
 to the ship and cargo, and also to the freight where freight has 
 been saved (») ; and it is not impaired by changes in the ownership 
 or possession of the property. 
 
 324a. But though a personal remedy against the owners of Personal 
 salved property could not be had in the Courts of Common Law, 
 it seems clear that where property has been saved, and has come to 
 the owner's hands, a personal remedy against him can be had in 
 Courts exercising Admiralty jurisdiction, as well as the more usual 
 remedy by proceedings in rem against the property saved (o). This 
 remedy, in personam, seems, however, to have been in use only in 
 exceptional cases (p). 
 
 In the recent case of Five Steel Barges (q), a claim was made, 
 in personam, against a firm who had sold and delivered certain 
 barges to the government, for salvage services to the barges prior 
 to their delivery. Sir J. Hannen said, " I think it is perfectly 
 clear that an action, in personam, lies against the owners of a 
 vessel which has been saved, even though the property has been 
 transferred to others, and the lien lost " (r). 
 
 {&) TheGrlasgowPacket, 2'W.Ilob.306. (o) See the diseiission of the remedies 
 
 {I) The Eleanora Charlotta, 1 Hagg. in the Court of Admiralty in Kennedy, 
 
 156. Salvage, pp. 9 et seq. 
 
 [m) The Glasgow Packet, 2 W. Eob. {p) SeeThePapid, 3 Hagg. 419 ; The 
 
 306. Cf. The Gertrude, 30 L. J., Ad. Hope, 3 C. Eob. 215 ; The Trelawney, 
 
 130 ; The Pinnas, 59 L. T. 526. Ken- 3 C. Eob. 216 (n). 
 
 nedy, Salvage, p. 8 ; WiU. & Bruce, Ad. [q) 15 P. D. 142. 
 
 (2nd), 168. (r) 15 P. D. at p. 146. And in the 
 
 (») The Charlotte WyHe, 2 W. Eob. recent case in Scotland of Duncan v. 
 
 495 ; The Westminster, 1 W. Eob. 229, Dundee, Perth, and London Sh. Co., 15 
 
 p. 233. See M.S. Act, 1854, ss. 491,497. So. L. R. 429, where shipowners were 
 
 . bb2 
 
372 
 
 THE VOYAGE. 
 
 Sect. 3S4a. And Sir J. Hannen further decided in the same case, that it 
 was not essential that the person sued should be the owner of the 
 property salved. " I am of opinion that the right to sue, in per- 
 sonam, is not confined to the case of the defendant being the actual 
 legal owner of the property saved. I think it exists in eases where 
 the defendant has an interest in the property saved, which interest 
 has been saved by the fact that the property has been brought into 
 a position of security" (s). 
 
 In Duncan v. Dundee, &c. Shipping Co. {t), ship and cargo had 
 been salved from a danger which had arisen owing to negligent 
 navigation by the master. It was held, by the Court of Session, 
 that the shipowners were personally liable for salvage, not only 
 in respect of the ship but also in respect of the cargo, since they 
 would have been liable for the loss of it. 
 
 His rigit 325. It is important to note that salvage, apart from contract, 
 
 limited by the . B ' r ' 
 
 amount of depends entirely upon the safety of some of the property in respect 
 
 saved!^ ^ 0^ which the services have been rendered. If no part of that has 
 
 been brought into safety, no salvage can be obtained; and the 
 
 amount so saved is the limit of possible salvage. 
 
 " I consider it to be now a fixed principle of salvage law that, in 
 the absence of any special contract, some property in the ship or 
 cargo must be saved in order to found the liability of the owners 
 of the ship or cargo to the payment of salvage remuneration " [u). 
 
 " There must be something saved more than life, which will 
 form a fund from which salvage may be paid " («). 
 
 But it is not necessary that the state of safety should have been 
 brought about by the actual services for which the claim is made. 
 Where services have been rendered which have, or may have, 
 helped to rescue a vessel or cargo from danger, they will entitle 
 those who rendered them to salvage, although their labours did 
 not result in putting the vessel or cargo in a position of safety ; 
 and that whether the subsequent safety was due to improvement 
 of the weather or other physical causes, or to the efforts of other 
 salvors {y) . 
 
 held personally liable for salvage, the {t) 15 So. L. E. 429. 
 
 Lord President (IngHs) said, " And in («) Per Sir E. Phillimore in The Sar- 
 
 our own records I find eases of personal pedon, 3 P. D. at p. 34. 
 
 actions for salvage, that is to say, the [x] Per Brett, M. E., in The Eenpor, 
 
 masters and crews of one ship proceed- 8 P. D. p. U7. 
 
 ing against the owners of the other." {y) The Atlas, 31 L. J., Ad. 210 • The 
 
 W 15 P. D. at p. 146. E. U., 1 Spinks, 63. 
 
ser- 
 em- 
 
 8ALVAQE AND WRECK. 373 
 
 326. The case is, however, different where the salvors have been Sect. 326. 
 employed to do the work by the owner of the property, or by some UnleeB 
 one having his authority. There is then a contract by the owner ployed 
 to pay for the services, and he may be personally liable to do so 
 whether the property be saved or not. Such an employment may 
 
 be by express agreement between owners and salvors, or it may be 
 inferred from the acts done on the one side and the other. 
 
 In The E. TJ., Dr. Lushington, puttiag the case of " a vessel in 
 distress and an order sent to put an anchor and cable on board, 
 and that that is done, but that afterwards from the violence of the 
 weather the vessel is carried away and lost," added that the service 
 " is such as must be paid for whether the vessel is lost or not " (z). 
 
 And where there has been an employment, and services rendered 
 in consequence, the right to a reward seems, generally, to be 
 independent of whether those services have or have not contributed 
 to the ship's safety. 
 
 " If men are engaged by a ship in distress, whether generally or 
 particularly, they are to be paid according to their efforts made, 
 even though the labour or service may not prove beneficial" {a). 
 
 327. But the mere acceptance of proffered services of salvors Agreement to 
 does not ordinarily give rise to an implied promise to reward them evm™not^ 
 in any event. The presumption is, that they offer their help as generally 
 adventurers, who run the risk of getting nothing if their services 
 
 should be of no benefit, or if nothing be saved (h). 
 
 And generally an express agreement for salvage is considered to 
 have been made with reference to the ordinary condition of salvage 
 remuneration, that the property or some part of it shall get into 
 safety. 
 
 In The Eenpor (c), The Mary Louisa had been requested to 
 stand by The Eenpor, which was in danger in the midst of an ice- 
 field ; and a written agreement was made between the masters, by 
 which The Mary Louisa was to stay by the vessel, " until she was 
 in a safe position to get into port, for the sum of 1,200^." The 
 Mary Louisa did remain by The Eenpor during the night, and 
 
 [n] The E. U., 1 Spinks, 63, at p. 64. pomene, L. B., 4 A. & E. 129 ; The 
 
 ButseeTheEenpor, 8P. D. 115, p. 117, Benlarig, 14 P. D. 3. Infra, s. ZZi. 
 ■where this diottim was dissented from. (J) See The Cheerful, 11 P. D. 3. 
 
 [a) Per Dr. Lushington, The Un- [c) 8 P. D. 11-5. Cf. The Alfred, 60 
 
 daunted, 29 L. J., Ad. 176 ; The Mel- L. T. 511. 
 
374 
 
 THE VOYAGE. 
 
 Sect. 327. next morning took her crew on board, as she was in a sinking 
 condition ; and she afterwards sank. 
 
 It was held that there was no right to salvage, since no property- 
 had been saved. And with regard to the agreement, Brett, M. E., 
 said, " I think, therefore, that the agreement is a proper salvage 
 agreement; it fixes the amount of salvage to be paid both for 
 services to life and property, but leaves untouched all the other 
 conditions necessary to support a salvage award. As, therefore, 
 both on principle and on the construction of the contract itself, 
 there must be something besides life saved to make it effectual, I 
 am of opinion that neither owners nor master are liable in this 
 action because no res has been saved." 
 
 Distinctions 
 bet-ween em- 
 ployed and 
 unemployed 
 salvors. 
 
 Merchant 
 Shipping 
 Act, 1894. 
 
 328. The distinction between volunteer salvors and employed 
 salvors is important in other ways. So far as the amount of 
 reward and the remedies against the property saved are concerned, 
 they stand practically on the same footing, except that the agree- 
 ment may fix the amount. If the service has been rendered in 
 saving from danger it is a salvage service, whether it was employed 
 or was done by a volunteer ; and the scale of reward, and the lien 
 for it, will be those of salvage {d). But, as we have seen, employed 
 salvors may have remedies against those who employed them, 
 when volunteers would have none. Further, the time at which 
 the value of the contributing interests should be ascertained, and 
 the ultimate incidence of the payment, may be affected by the 
 same distinction. For the expenditure is, in the one case, general 
 average, as a voluntary sacrifice, whereas in the other it is not (e). 
 
 329. The Merchant Shipping Act, 1894, deals with the methods 
 by which salvage claims can be enforced (/). And by s. 546 
 it enacts that salvage shall be payable for services rendered in 
 assisting a vessel, or saving the cargo or apparel of a vessel, wrecked 
 or in distress on or near the coasts of the United Kingdom {g) , or 
 in any tidal water within the limits of the United Kingdom, by 
 the owner of that vessel, cargo, apparel, or wreck. 
 
 Also by ss. 544 and 545, following earlier repealed enactments {h), 
 provision is made for rewarding services rendered in saving U/e 
 
 (d) The Purissima Conoepcion, 3 W. (ff) See The Fulham, (1899) P. 2.51. 
 
 Kob. 181. Cf. Ocean S.S. Co. ■». Ander- (A) M. S. Act, 1854, ss. 458, 459; 
 
 son, 13 Q. B. D. 651. Ad. Ct. Jur. Act, . 1861, s. 9 ; M. S. 
 
 («) See infra, ss. 393—396. Act, 1862, s. 59 ; aU now repealed by 
 
 (/) Ss. 647—556, 665. M. S. Act, 1894. 
 
SALVAGE AND WKECK. 375 
 
 from sliips, by payments to be made by the owner of the vessel, Sect. 329. 
 cargo, or apparel saved. 
 
 Those sections are as follows : — 
 
 " Sect. 544 — (1). Where services are rendered wholly or in part 
 within British waters (i) in saving hie from {k) any British or foreign 
 vessel, or elsewhere in saving life from any British vessel, there shall 
 he payable to the salvor by the owner of the vessel, cargo, or apparel 
 saved, a reasonable amount of salvage, to be determined in case of 
 dispute in manner hereinafter mentioned. 
 
 " (2). Salvage in respect of the preservation of Ufe when payable by 
 the owners of the vessel shall be payable in priority to all other claims 
 for salvage. 
 
 " (3). Where the vessel, cargo, and apparel are destroyed, or the 
 value thereof is insufficient, after payment of the actual expenses 
 incurred, to pay the amount of salvage payable in respect of the pre- 
 servation of life, the Board of Trade may, in their discretion, award to 
 the salvor, out of the Mercantile Marine Eund, such sum as they think 
 fit in whole or part satisfaction of any amount of salvage so left 
 unpaid. 
 
 " Sect. 545. When it is made to appear to Her Majesty that the 
 government of any foreign country is willing that salvage should be 
 awarded by British Courts for services rendered in saving life from 
 ships belonging to that country, when the ship is beyond the limits of 
 British jurisdiction, Her Majesty may, by Order in Council, direct that 
 the provisions of this part of this Act with reference to salvage of Ufe 
 shall, subject to any conditions and qualifications contained in the order, 
 apply, and those provisions shall accordingly apply to those services as if 
 they were rendered in saving life from ships within British jurisdiction." 
 
 330. Although by these enactments salvage is to be payable "by Liability 
 
 o!) 1 ITT MM under the Act 
 
 the owner of the vessel, cargo, &c., no general personal uabiuty depends on 
 seems to have been imposed, either for life salvage under sect. 544, bem^^saved. 
 or for salvage to property under sect. 546. The claim of the 
 salvors still depends upon the safety of some of the property ; and 
 the liability of the owner of the ship, or of the cargo, is stUl 
 limited by the value of the property belonging to him which has 
 been saved (1). 
 
 But as regards Hfe salvage the Act imposes a common respon- Common re- 
 sibility upon the owners of ship and cargo, to the extent of foHSe ' ^ 
 
 (i) The Pacific, (1898) P. 1 70. have (not improperly) left the ship in her 
 
 {7c) See The Fusilier, 34 L. J., Ad. hoats owing to her danger : The Cairo, 
 
 25 ; 3 Moo. P. C, N. S. 51 ; The Sar- L. R, 4 A. & E. 184. 
 
 pedon, 3 P. D. 28. The section pro- (1) See Cargo ex Schiller, 2 P. D. 146 ; 
 
 haUy includes the Hves of persons who The Sarpedon, 3 P, D. 28. 
 
376 
 
 THE VOYAGE. 
 
 Sect. 330. tteir property saved. Whatever is saved becomes a fund out of 
 whicli life salvage may be payable. 
 
 In the Cargo ex Schiller (m) the ship and cargo had sunk in deep 
 water, and those who had tried to save them abandoned further 
 attempts to do so. But the owners of some specie which formed 
 part of the cargo afterwards employed divers and workmen to 
 raise it, and succeeded in recovering a portion. Brett, L. J., 
 considered that the Act did not apply so as to make salvage 
 payable out of this to salvors of lives from The Schiller, on the 
 ground that it had not been salved, but only saved. The majority 
 of the Court of Appeal, however, held that this made no difference, 
 and allowed salvage out of the specie to persons who had saved 
 some of the passengers and crew. 
 
 life salvage. 331. The saving of life has been made by this and the earlier 
 Acts the ground of an independent substantive right to salvage in 
 cases within its rules. Formerly, though life salvage was looked 
 on as of the highest merit, and was rewarded indirectly with 
 liberality when the opportunity offered, there was no right to a 
 reward for the act itself ; for there was no property against which 
 that right could attach (w). If acts of life salvage could be con- 
 nected with the preservation of property by the same salvors, 
 whether by accident or not, the Court took notice of them, and 
 enhanced the amount of salvage given for the services to the 
 property (o) . 
 
 And this is stiU the state of the law in cases to which the 
 Merchant Shipping Act does not apply. In The Johannes (p), 
 lives had been saved by the plaintiffs from a Prussian ship on the 
 high seas outside British jurisdiction. The ship itself was saved 
 by other salvors, and was brought into a British port. It was held 
 that a claim by the life salvors could not be entertained (q). 
 
 Now, however, though the Act does not give any personal 
 remedy for life salvage where no property has been saved (r), it 
 makes any part of the ship or cargo which has been saved charge- 
 able with a reward to the salvors of life, and that whether the 
 property was saved at the time or was recovered afterwards (s). 
 
 (m) 2 P. D. 146. (g) See also The WiUem III., L. K., 
 
 (») Tlie Aid, 1 Hagg. 83 ; The 3 A. & E. 487. 
 
 Zephyrus, 1 W. Eob. 329. (r) The Sarpedon, 3 P. D. 28. 
 
 (o) The Aid, supra. (s) Cargo ex Schiller, 1 P. D. 473 ; 2 
 
 {p) 30 L. J., Ad, 91, P. D. 145 ; The FusUier, 34 L. J., Ad. 
 
SALVAGE AND WRECK. 377 
 
 It is not on the ground of benefit received that ship or cargo Sect. 331. 
 contributes to reward life salvors ; they are made chargeable "with 
 it because it is the policy of the law that those services shall be 
 encouraged. " Salvage is not governed by the ordinary rules which 
 prevail in mercantile transactions on shore. Salvage is governed 
 by a due regard to the benefit received, combined with a just 
 regard, also, to the general interests of ships and commerce. It is 
 a political as well as a mercantile transaction — so says Lord Stowell, 
 BO says Mr. Justice Story — as, for instance, when a larger reward is 
 given because of the greater value of the property saved. I conceive 
 that the ship, the master, the crew, the passengers and cargo 
 ought to be considered as one component firm, though each may 
 differ in their respective conditions. I consider that all are in- 
 terested in maiutaining the great principle of adequate remuneration 
 for salvors, though it may and must happen that sometimes the 
 benefit conferred will be the saving of life only, sometimes the 
 ship, sometimes the cargo ; and I think that none are more 
 interested in the maintenance of this great principle than the 
 owners and underwriters of the cargo, who must have the 
 greatest pecuniary interest at stake " (t) . The rule, therefore, 
 is that the ship and cargo saved shall contribute towards life 
 salvage in proportion to their values («), and that is the case even 
 with such property as bullion or specie («). 
 
 332. That assistance given to a ship or cargo may have the The ship or 
 character of a salvage service, and so entitle to the rewards and fe°saved"from 
 
 the liens which follow as consequences, it must have been impending 
 
 danger, 
 rendered in rescuing the property from impending danger, and 
 
 must have appreciably helped in effecting that rescue. " Salvage 
 
 is the compensation made to those by whose assistance a ship or its 
 
 cargo has been saved from impending peril or recovered from 
 
 actual loss " {y). And the same is true as regards life salvage (s). 
 
 The danger need not, however, be imminent. " I am of opinion 
 
 that it is not necessary there should be absolute danger in order to 
 
 constitute a salvage service; it is sufficient if there is a state of 
 
 25 ; 3 Moo. P. C, N. S. 51. A claim («) The Fusilier, supra. 
 
 against damages recovered for the loss (a;j The Longford, 6 P. D. 60. 
 
 of the ship ■will not do : The Annie, 12 , , -., ^ . „ ^ , „, „. 
 
 p J) 50 W Per Lmdley, L. J., The City of 
 
 ^.^ 't. ' -r> T T.- i ■ mt, -CT ■ Chester, 9 P. D. 182, p. 201. 
 (t) Per Dr. Lushmgton, in The Fusi- ' ' '^ 
 
 Uer, 34 L. J., Ad. at p. 29. («) The Mariposa, (1896) P. 273, 
 
378 
 
 THE VOYAGE, 
 
 Sect. 332. difficulty and reasonable apprehension" {a). But it is the danger 
 of the thing salved that is to be looked at. Danger to the salvor 
 may enhance the merit of the service, but it is by no means an 
 essential element; nor, on the other hand, will it convert into 
 salvage a service which would otherwise not have that character. 
 
 Salvage is earned in very many different ways {b) . It may be 
 by personal services on board the salved ship ; by towing her ; by 
 protecting or recapturing her from pirates or enemies ; by supply- 
 ing her with men, or stores, for want of which she is in danger ; 
 or, again, by protecting or securing the ship, or her cargo, after 
 she has been wrecked. 
 
 And in each case not only those who personally give their active 
 assistance, but also those whose property has been used, or upon 
 whom an increased burden and risk is thrown, in. consequence of 
 the services being rendered (c), are entitled to claim salvage {d). 
 
 The service may be indirect, as by removing another vessel which 
 was a danger to the ship proceeded against (e), or by setting the 
 actual salvors in motion. In The Sarah (/), a tug, in attendance 
 on another vessel, had left her, and gone some miles out of the 
 way, in order to give the information which led to The Sarah being 
 saved ; the owners and crew were allowed salvage. 
 
 But, in general, persons who are not actually occupied in carry- 
 ing out the work are not entitled to share in the remuneration. 
 Thus, a coastguard officer who merely instructed men under his 
 command to go to the assistance of a vessel, but did not go himself, 
 was not allowed to claim [g). 
 
 Persons employed by the master of a stranded ship to take charge 
 of her, and to rescue her cargo, may be entitled to reward as salvors ; 
 
 («) Per Dr. Lushington, in tte Phan- of tlie Admiralty: M. S. Act, 1894, 
 
 torn, L. E., 1 A. & E. at p. 60; The s. 557. See Cargo ex Woosung, 1 P. D. 
 
 Aztecs, 21 L. T. 797 ; The Aglaia, 13 260 ; The Cybele, 2 P. D. 224 ; 3 P. D. 
 
 P. D. 160. 8. As to salvage by re-oapture from 
 
 (i) See "Will. & Bruce, Ad. (2nd) pp. pirates, see 13 & 14 Viot. c. 26 ; and 
 
 114 et seq. ; Kennedy, Salvage, Chap. V. from enemies, 27 & 28 Vict. c. 25, ss. 40, 
 
 (c) The Charlotte Wylle, 2 W. Rob. 41. A civil salvage maybe combined 
 
 495 ; The Skibladner, 3 P. D. 24. with a military salvage : The Louisa, 1 
 
 {fl) No claim can. be made in respect Dod. 317. 
 of loss, damage, or risk to any ship (e) The Vandyok, 7 P. D. 42 ; affirmed, 
 
 belonging to Her Majesty, or for the use 47 L. T. 695. 
 of any stores or articles belonging to (/) 3 P. D. 39. 
 
 Her Majesty, in rendering a salvage ser- (jr) The Vine, 2 Hagg. 1 ; The Aquila, 
 
 vice ; nor can the commander or crew of 1 C. Eob. at p. 46. Otherwise where 
 
 one of Her Majesty's ships claim for such an officer has assisted personally : 
 
 salvage services except with the consent The London Merchant, 3 Hagg. 394. 
 
SALVAGE AND WKECK. 379 
 
 and to the consequent maritime lien on the property saved {h) ; Sect. 332. 
 although they may be the agents of the shipowner at the place (»). 
 
 333. Again, the service must have had an appreciable effect in The service 
 assisting the ship. " Salvage is a reward for benefits actually con- Bad a valuable 
 f erred, not for a service attempted to be rendered" (/c). And thus ®^^°*' 
 imprudent and useless efforts by salvors, who have afterwards given 
 successful help, ought not to be taken into account in remunerating 
 
 them il). 
 
 Even where men " go out at the risk of life, and make the most 
 meritorious exertions, and yet do nothing successfully towards 
 saving the vessel and cargo in the slightest degree," they are 
 entitled to no compensation at all. " The Court cannot, I appre- 
 hend, under those circumstances give any salvage reward whatever ; 
 because the very principle of salvage is to give reward for exertions 
 which have been successful" {m). 
 
 But if the vessel or cargo be ultimately saved by other salvors, 
 those who have laboured without success will be remunerated, if 
 their efforts have contributed towards the ultimate safety («), 
 unless they have been guilty of improper conduct in connection 
 with their services, or in failing to continue them (o) ; or have 
 entirely abandoned the attempt, and the intention to make them 
 complete {p). 
 
 Where it is doubtful whether help that has been rendered has 
 contributed to the ultimate safety, the Court is inclined to give the 
 salvors the benefit of the doubt, and to reward them [q). 
 
 334. If, however, the services have been employed, under such Otherwise if 
 
 ssrvicG 
 
 circumstances that a promise to pay for them can be implied, the employed, 
 right to reward becomes independent of whether they contributed 
 to bring about a successful result or not (r) . 
 
 {h) The ravourite, 2 W. Bob. 255 ; Nellie, 29 L. T. 616 ; The Maude, 36 
 
 The Purissima Conoepcion, 3 W. Rob. L. T. 26. Cf. The Edward Hawkins, 
 
 181 ; Cargo ex Honor, L. E., 1 A. & E. 31 L. J., Ad. 46 ; 15 Moo. P. 0. 486. 
 
 87. (o) SeeTheCameUia, 9P. D. 27; The 
 
 (i) The Kate B. Jones, (1892) P. 366. Yan Yean, 8 P. D. 147. 
 
 (i) The Chetah, L. E., 2 P. 0. 205, (p) The India, 1 W. Eob. 406 ; The 
 
 at p. 212 ; The Yan Yean, 8 P. D. 147 ; Killeena, 6 P. D. 193. Cf . The Jonge 
 
 The India, 1 "W. Eob. 406 ; The Cheer- Bastiaan, 5 C. Rob. 322. 
 
 ful, 11 P. D. 3 ; The Benlarig, 14 P. (?) See The E. U., 1 Spinks, 63 ; The 
 
 D. 3. Santipore, 1 Spinks, 231. 
 
 {T) The Chetah, L.E., 2 P. C. 205. (r) The E. U., 1 Spinks, 63, p. 64 ; 
 
 (m) PerDr. Lushington,inTheE.TJ., The Benlarig, 14 P. D. 3 ; The Lepanto, 
 
 1 Spinks, 63. (1892) P. 122 ; The StrMhgarry, (1895) 
 
 («) The Camema, 9 T. D. 27 ; The P. 264. 
 
380 
 
 THE VOYAGE. 
 
 Sect. 334. In The Undaunted (.s), a troopship had parted with both her 
 anchors and cahles in a heavy gale off the North Foreland. The 
 steamer Resolute came to her assistance, and was requested by the 
 master of the troopship (The Undaunted) to go to the nearest port 
 and bring off an anchor and cable. The Resolute accordingly 
 steamed to Eamsgate, engaged two luggers, put on board them a 
 large anchor and cable, and then cruised with them off the Foreland 
 in search of The Undaunted ; but without success. Ultimately The 
 Resolute fell in with her, and with another tug towed her to 
 Gravesend ; but the luggers did not come up until she had reached 
 Gravesend. D,r. Lushington held that the luggers, as well as The 
 Resolute, were entitled to salvage (t). 
 
 (s) 29 L. J., Ad. 176. 
 
 {t) He said : "I cannot have any 
 doubt as to tlie duty of tlie Court in this 
 case. There is a broad distinction to ba 
 drawn between salvors who volunteer to 
 go out to a ship in. distress, and those 
 who are employed by her. Salvors who 
 volunteer go out at their own risk for 
 the chance of earning reward, and if they 
 labour unsuccessfully they are entitled 
 to nothing. It is the effectual perform- 
 ance of salvage service which gives them 
 a title to salvage remuneration. But if 
 men are engaged by a ship in distress, 
 whether generally or particularly, they 
 are to be paid according to their efforts 
 made, even though the labour or service 
 may not prove beneficial. Take the case 
 of a vessel at anchor in a gale of wind, 
 hailing a steamer to lie by and be ready 
 to take her in tow, if required; the 
 steamer does so ; the ship rides out the 
 gale safely, without assistance . I should , 
 undoubtedly, hold in such a case that 
 the steamer was entitled to salvage 
 reward ; the quantum to be determined 
 by the risk encountered by both vessels, 
 the value of the property at hazard, and 
 the other circumstances of the case. The 
 engagement to render assistance to a 
 vessel in distress, and the performance 
 of that engagement, so far as necessary, 
 or so far as possible, establish a title to 
 salvage reward. In the present case 
 there was an engagement ; the steamer 
 was engaged to go on shore and bring 
 off an anchor and cable to thin ship, 
 which had parted from both her anchors 
 in a tremendous gale off the Foreland, 
 
 and was, in my opinion, in very great 
 danger. The engagement, as usual in 
 such cases, was not more specific than 
 was necessary. The true effect of it 
 was, ' You are to go and get me an 
 anchor and cable, and do all that is 
 necessary for this purpose.' The steamer 
 proceeds to the shore and employs two 
 luggers to take in the anchor and chain, 
 as being by size and construction fitted 
 to go alongside a large vessel in a sea- 
 way ; in fact, employs them as the best 
 means of executing the promised service. 
 Now, if it was necessary and proper to 
 employ these luggers, their employment 
 forms part of the original order, and 
 their services must be paid for ; I am of 
 opinion that they were most properly 
 engaged by the master of the steamer ; 
 I am further of opinion that they did all 
 in their power to reach the vessel in 
 distress ; they put out to sea imme- 
 diately, and were for nearly three days 
 knocking about the Foreland, and were 
 only disappointed of effectuating their 
 service by the act of God. The ship 
 had driven as far as Lowestoft ; she was 
 finally fallen in with by the steamer, 
 and by her and another steamer towed 
 to Gravesend. On the luggers arriving 
 with the anchor and cable, the master 
 of the vessel refused to accept them. 
 Looking to all the circumstances of the 
 case, the risk of the ship, the long 
 labour of the salvage, the expenses 
 incurred, and the loss of profits, I shall 
 give to The Resolute iOOl., and to each 
 of the luggers 100?." 
 
SALVAGE AND WEECK. 381 
 
 In The Melpomene (m), salvage was allowed to a tug wMcL. had Sect. 334. 
 ineffectually endeavoured to take the Melpomene in tow, when she 
 was drifting dangerously up the Mersey. She had shown hlue 
 lights as signals for assistance ; and a hawser had been passed to 
 her from the tug, but was not made fast on board. She was 
 ultimately brought up by other tugs. 
 
 Sir E. PhiUimore said : "I think there are no oases which would 
 stand in the way of my adopting as a principle this proposition, 
 which appears to me of considerable importance to the interests of 
 commerce and navigation, especially at the present time, namely, 
 that when a vessel makes a signal of distress, and another goes out 
 with the bon& fide intention of assisting that distress, an.d, as far 
 as she can, does so, and some accident occurs which prevents her 
 services being as effectual as she intended them to be, and no 
 blame attaches to her, she ought not to go wholly unrewarded" {x). 
 
 335. Further, services in order to entitle to salvage must have who may 
 been rendered by persons who did not owe any public or private ® ^ ^°^^ 
 duty to render them (y). So that public oflBeers, whose duty it is 
 to render assistance, cannot claim salvage for services which are 
 within the scope of those duties. Thus, officers and crew of a ship 
 of the royal navy do not receive salvage unless the services per- 
 formed by them are beyond that protection which it is their duty 
 to afford (s) . 
 
 On this ground the crew and officers of a ship cannot generally Not ore-w 
 ,. 1 pii'j. ii,!.' s ^ unless service 
 
 claim salvage lor helping to save tne snip, or cargo, irom wreck ; ended. 
 
 or after being wrecked. These acts form part of their duties under 
 
 their contracts of service {a). But if the contract of service has 
 
 been terminated, either by an abandonment of the vessel by the 
 
 master and crew, without any intention of returning to her (J), or 
 
 {«) L. E., 4 A. & E. 129. And see made in respect of the ship. See Ken- 
 
 The Maude, 36 L. T. 26 ; The Cam- nedy, Salvage, 100 et seq. 
 
 brlan, 76 L. T. 504. («) The Keptune, 1 Hagg. 227, at 
 
 (oc) See M. S. Act, 1894, b. 434. p. 236 ; The Warrior, 6 L. T. N. S. 133. 
 
 (2/) The duty under s. 422 of the Cf. claim hy agent of ship. The Kate 
 
 M. S. Act, 1894, to stand by the other B. Jones, (1892) P. 366. As to consorts, 
 
 ship aiter a collision does not prevent a see The Zephyr, 2 Hagg. 43. A custom 
 
 claim for salvage against her : The among vessels in the South Seas whaling 
 
 Hannibal, L. K., 2 A. & E. 63. fisheries to render assistance to one 
 
 («) The Francis and Eliza, 2 Dods. another gratuitously, precluded a claim 
 
 117; The Cargo ex Ulysses, 13 P. D. for salvage: The Harriot, 1 W. Eob. 
 
 205. Under s. 557 of the M. S. Act, 439 ; The Swan, ib. 70. 
 
 1894, the claim must be with consent of (5) The Elorence, 16 Jur. 572 ; The 
 
 the Admiralty, and no claim can be Le Jouet, L. E., 3 A. & E. 556. 
 
382 
 
 THE VOYAGE. 
 
 Sect. 335. by the discharge of the crew by the master (c), subsequent services 
 by members of the crew in rescuing the ship or cargo may entitle 
 them to salvage. So, too, where the ship has been captured by an 
 enemy, a re-capture by the crew may entitle them to salvage (d). 
 But this is not allowed where the rescue is from mutineers among 
 the crew, although the mutineers may have obtained complete 
 possession of her for a time. For the crew are still bound to give 
 every assistance in their power to preserve or recover possession of 
 the vessel and goods (e). 
 
 In The Solway Prince (/), the question arose whether persons 
 who did work in raising a ship, under employment by insurers, 
 could claim against the ship, as salvors, on failing to obtain pay- 
 ment from their employers. It was held that they could not. " If 
 the owner made such a contract with such persons himself ... I 
 think that there can be no doubt that the contracting parties could 
 not claim a remuneration on salvage principles. Nor do I think it 
 makes any difference if the contract is, to the knowledge and with 
 the assent of ^the owners, made not with themselves but with third 
 parties" (g). 
 
 336. With regard to persons who are on board as passengers, 
 not generally ox ^ ^ t^ 
 
 salvors. though they are under no contract of service, they are bound to 
 
 take part against the common danger. " So long as a ship is in 
 danger and passengers cannot escape, I hold it to be impossible 
 for them to claim salvage for assisting to save their own lives and 
 property and the property of others" (h). 
 
 But a passenger is not bound to remain by the ship ; he may 
 take the first opportunity of escaping and saving his own life. If 
 then, instead of doing so, he remains on board for the purpose of 
 rendering assistance in saving the vessel, he may be entitled to 
 salvage. In Newman v. Walters (»), a passenger remained on 
 board after the captain and some of the crew had left, and took 
 command of her at the request of the crew and rescued her; it 
 was held that he might claim salvage. 
 
 (c) The Warrior, 6 L. T., N. S. 133. (A) Per Dr. Lushington, in The Vrede, 
 
 [d] The Two Riends, 1 C. Eob. 271, 30 L. J., Ad. 209. And see the Bran- 
 at p. 277. ston, 2 Hagg. 3, n. In The Coriolauus, 
 
 («) The Grovemor EafBes, 2 Dod. 14. 15 P. D. 103, passengers on the B. were 
 
 {/) (1896) P. 120. not allowed to claim as salvors against a 
 
 is/) Per Sir F. Jeime, (1896) P., p. derelict which the B. towed into port. 
 126. (j) 3 B. & P. 612. 
 
SALVAGE AND WEECK. 383 
 
 337. Again, a pilot, or one wlio lias gone on toard a vessel in Sect. 337. 
 that capacity, is not generally entitled to salvage for liis services Pilot not 
 
 in rescuing her from a danger which happens while his duty as salvor when 
 pHot continues {k) . °^^^^^ "" 
 
 But where a vessel is in a position of exceptional danger, a pilot Boarding a 
 
 TGSSfil "in 
 
 is not hound to go on board her for mere pilotage reward (l). danger. 
 " The Court has always held with regard to pilots that they are 
 entitled to say when they get on board vessels which are not 
 seaworthy, and, therefore, in a state of danger, ' We do not come 
 in the character of pilots only, but also in the character of salvors.' 
 In such a case they are not entitled to abandon the vessels, but the 
 Court has imiformly given them an additional reward, thinking 
 they are not to be compensated for a salvage service by mere 
 pilotage reward " (m) . 
 
 The question whether assistance given by a pilot under ex- 
 ceptional circumstances is to be regarded as a salvage service, or 
 not, has been said to depend, in the absence of express agree- 
 ment, upon what kind of agreement may be fairly presumed. 
 "Would a fair owner have insisted on requiring the necessary 
 services for ordinary pilotage fees, or even a higher rate of 
 pilotage payment ? Would a fair pilot have refused to perform 
 the necessary services unless upon the terms of a salvage reward ? 
 . . . Were the acts of the pilots, by reason of the weather and 
 the position of the ship, made so different, ia danger or re- 
 sponsibility, fi'om the ordinary acts of service of pilots, as that no 
 fair and reasonable owner would have insisted on requiring such 
 service for other than salvage reward ? " (w). 
 
 338. Moreover, after a pilot has entered upon his duties, as Pilotage may- 
 such, on board a vessel not at the time in distress, circumstances salvage. 
 may supervene which so alter the character of the service that 
 
 he may become entitled to salvage (o). This doctrine has not, 
 however, been regarded with favour, and it will not readily be 
 acted upon (p). 
 
 (ft) The ^olus, L. E., 4 A. & E. 29 ; («) Per Brett, L. J., Aierhlonu). Price, 
 
 The Jongs Andries, Swab. 226 ; The 7 Q. B. D. 129, at p. 133. 
 
 Monarch, 12 P. D. 5. (o) The Saratoga, Lush. 318, p. 321. 
 
 {I) The Erederiok, 1 W. Eoh. 16 ; The See The Galatea, Swab. 349 ; The ^olus, 
 
 Hebe, 2 W. Kob. 246 ; The Anders L. E., 4 A. & E. 29, at p. 32. 
 
 Knape, 4 P. D. 213 ; Akerblom v. Price, [p) See The Jonge Andries, Swab. 
 
 7 P. D. 129 ; The Aglaia, 13 P. D. 160. 226, at p. 229. Perhaps it depends upon 
 
 {m) Per Dr. Lushington, The Jonge whether the pilot could have left the 
 
 Andries, Swab. 226, at p. 229. - ship. Of. The Vrede, 30 L. J., Ad. 209. 
 
384 
 
 THE VOYAGE. 
 
 Sect. 338. 
 
 Tug engaged 
 to tow ; 
 owners and 
 crew not 
 salvors, 
 
 Unless 
 character 
 of service 
 altered. 
 
 Pilots may earn extra reward, which may have the character 
 of salvage, by using their boat to tow the vessel which is being 
 piloted {q). 
 
 339. Again, the owners and crew of a tug which is engaged to 
 tow a vessel are not, in general, entitled to claim salvage for 
 rescuing her from a position of danger into which she may get 
 during the performance of the towage. 
 
 But if circumstances supervene after the towage service was 
 undertaken, which place the vessel towed in a position of ex- 
 ceptional danger, not in contemplation when the contract was 
 made, and such as to call for extraordinary aid from the tug, or to 
 expose her to extraordinary risk, those on the tug may be 
 entitled to abandon the towage contract, and to act and claim 
 as salvors (r). 
 
 (?) The General Palmer, 2 Hagg, 176 ; 
 The Industry, 3 Hagg. 203. 
 
 (r) " When asteamboat engages to tow 
 a vessel for a certain remuneration from 
 one point to another she does not warrant 
 that she will be able to do so, and will 
 do so under all circumstances and at all 
 hazards ; but she does engage that she 
 will use her best endeavours for that 
 purpose, and will bring to the task 
 competent sHU and such a crew, tackle, 
 and equipments as are reasonably to be 
 expected in a vessel of her class. She 
 may be prevented from fulfilling her 
 contract by vis major by accidents which 
 were not contemplated and which may 
 render the fulfilment of her contract 
 impossible ; and in such a case, by the 
 general rule of law, she is relieved 
 from her obligations. But she does not 
 become relieved from her obligations 
 because unforeseen difficulties occur in 
 the completion of her task ; because the 
 performance of the task is interrupted, 
 or cannot be completed in the mode in 
 which it was originally intended, as by 
 the breaking of the ship's hawser. But 
 if in the discharge of this task, by 
 sudden violence of wind or waves, or 
 other accidents, the ship in .tow is placed 
 in danger, and the towing vessel inoirrs 
 risks and performs duties which were 
 not within the scope of her original 
 engagement, she is entitled to ad- 
 ditional lemuueratiou for additional 
 
 services if the ship be saved, and may 
 claim as a salvor, instead of being 
 restricted to the sum stipulated to be 
 paid for mere towage. Whether this 
 large remuneration is to be considered 
 as in addition to, or in substitution for, 
 the price of towage, is of little conse- 
 quence practically. The measure of the 
 sum to be allowed as salvage would, 
 of course, be increased or diminished 
 according as the price of towage was 
 or was not included in it. In the cases 
 on this subject, the towage contract is 
 generally spoken of as superseded by 
 the right to salvage. It is not disputed 
 that these are the rules which are acted 
 upon in the Court of Admiralty, and 
 they appear to their Lordships to be 
 founded in reason and in public policy, 
 and to be not inconsistent with legal 
 principles. The tug is relieved from the 
 performance of her contract by the im- 
 possibility of performing it, but if the 
 performance of it be possible, but in the 
 course of it the ship in her charge is 
 exposed, by unavoidable accident, to 
 dangers which require from the tug 
 services of a different class and bearing 
 a different rate of payment, it is held to 
 be implied in the contract that she shall 
 be paid at such higher rate. To hold, 
 on the one hand, that a tug, having 
 contracted to tow, is bound, whatever 
 happens after the contract, though not 
 in contemplation of the parties, and at 
 
SALVAGE AND WRECK. 385 
 
 And it is not necessary that any actual interruption of the Sect. 839. 
 towage performance should have occurred, in order to entitle the 
 tug to a salvage in place of the towage remuneration. It is 
 enough if those on board her would have been justified by the 
 altered circumstances in abandoning the contract (s). 
 
 Where, however, the tug has agreed to perform an extraordinary 
 service, as to tow a disabled vessel into a place of safety, for a 
 special sum, she is considered bound by the bargain, and must put 
 up with any subsequent accident or difficulty without additional 
 reward (^). 
 
 And where the new danger to the vessel towed, or to the tug, 
 has been occasioned by misconduct, or want of skill or care, on the 
 part of those on the tug, or by an absence of proper equipment of 
 the tug, there will be no right to claim salvage for the services 
 which become needful m consequence (u). 
 
 340. When a vessel has been taken in tow without any express Distinction 
 agi'eement, the question sometimes arises whether the service is to towage and 
 be rewarded as towage or as salvage. A towage service has been ^^ ™^®" 
 described to be " the employment of one vessel to expedite the 
 voyage of another, where nothing more is required than the 
 accelerating her progress" (x). That it should be a salvage service 
 it appears to be at least necessary that the vessel taken in tow 
 should at the time have been in danger (y) . But the tug need 
 not have been so (s). 
 
 all hazards to herself , to take the ship 318; The Galatea, Swab. 3i9 ; The 
 to her destination ; or, on the other, White Star, L. E., 1 A. & E. 68 ; The 
 that the moment the performance of the J. 0. Potter, L. E., 3 A. & E. 292 ; Five 
 contract is interrupted, or its completion Steel Barges, 15 P. D. 142 ; The Liver- 
 in the mode originally intended becomes pool, (1893) P. 154 ; The Westbum, 74 
 impossible, the tug is relieved from all L. T. 200. 
 
 further duty, and at liberty to abandon (s) The J. 0. Potter, L. E., 3 A. & E. 
 
 the ship in her charge to her fate, would 292 ; Fire Steel Barges, 15 P. D. 142. 
 be alike inconsistent with the public (j) The Ejngaloct, 1 Spk. 263 : of. 
 
 interests. The rule, as it is established, infra, b. 348. 
 
 guards against both inconveniences, and ^^^ rj^^ Minnehaha, 4 L. T. 810 ; The 
 
 provides at the same time, for the safety J^^■^^^^^. j^^^^^ g p p g^ . r^he Altair, 
 of the ship and the just remuneration of /i o97\ p i ns 
 
 the tug. The rule has been long settled ; , ^ „ ^ , . , „,,-.,. 
 
 ..,.., ° , (x) Per Dr. Lushmgton, The Prmoess 
 
 parties enter into towage contracts on .,.„-,„ ^ , , „„ , , , „ ™ 
 
 It, J! -ii, 4! -4. J I, ij T, Alice, 3 W. Bob. 138, at p. 140 ; The 
 
 the faith of it ; and we should be _. ' , , „ , '^ 
 
 , , ,, , J ti 1, u Kingalook, 1 Spk. 263. 
 
 extremely sorry that any doubt should ° ' " 
 
 be supposed to exist upon it." Per W ^'^- ' '^^ Strathnaver, 1 A. 0. 
 
 Lord Kingsdown, deUvering the judg- 68- Cf. The Albion, Lush. 282 ; The 
 
 ment of the Privy Council, The Minne- Reward, 1 W. Eob. 174. 
 
 haha, 4 L. T. 810. And see The Anna- {«) The JubUee, 42 L. T. 594; The 
 
 polls, 5 L. T. 37 ; The Saratoga, Lush. Pericles, B. & L. 80. 
 
 C. — C. C C 
 
386 
 
 THE VOYAGE. 
 
 Sect. 341. 
 
 Effect on 
 liability of 
 cargo to con- 
 tribute. 
 
 341. The distinction between pilotage or towage services which 
 are and are not salvage services is important, not only with regard 
 to the amount of the reward to be paid, but also with regard to 
 the liability of the freighters to contribute towards the payment. 
 
 Pilotage and towage are expenses which must ordinarily be 
 borne by the shipowner, as part of the cost of the voyage : though 
 if they have been iacurred under extraordinary circumstances, for 
 the general safety of the ship and cargo, they become general 
 average expenses {a). But where an ordinary pilotage or towage 
 service is converted into a case of salvage, the claim of the salvors 
 is against the cargo as well as against the ship, and the cargo must 
 bear its proportion {b). 
 
 Where salv- 342. Where the salving and the salved vessels belong to the 
 
 vessels belong Same owner no claim can be made by him for the services ren- 
 
 ownm!^ dered to his own ship. But the cretv of the salving vessel are 
 
 entitled to salvage if the services they have rendered are outside 
 
 the contracts entered into by them, and not paid for by their 
 
 ordiaary wages (c). 
 
 And, in such a case, the shipowner also may claim salvage for 
 the services rendered to the cargo in the salved ship, if he was not 
 under the circumstances liable to the owners of that cargo for its 
 safety {d). But not so where he would have been liable for the 
 consequences of the danger from which the cargo was saved, for 
 the amount of salvage allowed would be re-elaimable by the 
 owners of the cargo (e). 
 
 (a) Akerblom v. Price, 7 Q. B. D. 129 ; 
 Anderson i/. Ocean SS. Co.', 10 A. 0, 
 107; 13Q. B. D. 651. 
 
 (b) Infra, s. 350. 
 
 (c) The Sappho, L. E,., 3 A. & E. 142 ; 
 3 P. C. 690 ; The Miranda, L. E., 3 A. & 
 E. 561. Of. The Maria Jane, 14 Jur. 
 857. 
 
 ((Z) The Miranda, supra; The Cargo 
 ex Laertes, 12 P. D. 187. 
 
 («) The Glenfruin, 10 P. D. 108. 
 Whether the common owner of the salv- 
 ing and salved ships can claim for salving 
 the cargo from a danger brought about 
 by negligence of those on the salved 
 ship, ■where the contract of carriage 
 exempts him from liahiUty for that neg- 
 ligence, seems doubtful. Salvors -who 
 have themselves produced the danger 
 
 are generally disqualified by the law 
 from recovering salvage, on the ground 
 that "no man can J profit by his own 
 wrong.' ' (Cargo ex Capella, L. R. , 1 A. 
 & E. 356 ; infra, s. 346.) On the othej 
 hand, where the aahing vessel and crew 
 had done nothing to produce the mis- 
 chief, Sir E,. Phillimore held that the 
 vessel could claim salvage, although she 
 in part belonged to the same owners as 
 another vessel which by negligent navi- 
 gation had brought about the danger. 
 (The Glengaber, L. E., 3 A. & E. 534.) 
 In each case the test would seem to be 
 whether the salvor is seeking to take ad- 
 vantage of his own wrong, in the sense 
 which the law of salvage puts on wrong. 
 Salvage is a remuneration given by the 
 law in those cases in which it is just, in 
 
SALVAGK AND WRECK. 387 
 
 343. Where the salved vessel was at the time under charter to Sect. 843. 
 the owner of the salving vessel, it has been held that this owner Where one is 
 may claim salvage if the charter was not such as to transfer tcTtS owner "^ 
 possession of the salved ship to him (/) ; but otherwise where it °^ ^^^ °*'^®''- 
 did transfer the possession (g^). ' 
 
 On the other hand, the fact that the owner of the salving vessel 
 has at the time chartered her to the owner of that which is salved, 
 does not disentitle him from claiming salvage (h). 
 
 344. The amount of the salvage allowed in any case is determined Considera- 
 
 by the Court, having regard to the extent, nature, and effect of the i^g ^-^^ 
 
 services rendered, and the merit and sacrifice of the persons render- amount of 
 ' ^ ■ salvage. 
 
 ing them (i). In the first place, the degree of the danger in which 
 the property salved was lying, its value, and the effect of the 
 services in rescuing it from that danger, are to be considered. In 
 the next place, in the case of personal services, the risks run by the 
 salvor, his enterprise, endurance, and skill, and the severity and 
 duration of his labour, are all taken into account {k). While in 
 awarding salvage to the owners of the ship, or other property, by 
 means of which the services have been effected, regard is paid to its 
 efficiency [1) and value, and to the danger to which it was exposed, 
 and the risks, such as loss of insurance {m), which the owners may 
 have run ; also regard is paid to the damage which that property 
 may have suffered, and the length of time during which the owners 
 may, in consequence, have lost the use of it (w), and to extra 
 expenses incurred (o). 
 
 the view of the law, to give it ; and this Court, (1897) P. 59. 
 
 cannot, it would seem, depend on the {k) The William Beokford, 3 C. Eob. 
 
 terms of a contract made between the 365; The Clifton, 3 Hagg. 117; The 
 
 parties in relation to other matters. In Grlenduror, Ii. E,., 3 P. C. 589. 
 
 The Cargo ex Laertes (12 P. D. 187) {!) The Kenmure Castle, 7 P. D. 47 ; 
 
 salvage was allowed although the danger The Ella Constance, 33 L. J,, Ad. 191; 
 
 to the cargo was due to latent unsea- The Kingalook, 1 Spk. 263. As to 
 
 worthiness of the ship, which was ex- vessels kept ready for salvage purposes, 
 
 oused by the contract. But there was see The G-lengyle, (1898) A. C. 519 ; 
 
 there no negligence of the shipowner. (1898) P. 97. 
 
 Cf., however, TheCarronPark(I5P.D. (m) The Sir Ralph Aberorombie, 
 
 203) ; and see infra, ss. 373 (a) et seq. L. R., 1 P. C. 454 ; The Famley Hall, 
 
 ,(/) The Collier, L. R., 1 A. & E. 83. 46 L. T. 216. Risks of mails and pas- 
 
 (^) The Maria Jane, 14 Jur. 857. sengers: The MartinLuther, Swab. 287. 
 
 (A) The Waterloo, 2 Dod. 433. Cf. («) The De Bay, 8 A. C. 559. A 
 
 The Scout, L. R., 3 A. & E. 512. charterer of the ship is not generally 
 
 (t) See as to the amount of the salvage entitled to any salvage for services ren- 
 
 award, Kennedy, Salvage, Chap. VI. deredbyher: The Alfen, Swab. 189. 
 
 Where ship was derelict, The Janet (o) The Edenmore, (1893) P. 79. 
 
 cc2 
 
388 
 
 THE VOYAGE. 
 
 Damage to 
 salving ship, 
 and loss of 
 her services. 
 
 Sect. 344. The amount of the reward is reduced where salvors have acted 
 under an agreement which entitled them to some reward whether 
 their services were successful or not (p). 
 
 Where some of the crew of the salving vessel are placed on the 
 vessel salved, those who remain are also entitled to salvage, which 
 is awarded according to the extra risk, lahour, and responsibility 
 they thereby incur (q). 
 
 345. Where the salving vessel has sustained injury, or her 
 owner has lost earnings, through rendering services of value to 
 the owners of the property saved, and where that property is 
 ample, not only to defray the losses thus sustained by the owner, 
 in addition to a proper sum for the services of the master and 
 crew, but also to leave a substantial surplus, then the amount 
 awarded to the owner of the salving vessel ought to be enough to 
 cover his actual loss, and also whatever additional risk he ran (r). 
 
 But regard is always paid to the value of the property saved ; 
 and an award will not be made of such an amount as to deprive 
 its owners of the benefit of the service, with the view of recouping 
 to the salvors their losses. It is one of the risks they run, that 
 they may not be indemnified for their sacrifices. It is said that 
 the Court of Admiralty has hardly ever, and then only in the case 
 of a derelict, awarded as salvage more than half the value of the 
 property saved (s) . 
 
 346. Where there has been want of care or skill on the part of 
 salvors, that is taken into account in the award; and if by 
 mistaken or improper conduct they have exposed the salved vessel 
 to damage, the salvage wiU be reduced accordingly (t). So the 
 salvage is reduced where the conduct of the salvors has been 
 obtrusive (m), or violent and overbearing («). 
 
 Misconduct of salvors does not generally disentitle them alto- 
 
 Misconduot 
 of salvors. 
 
 {p) The Lepanto, (1892) P. 122 ; The 
 Eate B. Jones, (1892) P. 366; The 
 Edenmore, (1893) P. 79. 
 
 (q) The Skihladner, 3 P. D. 24. See 
 The Baltimore, 2 Dods. 132 ; The Emma, 
 3 W. Kob. 151. 
 
 {r) The City of Chester, 9 P. D. 182 ; 
 The De Bay, 8. A. C. 659 ; The Smmi- 
 side, 8 P. D. 137. As to demurrage, 
 The Mudhopper, 40 L. T. 462. 
 
 («) Per Brett, M. R., The City of 
 Chester, 9 P. D. 182, at p. 186. But 
 
 of. The Erato, 13 P. D. 163. As to 
 derelicts, see The True Blue, L. R., 1 
 P. C. 260 ; The Rasche, L. R., 4 A. & 
 E. 127 ; The Amlrique, L. R., 6 P. C. 
 468 ; The Craigs, 6 P. D. 186. 
 
 (i!)' The Dwina, (1892) P. 68 ; Tfee 
 Yan Yean, 8 P. D. 147 ; The Atlas, 31 
 L. J., Ad. 210 ; The Magdalen, 31 
 L. J., Ad. 22 ; The Perla, Swab. 230. 
 
 («) The Glasgow Packet, 2 W. Rob. 
 306. 
 
 {x) The Marie, 7 P. D. 203. 
 
SALVAGE AND WRECK. 389 
 
 gether from claiming, unless it has been wilful, or sucli as to show Sect. 846. 
 a culpable disregard of duty («/). But if their negligence has 
 resulted in a loss to the ship which does not appear to be less than 
 that from which she has been rescued, no salvage will be 
 awarded ^s). 
 
 Where salvors seized possession of a ship, as derelict, which had 
 not been abandoned by her master and crew, and prevented the 
 crew from returning to her, their claim for salvage was dismissed 
 with costs (a). 
 
 And no salvage can be claimed by persons through whose fault 
 the property was origiually placed in jeopardy. Thus, the master- 
 and crew of a vessel which was to blame for a collision, were not 
 allowed to claim for services in saving cargo of the other vessel, 
 though she also had been to blame (5). 
 
 By the Merchant Shipping Act, 1894, s. 519, any person who 
 finds or takes possession of wreck in the United Kingdom must, if 
 not the owner, give it up as soon as possible to the receiver of 
 wreck for the district, or he will forfeit all claim to salvage, and 
 also will incur a penalty not exceeding 100?., and become liable to 
 pay double the value of the wreck to the person entitled to it. 
 
 347. Agreements as to the amount of salvage to be paid are Agreements 
 sometimes made between the salvors and. those on the salved ship ; !!!mu8tnoU)e 
 and they are acted upon by the Court when they appear to have ^^^J^- 
 been made fairly. But such an agreement is closely scrutiuised, 
 and, if there has been unfairness, it is set aside. 
 
 There ought to be on both sides a clear understanding of the 
 nature of the agreement; and both parties to it should be com- 
 petent, and in a position to form a judgment on the obligations 
 to which they are binding themselves (c). It should be made 
 deliberately, and with a knowledge of the circumstances. If 
 material facts, for example as to the condition of the vessel (d), the 
 extent of the peril, the difficulty of the work, or the chances of 
 obtaining other assistance, are unknown to one of the parties, that 
 
 {y) The Atlas, 31 L. J., Ad. 210; (J) CargoexCapella, L. R., 1 A. &E. 
 
 The Duke of Manchester, 2 TV. Eob. 336. Of. The Glengaber, L.E., 3 A. & 
 470 ; 6 Moo. P. C. 90. E. 534 ; The Ettriok, 6 P. D. 127 ; The 
 
 (.) The Tan Tean, 8 P. D. 147. ^^^f'i^Z^^ ^l""- ^ ^ „ 
 
 ^' [c] The True Blue, 2 W. Eob. 176. 
 
 (a) The Capella, (1892) P. 70. \d) The Kingalook, 1 Spk. 263, 
 
390 THE VOYAGE. 
 
 Sect. 347. may render the agreement invalid. Especially i£ they have teen 
 kept tack by the other party, although unintentionally \e). 
 
 Further, the position of those salved may have heen so critical 
 that they had in truth no real alternative hut to accept the services 
 of the salvors at any price. An agreement made under such 
 circumstances is practically made under compulsion, and if the 
 amount demanded and agreed to was excessive, it will he set aside. 
 The Medina (/) was a steamship hound from Sumatra to Jedda 
 with 650 pilgrims as passengers on board ; she was wrecked on the 
 Parkin Eock in the Eed Sea on September 30, 1875, and the 
 passengers were landed on the rock, which was six feet above 
 water. The Medina went to pieces. On October 1st The Timor 
 was sighted, and she came up in answer to signals. Her captain 
 refused to rescue the pilgrims for a less sum than 4,000^., and an 
 agreement was, therefore, signed by the captain of The Medina for 
 the payment of that sum for carrying the pilgrims to Jedda. . The 
 Parkin Eock is about 30 miles from the mainland, 240 from Aden, 
 and from two to three days sail from Jedda. Had bad weather 
 come on the lives of the pilgrims would have been in imminent 
 danger. It was held by Sir E. Phillimore and the Court of 
 Appeal that the agreement could not stand, on the ground that 
 there was practical compulsion, and the sum claimed was exorbitant 
 for the service rendered (</). 
 
 The Silesia {/«), a valuable steamship, with 62 passengers and 
 a crew of 95 hands on board, broke her propeller shaft when 
 she was about 340 miles from Queenstown, and, in consequence, 
 became helpless so far as her steam power was concerned. The 
 weather was fine and the sea smooth, but after tossing about for 
 four or five days, and when only about seven miles from the place 
 at which the accident happened, she hoisted signals of distress, 
 and The Yaderland bore down upon her. The Yaderland was 
 a steamer on a voyage from Antwerp to Philadelphia, with a large 
 number of passengers on board, and carrying cargo and maUs. 
 The mails were carried under a subsidy from the Belgian Govern- 
 ment, and subject to penalties for deviation or delay. The 
 
 («) The Canova, L. E., 1 A. & E. 66. 135. Cf. Anderson v. Ocean SS. Co., 
 
 See The Jonge Andries, Swab. 226. 15 Q. B. D. 651 ; 10 A. 0. 107. 
 
 (/) 1 P. D. 272 ; 2 P. D. 6. (A) 5 P. D. 177. See also The Rialto, 
 
 iff) See also The Cargo ei Woosuug, (1891) P. 175 ; The Altair, (1897) P. 
 
 1 P. D. 260 ; The Mark Lane, 15 P. D. 106. 
 
SALVAGE AND WRECK. 391 
 
 captain of The Vaderland was requested to tow The Silesia into Sect. 347. 
 
 Queenstown, but he refused to do so unless the captain would 
 
 sign an agreement that the owners of The Silesia would pay 
 
 16,000/. for the service ; and it appeared that he threatened to 
 
 leave The Silesia unless this was done. The agreement was signed 
 
 and she was towed to Queenstown, The Yaderland thus losing on 
 
 the whole six days in time. Sir E. PhiUimore held that the sum 
 
 agreed for was so exorbitant that the agreement ought to be set 
 
 aside. 
 
 On the other hand, if the amount stipulated for by the salvors 
 is so small as to show that they did not realise the character of 
 the services they were about to render, the Court will not hold 
 them bound by it (»). 
 
 348. But where there has been no unfairness in making an Agreements 
 agreement, the parties will be bound by it, although it may seem —when 
 to be a hard bargain {k), and although the service agreed to be '^^ ® ' 
 done may have become more difficult, or less difficult, than was 
 expected, owing to changes in the weather or other circum- 
 stances {I). 
 
 And where a fair agreement has been made by the master of 
 the salving vessel, the crew are bound by it, although they may 
 not have been parties to it (m). 
 
 If, indeed, dangers supervene beyond what can be supposed 
 to have been contemplated when the agreement was made, and 
 such as -to justify the salvors in abandoning the attempt to carry 
 that out, the Court will treat the agreement as at an end, and 
 will reward the services rendered, having regard to the actual 
 events (w). 
 
 In The Charles (o) men had been put on board a distressed vessel 
 under an agreement to " pay all expenses attached thereby ; " it 
 was held that this did not exclude a claim for salvage by the 
 owners and master and crew of the salving vessel. 
 
 (i) The Phantom, L. R., 1 A. & E. {m) The Nasmyth, 10 P. D. 41. The 
 
 58. master cannot bind the crew by an 
 
 /■M Th m fl S b 240 • The agreement made after the serricea have 
 
 Helen and Georje, sTab. 368 '; The Je^n rendered, The Inchmarie, (1899) 
 
 Strathgarry, (1896) P. 264. 
 
 [l) The True Blue, 2 W. Eob. 176 
 The Waverley, L. E., 3 A. & E. 369 
 The Jonge Audries, Swab. 226, 303 
 
 («) The Waverley, L. R., 3 A. & E. 
 369 ; The J. C. Potter, L. R., 3 A. &B. 
 292 ; The Westboume, 14 P. D. 132 ; 
 The Hestia, (1895), P. 193. 
 
 The Cato, 35 L. J., Ad. 116. (o) L R., 3 A. & E. 536. 
 
392 
 
 THE VOYAGE. 
 
 Master's 
 authority to 
 make agree- 
 ment. 
 
 Sect. 349. 349. The power of the master to hind his owners hy a salvage 
 agreement depends upon the necessity of the ease. " The master 
 is appointed for the purpose of conductiag the navigation of the 
 ship to a favourable termination, and he has, as incident to that 
 employment, a right to bind his owners for all that is necessary, 
 that is, upon the legal maxim, qtiando aliquid mandatur, mandatur 
 et omne quod pervenitur adillud" i^p). 
 
 Brett, M. E., in The Eenpor (?), said: "There are two cir- 
 cumstances necessary in order to make an agreement hiuding on 
 an owner : first, the contract must he made under a necessity ; 
 and secondly, it must he for his benefit. I do not desire to say 
 anything which may seem crUel, but I must express a doubt 
 whether, if an agreement is made only for the purpose of saving 
 a master and crew without regard to any saving of the property 
 of the shipowner, though it be in a case of necessity, yet, as the 
 subject-matter is without benefit to the property of the ship- 
 owner, the master has authority to bind the owner to a money 
 payment." 
 
 The judgments of the House of Lords iu Anderson v. Ocean 
 SS. Co. (r) make it doubtful whether the master can bind the cargo 
 ■owners by a salvage agreement. It was there decided that a con- 
 tract made by the master of a ship with another master, to obtain 
 his help in resouiug the ship and cargo from a dangerous position, 
 was not necessarily binding on the cargo owners, so as to make 
 contribution by them enforceable, though it was binding on the 
 shipowners. A new trial was ordered, that the question might be 
 left to the jury, whether the amount agreed to be paid, and paid, 
 was a reasonable disbursement for the salvation of the adventure 
 from the common peril. 
 
 Contribution 350. The question how contribution is to be made to the pay- 
 proportwu to ment of salvage by the different interests concerned, remains to be 
 value. considered. There are the interests in the ship, the cargo, and the 
 
 freight. If some only have -been benefited by the services, those 
 only are chargeable with the salvage (s). But where the service 
 has been for the benefit of all, all are liable ; and if, as is usual, 
 one sum has been awarded for salvage against the whole, each part 
 
 {p) Per Parke, B., Beldon v. Campbell, 
 20 L. J., Ex. 342. 
 
 (j) 8 P. D. 115, at p. 118 ; and see 
 The Mariposa, (1896) P. 273. 
 
 {r) 10 A. C. 107. See infra, s. 396. 
 
 \f) The Fusilier, 3 Moo. P. C, N. S. 
 51, at p. 73 ; Cox ji. May, 4 M. & S. 152. 
 As to life salvage, see supra, s. 331, 
 
SALVAGE AND WRECK. 393 
 
 of the property saved must contribute towards that in proportion Sect. 850. 
 to its value. 
 
 An attempt has sometimes heen made to distinguish between 
 the degrees of service rendered to some parts of the property and 
 to others, and thus to alter the rule of contribution in proportion 
 to value. But this has not been allowed {t). Even with regard 
 to bullion in a ship which was saved from sinking in the middle of 
 the river Mersey, where the bullion might well have been recovered 
 if the ship had sunk, it was held that it must contribute rateably (««). 
 And the same was held in a case where bullion had been removed 
 from the ship before the greater part of the salvage services to the 
 ship and the other cargo had been rendered (x) . 
 
 An exception is made with regard to passengers' wearing apparel 
 and other effects carried for their personal use. They do not con- 
 tribute {y). And the same seems to be true of the wearing apparel 
 and effects of the master and crew (a). 
 
 351. Salvage is awarded upon the freight saved through the aid Freight oon- 
 of the salvors, as well as upon the ship and cargo (a). The owners " " ^^' 
 of the freight must therefore contribute with the rest (b). If the 
 freight has not been treated as a separate item, but has been 
 included in the value of the cargo, so that the owner of that has 
 contributed in respect of it, he may recover the amount from the 
 owner of the freight (c). Provided, that is, that the freight was at 
 risk. If it had been paid in advance, it can only be contributed 
 for as an enhancement of the value of the goods (d). 
 
 Where a ship was brought by salvors into a port of refuge, so Salvage 
 that the voyage had not been completed, and the freight not earned, ^wtt °^ 
 still the Court, in awarding salvage, took into account " what t^oi^gli w>t 
 services in respect of the contract for freight the salvors had then earned, 
 rendered " (e) . Dr. Lushington said : " Judging by this test, the 
 salvors are entitled to salvage upon a considerable part of the total 
 freight, for it is clear that a large portion of the voyage had been 
 performed before the salvage services, and that the entire benefit 
 
 {t) The Longford, 6 P. D. 60 ; The (a) The Charlotte Wylie, 2 W. Eob. 
 
 Emma, 2 W. Eob. 315 ; The Vesta, 2 495 ; The Fleece, 3 W. Rob. 278, p. 282. 
 
 Hagg. 189, at p. 193. (*) Cox v. May, 4 M. & S. 152 ; The 
 
 («) The Longford, supra. Racehorse, 3 C. Rob. 101, p. 106 ; The 
 
 (») Jonge Bastiaan, 5 C. Rob. 324. Westminster, 1 W. Rob. 229, p. 233. 
 
 (y) The Willem III., L. R., 3 A. & E. (c) Ibid. 
 
 487. (d) Cox V. May, 4 M. & S. 162. Cf. 
 
 (z) Abbott {5th), 356; (11th), vi. 1, mfra, s. 440. 
 
 11. (e) The Norma, Lush. 124. 
 
394 
 
 THE VOYAGE, 
 
 Sect. 351. of SO much was preserved, to the shipowners by the salvors, not 
 indeed ahsolutely, for expenses had to be incurred, and the perils 
 of the voyage from Bermuda home had yet to be undergone, but 
 preserved from immediate and total loss. I do not think it 
 necessary to enter into detailed calculation upon this question of 
 the value of the salvor's services to freight, how far the Bermuda 
 expenses are to be taken into account, what items are proper items 
 of deduction, and so on: my judgment must, after all, be a 
 rusticum judicium " (/). 
 
 It seems, therefore, that the freight should contribute to the 
 salvage upon an estimate made in this manner. In practice, the 
 freight is made to contribute to salvage as to general average, upon 
 the state of facts at the end of the voyage {g). 
 
 Cargo sepa- 353. Grenerally the shipowner pays the salvage, and claims 
 to salvors. contribution from the cargo. But the ship and cargo are each 
 separately liable to pay their own shares. In The Pyrenn^e(A), 
 where the proceeds of the ship only were in Court, payment out of 
 them of the salvage due in respect of the cargo was not allowed. 
 And in The Baisby (i), it was held that a shipowner was not 
 liable for the salvage due in respect of the cargo, which he had 
 delivered without requiring any security for payment of that 
 salvage. Nor was he liable for omitting to obtain such security 
 before delivering. He was under no duty to the salvors to 
 procure it. 
 
 In some cases, however, the shipowner may be liable to pay the 
 whole salvage in the first instance. As where the master has 
 agreed with the salvors to pay them a specific sum, he is under- 
 stood to bind his owners to pay the agreed amount, without 
 deduction for the share of the cargo (k). And where the ship- 
 owner would have been liable to the owners of cargo for the 
 consequences of the peril from which ship and cargo have been 
 salved, he is liable to the salvors for the whole salvage, on cargo 
 as well as ship {l). 
 
 (/) Cf. The Dorothy Foster, 6 C. (j) 10 P. D. 114. 
 
 Bob. 88 ; The Progress, Edw. 210. [k) The Cumbrian, 57 L. T. 205 ; The 
 
 {g) See infra, s. 418. ^™^ Hemrich, 13 P. D. 31. 
 
 {I) Duncan v. Dundee, &o. Shipping 
 
 (A) Br. & L. 189. Cf. per Shee, J., in Co., 15 So. L. E. 429, -where the navi- 
 
 Kemp V. Halliday, 34 L. J., Q. B. at gation had been negligent. Andseeper 
 
 pp. 238, 239 ; M. S. Act, 1894, s. 544 ; Sir J. Hannen, in PiTe Steel Barges, 15 
 
 Cargo ex SohiUer, 2 P. D. 145, at p. 164. P. D. 142, p. 146, supra, s. 324. 
 
SALVAGE AND WRECK. 395 
 
 In awarding salvage, tlie value of the cargo is estimated at the Sect. 358. 
 
 place where the salvage services terminate (w), deducting the usual Valuation of 
 
 cargo, 
 expenses and charges on a sale of the goods (m), but not expenses 
 
 of insurance (-o). But in practice the cargo contributes to the 
 
 salvage as part of the general average at the end of the voyage, 
 
 upon its value then {p). This seems to be contrary to sound 
 
 principles, but it is convenient. 
 
 If the freight is made to contribute separately, the value of the 
 
 cargo should not include the freight paid oH it. In Oox v. May {q) 
 
 it was held that no contribution at all was payable to salvage in 
 
 respect of the cargo, its value being less than the freight which 
 
 became payable on its deHvery. 
 
 353. Where the shipowner has paid salvage due in respect of Shipowner 
 the cargo he is entitled to a Ken upon the goods in his possession oontribntion. 
 for their proportions (r-) . "As the contribution to salvage is in 
 the nature of general average, it is subject to the same incidents, 
 and is in effect the same ; and we therefore think that the plaintiff, 
 as owner of the ship, who had paid the whole of the salvage, and 
 had a claim against the owner of the goods for contribution, was 
 entitled to a lien on the goods " (s). 
 
 In Hingston v. Wendt {t) a vessel had gone ashore, and the 
 plaintiff, a ship agent, had been put into possession of her and her 
 cargo by the master, and had his authority to do, as his agent, 
 what was for the benefit of all concerned. The plaintiff did the 
 work, and expended the money sued for in discharging the cargo, 
 and bringing it to a place of safety, where he kept possession of it. 
 The ship broke up. The question was, whether the master, and 
 the plaintiff as his agent, had a right to detain the cargo until the 
 extraordinary expenditure thus incurred on its behalf had been 
 paid or secured. It was held that he had that right as against 
 the cargo owner, if the whole belonged to one, or as against the 
 owners of the several parts of it, if it belonged to several, for the 
 contribution due in respect of each. 
 
 " The case is very analogous to general average and to salvage, 
 
 (m) The GeorgeDean, Swab. 290 ; The [q) 4 M. & S. 152. 
 
 Norma, Lush. 124. Of. The Stella, L.E., (r) Briggs v. Merchant Traders, &o. 
 
 1 A. & E. 340. Association, 18 L. J., Q. B. 178 ; Hing- 
 
 ston V. "Wendt, 1 Q. B. D. 367. 
 
 (») The Peace, Swab. US. 
 (o) The Fleece, 3 W. Rob. 
 (i») Infra, s. 418. (t) 1 Q. B. D. 367. 
 
 («) Per Lord Denman, 18 L. J., Q. B. 
 (o) The Fleece, 3 W. Rob. 282. at p. 180. 
 
396 THE VOYAGE, 
 
 Sect. 353. in both of which there is a lien. It is just and convenient that 
 there should he a lien, and what scanty authority we can find all 
 points in the direction of there being a lien, and we think that we 
 must hold that there is one" (m). 
 
 Unless he tas 354, But where the salvage services became requisite in con- 
 teen m fault. 1. 1 1 . ,1 1 • i 
 sequence of fault on the part of the ship, the shipowner cannot 
 
 claim contribution from the owner of the cargo («), notwithstanding 
 
 that he may have satisfied his full liability to damages for the 
 
 negligence, by taking proceedings for limiting his Habihty, and 
 
 paying 8/. a ton into Court (x). 
 
 And where the cargo owners have been compelled to pay salvage 
 
 in consequence of improper acts of the master, e. g., a wrongful 
 
 abandonment of the ship, they may claim repayment from the 
 
 shipowner, and may proceed in rem against the ship for the 
 
 amount {y). 
 
 Wreck. 
 The right to 355. By the common law goods which come to the shore from 
 
 TvrGok Sit 
 
 common law. ^ wrecked ship belong to the Crown, unless there are marks upon 
 them, or other evidence to prove an owner {&). Formerly the rule 
 was, that if a living thing (a man or dog or cat) escaped from the 
 ship, the owner of the goods should have them if he claimed them 
 within a year and a day, otherwise they remained to the king, or 
 to his grantees of wreck {a). But this appears to have been an 
 illustration only of how the ownership might be ascertained. In 
 later times, at any rate, it has been well established that the owner 
 may claim the goods on proving his title, quite independently of 
 whether any living thing has escaped (J). 
 
 The right to wreck was frequently granted to lords of manors, 
 and in most manors on the sea coast the lords claim the right, and 
 prove it against the Crown by usage, from which a grant may be 
 presumed (c). 
 
 («) Per Blackburn, J., 1 Q. B. D. at [a] Bao. Abr. uhi supra; Broom & 
 
 p. 373. Had. Comm. I. 361 et seq. ; 3 Edw. 1, 
 
 (x) The Ettriok, 6 P. D. 127 ; The 0. 4, repealed by Stat. Law Rev. Act, 
 
 Capella, L. R., 1 A. & E. 356. 1863. 
 
 {y) The Princess Royal, L. R., 3 A. & (i) Hamilton e. Davis, 6 Burr. 2732 ; 
 
 E. 41. Constable*^8 Case, 6 Coke's Rep. 106 a. 
 
 (z) Bao. Abr. " Prerogative " B. 7 ; (c) See R. v. 2 Casks of Tallow, 2 W. 
 
 Constable's Case, 5 Coke's Rep. 106 a. Rob. 294, 
 
SALVAGE AND WRECK. 
 
 397 
 
 So where a ship is derelict (d), or where goods have been thrown Sect. 356. 
 out of a vessel to lighten her (jetsam), or have been sunk but tied 
 to some« floating mark to show the place (lagan), or have been 
 washed out of the ship and remain afloat (flotsam), in these cases, 
 also, the property belongs to the Crown in its office of Admiralty, 
 unless the owner establishes his claim to it (e). 
 
 356. The manner in which wreck on the coasts of the United Statutes re- 
 Kingdom is to be dealt with is regulated by statute. By the wreck. 
 Merchant Shipping Act, 1894 (/), the general superintendence of 
 all matters relating to such wrecks was placed under the control of 
 the Board of Trade ; and it was empowered to appoint receivers 
 of wreck throughout the kingdom. 
 
 By sect. 511, " Where a British ,or foreign vessel is wrecked, 
 stranded, or in distress {g) at any place on or near the coasts of 
 the United Kingdom or any tidal water within the limits of 
 the United Kingdom, the receiver of wreck for the district "shall 
 take steps for the preservation of the ship and cargo, and the lives 
 of those on board. 
 
 By sect. 518, — Any person who finds or takes possession of any 
 wreck within the limits of the United Kingdom must, if he is the 
 owner, give notice to the receiver of the district ; and if not the 
 owner, must deKver it to the receiver. 
 
 By sect. 519 :— 
 
 "(1.) Where a vessel is wrecked, stranded, or in. distress at any 
 place on or near the coasts of the United Kingdom, or any tidal water 
 within the limits of the United Kingdom, any cargo or other articles 
 belonging to or separated from the vessel which may be washed on 
 shore or otherwise lost or taken from the vessel shall he delivered to 
 the receiver. 
 
 " (2.) If any person, whether the owner or not, secretes or keeps 
 possession of any such cargo or article, or refuses to deliver the same 
 to the receiver or any person authorised by him to demand the same, 
 that person shall for each offence be liable to a fine not exceeding 100^. 
 
 " (3.) The receiver, or any person authorised as aforesaid, may take 
 any such cargo or article by force from the person so refusing to 
 deliver the same." 
 
 (<f) The Aquila, 1 C. Kob. 37, at p. 42. Crown and the lord of the manor, see 
 
 (e) Bac. Abr. supra; per Sir J. Nioholl, the above cases and The Pauline, 2 W. 
 
 E. V. 49 Casks of Brandy, 3 Hagg. 257 ; Kob. 358. 
 
 R. V. 2 Casks of TaUow, 3 Hagg. 294. {/) Sect. 666. 
 
 As to the conflict of rights between the (^) See The Mao, 7 P. D. 126. 
 
398 THE VOYAGE. 
 
 Sect. 356. Sect, 521 entitles the owner to claim any wreck in the possession 
 of the receiTer within one year. 
 
 By sect. 522, the receiyer is empowered to sell wreak in his 
 custody which is perishable, or of small value ; the proceeds to be 
 held by him for the purposes, and subject to the claims, for which 
 he held the goods. 
 
 By sect. 525, if no owner establishes a claim to the wreck 
 within a year from the date at which it came into the receiver's 
 possession, it is to be delivered {h) to any admiral, vice-admiral, 
 lord of the manor, or other person who may have proved that he is 
 entitled to unclaimed wreck found at the place : and if no such 
 person establishes his claim the receiver is to sell the wreck and pay 
 the proceeds for the benefit of the Crown as there described. 
 
 By sect. 510, "wreck" includes jetsam, flotsam, lagan and 
 derelict («), found in or on the shores of the sea or any tidal 
 water. 
 
 Eemedyfor 357. By sect. 515 of the same Act : — 
 
 damag^e by 
 
 wreckers. "Where a vessel is wrecked, stranded, or ia distress, as aforesaid, 
 
 and the vessel or any part of the cargo and apparel thereof, is 
 plundered, damaged, or destroyed by any persons riotously and 
 tumultuously assembled together, whether on shore or afloat, com- 
 pensation shall be made to the owner of the vessel, cargo, or apparel : 
 
 " In England in the same manner, by the same authority, and out of 
 the same rate, as if the plundering, damage, injury, or destruc- 
 tion were an injury, stealing, or destruction in respect of which 
 compensation is payable under the provisions of the Eiot 
 (Damages) Act, 1886, and in the case of the vessel, cargo, or 
 apparel, not being in any police district, as if the plundering, 
 damage, injury, or destruction took place in the nearest pohce 
 district ; 
 
 "In Scotland by the inhabitants of the county, city, or borough in 
 or nearest to which such offence is committed, in manner 
 provided by the Eiot Act, with respect to prosecutions for re- 
 pairing the damages of any churches and other buildings, or as 
 near thereto as circumstances permit, and 
 
 "In Ireland in manner provided by the Act of the session held in 
 the sixteenth and seventeenth year of the reign of her present 
 Majesty, chapter thirty-eight, intitided 'An Act to extend the 
 
 (/i) The delivery does not prejudice the 460; Palmer v. Rouse, 27 L. J., Ex. 
 title of third persons : M. S. Act, 1894, 437 ; per Brett, J., in Cargo ex Schiller, 
 B. 527. 2 P. D. 146, at p. 148 ; The Gas Float 
 
 Whitton (No. 2), (1895) P. 301 ; (1896) 
 
 (i) See The Zeta, L. R., 4 A. & E. P. 42 ; (1897) A. C. 337. 
 
SALVAGE AND WEECK. 3^9 
 
 Eemedies for the Compensation of Malicious Injuries to Sect. 357. 
 Property in Ireland,' with respect to damage to any dwelling- 
 house or other property therein mentioned." 
 
 358. With regard to foreign vessels, sect. 521 of the Aot Foreign ship; 
 
 . , ,, , owner repre- 
 
 provides that : — . eented by 
 
 CODSul- 
 
 " Where any articles belonging to or forming part of a foreign ship general. 
 which has been wrecked on or near the coasts of the United Kingdom, 
 or belonging to and forming part of the cargo, are found on or near 
 those coasts, or are brought into any port in the United Kingdom, the 
 consul-general of the country to which the ship, or, in the case of 
 cargo, to which the owners of such cargo may have belonged, or any 
 consular of&cer of that country authorised in that behalf by any 
 treaty or arrangement with that country, shall, in the absence of the 
 owner and of the master or other agent of the owner, be deemed to be 
 the agent of the owner, so far as relates to the custody and disposal of 
 such articles." 
 
 359. Local Acts frequently give power to harbour authorities Eemoval of 
 
 .. T iiiT'i 1 £ wrecks ; lia- 
 
 to raise and remove wrecked vessels which may be sources oi ^^]^^j ^f gjjjp 
 
 danger to the navigation of the harbour ; and to sell the vessel, ^""^ '^*^^° ^°^ 
 
 and also the goods which may be saved from her, in order to 
 
 defray the expenses of the work. The exact effect of such an 
 
 Aot must, of course, depend upon its words; but ordinarily, it 
 
 would seem, the cargo is only to be sold for the expenses when the 
 
 ship is insufficient (A). The shipowner would, however, probably 
 
 be entitled to contribution from the owners of cargo saved, unless 
 
 he were responsible for the wreck (/). 
 
 360. And by the Merchant Shipping Aot, 1894, it is provided Eemoval of 
 
 "Wrecks 
 
 generally, but in addition to and not in derogation of any powers 
 for the like object (m), as follows : — 
 Sect. 530 :— 
 
 " Where any vessel is sunk, stranded, or abandoned in any harbour 
 
 ' or tidal water under the control of a harbour or conservancy authority, 
 
 or in or near to any approach thereto, in such manner as in the opinion 
 
 of the authority to be, or to be likely to become, an obstruction or 
 
 (J) See as to the Thames Conservancy Piers Clauses Act, 1847, and under some 
 
 Aot (20 & 21 Viot. 0. cxlvii), The Ettrick, local Acts, greater liabilities are imposed 
 
 6 P. D. 127. upon the owners of sunk ships for the 
 
 (I) The Ettrick, 6 P. D. 127. expenses of their removal : see The 
 
 (m) Sect. 534. See powers of justices Crystal, (1894) A. C. 608; Smith i/. 
 
 under 19 Geo. 2, c. 22, s. 3. Under Wilson, (1896) A. 0. 579; Barraelough 
 
 sect. 56 of the Harbours, Docks and v. Brown, (1897) A. C. 615. 
 
400 THE VOYAGE. 
 
 Sect. 360. danger to navigation or to lifeboats engaged in lifeboat service in that 
 harbour or water or in any approach thereto, that authority may (n) — 
 
 " (a) take possession of, and raise, remove or destroy the whole 
 or any part of the vessel ; and 
 
 " (6) light or buoy any such vessel or part until the raising, 
 removal or destruction thereof ; and 
 
 " (c) sell, in such manner as they think fit, any vessel or part so 
 raised or removed, and also any property recovered in the 
 exercise of their powers under this section, and out of the 
 proceeds of the sale reimburse themselves for the expenses (o) 
 incurred by them in relation thereto under this section, and 
 the authority shall hold the surplus, if any, of the proceeds 
 in trust for the persons entitled thereto ( p). 
 " Provided, as follows : 
 
 " (1) A sale shall not (except in the case of property which is of 
 a perishable nature, or which would deteriorate in value by 
 delay) be made under this section until at least seven clear 
 days' notice of the intended sale has been given by advertise- 
 ment in some local newspaper circulating in or near the 
 district over which the authority have control ; and 
 
 " (2) At any time before any property is sold under this section, the 
 owner thereof shall be entitled to have the same delivered to 
 him on payment to the authority of the fair market value 
 thereof, to be ascertained by agreement between the authority 
 and the owner, or failing agreement by some person to be 
 named for the purpose by the Board of Trade, and the sum 
 paid to the authority as the value of any property under this 
 provision shall, for the purposes of this section, be deemed to 
 be the proceeds of sale of that property." 
 
 Sect. 531 :— 
 
 " (1.) "Where any vessel is sunk, stranded, or abandoned in any fair- 
 way, or on the seashore, or on or neacr any rock, shoal, or bank, in the 
 British Islands or any of the adjacent seas or islands, and there is not 
 any harbour or conservancy authority having power to raise, remove 
 or destroy the vessel, the general lighthouse authority for the place in 
 or near which the vessel is situate shall, if in their opinion the vessel is, 
 or is likely to become, an obstruction or danger to navigation or to life- 
 boats engaged in the lifeboat service, have the same powers in relation 
 
 («) It is douttful whetter there is an Harrington, 13 P. D. 48 ; The Emerald, 
 
 obligation on them to do so : The Don- (1896) P. 192. 
 
 glas, 7 P. D. 151 ; Dormont v. Fumess / \ mu j j , 
 
 Kail. Co., 11 Q. B. D. 496. ^"^ ^^' ^'°'^'^' °* ^^^^ ^''^ "^"^^'^ 
 
 (o) Including the cost of maintaining ■^^tliese expenses in priority to claims 
 
 plant provided for the purpose by the ^7 life salvors : per Sir J. Hannen, in 
 
 harbour authority, in anticipation : The The Annie, 12 P. D. 50. 
 
SALVAGE AND WRECK. 401 
 
 thereto as are by this part of this Act conferred upon a harbour or Sect. 360. 
 conservancy authority. 
 
 " (2.) AH expenses incurred by the general lighthouse authority 
 under this section, and not reimbursed in manner provided by this 
 part of this Act, shall be paid out of the Mercantile Marine Fund, but 
 shall be subject to the like estimate, account and sanction as the 
 expenses of a general lighthouse authority, other than establishment 
 expenses." 
 
 Sect. 532 :— 
 
 " The provisions of this part of this Act relating to removal of 
 wrecks shall apply to every article or thing or collection of things being 
 or forming part of the tackle, equipments, cargo, stores, or ballast of a 
 vessel, in the same manner as if it were included in the term ' vessel,' 
 and for the purposes of these provisions any proceeds of sale arising 
 from a vessel and from the cargo thereof, or any other property 
 recovered therefrom, shall be regarded as a common fund." 
 
 c- c. i) n 
 
402 
 
 THE VOYAGE. 
 
 CHAPTER XII. 
 
 GENERAL AVERAGE. 
 
 SECT. 
 
 General average sacrifice 361 
 
 General average expenditure 362 
 
 Origin of the principle 363 
 
 Does the obligation to contribute 
 
 depend on contract? • 364 
 
 Use of expression "general aver- 
 age" 365 
 
 Sacrifices. 
 Definition of general average sacri- 
 fice — Exception 366 
 
 The danger must be to the ■whole 
 
 adventure stUl at risk . , 367 
 
 It must be iuuuinent 368 
 
 No sacrifice where thing aban- 
 doned vpas already in eflect 
 
 lost 369 
 
 Peculiar exposure to peril 370 
 
 Peculiar necessity to be sacrificed. , 371 
 The act need not be successful .... 372 
 Where the act benefits the property 
 
 meant to he sacrificed 373 
 
 Exception where danger produced 
 by fault of the person claiming — 
 Innocent claimants not affected. .373a 
 Grounds of this limitation — Is it 
 affected by exceptions in the con- 
 tract of carriage ? 373b 
 
 The Carron Park 373c 
 
 Sacrifice should generally be by 
 
 master , 374 
 
 Sacrifice by independent authority . . 374a 
 Claims as between separate ships . . 374b 
 Where all interests are in one 
 
 owner , 374o 
 
 Jettison of cargo 376 
 
 Putting out cargo into boats or on 
 
 to beach 376 
 
 Exposure of cargo in making jet- 
 tison 377 
 
 Bulk cargo pumped or bailed out — 
 
 Damage during repairs 378 
 
 Jettison of deck cargo 379 
 
 SECT. 
 
 Shipowner contributes if deck cargo 
 
 loaded under charter party 380 
 
 But not so in a general ship 381 
 
 Sacrifices of ship and ship's stores. . 382 
 Exposure of tackle, &c. to extra- 
 ordinary risk 383 
 
 The use must be one not intended — 
 
 Burning spare spars 384 
 
 The tackle, &c. must have been 
 
 reasonably sufficient 385 
 
 Rules observed in practice — Is the 
 
 test of intended use satisfactory? 386 
 Is voluntary stranding a, general 
 
 average act P 387 
 
 It must be really voluntary 388 
 
 Rule in the United States 389 
 
 Damage in extinguishing fire .... 390 
 
 Sxpenditwes. 
 
 General average expenditure 391 
 
 The circumstances must involve 
 
 peril to ship and cargo 392 
 
 Salvage 393 
 
 Not generally a general average 
 
 expenditure , 394 
 
 Payment by shipowner does not 
 
 make it so 395 
 
 Employed salvors 396 
 
 Expense in saving ship and cargo 
 
 after stranding 397 
 
 Does ship contribute to discharge 
 
 of cargo P 398 
 
 Does cargo discharged contribute 
 
 towards getting ship off ? 399 
 
 The two operations should be 
 
 treated distinctly, or else as one 
 
 whole 400 
 
 Can the shipowner charge for his 
 
 services P 401 
 
 Tort of Refuge Expenses. 
 Deviation to a place of refuge — 
 Where due to unseaworthiness , , 
 
 402 
 
GENERAL AVEKAGE. 
 
 403 
 
 SECT. 
 
 Deviation in distress, a general 
 
 average act 403 
 
 Expenses of going in and coming 
 
 out 404 
 
 Wages and maintenance of crew . . 406 
 
 Where ship puts in to repair 406 
 
 Cost of repairs where damage ac- 
 cidental 407 
 
 Expenses of discharging cargo , . , , 408 
 Mixed motives for discharging — 
 
 Practice 409 
 
 Expenses of reloading — chargeable 
 to ship or to freight — Advanced 
 
 , freight does not contribute 410 
 
 Putting in owing to general average 
 damage — ^Expenses of discharge . 411 
 
 Expenses of reloading 412 
 
 Warehousing expenses 413 
 
 Damage to cargo at port of refuge . . 413a 
 Loss or expense substituted for 
 general average expenditure .... 414 
 
 Amount and Manner of Contribution. 
 
 Principle of contribution 415 
 
 To sacrifices, adjusted on comple- 
 tion of voyage 416 
 
 Owner of property sacrificed treated 
 
 as contributing with the rest. . , , 417 
 Values to be ascertained at the end 
 
 of voyage 418 
 
 Estimate of damage to goods — 
 
 Valuation of goods 419 
 
 No contribution for lives — ^Nor for 
 provisions, wearing apparel, &o. . 420 
 
 Sacrifice of ship's material 421 
 
 Deductions for new work 422 
 
 Valuation of ship for contribution . , 423 
 Where voyage broken up at inter- 
 mediate port 424 
 
 Where several destinations 425 
 
 BEOT. 
 
 Semble, the adjustment should be 
 at the end of the voyage 426 
 
 Law of place governs adjustment. . 427 
 
 Contribution to expenditure — 
 Should be adjusted at end of 
 voyage 428 
 
 Must be repaid by all interested at 
 the time in case of subsequent 
 total loss 429 
 
 The case different from salvage, . . . 430 
 
 Expense of repairing sacrifice of 
 ship's material 431 
 
 Expense of obtaining money — 
 Goods sold at port of refuge for 
 general average expenses 432 
 
 Contribution for freight payable on 
 delivery — Sacrifice of goods , . , . 433 
 
 Sacrifice of ship 434 
 
 Where bill of lading freight differs 
 
 from charter party 435 
 
 Deductions from freight 436 
 
 Freight payable on arrival of ship . . 437 
 IVeight conditional upon subse- 
 quent voyage 438 
 
 Where ship chartered for subse- 
 quent voyages 439 
 
 Freight paid in advance, included 
 
 in value of goods 440 
 
 Advances on charter party for 
 round voyage 441 
 
 Be^nedies. 
 
 Shipowner has a lien for contribu- 
 tions due to himself or cargo 
 owners — Must exercise it 442 
 
 Shipowner may sue for contribu- 
 tions—Whom ? 443 
 
 Liability of consignee 444 
 
 Cargo owner may sue ; but has no 
 lien 445 
 
 361. In the adventures we have heen considering three classes of General 
 interests are usually concerned ; viz., the interests in the ship, with sacrifice. 
 her stores, furniture and tackle ; those in the cargo ; and those in 
 the freight which remains to he paid on the cargo. These interests 
 are liable to their own peculiar risks of total or partial destruction, 
 and also to risks which threaten them as a whole. And, subject 
 to any contract, any loss sustained by one of them, whether arising 
 
 dd2 
 
404 THE VOYAGE. 
 
 Sect. 361. froxa a danger peculiar to it, or from one common to the whole 
 adventure, must generally be borne by that interest itself ; it lies 
 where it has fallen. It is a particular average. 
 
 But to that general rule an exception of great importance has 
 been made. The exigencies of marine enterprise at times require 
 that to avert a danger which threatens the whole adventure, some 
 particular interest or interests shall be intentionally sacrificed, for 
 the benefit of the remainder. Familiar examples are the throwing 
 overboard of cargo, or the cutting away of masts, for safety in a 
 storm. Where such a sacrifice has been made, the whole burden 
 of the loss occasioned is not left on the interest upon which it has 
 fallen. It is imposed upon that and all those others for whose 
 benefit the sacrifice has been made, rateably, in proportion to their 
 saved values. The loss is said to be a general average loss ; and 
 the contributions made to it by those benefited are general average 
 contributions. 
 
 General 362. Again, a closely similar principle requires that some kinds 
 
 penditure. of extraordinary expenditure made for the benefit of the adventure 
 as a whole shall be borne by all concerned. Expenditure incurred 
 by the shipowner in the performance of his contract ordinarily falls 
 upon him alone. And any extraordinary expenses for the peculiar 
 benefit of the ship, or for the preservation of some portion of the 
 cargo, must be borne wholly by the interest for which it has been 
 made. But where, under the pressure of a common danger, an 
 extraordinary expenditure becomes necessary for the salvation of 
 both ship and cargo, the case is different ; the burden thus incurred 
 by the shipowner is distributed amongst all those interests which 
 reap the benefit of it. It is a general average expenditure ; and 
 general average contributions towards it become payable. 
 
 These two kinds of general average loss were embraced in the 
 following definition, by Lawrence, J. (a), which has often been' 
 cited : " All loss which arises in consequence of extraordinary 
 sacrifices made, or expenses incurred, for the preservation of the 
 ship and cargo, comes within general average, and must be borne 
 proportionably by all who are interested." 
 
 Origin of the 363. The fundamental principle upon which these contributions 
 are enforced is one which has been recognized and acted upon by 
 maritime peoples from very early times. It "is known to be 
 
 (a) In Birkley v. PresgraTe, 1 East, 220, at p. 228. 
 
 principle. 
 
GENERAL AVERAGE. 405 
 
 derived from the ancient law of Ehodes, teing adopted into the Sect. 363. 
 Digest of Justinian, with an express recognition of its true origin. 
 The wisdom and equity of the rule will do honour to the memory 
 of the State from whose code it has been derived, as long as mari- 
 time commerce shall endure " (b). 
 
 The statement of the Ehodian law in the Digest confines it to 
 cases of jettison (c), hut the principle contained in the rule was 
 wide enough to he applied to a great variety of cases. It was 
 developed in the Roman law; and it was independently recog- 
 nized and extended among other maritime peoples, and embodied 
 in the early codes and statements of the maritime law. From 
 these, and through the practices of commercial men, it has become 
 part of our law. The principles of the subject have in modern 
 times been frequently discussed by our judges, and many rules 
 have been laid down for their application. But in practice the 
 variety of the questions which arise is very great, and many rules 
 are followed amongst average adjusters, whose profession it is to 
 deal with these questions, which have not the sanction of the 
 Courts, but yet are by practical recognition the law, though they 
 are open to be questioned at any time. 
 
 364. The obligation to make general average contributions has Does the obli- 
 
 . . . , . gatiou to eon- 
 
 been said to arise out of an implied contract among those interested tribute 
 
 in the adventure (d). And as between shipper and shipowner an oontraotT 
 agreement of the kind may well be implied in the contract of 
 carriage (e). But as between shippers who are not brought into 
 communication with one another, it is difficult to see how any 
 contract among them arises ; unless the shipowner, or his repre- 
 sentative, in contracting with each one, can be said to represent all 
 the rest. It is simpler, and perhaps more reasonable, to say that 
 each shipper by shipping his goods subjects himself to the estab- 
 lished rules of law on the subject, which, in certain events, give 
 rights of contribution to himself, or to his co-adventurers, as the 
 ease may be. Abbott, C. J., iu Simonds v. White (/), said : " The 
 obligation to contribute, therefore, depends not so much upon the 
 terms of any particular instrument as upon a general rule of 
 
 (b) Abbott (5th), 352. (<^) See per Bramwell, L. J., Wright 
 
 {e) " Lege RhodiS oavetur, ut, si ^. Marwood, 7 Q. B. D. 62, p. 67. 
 
 levandse navis gratiji i actus mercium , , . , „ nr, ^ , „ . 
 
 . , ., .^ . -n .• • (« Andersoin). Ocean SS. Co., 10 A. 
 
 laotus sit, ommum oontnbutione sarcia- ^ ' 
 
 tur, quod pro omnibus datum est:" C!. 107. 
 
 Dig. Ub. xiv. tit. 2, fol. 1. (/) 2 B. & C, 805, at p. 811, 
 
406 THE VOYAGE. 
 
 Sect. 364. maritime law. The oUigation may be limited, qualified, or even 
 excluded hj the special terms of a contract, as between the parties 
 to the contract ; but there is nothing of that kind in any contract 
 between the parties to this cause." 
 
 Brett, L. J., in Burton v. English (g), said : " I do not think that 
 it (the right to contribution) forms any part of the contract to 
 carry, and that it does not arise from any contract at all, but from 
 the old Ehodian laws, and has become incorporated into the law of 
 England as the law of the ocean. It is not as a matter of contract, 
 but in consequence of a common danger, where natural justice 
 requires that all should contribute to indemnify the loss of property 
 which is sacrificed by one in order that the whole adventure may 
 be saved." 
 
 The distinction may be important in view of a practice, which 
 seems likely to become more general, of stipulating in bills of 
 lading that a particular code of rules on the subject shall govern 
 the amount to be paid (k). Such a stipulation is binding as 
 between each shipper and the shipowner ; but, unless the shipowner 
 is also considered to contract on behalf of all the other shippers, or 
 unless an agreement of the shippers inter se can be inferred from 
 their knowledge that all the bills of lading will contain such a 
 provision, it would seem that as between one shipper and another, 
 the ordinary rules of law on the subject must prevail. 
 
 "^^^ °* . 365. It is proposed to discuss in this chapter the principles of 
 
 expression ^ '^ _ i. r r 
 
 "general the law on the subject; and to show how far they have been 
 
 ° ' established, and what rules based upon them have been laid down 
 
 by judicial authority. But the reader must be referred for details, 
 
 iff) 12 Q. B. D. 218, at p. 220. So, Antwerp in 1877. They are set out, 
 
 also, Watkin Williams, J., in Pirie v. infra, App. 0. See the history of the 
 
 Middle Dock Co., 44 L. T. 426. And Rules in Lowndes, Gen. Av. (4th), 
 
 in the U. S., RaUi v. Troup, 167 U. S. App. (U). They were re -considered, in 
 
 386, at p. 397. 1890, at Liverpool, at a Conference of 
 
 (A) See the forms of bill of lading, the above Society ; and a new body of 
 
 App. A., incorporating the York- rules, based on the former, but contain- 
 
 Antwerp Eules of G-eneral Average. ing important alterations and additions, 
 
 These are a body of rules which were was then agreed upon. These rules 
 
 the results of a series of International were at first known as the York- Antwerp 
 
 General Average Congresses (the last of Eules, 1890 ; they are now referred to 
 
 which met at York in 1864), adopted as the York- Antwerp Rules, the earlier 
 
 with slight modifications by the Society rules having fallen out of use, App. O. 
 
 for the Reform and Codification of the See a paper on some departures from 
 
 Law of Nations, at a Conference held at Common Law made in them,- App. D. 
 
GENERAL AVERAGE. 407 
 
 and for fuller information as to the practices of adjusters, to the Sect. 365. 
 works of those practically conversant with the matter («) . 
 
 A remark seems needful as to the sense or senses in which the 
 expression general average is used. It will he found that not only 
 among commercial men, but also in Courts of justice, and by 
 writers of authority, the words are sometimes used to signify the 
 contribution to a loss which is to be borne generally, by all the 
 persons concerned; and at other times to denote the loss itself 
 which is to be so borne. Moreover, sometimes the words are used 
 in a manner which is consistent with either meaning, as in the 
 definition of Lawrence, J., above quoted (k), where the loss or 
 expense was said to " come within general average " ; and in 
 such expressions as the "sacrifice which produced the general 
 average" (l). 
 
 It would, perhaps, tend to greater clearness if the words were 
 use'd in one sense only. Rather, however, than attempt to give 
 them one meaning to the exclusion of the other, we shall here 
 follow the suggestion of Amould and speak of general average losses 
 or expenditures on the one hand, and of general average contributions 
 on the other {m). 
 
 General Average Sacrifices. 
 366. First, then, as to general average sacrifices. If a ship and Definition of 
 cargo are exposed to a common danger of damage (») or destruction, age saorifloe. 
 and if, in order to avert that, some part of the cargo or of the ship 
 or her appurtenances is intentionally abandoned, or destroyed, or 
 
 (j) Stevens, on Average, 6th ed. 1835 ; in his Contract of Marine Insurance 
 
 Benecke, Principles of Indemnity, 1824 ; {2nd ed.), pp. 380 et aeq. 
 Baily, on Average, 2nded. 1856; Gour- (n) Whitecross "Wire Co. v. SaviU, 8 
 
 Ue, General Average, 1881 ; Hopkins, Q. B. D. 653. This case, and other 
 
 Handbook of Average, 4th ed. 1884 ; and well-reeognized instances, such as efforts 
 
 Lowndes, General Average, 4th ed. 1888. to get ship and cargo off a strand, justify 
 
 [k] See mipra, s. 362. the view that it is not essential that ship 
 
 [t) Per Lord EUenhorough, Cox v. and cargo should he in peril of total loss. 
 
 May, 4 M & S. 152, at p. 159. There is, however, a difficulty. A com- 
 
 (m) As to the origin and history of mon danger of destruction is definite, it 
 
 the word " average," see the different means danger of total loss for each in- 
 
 accounts given by Maclaohlan, Shipping, terest. Danger of damage is not definite, 
 
 note to Chap, xiv., who derives it from it varies in degree from one interest to 
 
 the Latin aversio ; and by Lowndes, another. The danger may be common, 
 
 General Average, pp. 270 — 272, who but its effects would vary in quantity, 
 
 traces it to the Italian avere, property. This seems to impair the equity of the 
 
 It has also been traced to the German rule of contribution in proportion to 
 
 haferei, sea damage. See the valuable value. See Jacob's Droit Mar. Beige, 
 
 discussion of the matter by M'Arthur s. 414. 
 
408 
 
 THE VOYAGE. 
 
 Sect. 866. damaged, either directly or by exposure to extraordinary risk, that 
 is a general average sacrifice. And if it has been made with 
 reasonable prudence, the losses caused by it, both immediately 
 and as direct consequences (o), are subjects of general average 
 contribution ; although the ultimate safety may not have been due 
 to the sacrifice. 
 Exception. g^t ^o contribution can be claimed in respect of such a sacrifice 
 
 if the common danger arose owing to negligence, or wrongful 
 conduct, on the part of the claimant, or of others for whom he was 
 legally responsible. For example, where a sacrifice of part of the 
 ship has become necessary owing to her unfitness for the voyage at 
 starting {p), or owing to negligent navigation {q) ; or where goods 
 wrongfully shipped in a dangerous condition have been jettisoned 
 to remove the danger caused by them {r). 
 
 The danger 367. The danger must have been one which threatened the 
 
 the whole whole adventure — not a part of it only. In Nesbitt v. Lushing- 
 
 Btm™t risk. *°^ (*) ^ ^^^P' stranded on the coast of Ireland, was in possession 
 
 of a mob, who would not leave her until they had compelled the 
 
 (o) Atwood ». Sellar, 6 Q. B. D. 286, 
 at p. 289 ; per Bowen, L. J., Svendsen 
 V. Wallace, 13 Q. B. D. 69, at p. 84 ; 
 Anglo Argentine, &c. Agency v. Tem- 
 perley Shipping Co., (1899) 2 Q,. B. 403. 
 In the last case, Bigham, J. (p. 409), 
 quoted with approval the following 
 passages: — "We have to determine 
 quod pro omnihus datum est, and since 
 giving must always imply an intention 
 to give, what we have here to ascertain 
 must he what loss at once has in fact 
 occurred, and likewise must be regarded 
 as the natural and reasonable result of 
 the act of sacrifice f Or, in other words, 
 what the shipmaster would naturally or 
 might reasonably have intended to give 
 for aU when he resolved upon the act ? 
 If, then, upon the act of sacrifice any 
 loss ensues which the master did not in 
 fact bring before his mind, at the time 
 of making the sacrifice, it would have to 
 be considered whether it were such a loss 
 as he naturallymight or reasonably ought 
 to have taken account of ' ' (Lowndes, 
 Gen. Av. (4th ed. 36). 
 
 ' ' General average comprises not only 
 tlie damage done purposely^ to ship and 
 
 cargo, but also (1) all damage or ex- 
 pense which was to be foreseen as the 
 natural (immediate) consequence of the 
 first sacrifice, since this unmistakably 
 forms part of that which was given for 
 the common safety ; (2) all damage or 
 expense which, though not to be fore- 
 seen, stands to the sacrifice in the 
 relation of effect to cause, or, in other 
 words, waa its necessary consequence. 
 Not so, however, those losses or ex- 
 penses which, though they would not 
 have occurred hut for the sacrifice, yet 
 likewise would not have occurred but 
 for some subsequent accident " (Ulrioh, 
 Grosse Haverei, p. 6). 
 
 (i)) Schloss V. Heriot, 14 C. B., N. S. 
 59 ; boats improperly stowed, Benecke, 
 187 ; insufficient fuel, Robinson v. Price, 
 2 Q. B. D. 91, p. 95. 
 
 (?) See Strang v. Scott, 14 A. C. 601, 
 p. 608. 
 
 (?•) See Pirie v. Middle Dock Co., 44 
 L. T. 426, p. 429, per WatHn Wil- 
 liams, J., and per Willes, J., Johnson v. 
 
 Chapman, 35 L. J., C. P. 23, p. 28. And 
 
 see infra, ss. 373a, 402. 
 («) 4 T. B. 783. 
 
GENERAL AVERAGE. 409 
 
 captain to sell a quantity of wheat whioli was on board at about Sect. 367. 
 three-fourths its invoice price. It was held that this was not a 
 general average loss. " I am of opinion that this is not a general 
 average, because the whole adventure was never in jeopardy. 
 There is no pretence to say that the persons who took the com 
 intended any injury to the ship or to any other part of the cargo 
 but the corn, which they wanted to prevent their suffering in a 
 time of scarcity. Therefore the plaintiffs could never have called 
 on the rest of the owners to contribute their proportion as upon a 
 general average " {t). 
 
 But where part of the cargo has been discharged, and a danger 
 afterwards arises which threatens the ship and all that remains on 
 board, that is sufficient. Though in such a case only that which 
 was at risk would contribute. 
 
 In Whitecross Wire Co. v. Savill (m), the ship had arrived at her 
 destination, and had discharged nearly all of her cargo alongside a 
 wharf. A fire then broke out on board, and the remaining goods 
 were damaged by the water poured in to extinguish it. It was 
 held that the maritime adventure was not at an end until all the 
 goods were delivered ; and that the ship was liable to contribute to 
 the damage done to the goods. 
 
 368. Also the danger must be imminent ; though it need not be ?* ™}^* ^ 
 
 , , immliieiit. 
 
 actually pressing at the moment, or such that there is no chance of 
 relief from it. If a peril threatens which must destroy ship and 
 cargo unless some relief which cannot be calculated upon intervenes, 
 the master may make a sacrifice to avoid it which wiE amount to 
 a general average sacrifice («) . 
 
 In Harrison v. Bank of Australasia (y), a sailing ship was 
 strained in bad weather, and was in consequence making so much 
 water that it became necessary to pump incessantly with her 
 donkey engine in order to prevent her foundering. After about 
 five weeks, when the stock of coals had been reduced to about 
 I5 tons, the captain had some spare spars and wood, part of 
 the ship's stores, cut up and burnt with the coal ; and thus kept 
 the engine going for nearly three weeks more, when some coal was 
 got from a passing vessel. There was no sudden emergency, but 
 
 (r!) Per Lord Kenyon, at p. 787. l^O, it was held that a jettison of deck 
 
 cargo, as a precautionary measure, was 
 (m) 8 Q. B. D. 653. ^ ^^^^^ ^^^ . p^^.^ ^ j^ jj jgg. 
 
 {x) In Lawrence v. Mintum, 17 How. (y) L. E., 7 Ex. 39. 
 
410 
 
 THE VOYAGE. 
 
 Sect. 368. the captain acted prudently in doing this. Wood alone would not 
 have sufficed to work the engine. On a claim by the shipowner, for 
 contribution to the value of the spars and wood, there was an 
 equal division of opinion among the judges (s). 
 
 In McCall v. Houlder (a), damage was done to the cargo at a 
 port of refuge, in tipping the ship by the head to repair her 
 propeller. For that purpose water was run iuto her forward ballast 
 tanks ; and owing to a break in one of the pipes the water got into 
 the cargo. The break was due to an accident in the course of the 
 voyage ; it was not known to the master, but he feared the 
 possibility of it. He adopted this method of repairing the 
 propeller because he could not discharge the cargo (frozen meat) 
 and store it in safety at the port. Mathew, J., held that the 
 damage was a general average sacrifice, the tipping having been 
 done " for the safety of the whole adventure and for the advantage 
 of everyone interested in the ship or cargo." The ship " was lying 
 unnavigable in the harbour, and she and the cargo must have lain 
 there till both perished if the ship had not been tipped " (&). 
 
 No sacrifice 369. 
 
 where thing 
 
 abandoned which yet Cannot be rightly called a sacrifice. 
 
 in effect lost, property abandoned may have been in such a condition that, what 
 
 There may be an intentional abandonment or destruction 
 
 The particular 
 
 («) Kelly, C. B., deUveriBg the judg- 
 ment of himself and Bramwell, B., 
 said: — "There seem to us here all the 
 ingredients of a case of general average. 
 Peril of the seas imminent, certain loss in 
 a short time unless something not to be 
 anticipated should intervene, and a 
 sacrifice of the property of one for the 
 benefit of all. . . . It is said the 
 danger ivas not imminent, that there 
 was no emergency. We think there 
 was, and that a certainty of destruction 
 Tvithin a short time unless prevented is 
 an emergency and imminent. Suppose 
 a vessel ran for shelter into a river 
 where no supplies could be obtained ; 
 suppose she would have to stay a fort- 
 night unless she got out at the then 
 spring tides ; suppose her provisions 
 would fail her in that time ; suppose, to 
 get out, she lightens herself by throw- 
 ing some heavy cargo overboard ; woidd 
 not that be a case of emergency and 
 imminent danger f We think it would, 
 
 and that such is the result of all the 
 authorities" (p. 52). 
 
 On the other hand, Martin andCleasby, 
 BB., took the opposite view ; the latter 
 said : — " The danger in reality was not of 
 going to the bottom if nothing was done, 
 but the improbability of meeting with a 
 supply of fuel during the interval while 
 the existing fuel was being consumed. 
 And it appears to me that this not only 
 is insufficient to establish such a case of 
 imminent peril as is necessary to found 
 a claim to general average, but negatives 
 it" (p. 50). Cf. per Brett, L. J., 
 Whitecross Wire Co. v. Savill, 8 Q. B. D. 
 653, p. 662 ; and Robinson v. Price, 
 2 Q. B. D. 91, 295 (cited infra, s. 385), 
 upon the question of burning spare 
 spars. 
 
 {a) 76 L. T. 469. 
 
 (i) But cf. per Bowen, L. J., in 
 Svendsen v. Wallace, 13 Q. B. D. p. 88 ; 
 infra, b. 408. 
 
GENERAL AVERAGE. 411 
 
 ever happened to the rest of the adventure, it must, in any event Sect. 369. 
 which could rationally be expected, he lost. If that was the case, 
 the ahandonment at a point of time earlier than that at which the 
 loss would of itself have become complete was not a sacrifice. 
 And it does not give rise to a contribution. In Shepherd v. 
 Kottgen (c), a shipowner claimed contribution for the loss of a 
 mainmast which had- been out away during a storm. It appeared 
 that the starboard main rigging had given way, that the mast was 
 then violently lurching, and would probably have torn up the 
 ship's deck ; and that the port rigging was therefore cut in order 
 to let the mast go. Manisty, J., asked the jury whether, having 
 regard to all the circumstances, including the state of the weather 
 and sea, the mast was " virtually a wreck and valueless and gone 
 at the time it went over." The jury found it was a wreck, and 
 hopelessly lost ; and judgment was thereupon given for the 
 defendant. The Divisional Court {d) made a rule absolute for a 
 new trial, on the ground that the jury should have been asked 
 whether, if the storm had moderated, the mast might possibly 
 have been saved, and whether it was cut away to save the adven- 
 ture, or, as beiQg wreck, as a mere incumbrance or lumber. But 
 this was reversed in the Court of Appeal (e), where it was con- 
 sidered that the question whether the mast might possibly have 
 been saved had been substantially answered by the jury ; and 
 that the cutting away under the circumstances could not be a 
 sacrifice. 
 
 Brett, L. J., laid down the following propositions, which were 
 assented to by BramweU, L. J. : " If anything on board a ship, 
 which is cut or cast away because it is endangering the whole 
 adventure, is in such a state or condition that it must itself 
 certainly be lost, although the rest of the adventure should he saved 
 without the cutting or casting away, then the destruction of the thing 
 gives no claim to general average. Or the proposition may be 
 given in the following terms : where, whether the act relied upon 
 as the act of sacrifice had been done or not, the thing in respect of 
 which contribution is claimed would, hy reason of its own state or 
 condition, have been of no value whatever, or would have been 
 certainly or absolutely lost to the owner, although the rest of the 
 adventure had been saved, there is nothing lost to the owner by the 
 
 (c) 2 0. P. D. 578, 685. {S) 2 0. P. D. 578. («) 2 C. P. D. 586. 
 
412 
 
 THE VOYAGE. 
 
 Sect. 369. act, and therefore there is nothing sacrificed, that is to say, there is 
 no sacrifice" (/). 
 
 So if an anchor he slipped and lost, hecause it has become foul, 
 that is to say fast with something under water, and aU practicable 
 efforts have failed to raise it, this is not a general average loss {g). 
 
 In Iredale v. China Traders, &c., Co. (A), the question arose with 
 regard to freight on a cargo of coal. The coal heated, and the 
 master put into Buenos Ayres, after having jettisoned some of the 
 cargo. It was there found that the coal could not be safely 
 carried on to its destination Esquimalt ; the voyage was therefore 
 abandoned, and the freight was lost. It was contended that this 
 abandonment, involved in the act of putting in, was a general 
 average act, and that there was therefore a sacrifice of the freight. 
 Bigham, J., held that that was not so. The condition of the 
 cargo, at the time the master altered his course for Buenos Ayres, 
 was such that it had become impossible to carry it to its destination 
 so as to earn the freight. Nothing of value was sacrificed. 
 
 On the other hand, the freight on the coal jettisoned was held to 
 be a subject for contribution. Por, " although it was subsequently 
 ascertained that the freight was at this time wholly lost, the 
 circumstances as then known did not justify that conclusion, and 
 thus the captain may be properly said to have substituted a certain 
 loss of part for a -probable loss of the whole of the adventure, so as 
 to give rise to a general average claim " («). 
 
 Peculiar 370. But the fact that the property sacrificed was in a peculiarly 
 
 exposure to . . . f . . r j 
 
 peril. perilous position, or even was itself endangering the rest of the 
 
 adventure, will not prevent the loss from being a general average 
 sacrifice, unless its position was a hopeless one. Thus, where 
 cargo stowed on deck had broken loose, and was drifting about, so 
 that it became a source of danger, and prevented the working of 
 the pumps, a jettison of it was held to be a sacrifice (Ic). 
 
 (/) Cf. Marshall v. G-amer, 6 Barb. hastened its destruction : Crockett v. 
 
 394 ; Lee v. GrinneU, 5 Duer, 400 ; Pars. Dodge, 3 Eairf . 190, cited in Pine v. 
 
 M. Ins. II. 212, 277 and 288. Where a Middle Dock Co., 44 L. T. 426. So 
 
 vessel laden with lime, which was on where goods on fire were jettisoned, it 
 
 fire, was hauled out into the stream and was not a general average sacrifice : 
 
 scuttled, so that the lime was destroyed Slater ti. Hay ward Rubber Co., 26 Conn, 
 
 at once, but the ship was saved, it was 128 ; Pars. M. Inst. II. 212. 
 
 held in the United States, that the ship {g) Lowndes (4th), 111. 
 
 should not contribute to the lime : for {h) (1899) 2 Q. B. 356. 
 
 the latter could not possibly have been (») (1899) 2 Q. B. at p. 360. 
 
 preserved, and the scuttling only (/c) Johnson v. Chapman, 35 L. J., 
 
GENERAL AVERAGE. 413 
 
 And if some of the spars, or sails, or rigging, upon a mast which Sect. 370. 
 is virtually lost, and dangerous, might he saved (though it could 
 not) by delaying the cutting of it adrift, the act of doing so at 
 once may be a sacrifice of those spars, &c. (/). 
 
 371. The propositions laid down in Shepherd v. Kottgen, related Peculiar 
 to a condition of peril of the thing abandoned peculiar to itself ; be sacrificed, 
 its safety being at the time of abandonment hopeless, not from the 
 existence of the common danger, but owing to its own damaged 
 condition. Where the danger which renders the position of the 
 thing sacrificed hopeless is that which is common to the whole 
 ship and cargo, the sacrifice is a general average act ; although the 
 common danger may be such that it can be averted by the sacrifice 
 of that particular thiug, and by that only. 
 
 It has been forcibly argued, that if the only possibility of safety 
 lies in the sacrifice of one particular part of the adventure, then, as 
 that part must iu any event be lost, it is valueless, and consequently 
 no real sacrifice is involved in its destruction {m). The weight of 
 authority, however, is agaiust this view (w). And as a matter of 
 policy, it would seem inexpedient to introduce such an exception 
 into the general principle that those shall contribute to the loss who 
 have gaiaed by the sacrifice. Alternatives might in many cases 
 present themselves to the master before he would make a sacrifice 
 which might have to be entirely borne by the ship ; and thus his 
 readiaess to do what should be done might be diminished. It is the 
 poHoy of the law to foster that readiness. The point has not been 
 decided by our Courts, but it has not been approved of when 
 taken (o). And no such distinction as it involves was recognized in 
 cases such as Birkley v. Presgrave {p), where the question might 
 have been raised. 
 
 C. P. 23. Cf. Pirie^;. Middle Dock Co., 287 ; Jacobs, Dr. Mar. Beige, o. 414 ; 
 
 44L. T. 426; cases note (/), sajjra. As Lyon-Oaen et Renault, d. 1951. A 
 
 to jettison of deck cargo generally, see sacrifice means "not that its subject is 
 
 infra, a. 379. destroyed, or even subjected to a greater 
 
 (?) Tork - Antwerp Rule IV. pro- danger than it -was already in, but that 
 
 Tides that "Loss or damage caused it is selected to suffer alone, a,-uAthaaa,Yert 
 
 by cutting away the wreck or remains the common 'peril." From the judg- 
 
 of spars, or of other things which have ment in Sturgess i>. Gary, 2 .Curt. Cir. 
 
 previously been carried away by sea- C. 69 (U. S.). 
 
 peril, shall not be made good as general (o) See Pirie v. Middle Dock Co. 44 
 
 average." L. T. 426 ; Whitecross Wire Co. v. 
 
 {m) See Benecke, 170, 183 and 219. SaviU, 8 Q. B.D. 653. Iredale v. China, 
 
 («) Lowndes (4th), 124 ; Macl. 608; &c. Co., (1899) 2 Q. B. 356. 
 
 PhilKps, s. 1271 ; Parsons, M. Inst. II. (p) 1 East, 220. 
 
414 THE VOYAGE. 
 
 Sect. 372. 372. If some of the property be ultimately saved, it is not neces- 
 
 The act need gary that the beneficial results should have been due to the sacrifice 
 not be sue- .„. , . . • ■, , , j -t i^- / \ a x. 
 
 oessful. itself, m order to give rise to a right to contribution {q). bucn a 
 
 distinction would lead to great difiioulties. Moreover, the sacrifice 
 
 was an experiment, made with a view to the general safety, and as 
 
 such should be contributed to. 
 
 The same is true even though the sacrifice was the result of a 
 mistake by the master as to the nature of the danger. As where 
 damage was needlessly done in order to get at a leak, mistakenly 
 supposed to be below the water line (r). 
 
 Hence, if after a jettison the ship be wrecked, though in the 
 same storm, but part of the property be saved from the wreck, 
 that must contribute to the jettisoned goods. But, as we shall 
 see later (s), the value to be so contributed to is estimated with 
 reference to the risks the jettisoned goods would have run if they 
 had continued on board. And if they would in that case have 
 been lost that value is reduced to nothing. 
 
 Wliere the act 373. It may happen that what originally was intended to be a 
 property Sacrifice becomes in fact the means of salvation of the goods which 
 sac^oed. ^ ^^ ^^^ meant to sacrifice ; as where the ship is wrecked after they 
 have been intentionally exposed by being placed in lighters, or 
 discharged on to the shore, in the hope of saving her. In such a 
 case it may be doubtful whether goods saved from the wreck 
 should contribute to damage sustained by the exposed goods, while 
 they were thus, in fact, being put into a position of greater 
 safety (t). The rule just referred to seems, however, to meet this 
 case also. The exposed goods must be deemed to have remained 
 in the ship ; and if the damage they would probably have there 
 sustained would have been not less than what they actually 
 sustained, there should be no contribution {u) . 
 
 Exception 373a. The exception to the rule of contribution, in cases where 
 
 produoedby^'^ the danger which led to the sacrifice was brought about by the 
 person^ckhn- ^^^* °^ ^^® person claiming, has not been very f uUy discussed in 
 
 ing contribu ^he books. 
 tion. 
 
 (?) Am. (3rd), 807 ; Benecke, 172, («) Infra, s. 418. 
 
 179 ; Lowndes (4tli), 38 ; Pars. M. Ins. (0 Benecke considered that there 
 
 TT 281 SOO should be no contribution to goods put 
 
 ' ' into lighters, unless the ship were 
 
 {r) The Wordsworth, 88 Fed. Rep. saved : p. 212. 
 
 313. (m) Infra, a. 418. Cf. Benecke, 306. 
 
GENERAL AVERAGE. 416 
 
 The earlier view appears to have been that where there had been Sect. 373a. 
 fault, the sacrifice was not to be regarded as a general average 
 act ; and, consequently, that no contributions were to be made, 
 but the person in fault was to be looked to («). This view is not 
 now taken. " The Ehodian law, which in that respect is the law 
 of England, bases the right of contribution, not upon the causes of 
 the danger to the ship, but upon its actual presence" {y). And Ji^^^antnot 
 thus innocent sufferers from a general average sacrifice necessitated afPeoted. 
 by neglect, or other improper conduct, may claim contributions 
 from other innocent co-adventurers, as well as from those who 
 brought about the danger (s). 
 
 In Strang v. Scott {a), the ship had stranded owing to negligent 
 navigation. It was held that this fact was no answer to a claim 
 by shippers whose goods had been jettisoned, to lighten the ship, . 
 against the owners of the rest of the cargo. They " were not privy 
 to the master's fault, and were under no duty, legal or moral, to 
 make a gratuitous sacrifice of their goods for the sake of others to 
 avert the consequences of his fault" {y). 
 
 But a LLmitation of the right to contribution, when the danger 
 has been improperly caused by those who claim the contribution, 
 has been frequently insisted upon. 
 
 In Schloss V. Heriot (&) it was held, on demurrer, that a plea 
 was good which alleged that the ship's unseaworthiness had 
 necessitated the expenditure to which the plaintiff (the shipowner) 
 claimed general average contribution. Erie, 0. J., said : " It shows 
 that the plaintiff was himself the cause of the loss, that his 
 actionable negligence and misconduct produced the very damage 
 for which he seeks to recover contribution from the defendants. 
 Further, I am of opinion that, if necessary, the plea is sustainable 
 on the ground that the defendants would be entitled in a cross- 
 action to recover back the whole sum claimed by the plaintiff in 
 this action." 
 
 In The Ettrick (c), the question was whether the shipowner could 
 claim contribution from the cargo towards the expenses of raising 
 
 (x) See, as to overloading', MoUoy, Mining Co., 74 Ped. Eep. 564. 
 p. 249 [(4th ed., 1688) ; Beawes, p. 244 (2) cf. The Strathdon, 94 Fed. Rep. 
 
 (ed. 1813) ; Malynes, p. 113. 206. 
 
 (y) Per Ld. Watson, deliTering the U A C 601 
 
 judgment of the Privy Council in Strang ^ ' 
 
 V. Soott, 14 A. C. 601, at p. 609.; (*) 14 C. B., N. S. 59. 
 
 Pacific Mail SS. Co. v. New York, &o. (c) 6 P. D. 127. 
 
416 THE VOYAGE. 
 
 Sect. 373a. ship and cargo, which had been sunk owing to negligent navigation 
 by his servants. Brett, L. J., said : " He has been in fault, and the 
 authorities are decisive that if the general average contribution 
 which he claims is a general average contribution which arose by 
 reason of a default of his, he cannot claim anything " (d). And 
 Cotton, L. J., said : " It would be against equity to say that the 
 person who himself has done the wrongful act which caused the 
 expenditure shall claim thereupon from anybody else " (e). 
 
 In Pirie d. Middle Dock Company (/), Watkin Williams, J., 
 after referring to a dictum of Wiljes, J., in Johnson v. Chapman (g), 
 said : " All that that case decides is that if the owner of the interest 
 sacrificed was himself in fault, and was the cause of the danger 
 which necessitated the sacrifice, he must bear the loss himself, and 
 could not throw it as a general average on the whole adventure ; 
 or, as it has been expressed in one of the decisions, he cannot take 
 advantage of his own wrong. This is strictly in accordance with 
 the maritime law, and had been laid down in several previous 
 decisions." 
 
 And, in Strang v. Scott, already referred to. Lord Watson 
 said : " When a person who would otherwise have been entitled to 
 claim contribution has, by his own fault, occasioned the peril which 
 mediately gave rise to the claim, it would be manifestly imjust 
 to permit him to recover from those whose goods are saved, 
 although they may be said, in a certain sense, to have benefited by 
 the sacrifice of his property. In any question vnth them he is a 
 wrong-doer, and, as such, under an obligation to use every means 
 within his power to ward off or repair the natural consequences of 
 his wrongful act. He cannot be permitted to claim either recom- 
 pense for services rendered, or indemnity for losses sustained by 
 him, in the endeavour to rescue property which was imperilled by 
 his own tortious act, and which it was his duty to save. Schloss v. 
 Heriot is the leading English authority upon the point " (h). 
 
 Grounds of 373b. There is, however, some uncertainty as to the grounds 
 
 tois limita- , „ , . , . 
 
 tion. and the extent of this limitation to the right to contribution. One 
 
 view has been that the fault which prevents a claim for contribu- 
 tion must be one which renders the person claiming liable to a 
 
 W 6 P. D. at p. 135. (pr) 19 0. B., N. S. 563. 
 
 (e) 6 P. D. at p. 137, (A) U A. C. at p. 608. See also The 
 
 (/) 44 L. T. 426, p. 429. Irrawaddy, 171 U. S. 187, p. 189 (1897). 
 
GENEEAL AVERAGE. 417 
 
 cross-action, in which the contribution would be reclaimable in full Sect. 373b. 
 by the contrihutor, as damages. On this view the shipowner, or 
 other person whose fault has produced the danger, is not dis- 
 entitled to contribution, but he is not allowed to recover it, owing 
 to the rule against circuity of action. The judgment in Schloss v. 
 Heriot («) perhaps left it doubtful whether this was not the ground 
 of the decision.' But the opinions of the judges in subsequent 
 cases, cited above, show plainly that the fault takes away the right 
 to contribution {Ji). And we should expect that, as the right to 
 general average contribution is based upon principles of justice, 
 it must have some limitations also based upon the view taken in 
 the law as to what is just {f). It therefore seems certain that the 
 loss of the right to contribution does not turn upon any mere 
 rule of procedure, such as that against circuity of action (m). It is 
 the fault of the claimant which, on equitable grounds, excludes 
 the right. 
 
 But another view is that, without reference to any rule of pro- la it affected 
 cedure, the fault which takes away the right to contribution must in the con- 
 be one which gives a right of action to the person who would *arriaffe 
 otherwise be liable to contribute, either as being a tort or as a 
 breach of contract. So that if unseaworthiness or negligent 
 navigation are, by the contract of carriage, not to be counted as 
 faults against the shipowner, it is said that his right to contribu- 
 tion cannot be lost on the ground that unseaworthiness, or bad 
 navigation, made the sacrifice necessary. This seems to mistake 
 
 (i) 14 C. B., N. S. 59. takes place where one of several interests 
 
 (A) In The Ettriok, 6 P. D. 127, in has been sacrificed for the rest ; and that 
 particular, the rule against circuity of the apparent exception to the rule which 
 action would not have applied. For the we are discussing arises when, and only- 
 shipowner there had taken proceedings when, all the interests were at the time 
 to limit his liability, so that the owners of the sacrifice merged in one ; as where 
 of the cargo could only have got back the shipowner had, by bad navigation, 
 a dividend upon their contributions, if become responsible for the harm which 
 they had been liable to make them. might, but for the sacrifice, have 
 
 [t) " Such exceptions as that re- happened to the other interests. The 
 
 cognised in Schloss v. Heriot are in judgments above quoted show that the 
 
 truth limitations on the rule which limitation has not been based on this 
 
 have been introduced from equitable con- view. Moreover, it is not true that 
 
 sidemtions in the case of actual wrong- there are no longer several persons 
 
 doers, or of those who are legally interested when one has become liable 
 
 responsible for them." Per Ld. Watson to indemnify the others. A right to 
 
 in Strang v. Scott, 14 A. 0. at p. 609. indemnity, even when complete, does 
 
 {m) Another way of stating what not displace the direct interest in the 
 
 amounts to the same ground is, that ship or goods ; and frequently it is not 
 
 general average contribution always a practical equivalent for that interest. 
 
 C. C, E E 
 
418 THE VOYAGE. 
 
 Sect. S73b. the relation tetween tlie law of general average and the contract of 
 carriage. The rules as to general average are rules of positive law ; 
 and though it may be said (if it seems worth while) that they are 
 adopted by the parties in their contract, impKedly, still the rules 
 are not creatures of the contract ; they are creations of law, of old 
 standing, universally applicable, without regard to whether any 
 contract of carriage has or has not been made. The contract of 
 carriage may, no doubt, modify those rules as between the parties. 
 Whether it does so in any case is a separate question. But the 
 rules themselves are independent of the contract, and their meaning 
 must be sought in the law and not in the contract. 
 
 That this is ^o will appear more clearly when we remember 
 the occasion and object of the rules of contribution. They were 
 established to secure equality among co-adventurers on occasions of 
 extraordinary emergency, when the general safety of the lives and 
 property at stake could only be secured by in part destroying the 
 adventure. In these unlooked-for circumstances relationships and 
 questions arise with which the contracts between the several 
 co-adventurers and the shipowner do not usually, and cannot suffi- 
 ciently deal. If a shipper's rights to contribution in general average 
 spring from contract at all, it must be from a contract to which all 
 the co-adventurers are in some way parties. Those rights are, 
 in truth, given and regulated by the law of general average, the 
 cardinal object of which is to place those who have been put to 
 sacrifice in the same position as those from whom no sacrifice has 
 been required ; and thus to make it indifferent whether the loss is 
 in the first instance cast upon one or upon the other. This object 
 would often be missed if the rule of law depended upon the vary- 
 ing contracts between the different parties to the adventure. A 
 jettison of A.'s goods might give a right to contribution from the 
 shipowner, while a jettison of B.'s goods might not. X. might be 
 liable to contribute to a sacrifice of the goods of another shipper, 
 Y., but not to the cutting away of the ship's masts. 
 
 And, indeed, there is no trace in the statements which have 
 been given of the rule of general average contribution that it 
 depends upon the terms of the contract of carriage. While, on the 
 other hand, it has frequently been held that those terms, where 
 they do not expressly modify the rule, have no effect upon it. 
 
 " The office of the bill of lading is to provide for the rights and 
 liabilities of the parties in reference to the contract to caxry, and. is 
 
GENERAL AVERAGE, 419 
 
 not concerned with liabilities for general average " (w). Thus, an Sect. 373b. 
 exception of "perils of the sea" in the hill of lading does not 
 relicYe the shipowner from contributing towards a jettison of cargo 
 necessitaited by sea perils. Nor does the exception of "fire and 
 the consequences thereof " relieve him from contributing to damage 
 to cargo done in extinguishing a fire on board (o). So, also, a 
 stipulation in a charter party that the deck-load should be "at 
 merchant's risk " did not relieve the shipowner from liability to 
 contribute to a Jettison of that load {p). 
 
 The true conclusion then, it is submitted, is that the limita- 
 tion, set hy law, to the legal right to contribution, is generally 
 independent of the contract of carriage (g), as well as of rules of 
 procedure. The extent of the limitation depends on the view of the 
 law as to what justice requires, and the cases above cited show that 
 the limitation -applies where the need for the shipowner's sacrifice 
 has been caused by negligence on his part, or on the part of his 
 servants, in properly fitting the ship for the voyage, or in making 
 her seaworthy, or ia navigating her. They also seem to show that 
 the same limitation precludes the claim to contribution of a cargo- 
 owner, where the danger which has led to a sacrifice of his goods 
 was caused by their unfitness for shipment, if his conduct in 
 shipping them was wrongful or negligent (r) . 
 
 Whether the limitation would apply where the condition of the 
 ship, or of the goods, has produced the danger, but without any 
 negligence on the part of the shipowner, or of the shipper, seems 
 to be more doubtful. 
 
 373c. It must, however, be confessed that the theory here put The Carron 
 forward seems to be in conflict with the judgment of Sir J. 
 
 (re) Per Lush, J., in Sohimdt». Royal In the U. S. it has been held that an 
 
 Mail SS. Co., 45 L. J., Q. B. 646. Ee- exception of " jettison " does not affect 
 
 peated in Crooks 1!. Allan, 5 Q.B. D. 38; the ship's liability to contribute to a 
 
 and adopted by the Court of Appeal in jettison, The Allianca, 64 Fed. Rep. 871, 
 
 Burton i). English, 12 Q. B. D. 218. (1894) ; also that the cesser clause in a 
 
 (o) Schmidt v. Royal Mail SS. Co., charter party does not relieve the ohar- 
 
 and Crooks ti. Allan, supra. Even the terer from liability to make general 
 
 broad exemption, under M. S. Act, 1854, average contributions, Marwiok v. 
 
 B. 503, from making good any loss or Rogers, 163 Mass. 60; The Eliza Lines, 
 
 damage "by reason of any fire happen- 61 Fed. Rep. 308. 
 
 ing on board " had not that effect. Ibid. {q) But see The Carron Park, 15 P. D. 
 
 The same view, both as to the bill of 203, cited below. Cf . the effect of the 
 
 lading and the statutory exemption, is contract on the shipowner's right to 
 
 taken in America, The Roanoke, 59 Fed. claim salvage, supra, s. 342. 
 
 Rep. 161. [r) See, as to a shipper's responsibility 
 
 (i?) Burton «>. English, 12 Q. B.D. 218.' for dangerous goods, supra, s. 278. 
 
 E E 2 
 
420 THE VOYAGE. 
 
 Sect. 373c. Hannen, in the ease of The Carron Park(s). A claim was there 
 made for contribution from the cargo in respect of general average 
 expenditure incurred in consequence of water getting into the 
 ship. This had happened through negligence on the part of the 
 ship's engineers, and it was contended that the shipowners could 
 not therefore recover the contribution claimed. But the charter 
 party contained an exception of "any neglect or default what- 
 soever of the pilot, master, crew, or other servants of the ship- 
 owners," and Sir J. Hannen held that this justified the shipowner's 
 claim. He said, " The claim for contribution as general average 
 cannot be maintaiaed where it arises out of any negligence for 
 which the shipowner is responsible ; but negligence for which he 
 is not responsible is as foreign to him as to the person who has 
 suffered by it." And after citing a passage from Strang v. Scott, 
 he added, " Here it appears to me that the relation of the goods 
 owner to the shipowner has been altered by the contract that the 
 shipowner shall not be responsible for the negligence of his 
 servants in the events which have happened." 
 
 This judgment seems certainly contrary to the view that the 
 rules of general average are independent of the contract of 
 carriage; unless it can be regarded as a decision that the parties 
 had there intentionally altered those rules, as between themselves, 
 with regard to that shipment. It is of course always competent 
 to the parties to do that. They may by their agreement modify 
 the law, or get rid of it altogether (^). But it is difiScult to 
 reconcile the decision that a mere general exception of negligence 
 in the contract of carriage will effect this with the cases which have 
 been referred to above (u). 
 
 The difference between those cases and The Oarron Park is that 
 the latter dealt, not with the affirmative rule of contribution, but 
 with the negative limitation to that rule. But it is submitted 
 that the same principle of construction should be applied. " Those 
 who wish to make exceptions in their own favour by which they 
 are to be relieved from the ordinary laws of the sea ought to do 
 so in clear words" («). This seems as applicable to a shipowner 
 
 (s) 15 P. D. 203 (1890). parties in that relation have teen varied 
 
 {t) This seems to be all that -was by special contract between them and 
 
 meant by Lord Watson in Strang v. the shippers." 
 Scott (14 A. C. p. 609), when he said 
 that no contribution oonld be recovered 
 
 («) Sect. 373b. 
 
 by the owners of the ship, "unless the W ^er Bowen, L. J., in Burton v. 
 
 conditions ordinarily existing between English, 12 Q. B. D. p. 224. 
 
GENERAL AVERAGE. 421 
 
 claiming contributions, contrary to tlie ordinary limitation to that • ^"^°- 
 
 right, as it is to one who seeks to avoid the ordinary obligation to 
 contribute. 
 
 The Carron Park decision was approved by Barnes, J., in The 
 Mary Thomas (y), and was followed by Mathew, J., in Milburn v, 
 Jamaica, &c. Co. (s). It has not, apparently, been yet considered 
 in the Court of Appeal. 
 
 In the Supreme Court of the United States it has, in effect, been 
 dissented from. The Irrawaddy (a) raised the question whether 
 sect. 3 of the Harter Act, which exempts the shipowner from 
 responsibility " for damage or loss resulting from faults or errors 
 in navigation," had the effect of enabling him to claim con- 
 tributions to general average expenditure, necessitated by neg- 
 ligent navigation. It was held, by a majority of the Court, that 
 it had no such effect. " It is one thing to exonerate the ship and 
 its owner from liability for the negligence of those who manage 
 the vessel ; it is another thing to authorize the owner to do what 
 he could not do before, namely, share in the general average 
 occasioned by the master and crew " (b). 
 
 374. The sacrifice ought, generally speaking, to be made under Sacrifice 
 the directions, or with the authority, of the master, or other person raUy be^by^" 
 in command of the ship. But that does not appear to be an "'^ster. 
 
 (y) (1894) P. 108. The negligence does not alter that, hut 
 
 (z) i Com. Ca. 331. merely gives a claim against those in 
 
 / X /,nnn, .», TT a 10.T o 1 fault (ses Jacohs, Dr. Mar. Beige, 
 
 (a) (1898), 171 TJ. S. 187. See also ,,/-,» ■. . \ -^ ^ n ;, ,Ao^ 
 
 ^ ' ^ ' SB. 416, 417 ; but cf. Belg. Code, 103) ; 
 
 Trinidad, &o. Co. v. France, 88 Fed. ^^^ ^^^^ ^^^ j^ defeated by an excep- ' 
 
 ilep. 528. tion of negligence. On the other hand, 
 
 (S) Per Shiras, J., delivering the the German Merc. Code (704), and the 
 
 judgment of the Court, 171 TJ. S. 194 ; Danish Mar. Comm. Code of 1892 (191), 
 
 Brown and McKenna, JJ., dissented. expressly disallow claims for contribn- 
 
 Deoisions similar in effect to that in The tion by one whose fault has occasioned 
 
 Carron Park have been given in France : the danger. In Holland the Code (700) 
 
 The Alexander Lawrence, C. de Cassa- excludes from general average damage 
 
 tion (1894), 10 K. I. D. M. 147 ; and in or expense caused by neglect of master 
 
 C. A. Orleans (1895), 11 E. I. D. M. 41. or crew ; and a negligence clause has 
 
 Alsoin Belgium: The Alacrity, Trib. of been held not to alter that (see The 
 
 Comm. Antwerp (1895), 11 E. I. D. M. Mary Thomas, (1894) P. at p. 11). In 
 
 123. But these decisions turned upon The Strathdon, 94 Fed. Rep. 206, it was 
 
 the effect of the codes. In each case the held in the District Court of New York 
 
 question was as to expenses in a port that if a general average adjustment is 
 
 of refuge ; and all such expenses, in- made of cargo sacrificed, the shipowner, 
 
 curred for the connmon good and safety, though in fault, must be allowed to 
 
 are by the French Code (400), and the bring ia his general average losses ; see 
 
 Belgian Code (102), general average. supra, s. 103e. 
 
422 
 
 THE VOYAGE, 
 
 Sect. 374. essential ; the real questions are, was a sacrifice necessary for the 
 general safety ? and were the measures taken reasonahly prudent 
 in -view of that necessity ? It is conceivable that a sacrifice might 
 fulfil these conditions although made contrary to the will of the 
 master (c). In Mouse's Case (rf), a jettison for the general safety 
 was held to be lawful ; and though nothing was there said about 
 general average contributions, there can be little doubt that if the 
 jettison for the general safety has been lawful, the rule of con- 
 tribution applies, however it was made. 
 
 In Price v. Noble (e), the ship was in the hands of captors at the 
 time of the jettison; her master had been taken away, but the 
 mate was left on board, and the goods appear to have been thrown 
 over under his directions, though with the assent of the captors. 
 It was held to be a general average act. 
 
 The early codes and the writers on the subject prescribed that 
 before making a sacrifice consultations should be held between the 
 master and mariners, with certain forms to be observed (/). These 
 are no longer requisite {g) ; but still the act must be done with 
 reasonable care and prudence, not in panic or recklessness, other- 
 wise it cannot be regarded as a general average loss ; and, subject 
 to the contract, the shipowner must answer for it (A). 
 
 Sacrifice 
 made by 
 independent 
 authority,. 
 
 374a. The matter takes another shape where the sacrifice has 
 been made independently of those in control of the adventure. In 
 the United States the question has several times arisen whether the 
 scuttling of a ship on fire, in port, by the port authority, is a general 
 average act, to be contributed to by the various interests on board. 
 In EaUi v. Troup {i), it was decided by the Supreme Court that, as 
 the scuttling had there been done by the port authority acting on 
 their own judgment, though with consent of the master, it was 
 not a case for contribution. "As the sacrifice must be for the benefit 
 of the common adventure, and of that adventure only, so it must 
 be made by some one specially charged with the control and safety 
 
 (e) Beneoke, 172. But cf . Maol. p. 664 ; 
 Phillips, Ins. B. 1280 ; Kent, Comm. III. 
 234 ; Jacohsen, Sea Laws, Bk. iv. oh. 2, 
 p. 345. . Authority of crew, The Niraiod, 
 Ware, 14 (Amer.). 
 
 [d] 12 Co. Eep. 63 ; cited supra, s. 15. 
 {e) 4 Taun. 123. 
 
 (/) Abbott (5th), 345 ; (13th), 629. 
 
 {g) Birkley v. Presgrave, 1 East, 220. 
 
 (h) Supra, s. 294. 
 
 (J) 157 U. S. 386 (1894); and see 
 Wamsutta Mills v. Old Colony Steam- 
 boat Co., 137 Mass. 471 (1884) ; cf. The 
 Koanoke, 46 Fed. Eep. 297; 69 Fed. 
 Eep. 161. 
 
GENERAL AVERAGE, 423 
 
 of that adventure, and not be caused by the compulsory act of Sect. 374a. 
 others, whether privileged persons or pubKo authorities" (k). 
 
 On the other hand, in Papayanni v. Grampian Steamship Co. (l), 
 where the ship had been scuttled at a port of refuge by orders of 
 the captain of the port, Mathew, J., held that, as that was done in 
 the interest of the ship and cargo, and there was no evidence of 
 any other motive, the loss was a general average sacrifice. 
 
 374b. Again, the interest sacrificed must have been part of a claims as 
 common maritime adventure, with the interests from which con- ggp^^te 
 tributions are claimed. It seems doubtful whether rights of *ips. 
 contribution can ever arise as between interests which are at risk 
 upon separate ships. 
 
 In The J. P. Donaldson (m), a tug, which had been towing some 
 sailing barges, cast them ofE in a storm, to save herself from going 
 ashore. The barges went ashore, and were lost with their cargoes. 
 The tug arrived safely. She had been towing on the terms of 
 receiving part of the freight which would have- been earned by the 
 barges. A claim for contribution in general average was made 
 agamst the tug by the owners of the barges. 
 
 It was held by the Supreme Court of the United States that no 
 contribution was payable. The master of the tug was not in 
 control of the barges in the sense necessary to empower him to 
 make a sacrifice binding tug and barges as a single maritime 
 adventure. In all respects, except that of performing the contract 
 of towage, the barges were under the control of their own masters. 
 " The master of the tug having no authority to decide, as between 
 a barge and her cargo, what part shall be sacrificed for the safety 
 of the rest, and thereby to subject what is saved to contribution in 
 general average for what is lost, can surely have no greater 
 authority by abandoning all the barges with their cargoes to 
 subject the tug to a general average contribution " (w). 
 
 In Dabney v. New England, &c. Co. (o), part of the cargo of a 
 ship was thrown overboard to enable the ship to receive the 
 passengers and crew of a vessel in distress. It was held by the 
 Supreme Court of Massachusetts that the jettison was not a general 
 
 (A) 1S7 U. S. at p. 419. Comm. 234 (n) ; -where the cutting of a 
 
 {tj 1 Com. Ca. 448. cable to prerent a collision -with another 
 
 (m) 167 U. S. 699 (1897). vessel was not a ground for contribution 
 
 («) 167 U. S. p. 605. See also The from that vessel. Of. Phill. a. 1311. 
 John Perkins, 3 Ware, 87; 3 Kent (o) 14 AUen, 300 (1867). 
 
424 THE VOYAGE. 
 
 Sect. 374b. average sacrifice, so as to entitle the cargo owner to recover from 
 
 his insurer. The sacrifice had not been made to avoid a danger to 
 
 the original adventure. 
 
 mere all 374g_ jj; }^^ i^gg^ gg^j^^ ^j^^t in order to give rise to general 
 
 belong to one average contributions the ownership in the property at risk at the 
 
 owner. -r-r-r- 
 
 time of sacrifice must not all be in the same person. Where ship, 
 freight, and cargo all belong to one and the same owner there is no 
 opportunity for contributions, in the ordinary sense ; for the loser 
 and contributor are the same person. And it has been held that 
 this is equally true although different portions of the property at 
 risk may have been insured with different underwriters. 
 
 In The Brigella {p),a ship sailed outwards in ballast under a charter 
 to bring back a homeward cargo, for freight to the shipowner. Port 
 of refuge expenses were incurred on the outward voyage. It was 
 held that these could not be treated as general average expenses, so 
 as to found a claim by the shipowner, against his insurer of the 
 chartered homeward freight, for a contribution supposed to have 
 been paid by that interest. 
 
 It is hard to believe that such a wide difference is intended, in 
 the effect of an ordinary poHey, merely because the interests are 
 all held by the assured. Losses which from their voluntary 
 character would usually be general average might well be treated, 
 as between insurer and assured, as having that nature, although 
 there may have been no contributories (q). In the United States 
 they are so treated (r). But the matter is outside our subject. 
 
 Jettison of 375. The most familiar instances of general average sacrifices 
 
 are jettisons — the casting overboard of cargo or stores in order 
 to lighten the vessel. The requisites of such an act were thus 
 described by Abbott (s) : — " The goods must be thrown overboard. 
 The mind and agency of man must be employed. If the goods 
 are forced out of the ship by the violence of the waves, or are 
 destroyed in the ship by lightning or tempest, the merchant alone 
 must bear the loss. They must be thrown overboard to lighten the 
 ship. If they are cast overboard by the wanton caprice of the crew 
 
 ip) (1893) P. 189. Infra, a. 438. upon the right of contribution. 
 
 {q) See Beneoke, 473. It should not (r) See PhiU. Ins. 1374; Potter v. 
 
 be overlooted that a general average Ocean Ins. Co., 3 Sumner, 27 (1837) ■ 
 
 sacrifice is made primarily for the safety Greeley t>. Trimont Ins. Co., 9 Cush. 
 
 of the lives on board. The special (Mass.), 415 (1882). 
 
 character of the loss does not depend (s) Abbott (5th), 344 ; (13th), 628, 
 
GENERAL AVERAGE. 425 
 
 or tlie passengers, they, or the master and owners for them, must Sect. 375. 
 
 make good the loss. The goods must he thrown overheard for the 
 
 sake of all; not heoause the ship is too heavily laden to prosecute 
 
 an ordinary course through a tranquil sea, which would he the fault 
 
 of those who had shipped or received the goods [t) ; but because at 
 
 a moment of distress and danger their weight, or their presence, 
 
 prevents the extraordinary exertions required for the general safety. 
 
 When the ship is in danger of perishing from the violent agitation 
 
 of the wind, or from the quantity of water that may have forced a 
 
 way into it, or is labouring on a rock or a shallow, upon which it 
 
 may have been driven by a tempest; or when a pirate or a-n 
 
 enemy pursues, gains ground, and is ready to overtake it, — no 
 
 measure that may facilitate the motion and passage of the ship can 
 
 be really injurious to any one who is interested in the welfare of 
 
 any part of the adventure, and every such measure may be beneficial 
 
 to almost all." 
 
 376. It is not necessary that the goods should have been thrown I'l^tt^g «"* 
 
 _ "^ ° _ cargo in boats 
 
 away with the intention of abandoning them. They may have or on to beach, 
 been put out in boats, or on rafts; or landed on to the beach, where 
 the vessel is stranded ; and if they have been damaged or lost 
 owing to this extraordinary exposure, and if that has been done 
 for the general safety, the loss is a general average loss {u). 
 
 The difficulty in such cases is to distinguish whether the goods 
 have been taken out of the ship for the general safety; or for their 
 peculiar benefit, in the hope of securing and saving them. If the 
 latter has been the object, the damage sustained by the goods 
 owing to the exposure is not a matter for contribution («) ; if the 
 former, it is. Where both motives have been in operation, the test 
 seems to be, was the situation such that the goods would have been 
 taken out, in the manner adopted, whether the ship would be 
 thereby benefited or not? If they would, then the removal of them 
 was not a general average sacrifice. For though the ship, and the 
 cargo remaining in her, may have incidentally derived advantage, 
 it was no sacrifice of the goods to remove them : that has been for 
 their own peculiar advantage. On the other hand, if the goods 
 were taken out in order to save the ship, and themselves through 
 her safety, then there has been a sacrifice, even though the safety 
 
 WSee Strang v. Soott, 14 A. G. 601, , > „ ■nn.-j.j. -j -nt • /. -nr 
 
 o ' ' <xj See Wmtteridge ji.Norris, 6Mass. 
 p. 610. 
 
 {«) Benecke, 209 ; Lowndea (4tli), 83. ^^S, stated in Pars. M. Ins. 214. 
 
426 
 
 THE VOYAGE. 
 
 Sect. 376. 
 
 Exposure of 
 cargo in 
 
 jettison. 
 
 Bulk cargo 
 pumped out. 
 
 Baled out. 
 
 Damage dur- 
 ing repairs. 
 
 Jettison of 
 deck cargo. 
 
 of those goods was so bound up with that of the ship that the 
 exposure was necessary in their own interest alone {y). 
 
 377. In getting the goods out of the ship it may be necessary to 
 out holes in the deck, or to do other damage to her. These are 
 sacrifices to which contribution must be made. Also by opening 
 the hatches to get the goods out of the holds, water may unavoid- 
 ably get in aihd damage other parts of the cargo, or some of the 
 remaiaing cargo may be injured or lost in taking out the goods to 
 be jettisoned. In these cases the goods damaged have been exposed 
 to extraordinary risk for the general safety ; so that, unless the 
 damage has resulted from improper conduct, it is a general average 
 loss (z). 
 
 The same is true of other risks to the cargo which may be neces- 
 sary consequences of the jettison, as where goods are injured by 
 breakage or chafing, owing to derangement of the stowage, which 
 the crew were not able to rectify after the jettison {a). 
 
 378. Where part of a cargo of wheat had been pumped into the 
 sea by the ship's pumps, working in the ordinary way to keep 
 down a leak, it was held that that was not a general average 
 loss (&). 
 
 But where water is baled out of a ship, in an extraordinary 
 manner, for the general safety and under such conditions that 
 some of the cargo is necessarily thrown out with it, this is in 
 practice treated as a jettison (c). 
 
 In McOall v. Houlder {d), the cargo was damaged in the course 
 of doing repairs to the ship which were necessary for the common 
 safety and were effected under extraordinary conditions. The 
 damage was held to be a general average sacrifice. 
 
 379. In speaking of a jettison of goods it must ordinarily be 
 understood that they are goods which have been stowed in those 
 parts of the ship which are intended for cargo, and in which goods 
 
 {y) Cf. Lowndes (3rd), pp. 85—91. 
 See infra, ss. 397—400. As to the 
 position of goods put out of the ship and 
 warehoused during repairs, see Brig 
 Mary, 1 Sprague, 17 ; as to cargo 
 damaged by delay during repairs, Gage 
 1). Libby, 14 Allen, 261. Infra, s. 413 
 (a). 
 
 («) Benecke, 177. 
 
 (a) Lowndes (4th), 68. Where marks 
 are lost, or goods get mixed, see Spence 
 V. Union Marine Lis. Co., L. E,., 3 0. P. 
 427 ; infra, s. 605. 
 
 (h) HiUs v. London Assurance Co., 5 
 M. & "W. 569. 
 
 (c) Lowndes (3rd), 145. 
 
 (<^ 76 L. T. 469 ; cf . Gage v. Libby, 
 14 Allen, 261 (Mass. 1867). 
 
GENEEAL AVERAGE. 427 
 
 are in a position of safety. Grenerally, the deck is not a proper Sect. 379. 
 place for cargo. Gloods placed there obstruct the working of the 
 ship, and are under peculiar risks. And thus it is a general rule 
 that a jettison of goods which were on deck does not entitle their 
 owner to contrihution (e). 
 
 The rule does not, however, apply on voyages where the 
 carrying of goods on deck is permitted by the established custom 
 of navigation ; nor " where the other owners of cargo have con- 
 sented that the goods jettisoned should be carried on the deck of 
 the ship" (/). In those cases, a jettison of the deck cargo is a 
 general average act, and the loss must be contributed to in the 
 usual manner (g). 
 
 380. And further, though a jettison of deck cargo may not be a Shipowner 
 , , . ,1 J JIT ii 1 • oontritutea 
 
 general average act m the true sense, so as to oblige other snippers jf ijeok cargo 
 
 to contribute, it has been held that the shipowner must do so, o^^arter^rty. 
 where the whole cargo, both above and below deck, belonged to 
 the same shipper, who was also charterer of the ship, and the 
 charter party stipulated for a deck-load (A). Willes, J., delivering 
 the judgment of the Common Pleas, said : " It is not necessary to 
 refer to any custom affecting the voyage, because, according to the 
 contract between the parties, there was to be a deck cargo. Then, 
 immediately you find that the deck cargo is within the contempla- 
 tion of the parties, you must deal with it as if shipping a deck 
 cargo was lawful. When you have established that it is a deck 
 cargo lawfully there, by the contract of the parties, it becomes 
 subject to the rule of general average." 
 
 And where a charter party stipulated that the steamer should be 
 " provided with a deck load if required at full freight, but at 
 merchant's risk," it was held that the concluding words did not 
 
 («) Wright V. Marsrood, 7 Q. B. D. L. T. 36 (U. S.). 
 62. Of. Milward v. Hibbert, 11 L. J., (y) Strang v. Soott, U A. C. 601, 
 
 Q. B. 137. As to what is below deck, p. 609. 
 
 see Lowndes (4th), p. 63. The York- , > „ ,, „,. . „. „ „ 
 
 A i. /-.onm r> 1 T ■ «XT ■ ii- (ff) Goulds. Oliver, 4 Bing. N.C.I 34; 
 
 Antwerp (1890) Eule I. is " No jettison }■" ' = l' ' ' 
 
 fji 1,11V A ^ Milward v. Hibbert, 11 L. J., Q. B. 
 
 of deck cargo shall be made good as , „_ _. . , , ,, ' , » ' „ „ 
 
 , T, , , , 137. Wnght V. Marwood, 7 Q. B. D. 
 
 general average. Every structure not „„ _, , , 
 
 built in with the frame of the vessel ^^- There may, however, be a custom 
 
 Shan be considered to be a part of the ^'"°'^.f ™'i«™"ters not to repay such 
 
 deck of the vessel." Brett, M. E., in contributions under the ordmary pohcy : 
 
 T.. -D 1 -CI 1. oi.- ■ n MiUer 'I/. Tithermgton, 30 L. J., Ex. 
 
 Dixom;. Eoyal Exchange Shipping Co. „,..„, y j -p^oR, 
 
 (May 18, 1885), said that goods in a ^^l > <i^ ^- •>; ^^- ■^bd. 
 deck-house must be treated as goods (A) Johnson v. Chapman, 35 L. J., 
 
 loaded on deck. Cf. The Neptune, 12 C. P. 23. 
 
428 
 
 THE VOYAGfE. 
 
 But not so in a 
 general ship. 
 
 Sect. 380. exclude the cliarterer's right to coiitrihtition from the shipowner 
 towards a jettison of goods stowed on deck («). But in that case, 
 the voyage was with timber from the Baltic to London, and it was 
 admitted that there was a custom to carry deck cargoes on such 
 voyages. 
 
 381. On the other hand, in "Wright v. Marwood {k), where the 
 ship was a general ship, and the shippers of the deck cargo did not 
 own that which was below deck, it was held by the Court of 
 Appeal that no contribution to a jettison was payable by the ship- 
 owner, or by any one else. 
 
 Cattle had there been shipped under an agreement, by which 
 "the upper deck of the steamer Gladys, except so much as is 
 necessary for the proper working of the vessel in the master's 
 judgment," was let for the purpose. They were jettisoned by the 
 master during stress of weather, for the safety of the ship. It was 
 held that the shipowner was not liable to contribute either on the 
 basis of a general average loss, to be spread over the whole 
 adventure, or of a loss to be borne by the owners of the ship and 
 the deck cargo alone [1) . " We prefer to hold that the plaintiffs 
 shipped their cattle as they did, without bargaining for compensa- 
 tion from any one if they were jettisoned, and must bear all the 
 loss themselves, at least without such rights to contribution as they 
 are now claiming " (w). 
 
 382. Again, the sacrifice to be contributed to may be of things 
 belonging to the ship itself. Ship's stores may be thrown over- 
 board ; anchors and cables may be slipped and abandoned ; masts 
 may be cut away ; or holes may be cut in the deck, to enable the 
 cargo to be got out and jettisoned. 
 
 Such acts, when done under the pressure of a common danger, 
 for the common safety, entitle the shipowner to contribution from 
 the cargo-owners, both in respect of the value of what is cast away, 
 and of the damage done to the ship by taking it away. Any 
 damage to the cargo directly consequent upon such an act, as when 
 water gets in through a hole made by cutting away a mast, is also 
 a general average loss (m). 
 
 Sacrifices of 
 ship and 
 
 ship's stores. 
 
 (i) Burton V. English, 12 Q. B. D. 218. 
 
 {k) 7 Q. B. D. 62. 
 
 {T) As to a, former practice to make 
 "general contribution," by shipowner 
 and owners of deck load, in some cases, 
 
 see Lowndes (4th), 55. 
 
 [m] 7 Q. B. D. at p. 71. See, how- 
 ever, Strang v. Scott, 14 A. 0. 601, p. 609. 
 
 (m) Maggrath v. Chiu-ch, 1 Caines, 
 196 ; Pars. M. Ins. II. 309. 
 
GENERAL AVEEAQE. 429 
 
 There is, however, an important difficulty in laying down the Sect. 38S. 
 principle on which the shipowner is thus entitled to contribution. 
 His undertaking is to bring the goods to their destination ; and 
 though he may be excused where a loss has happened by perils of 
 the sea, that will not be so unless he has done what he could to 
 avert the danger. He is not excused upless he has been prevented 
 by the excepted perils ; and that is not the case where the peril 
 could be avoided by a sacrifice, unless it would be unreasonable to 
 require it (o). It cannot be said that all sacrifices of part of his 
 property are beyond what may be reasonably required of the ship- 
 owner ; more especially as the whole act of sacrifice is generally 
 directed to, and requisite for, the safety of the ship itself. 
 
 It is, however, clear that the rule of general average does cover 
 some sacrifices of the shipowner's property. That rule is founded 
 on considerations of justice and of policy. It seems fair in some 
 cases (though it is not always clear in which) that the loss should 
 be borne by all. It is also politic, as has already been remarked, 
 that the master, representing the shipowner, should feel his hands 
 free to make that sacrifice which is most in the interest of all con- 
 cerned. If a sacrifice of the shipowner's property were not con- 
 tributed to, he would be slow to see the necessity for it ; and would 
 perhaps be too ready to forestall the chance of such a necessity, by 
 getting rid of the cargo. 
 
 The want of some clear principle, however, makes the rules 
 relating to sacrifices by the shipowner somewhat arbitrary, and 
 difficult to lay down with confidence. And the authorities on the 
 subject are not very plentiful. 
 
 383. Where, to avert a common danger, portions of the ship's Exposure of 
 tackle or stores are exposed to extraordinary risk, by being put to extraordinaiy 
 some dangerous use for which they were not intended, and thus are "®'^" 
 destroyed or damaged, that is a general average loss. 
 
 It is not, however, enough that the things have been used on an 
 extraordinary occasion, or one which has exposed them to unusual 
 danger. Thus, where an unusual press of canvas was carried to 
 escape from a privateer, and the ship in consequence was strained 
 and lost the head of her mainmast, it was held that that was not a 
 general average loss {p). 
 
 (o) See supra, as. 302, 303. B. & P. N. K. 378 ; Power v. WHtmore 
 
 {p) Covington v. Koberts (1816), 2 (1815), 4 M. & S. 141. EmQrigon re- 
 
430 
 
 THE VOYAGE, 
 
 Sect. 388. So also, where contribution was claimed towards damage done 
 to a ship in a fight with a privateer, and towards the value of the 
 gunpowder and shot she had expended, and the cost of curing 
 the wounds of the crew, Gibbs, 0. J., said : " The measure of 
 resisting the privateer was for the general benefit, but it was part 
 of the adventure ; no particular part of the property was volun- 
 tarily sacrificed for the protection of the rest. The losses fell 
 where the fortune of war cast them, and there, it seems to me, 
 they ought to rest " (y). 
 
 Abbott cites (r) from Emerigon the following illustration of a 
 sacrifice by the shipowner which would be general average. " The 
 master of a French vessel having been pursued for several hours 
 by two frigates, and having also his flight intercepted by the 
 appearance of two other vessels ahead, hoisted, as soon as it became 
 dark, his boat into the sea, furnished with a mast and sail, and a 
 lanthorn at the masthead, and then changed his course, and sailed 
 during the whole night without any Hght on board his own ship : 
 in the morning no enemy was in sight. The value of the boat 
 thus abandoned was made good by general contribution " (s). 
 
 In Birkley v. Presgrave {t), the ship Argo when entering 
 Sunderland harbour was prevented, just after passing the North 
 Pier, by a veering of the wind, and a squall ; and her small bower 
 anchor was let go, to bring her up. A warp was run out to the 
 South Pier, but this broke ; and that the anchor might hold more 
 cable was paid out, and the ship was dtawn alongside the North 
 Pier, and made fast there with hawser ends and towing lines, 
 which were such as were, usually used for the purpose. Also the 
 master out the cable of the best bower anchor, then upon the 
 ship's bow, and used that too for mooring the ship to the pier. 
 He did this fearing that another ship would be adrift and come 
 down upon The Argo ; and this in fact happened while the cable 
 was being fastened. The hawser ends and towing lines broke, 
 
 ports a decision of his own, allowing In The Bona, (1896) P. 125, LordEsher 
 
 sails which were split in ayoiding a lee (p. 134) said the Court would not be dis- 
 
 shore as general average ; the sails had posed to extend Covington v. Eoherts. 
 
 been "forced," and "to force masts or See infra, s. 386. 
 
 sails is the same thing:" Emerigon, (q) Taylor v. Curtis (1816), 6 Taun. 
 Meredith's translation, 1850, p. 479. 608, at p. 624. 
 So also VaUn, 2 Comment. 166, 107. Cf . (»■) 5th ed. p. 348. 
 the use of an anchor under extraordinary (») Emerigon, torn. 1, p. 622, Mere- 
 circumstances in a dangerous place, dith's ed. p. 480. 
 Phill. Ins. B. 1296 ; Am. Ins. (6th), 867. {t) 1 East, 220 (1806). 
 
GENERAL AVERAGE. 431 
 
 and but for the cable The Argo would have been lost. In an Sect. 383. 
 action by the shipowner for contribution from the cargo-owner, 
 the question was raised whether any of these were general average 
 
 The plaintiff's counsel abandoned the claims to contribution 
 towards the hawser ends and towing lines, as they were only 
 applied to the ordinary purposes of such things ; but he pressed 
 for the claim in respect of the cable. And that was allowed. 
 Lord Kenyon, C. J., said : " All ordinary losses and damages 
 sustained by the ship happening immediately from the storm or 
 perils of the sea must be borne by the shipowner. But all those 
 articles which were made use of by the master and crew upon 
 the particular emergency, and out of the usual course for the benefit 
 of the whole concern, and the other expenses incurred, must be 
 paid proportionably by the defendant as general average " (m). 
 
 In The Bona (»), the question arose whether the act of working WorMng 
 a steamer's engines for the purpose of getting her off a strand, on gtrand.^ °'^ 
 which she was hard and fast, was a general average act. The con- 
 isequent damage to the engines had been allowed in general average, 
 under York- Antwerp rules, which formed part of the contract ; and 
 the actual question in the case was whether the coal consumed in 
 working the engines should also be allowed. This was con- 
 sidered to depend upon whether the use of the engines was, at 
 law, a general average sacrifice. If that was true, the coal 
 formed part of the sacrifice. The Court of Appeal, affirming 
 Jeune, P.," held that it was true. 
 
 Lord Esher said the question depended on " whether the engines 
 were used not only under unusual circumstances, but in an un- 
 usual manner." ..." The captain of the ship is there to do what 
 he ought to do for the benefit of both shipowner and cargo-owner, 
 and his duty is to do everything that he can do to save both ship 
 and cargo. That is undoubted. The ship was aground, and had 
 been so for several days. She was so far aground that she could 
 not be got off without some extraordinary effort. It is found here 
 that what the captain did he did with the intent to endeavour to 
 save both ship and cargo. It really is not disputed that he was 
 intentionally running a great risk of injury to the machinery. 
 He was attempting intentionally to do what he knew to be a 
 
 («) 1 East, at p. 227. [x) (1896) P. 125. 
 
432 THE VOYAGE. 
 
 Sect. 383. dangerous operation. But it is said that he only used the ship and 
 her powers, and that however much he did that, if he only used the 
 ship and her powers in the ordinary way in which a ship and her 
 powers are to be used, then it cannot he brought within the doctrine 
 of general average. I agree to that. That doctrine will solve 
 some of the cases which have been brought before us, and I am not 
 going to overrule any case ; but I am dealing with the case of a 
 ship hard and fast on the ground. That is not the normal condition 
 of the ship. The normal condition of the ship is to be — except in 
 mud harbours — afloat in the water. The manoeuvre which this 
 captain determined to follow, knowing that it was a dangerous 
 manoeuvre to the property of his owners, was to use the engines so 
 as to force the ship off the ground. . . . That is not using the ship 
 and her equipment in the ordinary way. It is putting them to an 
 abnormal use intentionally for the purpose of saving the ship and 
 cargo from the imminent danger in which they were." 
 
 The use must 384. These cases seem to show that the distinction is to be 
 
 have heen one 
 
 not intended, drawn between the use of things for their ordinary purposes, and 
 
 the use of them in ways for which they were not intended (y) . 
 
 That view is also confirmed by the following cases. 
 
 In Wilson v. Bank of Victoria (s) a clipper ship with auxiliary 
 steam-screw had been rendered incapable of sailing by collision 
 with an iceberg. She reached a port of refuge by means of her 
 engines ; and without stopping there to restore her sailing powers, 
 took on board a fresh supply of coal, and steamed all the way 
 home. This involved an expenditure in coal much greater than 
 would generally occur on such a voyage, with such a ship. But 
 it did not entitle the shipowner to claim general average con- 
 tribution. 
 
 In Harrison v. Bank of Australasia (a) a sailing ship was pro- 
 vided with a donkey engine, which was adapted for pumping the 
 ship and doing other work ; and without the engine ten more hands 
 
 Burning would have been required to work her. Constant pumping haviner 
 
 spare spars. i. r o o 
 
 become necessary, and the supply of coals having been reduced to 
 
 about IJ tons, the captain prudently directed that some spare spars 
 
 and wood, which were part of the ship's stores and not intended 
 
 to be used as fuel, should be cut up to use with the coal. The ship 
 
 (2^) Am. (3rd), 782 ; Lowndes (4th), (z) L. R., 2 Q. B. 203. 
 
 pp. 95, 116. (a) L. R., 7 Ex. 32, oite&stipra, a. 368. 
 
GENERAL AVERAGE. 433 
 
 could not have been kept afloat without working the engine. The Sect. 384. 
 
 shipowner claimed contribution towards (1) the value of the spars 
 
 and wood burnt for the donkey engine, (2) the cost of some extra 
 
 coal afterwards obtained for pumping, and (3) the damage done to 
 
 the engine. It was held that his claim was just as to (1), but not 
 
 as to (2) or (3). 
 
 In an American case contribution was claimed for damage caused 
 by the breakdown of a shaft, which had been repaired temporarily 
 at sea, and had been worked in that state. The claim was dis- 
 allowed; no sacrifice had been intended by the working (J). » 
 
 385. The tackle and stores provided for the ship must have been The tackle, 
 reasonably sufficient for the voyage, having regard to what might been reason- 
 be anticipated, or the shipowner wUl not be allowed to treat as a oient.^ 
 general average sacrifice the destruction of other things used in 
 order to supply the want of them. 
 
 In Robinson v. Price (c) the question again arose as to the effect 
 of using spare spars for fuel. That, also, was the case of a sailing 
 ship furnished with a donkey engine, which could be used for 
 pumping. She sailed from Quebec for London with five tons of 
 coal on board ; encountered bad weather ; sprung a leak ; and in 
 order to pump it became necessary to use her spare spars and part 
 of the cargo as fuel for the engine. It was found by an arbitrator 
 that "the ship was sufficiently equipped and manned for the 
 voyage, according to the ordinary practice in equipping and man- 
 ning such vessels for such a voyage, and but for the leak she would 
 have had sufficient pumping power on board without using the 
 donkey engine." 
 
 Lush, J., in giving the judgment of the Queen's Bench Division, 
 afterwards affirmed by the Court of Appeal, said : " We think 
 that a shipper of cargo is entitled, in time of peril, to the benefit 
 not only of the best services of the crew in order to save his goods, 
 but of the use of all the appliances for that purpose with which the 
 ship is provided. It follows that where a ship is fitted up with 
 auxiliary steam pumping power, it is the duty of the owner to 
 make some provision for supplying the engine with fuel. Not that 
 he is bound to have on board enough for every possible emergency; 
 but he is bound to have a reasonable supply, having regard to the 
 
 (i) Van den Toom v. Leeraing, 79 Fed. Rep. 107. 
 (c) 2 Q. B. D. 91, 296. 
 
 C. C. F F 
 
434 
 
 THE VOYAGE. 
 
 Sect. 385. nature of the voyage, the season of the year, the quality of the 
 cargo, the condition of the ship, and what experience has shown to 
 be prudent to provide against under those conditions. If he fails 
 to do so, he cannot call upon the owners of cargo to contribute 
 towards that reasonable supply. That would be to make them pay 
 for that which he ought to have provided at his own expense. If 
 under such circumstances the opportunity occurs during a time of 
 peril of buying coals from a passing steamer, we think it clear that 
 he could not charge their cost as an extraordinary expenditure 
 entitling him to general average. 
 
 " That statement of the case not being so explicit as it might 
 have been upon this point, we thought it right to send it back to 
 the learned counsel who settled it between the parties to find from 
 the evidence he had taken one way or the other upon the question. 
 He has returned it to us with a statement as follows : ' I find that 
 The John Baring, when she left Quebec, had on board a reasonable 
 supply of coal for the donkey engine for pumping purposes.' This 
 finding concludes the defendants. The primd, facie claim to general 
 average contribution is not displaced by any default on the part of 
 the owner, and our judgment must be for the plaintiff." 
 
 Rules ot- 386. In practice, there is considerable difficulty in applying the 
 
 served in , ^ l l ^ a 
 
 practice. principles thus laid down ; and some of the practical rules followed 
 by adjusters are perhaps more liberal to shipowners than the test 
 of abnormal use would sanction. Where spare spars and tackle 
 and sails are used to .construct a " jury rig," or temporary means 
 of sailing the vessel, or for other occasional contrivances to avert 
 danger, any damage done to them in consequence is treated as a 
 general average loss. And where a ship is stranded, damage done 
 to her, or to her tackle, in towing her off, or to her sails or pro- 
 peller or machinery in backing her off, is treated as a general 
 average loss {d) ; as also is the coal used in working the engines 
 
 {d) The Bona, (1895) P. 126; ship, cargo and freight, or any of them, 
 
 Lo-wndes (4th), pp. 95, 117, 1 19. The by carrying a press of sail, shall be made 
 
 York- Antwerp Rules on this subject good as general average, 
 
 are as follows :— VII. Damage caused to machinery 
 
 VI. Damage to or loss of sails and and boilers of a ship, which is ashore 
 spars, or either of them, caused by and in a position of peril, in endeavour- 
 forcing a ship off the ground, or by ing to refloat, shaU be alio wed in general 
 driving her higher up the ground, for average, when shown to have arisen 
 the common safety, shall be made good from an actual intention to float the 
 as general average ; but where a ship is ship for the common safety at the risk 
 afloat, no loss or damage caused to the of such damage. 
 
GENERAL AVERAGE. 
 
 435 
 
 for that purpose (e). So, where sails or hawsers are used so as to Sect. 386. 
 expose them to greater risks than was intended ; as where a top- 
 gallant sail is used as a topsail, or a hawser in place of a chain, for 
 anchoring in a tide- way (/). 
 
 It is difficult to regard the test of intended use as in all cases Is the test of 
 satisfactory. The use of a hawser, sail, or other appliance in a satisfaotoryl' 
 manner not originally intended is no doubt generally evidence of 
 an intentional sacrifice ; whereas damage sustained while the thing 
 is being used for the purpose for which it was intended will 
 generally be an ordinary incident of the voyage, an instance of 
 tools broken or spoilt in working. But there may well be a 
 sacrifice, an intentional giving away of a thing for the common 
 safety, under circumstances of extraordinary emergency, and yet 
 that thing may have been used in the very place and manner for 
 which it was designed. And, on the other hand, things may be 
 used in an unusual way without any intention of sacrificing them. 
 The test of use, or abuse, has been justified on the ground that the 
 shipowner is not, by his contract, under any obligation to destroy 
 or injure his ship or her appliances {g). But that seems to be a 
 mistaken view. It cannot be said that performance of the contract 
 has been prevented by an excepted peril when the danger could be 
 averted by burning spare spars, or by using sails or hawsers, 
 which were available, though they were not meant for the particular 
 work. It is not true, as already pointed out (Ji), that the rule of 
 contribution does not apply until the obligations of the contract 
 have been exhausted. Such a view would shut out numerous cases 
 in which the right to contribution is thoroughly established. The 
 rule of contribution is a provision of the law which applies under 
 special circumstances, independently of the contract ; and the 
 liniitations of it must be sought in the principles of that law («'). 
 
 Where a common danger to the whole adventure has arisen, not 
 from ordinary incidents of the voyage but accidentally, and the 
 
 IX. Cargo, ship's materials, and leaTing, shall be charged to the ship- 
 stores, or any of them, necessarily humt owner, and credited to the general 
 for fuel for the common safety at a time average, 
 of peril, shall be admitted as general (e) The Bona, (1895) P. 195. 
 average when and only when, an ample ^^^ g^^ Lowndes (4th), H2-1W. 
 supply of fuel had been provided ; but 
 
 the estimated quantity of coals that ^) See Lowndes (4th), pp. 115, 116 ; 
 
 would have been consumed, calculated McArthur, Insurance (2nd), p. 181. 
 at the price current at the ship's last W *«""«, s. 382. 
 
 port of departure at the date of her (j) See sv^a, s. 373 b. 
 
 F F 2 
 
436 
 
 THE VOYAGE. 
 
 Sect. 386. master has intentionally sacrificed something to avoid that danger, 
 we have the ingredients of a general average act. There must be 
 an extraordinary common danger, and a conscious giving away of 
 something to meet it. If the condition, stated by Lord Kenyon (k) , 
 that the thing given must have been used "out of the usual 
 course " means, in addition to this, that the use must have been in 
 an extraordinary manner, it is difficult to see on what principle it 
 rests {I). 
 
 Is voluntary 
 stranding a 
 general 
 average act ? 
 
 387. Another form of sacrifice of the ship, which has given rise 
 to much difference of opinion, occurs where she is intentionally 
 run ashore. This may be done in order to avoid a capture ; or 
 foundering in deep water; or,^ where it is practically inevitable 
 that she wiR go ashore somewhere, the master, rather than wait 
 and run the risk of doing so at a place where everything wiU be 
 lost, may select a favourable spot and drive her ashore at once, in 
 the hope of saving the cargo, and perhaps ultimately the ship also. 
 Is the resulting damage or loss of the ship to be treated, in such 
 cases, as a general average loss ? 
 
 In Abbott on Shipping {m), it was laid down that " damage 
 voluntarily done to a ship by cutting its decks or sides in order to 
 facilitate a necessary jettison, or by running it on a rock, shallow 
 or strand, to avoid the danger of a storm, or of an enemy, and the 
 expense of recovering the ship from this latter situation .... 
 are to be sustained by a general contribution." And Arnould, 
 taking the same view (n), said that where the ship is recovered 
 after such a voluntary stranding, " there is no rule more clearly 
 established than this by the uniform course of maritime law and 
 usage." 
 
 Where the ship is ultimately lost, but the cargo saved, there has 
 been more diversity of opinion ; but Arnould appears to have held 
 to the view that the loss would stiU be a general average loss. 
 And on principle there seems to be no distinction (o). 
 
 Lowndes, in a careful discussion of this question, in the third 
 
 {k) Birkley v. Presgrave, 1 East, 220. 
 
 {1} Covington v. Roberts, and some of 
 the other cases cited above in o. 383, 
 seem, however, to require a limitation of 
 the kind. 
 
 (m) 5th ed. p. 349. This edition was 
 published in 1827, during Lord Tenter- 
 den's life, by his son, John Henry 
 
 Abbott. 
 
 {«) Am. Ins. (3rd), p. 784. But of. 
 Maol. 675 ; Arn. (5th), p. 837. 
 
 (o) Per Story, J., Columbian Ins. Co. 
 V. Ashby, 13 Pet. S. C. B,. 331. See 
 Lowndes' note on the history of the 
 distinction which has been drawn : Gen. 
 Av. (4th), p. 146. 
 
GENERAL AVERAGE. 437 
 
 edition of Ijis work on General Average, agreed with the view that Sect. 387. 
 
 a voluntary stranding is a general average act where the master 
 
 has thrown away a suhstantial chance of saving the ship; hut 
 
 considered it to be not so if she must inevitably have been lost, 
 
 irrespective of the stranding. And he gave two illustrations ; one 
 
 in which the master, seeing that the vessel is helpless, and if left 
 
 alone must inevitably go aground, voluntarily puts her upon sand ; 
 
 and another in which a ship is leaking at a rate which cannot be 
 
 kept under by the pumps, and is so distant from a port that she 
 
 must necessarily sink unless run ashore. His view was that in 
 
 such eases there is no sacrifice by the stranding (j?) ; agreeing in 
 
 this with Benecke (g), though he denied the correctness of 
 
 Benecke's doctrine, that there is no real sacrifice where there is no 
 
 alternative to a loss of the thing sacrificed. But in his last (4th) 
 
 edition, Lowndes seems to have partly altered his view, coming to 
 
 the conclusion that a voluntary stranding to avoid an inevitable 
 
 loss of some other kind — e.g., by siaking in deep water, burning 
 
 or capture, would be a general average sacrifice ; but not so a 
 
 stranding which only anticipated an inevitable grounding ia some 
 
 place (r). 
 
 If, indeed, the condition of the ship were desperate, from a 
 danger which affected her only, and not both her and the cargo, 
 the case would be similar to that of the wrecked mast in Shepherd 
 V. Kottgen (s). But that is not the position. The danger is a 
 common one, and though it may be reaUy impossible to save the 
 ship, and yet possible to partly save the cargo, this last depends 
 upon a voluntary giving up of any seeming chance there may be 
 for the ship. The grounds of policy which have been above 
 referred to as an answer to Benecke's doctrine, therefore apply to 
 this case also. If that doctrine is applicable to cases of voluntary 
 stranding, it should also apply to other cases, such as that put by 
 Benecke of a mast which, though at present safe, must go if 
 anything is to be saved {t). 
 
 388. But to be a general average act the stranding must reaUy it must te 
 be voluntary, and it does not seem reasonable to call that voluntary t^rj.^ ^° ^^' 
 which merely anticipates a clear necessity. If the ship is on the 
 point of going on to the rocks, the stranding does not become 
 
 {p) Lowndes (3rd), p. 64 ; and see (»•) See Lowndes (4th), pp. 138 — 141. 
 
 York- Antwerp Eides, 1890, V., App. C. (s) 2 C. P. D. 583. 
 
 (?) Benecke, p. 219. (<) Benecke, p. 170. S«pra, s. 371. 
 
^^^ THE VOYAGE. 
 
 Sect. 388. voluntary because the master oliooses to go stem on to them instead 
 of broadside, or at one spot rather than at another. 
 
 Where the cable of a ship, drifting with anchor down, was 
 slipped when she was about to go ashore, it was held that there 
 was not a voluntary stranding, though the' slipping hastened it, 
 and gave a better chance of saving the lives on board (u). It was, 
 however, found that the vessel substantially stranded "in the same 
 place, under the same conditions, and with the same results to cargo" 
 as would have happened if there had been no slipping. 
 
 The subject has not apparently been before our Courts. But 
 it seems probable that losses by a stranding would be held to be 
 general average losses where that has been really a voluntary act, 
 although done in a hopeless extremity ; and that the rule would be 
 the same whether the ship were saved or not (x). 
 
 uSted'*''^ 389. In the United States the question has been repeatedly 
 
 States. before the Courts, and the rule that a voluntary stranding may be 
 
 a general average act, whether the ship be saved or lost, is well 
 established. The principal cases appear to be Sims v. Gurney (y), 
 decided in 1812 in the Supreme Court of Pennsylvania ; Columbian 
 Insurance Co. v. Ashby (z), 1839, in the Supreme Court of the 
 United States; and Barnard v. Adams (a), 1850, in the same 
 Court. 
 
 In Sims v. Gurney the vessel had been at anchor in a bay, her 
 cables had parted, and an attempt had been made without success 
 to get out to sea. This proving impracticable, she was run up the 
 bay again, and was put on to the shore at the place which seemed 
 most favourable, those on board being of opinion at the time that 
 she must go ashore somewhere. 
 
 Tilghman, C. J., said, " It is said for the defendants that the 
 ship must have gone ashore somewhere, and it made no diflerencB 
 where that shore was ; that there was no advantage in taking the 
 course that was taken, and that the ship was exposed to no greater 
 
 (m) Shoe V. Low Moor Iron Co., 49 &o. Co., (1899) 2 Q. B. 356, Bigham, J., 
 
 EecT. Eep. 252 ; 46 Eed. Kep. 125, said that he believed the English law to 
 
 (1891). he the same as that laid down by Story, 
 
 (x) In Whiteoross Wire Co. ■!». SaviU, . J., in Columbian Ins. Co. v. Ashby 
 
 8 Q. B. D. 653, at p. 663, Brett, L. J., infra. 
 
 said, that if the vessel had been scuttled UA 4 Biun 513 
 (to extinguish a fire), the owners would 
 
 have been entitled to general average (^) ^^ ■^^*- ^- 0- K- 331, cited Aru. 
 
 contributions to the expenses of raising (2nd) 918, (3rd) 787. 
 
 and repairing her. In Iredale v. China, (a) 10 How. 270. 
 
GENERAL AVERAGE. 
 
 439 
 
 danger than she would have been if the course had not been Sect. 389. 
 altered. It is not necessary that the ship should be exposed to 
 greater danger than she otherwise would have been to make a case 
 of general average. It is sufficient if a certain loss is incurred for 
 the common benefit." 
 
 In Columbian Insurance Co. v. Ashby (b), the vessel had dragged 
 her anchors until she struck on the shoals, and the master had then 
 slipped "his cables and run her ashore. Storey, J., said, "The 
 intention is not to destroy the ship, but to place her in less peril, 
 if possible, as weL. as the cargo. The act is hazardous to the ship 
 and cargo, but it is done to escape from a more pressing danger : 
 such as a storm or the pursuit of an enemy or pirate." 
 
 In Barnard v. Adams (c), the instruction to the jury had been as 
 follows: — The evidence was "that when the vessel was without 
 any means of resisting the storm, and her going ashore upon a 
 rocky and more dangerous part of the shore was in his opinion 
 inevitable, he did intentionally, and for the better security of the 
 property and persons engaged in the adventure, give her a direction 
 to what he supposed to be, and what proved to be, a part of the 
 shore where she could Ke more safely. These facts if credited by 
 you constitute in judgment of law a voluntary sacrifice of the 
 vessel, and for such sacrifice the plaintiffs are entitled to recover as 
 general average." This direction was approved by the majority of 
 the Supreme Court. It was, however, interpreted to mean, that 
 " if they believed there was an imminent peril of being driven ' on 
 a rocky and dangerous part of the coast ' where the vessel would 
 have been inevitably wrecked, with loss of ship, cargo and crew, 
 and that this immediate peril was avoided by voluntarily stranding 
 the vessel on a less rocky and dangerous part of the coast, whereby 
 the cargo and crew were saved uninjured, then they should find 
 for the plaintiffs." 
 
 Daniel, J., however, delivered a dissenting judgment. He 
 relied on the fact that the condition of the vessel had been hope- 
 less : " She had lost all her anchors, was in the midst of a hurricane, 
 and drifting to the shore under a force which the witness explicitly 
 says nothing could resist. He therefore did not elect to run her 
 
 (J) Supra. Thepoint chiefly disouesed .^ras lost: overruling Broadhurst v. 
 
 in and decided by thia case was, that Columbian Ins. Co. , 9 Johns. N. T. E. 9. 
 the loss by stranding -was not the less a 
 
 general average loss because the ship (") 1" How. 270. 
 
440 
 Sect. 389 
 
 THE VOYAGE. 
 
 ashore, or to make a sacrifice for the general good ; he only sought 
 to save her as far as possible from danger or injury. It appears to 
 me to be no slight paradox to assert that a man is the positive and 
 controlling agent in the accomplishment of an effect which he 
 merely sufiers, and which is forced upon him by a power that he is 
 wholly unable to resist or influence ; and that it is equally para- 
 doxical to declare that we elect and seek a sacrifice or a peril from 
 which we are most anxiously fleeing." 
 
 The law on the point in the United States is stated in Phillips 
 on Insurance as follows : — 
 
 " On the whole, then, if the intentional stranding is, under the 
 particular circumstances, the direct result of voluntary agency, 
 rather than of the action of the elements, and the actual stranding 
 is another than the one impending, and not merely an incidental 
 and inconsiderable modification of it, the case is one for general 
 average" (d). 
 
 Damage in, 390. Another case of sacrifice for the general safety is where 
 
 extmguisli- . . . . 
 
 ittg fire. damage is done to the ship or to the cargo in putting out a fire on 
 
 board. If water be poured into the ship's hold, or if the ship be 
 scuttled, in order to put out a fire, and cargo be thereby damaged, 
 that is general average damage (e) . 
 
 In Whitecross Wire Co. v. Savill (/), the ship had arrived at 
 her destination and had partly discharged her cargo. She lay 
 alongside a wharf where the depth at high water was 22 feet, and 
 she drew 11 feet. A fire broke out in her hold, which was 
 extinguished by pouring water down, and the plaintiff's goods 
 were thus damaged. It was held by the Court of Appeal, 
 affirming Pollock, B., that this was a general average sacrifice of 
 the goods. 
 
 Brett, L. J., said : " In this ease there was imminent peril to 
 the whole adventure ; and if a danger did exist such as to make 
 the sacrifice reasonable, and if a part of the adventure was sacri- 
 ficed for the benefit of the whole, then a claim for general average 
 arises, and it is insufficient to show that complete destruction was 
 
 (d) Phillips, Ins. 1313. Cf. Parsons, York-Antwerp Rules III., App. C. ; 
 M. Ins. II. p. 243. under that rule no compensation is 
 
 (e) Whitecross Wire Co. v. Savill, 8 made for ' ' damage to such portions of 
 ft. B. D. 653; Piriej). Middle Dock Co., the ship and bulk cargo, or to such 
 44 L. T. 426; Stewart r. West India separate packages of cargo, as have been 
 and Pacific S.S. Co., L. E., 8 Q. B. 88 ; on fire." 
 
 Achard v. Ring, 31 L. T. 647. See (/) 8 Q. B. D. 653. 
 
GENERAL AVERAGE. 441 
 
 not imminent. It has been argued tliat no total loss of the ship Sect. 390. 
 would have ooourred in the present case, because she was built of 
 iron and could not be destroyed by fire ; but it was proved that 
 the fire had got a strong hold upon her, and it would have burnt 
 her woodwork, such as her deck and masts, and also her sails ; if 
 the fire had not been extinguished, she would have been brought 
 almost to the state of a wreck. It has been said that the defen- 
 dant's vessel might have been scuttled ; but the expense of raising 
 and repairing her would have entitled her owners to a general 
 average contribution ; and because an apparently alternative mode 
 of proceeding existed, the captain cannot be said to have acted 
 unreasonably" {g). 
 
 And where a cargo of coals was on fire, and water was poured 
 upon it to avert a general loss, with the result that the coal 
 which was wetted had to be discharged and sold at a port of 
 refuge, it was held that there must be contribution to the freight 
 thereby lost {h). 
 
 It has been held, in the United States, that where the damage to 
 the cargo partly arises from an act of sacrifice, and partly from the 
 accidental peril apart from sacrifice, and the two are not susceptible 
 of separation, so that the amount of the damage due to the sacrifice 
 cannot be distinguished, no part of it should be made good in 
 general average («'). 
 
 General Average Expenditure. 
 
 391. Next as to expenditure incurred to avert a peril which is General 
 imminent to ship and cargo. " In order to give rise to a charge expenditure, 
 as general average it is essential that there should be a voluntary 
 sacrifice to preserve more subjects than one exposed to a common 
 jeopardy ; but an extraordinary expenditure incurred for that 
 purpose is as much a sacrifice as if, instead of money being ex- 
 pended for the purpose, money's worth were thrown away. It is 
 immaterial whether the shipovmer sacrifices a cable or an anchor to 
 get the ship off a shoal, or pays the worth of it to pay those extra 
 services which get her off " (k). 
 
 "Wherever, under extraordinary circumstances of danger to 
 both ship and cargo, a voluntary sacrifice of money is made in 
 
 (y) WMteoross Wire Oo. v. Savill, 8 (i) Reliance M. I. Co. v. New York, 
 
 Q. B. D. at p. 662. &o. S.S. Co., 77 Ped. Rep. 317. 
 
 (Jt) Pirie v. Middle Dock Co., 44 L. T. {k) Per Blackburn, J., Kemp v. HaUi, 
 
 426. day, 34 L. J., Q. B. 233, at p. 242. 
 
442 
 
 THE VOYAGE, 
 
 The circum- 
 stances must 
 iavolTe peril 
 to ship and 
 cargo. 
 
 Sect. 391. order to save toth ship and cargo, by the expenditiire of which 
 both ship and cargo are saved, the person who has made the volun- 
 tary sacrifice is entitled to call upon the others whose property has 
 been saved, by the voluntary sacrifice made on their behalf as well 
 as on his own, for general average contribution" (I). 
 
 A difficulty arises respecting this rule similar to that we have 
 noticed already in regard to sacrifices of ship's material (m). The 
 shipowner, in the performance of his contract, is bound to iacur 
 those expenses which become necessary to enable him to complete 
 the voyage ; yet we have to distinguish expenses which ought not 
 wholly to fall upon him, though they may be incidents of the 
 voyage he has contracted to make. 
 
 392. It is clear that the occurrence of unexpected circumstances, 
 which give rise to an unusually large expenditure, is not enough. 
 For example, extra expenses of the voyage through meeting bad 
 weather, or at the loading port to avoid bad weather, or owing to 
 quarantine or embargo, are not treated as general average ex- 
 penditures (n). 
 
 But if tlie ship and cargo are in peril, and the master can avoid 
 the danger by incurring extraordinary expense, as by putting into 
 a port of refuge, or by employing men or other vessels to render 
 assistance (o), the money which he properly pays or becomes liable 
 to pay in these ways are general average expenses (p). 
 
 We win discuss, first, expenditures incurred in rescuing the ship 
 and cargo when they are at sea, or after the ship has stranded or 
 sunk ; and, secondly, expenses incurred in putting into a port of 
 refuge for the general safety. 
 
 393, Where effectual assistance is given to the ship and cargo 
 in time of danger by strangers to the ship, they become entitled, 
 as we have seen, to salvage, and can enforce that right against the 
 property which is saved. 
 
 The salvage thus payable is distributed rateably over the whole 
 
 Salvage. 
 
 (t) Per Brett, M. E., Ocean S.S. Co. 
 V. Anderson, 13 Q. B. D. 651, p. 662, 
 
 (m) Supra, ss. 382, 386. 
 
 («) Wilson V. Bank of Victoria, L. E., 
 2 Q. B. 203 ; per BuUer, J., in Da Costa 
 V. Newnham, 2 T. E. 407. 
 
 (o) As to the difference between ordi- 
 nary and extraordinary pilotage, see 
 Akerblom v. Price, 7 Q. B. D. 129. 
 
 {p) Eansom paid to pirates, or to 
 captors, is said to be a subject for con- 
 tributions : see Abbott (5th), 346 ; Mao- 
 lachlan (2ud), p. 620 ; Emerigon (Mere- 
 dith's ed.), p. 485 ; Hicks v. Palingtou 
 Moore, 297. The legality of paying 
 ransom to an enemy is subject to orders 
 of Her Majesty in Council under 27 & 
 28 Vict. c. 25, s. 45. 
 
GENERAL AVERAGE. 443 
 
 property saved in proportion to values, similarly to general average, Sect. 393. 
 though, as we shall see later, there may be a difference as to when 
 the liahility is to he ascertained. Owners who have heoome liable 
 to pay salvage at a port of refuge may become exempted from it, 
 by a subsequent loss, if it be treated as general average expendi- 
 ture {q). In practice, however, it seems that salvage is treated as 
 a general average loss or expenditure (r). 
 
 Also, as in general average, if the whole liability to salvage be 
 discharged by the shipowner, he is entitled to a lien upon the 
 cargo for its proportion (s). 
 
 394. But in the strict sense, that is, as a reward allowed by Not generally 
 law to persons who spontaneously render services in saving property ayerage^ 
 from loss or damage at sea, not under contract but depending upon expenditure, 
 the rights given by the law (i), salvage is not an expenditure 
 which falls within the principle of general average. 
 
 Where a vessel has been abandoned, and is taken charge of by 
 salvors as a derelict, and brought into safety, the case seems very 
 clear. It is impossible there to say that there has been any inten- 
 tional sacrifice of any part of the property, or by any one of the 
 CO- adventurers, for the benefit of the rest. 
 
 Where the services have been rendered to a vessel which is 
 under the control of her master, with his assent, it may at first 
 seem that there is an intentional sacrifice made by him. But 
 putting aside eases in which the master employs the salvors, in the 
 sense of making the shipowner personally liable to remunerate 
 them for the whole of their services to ship and cargo, there is 
 here also no sacrifice by one for the rest. The shipowner does not 
 become in any way liable for more than his share of the salvage. 
 The salvor's remedy is against the property saved, or against the 
 owner of that property, for its share of the salvage payable. His 
 lien attaches to each part of the property, and each part has its 
 own separate Kability, which is not shared by the rest (««). It is 
 
 (?) Infra, ss. 418, 428. been recovered from underwriters aa a 
 
 (r) Lowndes (4th), pp. 150, 260. Also loss by the peril insured against. 
 
 I understand that underwriters pay con- (s) Briggs v. Merchant Traders, &c. 
 
 tributions for salvage, although the Association, 18 L. J., Q. B. 178 ; supra, 
 
 policy may be "free of particular aver- s. 353. 
 
 age " and notwithstanding that salvage {t) See per Brett, L. J., in Cargo ex 
 
 does not come within the sue»and labour SohUler, 2 P. D. 146, at p. 149. 
 
 clause (Aitchjson v. Lohre, 4 A. C. 755). (w) The Pyrennee, Br. & L. 189 ; The 
 
 In that case (4 A. 0. p. 766), Lord Eaisby, 10 P. D. 114; supra, s. 362. 
 
 Blackburn said that salvage had always The Admiralty Court does not exercise 
 
444 
 
 THE VOYAGE. 
 
 Sect. 894. 
 
 Payment 
 by shipowner 
 does not 
 make it so. 
 
 as though the salvors were entitled to retain a portion of each part 
 of the property saved by them. 
 
 . The liability for salvage falls immediately upon the different 
 adventurers without any need of the doctrine of general average. 
 And thus neither the conditions nor the grounds for an application 
 of that doctrine are satisfied. It will be found that where discus- 
 sion has taken place as to the manner in which salvage should be 
 distributed over ship and cargo, it has been held that all must 
 contribute in proportion to their values on the ground of the incon- 
 venience and impolicy of any other course («). Were the expendi- 
 ture general average, there could be no room for hesitation on the 
 point («/). 
 
 395. Nor does payment by the shipowner of the salvage on the 
 whole ship and cargo, in order to liberate them from custody, and 
 so enable the voyage to proceed, make the payment a general 
 average disbursement (s). 
 
 a jurisdiction to enforce general average 
 contributions : The Constanoia, 2 "W. B. 
 487 ; The North Star, 29 L. J., Ad. 73 ; 
 Cargo ex Q-alam, 33 L. J., Ad. 97. 
 
 {x) The Longford, 6 P. D. 60 ; The 
 Emma, 2 W. Rob. 315. 
 
 [y) Lord Blackburn in Aitohison v. 
 Lohre (4 A. 0. 755, at p. 760), said: 
 "It may be as well here to point out 
 that the liability of the articles saved to 
 contribute proportionally with the rest 
 to general average and salvage, in 
 noways depends on the policy of insur- 
 ance. It is a consequence of the perils 
 of the sea, first imposed, as regards 
 general average, by the Khodian law 
 many centuries before insurance "was 
 known at all, and, as regards salvage, 
 by the maritime law, not so early, but 
 at least long before any policies of in- 
 surance in the present form were thought 
 of." And of. per Lord EUenborough 
 in Cox v. May, 4 M. & S. 152, p. 159. 
 In the American case of Peters v. Warren 
 Ins. Co. (1 Story, 463, at p. 468 ; quoted 
 Pars. M. Ins. II. 231), Mr. Justice Story 
 said: "General average is commonly 
 understood to arise from some voluntary 
 act done, or sacrifice, or expense in- 
 curred, for the benefit of all concerned 
 in the voyage or adventure ; and then it 
 is apportioned upon all the interests 
 
 which partake of the benefit. But the 
 mere fact that an apportionment is made 
 of a loss between the different parties 
 in interest, if the loss itself does not 
 arise from some act done, or sacrifice or 
 expense voluntarily incurred, for the 
 common benefit, does not make it neces- 
 sarily a case of general average by our 
 law. Salvage is properly a charge ap- 
 portionable upon all the interests and 
 property at risk in the voyage which 
 derive any benefit therefrom. But 
 although it is often in the nature of a 
 general average, it is far from being 
 universally true that, in the sense of 
 our law, all salvage charges are to be 
 deemed a general average. On the con- 
 trary, these charges are sometimes a 
 simple average, or partial loss. We 
 must, therefore, look to the particular 
 circumstances of the case to ascertain 
 whether it be the one or the other." 
 
 (a) Svendsen v. Wallace, 13 Q. B. D. 
 69 . " The proposition, that general aver- 
 age includes all extraordinary expenses 
 incurred for the purpose of continuing 
 the voyage, is not warranted by the 
 principle which governs contribution to 
 general average: " per Hannen, J., in 
 Walthew v. Marrojani, L.R., 5 Ex. 116, 
 at p. 126. And see Dobson v. Wilson, 3 
 Camp. 480. 
 
GENERAL, AVERAGE. 445 
 
 The payment may be beneficial to the whole adventure ; but it Sect. 395. 
 is not made to avert a danger then threatening its destruction, 
 and therefore it is not within the principle. " A general average 
 sacrifice is an extraordinary sacrifice voluntarily made in the hour 
 of peril for the common preservation of ship and cargo " («). 
 
 The cargo's portion is repayable to the shipowner, not because 
 he has made a sacrifice, but because the money was due in respect 
 of the cargo, and has been paid on its account. A payment of 
 ransom to captors, to induce them to give up the ship and cargo, is 
 of a different kind, and maybe a general average loss (5). In 
 such a case there is a danger threatening destruction or loss to the 
 whole adventure, and p^rt is given to save the rest. 
 
 396. With regard to employed salvage services the ease is different. Employed 
 The remuneration which a shipowner undertakes to pay for services 
 to be rendered by the salvors, may be an extraordinary liability 
 prudently incurred by him for the safety of the ship and cargo ; 
 and thus his disbursement may be a general average expenditure, 
 to which contribution must be made as such (c). 
 
 Payments so made are only binding upon the owners of cargo 
 so far as they were reasonably necessary for the safety of the whole 
 adventure. If, for example, a ship is sunk with her cargo, and 
 the whole is raised together, at an expense which, if made good by 
 general average contributions, would throw a burden on the cargo 
 greater than the cost of saving it separately, the whole expense 
 ought not to be so treated [d). 
 
 In Anderson v. Ocean SS. Co. (e), the claim was by shipowners 
 against cargo owners for contribution to a payment made for tow- 
 age of the ship out of a position of danger. The amount which 
 the captain had agreed to pay for the service was very large, but 
 the jury found that it was not unreasonable. In the House of 
 Lords, however, a new trial was considered necessary, that it might 
 be left to the jury to say how much of the agreed sum was properly 
 chargeable as a general average expenditure. Lord Blackburn 
 said : " I think, therefore, that it was quite clear that there was 
 
 [a) Per Bowen, L. J., in Svendsen v. L. E., 1 Q. B. 520. 
 
 Wallace, 13 Q. B. D. at p. 84. (<?) See per Blackburn, J., Kemp v. 
 
 [b] Abbott (Sth), 346 ; Macl. 650 ; HalHday, 34 L. J., Q. B. 233, at p. 
 Hicks V. PaUngton, Moore, 297. 243. 
 
 (e) Birkley ». Presgrave, 1 East, 220 ; (e) 10 A. 0. 107; 13 Q. B. D. 651. 
 
 Kemp V. HaUiday, 34 L. J., Q. B. 233 ; Cf. Akerblom v. Price, 7 Q. B. D. 129. 
 
446 XHE VOYAGE. 
 
 Sect. 396. a contract tinding on the owners of The Achilles to pay this sum 
 of 2,691/. 19s. 6d. to the owners of The Shanghai. Whether it 
 ■was made by themselves or by their master for them is, as far as 
 regards the binding of the owners of The Achilles, unimportant. 
 But neither the owners of the ship nor their master have authority 
 to bind the goods, or the owners of the goods, by any contract. 
 The master has, I think, authority to make for his owners aU 
 disbursements which are proper for the general purposes of the 
 voyage, and when once those disbursements are paid for, either by 
 the master out of funds belonging to the owners which the master 
 has, or by funds which the owners themselves apply to discharge a 
 contract which they either could not dispute because the master 
 had bound them to make it, or did not choose to dispute, I think 
 that the disbursement, in so far as it is a disbursement for the 
 salvation of the whole adventure from a common imminent peril, 
 may properly be charged to general average. But I think that there 
 is neither reason nor authority for saying that the whole amount 
 which the owners of the ship choose to pay is, as a matter of law, 
 to be charged to general average. And though I quite agree that 
 there is some evidence here that The Achilles and her cargo were 
 both in danger, and were both saved by the services of The Shanghai, 
 and though I also agree that it is not a question of law whether 
 the amount of the sum charged as a disbursement was exorbitant 
 or not, still I cannot find that any question as to the amount was 
 submitted to the jury." 
 
 Expense in 397. Next as to operations undertaken to save a ship, and cargo 
 
 and cargo ^ in her, after she has sunk or stranded, by means of men and appa- 
 after strand- j-^tus employed for the purpose. 
 
 Expenses incurred in saving both ship and cargo together, as 
 by raising a ship that has sunk, or dragging her off a bank while 
 still loaded, are general average expenses ; with the limitation, 
 however, that the burden thus thrown on the cargo must not be 
 greater than the cost of saving it by itself (/) . 
 
 But where the cargo or some of it is discharged first, and the 
 ship is got off subsequently, the case is more difiicult. We have 
 to consider (1) whether the expenses of the discharge, and- the 
 damage to the cargo attendant upon that, are general average 
 expenses ? and (2) whether the cost of afterwards getting the ship 
 
 (/) Per Blackburn, J., Kemp v. Halliday, 34 L. J., Q. B. 233. 
 
GENERAL AVEEAGE. 447 
 
 and any remaining cargo off, is to be contributed to by the cargo Sect. 397- 
 already discharged ? 
 
 398. If the ship and cargo can be saved by a connected set of Does sUp 
 operations, though in separate parts, it seems that the expense of discharge of 
 the whole operations should be treated as a general average expen- °^''^° ^ 
 diture, unless that would impose a greater burden on the cargo 
 than the cost of saving it alone {g). Thus, if the ship could be 
 floated off by putting the cargo into lighters for a time, it seems 
 clear that the expenses and risks of discharging into the lighters 
 ought not to fall wholly on the cargo, though that may have been 
 essential for its own safety. It must be presumed in such a case 
 that the master meant to incur them for the benefit of the whole, 
 ship and cargo together. 
 
 So also in other cases where the cost and risk of the first dis- 
 charge is so great, in proportion to the expenses of afterwards 
 rescuing the ship, that it is more favourable in the interest of the 
 cargo that the whole expenses should be treated as general average 
 expenses. 
 
 For if, in such cases, the operation of discharging were treated 
 as a separate burden on the cargo discharged, the ship and the 
 cargo remaining in her would have the benefit of that as well as 
 of the subsequent operations, and yet would bear a smaller share 
 of the whole expenditure. The principles of general average 
 require that, as far as possible, the person at whose expense a 
 sacrifice has been made should be put in the same position as if the 
 property of another had been selected for the sacrifice, and that 
 the willingness to incur the disproportionately heavy first expenses, 
 which lead to a benefit for the whole of the interests concerned, 
 should not be discouraged. 
 
 But if the ship was in such a position that the prudent course in 
 the interest of the cargo, having regard to its own safety, and to 
 probable cost, was to remove it and bring it into a place of safety, 
 the expense of doing this should fall upon the cargo owners alone. 
 And the fact that the ship may thereby have been helped to come 
 ofE should not make a difference. For the expenditure on behalf 
 of the cargo, though it may have incidentally benefited the ship, 
 was not a sacrifice ; on the hypothesis it was the best thing that 
 
 (y) Eemp V. Halliday, supra. 
 
448 
 
 THE VOYAGE. 
 
 Sect. 398. 
 
 Does cargo 
 
 disoharged 
 
 contribute 
 
 towards 
 
 getting ship 
 
 offl? 
 
 could be done for the cargo. The whole expenditure was necessary 
 in its own interest, and was incurred for itself, not for the rest. 
 
 With regard, then, to the first of the questions put ahove in 
 Sect. 397, it may perhaps be said, generally, that if at the time 
 the cargo was discharged it was probable that the cost of the dis- 
 charge would bear so large a proportion to that of getting the ship 
 off afterwards that, taking risks into account, it was in the interest 
 of the cargo to carry on the whole operation as one, then the pre- 
 sumption is that the discharge was meant to be a general average 
 act. But that otherwise it should be regarded as done for the 
 benefit of the cargo, and the expenses should be charged to 
 that {h). 
 
 399. As to the second question put in Sect. 397, it has been 
 decided that where the cargo has been discharged and is in a place 
 of safety, and subsequent operations are undertaken to save the 
 ship, the expense of those must be borne by the shipowner, since 
 it is incurred for the sake of the ship only («). Thus, where 
 specie had been landed from a stranded ship, and subsequently 
 cargo was jettisoned, and tugs, &e., employed, to get her off. It 
 was held that the specie ought not to contribute to the jettison, 
 or to the expense of getting the ship off ik). 
 
 An intention to carry the cargo on after getting her off is not 
 enough to make the owner of the cargo liable to contribute to the 
 expense ; though it might be so if that were essential in the 
 interest of the cargo owner, as where the goods are perishable and 
 unsaleable, and no other vessel can be procured to take them on [I). 
 
 On the other hand, in Moran v. Jones (m), it was held that the 
 discharge of the goods, and the getting the ship off the bank, had 
 been all parts of one continuous operation, done for the benefit of 
 ship, freight, and cargo, and consequently that the whole expenses 
 were general average, though the cargo had been taken back to 
 the loading port before the ship was got off. 
 
 I See Eoyal Mail S. P. Co. v. Englisli [T) See per Lord Campbell, 26 L. J., 
 
 Bank of Eio, 19 Q. B. D. 362. 
 
 (i) Job V. Langton, 26 L. J., Q. B. 
 97 ; Walthew v. Mavrojani, L. R., 5 Ex. 
 119. 
 
 (Jc) Eoyal Mail S. P. Co. v. English 
 Bank of Rio de Janeiro, 19 Q. B. D. 362 ; 
 Pacific MaU SS. Co. v. New York, &o. 
 Mining Co., 74 Eed. Rep. 564. 
 
 Q. B. at p. 100 ; and per Montagu 
 Smith and Hannen, JJ., L. R., 5 Ex. at 
 pp. 125, 126. 
 
 [m] 26 L. J., Q. B. 187. This case has 
 been doubted ; see per Brett, M. R., in 
 Svendsen v. Wallace, 13 Q. B. D. at 
 p. 80. 
 
GENERAL AVERAGE. 
 
 449 
 
 400. The two operations, then, of taking out the cargo and Sect. 400. 
 getting the ship off, may be regarded as separate transactions for The two 
 the benefit of the parts, or as constituting one whole transaction should be 
 for the benefit of the whole. The first operation is only a general t^otly, or " 
 average act when both have that character ; and the same is true ^^^ ^^ °"^ 
 of the second. One or other view should be adopted throughout ; 
 the ship should not contribute to the cargo unless the cargo also 
 contributes to the ship, and vice versd. 
 
 Also, the test as to which view is to be taken appears to be, 
 •what was, or may be presumed to have been, the intention at the 
 time when the cargo was taken out ? Saving the cargo is, in such 
 a case, necessarily the first operation ; and if the whole transaction 
 is to have one consistent character, that must be determined by the 
 character of the act which is first done. 
 
 It may, however, happen that the test cannot be applied once 
 for all. As where the ship is carrying, say, a cargo of grain, but 
 has also on board a quantity of bullion which can be taken to a 
 place of safety at small expense in comparison with its value. It 
 may well be that the saving of the bullion must be regarded as 
 done in the interest of that alone ; but that the subsequent opera- 
 tions of lightening and floating the ship must be regarded as done 
 in the common interest of ship, freight, and grain, to which those 
 interests must all contribute. In such a case the bullion will bear 
 the expense of its own rescue, but will not contribute to the sub- 
 sequent operations or sacrifices («). 
 
 In Job V. Langton (o), however, the Court appear to have con- 
 sidered that the cost of discharging the cargo had been rightly 
 treated as a general average expenditure, though they decided that 
 the subsequent expense of getting the ship off could not be so 
 regarded. But the point did not arise for decision. 
 
 The unfairness of treating the first act of discharge as a general 
 average act, and not so the subsequent floating off, appears more 
 clearly where part of the cargo has been left in the ship. The 
 goods thus left would have to contribute towards removing those 
 which were first made safe, and also to the cost of floating the 
 ship, while those taken out would only share in the expense of 
 saving themselves. 
 
 («) Eoyal Mail S. P. Co. v. English ^^^ Steamship Co. v. New York, &o. 
 
 Miniuff Co., 74 Fed. Eet). 664 
 Ba^k of Rio, 19 Q. B. D. 362. Pacific („, f^ ^ ',[ ^ ^ ^^^ 
 
 C. C. G G 
 
450 
 
 THE VOYAGE. 
 
 Sect. 400. Lowndes, in a somewhat different manner, also arrived at tlie 
 conclusion that hoth operations should he kept distinct or else 
 merged entirely (p). But he qualified this hy the reservation that 
 there shall have heen no change of circumstances or of plan during 
 the operations, e.g. hy "the ship's being driven higher up the 
 strand in a second gale, or simply from a discovery that the prac- 
 ticability of saving the property as a whole is greater or less than 
 was at first anticipated " (q). In such a case it may be necessary 
 to regard the subsequent operations as a new undertaking to be 
 treated on a different principle. 
 
 In Rose v. Bank of Australasia (r), a ship had stranded at 
 AudresseUes, near Boulogne, on January 29th, 1889. Her cargo 
 of wool was landed, and placed in an open field ; and was thence 
 
 (p) G-en. Av. (3rd), p. 86. He said 
 that the question, which principle should 
 he adopted, "must depend on the prin- 
 cipal motive, or end in view, with which 
 the operation or series of operations was 
 undertaken : " p. 82. But he did not 
 define what he meant by " principal 
 motive." I hare endeavoured to show 
 that this must be by reference to the ad- 
 vantage of the cargo discharged. If 
 that would be most advantageously 
 dealt with separately, the motive ought, 
 and should be presumed, to have been to 
 deal with it so, and vice vcrsd. Benecke 
 said (p. 216), "Nor do the expenses of 
 unloading a stranded vessel belong to 
 general average if before the unloading 
 it was uncertain whether by that mea- 
 sure the vessel might be set afloat or not, 
 and it be afterwards found that other 
 means must be employed to bring the 
 empty vessel oflE. For it would be evi- 
 dent that the unloading was necessary 
 for saving the goods, independent of the 
 benefit which the vessel derived from it. 
 Neither, therefore, can the vessel contri- 
 bute for an assistance thus accidentally 
 received, nor the cargo for the charges 
 of heaving ofE the vessel." And in his 
 4th ed. (p. 174), Lowndes said that the 
 cases must be dealt with " according as 
 the facts raise a reasonable presumption 
 that the principal motive for taking out 
 the cargo was to save the cargo itself, 
 or to save something else." 
 
 Mr. M'Arthur, in his work on Marine 
 Insurance (2nd ed.), at p. 176, objects to 
 the preferential position here given to the 
 cargo. But the cargo has a preferential 
 position in fact. It can be more easily 
 dealt with than the ship. Generally, the 
 ship can only be got off when the cargo, 
 or some of it, is out. Mr. M'Arthur 
 suggests that if there is a, "balance of 
 probability " in favour of recovering the 
 property as a whole, that object must be 
 presumed to be the principal motive ; 
 and this, apparently, though the result 
 would be to put a burden on the cargo 
 far larger than was necessary for its 
 safety. This would amount to a pre- 
 ference for the ship, for which there is 
 no justification in the position of things. 
 It may be doubted whether the master 
 could properly have such an intention ; 
 still more whether he should be pre- 
 sumed to have it. 
 
 In the United States the rule seems to 
 be different : goods are said to be still 
 at risk and liable to contribute until 
 entirely disconnected from the enter- 
 prise. See Nelson v. Belmont, 5 Duer. 
 310 ; 21 N. Y. 36 ; M'Andrews v. That- 
 cher, 3 Wallace, 347 ; Pacific Mail SS. 
 Go. V. New York, &c. Mining Co., 74 
 Fed. Eep. 564 ; Eeliance M. I. Co. u. 
 New York, &c. SS. Co., 77 Fed. Rep. 
 317 ; Pars. M. Ins. II. 263, 268, 269. 
 
 [q) Lowndes (3rd), p. 88. 
 
 ()•) '(1894) A. 0. 687. 
 
GENERAL AVEEAGE. 451 
 
 carted to Boulogne, and ultimately (the sMp having been abandoned) Sect. 400. 
 was reshipped for its destination, London. The Court of Appeal, 
 on the facts, considered that all hope of saving the ship had been 
 given up on February 1st ; and they held that the subsequent 
 expenses of saving the cargo and getting it to Boulogne could not, 
 therefore, be treated as general average ; also that, as those expenses 
 were incurred for the purpose of carrying the goods forward, they 
 should be charged wholly to freight. This ruling was reversed by 
 the House of Lords. The cargo was not in safety at Audresselles. 
 The expenditure in getting it to Boulogne was not, therefore, on 
 account of freight only. It should be charged either to general 
 average, or to cargo, or to cargo and freight. As the case stood it 
 was not necessary to determine which of those was the right way. 
 
 401. In Schuster v. Fletcher (s), the question was raised whether Can the sHp- 
 the defendant, a shipowner who had taken an active part in saving for i^g 
 and transhipping the cargo from his stranded ship, was entitled services. 
 to claim remuneration for those services. The cargo had been 
 removed from the ship under the directions of the defendant's 
 agent, and he had brought it to its destination and earned the 
 freight. There had been trouble in identifying some of the cargo 
 owing to obliteration of marks, and some which could not be 
 identified had to be sold and the proceeds distributed. All this 
 was done by the defendant, and he had been allowed, in an average 
 statement, a sum by way of remvmeration for the work. This was 
 partly charged to the separate interests, and partly was made the 
 subject of general average contribution. It was held that the ship- 
 owner was not entitled to the charge ; the work done being work 
 which he was bound to do (f). 
 
 (s) 3 Q. B. D. 418. manoe of his own contract. He was 
 {t] Cockhum, C. J., said: "I think bound to use every effort to convey the 
 these services have nothing in common cargo safely to its destination, and could 
 with general average. General average only give up the task vhen it was hope- 
 presupposes some sacrifice for the less. It cannot be said that the task 
 benefit of the whole adventure, which was hopeless, when he was able, at the 
 must be home equally by all. Here the cost of some trouble, to bring the cargo 
 shipowner had an interest in getting into port. As to the expense incurred 
 the ship off and bringing the cargo into in respect of the articles which were 
 port, in order that he might earn his identified, it was incurred for his own 
 freight. He cannot be allowed to throw benefit ; for unless he had delivered the 
 the whole cost of these proceedings upon goods to the proper owner, he would 
 those who to some extent share in the not have obtained his freight. And, as 
 benefit from them. A great deal of to those unidentified, he took no further 
 what he has done was in the perf or- trouble, but sold them through a broker, 
 
 gg2 
 
452 , THE VOYAGE. 
 
 Sect. 401. But that decision was not considered satisfactory by the House 
 of Lords, in the later case of Eose v. Bank of Australasia. 
 Lord Herschell there said : " If it (Schuster v. Fletcher) is sup- 
 posed to have laid down that under no circumstances may a ship- 
 owner employ others to do work for him at a distance from the 
 place where he carries on his business, which, if it had happened at 
 the place where he carries on his business, he would have been 
 bound to do himself, then all I can say is that I respectfully 
 dissent from it " («). 
 
 In each case, whether as to the employment of other persons in 
 salvage operations, or to assist in selling unidentified cargo, it is a 
 question of fact whether the employment of those other persons, 
 and the remuneration paid to them, were reasonable under the 
 circumstances. The shipowners are not bound to conduct the 
 operations themselves when it is for the general advantage to 
 employ others who can do the work more effectively. And, where 
 that is the case, they are entitled to charge the consequent 
 expenses to those who have benefited (p). 
 
 Port of Refuge Expenses. 
 Deviation to 402. Perhaps the most important group, practically, of claims 
 refuge. to general average contribution are those which come under the 
 
 head of port of refuge expenses. And it is necessary to discuss 
 them in some detail (s). 
 
 The deviation to a port of refuge, to be justifiable, must be 
 made to avoid some danger which is threatening the ship or 
 cargo. This may be an immediate external danger, or may 
 arise from the condition of the ship, or some insufficiency of men 
 or stores on board, which makes it unsafe to continue the voyage 
 without repairing, or obtaining supplies. 
 
 Further, the need of bearing up for suppKes or repairs may be 
 due to some original defect in the ship or her equipment, or may 
 have been caused accidentally by the perils encountered on the 
 voyage ; or, on the other hand, it may be the result of a voluntary 
 sacrifice amounting to a general average act. 
 Where due If the deviation is to make good defects which existed at the 
 
 who received his brokerage. In every [y) See per Lord Herschell, (1894) 
 
 respect, therefore, the charges cannot A. 0. pp. 687 703. 
 
 he supported." (^) gee a paper on " Expenses at a. 
 
 [x) (1894) A. C. 687 at p. 699. port of refuge " (1892), App. D. 
 
GENERAL AVEEAGE. 453 
 
 time of sailing, or which have resulted from a state of unsea- Sect. 402. 
 worthiness, or want of equipment on sailing, the shipowner must to unsea- 
 generally hear the whole cost of the deviation. Tor, assuming that '«'0'^*^"'ess. 
 the act of deviating was a general average sacrifice, still an action 
 would lie by the cargo owner against the shipowner for sending 
 the ship to sea unseaworthy ; and if that unseaworthiness produced 
 the general average loss, the cargo owner would he entitled to 
 recover back the amount of his contribution as damages {a) . And 
 apart from this defence, the right to contribution is taken away 
 where the loss or expense has been caused by neglect on the ship- 
 owner's part (J). 
 
 Excluding cases of this kind, we will consider first instances in 
 which the deviation has become necessary owiug to accident ; not 
 owing to damage which was itself a sacrifice. 
 
 403. Where a deviation is voluntarily made to avoid the danger Deviation in 
 
 p. . ,...-.. , n LT L J.' ■ £ distress, a 
 
 or going on m a ship which is so damaged that a continuance oi general 
 the voyage is unsafe both for ship and cargo, the deviation -is a average act. 
 general average act (c) . It involves extraordinary additional ex- 
 penses to the shipowner, which are voluntarily incurred under the 
 pressure of a common risk, for the common safety. It is not a 
 sufiioient objection to say that it is the shipowner's duty to take 
 these precautions and incur these expenses under his contract of 
 carriage. For, as we have seen, that argument would prove too 
 much. It is the shipowner's duty also to make other voluntary 
 sacrifices, to which, still, he is entitled to claim contribution. The 
 policy of the law is to encourage the making of necessary sacrifices 
 with promptitude ; and with as little hesitation where they affect 
 the shipowner's property, or interests, as where the property of the 
 shippers is dealt with (d). 
 
 It seems equally to be true that a deviation to a place of safety 
 is a general average act where the object is not to repair damage 
 but to avoid a common danger, such as a storm (e), or a capture by 
 
 (») Sohloss V. Heriot, 14 C. B., N. S. Janson, 24 L. J., Q. B. 97 ; Plmnmer v. 
 
 53. Wiiaman, 3 M. & S. 482 ; Da Oosta v. 
 
 {b) See Strang v. Scott, 14 A. C. 601 ; Newnham, 2 T. K. 407 ; Abbott (Sth), 
 
 Johnson v. Chapman, 35 L. J., C. P. 23, 346 ; (13th) 630 ; Benecke, 192. 
 
 {d) Supra, s. 382. 
 
 at p. 28 ; Pirie v. Middle Dock Co., 44 
 L. T. 426, at p. 429 ; supra, 88. 366, 
 
 373a, 373b. (s) The expenses of putting in merely 
 
 (c) Svendsen v. Wallace, 13 Q. B. D. for shelter are not in practice treated as 
 
 69 ; 10 A. C. 404 ; but see per Bowen, general average expenses. They are 
 
 L. J., 13 Q. B. D. p. 87. Hall v. usually small in amount. 
 
454 
 
 THE VOYAGE. 
 
 Expenses of 
 going in and 
 comins out. 
 
 Sect. 403. an enemy, or to supply an extraordinary and dangerous deficiency 
 of men, or necessary stores, whioh may have occurred. 
 
 404. "Where the putting into a port of refuge is a general 
 average act, the expenses necessarily involved in doing so are a 
 general average expenditure. That is true, then, at any rate, of 
 the expenses of going in : such as pilotage, towage and harbour 
 dues, &o. Also it would seem that the same should generally be 
 true of the necessary expenses in coming out again ; since these are 
 the natural and expected consequences of putting in, where that 
 has been done for the purpose of temporary refuge, and are there- 
 fore as material as the expenses of putting in, when regarded as 
 considerations which operate on the mind of the master in deciding 
 what should be done (/). 
 
 But there has been a difference of opinion on this point. In 
 Atwood V. Sellar (gr), the Court of Appeal treated the acts of going 
 into and coming out of the port as " parts of one act or operation 
 contemplated, resolved upon, and carried through for the common 
 safety and benefit, and properly to be regarded as continuous." 
 In Svendsen v. Wallace {h), however, the Court of Appeal regarded 
 the coming out as disconnected from the going in ; the proximate 
 motive in coming out being the intention to proceed with the 
 voyage, not that of escaping from danger. Bowen, L. J., how- 
 ever, in the latter case, was inclined to distinguish between those 
 cases in which the vessel has put in for shelter merely, and cases 
 in which the object has been to repair (i) ; and in the House of 
 Lords {k) the whole question of the expenses of coming out was 
 expressly left undecided. 
 
 405. Where- the master puts into a place of refuge in order to 
 escape some danger, such as a storm, or an enemy's cruiser, it 
 would seem at first sight that the wages of the crew, and the cost 
 of provisioning them while the ship is detained there by the 
 danger to be avoided, these being incurred in consequence of 
 putting in, should be treated as general average expenses. 
 
 In Da Costa v. Newnham (l), the opinion was expressed that the 
 
 Wages and 
 maintenance 
 of crew. 
 
 (/) See York-Antwerp Rules X., 
 App. C. 
 
 iff) 5 Q. B. D. 286, p. 290. 
 (h) 13 Q. B. D. 69. 
 (i) Ibid., p. 90. 
 [k] 10 A. C. 404. 
 
 (0 2 T. R. 407. The sailors there had 
 been discharged, and employed as work- 
 men on the repairs of the ship, so that 
 their wages formed part of the parti- 
 cular average. The last sentence of the 
 head-note to the report appears to be 
 mistaken. 
 
GENERAL AVERAGE. 
 
 455 
 
 sailor's wages and provisions should be so charged, where the vessel Sect. 405. 
 puts into port in distress "for the general benefit of the whole 
 concern." 
 
 But in Power v. Whitmore (;»), it was decided that that is not 
 so. There the ship being in heavy weather, and having been 
 damaged, put into Oowes to repair, as a measure necessary for the 
 safety of ship and cargo. She put in on December 7th and re- 
 mained till the 11th, when, having repaired, she sailed on her 
 voyage ; but she returned to Oowes next day, owing to adverse 
 winds and bad weather, and was detained there by the winds tiU 
 the 29th. General average contribution was claimed in respect of 
 the wages and provisions from the time of first putting in until the 
 final sailing. But the claim was disallowed. Lord EUenborough 
 said : " General average must lay its foundation in a sacrifice of 
 part for the sake of the rest, but here was no sacrifice of any part 
 by the master, but only of his time and patience." 
 
 That ease appears to have settled the English rule on the matter, 
 and in practice no part of the wages or cost of provisions is con- 
 tributed to. 
 
 In nearly all other countries, however, the rule is dif- 
 ferent (n). And under the York- Antwerp Rules, the wages 
 and cost of maintenance of the master and mariners are 
 made subjects of general average contribution, whenever a port 
 of refuge has been entered in consequence of accident, sacrifice, 
 or other extraordinary circumstances which render that necessary 
 for the common safety ; and also where the ship is detained in 
 any port to enable damage to the ship caused by sacrifice or acci- 
 dent during the voyage to be repaired, if the repairs were neces- 
 sary for the safe prosecution of the voyage (o) . 
 
 In Anglo- Argentine, &c. v. Temperley Shipping Co. (|->) it was 
 
 held that the wages and provisions of cattlemen on board, while at 
 
 a port of refuge, did not fall within this rule. The men were paid 
 
 by the charterers, owners of the cattle. Nor were these wages and 
 
 provisions, or the fodder for the cattle while in port, subjects for 
 
 contribution at common law. 
 
 , (ot) 4M:. &S. Ul. So, also, in Plum- tu^e from English law in the direction 
 
 mer v. Wildman, 3 M. & S. 482. of the principles maintained abroad. 
 
 In) See the Comparative Table in ^hey were passed at the Conference 
 
 Lowndes (4th), p. XXX. ^^^^ "^ ^®^" ^'*^°"* ^^''^' ^* ^ 
 
 meeting which well represented the 
 
 [o) See Rules X. and XI., App. 0. views of English practical men. 
 
 These rules mark a considerable depar- [p) (1899) 2 Q. B. 403, 
 
456 
 
 THE VOYAGE. 
 
 Where ship 
 puts in to 
 repair. 
 
 Sect. 406. 406. Where the ship has entered the port of refuge in order 
 to repair, the cost of wages and maintenance of the .crew during 
 the time occupied in repairing is a loss involved in the act of 
 repairing the ship at that place, unless the crew ought to have 
 been discharged {q). If, then, the shipowner is entitled to con- 
 tributions to the cost of the repairs, he ought, it seems, to receive 
 contributions to the wages and cost of maintenance of the crew. 
 In other words, the latter expenses, should be subjects of general 
 average contribution, or not, according to whether the repairs are 
 so, or not. They are not the natural consequences of the act of 
 deviating, but of the act of repairing. The deviation has merely 
 given the opportunity. 
 
 In Abbott on Shipping, after laying down the rule estab- 
 lished by Power v. Whitmore, the author continued: "But if 
 a ship should necessarily go into an intermediate port for the 
 purpose only of repairing such a damage as is in itself a proper 
 object of general contribution, possibly the wages, &c. during a 
 period of such a detention may also be held to be general average, 
 on the ground that the accessory should follow the nature of its 
 principal" (r). And Thesiger, L. J., delivering the judgment in 
 Atwood V. Sellar (s) said: " As a matter of- fact it is extremely 
 doubtful whether the expenses for wages of crew or provisions 
 in a port of refuge have ever been disallowed by our Courts, 
 as constituting a claim for general average, in a case where the 
 ship has put into the port to repair damage itself belonging to 
 general average." 
 
 The practice of average adjusters in England, however, is to 
 make the shipowner bear these expenses in aU. eases, unless the 
 York- Antwerp Bules are to be applied {t). 
 
 Cost of repairs 407. The cost of repairs to the ship which have become necessary 
 
 accidental. by accident is, as we have seen (m), to be borne by the shipowner ; 
 
 no general average contributions to it are payable by the owners 
 
 of the cargo. And that is the case even where the expenditure 
 
 {q) It is not, however, allowed as 
 part of the loss as against underwriters 
 on ship : De Vanx v, Salvador, 4 A. & 
 E. 420. 
 
 (r) (5th), 350 ; (l-3th), 645. See the 
 note of Shee, J., to this passage (Uth), 
 p. 533, itt which the passage as con- 
 tained in the earlier editions prior to 
 
 Power V. Whitmore is set out. 
 («) 5 Q. B. D. at p. 291. 
 
 [t] On the other hand, the whole of 
 the port dues are in practice allowed 
 as general average expen'ss, although 
 partly paid for the period of repairing. 
 
 («) 8'^ra, ss. 302, 320. 
 
GENERAL AVERAGE. 457^ 
 
 upon the repairs, or some of it, appears to have been solely in the Sect. 407. 
 interest of the cargo ; as where the amount has exceeded the value 
 of the repaired ship, together with the freight which could be 
 earned by completing the voyage (x). 
 
 In Hallett i>. Wigram {y), an action was brought by shippers 
 against the shipowners for the value of part of the cargo, sold at 
 a port of refuge. The defendants pleaded that the goods were 
 sold to defray the expenses of unloading and repairing the ship 
 for the common benefit ; that these expenses were requisite for 
 the completion of the voyage ; that they exceeded the value of 
 the ship when repaired ; that the repairs ought not to have been 
 done except for the purpose of conveying the cargo to the port 
 of delivery, and would not have been done if that could have 
 been accomplished otherwise ; and that no more than a general 
 average contribution was payable by the defendants. On demurrer 
 it was held that this was not a good defence. 
 
 Wild, C. J., said : " It might in one sense of the term be for 
 the common benefit and advantage of all that the ship should 
 return to Port Adelaide, that the cargo should be unloaded, and 
 that the requisite repairs should be effected ; but, inasmuch as 
 the cargo belonging to the plaintiffs might have been conveyed 
 in any other ship, it is difficult to see how it was for the benefit 
 and advantage of the plaintiffs that the repairs, when completed, 
 would exceed the value of the ship. This olaim is made without 
 any allegation that the cargo of the plaintiffs could not have been 
 conveyed in some other ship. . . . The effect of holding these 
 pleas good would be to throw on the merchant the burden which 
 ought to be borne by the shipowner." 
 
 Exceptional eases may perhaps occur in which the repair of the 
 ship at a sacrifice is necessary for the salvation of the cargo, as 
 where it is perishable and there is no other means of carrying it to 
 a market (s). "But (exceptional cases apart) it is not sufficient, 
 according to English law, that an expenditure should have been 
 made to benefit both cargo owner and shipowner. The idea of a 
 common commercial adventure, as distinguished from the criterion 
 of common safety from the sea, would lead to the inclusion in 
 general average of, at all events, temporary repairs of the ship 
 
 (x) Benson v. Duncan, 17 JJ. J., Ex. , > q j.t, ■ j x • ttt t., 
 
 238 ; 18 L. J., Ex. 169. ^'^ ^'' *^' judgments m Walthew .. 
 
 W 19 L. J., C. P. 281. Mavrojani, L. R., 7 Ex. 50. 
 
458 
 
 THE VOYAGE. 
 
 Sect. 407. caused hj particular average loss, and would enatle the shipowner 
 to complete his part of the contract of affreightment by means of 
 a money contribution levied perforce upon the cargo owner " (a). 
 
 Expenses of 408. Next as to the expenses of discharging the cargo, -where 
 cargo. that is necessary, at the port of refuge. How are these to be 
 
 borne ? This must be answered by reference to the circumstances 
 which have rendered the discharge necessary. If the common 
 safety of ship and cargo required that it should take place, the 
 expense is a general average expenditure. That would be the 
 case, for example, where the ship was leaking badly, and the leak 
 could not be got at and stopped without first taking the cargo 
 out (6) ; or where, if the cargo had been left in, the ship would 
 have grounded as the tide fell, and perhaps broken up and the 
 cargo been lost ; there, also, the discharge would be for the common 
 safety, and the expense should be contributed to (c). 
 
 On the other hand, the discharge may be solely for the benefit 
 of the cargo, as where a cargo of grain has been wetted, and must 
 be dried in order to save it from rotting. Here the expenses of 
 landing and of loading again, being incidental to the process of 
 drying, must be borne by the owners of the cargo (d) ; unless, 
 indeed, the damage to the cargo, thus prevented from extendiug, 
 itself arose from a general average act, in which case these expenses 
 properly form part of the general average loss. 
 
 But perhaps the most common case is that iii which the discharge 
 of the cargo or part of it is necessary, not for the immediate safety 
 of ship or cargo, but because the repairs to the ship which are 
 required cannot be done unless the cargo is first landed. In such 
 a case the discharge is an incident of doing the repairs; and it 
 would seem to follow that the expense should be regarded as part 
 of the cost of repairing, and should be borne by those who are to 
 bear that cost. 
 
 As we have seen, the mere fact that the discharge will be a 
 benefit to the cargo owner, by enabling the repairs to be done and 
 the voyage to be accomplished, is not a sufficient reason for making 
 him share the cost. " I am unable to adopt the theoretical view 
 
 («) Per Bowen, L. J., Svendsen «'. (c) But see per Brett, M. E., in 
 
 Wallace, 13 Q. B. D. 69, p. 86 ; and Svendsen v. Wallace, 13 Q. B. D. at 
 
 see per Brett, M. R., at p. 76. p. 76. 
 
 (4) As in Svendsen v. Wallace, 10 {d) See Notara v. Henderson, L. E., 
 
 A. 0. 40i. 5 Q. B. 346 ; 7 Q. B. 225. 
 
GENERAL AVERAGE. 459 
 
 that unloading becomes an act of sacrifice, simply because it releases Sect. 408. 
 cargo and ship from the dead-lock that would otherwise ensue. 
 Physical safety has been attained ; and it appears to me to be the 
 duty of the shipowner, under his contract of affreightment, either 
 to proceed with his voyage or else to land his cargo, unless it is to 
 be transhipped direct "(e). 
 
 409. The matter becomes more difficult where more than one Mixed 
 motive has operated in determining the discharge. discharging. 
 
 If that has been done for the common safety of ship and cargo, 
 it is, as we have seen, a general average act ; and this will not be 
 altered by the fact that the shipowner or cargo-owner has inci- 
 dentally been benefited in other ways. But if the discharge was 
 not requisite for the immediate safety of the ship and cargo, but 
 was necessary in order to dry the cargo, and also in order to repair 
 the ship, it seems most consistent with principle that the expense 
 of discharging should be borne by the cargo. Not being necessary 
 for the common safety, it was not a general average act, unless the 
 view is to be adopted that the act of deviation includes the getting 
 ready to repair. And as the ship could have waited, and the cargo 
 could not, it ought, perhaps, to be presumed that the immediate 
 motive of the discharge was the preservation of the cargo (/). 
 
 But in practice, it appears, the cost of the discharge to enable Practice. 
 repairs to be done is in all cases treated as a general average 
 expense. And this was regarded by Brett, M. R., in Svendsen v. 
 Wallace {g), as a " not unreasonable way of treating the case as a 
 matter of business," the discharge being jpart of the general average 
 act of " going in to repair " {h). 
 
 410. Next as to the cost of reloading. It is now decided, by Expenses of 
 the judgment of the House of Lords in Svendsen r. Wallace (i), chM^abie~to 
 that this is not a general average expenditure, where the damage, !^^P f ^ *° 
 
 to repair which the ship put in, was accidental ; notwithstanding 
 
 («) Per Bowen, L. J., Svendsen v. from a ship, whether at a port or place 
 Wallace, 13 Q. B. D. at p. 88. Cf. of loading, call, or refuge, shall be ad- 
 McCalli). Houlder, 76 L. T. 469. mitted as general average when the 
 
 (/) See The Brig Mary, 1 Sprague ^^^^^^S^ ^^^ necessary for the common 
 17 ^TT SI safety or to enable damage to the ship, 
 
 caused hy sacrifice or accident during the 
 
 iff) 13 Q. B. D. at p. 77. 
 
 voyage, to be repaired, if the repairs were 
 
 Lowndes (4th), pp. 217, 218. necessary for the safe prosecution of the 
 
 (A) Under York -Antwerp Rules voyage." 
 X. (b), "The cost of discharging cargo («) 10 A, C. 404. 
 
460 
 
 THE VOYAGE. 
 
 Sect. 410, that the landing of the cargo had there been done for the common 
 safety of ship and cargo, and was treated as a suhject for con- 
 tribution. The ship had put in with a bad leak, and was not safe 
 until she had got into dry dock, for which purpose it was necessary, 
 to discharge the cargo. 
 
 From this it seems to follow, a fortiori, that the cost of reloading 
 is not a general average expenditure where the original discharge 
 has been merely to enable accidental repairs to be done, the ship 
 and cargo being safe at the time. But Lord Blackburn regarded 
 that as a distinct question, which it was not necessary to inquire 
 into {k). 
 
 In Svendsen v. Wallace the reloading expenses were held to be 
 chargeable to the shipowner, but whether as shipowner or as owner 
 of the freight was not actually decided. Lord Blackburn appears 
 to have considered that they were chargeable to freight. And 
 Bowen, L. J., said : " The charges of reloading in such a case " 
 {i.e., where the cargo is unloaded and reloaded in order to repair 
 an accidental loss) " ought in principle to fall upon the freight, or 
 else upon the freight and the ship together if the two interests are 
 severed" {I). 
 Advanced j^ that case part of the freight had been paid in advance, but 
 
 freight does '- _ ° '■ 
 
 not contri- Lord Blackburn discussed the matter on the assumption that it 
 was not affected by that fact. The question as propounded by 
 him was whether the whole of the re-shipping expenses were to be 
 charged to the shipowner, or to be treated as subjects for general 
 average contribution. He appears to have decided that no portion 
 of them could be charged to the freighter in respect of the advanced 
 freight {m) . 
 
 And it seems clear that the prepayment of freight ought not to 
 msike the freighter liable for any such expenses, unless they are 
 general average expenses ; in which case he contributes in respect 
 of the goods themselves, enhanced in value by the freight pre- 
 
 {k) Under York - Antwerp Rules incurred after the date of the ship's 
 
 X. (c), " Whenever the cost of disoharg- condemnation or of the abandonment of 
 
 ing cargo from a, ship is admissible as the voyage shall be admitted as general 
 
 general average, the cost of re-loading average." 
 and storing such cargo on board the said 
 
 ship, together with all storage charges ^ 13 Q. B. B. p. 89. And see the 
 
 on such cargo, shall likewise be so ad- '"''•"arks at p. 86 on HaU ,;. Janson, 24 
 
 mitted. But when the ship is con- ^- '^■' ^- ^- ^^- *^*- ^°^® ^- ^^nk of 
 
 demned, or does not proceed on her Australasia, (1894) A. C. 687. 
 
 original voyage, no storage expenses .(m) 10 A. 0. 404, see p. 416. 
 
GENERAL AVEEAGE. 461 
 
 paid («). Apart from general average, tlie cost of completing the Sect. 410. 
 voyage ought to be home hy the shipowner ; and though part of 
 that cost may be properly chargeable to the owner of the freight 
 still at risk, if that has been assigned, or to the insurers of the 
 freight as against the owner of the ship, the' freighter should not 
 be affected by considerations of that kind. 
 
 The subject of port expenses outwards has already been dis- 
 cussed above (o). 
 
 411. Turning now to the case of a vessel which bears up for a Putting in 
 port of refuge owing to a necessity which has been caused by a general aver- 
 general average act, such as the cutting away a mast, it appears ^s^ damage, 
 from what has been said above that somewhat different rules must 
 
 be followed. 
 
 Here, as before, the deviation is itself a general average act, and 
 the consequent expenses are therefore general average expenditure. 
 But they may also be regarded as necessary items in the cost of 
 replacing the mast cut away, and in that way a general average 
 loss. For the cost of the repairs is here the actual loss by the act 
 of cutting away the mast, and must therefore be contributed to as 
 a general average loss ; and the extra expense involved in being 
 compelled to repair at a port of refuge comes under the same 
 category. 
 
 Thus it seems clear that in this case the cost of discharging the Expenses of 
 cargo, in order to repair the general average damage, should be 
 contributed to. 
 
 412. Whether the subsequent expense of reloading the cargo is, Expenses of 
 in this ease, also to be regarded as general average expenditure, ^^ °^ '°^' 
 appears to depend upon whether the decision in Atwood v. Sellar (p), 
 
 in favour of that view, is consistent with the principles laid down 
 in Svendsen v. Wallace (q). 
 
 In the former case the view was taken that " the going into 
 port, the xmloading, warehousing, and reloading of the cargo, and 
 the coming out of port" were all parts of one continuous act 
 or operation carried through for the common safety and benefit. 
 And Lord Blackburn, in the latter case, said that if that were the 
 state of the case then before the House, he would consider whether 
 "it might not be fairly argued that the whole of these operations 
 
 (») See infra, s. 440. (p) 5 Q. B. D. 286. 
 
 (o) Sect. 404. (?) 13 Q. B. D, 69 ; 10 A. 0. 404. 
 
462 
 
 THE VOYAGE. 
 
 Sect. 413. were to be considered as parts of the expense of repairing the 
 damage." But he thought that the ciroumstances of that case 
 could not be so described. 
 
 In the Court of Appeal, Brett, M. R., said (r) : " I do not think 
 that the real ground of the decision in Atwood v. Sellar in the 
 Court of Appeal was that all the acts done in a port of distress are 
 one continuous act. What is the one act ? By what name can it 
 be expressed ? Warehousing the cargo, reloading it, going out of 
 port, cannot be said to be parts of the act of taking the ship into 
 port in order to enable her to be repaired. Reloading the cargo, 
 and taking the ship out of port when the ship is repaired, cannot 
 be parts of the act of repairing the ship." 
 
 Baggallay, L. J., who was also a member of the Court which 
 decided Atwood r. Sellar, considered the two cases undistinguish- 
 able with regard to the expenses of unloading, warehousing, re- 
 loading, and coming out of port ; and consequently dissented from 
 the decision in Svendsen v. Wallace. 
 
 Bowen, L. J., said (s) : " Reloading is not an act of sacrifice, for 
 long before it occurs both ship and cargo are safe. Is it then 
 caused by an act of sacrifice, or is it part of the loss, in other 
 words, which an antecedent act of sacrifice involves ? Where, for 
 example, a ship has cut away a mast, and has put into port to 
 repair the damage so caused, and been compelled in order to 
 repair this special damage to unload and reload the cargo, it may 
 follow, according to the decision in Atwood v. Sellar, that such 
 expenses are all parts of the loss involved in the original sacrifice. 
 But in the present instance, the only sacrifice has been the putting 
 into port, and the reloading expenses are not part of the loss which 
 putting into port has caused, but a loss caused by the captain's 
 decision to repair his ship, and to unload and reload the cargo for 
 that purpose." 
 
 It is submitted that, as suggested in these judgments, the deci- 
 sion in Atwood v. Sellar as to the expense of reloading the cargo 
 can well be supported, without regarding that act as necessarily or 
 continuously connected with the act of putting into port, on the 
 ground that it was part of the cost involved in repairing before the 
 end of the voyage; and that the necessity of so repairing was 
 the consequence of the voluntary sacrifice in cutting away the 
 mast. 
 
 (r) 13 Q. B. D. p. 90. {«) Md. p. 89. 
 
OENEEAL AVERAGE. 
 
 463 
 
 413. With regard to the expense of warehousing the cargo during Sect. 413. 
 repairs, however, it is difficult to reconcile the cases of Atwood v. Warehousing 
 Sellar and Svendsen t>. Wallace, in the Court of Appeal. The 
 House of Lords, in the latter case, declined to decide that point, 
 as it would not have affected the result : the only issue being 
 whether the defendants had paid enough into Court. 
 
 If the expense of keeping the cargo in a warehouse while repairs 
 are being done were chargeable to the shipowner in the case of 
 accidental damage, it might be regarded as part of the cost of the 
 repairs. But in Svendsen «. Wallace, the Court of Appeal held 
 that the cargo owner must bear the whole of that expense, on the 
 ground that the cargo alone benefited by it {t) ; although the ship- 
 owner there had to bear the whole cost of the repairs. It seems to 
 follow, a fortiori, that the shipowner does not pay for warehousing, 
 and therefore that that cannot be regarded as part of his loss, 
 where the repairs are necessitated by a general average sacrifice. 
 
 Perhaps, however, it may be said that where the warehousing is 
 the necessary, though indirect, consequence of the act of cutting 
 away a mast, or other sacrifice of the ship, this should be treated 
 as a general average loss of the cargo owner. And that, in the 
 same way, if his goods have been exposed and damaged during 
 the repairs, or in course of being warehoused, that damage should 
 be treated as a general average loss, as being a consequence of the 
 original sacrifice. If that be so, the expense of warehousing 
 during repairs may be a general average loss where the repairs 
 are needed owing to a general average act, and not so where the 
 damage has been accidental. 
 
 If the warehousing and treatment of the cargo is necessary 
 owing to general average damage done to itself, it seems clear 
 that the expense is a general average loss, as the consequence of 
 the damage. 
 
 Under York-Antwerp Eules X. (o) (u) all storage charges are 
 admitted as general average when the cost of discharging is so 
 admissible; that is to say, whenever "the discharge was neces- 
 sary 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." 
 
 In Anglo- Argentine, &c. v. Temperley Shipping Co. (x), it was 
 contended that the cost of fodder and water for cattle while at a 
 
 {t) 13 Q. B. D. 69, at pp. 78, 89. («) App. 0. {x) (1899) 2 Q. B. 403. 
 
464 
 
 THE VOYAGE. 
 
 Sect. 418. ^^^ q£ refuge were storage charges within this rule. This was 
 disallowed. The cattle had not been discharged. And even if 
 thej had been discharged, the same decision would probably hare 
 been given. 
 
 Damage to 413a. Damage suffered by cargo in the course of being dis- 
 
 cargo at port ° , , , . i • j. j i 
 
 of refuge. charged, or reloaded, or while stored, is a subject lor general 
 average contribution, or not, according as the necessity for these 
 operations has arisen from an act of sacrifice, or not. If the 
 discharge of cargo is done in order to repair general average 
 damage to the ship, or to prevent the increase of general average 
 damage to the cargo itself, the injury suffered in the discharge and 
 subsequent operations should be made good ; it is a consequence of 
 the original sacrifice. Otherwise, when the discharge is to enable 
 accidental repairs to be done, or to check the spread of accidental 
 mischief in the cargo. For in these cases the discharge is neither 
 a general average act itself, nor is it a consequence of a general 
 average act. 
 
 Under York-Antwerp Eules (XII.) " damage done to or loss of 
 cargo necessarily caused in the act of discharging, storing, re- 
 loading, and stowing shall be made good as general average when 
 and only when the cost of these measures respectively is admitted 
 as general average" (y). 
 
 The question whether loss of or damage to cargo whilst in ware- 
 house (say by fire or thieves) should, in any case, be made good, is 
 one on which there seems to be little English authority (z). Pro- 
 bably the right answer is that such damage or loss should be made 
 good where the expense of warehousing is general average, and 
 not in other cases. By being warehoused the goods are exposed to 
 risks which are not the ordinary risks of the voyage, and which 
 are not run by the other portions of the cargo. If this exposure is 
 for the purpose of repairs, and not for the common safety, it is not 
 in itself a general average act. "Where, however, it has become 
 necessary by reason of a general average sacrifice previously made, 
 the risk thus run and the resulting loss may be regarded as conse- 
 quences involved in that sacrifice ; and the loss ought to be made 
 good to the owner of the cargo exposed. 
 
 (j^) See Rule X., as to -when that is avoids the question. The recent Danish 
 t^ecase. Code (1892), „. 189, apparently dis- 
 
 («) The York- Antwerp Rule XII. allows such damage as too remote. 
 
GENERAL AVEEAGE. 
 
 465 
 
 No difficulty need arise from the consideration that the cargo Sect. 413. 
 while in warehouse is relieved from the risks which would be run 
 if it had been left in the ship ; for, as in all other eases, the amount 
 to be made good is arrived at after deducting any loss or deteriora- 
 tion which would probably have occurred to the goods had they 
 remained on board throughout (a). 
 
 In the brig Mary (6) it was said that a loss of cargo by fire 
 while stored a-t a port of refuge, during the repair of the ship, 
 should be treated as general average. But it was held not to be so 
 where the landing and storing of the cargo were necessary owing 
 to its own damaged state ; even though also necessary for effecting 
 the ship-repairs. 
 
 In G-age v. Libby (c), wastage of a cargo of ice caused by 
 opening the hold in order to renew a mast, at a port of refuge, 
 was allowed in general average. But the ordinary wastage of the 
 cargo during the delay at the port necessary for effecting accidental 
 repairs was not allowed in general average {d). 
 
 414. It sometimes happens that expenses at a port of refuge, Loss or ex- 
 which would be general average, can be avoided by adopting a stituted for 
 course which will be more economical, on the whole, but which Ke^expeodi-" 
 will involve a loss or expenditure that would not ordinarily be *"™- 
 contributed to. For example, the expenses involved in discharging 
 the cargo, keeping it while the ship is repaired,-and reloading it 
 may be avoided by at once transhipping and forwarding it in 
 another vessel ; with the result that the shipowner may lose all or 
 part of his freight. Or, to avoid delay and expense during repairs 
 at the port of refuge, the ship may be towed thence to her destina- 
 tion, the shipowner thereby incurring the extra expense of the tug. 
 
 In these cases, and in some others (e), average adjusters are in 
 
 (a) See mfra, ss. 418, 419. towage shall be divided in proportion 
 
 (S) 1 Sprague (U. S.), 17 (1842). *° ^"^^ saving of expense thereby oooa- 
 
 {e) 14 Allen (Mass.), 261(1867). ' ^°''^ *° *^^ '^^'^^^ '^'^^^ *" ^^^ 
 
 adventure." 
 (^ And see Bond v. The Superb, 1 „ ^hat if a ship be in a port of refuge, 
 
 Wallace, Junior, 355 ; Pars. M. Ins. II. at which it is practicable to repair her 
 
 so as to enable her to carry on the 
 
 232. 
 
 («) Lowndes (4th)i pp. 229 — 233. The whole cargo, but in order to save ex- 
 following rules of practice have been pense the cargo, or a portion of it, be 
 adopted by the Association of Average transhipped by another vessel, or other- 
 Adjusters : ' ' That if a ship be in a port wise forwarded, then the cost of such 
 of refuge, and if, in order to save ex- transhipment up to the, amount of ex- 
 pense, she be towed thence to some pense saved shall be divided in proper- 
 other port, then the extra cost of such tiou to the saving of expense thereby 
 
 C. — 0. H H 
 
466 THE VOYAGE. 
 
 Sect. 414. the habit of apportioning the suhstituted loss or expense among 
 the different interests in the adventure in proportion to the 
 expenses saved to them respectively. It is, perhaps, not necessary 
 to discuss this practice here, as such a discussion would he almost 
 entirely speculative. But it may be observed that the Courts 
 generally look at the facts as they are, not as they might have 
 been. If no agreement among the persons concerned to bear a 
 substituted loss or expense can be implied, either from their 
 conduct or from the existence of some established and well-known 
 usage, judges wiU not readUy hold them bound to pay merely 
 because they have received a benefit by the substitution. 
 
 In Wilson v. Bank of Victoria (/), a sailing ship with auxiliary 
 screw, having lost her powers of sailing by an accident, took in 
 extra coal at a port of refuge and steamed all the way to her 
 destination, instead of stopping and repairing. The shipowners 
 sought to charge the extra cost for coals as a general average 
 disbursement, on the ground that expenses at the port of refuge 
 had thereby been avoided. This was not allowed. Blackburn, J., 
 said (g) : " We think that the expenses actually incurred must be 
 apportioned according to the facts that actually happened, and 
 that there is no legal principle on which they can be apportioned 
 according to what might have been the facts if a different course 
 had been pursued. No case or authority was cited to support the 
 principle contended for, nor are we aware of any. If in any 
 particular trade it has been found convenient to act on this 
 principle, and that has been done to such an extent as to create a 
 
 occasioned to the several parties to the order to save expenses, either she is 
 
 adventure." towed thence to some other port or place 
 
 A suhseqnent rule points out that the of repair or to her destination, or the 
 saving of expense meant "is limited cargo or a portion of it is transhipped 
 to a saving or reduction of the actual by another ship, or otherwise forwarded, 
 outlay, inoludmg the crew's wages and then the extra cost of such towage, 
 provisions, if any would have been in- transhipment, and forwarding, or any 
 curred at the port of refuge if the vessel of them (up to the amount of the extra 
 had been repaired there, and does not expense saved), shaU be payable by the 
 include supposed losses or expenses, several parties to the adventure in pro- 
 such as interest, loss of market, de- portion to the extraordinary expense 
 murrage, or assumed damage by dis- saved." Under the Danish Code, 1892, 
 charging." s. Igg (7)_ tj^^ ^^^^ ^^ temporary repaii's 
 
 Under York- Antwerp Rules, X. (d), by which general average expenditure 
 
 "If «, ship under average be in a is saved is treated in the same way. 
 port or place at which it is practicable 
 
 to repair her so as to enable her to '•' ' ' ^" ■"• 2"^- 
 
 carry on the whole cargo, and if, in (y) At p. 212. 
 
GENERAL AVERAGE. 467 
 
 custom, tacitly making it part of the contract that this shall be the Sect. 414. 
 
 principle applied, or if the parties to a charter party stipulate that ~ ' 
 
 it shall he so, and, hy words of reference to the charter party 
 
 in the bills of lading and the policies of insurance, make it part 
 
 of the contract affecting everyone, the case would be different ; 
 
 but as it is, the principle proposed is not, we think, tenable at 
 
 law "(A). 
 
 Contribution. 
 
 415. We have next to consider by whom, and in what proper- Principle of 
 tions, the contributions to general average sacrifices and expenditures 
 
 are to be made ; also how the amounts to be made good are to be 
 estimated. 
 
 The principle is, that those who have received benefit must 
 contribute ; each in proportion to the benefit he has received. 
 " The whole law on the subject is founded on the principle that 
 the loss to the individual whose goods are sacrificed for the benefit 
 of the rest is to be compensated according to the loss sustained on 
 the one hand, and the benefit derived on the other " («'). 
 
 But the question arises as to what is the point of time at which 
 the extent of the losses and the amounts of the benefits are to be 
 ascertained. Until that is fixed we cannot determine how much is 
 to be contributed to, nor who are to contribute, nor upon what 
 values they are to do so. 
 
 In this respect a distinction has been sometimes drawn between 
 a general average sacrifice and a general average expenditure. 
 And there is this marked difference between them, that whereas 
 in the case of a sacrifice something was given for the rest which 
 itself had stiU to share the risks of the voyage, in the case of an 
 expenditure that which was given was itself independent of those 
 risks. 
 
 A further case, which seems to be intermediate between these, 
 is that of a sacrifice which has been made good by an expenditure, 
 as where a mast has been cut away and then replaced before the 
 end of the voyage. 
 
 416. We will consider first the case of a sacrifice of cargo, or Saorifloes 
 
 ship's material, leaving expenditures to be discussed hereafter. completion of 
 
 voyage. 
 (A) See Schuster v. Fletcher, 3 Q. B. (i) Per Bovill, C. J., Fletcher v. 
 
 D. 418. Of. Lee v. Southern Insurance Alexander, L. R., 3 C. P. 375, at p. 
 Co., L. E., 5 C. P. 397. 382. 
 
 H H 2 
 
468 
 
 THE VOYAGE. 
 
 Sect. 416. 
 
 Owner of 
 
 property 
 
 sacrificed 
 
 treated as 
 
 contributing 
 
 ■with the 
 
 rest. 
 
 The time for adjusting the extent of such a sacrifice, and the 
 contributions to it, is when the ship and cargo have completed the 
 voyage on which they were engaged when the sacrifice occurred ; 
 or, if the voyage be not completed, then when it has been 
 definitely brought to an end. It is. then first possible to ascertain 
 the results of the sacrifice to the co-adventurers. All those 
 interests which were at risk when that was made, and which have 
 continued safe down to the arrival at the destination, or other place 
 at which the voyage is terminated, must contribute in proportion 
 to their values at that place; while those that have been lost, 
 whether before or since the sacrifice, are exempt, unless their loss, 
 also, is to be treated as a general average loss. If ship and cargo 
 have all been lost there is no contribution {It} . 
 
 If part of the cargo has been sold for the owner's benefit at an 
 intermediate port after the sacrifice, but before the time of adjust- 
 ing the contributions, its owners should still contribute iu respect 
 of the benefit they have thus realized, for to that extent the object 
 of the sacrifice in their favour has been attaiiied {I) . 
 
 So, also, if goods have been landed and left behind at any point 
 of the voyage. 
 
 But in these cases the goods ought not to contribute to any 
 general average loss which may have occurred on the voyage after 
 they were in safety, for they have ceased to be at risk, and the 
 sacrifice or expenditure was not for their benefit {m). Unless, 
 indeed, their owner has a claim for contribution in respect of them, 
 in which case he wiU contribute in respect of that, as shown below. 
 
 417. The owner of the sacrificed property is not to reap a benefit 
 from the fact that his property instead of another's was selected 
 for the purpose. The object is to put him on a footing of equahty 
 with those whose property was not selected for sacrifice. Thus the 
 whole value of what was sacrificed is not to be replaced, but only 
 so much as will put the owner in as good a position as if, instead 
 
 (Jc) See Pletoher v. Alexander, L. E., 
 3 C. P. 376 ; Dickenson*. Jardine, L. E., 
 3 C. P. 39 ; Arn. (3rd), 803, 812 ; Macl. 
 683. In the United States it has been 
 laid down that the right to contribution 
 depends only upon whether the pro- 
 perty has been saved from the peril 
 which gave occasion for the sacrifice ; 
 Pars. M. Ins. II. 276 ; Soudder v. Brad- 
 
 ford, 14 Pick. 13 ; Lewis v. Williams, 1 
 Hall, 430, there cited. 
 
 (0 See HiU v. Wilson, 4 0. P. D. 
 329 ; Benecke, 300. 
 
 ()«) A fortiori, they do not contribute 
 to a subsequent accidental loss of the 
 ship : Sheppard v. Wright, Show. Pari. 
 C. 18. 
 
GENERAL AVERAGE. 469 
 
 of his property, other of equal value had been destroyed. This is Sect. 417. 
 effected in the calculation by making the owner of the sacrificed 
 property a party to the contribution in respect of the amount to be 
 contributed to («). To that extent he has benefited by the act of " 
 sacrifice. Therefore, on the principle that those must compensate 
 ■who benefit, he must bear that proportionate share. 
 
 Moreover, if there have been several general average acts during 
 the voyage, each owner of a sacrificed interest is made to contribute 
 to all the sacrifices, in whatever order of time they have occurred ; 
 for each is to be presumed to have run all the risks of the voyage. 
 Thus, if A. was sacrificed first and B. afterwards, B. contributes 
 to A. because it was at risk when A. was sacrificed, and the con- 
 tributions to be made to B. have since been secured to him. On 
 the other hand, A. contributes to B. because the contributions to 
 A. were at risk when B. was sacrificed, and have been since 
 secured. 
 
 In the same way, if general average expenses have been incurred, 
 the owner of property sacrificed ought, in the calculation, to be 
 made to contribute to the expenses, whether they were incurred 
 before or after the sacrifice, if the property, but for that, would 
 have been at risk at the time of the expenditure. 
 
 418. Again, the amount to be made good, and the contributing Values to be 
 interests, are valued at the time and place of the termination of at the end of 
 the voyage. The values are, therefore, subject to any loss or ™y^8'®* 
 damage which may have occurred ; and in order to put all on an 
 equal footing, an estimate has to be made of the accidental loss or 
 damage which would probably have occurred to the property 
 sacrificed if it had remained in the ship and been subject to the 
 vicissitudes of the voyage. 
 
 In Eletcher v. Alexander (o), a vessel loaded with salt, on a 
 voyage from Liverpool to Calcutta, struck on a bank on the coast 
 of Ireland. To float her off about 1,000 tons of the salt were 
 jettisoned, and she was brought back to Liverpool with the re- 
 mainder, about 960 tons. This was damaged by water which had 
 got through the ship's bottom, except as to 100 tons which were 
 still sound. The voyage was broken up at Liverpool ; and the 
 question was as to the value to be put on the jettisoned salt for the 
 purpose of receiving contribution. It was held that Liverpool was 
 («) Ain. (5th), 854 ; Lowndes (4th), 38. (o) L. R., 3 C. P. 375, 
 
470 THE VOYAGE. 
 
 Sect. 418. the place at which the adjustment must be made, and that the 
 value to be put on the jettisoned salt was that which it would have 
 had there. Also, that regard must be had to the probability that 
 if it had remained in the ship it would have been damaged. 
 
 Bovill, C. J., said {p) : " It is clear that the value of the goods 
 at the time of the jettison is not to be taken as the test, because, if 
 the whole adventure is afterwards brought to an end by the loss of 
 ship and cargo, there wiU be no contribution at all. The rules as 
 to contribution and adjustment seem to me to depend upon the 
 probable state of things at, and to have reference to, the time and 
 place of adjustment, that is to say, when and where the adjustment 
 ought to take place. If the goods jettisoned were ia such a con- 
 dition that they would in all probability have arrived undamaged 
 at the place of adjustment, I see no reason why their value at the 
 time of the jettison should not be taken. It may be that they 
 were packed in eases impermeable to water, so that they were not 
 likely to receive damage from anything which might occur during 
 the voyage. On the other hand, it may be that, if they had not 
 been thrown overboard, they would not in all probability have 
 arrived at their destination in a sound or saleable condition. In 
 the latter case, what would be the loss of the person whose goods 
 were thrown overboard ? Clearly not ,the value of the goods in a 
 sound state. In the present case, it is almost a matter of certainty 
 that, if the salt which was jettisoned had remained on board, it 
 could not have reached the port of adjustment, Liverpool, in a 
 sound state. What, then, is the loss which the owner has sustained 
 by the jettison ? The only loss I can suggest is the value of the 
 salt if it had arrived in an unsound state " [q). 
 
 {p) At p. 383. age, the result being the same as if a 
 [q] Lowndes (3rd ed.), 19, described smaller sum were made good for the first 
 the practice of English adjusters as f ol- sacrifice, in consideration of the property 
 lows : " The property sacrificed istreated then destroyed having escaped the second 
 as if it had remained on shipboard ex- loss. If, by subsequent accident, a por- 
 posed to the same risks as the remainder. tion of the property is destroyed, or the 
 Hence if all is subsequently lost, there whole is damaged, the alLowanoe in 
 is no contribution, because the article general average made in respect of the 
 sacrificed would have been lost with the previous sacrifice is reduced proportion- 
 remainder. If, by reason of an accident ately ; provided, that is, the facts of the 
 subsequent to the first sacrifice, it be- case reasonably raise the inference that 
 comes necessary to make a second sacri- the property first sacrificed, had it re- 
 fice, the property sacrificed at first, mained in the ship, would have been 
 though not on board, is brought in as a damaged or partially destroyed." Of. 
 contributor to this second general aver- Benecke, 290. 
 
GENERAL AVERAGE. 471 
 
 419. Where the ■ contribution is in respect of damage done to Sect. 419. 
 goods through some general average act, the amount to be made Estimate of 
 good is in the same way to be estimated with reference to the goods, 
 incidents of the voyage subsequent to the damage. The actual 
 
 amount of damage is shown by the resulting depreciation in value 
 at the place of adjustment. But from this should be deducted any 
 portion of the damage which would probably have been sustained 
 before arrival, had it not already been suffered by the sacrifice. 
 Thus, as we have seen (r), if goods be injured by exposure in 
 lighters for the general safety, but yet by being there are saved 
 from a greater disaster, which would have befallen them had they 
 remained on board, there should be no contribution to the injury (s). 
 
 Goods which have been damaged contribute on their value as 
 discharged at the place of adjustment ; but if they are to receive 
 general average contributions in respect of any part of the damage, 
 they also contribute on the amount of that part, in addition. 
 
 Both for contributing, and for beiug contributed to, the values Valuation of 
 of the goods are estimated upon the market prices, at the place of 
 adjustment, on the date of the discharge. Freight, if any is 
 payable there, and the usual expenses of landing and sale are 
 deducted : but no deduction is made for merchants' commissions 
 on selHng, nor for insurance premiums {t). 
 
 Where, by entering a port of refuge in Brazil it became (by 
 law) impossible to land cattle at their intended destination, 
 Deptford, and they were in consequence landed at Antwerp, where 
 their market value was much smaller, the depreciation was allowed 
 in general average (m). 
 
 420. It is only the property at stake, and the freights which No oontribu- 
 depend upon its safety, that contribute. Nothing is paid in respect lives. 
 
 of lives that may have been saved (»). 
 
 Moreover, even as to the property, there are some established Nor for pro- 
 exceptions. Thus, provisions do not contribute, although shipped Sg°^pareT'' 
 for consumption by passengers («). Nor do the wearing apparel, ^°- 
 
 (r) Supra, s. 373. As to freight, infra, ss. 433, 439, 440. 
 
 («) Beneoke, p. 306, said that tte goods («) Anglo-Argentine, &c. Agency ■!;. 
 
 put out in barges should contribute to a Temperley Shipping Co., (1899) 2 Q. B. 
 
 subsequent general average loss on the 403. 
 
 ship : this seems doubtful, except as re- {v) Abbott (5th), 356 ; (13th), 657. 
 
 gards any claim for contribution in re- (sc) Brown v. Stapyleton, 4 Bing. 119. 
 
 speot of those goods. The claim there was for contribution in 
 
 {t) Benecke, 301 ; Lowndes (4th), 307. respect of provisions unoousumed at the 
 
472 THE VOYAGE. 
 
 Sect. 420. jewels or other tilings belonging to the passengers or crew, and 
 taken on hoard for their private use, and not for traffic {y). 
 
 In Brown v Stapyleton (z). Park, J., said : " The rule is that aU 
 merchandise put on hoard for the purpose of traffic is liable to 
 be brought into contribution, and in merchandise is included all 
 property of great value, unless attached to the persons of the pas- 
 sengers. But property so attached does not contribute ; and all 
 the writers go on to say that the owners are not liable to contribute 
 for the victuals and ammunition of the ship." 
 
 The obligation to contribute, and the right to receive contribu- 
 tions, are not necessarily correlative. Cargo stowed on deck 
 contributes with the rest; even though it would not have been 
 entitled to contribution if itself sacrificed {a). On the other hand, 
 contribution is commonly made to a jettison of passengers' pro- 
 visions, although, as we have just seen, they do not themselves 
 contribute. And so, it would seem, contribution should be made 
 to passengers' luggage jettisoned, or damaged in putting out a 
 fire, although such goods do not generally contribute to sacrifices 
 of other property (6). 
 
 Sacrifice of ^21. The usual measure of a sacrifice of ship, or ship's stores or 
 
 ship's mate- materials, that is to say, the amount to be made good in respect of 
 
 nal ; amount ' •' ' o jr 
 
 to be made it, is the cost of repairing or replacing the thing sacrificed ; subject 
 good. 
 
 to certain deductions fixed by custom to meet the advantage to the 
 
 shipowner of having new work and materials for old (c). And the 
 cost to be taken is that at the place at which the work is reason- 
 ably done. So that if it is reasonably necessary to repair at a 
 port of refuge, the cost of doing so will be allowed, although that 
 may be an exceptionally expensive place for fehe purpose. 
 
 Where the ship is not repaired the measure of the sacrifice is 
 more difficult. If the whole damage suffered, on account of which 
 she is condemned, is general average damage, the measure of the 
 loss will be the value of the ship when undamaged, less the 
 proceeds of the wreck. 
 
 time of the loss. The rule does not and personal effects, not shipped under 
 
 seem properly to apply to provisions a bill of lading, shall not contribute to 
 
 wHoh remain unconsumed at the end of general average." 
 
 the voyage: Lowndes (4th), 326. Cf. (z) 4 Bing. 119. 
 
 Phill. ss. 139i, 1399 ; Am. (6tb), 891. («) Am. (6th),' 810 ; PhiU. s. 1396 ; 
 
 {y) Abbott (5th), 356 ; (13th), 657 ; Lowndes (3rd), 32 ; supra, s. 379. 
 
 Lowndes (4th), 325. Under York-Ant- (i) PhiU. s. 1394 ; Benecke, 308. 
 
 werp Rule XVII,, "passengers luggage (c) See ^os;, b. 422, 
 
GENERAL AVERAGE. 473 
 
 If, however, the condemnation is the result of damage which Sect. 421 
 has teen partly hy sacrifice, and partly not attributable to sacrifice 
 (particular average), the general average loss is got by ascertain- 
 ing the difference between the value of the ship when undamaged 
 and the estimated cost of repairing the particular average damage, 
 and then deducting from that the value of the wreck. 
 
 In Henderson v. Shankland {d), a ship encountered a storm 
 which damaged her, and put her on her beam ends. In order to 
 right her the mainmast and foremast were cut away. She was 
 towed into Calcutta, and there condemned and sold as a construc- 
 tive total loss. The Court of Appeal, afi&rming Mathew, J. (e), 
 laid down the rule for ascertaining the general average loss as 
 above stated. 
 
 The general average sacrifice there took place after the accidental 
 damage had occurred ; but the same rule applies where the order 
 is reversed. For in estimating the amount to be made good in 
 respect of a sacrifice of ship, deduction must be made for any 
 particular average damage which the ship would probably have 
 sustained during the subsequent part of the voyage if that sacrifice 
 had not been made (/). 
 
 422. The deductions made for new work and materials, in Deductions 
 estimating the amount to be made good to the shipowner, have 
 been fixed by long usage ; and the convenience of fixed rules on 
 the subject is obvious, though they can only work rough justice. 
 
 The rule has been to deduct one-third of the actual cost of 
 repairs and renewals, including both labour and materials (g). But 
 no deductions are made where perfectly new materials, such as 
 ropes or sails, have been sacrificed ; nor from the value of anchors, 
 or of provisions, or other stores which do not depreciate ; and one- 
 sixth only is deducted from the cost of new chain cables (h). 
 
 A further exception is, that no deduction is made from repairs 
 when the ship is on her first voyage ; and this includes the whole 
 of her first voyage outwards and homewards. For example, where 
 a vessel had first sailed outwards under a charter party to Van 
 Diemen's Land, and had thence gone to Madras in ballast, and 
 
 {d) Hendersomi. Shankland, (1896) 1 Corporation, Ry. & M. 378. But not 
 
 Q. B. 525 ; Lowndes (ith), 303. from incidental expenses, suoli as those 
 
 («) 1 Oomm. Ca. 252 ; 333. of conveying materials for repair to the 
 
 (/) See above, s. 418. ship : Lowndes (4th), 299 (n). 
 
 (g) See Aitohison ii.Lohre, 4 A. C. 765, (A) Lowndes (4th), 298. As to metal 
 
 p. 762 ; Poingdestre v. Royal Exchange sheathing, ibid. 
 
474 
 
 THE VOYAGE. 
 
 Sect. 428. there taken in cargo for England, a jury found that she was still 
 on her first voyage ; so that underwriters could not claim the 
 deduction of one-third new for old (i) . Presumahly the same is 
 true in relation to general average contribution. But the rule of 
 deduction appears to apply whether the damage done was to a part 
 of the ship newly replaced, or to old work, if she was not on her 
 first voyage (k). 
 
 In Henderson t\ Shankland (l), where the ship had been con- 
 demned in consequence of general and particular average damage, 
 it was held that the general average loss was to be calculated by 
 deducting the estimated cost of repairing the particular average 
 from the undamaged value of the ship. And it was further held 
 tliat in making that calculation no deduction of thirds should be 
 made from the estimated cost of the particular average repairs (m). 
 Having regard to the changes in the construction of ships, and 
 especially to the prevalent use of iron and steel, the one-third rule 
 is no longer considered a fair one for general application. In 
 policies of insurance it is got rid of by express clauses ; and it is not 
 followed in adjustments of general average, except in relation to 
 wooden ships (re) . 
 
 (t) Pirie v. Steele, 2 M. & Rob. 49 ; 
 Fenwick v. Robinson, 3 C. & P. 323. 
 
 (k) See Poingdestre v. Royal Ex- 
 change Corporation, Ry. & M. 378. But 
 the practice as to this appears not to be 
 uniform. See Lowndes (4th), 300. 
 
 {!) (1896) 1 Q. B. 525. 
 
 {m) It is submitted that the decision 
 on this latter point was mistaken. The 
 endeavour was to ascertain what the 
 ship was worth after the particular 
 average damage and before the general 
 average sacrifice. For this purpose the 
 vmdamaged value of the ship was taken 
 as the basis of the calculation. But the 
 particular average repairs, if done, 
 would have added to that original value. 
 That is the theory of the custom to de- 
 duct thirds. Thus the cost of the par- 
 ticular average repairs was not a 
 measure of the depreciation from the 
 undamaged value, but a measure of the 
 depreciation from the repaired value. 
 Hence, either the repaired value should 
 have been taken as the basis of the 
 calculation, or the deduction of thirds 
 should have been made from the esti- 
 
 mated particular average repairs. 
 
 As a reason against this view , the Court 
 of Appeal referred to the rule that no 
 deduction of thirds is made in estimat- 
 ing whether a loss is a constructive total 
 loss, and authorities on that point were 
 cited. But in considering whether a 
 ship is a constructive total loss the 
 question is whether the expense of re- 
 pairing will exceed the value ivhen re- 
 paired. No comparison is made with 
 the value of the ship when undamaged. 
 The cases are therefore quite different. 
 
 The other reason given was that the 
 repairs had not been done ; so that no 
 one got any benefit from them. But 
 the calculation to be made was simply 
 of the ship's value at a particular point 
 of time, not of the gain or loss to any 
 one by repairing. 
 
 («) See the deductions made under 
 York-Antwerp Rules xiii., App. C. 
 The scale of deductions ; adopted by 
 the Rules of Practice of the Association 
 of Average Adjusters, in cases to which 
 the York- Antwerp Rules do not apply, 
 is closely similar. 
 
GENERAL AVERAGE. 475 
 
 423. The value of the ship for purposes of oontrihution must be Sect. 423. 
 taken upon the basis of her condition on arrival at the place of Valuation of 
 adjustment, before any repairs have been done there (o). For that tribution. 
 is the highest measure of the benefit derived by the shipowner from 
 the saving of the ship itself. And if any repairs of permanent 
 value have been done to the ship since the sacrifice, it would seem 
 that the value of those repairs, on arrival, ought to be deducted. 
 
 On the other hand, the valuation must include the amoimt of 
 any general average damage to the ship which is to be contributed 
 to ; just as the owner of jettisoned goods is treated in the calcula- 
 tion as a contributor in respect of the amount to be made good 
 to him for them. The general average damage to the ship has 
 been saved to the shipowner. 
 
 But a question of difficulty sometimes arises as to the amount 
 in respect of which the shipowner should contribute when damage 
 resulting from a general average act has been repaired on the 
 voyage. In that case the whole cost of the repairs properly 
 incurred, less deductions, is a general average loss, being the con- 
 sequence of the general average act ; although the amount may be 
 far greater than the cost of doing the work at the destination 
 would be. Ought, then, the shipowner to contribute in respect of 
 the whole of that cost in all cases ? 
 
 It seems not. The principle is that he should contribute with 
 the others upon what has been saved to him by the sacrifice, in- 
 cluding the right to have the damage made good to him at the 
 destination ; or, it may be put, that he should contribute to the loss 
 in the same proportion as he would have done had the property of 
 someone else been sacrificed instead. If a mast was cut away, that 
 act saved for him the right to have such a mast as was cut away 
 restored to him at the end of the voyage, subject to intermediate 
 risks. The value of that right is represented by the lowest cost of 
 making good the mast under the conditions existing at the port of 
 destination ; he ought not, therefore, to be required to contribute 
 in respect of the extra cost of replacing the mast at the port of 
 refuge. That has been of no permanent benefit to him. 
 
 424. As we have seen, if the voyage is not completed, but is Wherevoyage 
 
 troke 
 interi 
 port. 
 
 abandoned at a port of refuge, the time and place of abandoning intermediate 
 
 (o) Lo-wndes (4th), 305. As to valuing a ship, ibid. ; Am. (3rd), 813 ; Benecke, 
 310. 
 
476 
 
 THE VOYAGE. 
 
 Sect. 424. 
 
 Where the 
 voyage is 
 several 
 destiaations. 
 
 it determine the adjustment of the contributions. The values of 
 the different interests should he calculated as at that place {p). 
 
 Whether the voyage has been broken up there or not is a 
 question of fact. In Fletcher ®. Alexander (p) the remainder of 
 the cargo was sold at the port into which it was brought, and the 
 ship, after repairing there, took in a new cargo for her former 
 destination. It was considered that the original voyage had ended. 
 In Mavro v. Ocean Marine Insurance Co. (q) part of the cargo (of 
 wheat) was sold at a port of refuge, and the remaiader was shipped 
 to its destiaation in another vessel. The repairs of the ship took 
 two months. It was held that the voyage was properly broken up 
 at the port. 
 
 On the other hand, in Hill v. Wilson (r), The Virago had sailed 
 with a general cargo of 1,893 tons from Eiga for Hull. She 
 stranded and was towed into Copenhagen on December 9th, 1876. 
 Thirty tons had been jettisoned ; 1,643 tons were sold as damaged 
 at Copenhagen ; and of the remaiader (220 tons) part was forwarded 
 to Hull in other vessels and part (127 tons) was taken on to Hull 
 in The Virago herself. She arrived there on February 10th, 1877. 
 Lindley, J., considered that the original voyage had not in fact 
 terminated at Copenhagen, and that that was not the proper place 
 of adjustment. 
 
 425. Where the voyage is to more than one destination, with 
 cargo to be discharged at each place, the questions, where ought 
 the adjustment to take place ? and on what basis of values ? give 
 rise to many difficulties, and the matter appears to be without 
 judicial authority. 
 
 For example, let us suppose that a ship destined for Y., but 
 intended to call at X. on the way, takes in a cargo at A. which is 
 partly for X. and partly for Y., and that a general average sacrifice 
 occurs before she gets to X. : ought that to be contributed to at X. ^ 
 on the basis of values existing there, and irrespective of what may 
 happen on the subsequent voyage to Y. ? or should the subsequent 
 events of the voyage be taken into consideration to any, and what, 
 extent ? 
 
 It seems at first sight that if one final adjustment of this 
 general average must be made, that ought to be done at X., the 
 
 {p) Pletolier v. Alexander, L. E., 3 
 C. P. 375. 
 
 (?) L. E., 9 C. P. 595 ; L. E., 10 C. P. 
 4H. W 4 0. P. D. 329. 
 
GENERAL AVEEAGE. 477 
 
 first port of discharge, and should be based on the state of things Sect. 425. 
 there existing. For that is the termination of the voyage which 
 is common to all the contributors. Moreover, if the sacrifice has 
 been of goods destined for X., the loss of them by the sacrifice 
 becomes, on arrival there, an accomplished and realized fact. It 
 is then ascertained that if they had not been sacrificed they would 
 have accomplished the voyage and come safely to the hands of the 
 consignees. That loss, then, ought to be made good without 
 regard to what may happen afterwards. Otherwise the owner 
 would have been better off if cargo destined for T. had been 
 taken; and the rule that the person whose property has been 
 sacrificed should be put in as good a position ^as if another's had 
 been selected would be broken through. 
 
 On the other hand, if the goods destined for Y. are made to 
 contribute at X., the principle that contribution is to be in pro- 
 portion to the benefit received from the sacrifice may be infringed, 
 for the owners of those goods do not realize any benefit until the 
 goods have arrived at T. ; or have been landed and given up, or 
 sold, at an intermediate port. Shippers to T. have no interest in 
 the voyage to X. except as part of the journey to T. If, then, a 
 loss of cargo occurs between X. and Y., and the owners of it have 
 been required to contribute at X., they will have done so without 
 having had a corresponding benefit from the sacrifice. 
 
 The position of things at X., so far as concerns the goods for Y., 
 is the same as though X. were a port of refuge, into which the 
 ship had put after a storm in which some of the cargo had been 
 jettisoned. We have seen that in such a case no contribution 
 becomes payable by the remaining cargo, unless some of it gets to 
 its destination ; and that the contributions are not upon the. values 
 at the port of refuge, but on those at the destination (s). 
 
 Further, however the case may stand as between cargo for X. 
 and cargo for Y., it seems clear that the owners of cargo for Y. 
 ought not, as among themselves, to have to contribute on any 
 other basis than that of the values on arrival at Y. 
 
 But the difficulty of making X. the place of adjustment is still 
 
 («) It may be suggested, that the risk contributing values at X., to represent 
 
 of losing the benefit for which the cargo the risk between S. and T. would 
 
 f or T. would have to pay, atX., might equalize matters over a long series of 
 
 be insured , but the cost of insuring voyages ; but that might be quite un- 
 
 would be the same burden, only in satisfactory to the shippers on any par- 
 
 another shape. A deduction from the ticular voyage. 
 
478 THE VOYAGE. 
 
 Sect. 4S5. more marked if we suppose the goods sacrificed, before reaoliing X., 
 to have been goods destined for Y. In that case there would not 
 at that place have been any actual realized loss to the owner by 
 the sacrifice. The goods, had they not been sacrificed, would still 
 have been at risk. If a loss should occur between X. and T. which 
 would have iuvolved them, so that they would not have arrived, 
 they would, in effect, never have been sacrificed at all. It there- 
 fore appears that there should not be any contribution to those 
 goods, unless they would have reached Y., or some destination at 
 which the owners would have received them ; and at any rate the 
 other owners of goods for Y. should not contribute unless that 
 would have happened. 
 
 It may be urged, however, that the liability of the owners of 
 cargo for X. ought not to be increased by what may happen 
 between X. and Y., when they have ceased to be concerned in the 
 adventure, as it would be if the cargo for Y. only contributed on 
 its diminished value at that place. Also that their liability to 
 contribute to a sacrifice of goods destined for Y. ought not to be 
 diminished by the happening of a total loss between X. and Y., 
 seeing that they have actually realized the full benefit of the 
 sacrifice. 
 
 But neither of these objections is convincing. Shippers for X. 
 are not entitled to regard all their co-adventurers as though they 
 were also shippers for X. Nor, upon arrival at X., can they claim 
 that the only difference between their position and that of shippers 
 for Y. is that the values of the latter's interests are subject to a 
 deduction to represent the probable risk of loss between X. and Y. 
 The difference is far broader ; it is that between owners of goods 
 which .have and have not accomplished the adventure (t). As 
 between themselves, indeed, the owners of cargo arrived at X. 
 must contribute in the same proportions, whatever happens after- 
 wards; but they cannot claim to have their co-adventurers as 
 co-contributors until they become liable as such according to the 
 principles of the law. 
 
 As to the other objection, it is not enough that the owners of 
 
 cargo for X. have received a benefit, and therefore should con- 
 
 (;;) The case might be different if the Y. That, for example, -would seem to 
 
 subsequent voyage, from X. to Y., were be the case where a ship sailing from 
 
 substantially a new voyage ; so that X. New York to Liverpool brings goods 
 
 could not fairly be considered to be which she is afterwards to carry on to 
 
 merely a port of call on the voyage to China. 
 
GENERAL AVERAGE. 479 
 
 tribute. For if the sacrifice was of goods for Y., and if those Sect. 425. 
 goods would never have arrived at T., or at any other destination, 
 there is no loss to contribute to. 
 
 426. There appears, then, to be a conflict between the principle SembU, the 
 that the owner of goods sacrificed should be put into the same should be at 
 position as if the goods of another had been taken, and the other yoy^e. " 
 principle that contribution should be in proportion to benefit 
 received. In choosing T. as the place of adjustment, the former 
 might be infringed ; in choosing X. the latter might be. 
 
 On the whole, it seems to be of chief importance to maintain the 
 rule that contribution should be in proportion to benefit. And if 
 that is so, the rule should be that the adjustment should take place 
 at the end of the voyage, on the basis of the arrived values as then 
 ascertained (m). 
 
 Should the ship and cargo be lost between X. and Y., the ulti- 
 mate port, contribution to cargo for X., which may have been 
 sacrificed before getting there, should take place among the owners 
 of cargo landed at X. alone. 
 
 Any general average loss which may occur between X. and Y. 
 should not, of course, be contributed to by the cargo for X. And, 
 on the other hand, any cargo taken in at X. for Y. should con- 
 tribute to that loss, but not to any which may have occurred prior 
 to the loading of it at X. 
 
 427. The question of the place at which the adjustment is to be Law of place 
 made is important in another way ; for apart from agreement to Adjustment, 
 the contrary, the law of that place determines the manner of adjust- 
 ment. That is so whether the adjustment is made at the contem- 
 plated port of discharge or, according to the events of the voyage, 
 at some other place {x) . 
 
 But a shipowner will not be allowed to affect the rules of adjust- 
 ment by terminating the voyage unnecessarily at a port of refuge. 
 Such a termination must have been " by agreement or by necessity, 
 i.e., the occurrence of circumstances beyond the control of the 
 
 (m) But see Lowndes (4th), 273. This [x) Simonds v. White, 2 B. & C. 805 ; 
 
 may give rise to more practical diffi- Mavro v. Ocean Marine Ins. Co., L. K., 
 
 culties than the rule that the adjust- 9 C. P. 695 ; L. R., 10 0. P. 414 ; Pars, 
 
 ment should be at the first port. But M. Ins. II. 360. The shipowner is not 
 
 it is, I believe, at present usual to have under an obligation to have an adjust- 
 
 the adjustment made at the end of the ment prepared by an average stater at 
 
 voyage ; so that the practical difaculties the portof discharge : Wavertree, &c. Co. 
 
 are probably not insurmountable. v. Love, (1897) A. C. 373. 
 
480 THE VOYAGE. 
 
 Sect. 427. defendants, and such as rendered the completion of the voyage on 
 the terms originally agreed upon physically impossible, or so clearly 
 unreasonable as to be impossible in a business point of view " («/). 
 
 Contribution 428. The case of a general average expenditure differs in some 
 
 turediOTildbe respects from that of a sacrifice of part of the adventure. The 
 
 ^i"o1l-oyage- ™o^ey which has been expended did not form part of that, and 
 
 was not subject to its risks. Eepayment of it should therefore not 
 
 be contingent upon those risks. 
 
 Hence it has been repeatedly laid down by writers of authority, 
 both in England and in the United States, that the rule as to con- 
 tribution to an expenditure is different from that as to a sacrifice." 
 It is said that all the parties interested in the adventure become, 
 there and then, as soon as the advance is made, liable to repay 
 their shares, and that those shares should be in proportion to the 
 values of the property at the time of the expenditure, without 
 regard to subsequent losses or deterioration (s). 
 
 There has not, however, been any decision on the point, and 
 adjusters in practice do not recognize the supposed distinction. 
 They take the state of things at the termination of the adventure 
 as the basis for contribution, both with regard to sacrifices and 
 expenditures (a). That course is doubtless the most convenient. 
 Is it also consistent with principle? 
 
 If, after general average disbursements have been made, a total 
 loss of ship and cargo occurs, it seems clear that the disbursements 
 should not be borne by the shipowner entirely ; or if the value of 
 what is ultimately saved of the adventure is less than the expendi- 
 ture, it is equally clear that the excess of expenditure should not 
 fall wholly either on the shipowner, or on the owners of what has 
 
 («/) Per Lindley, J., Hill ». 'Wilson, i hagen Sea Assurance Co., 1850, b. 49, 
 
 C. P. D. 329. And see Mavro v. Ocean set out in Lowndes, p. 394 ; and it 
 
 Marine Ins. Co., uU supra. appears that even tlie Danieh adjusters 
 
 (z) Benecke, 298 ; Am. (3rd), 802 ; do not act upon the distinction, though 
 
 Maol. 685; Lowndes (3rd), 177 ; Pars. they recognize the liability to contribute 
 
 M. Ins. II. 295 ; PhiU. Ins. s. 1355. to expenditures in the event of a total 
 
 But a further distinction again is some- loss : ibid. 397. This is also recognized 
 
 times drawn where the funds are raised by English adjusters ; and ^by some 
 
 by bottomry: PhUl. Ins. o. 1356. foreign codes, e.g., the Dutch, Bk. 2, 
 
 {a) Lo-wndes (3rd), 167. The same tit. 2, s. 738 : ibid.ZZI; andthePortu- 
 
 praotioe appears to be followed in some guese, tit. 15, b. 1852 : ibid. 341. The 
 
 parts at least of the United States : ibid. Tork -Antwerp Rules, XVII. make 
 
 284 (n.). None of the foreign codes pre- the values at the termination of the 
 
 scribe a different rule for expenditure, adventure the basis of contribution 
 
 except the Danish charter to the Copen- without distinction. 
 
GENEEAL AVERAGE. 481 
 
 been saved. But it does not, therefore, foUo-w that in all cases the Sect. 428. 
 contribution to general average dishui-sements should he by the 
 different interests as they existed at the place where the expenditure 
 was made, and in proportion to their values at that time. 
 
 The view that that ought to be so seems to depend upon the 
 assumption that an indebtedness at once arises when the disburse- 
 ment has been made, and that the debt of each one is in proportion 
 to the value of his interest. Such a debt must depend either upon 
 a rule of law, or upon an implied agreement. There is not, 
 generally, any express authority for, or agreement to repay the 
 expenditure : the master makes it for whom it may concern. And, 
 except /or the necessity/ of making good the disbursement in the event of 
 a subsequent total loss or insufficiency of ship and cargo, there is no 
 reason for-making a rule, or implying an'agreement, in the case of 
 a disbursement, different from that which is established, or implied, 
 in the case of a jettison. 
 
 Both in the ease of a general average sacrifice and a general 
 average expenditure, the object is the immediate safety of the ship 
 and cargo. But the immediate safety does not terminate the risks 
 which the ship and cargo are to encounter together. And until 
 those have been escaped, no benefit is actually realized. It is 
 therefore established, in the case of a sacrifice, that the contributions 
 shall be in proportion to the benefits ultimately derived. The 
 reasons for this equally apply (with the one reservation) in the 
 case of an expenditure. The rule of law should therefore, if 
 possible, be the same in both cases. 
 
 Take the. extreme case of a ship which has arrived, but with all 
 her cargo damaged, and made worthless, by perUs met with after a 
 general average expenditure at a port of refuge. That expenditure 
 on the hypothesis was necessary for the safety of ship as well as 
 cargo ; and she, and she only, has reaped the benefit of it. It is 
 fairer, then, that the shipowner should bear it alone than that the 
 cargo owners should have to pay part. 
 
 429. But if both ship and cargo be lost after the expenditure Must be re- 
 has been incurred, or if what is saved be insufficient to meet it, interested at 
 then the deficiency ought in some way to be contributed to. The oase^rfsX 
 shipowner should not bear it all. And the reasonable rule seems sequent total 
 to be that those who were interested in the adventure at the time 
 of the expenditure should contribute in proportion to their interests 
 at that time. 
 
 c. — c. I I 
 
482 
 
 THE VOYAGE. 
 
 Sect. 429. There seems to be no real difficulty in tlius altering the rule to 
 he adopted according to the event. If, for example, expenses were 
 incurred in endeavouring to save a stranded ship and cargo, it is 
 scarcely doubtful that they must be borne in proportion to what 
 may have been saved (b) ; not according to the values of the pro- 
 perty as it lay. WhUe if the expenditure were fruitless, or if the 
 property saved were insufficient to meet it, it would be necessary to 
 apportion the deficiency according to the values sought to be saved; 
 or at any rate in some other way than according to values saved. 
 
 430. It has been contended that general average expenses be- 
 come due at the port of refuge by analogy to salvage (c) . Salvage 
 undoubtedly becomes payable upon all the property saved, in pro- 
 portion to the values at the place to which it was brought {d) ; and 
 no subsequent losses will remove the liabilities of the owners of the 
 several portions of it to pay their shares of the salvage. But, as 
 above pointed out(e), salvage payments and general average con- 
 tributions are distinct from one another, and this difference in the 
 time for contribution is a result of the difference between them. 
 
 The case 
 different from 
 
 Expense of 
 repairing 
 eacrifioe of 
 ship's 
 material. 
 
 43,1. It seems still more clear that, if the expenditure has been 
 incurred by the shipowner at a port of refuge in repairing general 
 average damage to the ship or ship's material, those interested in 
 the adventure do not at once become liable to repay this in propor- 
 tion to their interests. 
 
 And it is at least doubtful whether they could be required to 
 make it good upon a subsequent total loss of ship and cargo. For 
 such an expenditure, although a consequence of the general average 
 act, and so a subject for contribution ultimately, is not in itself 
 such an act. It is incurred by the shipowner in order to perform 
 his contract, and to satisfy his obligations under that. And although 
 he thus runs the risk of losing that with which he has replaced what 
 was sacrificed, he does so as an incident of his contract. 
 
 If, for instance, a mast be cut away, and replaced at a port of 
 refuge, and this new mast again be lost accidentally before the end 
 of the voyage, the only contribution is in respect of the first mast. 
 The second mast was at risk because the shipowner was bound to 
 have one in his ship. And if the expenditure upon it be looked 
 
 (J) See per Blackburn, J., Hingston 
 r. Wendt, 1 Q. B. D. 367, at p. 370. 
 
 (c) Benecke, 298 ; Lowndes (3rd), 172. 
 {d) Supra, ss. 360, 351. 
 {e) Supra, s. 394. 
 
GENERAL AVERAGE. 483 
 
 at, it may equally he said that that was at risk for the same reason. Sect. 431. 
 As, however, the need of that expenditure was the consequence of 
 the act of cutting away, it ought to be contributed to by the goods 
 if they arrive. 
 
 432. The amount of the disbursements to be contributed for Expense of 
 
 obtaining^ 
 
 must include the necessaiy cost of obtaining the money at the money. 
 place where it was required; such as commissions on advances, 
 discounts on bills, or premium and charges on a bottomry 
 bond(/). 
 
 Where goods are sold at a port of refuge to pay general average Goods sold at 
 expenses there, the sacrifice is regarded in the same way as if the foj, general ° 
 goods had been jettisoned. They are contributed for on arrival at ^g^ggf® ^^' 
 the destination ; and are considered to have been subject to the 
 vicissitudes of the voyage, as though they had remained on 
 board (g). Hence, if the ship and cargo are subsequently lost, no 
 contribution is made to the goods sold {h) . 
 
 Any loss which results from selling goods at the port of refuge, 
 instead of at the destination, becomes, on the above method, part of 
 the general average expenditure. It represents the cost of obtain- 
 ing the money. But if the goods were partly sold to defray other 
 than general average expenses, a proportionate part of the loss 
 must be apportioned io the interests for which those were in- 
 curred («'). 
 
 If the value realized at the port of refuge was higher than what 
 would have been realized at the destination, it has been held 
 that the owner of the goods may claim contribution to the higher 
 amount (k). 
 
 Freight. 
 
 433. We have still to consider the rights and liabilities of those Contribution 
 interested in the freight, to receive contributions on the one hand, payable on 
 and to contribute on the other. And first as to freight which ^^^^''y- 
 only becomes payable upon deKvery of the cargo, or upon arrival 
 
 of the ship at her destination ; so that the shipowner is at risk 
 with regard to it during the voyage ; depending in the one case 
 upon the safety of the goods, in the other upon the safety of the 
 ship. 
 
 {/) Am. (Srd), 811 ; Lowndes {ith), u) Lowndes (3rd), 154. 
 
 277. 
 (?) Am. (3rd), 805. W Richardson v. Nourse, 3 B. & Aid. 
 
 (A) Of. supra, s. 418. 237. 
 
 ii2 
 
484- THE VOYAGE. 
 
 Sect. 433. Where freight is payable on delivery of the goods, a sacrifice of 
 By sacrifice of them which prevents delivery involves a sacrifice of the freight on 
 ^°°^^- them. That must, therefore, be contributed to, if, having regard 
 
 to the other incidents of the voyage, it may be supposed that the 
 goods would otherwise have arrived. Thus a jettison, or a sale of 
 cargo to defray general average expenses, may give rise to a right 
 of contribution to the freight upon them. So where perishable 
 goods damaged by a general average sacrifice are left at an inter- 
 mediate port (l). If other goods were shipped in place of them 
 for the remainder of the voyage, the loss would of course be reduced 
 accordingly ; though the cost of shipping the substituted cargo 
 must be taken into account. 
 
 On the other hand, the freights on the goods which are ulti- 
 mately saved contribute. They are deducted, as we have seen,^ 
 from the contributing values of the goods themselves, and assessed 
 separately, so that their share may be borne by those who are 
 interested in the freight. If the cargo was carried for the ship- 
 owner freight-free, the whole contribution would be on the goods 
 themselves. 
 
 By sacrifice of 434 Again, if there has been a sacrifice of the ship, as by 
 injuries too great for repair, which prevents her from carrying the 
 goods to their destination, this generally involves a sacrifice of the 
 freight. Either the goods cannot prudently be sent on, and the 
 freight is wholly lost ; or they are transhipped and the freight is 
 earned by the shipowner at an increased cost ; or an arrangement 
 is made with the owners that they shall be delivered at an inter- 
 mediate place, on payment of a smaller freight. 
 
 In these cases, also, the actual loss of freight, taking into account 
 the expenses avoided, is a general average loss. The freight which 
 is saved, and that which is thus made good, being as usual treated 
 as contributing interests. 
 
 If the sacrifice has been by a voluntary stranding, the same is 
 true; and it would seem that the freight on goods which have 
 been lost by the stranding, as well as that lost upon the goods 
 which are saved, is a general average loss (m). 
 
 Where bill of 435. The foregoing appKes to goods carried either under a 
 Sf from^* charter party or under a bill of lading. But where there is a 
 
 charter party. 
 
 (i) Pirie v. Middle Dock Co., 44 L. T. (m) Oolumhiau Ins. Co. v. Ashby, 13 
 
 *26. Pet. 331 ; Pars. M. Ins. II. 310. 
 
GENERAL AVEEAGE. 485 
 
 charter party, and goods have been shipped under bills of lading Sect. 485. 
 which reserve a different rate of freight, a difficulty arises as to 
 ■which is the freight .to be treated as at risk. In practice this is 
 solved by regarding the bill of lading freights only. These are 
 the amounts which, as regards the merchants, must be deducted in 
 ascertaining the values of their goods for all purposes of contribu- 
 tion ; it is, therefore, more consistent to take the same amounts as 
 the basis of the shipowner's claims and liabilities. He could not 
 claim on more, although the charter rate were higher ; for if so, 
 more than the whole value of the goods would be made up to him 
 and the merchant together ; and there is no reason why he should 
 claim on less ; though if the lost bill of lading freight made good 
 to him be greater than the charter freight, he will hold the excess 
 for the charterer. 
 
 436. In each case, in order to get at the contributory value, Deduotions 
 
 . , , from freiglit 
 
 deduction must be made of the expenses of obtaining the freight, for oontribu- 
 so as to get at the net value to the shipowner of that which was at °^ ^ 
 risk at the time of the general average act and has been saved (m) ; 
 thus, from the freight received must be deducted the cost of dis- 
 charging the cargo and of collection. It is also the practice to 
 deduct the wages of the crew since the general average act, and 
 any port charges incurred subsequently to it, until all the cargo 
 has been discharged (o). It maybe doubted whether these last are 
 properly deducted, seeing that some at least of them would have 
 been incurred on account of the ship itself, even though the whole 
 cargo and freight had gone. 
 
 The value of provisions and coals, laid in before the general 
 average act and subsequently consumed, is not deducted {p). The 
 expense of these had been already incurred ; and if any part would 
 have been saved by giving up the voyage and abandoning the 
 freight, that part ought itself to have contributed. 
 
 The deductions to be made from freight sacrificed, in order to Deductions to 
 ascertain the amount to be made good, should vary according to amount made 
 the circumstances. The question is, how much has been lost by ^°° ' 
 
 (m) The contribution is on " the (o) Lowndes (4th), 324 ; Benecke, 313. 
 
 amount of freight at risk, minus the In the United States it appears that fixed 
 expenses of earning it which would have Proportions of the gross freight are 
 
 generally deducted : Pars. M. Ins. II. 
 
 been saved if the ship had been lost, 
 per Gorell Barnes, J., in The Brigell 
 (1893) P., p. 196. [p) Lowndes (4th), 324. 
 
 310, 334. Of. SpafEord v. Dodge, 14 
 per GoreE Barnes, J., in The Brigella, Mass. 66. 
 
486 THE VOYAGE. 
 
 Sect. 436. the sacrifice ? Where part of the cargo has been jettisoned, but 
 the voyage completed, the shipowner's loss is of the -whole unpaid 
 freight on those goods, less the cost of landing and delivering 
 them. The expenses of completing the voyage have not been 
 avoided, and no part of them should therefore be deducted. If, 
 however, the sacrifice be of the ship, and the freight be lost because 
 she has not completed the voyage, that freight should not be made 
 good without first deducting the expenses which would have been 
 incurred in earniug the freight if the voyage had been completed, 
 and which owing to the sacrifice have been saved {q). 
 
 Freight pay- 437. Where the contract of carriage makes payment of the 
 of sMp. freight conditional upon the arrival of the ship, not of the goods, a 
 
 sacrifice of the latter does not give rise to a loss of freight. Groods 
 sacrificed in such a case are contributed to without any deduction 
 of freight ; and, on the other hand, the whole freight contributes 
 on arrival, notwithstanding any losses of cargo. 
 
 A sacrifice of the ship which prevents her completing her voyage 
 under such a charter party occasions a loss of freight to which 
 contribution must be made (r). 
 
 Freight con- 438. Where the voyage which the ship was making at the time 
 subsequent of the Sacrifice was not the only one for which she then had engage- 
 voyage. ments, the question arises, how far are freights which are condi- 
 
 tional upon performance of, or to be earned under, her subsequent 
 engagements, to be brought into the account ? 
 
 First, where the freight is conditional upon the completion of a 
 subsequent voyage, as under a charter party for a voyage out and 
 home, at a freight to be paid upon the return home, what part of 
 
 (?) The practice of EngUsh adjusters i„ Chrystal v. Flint, 82 Fed Rep. 
 
 IS expressed in the following rule of the 472 (1807), Brown, J., allowed the 
 
 Association of Average Adjusters: gross freight on jettisoned goods in 
 
 That the loss of freight to be made ge^^eral average, as being the usage of 
 
 good m general average shall be ascer- the port of New York. He considered 
 
 tamed by deducting from the amount of that that accorded with the general law 
 
 gross freight lost the charges which the of the United States, without, however, 
 
 owner thereof would have incurred to approving it. In Columbian Ins. Co. .! 
 
 r„'.nrottf '^ -fi . '" 7T- ^^^^y' 1=' P^'- 331 (voluntary strand- 
 
 quence ot the sacrifice not incurred." ,-r,„N +v,„ j ■ ,\ 
 
 IntheUnitedStatestheruleseemsto Zt.'J' ^™" height was apparently 
 be to allow the gross freight lost without 
 
 deductions : PhiU. s. 1368 ; Pars. M. Ins. ('') Columbian Ins. Co. v. Ashby,' 13 
 
 II. 310 ; GourUe, 487. Pet. S. C. E. 331. 
 
GENERAL AVERAGE. 
 
 487 
 
 it ought to contribute to a general average loss on the outward Sect. 438. 
 voyage ? 
 
 This question arose in "Williams v. London Assurance Co. (s) in 
 an action on a policy on the ship ; the defence being that a deduc- 
 tion should be made of a contribution in respect of the freight, 
 made payable on the return voyage, to a general average loss 
 incurred upon the outward voyage. The return voyage had in 
 fact been accomplished. Under the charter party 3,000/. was 
 advanced in respect of the freight on sailing outwards; but the 
 whole freight was to be calculated at certain rates per ton of the 
 goods brought home, and it was only to be paid upon condition 
 that the ship arrived home. It was held that the whole freight 
 must contribute, on the ground that it had in fact been preserved 
 by the general average sacrifice. 
 
 What should have been done had the average been adjusted at 
 the end of the outward voyage was not decided. That would ordi- 
 narily be the proper place for the adjustment, and, at that place, 
 only a prospect of earning the freight had been saved, while the 
 cargo's safety had been definitely realized. To put them on an 
 equality, therefore, the freight should contribute only on the value 
 of the prospect of earning it. And all the cost of completing the 
 voyage, together, it would seem, with a fair allowance for the 
 use of the ship on the homeward journey, ought to be deducted (t). 
 
 In Moran v. Jones («<) , general average expenditure had been 
 incurred when the ship was on an outward voyage under charter to 
 carry a homeward cargo of guano, on which freight at 4:1. 10s. 
 per ton was to be paid, partly at the loading port, partly on 
 arrival at the port of discharge. She carried a small quantity 
 of goods outwards for persons other than the charterers. In an 
 action between the shipowner and his insurer of the chartered 
 freight, the latter admitted that this freight should contribute to 
 the expenditure. And the Court said that that ought to be so. 
 
 439. Next, where the ship has been chartered for other voyages where sMp 
 after that which she is making, at independent freights. subsequmt""^ 
 
 If the agreements for those voyages have a peculiar value for voyages. 
 
 («) 1 M. & S. 318. And see in U. S., (^) gee Benecke's observations on the 
 
 The Brig Mary, 1 Sprague, 17. Cf.The ore «. ns t ^ /,i.t,x 
 
 -D • n rtonoN-D fon v XI. , • oase, p. 315, &o. Of. Lowndes (4th), 
 BngeJla, (1893) P. 189, -where the ship \ /> 
 
 was in ballast, sailing outwards to earn ^^°' ^°- ' ■^'^- "• ^^®^- 
 
 a homeward freight. («).26 L. J., Q. B. 187. 
 
488 
 
 THE VOYAGE. 
 
 Sect. 439. the shipowner, then, since that value was at risk and has been 
 saved to him by the safety of the ship, he ought to contribute for 
 it. And on the other hand, the loss of it is a general average 
 loss in case of a sacrifice of ship which prevents its attainment. 
 
 But where they are no more than ordinary employments for 
 the ship, there should be no contribution in respect of the freights 
 which may be earned under them. For the benefit to be derived 
 by the shipowner is only the ordinary one which arises from 
 owning the ship, and is, therefore, covered by her valuation, and 
 contributed for in respect of the ship herself. Thus, if the ship is 
 chartered for a series of independent voyages, upon ordinary terms, 
 and a sacrifice occurs on one of them, the freight upon that only 
 should be taken into account for purposes of separate contribution. 
 Or, again, where a ship is carrying a cargo outwards, and is 
 chartered to bring a cargo homewards, at an independent freight, 
 the homeward freight should not be treated as a contributory to 
 general average on the outward voyage. If it were, the outward 
 cargo should be a contributory to a loss of that freight, in case of 
 a sacrifice of the ship on the outward voyage. But the homeward 
 freight is really an interest in an adventure to which the outward 
 cargo is not a party. The general average on the outward voyage 
 should be adjusted at the end of that voyage, the ship contributing 
 or receiving'on her full value there. That value should comprehend 
 the whole of her ability to earn future freights, including the 
 homeward freight. This freight should not, therefore, make or 
 receive contributions independently (a;). 
 
 FreigM paid 
 in advance 
 included in 
 value of 
 goods. 
 
 440. Freight cannot strictly be said to be at risk unless the 
 payment of it depends upon the safety of the cargo or of the 
 ship {y). If, by agreement, it has been paid in advance, or is 
 unconditionally payable at a certain time, it is not at risk as 
 freight. For the contract is not altered by a loss of the goods ; 
 
 {x) See Potter v. Rankin, per "Willes, 
 J., L. R., 3 C. P. at p. S67 ; Am. (6th 
 ed.), 906 ; PhiJl. Ins. o. 1387 ; but ef. 
 The Brig Mary, 1 Sprague, 17. Under 
 the rules of practice of the Association 
 of Average Adjusters, freight under a 
 separate charter for an ulterior voyage 
 does not contribute. 
 
 (y) "The principle upon which freight 
 is to contribute in the case of general 
 
 average is that it was one of the things 
 at hazard at the time when that sacrifice 
 which produced the general average was 
 made. ' ' Per Lord EUenborough, in Cox 
 V. May (4 M. & S. 152, 159). In that 
 case the only contribution, to salvage, in 
 respect of freight, was by the shipowner ; 
 the charterer's prepaid freight was dis- 
 regarded. 
 
GENERAL AVERAGE. 489 
 
 and freight paid ia advance is not repayable hj the shipowner Sect. 440. 
 upon the loss (2). 
 
 But where the merchant has paid or is liable to pay freight on 
 goods independently of arrival, the value of the goods at the 
 destination, upon which he is to make or receive general average 
 contribution, must be estimated without any deduction of that 
 freight ; for their full value without deduction of freight was 
 at risk to him. 
 
 And where the voyage is broken up at some other place than 
 the destination under circumstances which put an end to the 
 shipowner's obligation to carry on the goods, the value of them 
 must be estimated at that place without deduction or addition of 
 the freight paid in advance {a). If the goods are more valuable 
 there, owing to the transit so far accomplished, that will appear 
 in the valuation. 
 
 In Frayes v. Worms (6) the question arose whether a charterer 
 was liable to contribute to general average expenses incurred on 
 the voyage, in respect of freight paid in advance upon a cargo of 
 coals, shipped by him for San Francisco and delivered to him 
 there. The Court held that the charterer's interest at risk was 
 increased by the amount of his advances, and that he must con- 
 tribute in respect of them. 
 
 The question whether this contribution was in respect of an 
 interest in freight, or of an interest in cargo, was not decided ; 
 but the latter seems to be the clearer view. If the cargo had 
 been lost, but the ship had arrived, no contribution could have 
 been due in respect of the advances. " Here the charterer is 
 interested in' the safe carriage of the cargo. He is interested in 
 the same way as a shipowner who has partly filled up the ship 
 with his own goods is interested. That might be insured in 
 the name of freight, and would have to contribute to general 
 average " (c). 
 
 At any rate, it appears to have -been decided in Svendsen v. 
 
 Wallace {d) that the charterer is not liable to contribute in respect 
 
 of freight paid in advance to expenses of reloading the cargo, 
 
 which, as between owner of ship and owner of freight, may be 
 
 chargeable to freight. 
 
 (s) Infra, s. 562. as Trayesi". 'Worms, 34 L. J., C. P. 274. 
 (a) Fletolier v. Alexander, L. R., 3 (e) Per Willes, J., 19 0. B., N. S. 
 
 C. P. 375. p. 176. 
 (i) 19 C. B., N. S. 159 ; iS. C, reported {d) 10 A. 0. 404 ; supra, s. 410. 
 
490 THE VOYAGE. 
 
 Sect. 441. 441. Where the charterer has advanced the freight for a round 
 
 Advances voyage, SO that it is partly paid for one adventure and partly for 
 
 fo^'^roun^*^'' another, the case is more complicated. The right method, perhaps, 
 
 voyage. would be to regard the freight advanced as a separate interest, 
 
 and subject to no deductions. But as to how it is to be apportioned 
 
 between the outward and homeward voyages, and as to whether 
 
 any and what part is to be contributed to upon a sacrifice of goods, 
 
 there is little or no authority. Much must, no doubt, in each case 
 
 depend upon the terms of the charter party. 
 
 Remedies, 
 Shipowner 443. The shipowner has a lien upon the goods for general 
 
 contributions average contributions due in respect of them, whether the claim 
 OToar-o™'^^ be on his own behalf or on behalf of other cargo owners (e). 
 owners. But the goods are not usually detained until the amount has been 
 
 ascertained ; the calculation takes time ; and detention , for an 
 estimated claim exposes the shipowner to the risk, on the one 
 hand, of getting less than is due, and on the other hand, to 
 liability to damages for detaining the goods for an excessive 
 amount (/). The goods are commonly given up on an under- 
 taking by the receiver to pay the amount due in respect of them, 
 and to furnish particulars of their value, so as to enable an average 
 adjustment to be prepared. Also, frequently, a deposit with a 
 bank, or other trustee, as security, is required. 
 
 The conditions of the bond, or undertaking, which the ship- 
 owner may properly demand before giving up the goods were 
 considered in Huth v. Lamport {g). The shipowner had there 
 stipulated for a bond by the consignee under which the decision of 
 the average adjuster appointed by the shipowner would be binding, 
 subject to an appeal to arbitrators ; and under which the consignee 
 must have deposited money in the names of the adjuster and 
 shipowner, out of which payments for disbursements were to be 
 made at the adjuster's discretion. It was held that these were 
 conditions which could not be insisted upon. 
 
 The shipowner is the only person who can exercise a lien for 
 contributions, and he can generally obtain the materials for making 
 
 (e) Crooks v. AHan, 5 Q. B. D. 38 ; 33 L. J., Ad. 97. 
 
 Huth V. Lamport, 16 Q. B. D. 442, 735. (/) See per Lord Esher in Huth v. 
 
 The lien prevails over the claim under an Lamport, 16 Q. B. D. 735 p 736 
 
 earlier tottomry bond : Cargo ex Galam, (?) 16 Q. B. D. 442 735. 
 
GENERAL AVERAGE. 491 
 
 the average adjustment. In practice, therefore, he procures the Sect. 442. 
 adjustment, and obtains security for payment of the contributions, 
 whether they are due to himself or to cargo owners. Moreover, he 
 is bound to exercise his powers for the protection of merchants 
 entitled to receive contributions. 
 
 In Crooks v. Allan {h), shipowners were held liable in damages 
 for not having taken the necessary steps for procuring an adjust- 
 ment of a general average loss of cargo, and securing payment of 
 the contributions. 
 
 In Hallett v. Bousfield («), the owner of goods which had been 
 jettisoned sought to restrain the master and shipowner by injunc- 
 tion from delivering the cargo, claiming a hen upon it for contri- 
 butions. Lord Eldon refused to grant the injunction, saying that 
 there was no authority that the owner of part of the cargo could 
 compel the captain to require security from the others. 
 
 But in Strang v. Scott {k), Lord Watson said : " It is settled 
 law that, in the case of a general ship, the owner of goods sacri- 
 ficed for the common benefit has a lien upon each parcel of goods 
 salved belonging to a separate consignee for a due proportion of 
 his individual claim. The cargo not being in his possession, or 
 subject to his. control, his right of lien can only be enforced 
 through the ship-master, whom the law of England, following the 
 principles of the Lex lihodia, regards as his agent for that purpose. 
 The duty being imposed by law upon the master, he is answerable 
 for its neglect." And, after referring to Hallett v. Bousfield, 
 Lord Watson added, that it did not follow from that case " that a 
 master might not be restrained from making delivery of the cargo, 
 at the instance of all or most of those entitled to contribution, 
 without taking security for their claims." 
 
 Though the adjustment of the general average is, generally, to 
 be made at the port of discharge, according to the law and on the 
 basis of the values at that place, it is not obligatory on the ship- 
 owner to have a statement prepared there. He is not bound to 
 employ a professional average adjuster at all ; and he may, if he 
 - chooses, employ one at some other port. "If he engages the 
 services of an average stater, it is merely as a matter of business 
 convenience on his part. The average stater is not engaged, nor 
 
 {h) 5 Q. B. D. 38, and see Nobel's ,., ^^^y^^ 
 
 Explosives Co. v. Eea, 2 Com. Ca. 293. 
 Of. The Raisby, 10 P. D. 114. (*) 14 A. C. 601, p. 606. 
 
492 
 
 THE VOYAGE. 
 
 Sect. 44S. does lie act on tehalf of any of the other parties oonoerned, nor 
 does his statement bind them." But the shipowner must act 
 reasonably, and " if owing to his taking an unreasonably long 
 time in presenting his general average statement other parties 
 are prejudiced, and suffer damage by unreasonable delay, he may 
 incur liability" (l). 
 
 Shipowaer 44.3 _ rpj^g shipowner may also sue the owner of cargo for a 
 
 may sue for ^ . ,. i j 1 t. j 
 
 contributions general average contribution (to) ; but if the goods have changed 
 ~^ °™ hands during the voyage, a question may arise as to which of 
 
 the persons who have owned them is liable. 
 
 Practically a diihculty of this kind seldom occurs, since the 
 person ultimately liable is usually an insurer, on a policy which 
 is transferred with the goods, and since the goods are not generally 
 delivered without a sufficient ' undertaking. The question was 
 touched upon in Scaife v. Tobin (w), where Lord Tenterden said: 
 " A consignee, who is the absolute owner of the goods, is liable 
 to pay general average, because the law throws upon him that 
 liability. There is no other person to pay it." 
 
 But it does not appear whether this was intended to apply to a 
 consignee who had become owner after the general average loss 
 had been incurred. And during the argument, Parke, J., had 
 said that the plaintiff must show that defendant " was an owner 
 at the time when the general average accrued " (o) . 
 
 On principle, it is difficult to see how a liability already incurred 
 could be held to be transferred from the vendor to the purchaser, 
 so as to exonerate the former and to make the latter liable. But 
 perhaps the true view is that the liability is only inchoate, and 
 does not definitely attach until the goods have arrived at the 
 destination, or other place at which the voyage is terminated {p). 
 
 Liability of 
 consignee. 
 
 444. In Scaife v. Tobin the shipowner sought to make the 
 consignee liable. He was not the owner of the goods, but received 
 them for sale for the consignors, making advances to them, and 
 charging a commission in the usual way. He had, however, taken 
 
 {T) Wavertree, &c. Co. v. Love, (1897) 
 A. C. 373, pp. 380, 382. 
 
 [m] Birkley v. Presgrave, 1 East, 220 ; 
 Anderson v. Ocean SS. Co., 10 A. C. 107. 
 [n) 3 B. & Ad. 523. 
 
 (0) 3 B. & Ad. at p. 627. 
 
 (jo) This would not be true, probably, 
 of the liability for general average ex- 
 penses incurred at a port of refuge, 
 vphere the ship and cargo have after- 
 wards been lost, supra, s. 429. 
 
GENERAL AVERAGE. 
 
 493 
 
 delivery of the goods, knowing there would be a claim for general Sect. 444. 
 average contribution. It was held that he was not liable. 
 
 If, however, delivery were taken by a consignee under circum- 
 stances from which an agreement to pay the contribution could be 
 inferred, the case would be different. Thus, if the delivery were 
 taken under a bill of lading which expressly required the payment, 
 or if in the previous course of business between the parties the 
 defendant had made such payments, or if the master had stipulated 
 for payment when he delivered the goods, the consignee would be 
 liable {q). 
 
 445. Aji owner of goods entitled to general average contri- Cargo owner 
 ° a ° may sue, out 
 
 butions may sue the shipowner or other cargo owners for them (r) . has no lien. 
 
 But his direct claim is personal only. He has no lien on the 
 ship, nor upon the cargo, except in the manner indicated above in 
 s. 442. Neither can he proceed for his claims in rem in the Court 
 of Admiralty is) . That Court does not in the ordinary exercise of 
 its jurisdiction deal with such claims; though it may do so in- 
 cidentally {t). 
 
 [q) Per Lord Tenterden-, Soaife v. North Star, 29 L. J., Ad. 73. 
 
 Tobiu, 3 B. & Ad. 523 ; Hing'ston v. ,.-, n /-i i oo t t a j irr 
 
 „,,„„„_' ° (t) Cargo ex Galam, 32 L. J., Ad. 97. 
 
 Wendt, 1 Q. B. D. 367. 
 
 In The Oquendo, 38 L. T. 151, an action 
 
 (r) Strang v. Scott, 14 A. 0. 601; for damage, a counter-claim by the ship- 
 
 Dobsou V. Wilson, 3 Camp. 480. A ownersforannnascertainedgeneralaver- 
 
 lender on bottomry of the ship is not age contribution was allowed ; and was 
 
 liable to make contribution, see The referred to the registrar and merchants 
 
 EKza Lines, 61 Eed. Bep. 308. to ascertain the plaintiflE's proportion. 
 
 (s) The Constancia, 10 Jur. 845 ; The Of. The Daring, L. R., 2 A. & E. 260. 
 
 I have kindly been furnished with the toUowing pro formd specimen 
 of a modern Average Statement, by Mr. F. C. Danson, of Liverpool, 
 Average Adjuster, which wiU illustrate the manner in which the con- 
 tributions are worked out : — 
 
 The Ship A., while on a voyage from New York to Liverpool with a 
 cargo of cotton, having encountered bad weather, sprang a leak and sustained 
 serious damage, and for the general safety a portion of the cargo was 
 jettisoned. Further, being on her beam ends during a squall, it became 
 
494 
 
 THE VOYAGE. 
 
 necessary, in order to lighten her, to cut away tlie foretopsail, •vctioli was thus lost. Suhsequently 
 the vessel put into Queenstown, and she was then making water rapidly. The cargo was accord- 
 ingly discharged and warehoused, and the Teesel was placed in dry dock and repaired. Afterwards 
 the cargo was reloaded, and the vessel completed her voyage to Liverpool. 
 
 Totals. 
 
 Disbursements. 
 
 General 
 Average. 
 
 Cargo. 
 
 Freight. 
 
 Ship and 
 OTvners. 
 
 £ s. d 
 5 C 
 15 C 
 3 13 C 
 5 5 C 
 
 At Queenstown. 
 
 Pilotage from sea to Queenstown 
 
 Towage do. do. 
 
 Noting and extending the protest 
 
 Surveyors' fees — 
 For damage survey on arrival. .£2 2 
 For do. do. indrydook 2 2 
 For survey on repairs 1 1 
 
 £ s. d. 
 
 5 
 
 15 
 
 3 33 6 
 
 2 2 
 
 40 
 12"o 
 
 7 4 8 
 
 £ *. • rf. 
 60 
 
 £ ». d. 
 
 40 
 
 6 
 16 
 
 £ s. d. 
 
 2 2 
 1 1 
 
 500 
 
 £5 5 
 
 Shipwrights' account for repairs to the 
 vessel , ' 
 
 500 
 
 80 
 
 Stevedores' account — 
 Discharging cargo and stow- 
 ing same in warehouse ..£40 
 Keloading cargo 40 
 
 
 
 
 
 
 £80 
 
 
 50 
 
 Warehouse rent on cargo 
 
 
 12 
 
 Harbour dues on the vessel 
 
 
 5 
 15 
 10 17 
 
 Pilotage from Queenstown to sea 
 
 Towage do. do 
 
 New foretopsail, including 
 clews, &c. (net) £10 17 
 
 
 
 Allow as general average.. £10 17 
 Less, one-third. . 3 12 4 
 
 3 12 4 
 
 
 £7 4 8 
 
 
 701 15 6 
 35 1 9 
 
 Ship's agent- 
 Commission on advances 5 per cent. , , 
 
 {^aid by draft on Liverpool.) 
 
 Jettison of cotton, viz. — 
 ShippedA.B.500bls. weighing perinvoice 
 
 Should de- 
 liver in Li- 
 verpool . .net lbs. 225,600 
 Delivered. .480 bis. weighing net 216,576 
 
 86 2 
 4 5 
 
 60 
 2 10 
 
 60 
 3 
 
 606 15 4 
 25 6 9 
 
 736 17 3 
 
 - 89 5 2 
 
 62 10 
 
 63 
 
 632 2 1 
 
 
 Short. . 20 Net lbs. 9,024 
 
 
 
 @6d. ..£225 12 
 Discount 3 7 8 
 
 
 
 £222 i i 
 
 
GENERAL AVERAGE. 
 
 495 
 
 Totals. 
 
 £ s. d. 
 736 17 3 
 
 5 5 
 
 742 2 3 
 
 Disburaements. 
 
 £ 3. d. 
 Brought forward 222 4 4 
 
 freight — 
 GroBS wt. 9,600 lbs. 
 Less4p'ot. 384 
 
 9,216 @^f?.£19 4 
 Less interest, \\ p'ot. - 4 10 
 
 18 19 2 
 Landing charges .... 2 10 
 Brokerage, \ per cent. \ 1 1 
 
 -22 11 9 
 
 £199 12 7 
 
 Owners of ship — 
 Freight on cargo jettisoned . 
 Adjustment 
 
 Apportionment of general average. 
 
 Ship, value to con- 
 tribute £5,000 pays £97 13 6 
 
 Freight, gross on cargo 
 . delivered— £1,000 
 Made good 19 
 
 1,019 
 
 Leas — 
 Wages & port 
 
 charges . ■ £75 
 Charges per 
 
 adjustment 63 
 
 — 138 
 
 Cargo — 
 
 Value de- 
 livered ..£10,000 
 
 Made good 200 
 
 881 pays 17 4 2 
 
 10,200 
 
 Less charges per 
 adjustment . , 53 
 
 -10,147 pays 198 4 4 
 
 £16,028 £313 1 11 
 
 General 
 Average. 
 
 £ s. d. 
 89 5 2 
 
 199 12 7 
 
 18 19 2 
 5 5 
 
 313 1 11 
 
 Cargo. 
 
 £ s. d. 
 52 10 
 
 198 4 4 
 
 Cargo .,£250 14 4 
 
 Freight. 
 
 £ s. d. 
 63 
 
 17 4 2 
 
 Freight.. £80 4 2 
 Ship and Owners . . 
 
 SMp and 
 Owners. 
 
 £ «. d. 
 
 532 2 1 
 
 97 13 5 
 
 £629 15 6 
 
496 THE VOYAGE. 
 
 SUMMARY. Balance. 
 
 Owners of Cargo. Dr. Cr. 
 
 Pay general average and cliarges on cargo, as atove. . £250 14 4 
 Eeceive amount made good in general average, as 
 
 above 199 12 7 
 
 £51 1 9 £51 1 9 ■ 
 
 Owners of Ship. 
 Eeceive — 
 
 Amount of disbursements paid by 
 
 them, as above £736 17 3 
 
 Freight on cargo jettisoned 18 19 2 
 
 Pay general average on ship and charges 
 
 to owners, as above 629 15 6 
 
 Pay general average and charges on 
 
 freight, as above 80 4 2 
 
 709 19 8 — £45 16 9 
 
 Cost of adjustment — 5 5 
 
 £755 16 5 
 
 £51 19 £51 1 
 
497 
 
 Paet III. 
 
 THE DELIVERY. 
 
 CHAPTER XIII. 
 
 THE DISCHAEGE — ^WAEEHOUSIITG. 
 
 SECT. 
 
 Port, how determined 446 
 
 Charterer to name in reasonable time 447 
 
 ^Meaning of port 448 
 
 It must he physically safe — For the 
 
 loaded ship 449 
 
 Not necessarily at once 450 
 
 It must be politioaUy safe 451 
 
 Effect of signing bills of lading for 
 
 port named, though not safe . , , , 452 
 "So near thereto," &c. — Temporary 
 
 obstacles , 463 
 
 The obstacle need not be physical, . 
 
 nor permanent 454 
 
 Safety of ship the test 454a 
 
 "At all times of tide" — " Always 
 
 afloat" 455 
 
 May shipowner refuse to proceed 
 
 when obstacle removed ? 456 
 
 Must owner lighten, if feasible ? . . 457 
 
 Effect of custom 458 
 
 The place of discharge 459 
 
 Charterer has the option 460 
 
 Mode of discharge follows practice 
 
 of port 461 
 
 Generally consignee must take from 
 ship — Shipowner generally dis- 
 charged by delivery at ship's side 
 
 — Sorting of cargo 462 
 
 Charterer to take from "alongside" 
 
 — Inconsistent custom 463 
 
 Port bye-laws 464 
 
 Master not bound to notify arrival 
 
 to consignee 465 
 
 LiabOity of consignee for landing 
 expenses — Obligation to be ready 
 — " Immediately " — Shipowner's 
 
 right to discharge 466 
 
 Generally there must be personal 
 
 delivery to consignee 467 
 
 C. — C. 
 
 BEOT. 
 
 Delivery complete according to 
 custom of the port — Port regula- 
 tions 468 
 
 Delivery must be to the right per- 
 son — Delivery to holder of biU of 
 lading 469 
 
 Delivery to another carrier to for- 
 ward 470 
 
 Warehousing. 
 
 Liability of shipowner where con- 
 signee fails to take delivery . . . , 471 
 
 Shipowner liable as carrier for 
 safety while he holds as such. . . . 472 
 
 Not after refusal to take delivery . , 473 
 
 Nor if consignee fails to appear for 
 an unreasonable time 474 
 
 Merchant Shipping Act, 1894 — 
 Warehousing — Stop for freight, 
 &c. — ^Position of warehouseman . , 475 
 
 Shipowner may land under the Act 
 though consignee not to blame — 
 Must use the right fairly ,,.,., 476 
 
 Meaning of "ready to take de- 
 livery" 477 
 
 Consignee must take the goods in a 
 reasonable time though statutory 
 notice not given 478 
 
 Shipowner may contract himself 
 free of sect. 67 479 
 
 Must shipowner see that goods 
 are rightly delivered after ware- 
 housing f 480 
 
 He is not responsible for safety in 
 warehouse 481 
 
 Position of warehouseman as to 
 
 delivery 482 
 
 K K 
 
498 
 
 THE DELIVERY. 
 
 Sect. 446. 
 
 Port, how 
 detenmned. 
 
 Charterer to 
 name in 
 reasonahle 
 time. 
 
 Meaning of 
 port. 
 
 446. Wheke goods are shipped in a general ship, the port at 
 which they are to be discharged is nearly always agreed upon 
 beforehand, and named in the bill of lading. In charter parties 
 the ultimate destination is very commonly left uncertain; the 
 arrangement being either that it shall be named at the port of 
 loading, in which case bills of lading are given for the port so 
 named, or that the ship shall call at one of certain agreed ports of 
 call, and there receive orders from the charterer as to the place of 
 discharge. The charterer is thus enabled to direct the ship to the 
 port which may turn out to be most suitable to himself, or to the 
 purchasers of the cargo. 
 
 447. Where the charterer is to give orders for the port of dis- 
 charge at the port of loading, he must name it without unreasonable 
 delay. The ship ought not to be detained by an omission on his 
 part in doing so. Having named a port he is not entitled after- 
 wards to change the destination, if bills of lading given for that 
 already named are outstanding {a). 
 
 Where orders are to be given at a port of call, a time within 
 which that must be done is sometimes stated in the charter party. 
 If no time is fixed the charterer must give the order within a 
 reasonable time after the vessel's arrival there. If improper delay 
 occurs the charterer becomes liable in damages for .the ship's 
 detention. It has been held that if the master receives no orders 
 at the port of call he may, after waiting a reasonable time for 
 them, act on his own judgment, and take the ship to any one of 
 the ports of discharge permitted by the charter ; and that he is not 
 bound to communicate with the charterer before doing so (J). But 
 probably if he has reasonable opportunity he ought to notify his 
 arrival at the port of call to the charterer, or his agent. 
 
 In Stewart v. Eogerson (c) the charterer refused to name a dis- 
 charging wharf under circumstances which raised the inference 
 that he would not receive the cargo : it was held that the ship- 
 owner was entitled to the freight to be earned, as damages for the 
 breach of contract. 
 
 448. The charterer is to name a safe port for the discharge. 
 Perhaps it is not possible to give an exact definition of what con- 
 stitutes a "port" for loading or discharging; but that a place 
 
 (fl) Davidson ». Grwynne, 12 East, 381. 
 (J) Sieveking v. Maas, 26 L. J., Q. B. 
 
 275, 358. 
 
 («) L. E., 6 0. P. 424. 
 
THE DISCHARGE. 
 
 499 
 
 may be a port, it seems that it should have somewhere for vessels Sect. 448. 
 to lie safely, and a shore where goods may be safely landed ; also 
 that there should be some conveniences for trade, such as wharves 
 and warehouses ; and that it should be a place to which vessels are 
 allowed to come by the government of the country {d). 
 
 In regard to policies of insurance, it has been laid down that the 
 words, " port or ports of loading," " must be taken to mean not 
 merely those places which are technically called ports, but all 
 places to which ships may be accustomed to resort for the purpose 
 of taking in cargo" (c). In that case, the question arose as to 
 Laguna de los Padres, a place on the coast of Buenos Ayres, where 
 there was no artificial port, but merely a village, with a wooden 
 jetty ; and the vessels calling there had to anchor about a quarter 
 of a mile from the shore in the roadstead, where they were loaded 
 by means of lighters and small craft. The roadstead is protected 
 by natural headlands on either side, which form a kind of bay ; 
 and the anchorage is good ; but the place is rather open to the east 
 and north-east. There was a regular trade between it and Buenos 
 Ayres. In the Queen's Bench it was held that it was a port of 
 loading, to which the vessel was at liberty to go. But in the 
 Exchequer Chamber (/) there was a difference of opinion on the 
 point. 
 
 In Cockey v. Atkinson [g] an open roadstead was held to be a 
 port of loading within the policy. 
 
 In The Alhambra(A), the question arose whether Lowestoft 
 Roads formed part of the Port of Lowestoft. Orders had been 
 given for the vessel to proceed to Lowestoft to discharge, but the 
 master had refused to go, on the ground that that was not a safe 
 port for his vessel. This was true of Lowestoft Harbour, but not 
 of the Roads. Brett, L. J., said that the vessel should be ordered 
 "to something which is known in seafaring language as a port," 
 and he held that the order to go to Lowestoft meant Lowestoft 
 Harbour. Cotton, L. J., said : " The Roads were not a part of the 
 Port of Lowestoft, and when the charterer ordered the ship to go 
 to Lowestoft, the charter party only authorizing the ship to be 
 sent to a port, he must have meant to the Port of Lowestoft, and 
 
 (rf) See Lord Hale's definition, cited {/) L. R., 6 Q. B. 584. 
 
 Bac. Abr. ■' Prerogative," B. (3). \g) 2 B. & A. 460; and Sea Ins. Co. 
 
 (e) Per Lush, J., in Harrower v. of Scotland v. Gavin, 4 BUgh, N. S. 
 
 Hutchinson, L. B., 4 Q. B. 623, at 578. 
 
 p. 534. [h] 6 P. D. 68. 
 
 KK2 
 
500 
 
 THE DELIVERY. 
 
 It must he 
 ptysioally 
 
 For the 
 loaded sliip 
 
 Sect. 448. not to Lowestoft Eoads." But it was not decided that the ship 
 might not have been ordered to Lowestoft Eoads (i). 
 
 449. The port must be one that is physically safe ; whether it is 
 so is a question of fact for the jury, having regard to the particular 
 vessel and the nature of the work to be done. 
 
 In Smith v. Dart (A) the question arose whether Burriana, in 
 Spain, was a " safe loading place " under a charter party for a 
 cargo of oranges. It appeared that the place was much exposed 
 but that many steamers were loaded there, lying in the roadstead ; 
 and that they could do so in safety by using well-known precau-. 
 tions, such as keeping their fixes alight, and, if necessary, running 
 out to sea. The jury found that it was a safe loading place. 
 
 Further, the port must be safe for the particular ship, laden as 
 she is, during the time which will be occupied by her discharge. 
 The charterer is not entitled to have the unloading done partly 
 outside and partly inside the port ; therefore it must be one into 
 which she can safely go and lie with all her cargo (/). And it 
 seems to follow that it must also be one in which she may safely 
 get to a usual discharging place with all her cargo and lie there. 
 
 Usually the charter party requires that the vessel shall always 
 lie afl.oat ; and where not expressed this would probably be implied, 
 as a condition of safety, in the case of a large vessel. Where it is 
 expressed, or implied, the port to be named must be one into which 
 she can safely get witt her whole cargo, and discharge the whole 
 cargo without touching the ground. 
 
 In The Alhambra {m), the vessel was ordered to Lowestoft. Her 
 draught was such that she could not lie in Lowestoft Harbour 
 without taking the ground at low water unless the greater part of 
 her cargo had been discharged. The charterers, however, offered 
 to lighten her sufficiently in Lowestoft Eoads, which is a safe un- 
 loading place outside the harbour. The master refused to go, and 
 
 {k) 14 Q. B. D. 106. 
 
 B The Alhambra, 6 P. D. 68. But 
 of. HOlstrom*. Gribson, 8 Sess. Ca. (3rd), 
 263 ; Capper v. WaUaoe, 6 Q. B. D. 163. 
 Where a loading port has to be named 
 under u. charter for a fuU cargo, the 
 charterer must name a place where a full 
 cargo can be safely taken : Charpentler 
 V. Dunn, 16 So. L. R. 726. 
 
 («) 6 P. D. 68 ; reversing 3 P. D. 266. 
 
 («) As to the extent of the port of 
 discharge in this regard, see Caflarini v. 
 Walker, Ir. E., 10 C. L. 260. As to the 
 distinction between the commercial and 
 the Custom House limits of a port, see 
 HullDock Co. V. Browne, 2 B. & Ad. 43 ; 
 Nicholson v. Williams, L. E., 6 Q. B. 
 632 ; Price v. Livingstone, 9 Q. B. D. 
 679 ; Garston Co. v. HicMe, 16 Q. B. D. 
 580 ; Hunter v. Northern Mar. Ins. Co., 
 13 A. C. 717. 
 
THE DISCHAEGE. 
 
 501 
 
 put into Harwich instead. It was held by the Court of Appeal, Sect. 449. 
 reversing the judgment of Sir E. Phillimore, that Lowestoft was 
 not a " safe port " within the meaning of the charter party ; and 
 that evidence of a custom for vessels to unload in the Roads before 
 going into the port could not make it such.' 
 
 In Eeynolds v. Tomlinson (m) the ship was ordered to discharge 
 at Q-loucester. She proceeded, but was found to be too deep to get 
 beyond Shaorpness, at the entrance of the canal leading to Grloucester. 
 The charterers required that she should lighten and proceed up the 
 canal ; and they gave evidence of a custom for vessels bound to 
 Gloucester to lighten at Sharpness. The master refused to go on, 
 and discharged the whole cargo at Sharpness. It was found that 
 Sharpness and Gloucester were in a commercial sense distinct 
 ports. Held that Gloucester was not a safe port for the vessel ; 
 and that the charterers had no claim for damages against the 
 shipowners. 
 
 450. But, apart from express stipulation, the port named need Not rieoes- 
 not be physically safe at the very time of the order being given, 
 or of the vessel's arrival. A temporary obstacle does not make it 
 unsafe. 
 
 In Parker v. Winlo (o) the charter required the ship to proceed 
 loaded with coals " to Plymouth not higher than Torpoint or New 
 Passage, or so near thereunto as she may safely get and deliver," 
 &c. On arrival off Plymouth she was ordered to Brunswick 
 Wharf, which was lower down than the points named, and was a 
 usual place for discharging coals. The vessel coidd not, however, 
 reach it at neap tides, and, consequently, had to wait for some days. 
 It was considered that the charterer was entitled to name that 
 wharf. " If the place were not one of the regular places of dis- 
 charge, or if it were so inconveniently situate as to prevent the 
 vessel unloading except on a very few days in the year, then the 
 charterer would not have had a right to point out such a place. 
 The charter party, in effect, says to the shipowner, you shall go to 
 Plymouth River and discharge at any place the freighter shall 
 name not higher up than the specified limits ; then when such a 
 place is named, the effect is the same as if the place had been 
 named in the charter party itself. If so, then the shipowner 
 
 («) (1896) 1 Q. B. 686. See also Oa. 360. 
 TrigUa V. Smith's Timber Co., 1 Com. (o) 27 L. J,, Q. B. 49, 
 
502 THE DELIVERY. 
 
 Sect. 450. must take his oliance whether he get a good state of the water or 
 not " (p). 
 
 In Allen v. Ooltart (q), on the other hand, the ship was to pro- 
 ceed to Liverpool, " to discharge in a dock as ordered on arriving, 
 if sufficient ivater, or bo near thereunto as she may safely get, 
 always afloat." Cave, J., held (that the words precluded the 
 charterer from ordering her to a dock into which she could not 
 enter on arrival, owing to the state of the tides at the time. 
 
 The port 451. Further, the port must he politically safe at the time when 
 
 poutioally it is named by the charterer. In Ogden v. Grraham (r) the ship 
 ^* ®' was to proceed with a cargo " to a safe port in Chili (with leave to 
 
 call at Valparaiso)." At Valparaiso she received orders to goto 
 Carrisal Bajo, a port in the mining district of ChiU, which had at 
 that time, in consequence of rebellion, been declared closed by the 
 Chilian Grovernment. Any vessel discharging there without a 
 permit would be liable to confiscation, and it was not known when 
 a permit would be granted. By nature the port was safe. More- 
 over, when the charter party was made, both the shipowner and 
 the charterers were ignorant that the Covernment had closed any 
 ports. The vessel lay at Valparaiso for thirty-eight days, until 
 a permit was obtained, and her owner sued the charterers for 
 the detention. Held that he was entitled to recover. Black- 
 burn, J., said (s) : " In the absence of all authority bearing on the 
 matter, I am of opinion that under the terms of a charter party 
 like the present, the charterer is bound to name a place which, at 
 the time he names it, is one into which the ship can get ; and that 
 although the ship can physically get into it, as far as navigation and 
 what may be called the natural incidents are concerned, yet if that 
 would be at the certain risk of confiscation, then the place is not a 
 safe port. If at the time the place had been named the port had 
 been open, or if that particiilar port had been mentioned ia the 
 contract itself, and the port had been found closed before the ship 
 could enter, then the shipowner would have been saved from 
 being obliged to go in by the clause of exception as to the restraint 
 of princes and rulers ; but he would have had no right of action 
 against the charterer for being prevented from earning the freight 
 which he could not earn." 
 
 {p) PerCrompton, J.,27L. J.,Q.B.63. (r) 31 L. J., Q. B. 26. 
 
 (?) 11 Q. B. D. 782. (,) 31 L. J., Q. B. at p. 29. 
 
THE DISCHARGE. 
 
 503 
 
 But a mere probatility that the port named by the charterer Sect. 451. 
 may he closed before the vessel will get there is not enough to 
 render it unsafe. In The Teutonia (t) a German ship had called at 
 Falmouth for orders, and was ordered to Dunkirk. There was at 
 the time great danger that war would break out between Prance 
 and Germany, and in that event (which in fact occurred) it would 
 become illegal for the vessel to go to that port. • It was considered 
 that until the war was actually declared, the consignee was entitled 
 to require the master to proceed to Dunkirk (w) . 
 
 In that case, the port of Dunkirk having become unsafe for the 
 ship after the orders were given, she put into Dover, one of the 
 other ports of discharge allowed by the contract. The question 
 arose whether the consignees of the cargo could demand delivery 
 there without paying the freight, on the ground that performance 
 of the contract had become illegal and- impossible; and that it was 
 therefore dissolved. It was held that they could not. 
 
 452. Where the orders for the port of discharge are given at the Effect of 
 time of loading, and bills of lading are signed by the master of lading for 
 making the goods deliverable at the port named, the shipowner t^^gh^ot' 
 cannot afterwards object that it is not a safe port. ^^^s- 
 
 Thus, in Capper v. Wallace (x), a safe port of discharge was to 
 be ordered on signing bills of lading. Koogerpolder in Holland 
 was named, a port to which the vessel could not get with her full 
 cargo, and the bills of lading made the goods deliverable there. 
 Lush, J., said : " The only effect which can be given to the bills of 
 lading as between the parties is to preclude the plaiutiffs from 
 objecting that Koogerpolder was not a safe port, and to bind the 
 plaintiffs to the same extent and no further than if Koogerpolder 
 had been named in the charter party as the port of discharge." 
 
 But though' the shipowner cannot refuse to go to the port so 
 named and accepted, he may still be entitled to claim damages 
 in respect of losses which he may incur owing to the port not 
 being a safe one. In this sense the parties are not in the same 
 position as if the port had been named in the charter party. 
 
 Moreover, if the charterer knew that the port ordered was not a 
 safe port, and so not within the charter party, it would seem that 
 the shipowner is not precluded, as against him, from refusing to let 
 her go there. For the master had no authority to vary the charter 
 
 (*) L. E., 3 A. & E. 394 ; L. R., 4 («) L. R., i P. C. at p. 181. 
 
 P. 0. 171. {x) 5 Q. B. D. 163. 
 
604 
 
 THE DELIVEEY, 
 
 "So near 
 thereto as 
 can safely 
 get." 
 
 Temporary 
 obstacles. 
 
 Sect. 453. party by assenting to a port of diseliarge not witHn it (y) ; and 
 though his assent, when acted upon, might preclude the shipowner 
 from objecting, that would depend on his apparent authority to 
 give that assent, and in the case supposed no such apparent 
 authority would exist. There would be no belief on the charterer's 
 part that the master's assent was given with authority. 
 
 453. The shipowner's obligation to bring the ship to the agreed 
 place of discharge is generally qualified by. the words " or so near 
 thereto as she can safely get." This is understood to relate to 
 obstructions which permanently prevent the ship from reaching her 
 destination, or which would delay her for an unreasonable time. 
 Temporary obstacles, causing delays which may be regarded as 
 contemplated incidents of the voyage, will not excuse the owner. 
 He must wait until they are removed, and then proceed. Thus, if 
 the ship is to go to a wharf in a tidal harbour which she can only 
 reach at spring tides, the master cannot claim to be unloaded at a 
 different place merely because upon arriving the tides are neap (s). 
 
 In Metcalfe v. The Britannia Ironworks Co. (a), a cargo of rail- 
 way iron had been shipped in a steam ship, under charter party, 
 to be carried to Taganrog, on the Sea of Azof, or as near thereto 
 as the ship might safely get and deliver the same afloat. She 
 arrived at Kertch, at the entrance to the Sea of Azof, about 300 
 miles by sea from Taganrog, on the 17th December, 1873. The 
 navigation of the Sea of Azof was then closed by ice, and would 
 not under ordinary conditions be open until April, 1874. The 
 cargo was discharged at Kertch, which was, under the circum- 
 stances, as near to Taganrog as the ship could get. But the 
 Courts held that the shipowner had not performed his contract, 
 and was not entitled to freight. 
 
 Lord Coleridge, C. J., in the Court of Appeal, said (6) : " It is 
 not necessary to say more than that the obstruction was only tempo- 
 rary, and is such as must be incident to every contract for a voyage 
 to a frozen sea, and it cannot be said that in all these contracts the 
 words ' at that time ' or ' then and there ' are to be inserted after 
 the words ' as near thereto as the ship can safely get.' " 
 
 454. The obstacle, need not be of a physical kind. It may, for 
 instance, arise from a refusal of those who control the access to the 
 
 The ohstaole 
 need not be 
 physical, nor 
 permanent. 
 
 («/) Supra, s. 44. 
 
 (z) Parker v. Winlo, 27 L. J., Q. B. 
 4g ; BaetifeU v. Lloyd, 31 h. J„ Ex. 
 
 413. 
 
 {a) 1 Q. B. D. 613 ; 2 Q. B. D. 423. 
 (i) 2 Q. B. D. at p. 426. 
 
THE DISCHARGE. 
 
 505 
 
 agreed place (c). Also, it need not be permanent. It is sufficient Sect. 464. 
 if it cannot be overcome by the shipowner without such a delay as 
 would be unreasonable, having regard to the objects of the 
 adventure of both charterer and shipowner, and to the circum- 
 stances which they may be supposed to have had in contempla- 
 tion (d). 
 
 In Nelson v. Dahl (c), the ship was to deliver her cargo at 
 " London Surrey Commercial Docks, or as near thereto as she may 
 safely get." Those docks were so fuE. when she arrived in the 
 Thames that she could not be admitted into them for at least a 
 month, and probably not for several months. It was held by the 
 Court of Appeal and the House of Lords, overruling Jessel, M. E.., 
 that her voyage was performed on bringing her to the dock 
 entrance. 
 
 Lord Blackburn said (e) : " The shipowner would, I think, be 
 bound to go into the dock if he could do so by waiting a 
 reasonable time, but not if he could only do so by waiting an 
 unreasonable time. It is quite true that a question of ' reasonable 
 or unreasonable ' must always be a question of more or less, and 
 therefore of uncertainty, but that I think cannot be helped. I do 
 not pretend to lay down any precise rules as to what is reasonable 
 or what is not. I think the main elements to be considered are, 
 what would be the effect on the object of the contract, and the 
 damage to each party caused by the delay ; and if the result be to 
 lead those who have to decide the question to think (to adopt the 
 language of the Master of the EoUs) that it is absurd to suppose 
 that two commercial men entering into a contract to charter a 
 steamer to go to a dock, or as near thereto as she may safely get, 
 should mean that she was to wait outside so long, they ought to 
 find it unreasonable." 
 
 And Lord "Watson said (/) : " Seeing that on the 4th of August, 
 the authorities could not undertake, within a month, or any other 
 given time, to admit The Euxine into the dock, and that even on the 
 23rd of August they were not in a position to give a more definite 
 or satisfactory undertaking, it appears to me to be safe to conclude 
 that the length 'of time for which The Euxine must have waited in 
 
 (c) Nelson v. DaU, 12 Ch. D. 66S; 1 Cab. & EU. 276 ; Sohilizzi v. Derry, 
 
 6 A. 0. 38. 24 L. J., Q. B. 193 ; supra, s. 225. 
 
 {d) Ibid. See per Brett, L. J., 12 Ch. («) 6 A. C. at p. 54. 
 
 D. at p. 593. Cf . Castel v. Trechman, {/) 6 A. C. at p, 63, 
 
506 THE DELIYERY. 
 
 Sect. 454. the Port of London, in order to discharge in the Surrey Docks, 
 would have been in excess of any delay which either the shipowner 
 or the charterer, at the time of entering into the charter party, 
 could reasonably have contemplated." 
 
 Safety of 454a. This clause, "so near thereto as she can safely get," 
 
 i%ip the test. .^ _^^^ ^^ ^g^^^g ^^ ^^g gg^f g^y q£ ^j^g gj^-p jierself , not to the safety 
 
 of the cargo. In Nobel's Explosives Co. v. Jenkins {g),& ship carry- 
 ing dynamite in 1894 to Yokohama in Japan, was calling at Hong 
 Kong when war broke out between Japan and China. The master 
 landed the dynamite at Hong Kong, and went on to Yokohama 
 without it. Had he proceeded with the dynamite on board the 
 ship would probably have been stopped and searched by Chinese 
 cruisers. In that case the dynamite would have been confiscated ; 
 and it was uncertain what course the captors would have taken 
 with the ship and the rest of the cargo. Mathew, J., held that 
 the shipowner was excused by the exceptions in the bill of lading 
 from carrying on the dynamite, but that the ship was not, at Hong 
 Kong, so near to Yokohama as she could safely get. " The 
 contract was not to carry to the nearest place to which the goods 
 could safely get; but to deliver the goods at Yokohama, or as 
 near thereto as the vessel could safely get. The vessel did get to 
 Yokohama, and the obligation to deliver the goods under the 
 clause in question thereupon became complete. This ground of 
 defence seems to me untenable " (/«). 
 
 "At all times 455. Sometimes the clause is more stringent. In Horsley v. 
 of tide " . . 
 
 Price (j) the charter party provided that the ship should proceed 
 
 to Sharpness, " or so near thereto as she may safely get, at all 
 times of tide, and always afloat," and deliver the cargo. On 
 arrival in the Severn she came to an anchor in King's Eoad, an 
 open roadstead without any wharf ; that being the nearest place to 
 Sharpness to which she could get at the then state of the tides. 
 North, J., held that she had arrived at her destination, so that the 
 lay days began to run. 
 Always Words like " always afloat " may operate as a condition of the 
 
 shipowner's obligation to carry the goods to the agreed desti- 
 nation. A bill of lading required delivery to be " at the port of 
 Sutton Bridge always afloat." On arrival in Yarmouth Eoads the 
 
 (g) (1896) 2 Q. B. 326. (i) n Q. B. D, 244. And see Allen 
 
 [h] (1896) 2 Q. B. p. 330. v. Coltart, 11 Q. B. D. 782. 
 
 afloat."' 
 
THE DISCHARGE. ' 507 
 
 master found that it would be impossible for his vessel to discharge Sect. 455. 
 the whole, or any suhstantial part, of her cargo at Sutton Bridge 
 without taking the ground ; he therefore refused to go there, and 
 discharged at King's Lynn, the nearest practicable place. 
 Mathew, J., held that he was justified in doing so (Ic). 
 
 456. Ordinarily when the ship has failed to get to her desti- MaysHp- 
 nation, but has arrived at the nearest safe place to it, within the to proceed 
 meaniQg of the charter party, the merchant must take the cargo Amoved ? 
 from alongside at that place, and must provide the necessary 
 appliances for doing so there (l). But if the difficulty of reaching 
 
 the destination were merely one of tides, which might be sur- 
 mounted after a short delay, it may be that the shipowner would 
 be held bound to go on to the agreed place for discharging when 
 that became practicable ; even though, as in Horsley i). Price (m) , the 
 particular charter might entitle him to claim that the lay days 
 began before the ship got there. 
 
 That case did not decide whether the shipowner was entitled to 
 refuse to take his ship on to Sharpness when that became possible. 
 The point did not arise. In fact, the shipowner offered to dis- 
 charge some of the cargo at King's Eoad, so as to enable her to 
 proceed to Sharpness, but the charterer refused to take it. What 
 was decided was that the lay days began to run as soon as she had 
 got as near as she could. 
 
 457. The question has several times been raised whether the Must owner 
 shipowner is not bound to lighten the vessel, by discharging part fefsibS? 
 of the cargo, when that is necessary in order to enable her to reach 
 
 the agreed port. 
 
 If such a discharge is feasible, and the charterer is ready to 
 receive the cargo at the intermediate place, is the shipowner bound 
 to lighten the vessel ? or allow her to be lightened ? or may he at 
 once claim that he has finally arrived at his destination, relying on 
 the clause " or so near thereto as she may safely get " ? 
 
 As we have seen, iE the charterer is to name the port, he cannot 
 require the owner to send his vessel to a port which she cannot 
 enter without first lightening (w) : the port must be safe for the 
 
 {k) Treglia v. Smitli's Timter Co., 1 Blackbiun in Dahl v. Nelson, 6 A. C. at 
 
 Com. Ca. 360. p. 43. 
 
 {I) Reynolds v. Tomlinson, (1896) 1 (m) U Q, B B 244 
 Q. B. 586 ; TregHa v. Smith's Timber 
 
 Co., 1 Com. Ca. 360. See per Lord («) The Alhambra, 6 P. D. 68. 
 
508 
 
 THE DELIVERY. 
 
 Sect. 457. gjjjp ^j^jjg f^iiy loaded. But when the port of discharge has been 
 agreed upon by the parties, or orders given for it have been 
 accepted, the case may be different. In Hillstrom v. Gibson (o) 
 the ship was ordered to Glasgow ; but her draught was too great to 
 allow her to go up to Glasgow and lie there " afloat at all times of 
 tide," as required by the charter party. The master proceeded, 
 however, as far as the Tail of the bank, an open roadstead about 
 twenty-two miles from Glasgow ; and having arrived there, he 
 claimed to deliver the cargo at that place, as being the nearest to 
 which he could safely get and lie afloat. The charterers offered to 
 Ughten the ship, and they required the master to let that be done, 
 and to proceed afterwards up to Glasgow, in order to deliver the 
 rest of the cargo. Ultimately this was done; but the owners 
 claimed demurrage, reckoning the lay days from the time of 
 arriving at the Tail of the bank. It appears to have been con- 
 ceded that they were not entitled to any demurrage if the master 
 was bound to lighten and proceed. 
 
 A majority of the Court of Session held that apart from any 
 custom of the port he was bound to " consent to any moderate and 
 reasonable lightening of the ship which would admit of going to 
 Glasgow safely ; " and the discharge of about one-fifth of the 
 whole cargo was considered reasonable. Delivery at the Tail of 
 the bank " could not have been reasonably forced by the master 
 upon the consignees ; " and the lightening was only a mode of 
 enabling him to fulfil the contract. 
 
 In Capper «. Wallace (p), Lush, J., delivering the judgment of 
 the Court, said : "It cannot, we think, be laid down as an iu- 
 flexible rule that when a ship has got as near to the port as she 
 can get, and the only impediment to proceeding further is over- 
 draught, the master is under all circumstances entitled to consider 
 the voyage at an end. He is bound to use all reasonable means to 
 reach the port. The words * as near thereto as she can safely get ' 
 must receive a reasonable, and not a literal, application. The 
 overdraught may be such, and the cargo so easily dealt with, as 
 that the surplus may be removed, and the ship sufficiently lightened, 
 without exposing her to extra risk, or the owner to any prejudice 
 and without substantially breaking the continuity of the voyage ; 
 and in such a case if the consignee is at hand to receive the surplus 
 
 (o) 8 Sess. Ca. (3rd), 263 ; 22 L. T., N. S. 248. 
 (p) 5.Q. B. D. 163, at p. 166. 
 
THE DISCHARGE. 509 
 
 cargo, and so relieve the overdraught, we are of opinion that it Sect. 457. 
 would be the duty of the master to lighten the ship and proceed to 
 the port. This is the principle laid down hy the Court of Session 
 in the case of HiUstrom v. Gibson " {q). 
 
 In this ease, however, one-third of the cargo would have had to 
 be discharged to enable the vessel to get to Koogerpolder, the port 
 named in the bill of lading. Moreover, the consignees were not 
 at hand to receive ; the charterers refused to make any arrange- 
 ment ; and no one appeared to take delivery. Under these circum- 
 stances it was held that the master was entitled to consider the 
 voyage as at an end, and to treat the place where she lay as the 
 place of discharge. So that he was allowed to recover from the 
 charterers the cost of lightering the cargo from that place up to 
 Koogerpolder. 
 
 458. In Hayton v. Irwin (r), a vessel was to deliver at a safe Effect of 
 port, " or so near thereto as she can safely get." She was ordered 
 to Hamburg and proceeded thither; but her draught prevented 
 her getting further up the river than Stade. The charterer refused 
 to take delivery of any part of the cargo at Stade ; and, in answer 
 to an action for the cost incurred in lightering up to Hamburg so 
 much as was necessarily discharged, he alleged a custom of the 
 port of Hamburg by which he was not bound to take delivery 
 anywhere but at that place, and was not liable for any such ex- 
 penses. It was held by the Court of Appeal, affirming Grrove, J., 
 that the alleged custom was inconsistent with the contract ; for it 
 required the ship to deliver at Hamburg whether she could get 
 there or not. The charterer was bound to take delivery at Stade 
 until the vessel was sufficiently lightened to enable her to 
 proceed (s). 
 
 [q] Mr. Scrntton, in Ms book oa to proceed up to that port when, after 
 Charter-partiea {3rd), pp. 88 et seq., lightening, it had become safe for her 
 expresses the view that this passage, and to do so. This also was the point dis- 
 the case of Hillstrom v. Gibson, are not cussed'in Capper v. Wallace. They are 
 reconcilablewithThe Alhambra, 6P. D. authorities on the effect of "so near 
 68. But in the Alhambra the question thereto as she can safely get ; ' ' not on 
 was whether the shipowner was bound the meaning of "safe port." Cf. Key- 
 to accept Lowestoft as a safe port, to nolds v. TomUnson, (1896) 1 Q. B. 586. 
 which his ship might be ordered. In {r) 5 C. P. D. 130. 
 Hillstromv. Gibson the shipowner had (s) Cf. Nielsen v. Wait, 14 Q. B. D. 
 not taken up the same position, he had 516 ; 16 Q. B. D. 67 ; The AUiambra, 6 
 accepted Glasgow as the port of desti- P. D. 68, per Cotton, L. J., p. 74 ; 
 nation, and the question was whether Reynolds v. Tomlinson, (1896) 1 Q. B, 
 the charterer might not require the ship 586. 
 
510 THE DELIVERY. 
 
 Sect. 459. 459. The port of discliarge is generally a place of wide extent, 
 
 The place of some parts of which only are suitahle for the discharge. In deter- 
 
 discharge. j^^^i^g tj^e place and the mode of discharging, the shipowner must 
 
 conform to the regulations and the ordinary practices of the place ; 
 
 he is bound to perform his contract reasonably, and that is the 
 
 reasonable manner of performing it (t). 
 
 But this is subject to exception in special circumstances. The 
 implied undertaking to go to the usual place may be impossible of 
 performance, and if so, the shipowner is not bound by it. " It may 
 be that if the shipowner had expressly agreed to go to the quay he 
 must haye been held to a strict performance of what he had con- 
 tracted to do ; but his express contract is only to deKver in the 
 port of Havre, and what is a compliance with that obligation must 
 depend on and vary with the existing state of things in the port " (m) . 
 If the cargo consists of various goods, the obligation will gene- 
 rally be satisfied by discharging at a place suitable and reasonably 
 convenient for the consignees as a whole ; though it may not be the 
 most usual place for dischargiQg some particular portion of the 
 cargo (v) . 
 
 Charterer has 460. Where there are several places in the port at which the 
 the option. cargo may properly be discharged, the option, in the case of a 
 general ship, lies with the shipowner ; unless the matter is controlled 
 by a usage of the port (x). But where the ship is under charter, 
 it has been held that the shipowner must obey the directions of the 
 charterer, or of the assignees of the cargo, as to which discharging 
 place to go to. A vessel loaded with a cargo of pit props, under 
 charter party, was to be unloaded at Sunderland at the usual place 
 of discharge, and according to the custom of the port for ships 
 with similar cargoes. On her arrival at Sunderland the master, 
 without waiting for instructions, took her into the South Dock ; 
 but before any discharging began the assignees of the cargo ordered 
 him to go into the Gill Dock and discharge there. They did not 
 tender the expenses to which the master had been put. Both docks 
 were proper places for discharging pit props. Sir E. Phillimore 
 held that it was the duty of the master to obey the orders of the 
 
 (t) As to when the lay days commence, (») The Maaootte, 51 Fed. Eep. 606 
 
 see Chap. XVII. (1892). Cf. The Port Adelaide, 38 Fed. 
 
 («) Cargo ex Argos, L. E., 5 P. C. at Eep. 763 (1889). 
 
 p. 160. Cf. Waugh V. Morris, L. E., 8 (») See The Brig Kttler, cited Ang. 
 
 Q. B. 202. CaiT. B. 301 (n). 
 
THE DISCHARGE. 511 
 
 cargo owner; reserving to himself the right of recovering the Sect. 460. 
 expenses which he had incurred {y). 
 
 The charterer must, however, exercise the option thus implied in 
 his favour in a reasonable manner. He is not entitled to cause 
 needless delay by selecting a place which is occupied, when there 
 are other places available, unless the contract expressly gives him 
 that right (s). 
 
 Where, however, an express right to select the discharging place 
 is reserved to the charterer, the only limitation seems to be that he 
 must select a place which is suitable, and which is free, or likely to 
 be free within a reasonable time {a). Thus in Murphy v. Coffin (5), 
 the charter party required the vessel to proceed to Dieppe and 
 deliver the cargo of coals " alongside consignee's or railway wharf, 
 of into lighters, or any vessel or wharf where she may safely deliver 
 as ordered, cargo to be loaded and discharged in forty- eight running 
 hours." Demurrage was to be payable at 10s. an hour. The ship 
 arrived in the dock at Dieppe on the afternoon of July 1st, and 
 was ordered by the charterers to discharge at the railway wharf. 
 There were only five berths available for this purpose at that wharf, 
 and none of them were vacant until the evening of July 2nd. It 
 was contended on behalf of the shipowner that under those circmn- 
 stances the ship ought to have been discharged by lighters ; but 
 the Court considered that the charterers' option under the charter 
 party entitled them to order her to the railway wharf, without 
 paying for the delay (c). 
 
 (y) The Felix, L. R., 2 A. & B. 273. the ship's position has to be done by the 
 
 I am not aware that this mling has charterer, such as providing appliances 
 
 been dissented from by judges of the for the discharge (i«/?-«, s. 618), a refusal 
 
 High Court; but County Court judges of the shipowner to go to the place which 
 
 have refused to follow it ; and it seems he has selected, might well be regarded 
 
 to be contrary to Dr. Lushington's as unreasonable. Of. per Lord Esher 
 
 opinion in The Norway, 12 L. T. 57, at in Nielsen u. Wait, 16 Q. B. D. at 
 
 p. 61. It may well be doubted whether p. 69. 
 
 the contract leaves the choice of the dis- (z) gee per Lord Blackburn, Dahl v. 
 
 charging place with the charterer Nelson, 6 A. C. 38, p. 44 ; Pyman v. 
 
 where no express option is given to Dreyfus^ 24 Q. B. D. 152. 
 
 him, as is frequently done. Eor dis- ^ ^^ rj,^^^^^^ ^^_ ^^ ^_ ^ 
 
 charging and dehvering are the ship- ^^ggjj ^ ^ ^ g^^ . ^^ ^^4 (b), 
 
 owner s business; and, subject to express „„„ ' 
 conditions, he performs his undertaking 
 
 by deUvering at the agreed port m a ,(*' ^^ Q. B. D. 87 ; Parker v. Winlo, 
 
 reasonable manner ; and that is generally ' ■ •> ^- ■ *''■ 
 
 satisfied by a delivery in one of the usual (c) But see Pyman v. Dreyfus, 24 Q. 
 
 places for such a discharge. Where, B. D. 152 ; DaU'orso v. Mason, 3 Sess. 
 
 however, something which depends upon Ca. (4th), 419. 
 
512 
 
 THE DELIVERY. 
 
 Sect. 460. 
 
 Mode of 
 discharge 
 follows prac- 
 tice of port. 
 
 In Thorsen v. McDowall {d), a timber cargo was to be unloaded 
 as customary, at bucL. wharf or dock as the charterers might direct. 
 They ordered her to the Queen's Dock (Glasgow) ; but the harbour 
 master refused to let her enter on the ground of danger to other 
 traffic by the discharge of the logs through the bow ports, and he 
 directed her to Yorkhill, where the logs had to be put into the 
 water and rafted. Held that the order to the Queen's Dock was of 
 no avail, and that there was no breach of the charter party. 
 
 Grenerally the whole discharge takes place at one spot; and 
 probably the charterer has no right to require delivery at several 
 places unless that has been stipulated for. But if there is a settled 
 custom at the port for vessels to discharge partly at one place and 
 partly at another, that will bind the shipowner (e). 
 
 461. The manner of discharging also is, in the absence of special 
 terms, to be determined by reference to the regulations and 
 practices of the port of discharge (/) . These will show whether 
 the goods should be discharged in the open water, or at a wharf, 
 or in dock ; and whether on to the wharf or quay, or into a hulk 
 or lighters alongside the ship. If more than one of these methods 
 is commonly adopted, and is suitable for the particular ship and 
 cargo, it would seem that the shipowner satisfies his contract by 
 delivering according to any one of them he may choose. But if 
 one mode of discharge involves charges upon the consignee which 
 another suitable and convenient mode avoids, the shipowner cannot, 
 contrary to the consignee's demand, insist upon adopting the 
 former. Thus, if the consignee requires, and is ready to take 
 delivery into lighters without the goods fii'st being landed on the 
 wharf at which the vessel is lying, the shipowner will be answer- 
 able if he lands them on to the wharf and so makes them liable to 
 wharfage charges {g). Nor can the master, where delivery into 
 lighters is properly demanded, require a contribution from the con- 
 signee to the wharfage rates incurred by the ship {h). 
 
 These matters may, however, be regulated by usages of the port. 
 Thus, in Marzetti v. Smith («'), it was proved that there was a weU- 
 
 [d) 19 Seas. Ca. (4tb), 743. 
 
 («) Per Cotton, L. J., The Alhamhra, 
 6 P. D. at p. 74. Of. M'lntosh v. Sin- 
 clair, Ir. R., 11 01. 456 ; Nielsen v. Wait, 
 14 Q. B. D. 516 ; 16 Q. B. D. 67. 
 
 [f) As to the customs regulations in 
 the United Kingdom, see Customs Laws 
 
 Consolidation Act, 1876 (39 & 40 Vict, 
 c. 36), ss. 39—99. 
 
 is) Syeds v. Hay, 4 T. R. 260 ; Grey 
 V. Butler's Wharf, 3 Com. Ca. 67. 
 
 (h) Bishop V. Ware, 3 Camp. 360. 
 (i) 49 L. T. 680. 
 
THE DISCHARGE. 513 
 
 known custom for steamships -witli general cargoes coming into the geot. 461. 
 port of London and using the docks (the Victoria Docks) to dis- 
 charge the goods on the quay, and thence into lighters, and not 
 to discharge them directly into lighters ; and this was held to he 
 binding on a consignee. So that, although he had demanded 
 delivery iuto lighters on the water side of the ship, he could hot 
 recover from the shipowners the landing and other charges which 
 he had to pay to the London and St. Katharine's Dock Company 
 in consequence of the goods being landed on to the quay (k). And 
 it was also held that this custom was not inconsistent with the bill of 
 lading, which provided that the goods should be delivered " from 
 the ship's tackles." 
 
 462. Grenerally speaking, the consignee of the goods or the Generally 
 charterer is bound to remove the goods from the ship's side, and consignee 
 to provide for that purpose a proper number of men and suitable ^^J^f^^ 
 appliances of the kind ordinarily used at the port, having regard ship's side, 
 to the manner in which the ship is to be discharged (l). 
 
 The shipowner discharges the cargo out of the ship, and he must 
 supply the needful men and appliances for getting the goods out 
 of the holds, and delivering them upon the deck, or at the ship's 
 side. This work is frequently done by the crew of the ship ; and 
 where that is usual the number of men to be employed should be 
 determined, it would seem, by reference to the proper working 
 number of the crew of the ship in question (m) ; unless the time in 
 which it is agTced that the work shall be done requires that more 
 men be employed («). 
 
 In Petersen v. Freebody (o), the cargo was of spars and poles, 
 which were to be discharged in the Surrey Commercial Docks, 
 London, "overside .... into lighters." It was contended on 
 behalf of the consignees that the ship's crew were bound to put the 
 spars and poles completely into the lighter, and must, if necessary 
 for that purpose, put some of their own men into the lighter. 
 That contention was held to be mistaken. Lord Esher said, " The 
 
 (A) SeealBoPetroooohino«i.Bott,L. E., in Dahl v. Nelson, 6 A. C. at p. 43. Of. 
 
 9 0. P. 355, post, a. 468. In The Clan Postlethwaite v. Freeland, 5 A. C. 595. 
 
 Maodonald, 8 P. D. 178, a similar cua- See infra, ss. 618, 619. 
 
 torn was set np in relation to tte East {mj See per Blaoktum, J., in Ford v. 
 
 and West India Docks, but was not Cotesworth, L. E., 4 Q. B. p. 534. 
 
 estabHshed. («) See Hansen v. Donaldson, 1 Sesa. 
 
 {I) Wright V. New Zealand Shipping Ca. (4th) 1066, infra, s. 612. 
 
 Co., 4 Ex. D. 165 ; per Lord Blaokhum (o) (1896), 2 Q. B. 294. 
 
 C. — C. L L 
 
614 
 
 THE DELIVERY. 
 
 Sect. 462. shipowner has performed the principal part of his obligation when 
 
 he has put the goods over the rail of his ship ; hut I think he must 
 
 do something more— he must put the goods in such a position that 
 
 the consignee can take delivery of them. He must put them so 
 
 far over the side as that the consignee can begin to act upon them ; 
 
 but the moment the goods are put withia the reach of the consignee 
 
 he must take part in the operation" {p). 
 
 Sorting of Also the shipowner must separate the goods so as to give 
 
 '""'^°' delivery to the several consignees. But where goods have been 
 
 shipped in bulk, as one parcel, the consignee cannot require the 
 
 shipowner to separate them. Thus, the consignee of a parcel for 
 
 which a bill of lading has been given describing it as " bones," 
 
 but which in part consisted of horns, hoofs, and piths, could not 
 
 require the shipowner to separate these from the bones before 
 
 delivering (^). 
 
 Shipowner Generally speaking, the shipowner's obligation is performed by 
 
 disoiiarged by a delivery at the ship's side, or, at most, on the quay {r). If the 
 
 sMp'-sTide. consignee sends lighters for the goods, a delivery into the lighters, 
 
 to his agents or servants, as a rule terminates the shipowner's 
 
 responsibility. In Catley v. Wintringham (s), however, decided 
 
 in 1792, it appeared that the custom in the Eiver Thames was for 
 
 the lightermen to leave the lighters alongside the ship until they 
 
 were completely loaded, and that by the custom the master was 
 
 bound to guard the goods which had been placed in the lighters 
 
 until the loading was complete. It was held that this custom was 
 
 binding upon the master, although he had told the lightermen that 
 
 he had not sufficient men on board to take care of the goods on the 
 
 lighters. But in Eobinson v. Turpin {t) it was held that the 
 
 custom did not bind the master to take care of the lighters after 
 
 they had been fully loaded. 
 
 (p) Per Lord Esher, (1895) 2 Q. B. 
 at p. 297. Of. Aktieselkab Helios v. 
 Ekman, (1897) 2 Q. B. 83, where it was 
 found that a custom existed in the port 
 of London for the ship to discharge long 
 lengths of timber into the lighters, with- 
 out assistance from the consignees ; 
 though whether the custom required the 
 ship to stow the timber in the lighters 
 was left undetermined. See also Ste- 
 phens V. "Wintringham, 3 Com. Ca. 169 ; 
 Brenda S.S. Co. v. Green, (1900) 1 Q. B. 
 518. 
 
 [q) Claoevioh v. Hutoheson, 25 So. 
 L. E. 11. Cf. The Norway, 13 L. T. 
 50. 
 
 (c) Per BuUer, J., Hyde v. Trent, &o. 
 NaT. Co., 6 T. B,. p. 397. 
 
 («) 1 Peake, N. P. C. 202. 
 
 if) Peake, N. P. C. 203, n. Cf. Strong 
 V. NataUy, 1 B. & P. N. E. 16 ; Hurry 
 V. Royal Exchange Assurance Co., 2 B. 
 & P. 430. As to responsibility for the 
 seaworthiness of lighters used in dis- 
 charging, see Lane v. Nixon, L. R., 1 
 0. P. 412. 
 
THE DISCHAEGE. '^15 
 
 It seems douttful, however, whether a shipowner would be Sect. 462. 
 bound by a custom of the port which would impose special duties 
 on him, not ordinarily implied into the contract, unless it could be 
 shown that he made the contract with notice of the custom. For 
 example, he probably could not be required to employ extra hands, 
 in addition to his proper crew, in order to get the cargo out of the 
 ship more quickly ; nor to deliver the goods at places beyond the 
 quay at which he is discharging (u). 
 
 463. Charters often stipulate that the cargo shall be taken from Charterer to 
 "alongside" by the merchant. The meaning of this generally is "alongside." 
 that the merchant is to take the goods as they are passed out of 
 the ship, either on to the quay, or into lighters {x) ; and in the 
 latter ease it requires the merchant to provide the lighters, whatever 
 the custom may be (y). If the shipowner is put to expense in 
 consequence of a failure of the merchant to supply the men and 
 appliances to take delivery in this manner, he is entitled to recover 
 it from the charterer. 
 
 In Holman v. Wade (s) a cargo of timber was to be delivered at Inconsistent 
 Hull, and to be " taken from alongside the ship at the merchant's 
 risk and expense as customary." The cargo had to be stacked on 
 the quay ; and as the merchant refused to stack it, the master did 
 so, and sued for the expense. A custom of the port of Hull was 
 set up that the ship should bear the expense of stacking the timber 
 on the quay in such a case ; but the Court of Appeal upheld 
 Manisty, J., in excluding evidence of the custom as being incon- 
 sistent with the contract. 
 
 In The Nifa (a) the cargo was to be " taken from alongside the 
 ship at merchant's risk and expense, where she can lie always afloat 
 and safe," and was to be discharged as fast as steamers could 
 deliver, " and according to the custom of the port." The ship was 
 moored fifteen feet from the quay, owing to want of water, and was 
 discharged by means of a stage. In an action by the shipowners 
 for the expenses of landing and stacking the cargo, the County 
 Court Judge admitted evidence of a custom at the port requiring 
 the ship to deliver on to the quay. On appeal this was held to 
 
 («) See supra, ss. 197—199. (1897) 2 Q. B. 83. 
 
 (x) See Pletolier v. GriUesple, 3 Bing. (i/) But cf. Sorutton v. Childs, 36 
 
 635 ; Trindade v. Levy, 2 P. & F. 441. L. T. 212. 
 
 Petersen v. Freebody, (1895) 2 Q. B. («) "Times," May 11th, 1877. 
 
 294 ; AMieselkab HeUos v. Ekman, (a) (1892) P. 411. 
 
 L l2 
 
516 THE DELIVEEY. 
 
 Sect. 463. have been wrong. The reference in the charter to the custom of 
 the port relates to the manner and place of discharge ; and did not 
 alter the obligation to take from alongside (b). 
 
 Where the customary manner of discharge at the port requires 
 that the cargo be put out by those working on the ship, say into 
 lighters or on to a quay, it has been held that the word " alongside " 
 may mean, not actually at the ship's side, but iu a lighter lying 
 alongside her (c), or at the nearest available spot of the quay at 
 which she is lying [d). 
 
 On the other hand, a clause that the cargo was "to be taken 
 from alongside at the charterer's risk and expense, any custom of 
 the port to the contrary notwithstanding," was held to exclude this 
 extension of the meaning (e). 
 
 Port by-laws. 464. In most British ports of importance the harbour and docks, 
 &c., are under the control of some corporation or company, either 
 managing them under a public trust, or carrying them on as a 
 commercial undertaking. G-enerally the docks have been con- 
 structed under private Acts of Parliament, which define the powers 
 of those who manage them; and most of these Acts incorporate 
 the Harbours, Docks and Piers Clauses Act, 1847 (/), or parts of 
 it. By that Act, and sometimes by the private Act, powers are 
 given to make by-laws for governing the docks, and for regulatiag 
 the loading and discharge of goods. These enactments and 
 by-laws form special conditions under which the discharge of 
 cargoes must take place. 
 
 In Dick V. Badart(9') an important question arose as to the 
 scope of the by-law powers given by sect. 83 of the general Act. 
 The Surrey Commercial Dock Company had prescribed by by-law 
 that no lumpers should work on board any vessel in their docks, or 
 on their wharves or premises, but such as were authorized by the 
 company. Cave, J., held that this was not valid ; on the gi-ound 
 that by sect. 33 of the Act the harbour, docks, and piers were to 
 be open to all persons for the shipping and unshipping of goods, 
 on payment of the rates made payable by that and by the special 
 
 (J) Cf. Seager v. New York, &o. S.S. (1897), 2 Q. B. 83. 
 
 Co. 86 I'ed. Eep. 324, 880, (1893) where {d) Stephens v. Wintrmgham, 3 Com. 
 
 the ship by custom had to bear the ex- Ca. 169. 
 
 peuse of piling on the quay, although («) Brenda S.S. Co. v. Green, (1900) 1 
 
 the delivery was to be "alongside and Q. B. 618. 
 
 within reach of the ship's tackles." (/) 10 & u Vict. c. 27. 
 
 («) Aktieselkab Helios v. Ekman, {g) 10 Q. B. D. 387. 
 
THE DISCHARGE. 517 
 
 Act, and subject to their other provisions. " To my mind that Sect. 464. 
 provision must include not only shipowners and owners of goods, 
 but also their respective servants, whether usually employed 
 otherwise than in the docks or not." 
 
 465. The master is not bound to notify the arrival of the ship Master not 
 to the consignees of the cargo ; they are bound to watch for it, notify arrival 
 and to take notice of it without communication. This has been ° °°'^s^^^' 
 repeatedly held to be the rule with regard to consignees and 
 indorsees of goods shipped in general ships {h) ; and presumably 
 
 the same is true where the shipments have been under a charter 
 party (»■). "It is the duty of the consignee, apart from special 
 custom or contract, to use due and reasonable diligence to discover 
 when the ship arrives with his goods on board " {k). 
 
 But the master ought to enter the ship's name at the Custom 
 House, or make such other pubhe notification of her arrival as is 
 usual at the port. And if he does this in such a way as to mislead 
 the consignees, he may be precluded from complaining of any 
 default on their part in taking deKvery, if they have not, in fact, 
 had notice of the arrival (1). 
 
 466. If the consignee of the goods does not appear to claim and Liability of 
 receive them, the master may land and warehouse them, or take landing 
 such other steps as may be proper for their protection. And the ®^P®"^®^- 
 consignee will be liable for any wharfage or other expenses properly 
 incurred in doing so (m). 
 
 Where goods were seized by the Excise in consequence of a 
 misdescription of the goods in the entry made by the shipowner, 
 which happened owing to the consignee's absence, and to want of 
 proper description in the bill of lading, it was held that the ship- 
 owner was not liable to the consignee for the loss («). 
 
 Where a time is aRowed for the discharge of the goods by the Consignee's 
 bill of lading or charter party, the master ought to wait for the be ready." 
 consignee until that time has elapsed ; but where no time is men- 
 
 (A) Harman v. Clarke, 4 Camp. 159 ; (m) Houlder ■i>. General Steam Nav. 
 
 Harman ». Mant, ib. 161 ; Houlder v. Co., 3 F. & F. 170 ; Mors le Blanch v. 
 
 General Steam Kav. Co., 3 F. & F. 170. Wilson, L. E., 8 C. P. 227 ; per WiUes, 
 
 (i) See per Brett, L. J., Nelson t;. Dahl, ^■' M:eyerstein v. Barber, L. R., 2 C. P. 
 
 12 Ch. D. at p. 583. P- ^*- ^- Stewart v. Eogerson, L. E., 
 
 6 C. P. 424. London custom as to grain 
 
 (A) Per Cookbum, C. J., 3 F. & F. cargoes, see Aste v. Stumore, 1 Cab. & 
 
 P- ^^*- EU. 319. M. S. Act, 1862, mfra, s. 475. 
 
 (2) See Harman v. Clarke, 4 Camp. («) Shirwell v. Shaplooh, 2 Cbitty, 
 
 159. 397, 
 
518 
 
 THE DELIVERY. 
 
 " Imme- 
 diately." 
 
 Shipowner's 
 right to 
 discharge. 
 
 Sect. 466. tioned lie is only bound to wait a reasonable time, having regard 
 to the usages of the port. If the bill of lading requires the con- 
 signee to take delivery '• immediately " (o) or " directly " {p) the 
 vessel is ready to discharge, he must be ready to do so promptly, 
 without any further delay than is reasonably required for the act 
 of discharge. Words of this kind are not construed with absolute 
 strictness, but they exclude excuses of delay based on matters out- 
 side the act of discharge itself. 
 
 In Wilson v. London, &c. Steam Nav. Co. [q), sixty-five pipes of 
 lemon juice were shipped under two bills of lading, which provided 
 that the consignee was to be ready to receive the goods " simul- 
 taneously with the ship being ready to unload " them, or any part 
 thereof, and that in default the master might enter and land them 
 at the risk and expense of the consignee after they left the deck of 
 the ship. The consignees were not ready to receive the lemon 
 juice when it was reached in the course of discharging the ship ; 
 but after fifteen pipes of it had been landed, they were ready with 
 men and lighters to take the remainder. The defendants refused 
 to deliver them, and landed the other fifty pipes ; thus putting the 
 plaintiffs to unnecessary expenses, for which they sued. It was 
 held that they were entitled to recover ; for the biR of lading did 
 not mean that a default of the consignee in being ready to receive 
 a part of the goods should entitle the shipowner to unload the 
 whole upon the wharf at which he was discharging. 
 
 Had the position of the shipowner been prejudiced by the default 
 the case might have been different. " If it would have caused 
 expense or loss of time to the shipowner to change the mode of 
 delivery, it might well have been contended that authority had 
 been given to him to land the goods on the wharf by the default 
 of the consignee in not being ready at first to receive his goods ; 
 and that such authority having been once acted upon, and expense 
 incurred thereby, it could not be revoked, and that the shipowner 
 was therefore entitled to land the remainder of the goods " (r). 
 
 Where the bill of lading contained the clause known as the 
 London clause entitling the shipowner " to land these goods on the 
 quays of the dock where the steamer discharges immediately on her 
 arrival," it was held to override a custom of the port which 
 
 Alexiadi 310. 
 
 (?) L. R., 1 C. P. 61. 
 
 (>•) Per Willes, J., at p. 68. 
 
 (o) See per Cookbum, C. J., 
 V. Robinson, 2 P. & F. 679. 
 
 ij>) Duncan v. Topham, 18 L. J., C. P. 
 
THE DISCHAEGE. 519 
 
 would have entitled the consignee to have delivery overside into Sect. 466. 
 lighters (s). 
 
 A clause enabling the shipowner to discharge in the consignee's 
 absence, and at his risk and expense, is for the shipowner's pro- 
 tection. He is not bound to exercise the power. And his omission 
 to do so is no answer to a claim for detention at the port ; although 
 a lien be given by the charter party for any charges which are to 
 be borne by the consignee {t). 
 
 467. The undertaking of the shipowner by his contract is, that Generally 
 he will deliver the goods to certain indicated persons. We have to personal 
 consider whether he can, under any circumstances, discharge that oon^mee 
 obligation in any way short of finding out those persons, and 
 delivering the' goods to them. 
 
 Prima facie, no delivery can suffice except a personal delivery to 
 the agreed consignee, or his agents (t<) ; until that has been made, 
 the contract remains unperformed. In Gatliffe ». Bourne (x), 
 goods were deliverable under a bill of lading at London to G-atliffe 
 or his assigns. They were landed at Fenning's Wharf during 
 working hours on the day after arrival, and that wharf was a usual 
 place for discharging ; but no notice had been given to the 
 consignees, and they were not there to receive the goods. On the 
 same night the goods were accidentally destroyed by fire. In an 
 action by GratlifEe, the question arose whether the delivery at the 
 wharf was sufficient to discharge the shipowner, and all the Courts 
 held that it was incomplete, and that the shipowner was liable for 
 the loss. " The contract was to deliver to the consignee in the 
 port of London ; instead of a delivery to the consignee, the goods 
 were placed on Fenning's Wharf " (y). 
 
 -408. But personal delivery may sometimes be excused by an Delivery 
 established course of business at the port. A delivery to certain aorar^g to 
 other particular persons may, by virtue of the custom, be equiva- ?^^*°™,°* 
 lent to a delivery to the consignee himself. 
 
 In GatHfEe v. Bourne (2), the question was left to the jury 
 whether the delivery at Fenning's Wharf was a sufficient delivery 
 
 («) Borrowman v. Wilson, 7 T. L. E.Marie, 32 L. T. 4 35 ; 2 Asp. N. S. 5U. 
 416. (x) 4 Bing. N. C. 314 ; in Ex. Ch., 3 
 
 {t) Hick V. Eodocanaohi, (1891) 2 M. & G. 643 ; in H. L., 7 M. & G. 850. 
 Q. B. 626. (y) Per Lord Lyndhurst, 7 M. & G. 
 
 (m) Howards. Shepherd, per Maule, J., p. 865. 
 19 L. J., C. P. p. 256 ; The Emilien (z) Supra. 
 
520 THE DELIVEEY. 
 
 Sect. 468. according to the usage of the port of London. They found that 
 it was not. So, in Wardell ®. Mourillyan (a), Lord Kenyon left 
 it to the jury to say what the custom was as to delivery. There a 
 hoyman, who had received an anchor to he delivered to certain 
 consignees, had delivered it to the wharfingers at the quay to 
 which his vessel regularly plied. He was held responsihle 
 for it. 
 
 On the other hand, in Petrocoohino v. Bott (b), sixty-nine bales 
 of hides had been shipped under a biU of lading, by which they 
 were to be delivered "from the ship's deck, where the ship's 
 responsibility shall cease, at the aforesaid port of London .... 
 unto Messrs. Petroeochino Brothers, or his or their assigns, on 
 payment of freight. The goods to be discharged from the ship as 
 soon as she is ready to unload into hulk, lazaretto, or hired lighters 
 if necessary, and to be landed by the master and agent at the risk and 
 expense of the owner of the goods." On the ship's arrival at London 
 she was taken to the Victoria Docks, and notice was given to the 
 consignees of the hides that she was ready to discharge. The hides 
 were at once unloaded and placed on the quay by servants of the 
 Dock Company, the consignees not being present, and they were 
 afterwards forwarded in lighters sent for them by the consignees. 
 One of the bales landed, however, was in some way not sent 
 forward in the lighters, and was lost. It was proved that the 
 usage as to delivery at the Victoria Docks was as follows : — When 
 a steamer arrives in the dock, notice is given to the consignees 
 of the goods on board, and the goods are landed from the ship on 
 to the quay by the servants of the Dock Company, the shipowner 
 not interfering. If the consignees apply for the goods within 
 twenty-four hours, they get them from the quay free of charge- 
 not from the ship into the lighters, but from the quay. The goods 
 are put into the lighters by the servants of the Dock Company, 
 and the shipowner pays for this. If the consignees do not apply 
 for the goods within twenty-four hours, they are warehoused by 
 the Dock Company, and the consignees pay for the warehousing. 
 It was held that a delivery according to this customary practice 
 satisfied the shipowner's tmdertaking to deKver at the port, unless 
 the contract was inconsistent with it ; and that, according to the 
 true construction of the bill of lading, the shipowner ceased to be 
 
 («) 2 Esp. 693, (}) L. R.^ 9 q p_ 355_ 
 
THE DISCHARGE. 521 
 
 responsilDle from the moment he cleared away the goods from the Sect. 468. 
 deck (c). 
 
 Goods were delivered, at Dundee, to harhour porters, whom the Port regula- 
 consignee was ohliged by the harhour regulations to employ and 
 pay for the purpose of receiving. This was held to he a delivery 
 to the consignee ; so that the shipowners were not responsible for 
 subsequent damage to the goods by rain while on the quay (d). 
 
 In The Emilien Marie (e), it was held that delivery of the whole 
 cargo to a master-porter at Liverpool, in accordance with the 
 regulations of the port, did not discharge the shipowner from 
 liability for short delivery to a bill of lading holder, the cargo 
 having been insufficient to satisfy all the bills of lading. 
 
 469. Unless the shipowner is in some way excused by statute (/), Delivery must 
 or custom, from the responsibility of making the actual delivery, rigM person, 
 he must deliver the goods to the right person (g) : to the person 
 who is entitled to them as owner, or as holder of the bill of lading. 
 
 Moreover he must deliver the right goods. If bills of lading have 
 been given for different portions of goods shipped under one mark, 
 the shipowner must appropriate them properly to the several bills 
 of lading. In Bradley v. Dunipace (/*), 1,676 bags of meal were 
 shipped together, all marked alike ; but some of the bags weighed 
 12 stones each, and the others only 8. A bill of lading was given 
 for 467 of them, described as " 467 bags of rye meal, or bran, 
 gross 35 tons, 9 ewt., under the subjoined marks." The bags 
 delivered to the holder of this bill of lading were too many of them 
 of the smaller size to make up the gross weight of 35 tons, 9 cwt. 
 The shipowner was held liable for not delivering the right bags. 
 
 We shall discuss in the next chapter the effect of the bill of 
 lading, and of dealings with it, in giving a right to the goods, or 
 to the possession of them. Here it is enough to note that where 
 there are conflicting claims the shipowner must not deliver to any 
 but the person rightfully entitled to the goods, otherwise he may 
 be answerable for the whole value of the goods («). His proper 
 course is to interplead {k). 
 
 («) As to the practice and rule in the (/) See infra, s. 480. 
 
 XJ. S., see Aug. Carr. ss. 310, 311 ; and (?) See McKean v. Mclver, 18 L. T. 
 
 Cope V. CordoTa, 1 Eawle, 203, there 410 ; on special case, L. E., 6 Ex. 36. 
 cited. (h) 31 L. J., Ex. 210; 32L. J.,Ex. 22. 
 
 (<?) British Shipowners' Co. ti.Grrimond, («) Wilson v. Anderton, 1 B. & Ad. 
 
 3 Sess. Ca. (4th) 968 ; Knight S.S. Co. f. 450 ; Batut v. Hartley, L. R., 7 Q. B. 
 
 Fleming, 25 Sess. Ca. (4th) 1070. 594 ; Hirst v. Bott, L. R., 9 Ex. 86. 
 
 (e) 32 L. T. 435. (*) Where the captain had given hills 
 
522 
 
 THE DELIVERY. 
 
 Sect. 469. 
 
 Delivery to 
 holder of bill 
 of lading. 
 
 Delivery to 
 another 
 carrier to 
 forward. 
 
 If, however, the shipowner and his agents have no knowledge of 
 other claims, and the bill of lading has heen validly issued and put 
 in circulation, he will he discharged, even as against thetrue owner 
 of the goods (1), by delivering to the holder of the biU of lading, 
 if he is the consignee named in it, or holds it duly indorsed. 
 
 "I think, as I have already said, that where the master has 
 notice that there has been an assignment of another part of the 
 bill of lading, the master must interplead or deliver to the one who 
 he thinks has the better right, at his peril if he is wrong. And 
 I think it would probably be the same if he had knowledge that 
 there had been such an assignment, though no one had given notice 
 of it or as yet claimed under it. At all events, he would not be 
 safe. La such a case, in delivering without further inquiry. But I 
 think that when the master has not notice or knowledge of any- 
 thing but that there are other parts of the bill of lading, one of 
 which it is possible may have been assigned, he is justified or 
 excused in delivering, according to his contract, to the person 
 appearing to be the assign of the bill of lading which is produced 
 to him" (m). 
 
 Delivery to the consignee named in the bill of lading does not 
 suffice to discharge the shipowner where the consignee does not 
 hold the bill of lading (m). 
 
 470. "Where the contract is that the shipowner will deliver to 
 another carrier that the goods may be forwarded to a further 
 destination, his responsibility in the matter will not generally be 
 termiaated when the goods leave the ship. It is a frequent prac- 
 tice to issue through bUls of lading, providing for a transit partly 
 by sea and partly by railway. The contracts thus made vary in 
 character, and the liability of the shipowner depends upon the 
 terms used ; but if the bill of lading states that the goods shall be 
 forwardecj from the port at which the shipowner is to deliver them, 
 he binds himself to do what is necessary for that purpose, by con- 
 tracting with the railway company, and by delivering the goods to 
 them to be forwarded. 
 
 In Moore v. Harris (o), the bill of lading provided that the 
 
 of lading for the goods to two different 
 persons, the Court refused to make an 
 interpleader order. Victor v. British and 
 African S. Nav. Co., W. N. 1888, p. 84. 
 {1} aiyn, MUls & Co. v. E. & W. 
 India Dock Co., 7 A. C. 691. And see 
 
 HoUias V. Fowler, L. E., 7 H. L. 757. 
 
 {m) Per Lord Blackburn, 7 A. C. 
 pp. 613, 614. See infra, ». 602. 
 
 («) The Stettin, 14 P. D. 142. See 
 infra, s. 486. 
 
 (o) 45 L. J., P. C. 65. 
 
WAREHOUSING. 523 
 
 goods were to " be delivered from the ship's deck, where the ship's Sect. 470. 
 
 responsihility shall cease, at the port of Montreal 
 
 unto the Grand Trunk Railway Company, and by them to he for- 
 warded thence per railway to the station nearest to Toronto, and 
 at the aforesaid station delivered to Messrs. Charles Moore and Co. 
 or to their assigns." It was considered in the Privy Council that, 
 although the ship would cease to he liable for damage done to the 
 . goods subsequent to the delivery to the Grand Trunk Company, it 
 would be the duty of the ship to contract with that company for 
 the carriage to Toronto. 
 
 And a printed clause that the goods were to be taken from 
 alongside by the consignee, or else that they would be landed and 
 stored ^.t his risk, was considered inoperative to control the specific 
 undertaking to forward the goods to Toronto. 
 
 Warehousing. 
 
 471. We have stOl to consider the nature of the shipowner's Liability of 
 
 liability after he has landed the goods, where they remain on his wherJclm- 
 
 hands owius' to some default on the part of the consignee in f f^®? ^^^^ *° 
 _ ° ^ ° take delivery. 
 
 taking delivery. The case of GatlifEe v. Bourne (p) was partly 
 decided upon demurrers to pleas; and the Courts of Common 
 Pleas and Exchequer Chamber considered it an important point 
 that it did not appear from the pleas whether a reasonable time 
 had been allowed to elapse after the ship's arrival to enable the 
 plaintiff to claim and receive his goods from alongside the vessel. 
 Denman, C. J., stated the shipowner's duty as follows : " The 
 defendants were bound to keep the goods on board (or at the 
 wharf at their own risk) for a reasonable time, and they continued 
 liable until such reasonable time had elapsed" (q). 
 
 Unless, however, the contract has come to an end by the default 
 of the consignee, it is difficult to see how that default can relieve 
 the shipowner of his undertaking to make a delivery; and Lord 
 Lyndhurst, as quoted above (r), based his judgment on the broad 
 ground that there ought to have been a deKvery to the consignee. 
 
 But although the improper delay of the consignee may not 
 excuse the shipowner from the duty to deKver to him, and to him 
 only, it may have the effect of altering the degree of responsibility 
 for the sa/eti/ of the goods which the shipowner must bear. We 
 
 (p) Cited aboTe, s. 467. (?) 3 M. & G. p. 688. (r) Sect. 467. 
 
524 
 
 THE DELIVERY. 
 
 Sect. 471. 
 
 Shipowner 
 liable as 
 carrier for 
 safety while 
 he holds as 
 such. 
 
 have to consider two different duties of the shipowner ; one, that of 
 taking care of the goods and answering for their safety ; the other, 
 that of delivering them to the right persons. This latter may 
 continue unimpaired, though the duty of taking care of the goods 
 may hecome less stringent than it was under the contract of 
 carriage (s) . 
 
 472. So long as the shipowner continues to hold the goods as 
 carrier he is answerable for their safety to the extent imposed on 
 him by the contract of carriage. The mere fact that the goods are 
 at their intended destination, and not in course of transit, but in 
 the carrier's warehouse, is not sufficient to change his responsibility 
 to that of a warehouseman simply (t). 
 
 But if by arrangement, or following a usual course of business, 
 the carrier at the end of the transit puts the goods into warehouse 
 for their owner, to stay there until he is ready to take them (u), or 
 until another person who is to carry them forward is ready to do 
 so («),the carrier ceases to be responsible as such; and becomes 
 answerable only as a warehouseman for any want of reasonable 
 care in keeping the goods. 
 
 And the same is true where a carrier, having warehoused the 
 goods at their destination, gives notice to the consignee that he will 
 hold them only as a warehouseman, and that notice is accepted by 
 the consignee (?/). 
 
 Not after 473. Also, if the consignee refuses to take delivery of the goods, 
 
 delivery. the Carrier is not afterwards responsible for them as carrier. They 
 
 remain in his hands against his will, under circumstances not dealt 
 with by the contract ; and his only duty with regard to them is to 
 treat them in a reasonably careful and prudent manner (z) ; even 
 though he may be retaining them in his hands in order to preserve 
 his lien for the freight due on them (a). 
 
 Nor if con- 474. And the same rule applies when the consignee fails to take 
 
 agnee fails to . . . 
 
 appear for an delivery in proper time. If the cargo is ready to be delivered, it is 
 ^e soua e ^^^ ^^^^ ^^ ^^^^ consignee to come and take it, and if he does not 
 
 (5) See infra, sects. 480, 481. 
 
 {t) See the judgments in Hyde v. 
 Trent, &o. Nav. Co., 5 T. R. 389. 
 
 (») Re Webb, 3 Taun. 443. 
 
 (x) G-arside v. Trent, &o. Nav. Co., 
 4 T. R. 581. 
 
 (y) Mitchell V. L. & T. Rail. Co., 
 
 L. R., 10 Q. B. 256. 
 
 (z) Hudson V. Baxendale, 27 L. J., 
 Ex. 93 ; Crouch v. G. W. RaU. Co., 27 
 L. J., Ex. 345; Heugh v. L. & N. W. 
 Ran. Co., L. R., 6 Ex. 61 ; Bradshawf. 
 Irish N. "W. RaU. Co., 21 W. R. 581. 
 
 (a) Crouch v. G-. W. Rail. Co., i 
 
WAREHOUSING. 525 
 
 come within the agreed time, or within a reasonable time, where no gect. 474. 
 fixed period is allowed, the shipowner is improperly saddled with 
 the care of the goods. He may therefore terminate his responsi- 
 bility as carrier by warehousing them; and after doing so he 
 becomes, subject to the statute as to warehousing, responsible as a 
 warehouseman only (6). 
 
 " When once the consignee is in mora, by delaying to take away 
 the goods beyond a reasonable time, the obligation of the carrier 
 becomes that of an ordinary bailee, being confined to taking proper 
 care of the goods as a warehouseman ; he ceases to be liable in case 
 of accident" (c). 
 
 In Mackinnon v. Minchin (d), a biU of lading given for a box 
 of coral stipulated that if the consignee did not take delivery when 
 the ship was ready to discharge, the goods might be warehoused at 
 the merchant's risk ; and the shipowners' liability was to cease 
 when the goods left the ship's side. The consignee did not take 
 delivery at the ship's side ; the box was therefore taken to the 
 custom-house, and left there until the consignee produced the bill 
 of lading and took delivery. After the box left the ship's side 
 part of its contents were stolen. It was held that the shipowners 
 were not liable. 
 
 On the other hand, in Hong Kong and Shanghai Banking Cor- 
 poration V. Baker (e), it was held that goods landed by the master 
 at the custom-house wharf, and set apart there for the consignee, 
 were stiU in the possession of the master as carrier after a reason- 
 able time for taking delivery had elapsed. 
 
 If the shipowner still holds the goods as carrier, he does so 
 under the contract, and is entitled to the benefit of the exceptions. 
 But if he has warehoused the goods, under such circumstances 
 as to have become responsible as a warehouseman, it would seem 
 open to question whether exceptions of negligence, in the bUl 
 of lading, continue to protect him. 
 
 475. The following sections, forming Part VII. of the Merchant Mercliant 
 Shipping Act, 1894 (/), relate to the discharge and warehousing Act, 1894— 
 of goods imported into the United Kingdom :— warehousing. 
 
 Sect. 493. " (1) Where the owner of any goods imported in any 
 
 {*) Per 'Willes, J., Meyerstein v. (d) 6 Madras, H. 0. Eep. 353. 
 
 Barber, L. E., 2 C. P. 38, p. 54. / ^ w x> i. tt n -d r\ n t ,«,. 
 
 , , T, „ ,' „ T m. W ^ Bomb. H. C. Kep., 0. 0. J. 186. 
 
 (c) Per Cockbum, U. J., Chapman v. 
 
 G. W. EaU. Co., 5 Q. B. D. 278, p. 282. (/) «7 & 58 Viot. i;. 60. 
 
526 
 
 THE DELIVERY. 
 
 Sect. 475^ 
 
 Power of 
 sMpowner to 
 enter and land 
 goods on 
 default by 
 owner of 
 goods. 
 
 Landing for 
 assortment ; 
 consignee 
 ready. 
 
 Landing after 
 entry by con- 
 signee ; notice 
 to be given. 
 
 ship from foreign parts into the United Kingdom fails to make entry 
 thereof, or having made entry thereof to land the same or take delivery 
 thereof {g), and to prooeedtherewith with,' all convenient speed, by the 
 times severally hereinafter mentioned, the shipowner may make entry 
 of and land or unship the goods at the following times : — 
 
 "(a) If a time for the delivery of the goods is expressed in the 
 charter party, bill of lading, or agreement, then at any time 
 after the time so expressed : 
 "(b) If no time for the delivery of the goods is expressed in the 
 charter party, bill of lading, or agreement, then at any time 
 after the expiration of seventy-two hours, exclusive of a 
 Sunday or holiday, from the time of the report of the ship. 
 "(2) "Where a shipowner lands goods in pursuance of this section, 
 he shall place them, or cause them to be placed, 
 
 " (a) If any wharf or warehouse is named in the charter party, bill 
 
 of lading, or agreement, as the wharf or warehouse where the 
 
 goods are to be placed, and if they can be conveniently there 
 
 received, on that wharf or in that warehouse ; and 
 
 " (b) In any other case on some wharf or in some warehouse on or 
 
 in which goods of a like nature are usually placed ; the wharf 
 
 or warehouse being, if the goods are dutiable, a wharf or 
 
 warehouse duly approved by the Commissioners of Customs 
 
 for the landing of dutiable goods. 
 
 " (3) If at any time before the goods are landed or unshipped, the 
 
 owner of the goods is ready and offers to land or take delivery of the 
 
 same, he shall be allowed to do so (A), and his entry shall in that case 
 
 be preferred to any entry which may have been made by the shipowner. 
 
 " (4) If any goods are, for the purpose of convenience in assorting 
 
 the same, landed at the wharf where the ship is discharged, and the 
 
 owner of the goods at the time of that landing has made entry, and is 
 
 ready and ofiers to take delivery thereof, and to convey the same to 
 
 some other wharf or warehouse, the goods shall be assorted at landing, 
 
 and shall, if demanded, be delivered to the owner thereof within 
 
 twenty-four hours after assortment ; and the expense of and consequent 
 
 on that landing and assortment shall be borne by the shipowner. 
 
 "(5) If at any time before the goods are landed or unshipped the 
 owner thereof has made entry for the landing and warehousing thereof 
 at any particular wharf or warehouse other than that at which the ship 
 is discharging, and has offered and been ready to take delivery 
 thereof («), and the shipowner has failed to make that delivery, and 
 has also failed at the time of that offer to give the owner of the goods 
 
 (g) Miebrodt v. Fitzsimon, The 
 Energie, L. B., 6 P. C. 306. 
 
 (A) Where part already landed, see 
 Wilson V. London, &c. Nav. Co., L.B., 
 1 0. P. 61. This does not entitle him to 
 delivery in a manner opposed to the 
 
 custom of the port : Marzetti v. Smith, 
 49 L. T. 580. 
 
 («) Beresford v. Montgomerie, 34 L. J., 
 0. P. 41 ; Wilson v. London, &n. Co., 
 L. R., 1 C. P. 61. 
 
WAREHOUSING. 527 
 
 correct information of the time at which the goods can be delivered {k), Sect. 475. 
 then the shipowner shall, before landing or unshipping the goods in 
 pursuance of this section, give to the owner of the goods or of such 
 wharf or warehouse as last aforesaid twenty-four hours' notice in 
 writing of his readiness to deliver the goods (1), and shall, if he lands 
 or unships the same without that notice, do so at his own risk and 
 expense" (m). 
 
 Sect. 494. " If at the time when any goods are landed from any ship Lien for 
 and placed in the custody of any person as a wharfinger or warehouse- i J- ™° mds 
 man, the shipowner gives to the wharfinger or warehouseman notice 
 in writing that the goods are to remain subject to a lien for freight or 
 other charges payable to the shipowner to an amount to be mentioned 
 in the notice (»), the goods so landed shall, in the hands of the 
 wharfinger or warehouseman, continue subject to the same lien, if 
 any, for such charges as they were subject to before the landing 
 thereof ; and the wharfinger or warehouseman receiving those goods 
 shall retain them until the lien is discharged as hereinafter mentioned, 
 and shall, if he fail so to do, make good to the shipowner any loss 
 thereby occasioned to him." 
 
 Sect. 495. " The said Uen for freight and other charges shall be t)isoharge of 
 discharged — ■'^®"- 
 
 " (1) Upon the production to the wharfinger or warehouseman of a 
 receipt for the amount claimed as due, and delivery to the 
 wharfinger or warehouseman of a copy thereof or of a release 
 of freight from the shipowner ; and 
 
 "(2) Upon the deposit by the owner of the goods with the 
 wharfinger or warehouseman of a sum of money equal in 
 amount to the sum claimed as aforesaid by the shipowner ; 
 but in the latter ease the lien shall be discharged without 
 prejudice to any other remedy which the shipowner may 
 have for the recovery of the freight." 
 
 Sect. 496. "(1) When a deposit as aforesaid is made with the Provisions as 
 wharfinger or warehouseman, the person making the same may within *° deposits by- 
 fifteen days after making it give to the wharfinger or warehouseman goods, 
 notice in writing to retain it, stating in the notice the sums, if any, 
 which he admits to be payable to the shipowner, or, as the case may 
 be, that he does not admit any sum to be so payable, but if no such 
 notice is given, the wharfinger or warehouseman may, at the expira- 
 
 {k) Beresford v. Montgomerie, supra. oyerridden where the contract entitles 
 
 {I) Not where the landing is under the shipowner to land the goods on the 
 
 sub-s. i : The Clan Macdonald, 8 P. D. quays of the dock where the steamer dis- 
 
 178. charges, immediately on arrival : Bor- 
 
 {mj The consignee must still take the rowman v. WUson, 7 T. L. R. 416. 
 
 goods within a reasonable time after («) Effect of stating an excessive 
 
 notice that he can have them : The Clan amount : Miebrodt v. Ktzsimon, The 
 
 Macdonald, stipra. These provisions are Energie, L. E., 6 P. C. 306. 
 
528 . THE DELIVERY, 
 
 Sect. 475. tion of tlie fifteen days, pay the sum deposited over to the sMp- 
 owner. 
 
 " (2) If a notice is given as aforesaid, the wharfinger or -warehouse- 
 man shall immediately apprize the shipowner of it, and shall pay or 
 tender to him out of the sum deposited the- sum, if any, admitted by 
 the notice to be payable, and shall retain tha balance, or, if no sum is 
 admitted to be payable, the whole of the sum deposited, for thirty 
 days from the date of the notice. 
 
 " (3) At the expiration of those thirty days, unless legal proceed- 
 ings have in the meantime been instituted by the shipowner against 
 the owner (o) of the goods to recover the said balance or sum, or other- 
 wise for the settlement of any disputes which may have arisen between 
 them concerning the freight or other charges as aforesaid, and notice 
 in writing of those proceedings has been served on the wharfinger or 
 warehouseman, the wharfinger or warehouseman shall pay the balance 
 or sum to the owner of the goods. 
 
 "(4) A wharfinger or warehouseman shall by any payment under 
 this section be discharged from ail liability in respect thereof." 
 Warehouse- Sect. 497. "(1) If the Hen is not discharged, and no deposit is 
 man. made as aforesaid, the wharfinger or warehouseman may, and, if 
 
 required by the shipowner, shall, at the expiration of ninety days from 
 the time when the goods were placed in his custody, or, if the goods 
 are of a perishable nature, at such earlier period as in his discretion 
 he thinks fit, sell by public auction, either for home use or exportation, 
 the goods or so much thereof as may be necessary to satisfy the 
 charges hereinafter mentioned. 
 
 " (2) Before making the sale the wharfinger or warehouseman shall - 
 give notice thereof by advertisement in two local newspapers circu- 
 lating in the neighbourhood, or in one daily newspaper published in 
 London, and in one local newspaper, and also, if the address of the 
 owner of the goods has been stated on the manifest oJ the cargo, or 
 on any of the documents which have come into the possession of the 
 wharfinger or warehouseman, or is otherwise known to him, send 
 notice of the sale to the owner of the goods by post. 
 
 "(3) The title of a bond fide purchaser of the goods shall not be 
 invalidated by reason of the omission to send the notice required by 
 this section, nor shall any such purchaser be bound to inquire whether 
 the notice has been sent." 
 
 (o) Including agent, s. 492. As to the obtained declaring that the shipowner is 
 
 legal proceedings to be taken when a de- entitled to the deposit, in an action 
 
 posit is made by an agent of the owner of against the agent, without joining the 
 
 the goods, see White v. Furness, (1895) owner of the goods. In such an action, 
 
 A. C. 40 ; Montgomery v. Foy, (1895) 2 however, the defendant can generally 
 
 Q. B.321; andEuterpeS.S. Co.f. Bath, obtain an order for the joinder of his 
 
 2 Com. Ca. 196. The agent making the principal as a defendant, where it is 
 
 deposit cannot be made personally liable suggested that he has a counterclaim in 
 
 for the freight. But a judgment can be respect of the shipment. 
 
WAREHOUSING. ^39 
 
 Sect. 498. "The proceeds of sale shall be applied by the wharfinger Sect. 475. 
 or warehouseman as follows, and in the following order : — Application 
 
 " (i) First, if the goods are sold for home use in payment of any of proceeds of 
 
 customs or excise duties owing in respect thereof ; then 
 " (ii) In payment of the expenses of the sale ; then 
 " (iii) In payment of the charges of the wharfinger or warehouseman 
 and the shipowner according to such priority as may be 
 determined by the terms of the agreement, if any, in that 
 behalf between them ; or if there is no such agreement — 
 
 " (a) In payment of the rent, rates, and other charges due 
 to the wharfinger or warehouseman in respect of the said 
 goods ; and then 
 
 " (b) In payment of the amount claimed by the shipowner 
 as due for freight or other charges in respect of the said goods ; 
 And the surplus, if any, shall be paid to the owner of the goods." 
 
 Sect. 499. "Whenever any goods are placed in the custody of a Wareliouse- 
 wharfinger or warehouseman under the authority of this part of this ^^^ expenses. 
 Act, the wharfinger or warehouseman shall be entitled to rent in 
 respect of the same, and shall also have power, at the expense of the 
 owner of the goods, to do aU such reasonable acts as in the judgment 
 of the wharfinger or warehouseman are necessary for the proper custody 
 and preservation of the goods, and shall have a lien on the goods for 
 rent and expenses." , 
 
 Sect. 500. " Nothing in this part of this Act shall compel any Warehouse- 
 wharfinger or warehouseman to take charge of any goods which he f"™. ^ P™' 
 would not have been liable to take charge of if this Act had not been 
 passed ; nor shall he be bound to see to the validity of any lien claimed 
 by any shipowner under this part of this Act." 
 
 Sect. 501. "Nothing in this part of this Act shall take away or Saving for 
 abridge any powers given by any local Act to any harbour authority, fo'cafAc^s '^ 
 body corporate, or persons, whereby they are enabled to expedite the 
 discharge of ships or the landing or delivery of goods ; nor shall any- 
 thing in this part of this Act take away or diminish any rights or 
 remedies given to any shipowner or wharfinger or warehouseman by 
 any local Act." 
 
 And by sect. 492 of the same Act, the following definitions of 
 the expressions used are given : — 
 
 Sect. 492. In this part of this Act, unless the context otherwise 
 requires — 
 
 " The expression ' goods ' includes every description of wares and 
 merchandize : 
 
 " The expression ' wharf ' includes all wharves, warehouses, build- 
 ings, quays, docks and premises in or upon which any goods 
 when landed from ships may be lawfully placed : 
 
 " The expression ' warehouse ' includes all warehouses, buildings, 
 and premises in which goods when landed from ships may be 
 lawfully placed ; 
 
 c. — c. M M 
 
530 THE DELIVERY. 
 
 Sect. 475. " The expression ' report ' means the report required by the Customs 
 laws to be made by the master of an importing ship : 
 
 "The expression ' entry ' means the entry required by- the Customs 
 laws to be made for the landing or discharge of goods from an 
 importing ship : 
 
 "The expression ' shipowner ' includes the master of the ship and 
 every other person authorized to act as agent for the owner, or 
 entitled to receive the freight, demiUTage, or other charges 
 payable in respect of the ship : 
 
 "The expression 'owner,' used in relation to goods, means every 
 person who is for the time entitled, either as owner or agent for 
 the owner, to the possession of the goods, subject in the case of 
 a lien (if any) to that lien : 
 
 "The expression 'wharfinger' means, the occupier of a wharf, as 
 hereinbefore defined : 
 
 " The expression ' warehouseman ' means the occupier of a ware- 
 house, as hereinbefore defined." 
 
 Shipowner 476. It is not necessary that there should have been any 
 
 under^Uie Wrongful default on the part of the consignee, in order to entitle 
 
 TOnsi*aee Mit ^^® shipowner to land the goods under the protection of these 
 
 to blame. enactments. It is enough that the consignee has in fact failed to 
 
 take delivery within the time limited. The Privy Council, in The 
 
 Energie {p), considered that the word " fails," in the corresponding 
 
 section of the Merchant Shipping Act, 1862, " need not be taken to 
 
 imply wilful default in the cargo owner ; but that, upon the true 
 
 construction of the section, the shipowner is at liberty to land the 
 
 goods under it whenever the delivery of them to the owner within 
 
 the proper time has been prevented by the force of circumstances, 
 
 whether the latter is to blame or not." 
 
 Must use the On the other hand, the shipowner must not use these powers 
 
 right lairly. „ . , , . 
 
 unfairly to the prejudice of the consignee. In the case above 
 cited the owner of the goods failed to take delivery because he was 
 unwilling to pay the whole amount of the master's claims against 
 the cargo. The master thereupon landed and warehoused the 
 goods, and put a stop upon them for a sum "manifestly and 
 grossly " in excess of that for which he could claim a lien. This 
 was held to be tantamount to a wrongful detention of the goods, 
 and as such an actionable breach of duty. 
 
 But it appears to have been considered that the master, or 
 shipowner, would not be liable to an action for damages, merely 
 
 {p) L. E., 6 P. 0. 306, at p. 316 ; Miebrodt v. Mtzsimon, S. C. 
 
WAREHOUSING. 631 
 
 tecause lie landed under a stop order for an amount in excess of Sect. 476. 
 his lien, if lie did so in good faith (g). 
 
 477. The meaning of the condition, in sect. 493, suh-sect. 5, Meaning of 
 
 . ° "ready to 
 
 that the consignee shall have offered " and been ready to take take de- 
 delivery," was discussed in Beresford v. Montgomerie {>•). The ^^^' 
 vessel there arrived at the London Docks on March 24th, 1863, 
 and before the goods were landed the plaintiffs, as owners of 
 them, passed the entry at the custom-house and obtained the 
 usual order for a delivery overside into craft, to be landed at 
 their private wharf. The plaintiffs handed this order to their 
 lighterman, and he sent it to the ship by an apprentice named 
 Caney. Oaney gave the order to the second mate, then in charge, 
 and applied for the goods at 4.0 p.m. on March 26th. The mate 
 said they were not ready, and Caney went away. No information 
 was asked for or given as to when they would be ready. They 
 were, in fact, reached on March 28th, and were then landed without 
 twenty-four hours' notice being given to the plaintiffs ; and the 
 dock company refused to allow them to have the goods except 
 upon payment of the usual landing and warehouse charges. 
 
 When Oaney applied for the goods he had no lighter with 
 him, but there was a barge belonging to his master in the docks 
 about 100 yards off, and arrangements had been made for other 
 craft to be used in case of need. Further, the ordinary working 
 hours at the docks closed at 4.0 p.m. ; and the crew had, in fact, 
 left the vessel when the application was made. Still it was held 
 that plaintiffs had offered and been ready to take delivery, so as to 
 entitle them to the twenty-four hours' notice. 
 
 And it seems that a consignee is entitled to the benefit of sub- 
 sects. (3) and (5) with regard to part of the goods, after some have 
 been landed, if he is ready and offers to take that part ; unless, 
 perhaps, where the shipowner -would be prejudiced by changing 
 the mode of delivery after part had been landed (s). 
 
 478. The fact that the shipowner has failed to give the twenty- Consignee 
 four hours' notice required by sub-sect. (5) does not relieve the goods in a 
 consignee of the duty to take delivery of the goods within a y^g^'^^ou ^ 
 reasonable time after he, in fact, knows he can have them. statutory 
 
 In The Clan Macdonald {t), the goods were landed and sorted, given. 
 
 (?) See L. E., 6 P. C. p. 316. W Wilson v. London, &o. Nav. Co., 
 
 / , „. ^ ., « ^ L. R., 1 C. P. 61. 
 
 M34L.J.,C.P.41. (0 8P.D.178. 
 
 M M 2 
 
532 
 
 THE DELIVERY, 
 
 Sect. 478. 
 
 Shipowner 
 may contract 
 himaeU free 
 of sect. 493. 
 
 under the provision of the Merchant Shipping Act, 1862, to 
 ■which s. 493 (4) corresponds ; notice was given to the plaintifEs' 
 lighterman that he could take them on March 16th, and on that 
 day he might have had them free of charges. As they were not 
 taken on the 16th, the dock company claimed charges upon them, 
 and they were not taken away until the 29th. Sir James Hannen 
 held that as the landing had been under the assortment clause, the 
 twenty-four hours' notice was not necessary ; and further, that the 
 Act did not mean that in default of the twenty-four hours' notice 
 the goods were to remain at the shipowner's risk and expense for 
 any time the goods owner might think fit to leave them at the 
 wharf. 
 
 " The duty of the goods owner remains to take away the goods 
 within a reasonable time after he has notice, whether written or 
 verbal, that he can receive them" (m). 
 
 479. The shipowner is not bound by the provisions of sect. 493 
 in all cases. A custom of the port («), or an express term of the 
 contract may empower him to land the goods without giving the 
 notices, and without being subject to the restrictions thete imposed ; 
 and, if so, he may proceed independently of the Act. 
 
 That was held to be the case where the bill of lading provided 
 that the consignee was to be ready to receive simultaneously with 
 the ship being ready to unload, and that, in default, the master 
 was to be authorized to enter the goods at the custom-house, and 
 land, warehouse, or place them in lighters, at the risk and expense 
 of the consignee after they left the deck of the ship {y). Also 
 where the bill of lading contained the clause, known as the London 
 clause, entitling the shipowner to land the goods " on the quays 
 of the dock where the steamer discharges immediately on her 
 arrival" {%). 
 
 Must ship- 480. It does not appear to have been decided how far a deposit 
 
 owner see j>j.ij- i ii-. 
 
 that goods ot the goods m a warehouse, under the Merchant Shipping Act, 
 delirefed^Ifter al^solves the shipowner from the duty of seeing that the goods 
 warehousing f ghall be delivered to the persons entitled to have them. 
 
 The Act does not by any express terms relieve the shipowner 
 of that duty. But it has been doubted whether the goods continue 
 
 (m) 8 P. D. at p. 185. 
 
 {x) Marzetti v. Smith, 49 L. T. 680. 
 
 [y) Oliver v. Colven, 27 W. E. 822. 
 (z) Borrowman v. Wilson,- 7 T. L. E. 
 416. 
 
WAREHOUSING. 533 
 
 to be subject to his control after he has warehoused them in accord- Sect. 480. 
 ance with the Act ; and if, by the Act, he loses all control over 
 them, it may well be that he ceases to be responsible for the correct 
 delivery. On the other hand, if he remains in control, he should, 
 generally, still continue bound to perform his contract. 
 
 It has been said that the warehouseman does not hold the goods 
 under any contract with the shipowner, or other person, but 
 under the statute, and subject to a duty imposed by the statute (a). 
 "There is nothing that I can see in the statute which would 
 authorize him to give back the goods to the shipowner. There is 
 nothing which would make the shipowner liable for any acts of 
 the wharfinger or warehouseman. The shipovraier has no longer 
 charge or power or liabilities with regard to the goods. He has 
 only his right of lien for freight " (5). 
 
 On the other hand, Baggallay, L. J., in the same case, said (c) : 
 " I can find nothing in the statute which in terms, or in my opinion 
 impliedly, declares or directs that after satisfaction of the ship- 
 owner's lien, and of their own, the dock company shall hold any 
 goods delivered to them under its provisions for the holder of the 
 bill of lading. On the contrary, it appears to me that, after such 
 satisfaction, it was incumbent upon the dock company, and 
 especially so in the absence of any notice of right or title to the 
 goods in any other person, to deal with them as directed by those 
 who were the ostensible owners of them at the time of their 
 deposit, and who, as such ostensible owners, had concurred in 
 placing them in their custody." 
 
 481. But whether the shipowner is still responsible for a mis- He is not 
 delivery or not, it seems that he is not answerable for the safety of for^safety iu 
 the goods after he has warehoused them, under the Act (d). The ■^^'^^lioi^se. 
 duty of taking care of them devolves upon the warehouseman ; and 
 he is not in the position of agent for the shipowner in that regard. 
 
 The shipowner is thus absolved from responsibility for a loss of 
 the goods, although by neglect or wrongful acts of the warehouse- 
 man. It may, however, still be his duty to direct the warehouse- 
 man as to who is to receive the goods ; and he may be liable for 
 
 (a) Glynji. E. & W. India Dock Co., Bramwell, L. J., at p. 497; and per 
 
 per Lord Blackburn, 7 A. C. 691, p. 609 ; Lord Westbury, Barber v. Meyerstein, 
 
 per Brett, L. J., 6 Q. B. D. 476, p. 486. L. K., 4 H. L. 317, at p. 337. 
 
 (i) PerBrett,L. J.,6Q. B.D.p. 486. ((«) Per Willes, J., Meyerstein v. 
 
 (c) 6 Q. B. D. at p. 506. Cf. per Barber, L. E., 2 0. P. 38, p. 54. 
 
534 
 
 THE DELIVERY. 
 
 Position of 
 warehouse- 
 man as to 
 delivery. 
 
 Sect. 481. neglecting this duty, or for performing it improperly. On this 
 point, as we have seen, there has been a difference of opinion. 
 
 482. "With regard to the position of the warehouseman, and his 
 responsibility for correct delivery, Lord Blackburn, in Grlyn v. East 
 and West India Dock Co. (e), said : "And I further think that a 
 warehouseman taking the custody of the goods under the provisions 
 of the Merchant Shipping Act, 1862, s. 66, &c., is under an 
 obligation cast upon him by the statute to deliver the goods to the 
 same person to whom the shipowner was by his contract bound to 
 deliver them, and is Justified or excused hy the same things as would 
 justify or excuse the master (/) . And I find, as a fact, that this was 
 the position of the respondents here. And on this ratio decidendi I 
 think that the appeal should be dismissed with costs." 
 
 The other lords all concurred in this view : with the exception 
 of Lord Fitzgerald, who thought that "the position of the 
 warehouseman, when the stop order had been removed, might be 
 different, and possibly more extensive," than that of the master {g). 
 He considered that the decision did not depend upon this point. 
 
 [e) 7 A. 0. 591, p. 614. 
 
 (/) The italics mark the point de- 
 
 cided. Of. Wardell v. Mourillyan, 
 Esp. at p. 695. 
 Is) 7 A. Cat p. 617. 
 
CHAPTER XIV. 
 
 TO WHOM SHOULD DELIVERY BE MADE. 
 
 535 
 
 BECT. 
 
 Delivery under contract — Subject to 
 superior claims , . . , 483 
 
 Where no bill of lading 484 
 
 Shipper may alter instructions — _^ 
 Unless bill of lading transferred . 485 
 
 Bill of lading the symbol of the 
 goods — "Assigns " means assign 
 of bill of lading 486 
 
 Essentials of negotiability of bill of 
 lading — " Order or assigns " = .. . 487 
 
 Conditional indorsement — Sale of 
 Goods Act, =. 19 (3) 488 
 
 Mere possession of bill of lading does' 
 not give title or enable holder to 
 convey 489 
 
 Common law as to the effect of 
 possession of goods 490 
 
 Shipper without title cannot nego- 
 tiate 491 
 
 When does property pass? — Ship- 
 ment under contract of sale— Sale 
 of Goods Act 492 
 
 Conditional intention to pass pro- 
 perty 493 
 
 Where property passes subject to 
 vendor's Hen 494 
 
 SECI. 
 
 Shipment by agent who has paid for 
 goods 495 
 
 Where bill of lading obtained 
 fraudulently by owner of goods 
 — Title of assignee 496 
 
 Effect of transfer of bill of lading. . 497 
 
 Transfer to bankers — ^Pledge or 
 mortgage? 498 
 
 SeweU v. Burdick— Intention the 
 test 499 
 
 Assignment of goods without trans- 
 fer of a bill of lading 500 
 
 Bill of lading in force as document 
 of title until delivery ■. . . . 601 
 
 Bill of lading in a set, presentation 
 by different persons — Presentation 
 of one part to shipowner sufficient 502 
 
 Indorsement of one part to assignee 
 sufficient 603 
 
 Factors Act, 1889 604 
 
 Mixture of Goods. 
 
 Loss of identity, consignees tenants 
 in common 505 
 
 483. The shipowner must generally see that the goods are Delivery 
 delivered to the person to whom he has contracted to deliver them, tact ''°°' 
 That is to say, as a rule, to the person named as consignee in the 
 bill of lading, or to the assignee of the person who is empowered 
 hy the bill of lading to make an order or assignment of it. 
 
 But this is subject to claims to the goods which may exist Subject to 
 independent of the contract, and superior to those of the persons dM^?"^ 
 who would be entitled under that. If the goods have been 
 originally shipped without the authority of their owner, and he 
 claims them, the shipowner must give them up to him ; and will, 
 
636 THE DELIVERY. 
 
 Sect. 483. in that case, cease to be bound by the contract («). So, also, if the 
 property in the goods be transferred to one person, without any 
 reservation of rights of possession, but the order as to delivery 
 under the contract be made improperly in favour of some one else, 
 the owner of the goods will, it would seem, be entitled to them as 
 against the person to whom delivery has been ordered (5). ■ 
 
 Further, the claims of an unpaid vendor to stop the goods in 
 transit may prevail over those of a purchaser to whom they are 
 deliverable under the contract of carriage. We shall discuss this 
 right of stopping goods in the next chapter ; here it is enough to 
 say that the shipowner and master must recognize it, and must 
 deliver the goods to the vendor who validly claims it, and not to 
 the consignee or assignee of the bill of lading (e). 
 
 Where no bill 454. But apart from such eases the delivery is to be to the 
 
 of lading. _ _ -^ ■ '' 
 
 person indicated by or under the contract. 
 
 If the shipment was made without any bill of lading being taken, 
 but with directions as to delivery, the shipowner must deliver in 
 accordance with the engagement thus expressly or impliedly made. 
 If no directions were given as to a qpnsignee, he must deliver to 
 the shipper, or to persons authorized by him to receive the goods at 
 the destination. 
 
 In McKean ». Maolver {d) goods were carried by the defendants, 
 carriers by sea from Liverpool to Glasgow, under directions to 
 deliver them to C. Tait & Co., 71, George Street, Glasgow. The 
 order for the goods had been sent to the plaintiS's fraudulently by 
 one Heddell ; there was no such firm as C. Tait & Co. Heddell 
 had, however, arranged for getting letters, &c. addressed to 
 C. Tait & Co., at 71, George Street ; and, accordingly, he received 
 a notice so addressed which was sent by the defendants in the 
 ordinary course of business, as pursued by carriers between Liver- 
 pool and Glasgow, requesting the consignees to send for the goods, 
 and stating that the notice must be produced indorsed as a delivery 
 order. Heddell indorsed it in the name of 0. Tait & Co., and on 
 production of it received the goods from the defendants. It was 
 held that the defendants had made what was equivalent to a 
 
 (a) Finlay v. Liverpool and Gt. W. {0) The Tigress, 32 L. J., Ad. 97 ; 
 
 SS. Co., 23 L. T. 251 ; Sheridan v. New Vertue v. JeweU, 4 Camp. 31. 
 QuayCo., 28L. J., C. P. 58. Seeasto 
 liens, infra, a. 652. {d) L. E., 6 Ex. 36 ; on demurrer, 18 
 
 {b) Infra, a. 500, L. T. 410. 
 
TO WHOM SHOULD DELIVERY BE MADE. 537 
 
 delivery at 71, George Street, in accordance with the sender's Sect. 484. 
 directions, and were not liable for the loss of the goods. 
 
 Where the contract of carriage has been made by the consignor 
 on behalf of the consignee (c), the carrier may take his instructions 
 from the latter, and will be discharged by a delivery in accordance 
 with his directions (/). And even where the goods are at the risk 
 of the consignor, and the contract is really with him, if he has 
 directed that they are to be delivered to the named consignee at a 
 particular place, and an arrangement is made between the carrier 
 and consignee that they shall be delivered to him elsewhere, and 
 that is done, the delivery will discharge the carrier (^). "The 
 obvious meaning of the contract is to deliver to the consignee at 
 the place mentioned, unless the consignee chooses, and the carrier 
 is willing that they shall be delivered somewhere else " (A). 
 
 485. The shipper, so far as the contract of carriage is concerned, Shipper may 
 may alter his instructions to the shipowner as to the person to tions. 
 whom the goods are to be delivered ; unless he has taken a bill of 
 lading for the goods and negotiated it. 
 
 Even where the consignee has been named in the bill of lading, Though oon- 
 that is not necessarily a final instruction by the shipper to the ship- in bill of 
 owner. " As between the owner and shipper of the goods and the ^^^^s- 
 captain, it (the bill of lading) fixes and determines the duty of the 
 latter as to the person to whom it is (at the time) the pleasure 
 of the former that the goods should be delivered. But there is 
 nothing final or irrevocable in its nature. The owner of the goods 
 may change his purpose, at any rate before the delivery of the 
 goods themselves, or of the bill of lading to the party named in it, 
 and may order the delivery to be to some other person ; to B. 
 instead of to A." («). 
 
 In The Stettin (k), the bill of lading made the goods deliverable 
 to Mendelsohn or assigns, he being the agent at the port of dis- 
 charge of the intended purchasers of the goods. The bill of lading 
 was not, however, sent to him, but to an agent of the shippers ; 
 
 («) See supra, a. 61. the carrier, see Scotthomji. South Staff. 
 
 (/) Cork DistiUeries Co. v. G. S. & Kail. Co., 22 L. J., Ex. 121. 
 W. EaU. Co., L. E., 7 H. L. 269. (i) Per Lord Denman C. J., in Mitohel 
 
 {g) L. & N. W. Eail. Co. v. Bartlett, v.'Eie, 11 A. &E.888,p.903. Cf.Bryans 
 
 31 L. J., Ex. 92. V. Nix, 4 M. &W. 775 ; Gabarron „. 
 
 (A) Per Bramwell, B., 31 L. J., Ex. Kreeft, L. E,., 10 Ex. 274 ; The Con- 
 
 p. 94. As to the rights of the consignor stantia, 6 C. Eob. 321. 
 where he has changed his instructions to {k) 14 P. D. 142. 
 
538 THE DELIVERY. 
 
 Sect. 485. and he retained it, as tlie intended purohasers failed to fulfil the 
 contract. In the meantime the master had delivered the goods to 
 Mendelsohn without production of any hiLL of lading. It was held 
 that the shipowners were liable for the goods to the shippers. 
 Unless bill of But where a shipper has taken a bill of lading, and has indorsed 
 and'tfaus-'^'' and delivered it to another person, or has sent it to the named 
 ferred. consignee, with the intention of transferring it (not merely of 
 
 handing it to an agent for himself, or of delivering it condi- 
 tionally), his control over the possession of the goods is gone; 
 except as to the right of stopping them in transit, to be hereafter 
 considered. 
 
 Bill of lading 486. The right to have possession of the goods passes to the 
 the g^ods° ° transferee of the bill of lading ; that is the symbol of the goods, 
 and a transfer of it is, symbolically, a transfer of the possession of 
 the goods themselves. Until the goods have been delivered, a 
 delivery of the duly indorsed biU of lading operates, as between 
 the transferor and transferee, and all who claim through them, as 
 a physical delivery of the goods would do. And thus the posses- 
 sion may, in effect, be passed from one buyer, pledgee, &c. to 
 another, while the goods are still in the hands of the shipowner. 
 
 " A cargo at sea, while in the hands of the carrier, is necessarily 
 incapable of physical delivery. During this period of transit and 
 voyage, the bill of lading by the law merchant is universally 
 recognized as its symbol ; and the indorsement and delivery of 
 the bill of lading operates as a symbolical delivery of the cargo. 
 Property in the goods passes by such indorsement and delivery of 
 the bill of lading, whenever it is the intention of the parties that 
 the property should pass, just as under similar circumstances the 
 property would pass by an actual delivery of the goods. And for 
 the purpose of passing such property in the goods, and completing 
 the title of the indorsee to full possession thereof, the bill of lading, 
 until complete delivery of the cargo has been made on shore to 
 someone rightfully claiming under it, remains in force as a symbol, 
 and carries with it not only the full ownership of the goods, but 
 also all rights created by the contract of carriage between the 
 shipper and the shipowner. It is a key which in the hands of a 
 rightful owner is intended to unlock the door of the warehouse, 
 floating or fixed, in which the goods may chance to be " (/). 
 
 (Z) Per Bowen, L. J., Sanders v. Maclean, 11 Q. B. D. 327, at p. 341. 
 
TO WHOM SHOULD DELIVERY BE MADE. 539 
 
 TJnder the contract the delivery is to be to the " assigns " of the Sect. 486. 
 hill of ladinff, not to the assigns of the goods Im). So that if a "Assigns" 
 
 . o \ / mean assigns 
 
 shipper transfers the property in the goods to A., without the hill of bill of 
 of lading, while he transfers the bill of lading to B., the contract 
 requires the shipowner to deliver to B. or his assigns : and he will 
 discharge his obligation under that by so doing. But he may be 
 liable to A. if he had notice of his claim before delivering (n). 
 
 487. The bill of lading is thus generally a negotiable instru- Essentials of 
 ment, carrying with it the right to demand and have possession of of bill of 
 the goods described in it. And, as we have seen, it also carries * ™^" 
 with it the rights and liabilities under the contract, where the 
 property in the goods also is transferred (o) . But in order that it 
 may have this character, it must, it seems, purport on the face of 
 it to be negotiable, and it must have been set in circulation by a 
 person who was at the time entitled to possession of the goods ; 
 also, he must have negotiated it unconditionally, or, if condition- 
 ally, then the condition must have been performed. And, further, 
 the negotiability only continues while the goods are on the voyage, 
 and up to the time of their being delivered to the person entitled 
 to delivery \mder the contract {p). 
 
 Eirst, then, with regard to the form of the bill of lading. It "Order or 
 usually states that delivery is to be to the " order or assigns " of 
 the consignee, or of the shipper ; and words of this kind seem to 
 be essential to the negotiability. 
 
 In Henderson v. The Comptoir d'Escompte de Paris, the bill of 
 lading provided that delivery should be to named consignees, 
 without more ; and Sir li. P. Collier, delivering the judgment of 
 the Privy Oouncil, said (q) : " It appears that a bill of lading was 
 made out, which is in the usual form, with this difference, that the 
 words ' or order or assigns ' are omitted. It has been argued that, 
 notwithstanding the omission of these words, this bill of lading 
 was a negotiable instrument ; and there is some authority at Nisi 
 Prius for that proposition (r) ; but undoubtedly the general view 
 of the mercantile world has been for some time, that in order to 
 make biUs of lading negotiable, some such words as ' or order or 
 
 (»«) Per Lord Blackburn, Glyn, Mills & {p) Barber v. Meyerstein, L. E., 4 
 
 Co. V. E. & "W. India Dock Co., 7 A. 0. H. L. 317. 
 591, at p. 610. (?) ^- ^■' 5 P- C. 253, at p. 259. 
 
 {r) See Eenteria v. Ending, Moo. & 
 
 («) Supra, s. 469. M. 511 ; and Abbott (5tli), 384 ; (11th), 
 
 (o) Supra, ss. 62 et seq. iv, 10, 5. 
 
540 THE DELIVERY. 
 
 Sect. 487. assigns ' ought to he in them. For the purposes of this case, in 
 the view their Lordships take, it may he assumed that this bill of 
 lading was not a negotiable instrument." 
 
 But where delivery is to be to the " order or assigns " of any 
 person indicated by the bill of lading, it may be negotiated. The 
 order, or assignment, is usually made by an indorsement on the 
 bill of lading. It may be special in favour of some particular 
 person, or general, by a blank indorsement of the orderer's 
 signature upon the document. 
 
 In the latter case, the bill of lading may afterwards be trans- 
 ferred by mere delivery ; but where the indorsement is special, 
 the indorsee must again make an order, in order to transfer it. 
 Where a special indorsement does not expressly enable the in- 
 dorsee to make a further order or assignment, it is perhaps doubtful 
 whether the bill of lading continues to be negotiable. But by 
 analogy to bills of exchange (s), it would seem that the omission 
 of the words " or order " in a special indorsement is not material, 
 and that the indorsee takes the bill of lading with its original 
 negotiable quality (t). 
 
 In Cowdenbeath Coal Co. v. Clydesdale Bank (u), it was held 
 
 (s) Edie V. East India Co., 2 Burr. been and is transferred and passed to 
 
 1216; CunlifEe v. Whitehead, 3 Bing. such other person or persons. Andthat, 
 
 jT Q gng by the custom of merchants, indorse- 
 ments of bills of lading in blank, that is 
 
 (t) On the second trial of Liokbarrow to say, by the shipper or shippers with 
 V. Mason, 5 T. R. 683, the jury found, their names only, have been, and are, 
 in their special verdict, that " by the and may be, filled up by the person or 
 custom of merchants, bills of lading, persons to whom they are so delivered 
 expressing goods or merchandizes to or transmitted as aforesaid, vpith words 
 have been shipped by any person or ordering the delivery of the goods or 
 persons to be delivered to order or contents of such bills of lading to he 
 assigns, have been, and are, at any time made to such person or persons ; and, 
 after such goods have been shipped, and according to the practice of merchants, 
 before the voyage performed, for which the same, when filled up, have the same 
 they have been or are shipped, negoti- operation and effect as if the same had 
 able and transferable by the shipper or been made or done by such shipper or 
 shippers of such goods to any other shippers when he, she or they indorsed 
 person or persons, by such shipper or the same bills of lading with theirnames 
 shippers indorsing such bills of lading as aforesaid." See the observations, of 
 with his, her or their name or names, Lord Selborne in SeweU v. Burdiek, 10 
 and delivering or transmitting the same A. C. 74, at p. S3, as to a possible differ- 
 so indorsed, or causing the same to be so ence in effect between a special and a 
 delivered or transmitted, to such other blank indorsement. As to shipping 
 person or persons ; and that by such notes, see Akerman v. Humphrey, 1 C. 
 indorsement and delivery, or trausmis- & P. 63. 
 sion, the property in such goods hath («) 22 Sess. Ca. (4th) 682. 
 
TO WHOM SHOULD DELIVERY BE MADE. 
 
 541 
 
 that the validity of a bill of lading as a negotiable document was Sect. 487. 
 not affected by the fact that the master had signed it before the 
 statement of quantity of the goods had been filled in. 
 
 488. Next, the bill of lading must have been put in circulation Conditional 
 by the person originally entitled to negotiate it. He must have 
 indorsed and delivered it, intending to transfer the right to it ; and 
 to do so unconditionally ; or, if conditionally, the condition must 
 have been performed. 
 
 A condition is sometimes stated in the indorsement, but it need 
 not be so ; it may be expressed in other ways, or may be implied 
 from the manner in which the bill of lading has been put into the 
 possession of the intended transferee. The negotiation is only 
 complete where the bill of lading has been indorsed and delivered 
 free of conditions. And to ascertain whether that has been the 
 case, the intention of the indorser must be looked for. 
 
 In Shepherd v. Harrison (*), cotton had been shipped, on 
 plaintiff's instructions, by Paton, Nash & Co., merchants, of 
 Pernambuco, under a bill of lading making it deliverable to their 
 order. Paton, Nash & Co. drew upon the plaintiff for the price of 
 the cotton, and sent the draft and the bill of lading to their agents 
 in England, George Paton & Co., while they sent an invoice to the 
 plaintiff which described the cotton as shipped on his "account 
 and risk." George Paton & Co. sent the bill of lading to the 
 plaintiff indorsed in blank, and with it the draft for acceptance ; 
 on previous occasions this had been done, and the plaintiff had 
 accepted the drafts and retained the bills of lading — on this 
 occasion, however, he kept the bill of lading, but returned the draft 
 unaccepted. George Paton & Co. thereupon stopped delivery of 
 the cotton by means of a duplicate bill of lading which they held, 
 and an action was brought by the plaintiff against the shipowners. 
 It was held in three Courts that, under the circumstances, neither 
 the goods nor the right to the bill of lading had passed to the 
 plaintiff {y). 
 
 («) L. R., 4 Q. B. 196, 493 ; L. R., 6 in a letter, either 'to approbate or to 
 
 H. L. 116. reprobate' entirely and completely tben 
 
 {jf) In the House of Lords Lord Cairns and there. If they accept the cargo and 
 
 said (L. R., 5 H. L. at p. 133) : " Ihold the bill of lading, and accept the bill of 
 
 it to be perfectly clear that when a cargo exchange drawn against the cargo, the 
 
 comes in this way, protected by a bill of object of those who shipped the goods is 
 
 lading and a bill of exchange, it is the obtained. They have got the bill of 
 
 duty of those to whom the bill of lading exchange in return for the cargo ; they 
 
 and the biU of exchange are transmitted discount or use it as they think proper ; 
 
542 THE DELIVERY. 
 
 Sect. 488. In Barrow ». Coles (z) a bill of lading was indorsed with an 
 order to deliver to one Yoss if he should accept and pay a certain 
 draft. Voss accepted the draft, and then having got possession of 
 the bill of lading transferred it to the defendant ; but he did not 
 pay the bill of exchange. Lord Ellenborough held that the in- 
 dorsement was conditional, and that the property had not passed to 
 the defendant. 
 
 Gurney v. Behrend (a) also throws light on the point. Behrend 
 & Co. had sold wheat to Werthemann. They had shipped it at 
 Dantzic, and the bill of lading made it deliverable to their order 
 or to assigns. They indorsed the bill of lading in blank, and sent 
 it, according to Werthemann's instructions, to CoUmann & Stol- 
 terfoht, of London, enclosed in a letter, in which they requested 
 CoUmann and Stolterfoht to follow the instructions of Werthemann 
 respecting the bill of lading ; " by whose order and for whose 
 account we have to-day taken the liberty, 3,418/. two months after 
 date, of E. Warschaur & Co., which drafts we recommend to your 
 kind protection for account of Mr. E. Werthemann." CoUmann & 
 Stolterfoht replied, promising that the drafts should be protected 
 on presentation ; but on their being subsequently presented by 
 Behrend's London agents they were dishonoured, and no accept- 
 ance was ever given. The bill of lading was then demanded ; but 
 CoUmann & Stolterfoht had meanwhile handed it to Pries, for 
 whom the wheat had been bought by Werthemann, and he had 
 handed it for value to Coventry and Sheppard, who again had 
 handed it for value to the plaintiffs. Before the wheat arrived, 
 
 and they are Tirtually paid for the goods. these billa of lading and bills of ex- 
 
 But if, on the other hand, the persons to change is, that before you use the bills 
 
 ■whom the bill of lading is sent do not of lading you shall accept the bills of 
 
 refuse bi toto the consignment of the exchange. Merchants kno-w perfectly 
 
 goods, but keep the bUl of lading, but "well what they mean -when they express 
 
 do not accept the bill of exchange, then themselves, not in the language of 
 
 the agents of the foreign shippers have - lawyers, but in the language of courteous 
 
 neither the goods nor the money to mercantile communication ; and I do not 
 
 deal with ; if they had repudiated the think that any merchant in England 
 
 transaction in toto the agents of the receiving a. bill of lading and a biU of 
 
 shippers might have dealt with some exchange under these circumstances, 
 
 other house and raised money on the when he came to reflect on the matter, 
 
 goods. I therefore think that when would feel any doubt that he could not 
 
 one merchant in this country sends to retain the one without accepting the 
 
 another, under circumstances like the other." See also Brandt v. Bowlby, 2 
 
 present, a bill of lading and a biU of B. & Ad. 932. 
 
 exchange, it is not at all necessary for , > „ r> 
 
 ,. , . n TIT • , W 3 Camp. 92. 
 
 nun to say m words. We require you to 
 
 take notice that oxir object in enclosing {") 23 L. J., Q. B. 265. 
 
TO WHOM SHOULD DELIVERY BE MADE. 543 
 
 Pries, Werthemann and CoUmann & Stolterfoht had all stopped Sect. 488. 
 
 payment, and Behrend & Co., upon the ship's arrival, claimed to 
 
 stop the wheat, and in fact paid the freight and got possession of 
 
 it. It was held that the plaintiffs were entitled to claim its value 
 
 from them ; for the right to stop the goods was lost if Behrend & 
 
 Co. had authorized the transfer of the hill of lading, and it was 
 
 held that they had done so (b). 
 
 Sect; 19 (3) of the Sale of Goods Act, 1893, now enacts that Sale of Goods 
 "where the seller of goods draws on the buyer for the price, and ' ' 
 transmits the bill of exchange and bill of lading to the buyer 
 together to secure acceptance or payment of the hill of exchange, 
 the buyer is bound to return the bill of lading if he does not 
 honour the biU. of exchange, and if he wrongfully retains the bill 
 of lading the property in the goods does not pass to him." 
 
 489. Apart from the Factors Acts, which will be stated later, Mere posses- 
 the negotiation of the bill of lading must have been by the person lading does 
 who had a right to dispose of it. Mere possession of it does not o°efabie*'*^^ 
 enable the holder to give any title to the goods to a transferee ; l"Jl<ier to 
 
 . . convey. 
 
 even though he may himself have shipped the goods, and obtained 
 
 {b) " It ia contended, on the part of the before handing it over to Coventry & 
 defendants, that CoUmann & Stolterfoht Sheppard. There is nothing on-the bill 
 had no authority to part with the .bUl of of lading itself to indicate that it is not 
 lading till they had accepted the bill of to be transferred till the bill of exchange 
 exchange drawn for the price of the has been accepted. In the defendants' 
 wheat. If this be so, they certainly letter of the 4th of January no such 
 exceeded their authority, for their condition is to befoimd ; on thecontrary, 
 promise to accept, which was not they desire CoUmann & Stolterfoht to 
 treated by the agents of the defen- follow the instructions of Werttemann 
 dants as an acceptance, would not have respecting the biU of lading, Werthe- 
 been a performance of the condition on mann being the agent of Pries, and 
 which the right to part with the bUl of having purchased the cargo for him. If 
 lading depended. The defendants might the language of the letter of the 4th of 
 easily have imposed such a condition January were equivocal, the construc- 
 had they suspected the solvency of the tion to be put upon it ought rather to be 
 parties with whom they were deahng. against the party who places an indorsed 
 But looking to the correspondence set bill of lading in the hands of third 
 out in the special case, and to all the persons, and enables them to deal with 
 circumstances of the transaction, we are others as if they had complete control 
 of opinion that no such condition was over it ; but in this case we think that 
 imposed, and that as soon as CoUmann the language of the defendants expressly 
 & Stolterfoht received the biU of lading and Clearly authorized the unconditional 
 they were at liberty to hand it over to transfer of the bUl of lading to the pur- 
 Pries, so as to make the result the same chaser." Per Lord Campbell, 23 L. J., 
 as if by the biU of lading Pries had heev. Q. B. at p. 72. See also The Argentina, 
 the consignee, the defendants had re- L. E., 1 A. & E. 370. 
 mitted it to him, and he had indorsed it 
 
544 THE DELIVERY. 
 
 Sect. 489. the bill of lading from tlie shipowner. His power to convey a 
 title to the goods by means of the bill of lading is no greater than 
 it would be if the goods themselves were in his possession. The 
 document is not a negotiable instrument, or a document of 
 title, in the sense of carrying title with it, even to a buyer who 
 may take it honestly and give full value for it. 
 
 Lord Loughborough pointed out the difference very forcibly in 
 delivering the judgment of the Exchequer Chamber in Lickbarrow 
 V. Mason (c). And that judgment appears to express the law on 
 the subject correctly, notwithstanding its subsequent reversal, 
 except on the point actually involved in the case, viz., as to the 
 effect of an indorsement upon the vendor's right to stop the goods 
 in transitu (d). Lord Loughborough said: "A bill of lading is 
 the written evidence of a contract for the carriage and delivery of 
 goods sent by sea for a certain freight. The contract in legal 
 language is a contract of bailment (2 Lord Eaym. 912). In the 
 usual form of the contract the undertaking is to deliver to the order 
 or assigns of the shipper. By the delivery on board the shipmaster 
 acquires a special property to support that possession which he 
 holds in the right of another, and to enable him to perform his 
 undertaking. The general property remains with the shipper of 
 the goods until he has disposed of it by some act sufBcient in law 
 to transfer property. The indorsement of the bill of lading is 
 simply a direction of the delivery of the goods. When this in- 
 dorsement is in blank the holder of the bill of lading may receive 
 the goods, and his receipt will discharge the shipmaster ; but the 
 holder, if it came into his hands casually, without any just title, 
 can acquire no property in the goods. A special indorsement 
 defines the person appointed to receive the goods ; his receipt or 
 order would, I conceive, be a sufficient discharge to the shipmaster ; 
 and in this respect I hold the bill of lading to be assignable. But 
 what is it that the indorsement of the bill of lading assigns to the 
 holder or the indorsee ? a right to receive the goods and to dis- 
 charge the shipmaster, as having performed his undertaking. If 
 any further effect be allowed to it, the possession of a bill of lading 
 would have greater force than the actual possession of the goods. 
 Possession of goods is pri7nd facie evidence of title ; but that pos- 
 session may be precarious, as of a deposit ; it may be criminal, as 
 
 [c) 1 H. Bl. 357, pp. 359, 360. And see per Lord Blaokbum in SeweU v. 
 
 {d) See the case stated, infra, s. 532. Burdick, 10 A. C. 74, p. 98. 
 
TO WHOM SHOULD DELIVERY BE MADE. 
 
 545 
 
 of a thing stolen ; it may be qualified, as of things in the custody Sect. 489. 
 of a servant, carrier or a factor ; mere possession without a just title 
 gives no property ; and the person to whom such possession is 
 transferred by delivery, must take his hazard of the title of his 
 author. The indorsement of a bill of lading differs from the 
 assignment of a chose in action, that is to say, of an obligation, as 
 much as debts difier from effects. Goods in pawn, goods bought 
 before delivery, goods in a warehouse, or on ship board, may all be 
 assigned. The order to deliver is an assignment of the thing 
 itself, which ought to be delivered on demand ; and the right to 
 sue if the demand is refused, is attached to the thing. The case 
 in 1 Lord Eaym. 271 was well determined on the principal point, 
 that the consignee might maintain an action for the goods, because 
 he had either a special property in them, or a right of action on 
 the contract; and I assent to the dictum, that he might assign 
 over his right. But the question remains, what right passes by the 
 first indorsement, or by the assignment of it ? An assignment of 
 goods in pawn, or of goods bought but not delivered, cannot 
 transmit a right to take the one without redemption, and the other 
 vyithout the payment of the price. As the indorsement of a bill of 
 lading is an assignment of the goods themselves, it differs essen- 
 tially from the indorsement of a bill of exchange ; which is the 
 assignment of a debt due to the payee, and which, by the custom 
 of trade, passes the whole interest in the debt so completely, 
 that the holder of the biU for a valuable consideration, without 
 notice, is not affected even by the crime of the person from whom 
 he received the bill." 
 
 In Ghirney ». Behrend Lord Campbell said(e), "A bill of 
 lading is not, like a bill of exchange or promissory note, a nego- 
 tiable instrument which passes by mere delivery to a bond fide 
 transferee for valuable consideration, without regard to the title of 
 the parties who make the transfer. Although the shipper may 
 have indorsed in blank a bill of lading deliverable to his assigns, 
 his right is not affected by an appropriation of it without his 
 authority. If it be stolen from him, or transferred without his 
 authority, a subsequent bond fide transferee for value cannot make 
 title under it as against the shipper of the goods. The bill of 
 lading only represents the goods, and in this instance the transfer 
 
 («) 23 L. J., Q. B. 265, p. 271. See Moakes v. Nicholson, 34 L. J., C. P. 
 also Grilbert v. G-uignon, L. K., 8 Ch. 16 ; 273. 
 
 C. — C. N N 
 
546 THE DELIVEEY. 
 
 Sect. 489. of the symbol does not operate more than a transfer of what is 
 represented." 
 
 Common law 490. The law, prior to the Factors Acts, as to the power of a 
 of possession person in possession of goods to confer a title to them, was stated 
 of goods. ]jjy Blackburn, J., in Oole v. North Western Bank(/) as follows :— 
 " At common law, a person in possession of goods could not confer 
 on another, either by sale or by pledge, any better title to the 
 goods than he himself had. To this general rule there was an 
 exception of sales in market overt, and an apparent exception 
 where the person in possession had a title defeasible on account of 
 fraud. But the general rule was that, to make either a sale or 
 pledge valid against the owner of the goods sold or pledged, it 
 must be shown that the seller or pledger had authority from the 
 owner to sell or pledge, as the case might be. If the owner of 
 the goods had so acted as to clothe the seller or pledger with 
 apparent authority to sell or pledge, he was at common law pre- 
 cluded, as against those who were induced bond fide to act on the 
 faith of that apparent authority, from denying that he had given 
 such an authority, and the result as to them was the same as if he 
 had really given it. But there was no such preclusion as against 
 those who had notice that the real authority was limited. And 
 the possession of bills of lading or other documents of title to goods 
 did not, at common law, confer on the holder of them any greater 
 power than the possession of the goods themselves. The transfer 
 of a bill of lading for goods in transitu, had the same efEect in 
 defeating the unpaid vendor's right to stop in transitu that an 
 actual delivery of the goods themselves under the same circum- 
 stances would have had. But the transfer of the document of title 
 by means of which actual possession of the goods could be obtained, 
 had no greater efEect at common law than the transfer of the actual 
 possession." 
 
 SHpper-with- 491. Where, then, goods ihave been shipped by one who has no 
 
 out title can- .i, l • l^^ iii- 
 
 not negotiate, right Or property m them, and he obtains and negotiates a bill of 
 lading for them, his transferee does not acquire any right to the 
 goods, or to possession of them {g). And where upon shipment 
 the goods become the property of some person other than the 
 
 (/) L. E,.,10O.P. 354,p.362. And . , _, , ^. , ^^ ,„ 
 
 see Johnson v. Credit Lyonnais Co., 2 ^^ ^^^ '■ Liverpool and Great W. 
 
 C. P. D. 224 ; 3 C. P. D. 32. ^S- ^°-' 23 L- T. 251. 
 
TO WHOM SHOULD DELIVERY BE MADE. 547 
 
 shipper, and if the shipper has no further right to the possession Sect. 491. 
 of them, he cannot validly negotiate the hill of lading. 
 
 In Ogle V. Atkinson (A), Smidt & Co. of Riga, being indebted 
 to the plaintiff, accepted his order to purchase goods for him ; and 
 shipped them in his ship sent to receive them, stating to the 
 master that they were for the plaintiff. They afterwards im- 
 properly prevailed upon the master to sign bills of lading for the 
 goods in which the consignee's name was left blank, and then 
 assigned these bills of lading to other persons. It was held that 
 the property had vested in the plaintiff, and that the subsequent 
 acts did not deprive him of his title («) . So, also, where intended 
 purchasers have improperly obtaiued bills of lading before they 
 were entitled to them, and have assigned them away, their assignee 
 obtains no title {k). 
 
 492. The question whether the property in the goods is in the When does 
 shipper or not, after the shipment, is often one of much difficulty, paas^"^"^^ '^ 
 Where the shipment has been made under a contract, or with a 
 view to the performance of a contract, for the sale of goods which 
 have not been appropriated to the purchaser prior to the shipment, 
 it becomes a question whether the act of shipment is a final 
 appropriation of those goods to him, and whether it has the effect 
 of passing the property. 
 
 " Under a contract for sale of chattels not specific, the property Shipment 
 does not pass to the purchaser unless there is afterwards an traot'of°Baie. 
 appropriation of the specific chattels to pass under the contract, 
 that is, unless both parties agree as to the specific chattels in which 
 the property is to pass, and nothing remains to be done in order to 
 pass it. In the ease of such a contract the delivery by the vendor 
 to a common carrier, or (unless the effect of the shipment is 
 restricted by the terms of the bill of lading) shipment on board a 
 ship of, or chartered for, the purchaser, is an appropriation sufficient 
 to pass the property. If, however, the vendor, when shipping the 
 articles which he intends to deliver under the contract, takes the 
 bin of lading to his own order, and does so not as agent, or on 
 behalf of the purchaser, but on his own behalf, it is held that he 
 thereby reserves to himself a power of disposing of the property, 
 
 (A) 5 Taun. 759. o. 45), s. 9. 
 
 (i) Of. LutBoher v. Oomptoir d'Es- (A) Craven v. Eyder, 6 Taun. 433 ; 
 
 compte de Paris, 1 0. P. D. 709. See Sohusters.MoKellar, 26L. J., Q. B.281. 
 
 the Factors Act, 1889 (62 & 53 Viot. But see the Factors Act, 1889, s. 10. 
 
 N N 2 
 
648 THE DELIVERY. 
 
 Sect. 492. and that consequently there is no final appropriation, and the 
 property does not on shipment pass to the purchasers. When the 
 vendor on shipment takes the bill of lading to his own order, he 
 has the power of ahsolutely disposing of the cargo, and may 
 prevent the purchaser from ever asserting any right of property 
 therein" (/). 
 
 And that is the case, even though the shipment be in the 
 purchaser's own ship (ni) ; and although the purchaser may have 
 paid for the goods before they were shipped (») ; and may have 
 contracted to buy all goods of that kind so to be shipped (o) . 
 
 But the question in each case is one of the vendor's intention, 
 and is not absolutely concluded by the form of the bill of lading. 
 It may be shown that the vendor in shipping was really acting as 
 the buyer's agent, although the bill of lading was made to his own 
 order (p). And, on the other hand, the vendor may stUl show that 
 he did not intend to part with the property, though he took a bill 
 of lading, which in form made the goods deliverable to the pur- 
 chaser (q). And if that was so, he was still the person to dispose 
 of the bill of lading. 
 
 Sale of Goods The Sale of Groods Act, 1893, enacts as follows : — 
 Act. 
 
 Sect. 18. "Unless a different intention appears, the following are 
 
 rules for ascertaining the intention of the parties as to the time at 
 
 which the property in the goods is to pass to the buyer. 
 
 * * * * * 
 
 Eule 5. "(1) Where there is a contract for the sale of unascer- 
 tained or future goods by description, and goods of that description 
 and in a deliverable state are unconditionally appropriated to the con- 
 tract, either by the seller with the assent of the buyer, or by the buyer 
 with the assent of the seller, the property in the goods thereupon 
 passes to the buyer. Such assent may be express or implied, and may 
 be given either before or after the appropriation is made. 
 
 " (2) Where, in pursuance of the contract, the seller delivers the 
 goods to the buyer or to a carrier or other bailee or custodier (whether 
 
 (1) Per Cotton, L. J., in Miratita v. («) EUershaw v. Magniao, 6 Ex. 
 
 Imperial Ottoman Bank, 3 Ex. D. at 570, n. ; Gabarron v. Kreeft, L. E., 10 
 
 p. 172. And see Wait v. Baker, 17 L. J., Ex. 274. 
 
 Ex. 307 ; Van Casteel v. Booker, 18 L. J. , („) Gabarron v. Kreeft, mpra. 
 Ex. 9 ; Ex parte Banner, In re Tappen- 
 
 beok, 2 Oh. D . 278 ; EUershaw ji. Magniao, W Joyce v. Swan, 1 7 0. B., N. S. 84 ; 
 
 6 Ex. 670, n.; Gabarron i;. Kreeft, L.R., Brown ». Hare, 27 L. J., Ex. 372; 29 
 
 10 Ex. 274 ; Ogg v. Shuter, 1 0. P. D. ^- J-, Ex. 6 ; Ooxe v. Harden, 4 East, 
 
 47 ; Benjamin on Sale, Book II., Ch. 6. 211. 
 
 (m) Tumer«).LiverpoolDook Trustees, (j) Mitohel v. Ede, 11 A. & E. 888 ; 
 
 20 L. J. , Ex. 393. Moakes v. Nicholson, 34 L. J. , 0. P. 273. 
 
TO WHOM SHOULD DELIVEEY BE MADE. 
 
 649 
 
 named by the buyer or not) for the purpose of transmission to the Sect. 492. 
 buyer, and does not reserve the right of disposal, he is deemed to 
 have unconditionally appropriated the goods to the contract. 
 
 Sect. 19. "(1) Where there is a contract for the sale of specific 
 goods, or where goods are subsequently appropriated to the contract, 
 the seller may by the terms of the contract or appropriation reserve 
 the right of disposal of the goods until certain conditions are fulfilled. 
 In such case, notwithstanding the delivery of the goods to the buyer, 
 or to a carrier or other bailee or custodier for the purpose of transmis- 
 sion to the buyer, the property in the gbods does not pass to the buyer 
 until the conditions imposed by the seller are fulfilled. 
 
 " (2) "Where goods are shipped and by the bill of lading the goods 
 are deliverable to the order of the seller or his agent, the seller is 
 primA facie deemed to reserve the right of disposal." 
 
 493. Although the vendor's intention may be that the property Conditional 
 in the goods shall not pass on shipment, and though he may pasTproperty 
 therefore take a bill of lading to his own order, it is a common 
 case that there is a further intention on his part that as soon 
 as the intended buyer shall have performed some condition, such 
 as accepting or paying bills drawn against the goods, they shall 
 become his property. If this be so, and if the vendor has only 
 dealt with the bill of lading with a view to securing performance 
 of the condition, the property in the goods may pass to the buyer 
 as soon as he has performed that, or has been ready and has 
 offered to perform it ; although the biU of lading may be in the 
 hands of third persons. 
 
 In Mirabita v. Imperial Ottoman Bank if), the vendor shipped 
 under a bill of lading to his own order, and drew bills on the 
 purchasers (the plaintiffs) for the price, intending that payment 
 of the bills should be a condition of delivery to them. The bills 
 were discounted with the defendants, and the biU of lading was 
 delivered to them with directions to give it up to the plaintiffs on 
 payment of the bill of exchange. The plaintiffs offered to pay the 
 bills when they became due and to receive the bill of lading ; but 
 the defendants, under the mistaken belief that they had become 
 liable for the freight, refused the offer. Ultimately the defendants 
 took possession of the cargo and sold it. The plaintiffs sued for 
 loss which they had thereby sustained. It was held that they had 
 acquired the property and were entitled to sue. 
 
 Bramwell, L. J., said (s) : " If the plaintiffs had paid and the 
 
 (r) 3 Ex. D. 164. (s) At p. 170, 
 
650 
 
 THE DELIVERY. 
 
 Sect. 493. defendants had accepted the amount of the bill of exchange, can 
 it he doubted that the property -would have vested in the plaiatifEs ? 
 Why? not by any delivery; none might have been made: the 
 defendants might have wrongfully withheld the biU of lading. 
 The property would have vested by virtue of the original contract 
 of sale. It follows that it vested on tender of the price ; and that, 
 whether the vendor's right was a right of property or a jus dis- 
 jwnendi ; for whichever it was, it was their intention that it should 
 cease on the plaintiffs paying the price, and therefore it would 
 cease unless, meanwhile, some title had been conferred on a third 
 person to something more than the price. This, though wrongful 
 as regards the plaintiffs, would have been valid. But no such title 
 exists here." And Cotton, L. J., said {£) : " If the bill of lading 
 has been dealt with only to secure the contract price, there is 
 neither principle or authority for holding that in such a case the 
 goods shipped for the purpose of comple'ting the contract do not, 
 on payment or tender by the purchaser of the contract price, vest 
 in him. When this occurs there is a performance of the condition 
 subject to which the appropriation was made, and everything 
 which, according to the intention of the parties, is necessary to 
 transfer the property is done ; and in my opinion, under such cir- 
 cumstances, the property does, on payment or tender of the price, 
 pass to the purchaser." 
 
 It is noteworthy that the arbitrator who stated the special case 
 in that action, found that it was the intention of the shippers that 
 the property in the cargo should pass to the plaintiffs upon the 
 shipment, subject to a lien on it for payment of the price ; and 
 that the Lords Justices, who were to be at liberty to disregard this 
 finding, seem to have declined to base their decision upon it. 
 
 Mrty pass°es *®*' ^^°^S^ ^^^ property in goods shipped may have passed to 
 subject to the consignee, it may be that the shipper is still entitled to retain 
 vendor's lien. . n ,i i -n n i t 
 
 possession ot the bill of lading, or to take a bill of lading subject 
 
 to his own order, by virtue of his lien on the goods as vendor. It 
 does not appear to have been decided whether a shipper on making 
 the shipment loses his lien, and keeps only the right to stop the 
 goods in transitu ; or whether he may keep the bill of lading, or 
 negotiate it for the purpose of protecting his claim for the price of 
 the goods. 
 
 («) At p. 173. 
 
TO WHOM SHOULD DELIVERY BE MADE. 
 
 551 
 
 Such a question might arise, for example, where the shipment Sect. 494. 
 had been on a sale of specific goods, or had heen made with the 
 intention of passing the property (m). 
 
 Or a somewhat similar case would be where the goods have been 
 shipped by an agent who has purchased them for the consignee 
 and has himself paid for them (x). Speaking with reference to a 
 case of the latter kind, Cockburn, C. J., said (y) : " It strikes me 
 as a possible view of the case that it may well be contended that 
 the property in the goods would at once pass to the consignee ; but 
 then, inasmuch as the agent has paid the money by means of 
 which the goods have been obtained for the principal, the case 
 might be treated as altogether analogous to the case of seller and 
 buyer ; and as the seller of goods has a lien upon them for the 
 price until he is paid, so the agent, laying out his money on the 
 goods for his principal, ought by analogy to have a lien upon the 
 goods until he has been repaid the money which he has laid out in 
 the purchase of them." And the Chief Justice seems to have 
 assumed that the agent might on that view control the disposal of 
 the bill of lading. 
 
 495. But it seems doubtful whether, in such a ease as the last, Shipment by 
 the agent is not really a vendor, in whom the property will still has paid for 
 remain, if he keeps control of the bill of lading (s). Melhsh, ^°° ^' 
 L. J., delivering the judgment of the Court of Appeal in Ex parte 
 Banner, In re Tappenbeck {a), also a case of a shipment by an 
 agent, said : " Where, however, an agent in one coimtry purchases 
 goods on account of his principal, and consigns them to him in 
 another country, if the agent allows the property in the goods and 
 the possession of the goods to pass to his principal, the goods 
 become the absolute property of the principal, and the agent, in 
 the absence of an express agreement to the contrary, has no lien or 
 charge upon them in the hands of his principal. Nor does it, in 
 our opinion, in the absence of fraud, make any difEerence that the 
 agent draws a bill upon his principal for the express piu-pose of 
 
 (m) See Brown v. Hare, 27 L. J., Ex. Ireland v. Livingston, L. R., 5 H. L. 
 
 372 ; Marabita v. Imperial Ottoman 395 ; and per Brett, M. K., Ex parte 
 
 Bank, stipra. Miles, In re Isaacs, 15 Q. B. D. 39, 
 
 (») See Jenkyns v. Brown, 19 L. J., p. 42. Cf. Cassaboglu v. G-ibb, 9 Q. B. 
 
 Q. B. 286. D. 220 ; 11 Q. B. D. 797. Tbe agent 
 
 (j/) In Shepberd v. Harrison, L. E., has at any rate the right of stoppage 
 
 4 Q. B. 196, at p. 205. m transitu : infra, s. 525. 
 
 {z) See Feise v. Wray, 3 East, 93 ; (a) 2 Ch. D. 278, at p. 287. 
 
652 
 
 THE DELIVERY. 
 
 Sect. 495. 
 
 Where bill 
 of lading 
 obtained 
 fraudulently 
 by owner of 
 goods. 
 
 Title of 
 
 obtaining payment of the price of the goods, and that the principal 
 refuses to accept the bill, unless the agent has taken the precaution 
 of making the goods by the bill of lading deliverable to his own 
 order, and has transmitted the bill of lading to an agent of his own, 
 with directions not to hand it over to the principal unless the bill 
 of exchange is accepted. We think that the right of an agent in 
 such a case over the goods, as against his principal, is the same as 
 that of a vendor as against a purchaser." 
 
 496. Where the negotiator of the bill of lading owns the pro- 
 perty in the goods, the fact that he has obtained possession of the 
 bill of lading from the person rightfully entitled to have it by a 
 fraud, will not prejudice the rights of one who has bought the 
 goods from him, and has innocently taken a transfer of the bill of 
 lading (&). But if the person rightfully entitled to hold the bill 
 of lading has been deprived of it without his consent, as if it were 
 stolen, it would seem that, apart from the Factors Act, 1889, no 
 title to keep it, or to the possession of the goods, could be trans- 
 ferred. 
 
 In Pease v. Grioahec (b), the Judicial Committee referred to the 
 ruling in Kingsford v. Merry (e), that " when a vendee obtains 
 possession of a chattel with the intention, by the vendor, to transfer 
 both the property and possession, although the vendee has com- 
 mitted a false and fraudulent misrepresentation in order to effect 
 the contract or obtain the possession, the property vests in the 
 vendee until the vendor has done some act to disaffirm the trans- 
 action, and the legal consequence is, that if before the disaffirmance 
 the fraudulent vendee has transferred either the whole or a partial 
 interest in the chattel to an innocent transferee, the title of such 
 transferee is good against the vendor." 
 
 And they then proceeded as follows : " Although this case was 
 reversed in the Exchequer Chamber (d), yet it was upon a ground 
 which did not affect the rule of law above laid down, but made it 
 inapplicable, because in the judgment of the Court the relation of 
 vendor and vendee did not exist between the owner of the goods 
 and the fraudulent possessor. Here the possession was not only 
 united to the previous ownership, with the consent (however 
 obtained) of the person temporarily entitled to it, but transferred 
 
 (i) Pease v. G-loaieo, L. R., 1 P. 0. 
 219. 
 
 {e) 11 Ex. 577. 
 id) 1 H. & N. 603. 
 
TO WHOM SHOULD DELIVERY BE MADE. ^^^ 
 
 for the express purpose of giving to the owner absolute dominion Sect. 496. 
 over his own property. An ownership, which was at the time per- 
 fect at law, though voidable as to part, viz., the possession, cannot 
 in principle be treated differently from an ownership voidable as to 
 the whole, but in the interim protected by the interposition of a 
 bona fide purchaser for valuable consideration." 
 
 497. There have been great differences of opinion among learned Effect of 
 judges as to the legal effect of a transfer of a bill of lading, duly till of lading, 
 indorsed, va. regard to the vesting of the property in the goods. On 
 the one hand, the view appears to have been that where there has 
 been a real transfer of the bill of lading, not a mere handing to an 
 agent, nor a possession obtained by a thief, the property in the 
 goods, as well as the right to possession, follows the bill of lading. 
 
 On the other hand, the view now established is that the bill of 
 lading merely represents the goods, not the right to them ; and 
 that possession of it is only equivalent to a physical possession of 
 them. The right of property in the goods depends upon the 
 transaction between the parties, of which the transfer of the bUl 
 of lading may or may not have been an incident. 
 
 Such a transfer indicates nothing more than a delivery of the 
 goods would do (e). It may have accompanied a sale of the goods ; 
 or it may have been given to complete a pledge ; or, again, merely 
 to enable an agent to obtain delivery. 
 
 498. This question has been repeatedly raided in connection with Transfer to 
 transfers of bills of lading to bankers, as security for advances made p, , 
 to the owners of the goods represented by the documents. It has mortgage ? 
 been held, on the one hand, that the transfer in such a case con- 
 stitutes a mortgage of the goods, and, on the other hand, that it 
 only amounts to a pledge. In either case the delivery of the in- 
 dorsed bill of lading is a constructive delivery of the goods ; but 
 while on the one view (mortgage) the transferee acquires the pro- 
 perty in the goods, on the other (pledge) he only becomes entitled 
 to possession of them (with certain powers of sale) until the 
 advances are repaid. 
 
 In Barber v. Meyerstein (/), a simple deposit of a bill of lading, 
 made to secure advances, was regarded in the Common Pleas, and 
 
 (e) See, however, as to the efEeot of Dracaohi v. Anglo -Egyptian Nav. Co., 
 
 the transfer as evidence of a change of L. K., 3 0. P. 190. 
 property, per Eyre, 0. J., HaiUe v. (/) L. R., 2 C. P. 38, 661 ; L. R., 4 
 
 Smith, 1 B. & P. 663, at p. 570 ; H. L. 317 (1870). 
 
554 THE DELIVERY. 
 
 Sect. 498. in the Exchequer Chamher as a pledge. Willes, J., expressly laid 
 it down that it " was not the case of a sale, but simply a pledge to 
 Meyerstein " {g). But, in the House of Lords, the deposit was 
 regarded as a mortgage ; having the effect of passing " the whole 
 and complete ownership of the goods " (A). The decision did not, 
 however, turn on this question ; for in each Court it was held that 
 the bill of lading had efEectuaUy carried the right of possession to 
 the plaintiff ; which was all that he needed. 
 
 In Mirabita v. Imperial Ottoman Bank («'), the Court of Appeal 
 held that a transfer of bills of lading to bankers with bills drawn 
 against the cargo, and discounted by the bank, did not pass the 
 property in the goods to them. For the intention had been that 
 the bank should give up the bills of lading to the intended con- 
 signee upon his meeting the bills of exchange ; and the Court held 
 that the property passed to the consignee under his contract with 
 the shipper- vendor, upon his tendering payment of the bills. 
 
 In Glyn ®. East and "West India Dock Co. {k) there was again 
 a conflict of opinion on the point. Bills of lading had there been 
 deposited with bankers to secure an advance under a letter of 
 charge, which ran as follows : — " May 15th, 1878. We beg to 
 apply for an advance of 13,000/., to be repaid on or before the 
 16th of July, 1878, on bills of lading in schedule overleaf, to be 
 lodged with you as collateral security. We may, with your con- 
 sent, substitute other biUs of lading for all or any of the bills of 
 lading now lodged by us. We further agree that the total of our 
 indebtedness to you in respect to this advance and any other ad- 
 vances from you to us on bills of lading, or any other account, 
 shall be regarded as collaterally secured by all bills of lading 
 lodged by us with you and in your possession from time to time. 
 In event of default being made in payment of this or any other 
 advance from you to us at due date, or in other case of need, you 
 are at liberty to realize all the produce represented by the bill of 
 lading in your possession, &c." 
 
 In the Court of Appeal, Brett, L. J., said : " The legal effect of 
 the transaction, in my opinion, was, that by the indorsement of the 
 bill of lading the legal property in the sugar was transferred to 
 the plaintiffs, and as between them and Cottam, Morton & Co. 
 
 iff) L. R., 2 C. P., at p. 51. (i) 3 Ex. D. 164 (1878). 
 
 (A) Per Lord Hatterley, L. R., 4 (A) 5 Q. B. D. 129 ; 6 Q. B. T>. 476 ; 
 
 H. L., at p. 326. 7 A. C. 591 (1882). 
 
TO WHOM SHOULD DELIVEKY BE MADE. ^^^ 
 
 (the assignors), a legal right to the immediate actual possession of Sect. 498. 
 the sugar by the plaintiffs on the arrival of the ship ; but by the 
 letter of charge there was left to Cottam, Morton & Co. an equit- 
 able right to resume the legal and absolute ownership of the sugar 
 on repayment of the advance, and an equitable right that the 
 plaintiffs should not for a specified time exercise any rights of 
 ownership over the sugar, but that Cottam, Morton & Co. might 
 exercise any such rights, which would not be inconsistent with the 
 validity of the plaintiff's security " (1) . 
 
 Baggallay, L. J., said it was unquestionable that " the effect of 
 the delivery by Messrs. Cottam to the plaintiffs, on the 15th of 
 May, of the indorsed bill of lading, the other parts of the original 
 set of three not having been previously dealt with, was to pass to 
 the plaintiffs the property represented by it, and to confer upon 
 them the right to the possession of such goods upon the arrival of 
 the Mary Jones in the port of London, subject, nevertheless, to the 
 payment of the freight due to the shipowner " (m). 
 
 On the other hand, Bramwell, L. J., took the contrary view : 
 " I do not think that the property in the sugars was passed to the 
 plaintiffs with an equity of redemption, or some other equity, in 
 Cottam & Co. I think that what took place was a pledge at com- 
 mon law, with a right in the plaintiffs to sell in certain events, and 
 with a common law right to redeem in Cottam & Co. I think if 
 there had been instead of a symbolical an actual delivery of goods 
 from Cottam & Co. to the plaintiffs, on the same terms, as, for in- 
 stance, of a case of diamonds, the general property would not have 
 been transferred, but would have remained in Cottam & Co., the 
 plaintiffs having only a special property and right of posses- 
 sion" (w). 
 
 In the House of Lords this point was not much discussed ; 
 Lord Blackburn thought it unnecessary to express an opinion 
 upon it. He said : " Either way thebankers had a legal property, 
 and at law the right to possession, subject to the shipowner's lien, 
 and were entitled to maintain an action against any one who, 
 without justification or legal excuse, deprived them of that 
 right" (o). The right of possession would have suflBced for the 
 plaintiffs, had the action not been defective on other grounds. 
 
 [l] 6 Q. B. D., at p. 480. (») 6 Q. B. D., at p. 490. 
 
 (m) 6 Q. B. D., at p. 498. (o) 7 A. C, p. 606. 
 
656 
 
 THE DELIVERY. 
 
 Sewell V. 
 Burdiok. 
 
 Intention the 
 
 test. 
 
 Sect. 499. 499. But in Sewell v. Burdiok (p), where the question was 
 whether hankers to whom a hill of lading had been indorsed were 
 liahle under the hUl of lading contract, it seems to have been 
 conclusively laid down by the House of Lords that the effect of 
 an indorsement must be ascertained, in each case, by reference to 
 the intention with which it was made. The bill of lading there 
 had been indorsed by the shipper in blank, and deposited by him 
 with the bankers as security for a loan. Field, J., who tried the 
 case, found that the intention was to pledge the goods only ; to 
 give the bankers control over the possession of them, but to leave 
 the general property with the shipper. He accordingly gave 
 judgment against the claim for freight made by the shipowner 
 against the bankers. 
 
 This was reversed by the Court of Appeal on the gi'ound that 
 the indorsement of the bill of lading, as security, necessarily 
 passed the legal property in the goods to the indorsee, leaving 
 only an equitable interest in them in the shipper. 
 
 Bowen, L. J., however, dissented from this view, and he laid 
 down clearly the principle which was afterwards adopted upon 
 this point by the House of Lords. He said (q) : — " What pro- 
 perty, if any, in a cargo afloat passes upon delivery of an indorsed 
 bill of lading, appears to me to be a question of fact in each case 
 that depends, so far as the rights between themselves of the 
 immediate parties are concerned, on the express or implied agree- 
 ment between them. The owner of merchandise may do whatever 
 he pleases with his goods; he may sell them, or mortgage them, 
 or pledge them. It is a pure question of bargain whether he 
 delivers them upon terms which part with the entire beneficial 
 interest in them, or which part with the entire legal interest 
 reserving an equitable right to himself, or which part with a 
 special property only in them, reserving to himself the general 
 and absolute property at law. The freedom of disposition, which 
 owners of property possess when their property is on shore, belongs 
 to them equally when it is afloat. They can, if they please, sell 
 the bill of lading, or transfer it upon terms which amount either 
 to a mortgage or to a pledge. For a bill of lading is a symbol of 
 the goods themselves. The cargo being at sea, no actual delivery 
 
 {p) 10 Q. B. D. 363 ; 13 Q. B. D. 159 ; oussed supra, s. 66. 
 10 A. 0. 74 (1884). See the case dis- (?) 13 Q. B. D., p. 170, 
 
TO WHOM SHOULD DELIVERY BE MADE, 557 
 
 . of it is possible before the ship arrives. During this period of Sect. 499. 
 flotation and transit the hill of lading hecomes and remains the 
 token or symbol of the goods, and the delivery and indorsement of 
 the bill of lading is equivalent, so far as the passing of property is 
 concerned, to a symbolical delivery of the goods. Upon principle 
 and reason, therefore, apart from authority, one would suppose that 
 it is to the agreement between the original parties that we ought to 
 look if we wish to discover the effect as between themselves of a 
 delivery of the indorsed bill of lading, just as it is to the agree- 
 ment between them that we should look to determine the legal- 
 consequences that follow on the corporate delivery of the goods. 
 We should expect in some cases to find that the entire property 
 had passed ; in others, that there had been some different arrange- 
 ment." (»•). 
 
 500. Though the ordinary manner of transferring goods repre- Assignment of 
 sented by a bill of lading is by indorsement and delivery of the transfer of the 
 bill of lading itself, it seems clear that the rights of property in ' ° ^ ^' 
 the goods may be completely assigned to another without any 
 assignment or delivery of the bill of lading at all ; and, therefore, 
 subject to the Factors Act, that if the owner of the property in 
 the goods assigns them to A. without a transfer of the bill of 
 lading, and afterwards transfers the biU of lading to B., the latter 
 will have no right to the goods as against A., except, perhaps, in 
 respect of the lien of the original owner, if any. 
 
 " If the intention of the parties to pass the property, whether 
 absolute or special, in certain ascertained chattels, is established, 
 and they are placed in the hands of a depositary, no matter 
 whether such depositary be a common carrier or shipmaster em- 
 ployed by the consignor, or a third person, and the chattels are so 
 placed on account of the person who is to have that property, and 
 the depositary assents, it is enough, and it matters not by what 
 documents this is effected. Nor is it material whether the person 
 who is to have the property be a factor or not, for such an 
 agreement may be made with a factor as well as any other 
 individual" (s). 
 
 " I take this opportunity of saying that I think there is some 
 inaccuracy of expression in the statute. It recites that ' by the 
 custom of merchants a bill of lading being transferable by indorse- 
 
 (r) Of. North "Western Bank v. Poyn- («) Per Parke, B., Bryans v. Niz, 4 
 
 ter, (1895) A. 0. 56. M. & W. 775, at p. 791. 
 
5.58 THE DELIVERY. 
 
 Sect. 500. ment the property in the goods may thereby pass to the indorsee.' 
 Now the truth is, that the property does not pass by the indorse- 
 ment, but by the contract in pursuance of which the indorsement 
 is made. If a cargo afloat is sold, the property would pass to the 
 Tendee, even though the bill of lading was not indorsed. I do not 
 say that the vendor might not retain a lien, nor that the non- 
 indorsement and non-handing over of the bill of lading would not 
 have certain consequences. My concern is to show that the pro- 
 perty passes by the contract. So if the contract was one of security 
 — ^what would be a pledge if the property was handed over — a con- 
 tract of hypothecation, the property would be bound by the con- 
 tract, at least as to all who had notice of it, though the bill of 
 lading was not handed over " {t). 
 Bill of lading 501. The bill of lading continues in force as a document of title, 
 document of by which Symbolical delivery of the goods may be made, " at least 
 deUvCTy!^ SO long as complete delivery of the possession of the goods has 
 not been made to some person having a right to claim them 
 under it" (m). 
 
 A quantity of cotton was consigned to one Abraham, but bills 
 had been drawn against it, and when the cotton arrived in London 
 those bills lay in the hands of bankers, who also held as security 
 the whole set of three bills of lading which represented the cotton. 
 The cotton was landed at a sufferance wharf, subject to a " stop " 
 for the freight. On February 9th Abraham instructed Barber & 
 Co. to sell the cotton, and they took samples of it at the wharf. 
 On March 4th Abraham obtained an advance from Meyerstein, 
 and therewith paid off the bank and obtained the three bills of 
 lading, two of which he on the same day deposited with Meyer- 
 stein as security. On the 6th and 7th of March Abraham obtained 
 advances from Barber & Co. against the cotton, depositing with 
 them the third bill of lading, and he paid the freight. Afterwards 
 Barber & Co. got possession of the cotton. It was held that 
 Meyerstein was entitled to claim it from them. The landing, 
 subject to the stop for freight, was not a complete delivery of the 
 goods, so as to put an end to the force of the bUl of lading as an 
 instrument of transfer (x). 
 
 [t) Per Lord Bramwell, Sewell v. 5 Taim. 74. 
 
 Burdick, 10 A. C. 74, at p. 105. See (m) Per Willes, J., Meyerstein v. 
 
 Dick V. Lumsden, Peake, N. P. C. 189 ; Barber,' L. E., 2 C. P., at p. 53. 
 
 Davisjj.Keynolds, 4 Camp. 267; Nathan {x) Meyerstein v. Barber, L. E.., 2 
 
 V. Giles, 6 Taun. 558 ; Meyer v. Sharpe, C. P. 38, 661 ; L. E., 4 H. L. 317. 
 
TO WHOM SHOULD DELIVERY BE MADE. 
 
 559 
 
 The judgments in that case went further upon this point than Sect. SOI. 
 was actually required for the decision, and show that even if there 
 be no stop for freight, the bill of lading continues in force after 
 the landing of the goods, until there has been an actual or con- 
 structive delivery of them under the bill of lading. 
 
 Martin, B., delivering the judgment of the Exchequer Chamber, 
 said : " For many years past there have been two symbols of pro- 
 perty in goods imported — the one, the bill of lading ; the other, 
 the wharfinger's certificate or warrant {y) . Until the latter is issued 
 by the wharfinger the former remains the only symbol of property 
 in the goods." And the Lord Chancellor (Lord Hatherley), said : 
 " In the case of goods, which are at sea, being transmitted from 
 one country to another, you cannot deliver actual possession of 
 them ; therefore the bill of lading is considered to be a symbol of 
 the goods, and its delivery to be a delivery of them. When they 
 have arrived at the dock, until they are delivered to some person 
 who has the right to hold them, the bill of lading still remains the 
 only symbol that can be dealt with by way of assignment or mort- 
 gage, or otherwise. As soon as delivery is made, or a warrant for 
 delivery has been issued, or an order for delivery accepted (which 
 in law would be equivalent to delivery), then those symbols replace 
 the symbol which before existed. Until that time bills of lading 
 are effective representations of the ownership of the goods, and 
 their force does not become extinguished until possession, or what 
 is equivalent in law to possession, has been taken on the part of the 
 person having a right to demand it." 
 
 Where delivery had been made by the master improperly, it was 
 held, in Scotland, that an indorsee of the bill of lading, who bought 
 the goods and took the indorsement after the wrongful delivery, 
 could still sue the shipowner on the bill of lading contract. " The 
 defender cannot found upon his own wrongful act " (z). 
 
 502. Difficulty sometimes arises out of the practice of drawing Bill of lading 
 bills of lading m sets. It is not usual for a purchaser of the goods, sentatio/by' 
 or a banker to whom they have been pledged, to require all of the i^ifierent 
 set to be transferred to him. Some signed parts are thus generally 
 
 [y) A wharfinger's or warehouseman's Farina v. Home, 16 M. & W. 119; 
 
 certificate or warrant is not a symbol of IngUs v. Robertson, (1898) A. C. 616. 
 the goods in the same sense as a bill of (s) Pirie>. Warden, 8 So. L. R. 360 ; 
 
 lading is ; it does not generally carry and see Bristol, &o. Bank *. Midland 
 
 construotiTe possession with it ; see Rail. Co., (1891) 2 Q. B. 652. 
 
560 THE DELIVERY. 
 
 Sect. 602. left with the vendor or pledgor, and these may he negotiated and 
 " used improperly. Bills of lading, drawn in sets, always provide 
 that one of them " heing accomplished, the others to stand void ;" 
 and it was formerly held that when different parts of the set are 
 presented, by different holders, the captain is not concerned to 
 examine who has the hest right, but has simply to deliver the goods 
 upon one of them {a). But, as we have seen, that is not so (b). 
 When the master has notice or knowledge that more than one of 
 the set have been negotiated, he must ascertain who is the rightful 
 owner, and deliver to him ; or else he should interplead (c). 
 Presentation If, however, one part of the bill of lading only be presented, 
 BhipoTraer ° although it be not that marked " First " of the set, and if the 
 sufficient. master has no knowledge that any other part has been indorsed, he 
 may properly and safely deliver in accordance with the indorsement 
 and holding of the part presented, without inquiry as to the others. 
 " It would be neither reasonable nor equitable, nor in accordance 
 with the terms of such a contract, that an assignment, of which the 
 shipowner has no notice, should prevent a bond fide delivery under 
 one of the bills of lading, produced to him by the person named on 
 the face of it as entitled to delivery (in the absence of assignment), 
 from being a discharge to the shipowner. Assignment, being a 
 change of title since the contract, is not to be presumed by the 
 shipowner in the absence of notice, any more than a change of title 
 is to be presumed in any other case when the original party to a 
 contract comes forward and claims its performance, the other party 
 having no notice of anything to displace his right. He has notice, 
 indeed, that an assignment is possible, but he has no notice that it 
 has taken place. There is no proof of any mercantile usage putting 
 the shipowner, in such a case, under an obligation to inquire 
 whether there has in fact been an assignment or not ; and, in the 
 absence of such usage, I am of opinion that it is for the assignee to 
 give notice of his title to the shipowner, if he desires to make it 
 secure, and not for the shipowner to make any such inquiry" {d). 
 
 Indorsement 603. Further, it is not necessary to the effectiveness of a con- 
 assignee^ ° structive delivery of the goods, by means of the bill of lading, that 
 sufficient. mQj,Q tjjajj Qj^g pa^rt of the " set " should be indorsed or delivered. 
 Where one part has passed the indorsee's title to the goods under 
 
 (a) Fearon v. Bowers, 1 H. Bl. 364, n. Dock Co., 7 A. C. 591. 
 
 (i) Supra, s. 469. [d) Per Lord Selbome, 7 A. C, at 
 
 (c) Glyn, Mills & Co. v. E. & W. India p. 596. 
 
TO WHOM SHOULD DELIVERY BE MADE. 
 
 561 
 
 the assignment to him is perfected, so far as constructiTe delivery Sect. 503. 
 of possession can make it so, as against any subsequent indorsee of 
 another part or parts of the " set " ; even though the latter should 
 obtain actual possession of the goods (e). 
 
 In Sanders v. Maclean (/) the question was raised whether a pur- 
 chaser of goods, to be paid for against bills of lading, might refuse 
 to accept and pay upon two parts only out of a set of three bills of 
 lading. The Court of Appeal held that a tender of two parts to a 
 purchaser is sufficient, where the third part has not been dealt 
 with. 
 
 Brett, M. E,., there said (g), " If only one copy of a blU of lading 
 has been indorsed, it is plain and known law that the delivery of 
 that copy so indorsed, with an intention to pass the property in the 
 goods, passes the property, and will entitle the person to whom it 
 is delivered to demand possession of the goods on their arrival ; and 
 it is also known law that if it be so indorsed the person to whom it 
 is so delivered can, by indorsement for value, pass the property to 
 somebody else ; and, if that one copy of the bill of lading is the first 
 which is indorsed, it passes the property, so that no subsequent- 
 indorsement of any other of the copies will have any effect upon 
 the property in the goods." 
 
 504. The common law has been much modified by the Factors Factors Act, 
 Acts. The Act now in force is the Factors Act, 1889 (52 & 63 ^**^- 
 Vict. c. 45), which repeals the earlier Acts having the same name, 
 viz., 4 Geo. IV. c. 83, 6 Geo. lY. c. 94, 5 & 6 Vict. o. 39, and 
 40 & 41 Vict. 0. 39. The following are the important clauses of 
 the Act : — 
 
 1. For the purposes of this Act — 
 
 (1.) The expression "mercantile agent" shall mean a mercantile 
 agent having in the customary course of his business (A) as such 
 agent authority either to seU goods, or to consign («) goods for 
 tlie purpose of sale, or to buy goods, or to raise money on the 
 security of goods : 
 
 (2.) A person shall be deemed to be in possession of goods, or of the 
 
 (fi) Barber v. Meyerstein, L. E., 2 {g) Ibid., p. 334. 
 
 C. P. 38, 661; L. E., i H. L. 317; [h) See Hastings v. Pearson, (1893) 1 
 
 Gilbert v. Guiguon, L. E., 8 Oil. 16 ; Q. B. 62. 
 
 Caldwell V. BaU, 1 T. E. 205. (i) See City Bank *. Barrow, 6 A. C, 
 
 (/) 11 Q. B. D, 327. 684. 
 
 C. — C. O O 
 
562 THE DELIVEEY. 
 
 Sect. 504. documents of title to goods, where the goods or documents 
 
 are in his actual custody, or are held by any other person 
 subject to his control or for him or on his behalf (A) : 
 
 (3.) The expression " goods" shall include wares and merchandise : 
 
 (4.) The expression "document of title" shall include any bill of 
 lading, dock warrant; warehouse-keeper's certificate, and 
 warrant or order for the delivery of goods {I), and any other 
 document used in the ordinary course of business (m) as proof 
 of the possession or control of goods, or authorizing or pur- 
 porting to authorize, either by indorsement or by delivery, 
 the possessor of the docmnent to transfer or rec^ve goods 
 thereby represented : 
 
 (5.) The expression "pledge" shall include any contract pledging, 
 or giving a lien or security on goods, whether in consideration 
 of an original advance, or of any further or continuing ad- 
 vance, or of any pecuniary liability : 
 
 (6.) The expression "person" shall include any body of persons 
 corporate or unincorporate. 
 
 Dispositions by Mercantile Agents. 
 
 2. — (1.) Where a mercantile agent is, with the consent of the owner, 
 in possession of goods (n), or of the documents of title to goods, any 
 sale, pledge, or other disposition of the goods, made by him when 
 acting in the ordinary course of business of a mercantile agent (n), 
 shall, subject to the provisions of this Act, be as valid as if he were 
 expressly authorized by the owner of the goods to make the same : 
 provided that the person taking under the disposition acts in good 
 faith, and has not at the time of the disposition notice that the person 
 making the disposition has not authority to make the same (o). 
 
 (2.) Where a mercantile agent has, with the consent of the owner, 
 been in possession of goods, or of the documents of title to goods, any 
 sale, pledge, or other disposition, which would have been valid if the 
 consent had continued, shall be valid notwithstanding the determina- 
 tion of the consent : provided that the person taking under the 
 disposition has not at the time thereof notice that the consent has been 
 determined. 
 
 (k) Where document already pledged sMpmeut, Gunn v. Bolokow, L. B., 10 
 
 and transferred for part of its value: Ch. 491. 
 
 PortaHs v. Tetley, L. R., 5 Eq. 140. , \ -nru ^r. • t. v 
 
 /7v -NT 1 -1 -^ ■. W Wnere the possession has been 
 
 <?) Not necessarily specific goods: il ■ , ■, j. ■■ » ,, , 
 
 IT- 1 TT i. T -n nTx T r, ,,„ ottamed by fraud of the agent, see 
 
 Vickersj). Hertz,L. E., 2H.L. So. 113. ai, j tt ■ t. i i^ t j o, 
 
 / \ m-u- J £ -i- i i, . n „ bheppard v. Union Bank of London, 31 
 
 {)«) This definition repeats that of the tt-o ,^, t>. a • <,-, 
 
 ii'„„+™„ 4„+ 10^0 Tij i li. J., Ex. 154; Barnes ». Swamson, 32 
 
 Factors Act, 1842. It does not cover a x j q -p. no, 
 
 mere receipt for payment for goods : ■ •, . . 
 
 per Lord Blackburn in Kemp o. Ealk, (o) See JSTavulshaw v. Brownrigg, 21 
 
 7 A. 0. 673, p. 585. Cf. as to certifi- L. J., Ch. 908 ; Chunder Sein v. Eyan, 
 
 cates that goods are lying ready for 5 L. T. 659. 
 
TiD WHOM SHOULD DELIVERY BE MADE. 563 
 
 (3.) Where a mercantile agent has obtained possession of any docu- Se ct. 504. 
 ments of title to goods ty reason of his being or having been, with 
 the consent of the owner, in possession of the goods represented thereby,- 
 or of any other documents of title to the goods, his possession of the 
 first-mentioned documents shall, for the purposes of this Act, be deemed 
 to be with the consent of the owner. 
 
 (4.) For the purposes of this Act the consent of the owner shaU be 
 presumed in the absence of evidence to the contrary. 
 
 3. A pledge of the documents of title to goods shall be deemed to 
 be a pledge of the goods {p). 
 
 4. "Where a mercantile agent pledges goods as security for a debt or 
 liability due from the pledgor to the pledgee before the time of the 
 pledge, the pledgee shall acquire no further right to the goods than 
 could have been enforced by the pledgor at the time of the pledge (j). 
 
 5. The consideration necessary for the validity of a sale, pledge, or 
 other disposition of goods, in pursuance of this Act, may be either a 
 payment in cash, or the delivery or transfer of other goods, or of a 
 document of title to goods, or of a negotiable security, or any other 
 valuable consideration ; but where goods are pledged by a mercantile 
 agent in consideration of the delivery or transfer of other goods, or of 
 a document of title to goods, or of a negotiable security, the pledgee 
 shall acquire no right or interest in the goods so pledged in excess of 
 the value of the goods, documents, or security when so delivered or 
 transferred in exchange. 
 
 6. For the purposes of this Act an agreement made with a mercantile 
 agent through a clerk or other person authorized in- the ordinary course 
 of business to make contracts of sale or pledge on his behalf shaU be 
 deemed to be an agreement with the agent. 
 
 7. — (1.) Where the owner of goods has given possession of the goods 
 to another person for the purpose of consignment {r) or sale, or has 
 shipped the goods in the name of another person, and the consignee of 
 the goods has not had notice that such person is not the owner of the 
 goods, the consignee shall, in respect of advances made to or for the 
 use of such person, have the same Ken on the goods as if such person 
 were the owner of the goods, and may transfer any such lien to another, 
 person. 
 
 (2.) Nothing in this section shall limit or affect the validity of any 
 sale, pledge, or disposition, by a mercantile agent. 
 
 [p) TMs relates only to pledges by Liabilities not ripened into debts: 
 
 " mercantile agents," Inglis ». Robert- Maenee v. Uorst, L. E., 4 Eq. 315; 
 
 son (1898) A. 616. Blake v. BeHaat Discount Co., 5 L. K., 
 
 I ^ nc 3 it II A i -r •■ Lr. 410; Jewau r. Whitworth, L. E., 2 
 
 (?) Cf. under the old Acts, Learoyd v. j, „„„ 
 
 Eobinson, 12 M. & W. 745 ; Kalten>acli (;) ^^ city Bank v. Barrow, 5 A. C. 
 
 V. Le-ffis, 24 Ch. D. 54; 10 A. 0. 617. 664. 
 
 oo2 
 
564 
 
 THE DELIVERY. 
 
 Sect. 504. Dispositions hy Sellers and Buyers of Goods. 
 
 8. Where a person, having sold goods, continues, or is, in possession 
 of the goods or of the documents of title to the goods, the delivery or 
 transfer («) by that person, or by a mercantile agent acting for him, 
 of the goods or documents of title under any sale, pledge, or other 
 disposition thereof, or under any agreement for sale, pledge, or other 
 disposition thereof, to any person receiving the same in good faith and 
 without notice of the previous sale, shall have the same effect as if the 
 person making the delivery or transfer were expressly authorized by 
 the owner of the goods to make the same (t). 
 
 9. Where a person, having bought or agreed to buy goods (m), 
 obtains with the consent of the seller possession of the goods or the 
 documents of title to the goods, the delivery or transfer, by that person 
 or by a mercantile agent acting for him, of the goods or documents of 
 title, under any sale, pledge, or other disposition thereof, or under any 
 agreement for sale, pledge, or other disposition thereof, to any person 
 receiving the same in good faith and without notice of any Hen or 
 other right of the original seller in respect of the goods, shall have the 
 same effect (x) as if the person making the delivery or transfer were a 
 mercantile agent in possession of the goods or documents of title with 
 the consent of the owner (<). 
 
 10. Where a document of title to goods has been lawfully transferred (y) 
 to a person as a buyer or owner of the goods, and that person transfers 
 the document to a person who takes the document in good faith and 
 for valuable consideration, the last-mentioned transfer shall have the 
 same effect for defeating any vendor's lien or right of stoppage in 
 transitu as the transfer of a bill of lading has for defeating the right 
 of stoppage in transitu {z). 
 
 Loss of marks 
 mixture of 
 goods ; con- 
 signees 
 tenants in 
 common. 
 
 505. A question of difficulty sometiines arises in delivering 
 goods owing to their identity having been lost. This may happen 
 where goods of the same kind belonging to several different owners 
 are carried together, and the marks on some of them become 
 obliterated ; or where, being carried in bulk, the separations 
 
 (s) Pledge to warehouseman, already 
 in possession for vendor, witliout fresh 
 deliyery, not protected : Nicholson v. 
 Harper, (1895) 2 Ch. 415. 
 
 {t) Sections 8 and 9 have heen again 
 enacted by s. 25 of the Sale of Goods 
 Act, 1893. 
 
 («) It is not necessary that there be 
 a memorandum of the purchase, satisfy- 
 ing the Statute of Frauds : Hugill v. 
 Masker, 22 Q. B. D. 364. As to hire 
 and purchase agreements see Lee v. 
 Butler, (1893) 2 Q. B. 318 ; Shenston v. 
 
 Hilton, (1894) 2 Q. B. 452 ; Helby «v 
 Matthews, (1895) A. C. 471. 
 
 {x) As to the effect in defeating the 
 right to stop the goods in transit, see 
 Cahn V. Pookett's, &c. Co., (1899) 1 
 Q. B. 643, infra, s. 536. 
 
 [y] See Cahn v. Pockett's, &c. Co., 
 (1899) 1 Q. B. 643, infra, s. 636. 
 
 (z) See, prior to the Act of 1877, 
 Jenkyns v. Usbomfl, 13 L. J., C. P. 196 ; 
 M'Ewan v. Smith, 2 H. L. C. 309. S. 
 10 has in effect, been re-enacted by 
 s. 47 of the Sale of Goods Act,- 1893, . , 
 
TO WHOM SHOULD DELIVERY BE MADE. 565 
 
 between 'them are T)roken up ; or where packages containing the Sect. 505. 
 
 goods are burst, so that the different bulks, or parts of them, 
 
 become mixed together. In such cases the rule adopted is that 
 
 the several owners become tenants in common in the confused or 
 
 mixed goods, in proportion to the quantities which should have 
 
 been delivered to them respectively. And a division of the goods, 
 
 or their proceeds, on that basis should be made. 
 
 In Spence ®. Union Marine Insurance Co. («), the action was 
 brought on a policy on forty-three bales of cotton shipped in the 
 Caroline Nasmyth, on a voyage from Mobile to Liverpool, averring 
 a total loss. The vessel had been wrecked on the Florida reef ; 
 and the cargo, of cotton, was brought into Key West, all more or 
 less damaged; many of the bales broken, and the marks and 
 numbers on others obliterated. Some of the bales were lost, and 
 some so damaged that they had to be sold at Key West ; the 
 remainder were sent on to Liverpool in another vessel. 
 
 Of 2,493 bales with which the Caroline Nasmyth sailed, 617 
 arrived in Liverpool in such a state that they could be identified, 
 and were delivered to the consignees ; 1,645 were sold at Liver- 
 pool, the marks being so obliterated by sea-water that they could 
 not be identified as belonging to any particular consignee; and 
 231 bales were either lost on the reef or sold at Key West. Of 
 the forty-three bales, in respect of which the action was brought, 
 only two could be identified at Liverpool. These were delivered. 
 The plaintiffs gave notice of abandonment of the forty-one to the 
 underwriters ; and claimed to treat them as totally lost. The 
 underwriters claimed to be liable to the plaintiffs only for a pro- 
 portion (forty-three to 2,493) of the value of the cotton which was 
 actually lost. 
 
 The considered judgment of the Court in favour of the under- 
 writers was delivered by Bovill, C. J., and was based on the grounds 
 shown iu the following passage : — 
 
 " We must, thus necessarily, consider what is the effect of the 
 obliteration of marks upon various goods of the same description 
 which are shipped in one vessel, and which without any fault of 
 the owners become so mixed that one part is undistinguishable 
 from another; and it seems to us not altogether immaterial to 
 inquire in whom the property in the goods is vested under such 
 
 (a) L. E., 3 0. P. 427. Of. Smurthwaite v. Hannay, (1894) A. 0. 494, per 
 Lord Hussell, p. SOS. 
 
566 THE DELIVERY. 
 
 Sect. 505. circumstances, or wlietlier they become bona vacantia, and pass to 
 ' the first finder or to the crown. In endeavouring to arrive at a 
 conclusion upon that subject, we should be guided by any direct 
 authorises, as well as by analogous cases in our own law, and by 
 the principles of law which have been laid down and established in 
 our Courts ; and, as the rules and principles of our mercantile and 
 maritime law are in a large measure derived from foreign sources, 
 we gladly avail ourselves of the codes and laws of other countries, 
 and especially of the Roman Civil Law, to see what amongst 
 civilized nations has usually in like cases been considered reason- 
 ■ able and^just. 
 
 " In our own law there are not many authorities to be found 
 upon this subject ; but as far as they go, they are in favour of the 
 view that, when goods of different owners become by accident so 
 mixed together as to be undistinguishable, the owners of the goods 
 so mixed become tenants in common of the whole, in the pro- 
 portions which they have severally contributed to it. The passage 
 cited from the judgment of Blackburn, J., in the case of the 
 tallow which was melted and flowed into the sewers, is to that 
 effect: Buckley v. Gross (6). And a similar view was adopted by 
 Lord Abinger in the case of the mixture of oil by leakage on 
 board ship, in Jones v. Moore (c). It has long been settled 
 in our law, that, where goods are mixed so as to become un- 
 distinguishable, by the wrongful act or default of one owner, he 
 cannot recover, and will not be entitled to his proportion, or any 
 part of the property, from the other owner ; but no authority has 
 been cited to show that any such principle has ever been applied, 
 nor indeed could it be applied, to the case of an accidental mixing 
 of the goods of two owners ; and there is no authority nor sound 
 reason for saying that the goods of several persons which are 
 accidentally mixed together, thereby absolutely cease to be the 
 property of their several owners, and become bona vacantia. The 
 goods being before they are mixed the separate property of the 
 several owners, unless, which is absurd, they cease to be property 
 by reason of the accidental mixture, when they would not so cease 
 if the mixture were designed, must continue to be the property of 
 the original owners ; and, as there would be no means of distin- 
 guishing the goods of each, the several owners seem necessarily to 
 become jointly interested, as tenants in common, in the bulk. 
 
 (6) 3 B. & S. 574. {e) 4 T. & 0. 361, 
 
TO WHOM SHOULD DELIVERY BE MADE. 
 
 567 
 
 This is the rule of the Eoman Law as stated in Mackeldey's Sect. 50S. 
 
 Modem Civil Law, under the title commixtio et confusio, in the 
 
 special part, Boot I. s. 270. In the English edition of 1845, at 
 
 p. 285,. the passage is as follows: — 'The mixing together of 
 
 things solid or dry {commixtio) or of things liquid {confusio) which 
 
 belong to diEEerent owners, has no effect upon their rights in the 
 
 things, if the latter can he separated. If, on the other hand, such 
 
 separation is not practicable, then the former proprietors of the 
 
 things now connected will be joint owners of the whole, whenever 
 
 the mixture has been made with the consent of both parties, or by 
 
 accident.' 
 
 " We need not discuss the distinction sometimes made between 
 commixtio and confusio, apparently upon the ground that it is 
 possible to separate the individual solid particles, but not the 
 liquid ; because, in cases like the present, it is impracticable, and 
 for all business purposes therefore impossible, to distinguish the 
 particles in respect of ownership. The passages in Mr. Justice 
 Story's work on Bailments, s. 40, and ia the 9th volume of 
 Pothier, ' De la Confusion,' as well as the French and various 
 other codes, are to the same effect. We are thus, by authorities 
 in our own law, by the reason of the thing, and by the concur- 
 rence of foreign writers, justified in adopting the conclusion that, 
 by our own law, the property in the cotton of which the marks 
 were obliterated did not cease to belong to the respective owners ; 
 and that, by the mixture of the bales, and their becoming undis- 
 tinguishable by reason of the action of the sea, and without the 
 fault of the respective owners, these parties become tenants in 
 common of the cotton, in proportion^ to their respective interests. 
 This result would foUow only in those cases where, after the 
 adoption of all reasonable means and exertions to identify or 
 separate the goods, it was found impracticable to do so. We 
 cannot assume that the whole of the plaintiff's forty-one bales 
 were amongst those that were destroyed, any more than we can 
 assume that they all formed part of the 1,645 which were brought 
 home; and we see no means of determining the extent of the 
 interest of the several owners, except by adopting a principle of 
 proportion, and which would, we think, be equally applicable in 
 determining the plaintiff's portion of the 231 bales that were 
 totally lost as of the 1,645 which arrived in this country, though 
 without marks. 
 
568 THE DELIVERY. 
 
 Sect. 505. " The principle of proportion is that which was applied by Lord 
 EUenborough, where one gross sum was paid to a broker in respect 
 of two debts due to different principals without distinguishing how 
 much was paid in respect of each: Favens v. Bennett {d). It is 
 also the principle adopted in cases of general average, and of 
 jettison, where it is not known whose goods are sacrificed, as stated 
 by Oassaregis and Emerigon in the passages that were quoted in 
 the argument ; and we think it is the proper principle to apply to 
 this case." 
 
 (rf) U East, at p. 41. 
 
CHAPTER XV. 
 
 STOPPAGE IN TRANSITU. 
 
 569 
 
 SECT. 
 
 Nature of the right ,.. 506 
 
 Effect of the exercise of it 507 
 
 Buyer must be insolvent 508 
 
 Meaning of transit 509 
 
 Delivery order to buyer does not 
 
 end transit 510 
 
 Delivery to carrier — General ship — 
 
 Chartered ship 511 
 
 Buyer's own ship , 612 
 
 Carrier may become agent for buyer 
 
 — Notwithstanding his own lien . 513 
 Cases as to constructive possession . 514 
 Part delivery generally insufficient. 615 
 Delivery by one carrier to another 
 
 to forward 516 
 
 Delivery by carrier to a wharfinger 
 
 or warehouseman 517 
 
 Buyer must intend to take delivery 518 
 And carrier must mean to part with 
 possession to buyer — Cannot pro- 
 long transit by improper deten- 
 tion 519 
 
 Delivery to buyer's agent to forward 
 — Agent definitely instructed and 
 destination notified to seller — 
 
 Transit continues , , 520 
 
 "Where no notification of further 
 
 destination to seller, transit ends. 521 
 Where notice of a further destina- 
 tion given to seller, but agent re- 
 quires further instructions 622 
 
 Bight of purchaser to intercept 
 goods during transit, and so end it 523 
 
 Sale of Goods Act, 1893, s. 45 523a 
 
 The right is exercised by vendor, or 
 
 sub- vendor 624 
 
 Agents who have bought with their 
 own money have the right 625 
 
 SECT. 
 
 Lien of shipper does not give the 
 right 526 
 
 Effect of part payment or of giving 
 acceptances by buyer 527 
 
 Consignment to factors 528 
 
 Notice to stop must come from 
 vendor or authorized agent , , . . 629 
 
 Must be given to those who have 
 custody of the goods — Opinions 
 in Kemp v. Falk 630 
 
 Sale of Goods Act, 1893, s. 46 . . . .530a 
 
 Duty to deliver to vendor — May 
 vendor follow goods in hands of 
 buyer's assignee ? 531 
 
 Right to stop defeated by transfer 
 of bUl of lading for value-^Lick- 
 barrow v. Mason 532 
 
 Grounds of the rule 633 
 
 Assignment of goods without 
 transfer of bill of lading — Assig- 
 nor must have bill of lading — 
 Jenkyns v. TTsborne — Opinions in 
 Kemp V. Palk as to the rights of 
 sub-purchasers 634 
 
 Other documents of title — Sale of 
 Goods Act, 1893, s. 47 635 
 
 The document must have been 
 effectually transferred 636 
 
 Transfer of bill of lading without 
 assignment of goods insufficient.. 537 
 
 Transfer must be for value — Past 
 debt enough — In good faith — 
 Notice of insolvency 538 
 
 Is an assignment after notice to 
 stop given effectual ? 639 
 
 Eight of vendor subject to pledge 
 or mortgage 640 
 
 Eight of vendor where sub-pur- 
 chaser has not paid 641 
 
 506. The right of an unpaid vendor to stop the goods while they Nature of the 
 are in course of transit, in the event of the purchaser becoming "^ 
 
570 THE DELIVERY, 
 
 Sect. 506. insolvent, gives rise to so many questions in connection witli the 
 delivery of goods, that it will he well to discuss it in some detail. 
 
 A vendor who has shipped goods, and parted with the hiU of 
 lading, has still a right, if he remains unpaid, to regain possession 
 of the goods while they are in transit, in the event of the buyer 
 becoming insolvent. This is called the right of stoppage in transitu, 
 and it is exercised by giving notice of the claim to those who have 
 custody of the goods, before the transit comes to an end. 
 
 The right is defined as follows by sect. 44 of the Sale of Goods 
 Act, 1893 : " Subject to the provisions of this Act, when the buyer 
 of goods becomes insolvent, the unpaid seller who has parted 
 with the possession of the goods has the right of stopping 
 them in transitu, that is to say, he may resume possession of the 
 goods as long as they are in course of transit, and may retain 
 them until payment or tender of the price " («). 
 
 This right may be regarded as an extension of the Tmpaid 
 vendor's lien on the goods for the price of them. But it differs 
 materially from a lien at law, for it is exercised after the possession 
 and the rights of possession have been parted with ; and it only 
 comes into existence upon the happening of a new event — the 
 buyer's insolvency. It has been called an equitable lien, adopted 
 by the law "for the purposes of substantial justice " (b). 
 Not required An Unpaid vendor of goods has a lien upon them for the price ; 
 vendor's lien he may retain them in his possession until they are paid for, though 
 re ame . ^-^^^ j^^^^^ become the property of the purchaser. If he parts with 
 the goods he loses this lien, unless he does so in such a way as to 
 reserve to himself the right of possession. That he may do, it 
 would seem, by shipping the goods under a bill of lading which 
 mates them deliverable to his own order, and by keeping control 
 of the bill of lading (c) ; and if this has been done, no need of the 
 right to stop in transit arises. 
 
 And, generally, no question as to the right to stop goods in 
 transit arises unless the property in the goods has passed from the 
 vendor. This should be borne in mind in considering the cases ; 
 
 (a) See also s. 39 of the Eame Act. Gibson v. Carruthers, 8 M. & W. 320, 
 
 (i) Per Lord Kenyon in Hodgson v. and per Boweu, L. J., in Kendall v. 
 
 Loy, 7 T. K. p. 446. Wiseman v. m-_.j,^„ ,, O R n t, ■?«« 
 
 Vandeputt, 2 Vem. 203 (1690), seems to ^'''^^^^^' " «• ^- ^- P" 368. 
 
 be the earliest reported decision in W Shepherd v. Harrison, L. E., 4 
 
 favour of the right. See the Hstory of Q- B. 196, p. 206 ; L. E., 6 H. L. 116, 
 
 the subject stated by Lord Abinger in p. 126; Blackburn, Sale (2nd), p. 321. 
 
STOPPAGE IN TRANSITU. 571 
 
 for the two questions of right of property and right to stop in Sect. 506. 
 transit often get mixed up together. 
 
 507. The vendor does not, by stopping the goods, regain the EfEeotofthe 
 property in them, nor does he thereby cancel the sale. In general, ^^^'^'^'^^ 
 he merely recovers the right to hold possession until the price is 
 paid ; and, in the case of perishable goods, to resell after notice to 
 the buyer and failure by him within a reasonable time to pay or 
 tender the price {d). 
 
 An.d the right is subject to the possessory Kens of the carrier, 
 warehouseman, or others, which have been acqiiired for charges 
 in respect of the goods. But it is not subject to any general lien 
 which the earner might have had, as against the consignee, in 
 respect of freights due on other goods (e). Nor is it subject to 
 a general lien of the consignee's factor, into whose hands the goods 
 have come as pledgee (/). And in Smith v. Gross {g) it was held 
 that the vendor's right was paramount to that of a creditor of the 
 vendor who had attached the goods, while in transit, by process 
 out of the Mayor's Court of London. 
 
 But the vendor's right is confined to the goods themselves in the 
 condition in which they are ; he has no claim to insurance monies 
 received in respect of them (A), 
 
 508. The right to stop only comes into existence when the buyer Buyer must 
 has become insolvent. The exact meaning of that has not been ^® "^sol'^e'it- 
 defined; but it is not necessary that he should have been found 
 insolvent («). The question seems to be, has he ceased to be able 
 to pay his debts as they become due ? 
 
 In Schotsmans v. Lancashire and Yorkshire Eailway Co. (/), the 
 buyer dishonoured his acceptance in the hands of the vendor on 
 the day the ship arrived; the vendor at once gave notice to the 
 master of the ship to stop the goods. Three days later the buyer 
 dishonoured another acceptance, and five days later he was declared 
 bankrupt. The notice to stop was held to be good. " It is suffi- 
 cient for the purpose of stoppage in transitu to show that the 
 
 (fC) Sale of Goods Act, 1893, s. 48. {h) Bemdtson v. Strang, L. E., 3 Ch. 
 
 [e) A custom among carriers to the 688. 
 
 contrary would be invalid : Oppenheim (i) Per Dr. Lushington, The Tigress, 
 V. KusseU, 3 B. & P. 42. 
 
 32 L. J., Ad. p. 101. 
 ij) L. R., 1 Eq. 
 (g) 1 Camp. 282. another point, L. R., 2 Ch. 332. 
 
 (/) Spalding II. Ruding, 12 L. J., Ch. 
 503. iS) L. R., 1 Ec[. 349; reversed on 
 
572 THE DELIVERY. 
 
 Sect. 508. vendor was in such circumstances as not to he able to meet Ms 
 engagements " (^). 
 
 But a mere failure on the part of the vendee to remit bankers' 
 drafts in payment of the price of the goods, as agreed, does not 
 entitle the vendor to stop them (l). 
 
 Meaniag of 509. In the transit, or transitus, of the goods, two ideas are in- 
 
 transit. . . „ 1 . 1 , 
 
 volved. First, the goods are in transit from the time they leave 
 
 the vendor's hands until they get into the possession of the buyer. 
 
 But, secondly, at the time of the sale, or before the goods have left 
 
 the vendor, it may have been agreed, or the buyer may have 
 
 notified, that the goods were to go to some particular destiaation 
 
 before being taken possession of by the buyer ; and if so, they will 
 
 be in transit while on their way to that intended destiuation. 
 
 Thus the transit of the goods continues, on the one hand, while 
 they are on their way to the intended destination, although they 
 may on their way have come into the hands of the buyer, or his 
 agents, for the purpose of sending them forward ; and it continues, 
 on the other hand, after the goods have reached the intended des- 
 tination, until they have come into the possession of the buyer or 
 his servants, or of agents who hold them for him, with his autho- 
 rity, and for the purpose of dealing with them in accordance with 
 his sole instructions. If the buyer has become bankrupt, his 
 representative stands in his place for this purpose (»*). 
 
 The cases upon the subject are numerous, but few or none of 
 them deal with the whole question. The general result seems 
 to be what is stated above, but a number of minor points are 
 involved. 
 
 to^b^er dotT ^^°' ^^® ™^^® ^^°* *^^* *^® vendor has placed the goods at the 
 not end buyer's disposal, while they still were in the vendor's possession, 
 
 will not destroy his right to stop them during a transit which 
 afterwards takes place, before they actually get to the buyer. 
 
 In Jackson v. Nichol («), Maltby & Co., of London, had bought 
 some lead from the plaintiff at Newcastle, through their agent 
 there, one CrawhaU. Usually Crawhall held lead so purchased for 
 them in his own possession until he got their shipping instructions, 
 but on this occasion he allowed the lead to lie at the vendor's 
 
 [Tc) L. R., 1 Eq., at p. 360. (m) ElKa i>. Hunt, 3 T. R. 464. 
 
 (t) "Wilmshurst v. Bowker, 7 M. & a. («) 6 Bing. N. C. 608. Cf . Cooper v. 
 
 882. BUI, 34 L. J., Ex. 161. 
 
STOPPAGE IN TRANSITU. 573 
 
 works. On January 5th, 1837, the vendor gave Orawhall an order Sect. 510. 
 
 addressed to one of the men at the works instructing him to deliver 
 
 the lead to Crawhall's order. On January 7th, Orawhall wrote oh 
 
 this order, " Deliver the above to the bearer to go on board The 
 
 Esk," and then handed it to wharfingers, who were also the owners 
 
 of The Esk, a trading vessel between Newcastle and London. The 
 
 lead was taken on board, but before it had been delivered in 
 
 London Maltby & Oo. failed, and the vendor sought to stop it. 
 
 It was held that there had not been such a delivery to OrawhaE as 
 
 to end the transit. 
 
 " "We think the order given by the plaintiff to deliver the lead 
 to the order of Orawhall, and the subsequent order by Orawhall to 
 deliver it to the bearer (who was the keelman) ' to go on board The 
 Esk,' did not amount to any taking possession by Orawhall, but 
 merely formed a hnk in the chain of the machinery by which the 
 lead was put in motion, and in a course of transmission from the 
 seller's premises in Newcastle to the buyers in London." 
 
 511. Delivery of the goods by the vendor to carriers, for the Delivery to 
 purpose of their being carried, will not end the transit, even 
 though the carriers be named or employed by the buyer. " The 
 contract with a carrier to carry goods does not make the carrier 
 the agent or servant of the person who contracts with him"(o). 
 Indeed, the need of employing a carrier imports that the goods are 
 to go to some other destination before possession is taken of them 
 by the buyer. " When the vendor knows that he is delivering the 
 goods to someone as carrier, who is receiving them in that cha- 
 racter, he delivers them with the implied right, which has been 
 established by the law, of stopping them so long as they remain in 
 the possession of the carrier as carrier " [p). 
 
 Thus delivery of the goods on board a general ship, to be carried G-eueral ship 
 to her destination, does not end their transit {q) ', nor does a 
 delivery on board a chartered ship, whether chartered by vendor Chartered" ■ 
 or vendee, even though the vendee has chartered and sent her for ^ ^' 
 the special purpose of receiving the goods (r). 
 
 (o) Per Cotton, L. J., Ex parte Eoae- [q) Ex parte Golding, Davis & Co.,"' 
 
 vear China Clay Co., 11 Ch. D. 560, at Ee Knight, 13 Ch. D. 628 ; Bethell v. 
 
 p. 571. Clark, 19 Q. B. D. 553 ; 20 Q. B. D. 
 
 (p) Per James, L. J., in Ei parte 6.16. 
 Eosevear China Clay Co., 11 Ch. D. 560, [r] Ex parte Eosevear China Clay Co. , 
 
 at p. 668. Of. Oowasjee v. Thompson, 11 Oh. D. 560 ; Eraser v. Witt, L. E., 
 
 5 Moo. P. 0. 165. 7 Eq. 64 ; Berudtsou v. Strang, L. E., 
 
574 THE DELIVERY. 
 
 • Sect. 511. And it makes no difference wliether the destination of the ship 
 was known to the vendor or not, for she was clearly intended to 
 have some other destination than that of the port of loading. In 
 Ex parte Eosevear China Clay Co. (s), the vendors agreed to sell 
 100 tons of china clay, to he delivered by them free on board at 
 Par or Fowey. The buyer instructed them to deliver to a vessel 
 at Fowey, which he had engaged verbally ; and this was done by 
 the vendors, without any communication to them of the vessel's 
 destination. It was held that the clay was stiU in transit. 
 
 In Bethell v. Clark if), the purchasers instructed the vendors to 
 consign the goods " to The Darling Downs, to Melbourne, loading 
 in the East India Docks here," and they were accordingly sent to 
 the docks via the London and North Western Railway Co. The 
 railway company put them on board the vessel, and delivered the 
 mate's receipt to the purchasers. It was held that the goods were 
 stiU in transit. 
 
 In Lyons v. HofEnung (u), the buyer had instructed the sellers 
 to send the goods to Howard Smith & Co.'s wharf in Sydney, for 
 shipment in The Gambia, on their way to Kimberley. They were 
 sent, and receipts obtained which were handed to the buyer, who 
 had arranged for the shipment, and he obtained a bill of lading 
 from Howard Smith & Co. in exchange for the receipts. It was 
 held that the goods were still in transit on the voyage. For it 
 was intended by the purchaser at the time of the purchase that the 
 goods should " pass direct from the possession of the vendors into 
 the possession of a carrier to be carried " to the destination then 
 intimated; and there was no ground for saying that Howard 
 Smith & Co. ever received or held the goods except as carriers. 
 The fact that the property may have passed to the buyer upon 
 delivery to the carrier was immaterial. 
 
 Buyer's Qwn 512. But if the ship be chartered by the buyer upon such terms 
 as make over the complete control of her to him, the master and 
 crew becoming his servants, an Tmconditional delivery on board 
 to the master is a delivery to the buyer, and the transit is at an 
 end. 
 
 In Fowler v. Kymer " the bankrupts. Hunter & Co., were in 
 
 i Eq. 481 ; 3 Ct. 588; Bohtliugk v. («) 11 Ch. D. 560. 
 
 Inglis, 3 East, 381. But see Cowden- 
 
 beatli Coal Co. v. Clydesdale Bank, 22 (') ^^ ^- 2- ^- 553 ; 20 Q. B. D. 615. 
 
 Sess. Oa. (4tli) 682. («) \5 x. C. 391. 
 
STOPPAGE IN TEANSITU, 575 
 
 possession of a ship let to them for a term of three years, at Sect. 512. 
 
 521. 10s. per month, they finding stock and provisions for the ship, 
 
 and paying the master; during which time they were to have 
 
 the entire disposition of the ship, and the complete control over 
 
 her. The ship had been one voyage to Alexandria, and had the 
 
 goods put on hoard her to carry them on another voyage to the 
 
 place ; not for the purpose of conveying them from the plaintiffs 
 
 to the bankrupts, but that they might be sent Jy the bankrupts 
 
 upon a mercantile adventure, for which they had bought them. 
 
 There the delivery was complete " («). 
 
 The same was held to be the case in Schotsmans i). Lancashire 
 and Yorkshire Railway Co. (y), where the ship belonged to the 
 buyer of the goods ; although she had not been sent specially for 
 them, and was trading on the voyage as a general ship. The 
 vendor, at Eouen, had shipped flour upon the buyer's instructions 
 in The Londos, one of a regular line of steamers running between 
 Eouen and Groole, and advertised as belonging to Watson, OunlifEe 
 & Co. The Londos, in fact, belonged to the buyer, whose name 
 was Cunliffe, though he had bought the goods under the name 
 of James Fort & Co. The bill of lading for the flour made it 
 deliverable to James Fort & Co., or assigns. The seller sought to 
 stop the flour in transit, on Cunliffe's insolvency, but it was held 
 that the delivery of the goods to the master was a complete 
 delivery to Cunliffe. For the master was his servant; and the 
 delivery had been without condition or restriction. 
 
 It was, however, considered in that case that the seller through 
 his agents knew that The Londos belonged to the buyer, and had 
 that not been so, the decision might have been different. " It 
 would seem to be scarcely just to a person who has delivered 
 goods to be carried to a consignee under the belief that he could 
 exercise the ordinary right of an unpaid vendor over them, to 
 deprive him of that right because he had ignorantly placed the 
 goods on board the consignee's own vessel, and therefore must be 
 taken to have made an absolute delivery of them " (a). 
 
 There does not seem to have been any agreement or notice, in 
 that case, from which the seller could properly infer that posses- 
 sion of the goods would only be taken by the buyer, as such, at 
 
 IngsfrEarrp'i^r^"'''"^'^- (^) PerLordCheln.sford,L.K.,2Ch. 
 
 (y) L. K., 2 Ch. 332. »* P- 335- 
 
576 THE DELIVERY. 
 
 Sect. 512. Goole. If this were not so the case would seem to conflict with 
 
 others in which it has been decided that a delivery to the buyer's 
 
 agent, for the purpose of his forwarding them, does not end their 
 
 transit ; unless, indeed, there is a distinction in this respect between 
 
 a servant and an agent (a). 
 
 Carrier may gjg^ ^ Carrier may, however, alter his relation to the buyer 
 
 for buyer. before actual delivery of the goods to him. He may cease to be a 
 
 carrier, and become instead the buyer's agent to hold the goods 
 
 for him. His possession then becomes, constructively, that of the 
 
 buyer. "A case of constructive possession is where the carrier 
 
 enters expressly or by implication into a new agreement, distinct 
 
 from the original contract for carriage, to hold the goods for the 
 
 consignee as his agent, not for the purpose of expediting them to 
 
 the place of original destination, pursuant to that contract, but in 
 
 a new character, for the purpose of custody on his account, and 
 
 subject to some new or further order to be given to him " (b). 
 
 In Foster ®. Frampton (c), the purchaser of the goods sampled 
 
 them at the carrier's warehouse, and desired him to keep them 
 
 there until he received further directions. It was held that from 
 
 that time the carrier became a warehouseman for the buyer, and 
 
 that the transit was at an end. 
 
 In Jones v. Jones (d), eighty quarters of wheat were shipped 
 
 under a bill of lading in The Orion, bound for Barmouth and 
 
 Tremadoc, to be delivered " at the aforesaid port of Earmouth and 
 
 Tremadoc " to the vendee or assigns, on paying freight. By an 
 
 undated indorsement on the bill of lading, the vendee directed 
 
 delivery of the wheat to be made to the plaintiff, " being one of my 
 
 assignees, to be disposed of as he may think proper." The vendee 
 
 by deed dated January 28th, 1840, assigned all his estate and 
 
 effects to the plaintiff and another, in trust for themselves and his 
 
 other creditors. On the 4th of February, 1840, The Orion arrived 
 
 at Barmouth, and the plaintiff went on board ; produced the bill of 
 
 lading, indorsed as above ; took samples of the wheat, with which 
 
 he sold seventy quarters of it ; and had these seventy quarters, on 
 
 which he paid the freight, landed and delivered to the purchaser. 
 
 (a) See infra, s. 520. J). 356 ; Pooley r. Or. E. Hail. Co., 34 
 (J) Per Parke, B., in Whitehead v. L. T. 637 ; Ex parte Catling, Ee Chad- 
 Anderson, 9 M. AW. 518, at p. 535. As -wick, 29 L. T. 431; Ex parte Gouda, 
 to a railway company's notice that the 20 W. E. 981. 
 goods are held by the company as ware- (o) 6 B. & C. 107. 
 housemen: Kendal v. Marshall, 11 Q. B, - {d) 8 M. & W. 431. 
 
STOPPAGE IN TEANSITU. ^'l^'^ 
 
 He directed tlie master to take the remaining ten quarters forward Sect. S13. 
 to Portmadoc, tlie nearest port to Tremadoo. These acts were 
 held to show that the plaintiff took possession and dominion of the 
 whole of the wheat at Barmouth, and that the transit of the whole 
 was ended. The ten quarters were held by the master for him. 
 
 The carrier may hecome the buyer's agent, so as to end the 
 transit, without any express agreement or instructions, by implica- 
 tion from the course of business between him and the consignee ; 
 as where the carrier has habitually stored the consignee's goods in 
 his own warehouse on their arrival at a certain place and held them 
 there for the consignee, and subject to his orders (e). 
 
 And it seems that this may still be the case, although the carrier, Notwith- 
 as such, has a lien upon the goods (/). " I think it is possible to carrier's Hen. 
 make an arrangement by which, though the freight is not paid, the 
 shipowner changes himself into a warehouseman instead of being a 
 carrier or a shipowner ; he alters his responsibilities altogether ; 
 and yet by arrangement or agreement retains his lien over the goods 
 until the freight is paid. I think such a contract might be made. 
 But when one is asked to say that such a contract was made, the 
 non-payment of the freight is a very important element leading 
 one to say that no such contract was made at all " {g). 
 
 514. On the other hand, in Whitehead v. Anderson (h), an agent Cases as to 
 for the buyer had got on board the ship upon her arrival, though 
 before she was completely anchored, and had told the captain that 
 he had the bill of lading, and was come to take possession of the 
 cargo. He saw and touched part of the cargo. The captain said 
 he would deliver to him when he was satisfied about the freight ; 
 and the agent paid a part of the freight, but not the whole. It 
 was held that the buyer had not obtained constructive possession, 
 so as to defeat a subsequent notice from the unpaid vendor stopping 
 the cargo. 
 
 " It appears to us to be very doubtful whether an act of marking 
 or taking samples, or the like, without any removal from the pos- 
 session of the carrier, so as though done with the intent to take 
 possession, would amount to a constructive possession unless accom- 
 
 («) Wentworth v. Outhwaite, 10 M. & {g) Per Lord Blaokburu in Kemp v. 
 
 W. 436 ; Allan v. Gripper, 2 0. & J. 218 ; palk, 7 A. 0. 573, at p. 684. 
 Eowe V. Piokford, 8 Taun. 83; infra, 
 
 B. 617. (A) 9 M. & W. 518. See also Hoist v. 
 
 (/) Allan V. Gripper, mpm. Pownall, I Esp. 240. 
 
 C. — c. p p 
 
578 THE DELIVEET. 
 
 Sect. 514. panied with such, circumstances as to denote that the carrier was 
 intended to keep, and assented to keep, the goods in the nature of 
 an agent for custody" («). 
 
 Again, in Coventry v. Grladstone (k), the plaintiffs, who held bills 
 of lading for a quantity of linseed shipped in The Granges, had on 
 her arrival obtained an "overside" order from the brokers of the 
 ship, addressed to the chief officer on board, for delivery of the lin- 
 seed to them. This order was presented to the chief officer by the 
 plaintiffs' lighterman. The ship had not then broken bulk, but the 
 officer promised that when the goods on top of the seed had been 
 got out, and the seed was clear, it should be delivered to the 
 lighterman. In the meantime, notice was given to stop the goods. 
 Wood, V.-C, held that this was not too late. The plaintiffs had 
 not obtained constructive possession. " At the time when the 
 notice was served the original duty of the captain was not termi- 
 nated, nor was it converted into a new duty to retain the goods as 
 agent for the consignee " (/). 
 
 '^enerau'^^^'' 515- It was Said by some of the judges in Crawshay v. Eades, 
 insufficient, that a Complete delivery of part of an entire cargo puts an end to 
 the transit of the whole (m). But this view cannot be supported 
 now ; not, at any rate, where the cargo consists of things which 
 are in their nature separate from one another («). The portion 
 undelivered remains in the hands of the carrier as such ; his duties 
 with regard to it are not at an end. " The case might possibly be 
 different if the whole of the cargo had been one entire machine, 
 because if a person was allowed to take possession of one piece of 
 a machine that might amount to possession of the whole " (o). 
 
 The question seems to be one of intention in each case; and 
 ordinarily it may be presumed that, in delivering a part, the only 
 intention was to deliver a part. But if both parties intend the 
 delivery of part to be a delivery of the whole, so that thence- 
 forward the carrier is to hold the remainder as a mere agent or 
 warehouseman for the consignee, then it is in effect a delivery of 
 the whole. " It is not such a delivery unless it is so intended, 
 
 (i) Per Parke, B., 9 M. & W., at («) Ex parte Cooper, Ee McLaren, 11 
 
 WL.E.,6Eq.,atp.51. 446 ; 7 A. C. 673. 
 
 (m) 1 B. & C. 181 ; and see Slubey v. (») Per Cotton, L. J., 11 Ch. D., at 
 
 Heyward, 2 H. Bl. 604. p. 75. 
 
STOPPAGE IN TRANSITU. 579 
 
 and I rather think that the onus is upon those who say it was so Sect. 515. 
 intended" (p). 
 
 516. If the original carrier delivers the goods to some other Delivery by 
 person that they may he forwarded on their journey, the transit auotiTer^to 
 stiU continues. Thus, in Mills t\ Ball (g), goods were sent -hy forward, 
 water to Exeter, consigned to Gard (the purchaser), who lived 
 twenty-five miles from Exeter, and who had ordered the goods to 
 
 be sent to him. The carrier delivered them at Exeter to a whar- 
 finger, to be forwarded to Gard. It was held that they were in 
 transit in the wharfinger's hands (r). He had received them on 
 Gard's account, and had paid the freight and charges on them for 
 him ; but he was considered to be a middleman between the buyer 
 and the seller, "not having been particularly employed by the 
 vendee " (s). 
 
 517. If the carrier delivers the goods at their intended desti- Delivery by 
 nation to some person other than the buyer, as to a wharfinger or -wharfinger or 
 warehouseman, the transit stiU continues, unless he takes as agent ^arT*^""^^" 
 for the buyer. If the wharfinger receives them for the consignor, 
 
 or for the carrier, the transit continues until the buyer has obtained 
 delivery, either actually, or constructively by getting an effective 
 delivery order on the wharfinger, and depositing it with him (t). 
 
 Thus, where wine had been landed and was kept in the hands of 
 the Customs under the excise law, owing to the consignee having 
 failed to pay the duties on it, it was still in transit (u). 
 
 In Ex parte Barrow, In re Worsdell («), goods had been sent 
 by vendors from London to Falmouth by one of the British and 
 Irish Steam Packet Company's steamers, consigned to Worsdell, 
 the buyer. On arrival they were landed and taken to the wharf 
 of Came & Co., who were wharfingers and agents for the company 
 at Ealmouth. Meantime Worsdell had absconded, and the vendors 
 gave notice to Carne & Co. to stop delivery of the goods. By 
 their contract with the company Carne & Co. took on themselves 
 
 (p) Per Lord Blaotbum in Kemp v. (<) Harman i". Anderson, 2 Camp. 243 ; 
 
 Pali, 7 A. C. 673, p. 586. Laokington v. Atherton, 13 L. J., C. P. 
 
 /.\ 2 B & p 457 1*0. See Dixon v. Yates, 5 B. & Ad. 
 
 313 ; Imperial Bank v. London and 
 
 (r) See also Hodgson v. Loy, 7 T. E. gt. Katharine's Dock Co., 5 Ch. D. 195. 
 
 440 ; Smith ». Goss, 1 Camp. 282 ; BetheU („) ^orthey v. Pield, 2 Esp. 613 ; Nix 
 
 V. Clark, 19 Q. B. D. 653 ; 20 Q. B. D. „. oUve, Abbott (Sth), 393 ; (13th), 
 
 616. 7„_ 
 
 (s) PerLordAIvanley, 7T.R.,p.461. {x) 6 Ch. D. 783. 
 
 p p2 
 
580 THE DELIVERY. 
 
 Sect. 517. the duty of communicating witli consignees and delivering goods 
 to them. The goods were placed in their warehouse and they lay 
 there suhjecfc to the orders of the consignees, on payment of the 
 freight and warehouse rent (if any). It was held that the transit 
 was not at an end. There had been no communication with 
 WorsdeU, and Carne & Go. could not constitute themselves his 
 agents. While, on the other hand, they were acting as agents for 
 the Steam Packet Company to collect the freight. 
 
 The question in such cases seems to be, Are the goods held on 
 the express or implied instructions of the buyer, and to his sole 
 order? As we have seen above («/), the carrier may, according to 
 the usual course of business, hold the goods, at the destination, as 
 the buyer's agent; and thus by implication the transit may be 
 terminated. So it may be shown from the usual course of business 
 that the wharfinger, &c. to whom the goods are delivered takes, or 
 holds them, as the agent of the buyer. 
 
 Thus, in Dodson v. Wentworth (2), bales of flax were, by the 
 bill of lading, to be delivered at the port of Boroughbridge, for 
 Weatherald, Michley Mill, near Eipon, or his assigns; and the 
 bales were addressed to Michley Mill. On arrival at Borough- 
 bridge they were warehoused by the boat owners, in the warehouse 
 of the Canal Navigation Company ; and it appeared that this was 
 the usual course with Weatherald's goods when his carts were not 
 ready to receive them. The Navigation Company held goods so 
 received by them to the orders and at the risk of Weatherald, and 
 without charge. It was held that the transit of the flax came to 
 an end on delivery to the Navigation Company. 
 
 So, where the delivery was to the buyer's packers, by whom the 
 goods were held subject to his control and directions, the transit 
 was held to have ended {a). 
 
 In Ex parte Gibbes (S), cotton was shipped by vendors from 
 Charleston to Liverpool, via New York, on a through bill of lading. 
 The cotton had been sold to E. Whitworth & Co., Spinners, who 
 carried on business at Boy Mill, Luddenden Foot, near Halifax ; 
 and the vendor's invoice described it as shipped "to Liverpool, 
 consigned to order for account and risk of E. Whitworth & Co., 
 
 [y) Supra, s. 513. (a) Leeda v. Wrigtt, 3 B. & P. 320 ; 
 
 Soott V. Petit, 3 B. & P. 469. But of,, 
 {z) 12 L. J., C. P. 59. And see Ousack Hunt v. Ward, cited 3 T. E. 467. 
 V. EoWnBon, 30 L. J., Q. B. 261. (J) 1 Ch. D. 101, 
 
STOPPAGE IN TRANSITU. 
 
 581 
 
 Luddenden Foot." The bill of lading and a draft upon WMt- Sect. 517. 
 worth & Co. for the price were sent to the vendor's agents in 
 Liverpool, and upon the draft being accepted by Whitworth & Co. 
 the agents sent them the bill of lading. That was the ordinary 
 course of trading : and Whitworth & Co. were in the habit of 
 indorsing and sending bills of lading so received to one Windle, 
 the Manager of the Lancashire and Yorkshire Eailway Company, 
 at the North Docks Station, Liverpool. The railway company 
 then paid the freight for Whitworth & Co., took possession of the 
 cotton, and carried it on their railway to Luddenden Foot. That 
 course was followed in the present case. But before Whitworth 
 & Co. had obtained actual possession of the cotton they filed a 
 liquidation petition, and the vendors sought to stop the cotton in 
 transit. Bacon, C. J., held that this could not be done, on the 
 ground that the destination of the goods was Liverpool, and that 
 Windle was the agent for Whitworth & Co. to pay the sea charges, 
 and to receive the goods there. " The transitus which took place 
 after that was only prescribed by the purchaser ; the vendor had 
 nothing to do with it." 
 
 518. But the delivery to persons who usually act as agents for Buyer muBt 
 
 . intend to 
 
 the buyer wiU. not end the transit unless the buyer iatended them take delivery, 
 to take delivery for him. Even though he expressly instructed 
 them to take the goods and warehouse them, if his intention was 
 not to take to the goods himself but to assist the shipowner or 
 protect the vendor, the transit wiU still continue (c) . 
 
 " If the order was given to land at the wharf with intent to 
 make it the place of deposit for the goods as the bankrupt's own 
 property, at which place he meant to deal with them as his own, to 
 sell to his customers, or to give them from thence a fresh desti- 
 nation, doubtless the transitus was at an end. The wharf became 
 the warehouse of the vendee, and the landing there was a taking 
 possession. * * * * Qq ^}^q other hand, if his intention 
 in landing the goods had been to make the wharfinger an instru- 
 ment of further conveyance to his own warehouse, then the 
 transitus stOl continued ; or if the goods were placed there with 
 the intention of preventing any liability on his part to the captain 
 for demurrage, and that they might remain in medio, or that they 
 might remain for the benefit of the owners, the transitus had not 
 
 (c) James v. Griffin, 2 M. & W. 623 ; Hutchings v. Nunes, 9 L. T., N. S. 125. 
 Of. Heinekey v. Eaile, 28 L. J., Q. B. 79. 
 
582 THE DELIVERY, 
 
 Sect. 518. ended; they had not arrived at the end of their journey; they 
 were not actually delivered to the vendee, or one who was an 
 agent of his, for the purpose of keeping possession on his 
 account" (d). 
 
 So, also, where the buyer refused to take delivery heoause he 
 ohjeoted to the quality of the goods, while, on the other hand, the 
 vendor refused to take them back, they were still in transit in the 
 hands of the carrier (e). ,In that case the goods were lying at a 
 railway station, consigned to the buyer by the vendor, and the 
 buyer's servant had, without his knowledge, taken part of the 
 goods away from the station. But these had been at once 
 returned by the buyer, and he had on the same day consigned the 
 whole of the goods back to the vendor, and taken a receipt for 
 them from the stationmaster. These acts did not end the 
 transit. 
 
 And in James v. Griffin (/), it was held that it was immaterial 
 that the buyer's intention not to take to the goods himself had not 
 been communicated to the wharfinger who took delivery under his 
 directions. 
 
 And carrier 519. Again, in order to end the transit, by a delivery to a 
 part with'^ wharfinger, the carrier must intend when making the delivery to 
 possession to g-^g ^]^g wharfinger possession for the buyer ; and even where the 
 goods are landed on the buyer's own premises, the transit is not at 
 an end if the carrier did not mean to part with possession of them 
 until the freight had been paid(g'). In Edwards «;. Brewer (A), 
 the master of the vessel which brought the goods, having pressed 
 for instructions as to landing the goods, was told by a clerk of the 
 consignee that he was away, but that the goods had better be 
 landed at Griffin's wharf on his account. This was not the usual 
 landing place for the consignee's goods. The master landed the 
 goods at Griffin's wharf, and they were by his direction entered in 
 the wharfinger's book without any consignee's name and with 
 " freight and charges " set opposite to them ; which meant that 
 these were to be paid to the wharfinger before delivery. It was 
 held that the goods were still in transit ; on the grounds that the 
 
 (d) Per Parke, B., in James v. Griffin, (g) Crawshay v. Eades, 1 B. & C. 181. 
 2 M. ScW. 623, at p. 634. And see LoesohmantJ. Williams, 4 Camp. 
 
 (e) Bolton v. Lane. & York EaU. Co., 181. But of. Allan v. Gripper, 2 0. & 
 L. E., 1 C. P. 431. J. 218. 
 
 (/) 2 M. & W. 623. (A) 2 M. & W. 375. 
 
STOPPAGE IN TRANSITU. 
 
 583 
 
 consignee did not intend to receive them at the wharf, and that Sect. 519 . 
 the master did not intend to deliver to him until the freight was 
 paid. 
 The carrier must not, however, refuse improperly to deliver the Cannot pro- 
 
 • n • . . ^ long transit 
 
 goods ; and he cannot, by wrongfully detammg them, prolong the by impoper 
 transit, so as to extend the period within which they may he ^ "^ ^°°' 
 stopped. Where the consignees had tendered the freight at the 
 port of destiuation, and would have got possession hut for an 
 unauthorized claim by other parties, to whom the goods were 
 delivered, it was held that the transit was at an end, so as 
 to defeat a subsequent stoppage authorized by the unpaid 
 vendor (i). 
 
 520. Next, we have to consider cases iu which there has been a Delivery to 
 
 buyer s agent 
 delivery to an agent of the buyer, who receives them for the to forward. 
 
 purpose of forwarding them to a further destiuation. And first, as 
 
 to cases in which the agent receives under definite instructions, and 
 
 the further destination has been definitely notified to the vendor. 
 
 In Ooates v. Eailton (/f), goods had been bought from the Wbere agent 
 
 plaintiffs by the defendants, acting as agents at Manchester for structed and 
 
 certain merchants in London, who also had a house at Lisbon, notified to 
 
 At the time of purchasiusr the defendants informed the plaintiffs ^®^'?? " t'^™^'* 
 
 , continues. 
 
 that the goods were to be sent to Lisbon, as on former occasions. 
 The goods were dehvered to the defendants, who had them calen- 
 dered and made up. They were to have forwarded them to 
 Liverpool, to be shipped to the Lisbon house ; but the priucipals 
 stopped payment, and the goods remained with the defendants. 
 Held, that the fact that the defendants were general agents as 
 well as warehousemen made no difference ; and the goods haviug 
 been delivered to them by the sellers, for the purpose of being 
 forwarded to Lisbon, the transit was not at an end. 
 
 " The principle to be deduced from these cases is that the tran- 
 situs is not at an end until the goods have reached the place named 
 by the buyer to the seller as the place of their destination " (l). 
 
 In Nicholls v. Le Eeuvre (m), Le Oouteur, who carried on 
 business in Gruernsey, bought some bales of goods in London and 
 
 (i) Bird v. Brown, 19 L. J., Ex. 54. {1} Per Bayley, J., 6 B. & C. at 
 
 See, however, Jackson v. NicM, 5 Bing. P- *27. Cf . per Brett, M. E., Ex parte 
 N. C. 608 Miles, Re Isaacs, 15 Q. B. D. 39, at 
 
 p. 43. 
 
 (A) 6 B. & 0. 422. (ot) 2 Bing. N. C. 81. 
 
584 c THE DELIVERY. 
 
 Sect. 520. directed the vendors to forward them to Guernsey, addressed " Le 
 Couteiir, Guernsey, care of Le Feuvre, Southampton." Also he 
 wrote to Le Feuvre asking him to ship the goods to Guernsey, and 
 Le Feuvre received the goods at Southampton for that purpose. 
 It was held that the transit continued while they were in his 
 hands. 
 
 In Eodger v. Comptoir d'Escompte de Paris (w), goods had 
 heen purchased from three Manchester firms hy Lyall and Still, of 
 London, for their £rm at Hong Kong, where they traded as 
 Lyall, Still & Co. It was part of the contract of sale in two out 
 of the three cases, but not in the third, that remittances of proceeds 
 of sale should he made from Hong Kong, to meet acceptances of 
 the buyers for the price of the goods. 
 
 Lyall & Still employed shipping agents in London to secure 
 tonnage in The Min, a vessel then on the berth for Hong Kong, 
 and they contracted with these agents for the carriage from Man- 
 chester to Hong Kong at one through freight. When the tonnage 
 was secured Lyall & Still directed the vendors to forward the 
 goods to the shipping agents for shipment in The Min. This 
 was done, and after they had been shipped the buyers became 
 insolvent. 
 
 It was held in the Privy Council that the transit had not ended. 
 " The document in evidence, as well as the oral testimony in the 
 present case, establish beyond doubt that Hong Kong was the 
 destination agreed upon between the vendors and vendee, and the 
 other parties who intervened for the purpose of having the goods 
 forwarded to their destination had them in charge for that purpose 
 only. Their Lordships, therefore, entertained no doubt that the 
 transitus had not ended before the arrival at Hong Kong " (o). 
 
 And, d fortiori, that would be the case if there were an express 
 stipulation as to the destination in the contract of sale {p). 
 Where no 521. In these cases the destinations notified to the vendors were 
 
 notmcatiou of 
 
 further deati- definite, they knew both the persons and the places to which the 
 seUer, transit goods were to be Sent. Moreover, the agents of the buyers received 
 the goods for definite purposes ; there was no need of fresh instruc- 
 tions as to whom, or to what place, they were to be sent. 
 
 If the ulterior destination has not been notified to the vendor at 
 
 (n) L. R., 2 P. 0. 393. , , ^ 
 
 (0) L. R., 2 P. C, at p. 404. See also ^^ ^^ P^^'° yTB.imji, Re Love, 5 Ch. 
 
 Gliddon v. Peek, Times, July 7th, 1885. ^- 35- 
 
 ends. 
 
STOPPAGE IN TRANSITU. 585 
 
 all, the transit is at an end when the goods have got to the pur- Sect. 521. 
 chaser's agent, even though he has only been employed to receive 
 them for the purpose of forwarding them to a defined destination. 
 
 In Kendal v. Marshall Stevens & Co. (q), the goods were pur- 
 chased at Bolton. The purchaser afterwards arranged with the 
 defendants, who were carriers and forwarding agents at Grarston, 
 that the goods should he sent to them from Bolton, to be shipped 
 as soon as possible by one of their regular line of steamers to Rouen, 
 at a through rate from Bolton to llouen, and he instructed the 
 vendors to "mark bags Dl and upwards and send to Marshall 
 Stevens & Co., Garston." 
 
 The goods were forwarded to Garston by railway, and on arrival 
 the railway company gave the usual notice to Marshall Stevens & 
 Co. of the arrival, stating that they would hold as warehousemen. 
 The goods remained in the company's shed awaiting the sailing of 
 the steamer to Rouen, and before they had been shipped notice 
 was given by the vendors to stop them. 
 
 It was held by the Court of Appeal, overruling Mathew, J"., that 
 the transit had come to an end. The instructions given by the 
 purchaser as to a further transit to Rouen were quite apart from 
 those given to the vendors ; " he did not direct Ward & Co. (the 
 vendors) to deliver the goods to Marshall Stevens & Co. in order 
 that they might be sent to Rouen. If a direction of that kind had 
 been given the transit would have been from Bolton to Rouen ; but 
 the fact is widely different " (r). 
 
 Cotton, L. J., said : " In order to ascertain whether the right still 
 exists it is necessary to look at the persons and the place to whom 
 and at which, as between seller and buyer, the delivery is to be 
 
 made The transit from the seller to the buyer is the only 
 
 one to be considered in determining whether the seller can exercise 
 his right of stoppage. For this purpose it is immaterial that the 
 buyer, when the transit from the seller to him is at an end, starts 
 them on to a fresh destination. This is a fresh transit, not from 
 the seller to the buyer, but by or from the buyer." 
 
 In Merchant Banking Company of London v. Phoenix Bessemer 
 Steel Co. (.s),the vendor's contract was to deliver f. o. b. at Liver- 
 pool or Hull, but it was afterwards arranged between the vendors 
 and purchasers that a quantity of the goods should be sent by rail 
 
 (q) 11 Q, B. D. 356. p. 365. Of. perBowen,L. J., at p. 369. 
 
 (f) Per Brett, L. J., 11 Q. B. D., at (s) 5 Cli. D. 205. 
 
586 THE DELIVERY. 
 
 Sect. 521. to the care of the purchaser's agents at Liverpool, addressed to 
 them at the London & North "Western Eailway there. This was 
 done, and the railway company gave notice to the agents that the 
 goods remained for their order, and were held hy the company as 
 warehousemen. 
 
 Jessel, M. E., held that the transit was at an end, for the rail- 
 way company held the goods as warehousemen for the purchaser's 
 agents. To the argument that the purchasers must be treated as 
 agents fer the vendors, to carry the goods to the shipping port, 
 he said, "There was in fact a new arrangement that the pur- 
 chasers were to convey the goods to the shipping port on their 
 own account; they were to get some payment, hut it was no 
 longer the vendors who were to convey, and the transit to the 
 shipping port was only a possible transit. They did not know 
 whether the goods would be ultimately shipped or not." The 
 question whether the transit ends on a delivery to the purchaser's 
 agent cannot, he added, be solved a priori ; it depends upon the 
 intention of the parties {t). 
 
 Where notice 522. But cases occur of greater difficulty, where the buyer has 
 destination instructed the vendor to send the goods to an agent, but has also 
 buTaffent^*"^' i^fo^'Hied the vendor that his intention in doing so is to have them 
 requires forwarded to a further destination. In such a case, the question 
 
 further 
 
 instructions, whether the transit comes to an end when the agent has received 
 the goods, seems to turn upon the inference to be drawn from the 
 buyer's notice to the vendor of the intended destination ; and also 
 upon the completeness of the buyer's instructions to his agent 
 when the latter received the goods. 
 
 If it has been agreed, expressly or impKedly, between the 
 vendor and purchaser that the goods shall go to a further desti- 
 nation [u) ; or, if the agent has been employed for the purpose 
 only of forwarding the goods, and has had complete instructions 
 with regard to that, so that he receives them only for the definite 
 purpose of sending them on to the destination already ap- 
 pointed (a) ; the transit will in either case not be at an end. 
 
 Eut if there is no express or implied agreement as to the 
 further destination, (Did the agent receives the goods for other 
 purposes than that merely of forwarding them, or with instruo- 
 
 [t) 5 Oh. B. 205, at p. 219. oompte de Paris, L. R., 2 P. C. 393. 
 
 (m) Ex parte Watson, In re Love, 6 [x] E.g., Nioholls v. Le Eeufre, 2 
 
 Ch. D. 35 ; Rodger v. Comptoir d'Es- Bing. N. 0. 81 ; supra, s. 520. 
 
STOPPAGE IN TRANSITU. 587 
 
 tions "with regard to tliat which are incomplete, so that he must Sect. 522. 
 take and hold them for the huyer until he shall again set them in 
 motion, then generally the transit is at an end when the goods 
 have got into the agent's actual or constructive possession. 
 
 In Dixon v. Baldwen (y), trover was hrought for eighteen bales 
 of cotton twist supplied by the defendants, dealers at Manchester, 
 on the order of the Battlers, traders in London. The course of 
 business had been tbat goods so ordered were sent by the defen- 
 dants to Metcalfe & Sons, at Hull, for the purpose of being 
 shipped to the correspondents of the Battlers at Hamburgh. 
 When the goods arrived at Hull, the Metcalfes received orders 
 from the Battlers when and to whom to ship the goods at 
 Hamburgh. On the occasion in question, the Battlers had 
 ordered the goods to be packed in bales, marked in a particular 
 manner, and "to be forwarded to Messrs. Metcalfe & Sons to be 
 shipped for Hamburgh as usual." The goods were sent to 
 Metcalfe & Sons; but the Battlers afterwards stopped payment, 
 and the defendants got possession agaio. on giving the Metcalfes 
 an" indemnity; It appeared that the Metcalfes were at the time 
 waiting for the orders of the Battlers as to the goods ; four bales 
 had indeed been shipped in expectation of orders, but they were 
 re-landed asno orders came. It was held by three judges (Grose, 
 J., dissenting) that the transit ended on delivery to the Metcalfes 
 at Hull. " The goods had so far gotten to the end of their 
 journey, that they waited for new orders from the purchaser to 
 put them again in motion, to communicate to them another sub- 
 stantive destination, and that without such orders they would 
 continue stationary" (2). 
 
 So, in Valpy v. Gribson (a), Brown of Birmingham ordered 
 goods from the defendants, telling them that they were for the 
 Valparaiso market, and that he was buying on commission for a 
 correspondent. On his instructions the defendants sent the goods 
 to Leech, Harrison & Co., of Liverpool, who were shipping agents 
 employed by him to receive and forward the goods to Valparaiso. 
 It was held that the transit ended on their receipt of the goods. 
 
 " "With regard to the right of stoppage in transitu, it appears to 
 us that though the defendants knew the goods were to be sent to 
 Valparaiso, and so informed Leech, Harrison & Oo. when they 
 
 {y) 6 Bast,. 175. p. 186. 
 
 (z) Per Lord Ellenborougli, 5 East, at (a) 16 L. J., 0. P. 241. 
 
588 THE DELIVERY. 
 
 Sect. 5SS. forwarded them to Liverpool, yet that Leech, Harrison & Co. 
 could not simply on that information forward the goods to 
 Valparaiso, hut that they held them suhjeet to such orders as 
 Brown might give as to forwarding them to Valparaiso, or else- 
 where, and the transitus was consequently at an end as soon as 
 the. goods came to the hands of Leech, Harrison & Co." (6). 
 
 In Ex parte Miles, In re Isaacs (c), the goods had been ordered 
 hy Isaacs (trading in London as Elkin & Co.), who bought on 
 commission for Morrice & Co., of Kingston, Jamaica. The order 
 was sent to Turner & Co., the vendors, hy letter, as follows : — 
 " Inclosed we beg to hand you two orders of boots and shoes for 
 this mark, which be good enough to execute, and advise us when 
 we may expect delivery." And in the margin of this letter was a 
 mark consisting of the letters " E. M.," with the words " Kingston, 
 Jamaica," added. Turner & Co. were aware from previous transac- 
 tions that Morrice & Co. had used this mark. Subsequently, on 
 September 11th, Elkin & Co. instructed Turner & Co. to pack the 
 boots " as usual numbering the packages as per margin upwards, 
 and forward them at latest on the 13th inst. to Dunlop & Co., 
 Southampton, advising them with particulars for clearance." This 
 letter also had in the margia the mark " E. M.," with the number 
 "1768," and the words "Kingston, Jamaica." On the 13th 
 Turner & Co. sent particulars to Dunlop & Co. of the goods, " sent 
 to your care per rail, which please forward as directed." These 
 particulars described the packages as marked " E. M., Kingston, 
 Jamaica," numbered " 1768 — 1793," and to be shipped per 
 "Moselle ; " but the columns for " consignee " and " destination" 
 were left blank. 
 
 On the 14th, Elkin and Co. sent particulars to Dunlop & Co. of 
 the packages " forwarded to your care per rail for shipment per 
 steamer of the 17th last. " ; and these particulars stated that the 
 consignees were to be Morrice & Co., and the destination Kingston, 
 Jamaica. The goods were apparently received by Dunlop & Co. 
 (but whether before or after the instructions as to forwarding does 
 not appear in the report) ; and they were shipped by them in the- 
 name of Elkin & Co. After the ship had sailed Elkin & Co. 
 failed ; and Turner & Co. stopped the goods in transit. It was 
 held by the Court of Appeal that they were not entitled to do so ; 
 for the transit came ^ an end at Southampton {d). 
 
 (i) 16 L. J., C. P., at p. 249. M Brett, M. E., said: "It is said that 
 
 (c) 15 Q. B. D. 39. that (Elkin & Co.'s letter of Sept. 11th) 
 
STOPPAGE IN TEANSITU. 
 
 589 
 
 523. Where goods have been despatohed by a vendor under a Sect. 523. 
 
 contract of sale wMch stipulated that they should go to a particular Eight of 
 
 destination, the buyer is not entitled to divert or intercept the fntercept'^*" 
 
 goods on their way thither : and should he do so, it would pro- s°°^^. ^™& 
 11111111 transit, and 
 
 bably be held that he could not in that way defeat the unpaid so end it. 
 
 vendor's right to stop the goods, even though he had obtained 
 
 actual possession of them (e). 
 
 But where there has not been any agreement requiring the 
 
 vendee to send the goods or allow them to be sent to this or that 
 
 place, the mere fact that he has notified his intention that they 
 
 should go to such and such a place, and has instructed the vendor 
 
 to send them there, wiU not prevent him from intercepting them 
 
 while on their way ; and he may at any time end the transit by 
 
 taking possession of them, with the intention of keeping them or 
 
 diverting them to another destination. 
 
 is an order to Turner & Co. to forward 
 the goods to their destination in Jamaica. 
 Well, the case mainly depends upon 
 ■whether that is a true interpretation of 
 the letter. Whether a direction to send 
 the goods to Jamaica is an order to send 
 them to their destination. Now, what 
 is meant hy sending goods ' to their 
 destination ' ? It seems to me that it 
 means sending them to a particular 
 place, to a particular person who is to 
 receive them there, and not sending 
 them to a particular place without saying 
 to whom." 
 
 And subsequently he continued: — 
 " As a matter of business it is impossible 
 to say that Dunlop & Co. could properly 
 hare shipped the goods for Jamaica 
 withont receiving further orders as to 
 the person to whom they were to ship 
 them. They were to receive directions 
 from the purchasers as to the person 
 to whom they were to ship them, and 
 the purchasers were to communicate to 
 them another substantive destination. 
 The first destination was to Dunlop & 
 Co., at Southampton, it being part of the 
 bargain that Turner & Co. were to pay 
 the cost of the carriage to Southampton 
 inside the invoice price — ^the invoice price 
 was to include that. Elkin & Co. only 
 told Turner & Co. that the goods were 
 going to Jamaica, they did not direct 
 them to give the order to Dunlop & Co. 
 
 to send them to Jamaica ; they reserved 
 that for themselves. The goods, there- 
 fore, 'waited for new orders from the 
 purchasers to put them again in motion, 
 to communicate to them another sub- 
 stantive destination, and without such 
 orders they would continue stationary.' 
 The goods were, therefore, at their 
 journey's end when they reached South- 
 ampton. 
 
 " But it is said that the place of the 
 destination of the goods was known to 
 Turner & Co., although the name of 
 the person to whom they were to be 
 sent was not known. That is a new 
 point, but I have not the least difficulty 
 in deciding it. The 'destination' of 
 these goods did not mean sending them 
 to Jamaica. In business ' destination ' 
 means that you must give not only the 
 name of the place to which, but also the 
 name of the person to whom, goods are 
 to be sent. Dunlop & Co. could not send 
 these goods forward to their ' destina- 
 tion,' that is, to the person who was to' 
 receive them at a particular place, with- 
 out receiving a further order from the 
 purchasers as to the name of the person 
 to whom they were to go. The case, 
 therefore, seems to me to be within 
 the authority of Dixon v. Baldwen 
 (5 East, 175)." 
 
 (e) See Ex parte Watson, In re Love, 
 5 X/h. D. 35 ; per James, L. J., at p. 43. 
 
590 THE DELIVERY. 
 
 Sect. 523. Formerly it was held that this could not be done ; that, for 
 example, a consignee had no right to go out to sea to meet the 
 ship, and so take possession before the end of the voyage (/). 
 But later cases have overruled that view. 
 
 We have seen (g) that a consignee may end the transit by 
 making a new agreement with the carrier, such as to put him con- 
 structively into possession of the goods, the carrier becoming his 
 agent (h). He may also end it by taking actual possession ; and 
 it has been said that he may do so even against the carrier's con- 
 sent. " If the vendee take them out of the possession of the carrier 
 into his own before their arrival, with or without the consent of 
 the carrier, there seems to be no doubt that the transit would be at 
 an end : though, in the case of the absence of the carrier's consent, 
 it may be a wrong to. him for which he would have a right of 
 action" (i). 
 
 In Yalpy v. Gibson (k) goods had been shipped by the buyer's 
 agents for a destination which had been named to the vendor, but 
 they were afterwards re-landed by the agents on the buyer's in- 
 structions, and were sent to be re-packed. It was held that, in 
 causing the goods to be re-landed, and sending them to be re- 
 packed, the purchaser dealt with them as owner, and acquired the 
 possession as well as the property in them ; and that that would 
 certainly put an end to the transit if it had not already been deter- 
 mined by the original delivery to the agents. 
 
 On the other hand, it was held in Smith v. Goss (l), that an 
 attachment of goods in transit, by process out of the Mayor's Court 
 of London, at the suit of a creditor of the vendee, did not defeat 
 the vendor's right to stop and claim the goods. 
 
 Sale of Gooda 523a. The law on this subject of the duration of the transit is 
 g_ 45_ ' now codified by sect. 45 of the Sale of Goods Act, 1893, which is 
 as follows : — 
 
 " (1) Goods are deemed to be in course of transit from the time 
 when they are delivered to a carrier laj land or water, or other bailee 
 (or custodier), for the purpose of transmission to the buyer, until the 
 buyer, or his agent in that behalf, takes delivery of them from such 
 carrier or other bailee (or custodier). 
 
 (/) Hoist V. PownaU, 1 Esp. 240. (i) Per Parke, B., in Whiteheaa v. 
 
 (p) Supra, s. 513. Anderson, 9 M. & W., at p. 634. 
 
 (/i) As to tlie carrier's responsibility 
 
 to the consignor, see L. & N. "W. Rail. W ^^ ^- J-> '^- ^- ^H- 
 
 Co. V. Bartlett, 31 L. J., Ex. 92. {t) 1 Camp. 282. 
 
STOPPAGE IN TRANSITU. 591 
 
 " (2) If tte buyer, or his agent in tliat behalf, obtains delivery of the Sect. 523a. 
 goods before their arrival at the appointed destination, the transit is 
 at an end- 
 
 " (3) If after the arrival of the goods at the appointed destination, 
 the carrier or other bailee (or custodier) acknowledges to the buyer, or 
 his agent, that he holds the goods on his behalf, and continues in 
 possession of them as bailee (or custodier) for the buyer, or his agent, 
 the transit is at an end, and it is immaterial that a further destination 
 for the goods may have been indicated by the buyer. 
 
 " (4) If the goods are rejected by the buyer, and the carrier or 
 other bailee (or custodier) continues in possession of them, the transit 
 is not deemed to be at an end, even if the seller has refused to receive 
 them back. 
 
 ' ' (5) When goods are delivered to a ship chartered by the buyer it 
 is a question, depending on the circumstances of the particular case, 
 ■whether they are in the possession of the master as a carrier, or as 
 agent to the buyer. 
 
 "(6) Where the carrier or other bailee (or custodier) wrongfully 
 refuses to deliver the goods to the buyer, or his agent in that behalf, 
 the transit is deemed to be at an end. 
 
 " (7) Where part delivery of the goods has been made to the buyer, 
 or his agent in that behalf, the remainder of the goods may be stopped 
 in transitu, unless such part delivery has been made under such 
 circumstances as to show an agreement to give up possession of the 
 whole of the goods." 
 
 524. The right of stopping goods in transitu is, in the first in- The right is 
 stance, that of the vendor who started the goods upon that transit, yendoror ^ 
 and it is exerciseable hy him as against his purchaser, upon his sub-vendor, 
 insolvency, without paying for the goods. But if the goods have 
 
 been re-sold during the transit, each sub-vendor has, as against his 
 purchaser, a similar right of stopping the goods before the transit 
 comes to an end (m) ; while, as we shall see hereafter, each vendor 
 loses that right when the buyer who has purchased from him 
 transfers the goods, and the bill of lading for them, to a sub- 
 purchaser. 
 
 525. The Courts have given a literal meaning to the word Agents who 
 
 vendor in relation to this right. A foreign agent who has for ^^^thM 
 
 commission purchased goods on his own credit, or with his own P^'^ money 
 
 T . have the 
 
 money, on the orders of a pnncipal in this country, to whom he right. 
 
 has shipped them, is entitled to stop them in transit if the principal 
 
 becomes insolvent (m). So, also, may a merchant here who has 
 
 (m) Jenkyns v. Usborne, 7 M. & Q-. («) Feise d. Wray, 3 East, 93 ; Birds. 
 
 678 ; 13 L. J., C. P. 196. Brown, 19 L. J., Ex. 154 ; per Hellish, 
 
592 THE DELIVERY. 
 
 Sect. 5S5. purehased goods on commission, upon the orders of correspondents 
 abroad, and has shipped to them (o). 
 
 In The Tigress (p), a merchant at Liverpool who had, on his own 
 credit, bought corn at New York on the order of a buyer at Bristol, 
 to whom he charged a commission, was allowed to exercise the 
 right. In Tucker v. Humphrey (§'), agents in England who bought 
 goods with their own money for a principal, also in England, to 
 whom they shipped them, were allowed the same right. In Ex 
 parte Cooper (r) it was held to be no valid objection to a stoppage 
 that the vendee was also a member of the firm which had sold and 
 shipped the goods. And in Newson v. Thornton (s), a stoppage 
 was allowed of goods which had been shipped on the joint account 
 of the shippers and the consignee. 
 
 In SifEken v. Wray (t) Lord EUenborough appears to have con- 
 sidered that one who had become a surety for the price of the 
 goods, by accepting the vendor's drafts against them for the 
 buyer's accommodation, was not entitled to stop the goods in 
 transit upon the buyer becoming insolvent. . If, however, a surety 
 were to pay the price of the goods, he would, by the Mercantile 
 Law Amendment Act, 1856 (ti), be entitled to stand in the place 
 of the vendor, and to use all his remedies — so that he would 
 apparently have the right to stop the goods in transit. 
 
 Lien of 526. The fact that a shipper of goods had a lien upon them 
 
 not give the before he shipped does not confer upon him the right of stopping 
 "^ ■ them in transit. By parting with the goods he parts with his 
 
 right to have possession of them. In Sweet «?. Pym («), Pym, a 
 fuller, who had by custom a lien upon certain goods in his posses- 
 sion belonging to one Gard, for a general balance due to him from 
 Grard, shipped the goods to London in accordance with Gard's 
 orders. No bill of lading was signed for them. Afterwards, 
 hearing of Gard's bankruptcy, Pym overtook the ship before the 
 end of the voyage, and induced the captain to sign a bill of lading 
 to his order, and he obtained delivery of the goods from the 
 
 L. J., Ex parte Banner, In re Tappen- {q) i Bing. 616. 
 
 teck, 2 Ch. D. 278, at p. 289. (^j U Cji_ jy gs. 
 
 (o) Per Lawrence, J., Peise v. Wray, , , „ -^ . „ 
 
 3 East, at p. 101 ; per Brett, M. R., in ^' ' 
 
 Ex parte Miles, In re Isaacs, 15 Q. B. D. (') ^ ^^^'' ^'^'^■ 
 
 39, at p. 42. (m) 19 & 20 Vict. o. 97, s. 5, 
 
 (p) 32 L. J., Ad. 97. {x) 1 East, 4. 
 
STOPPAGE IN TRANSITU. 593 
 
 captain on their arrival in London. It was held that he had no Sect. 526. 
 right to have possession of them. 
 
 527. The right to stop goods in transit is not prejudiced by the Efleeot of part 
 fact that the buyer has partly paid for them (y), or has bought of^l^g""^ 
 them on credit, or given acceptances for them which have not yet aooeptanoes 
 matured (s) ; even though these acceptances have been negotiated 
 by the vendor, and are outstanding [a) . If, however, the vendor 
 has agreed to take something else than money, such as goods or 
 bUls, iu absolute payment of the price, he will, on receiving them, 
 cease to be an unpaid vendor, and will lose the right of stopping 
 the goods in transit. 
 
 In Woods V. Jones [b), it was held that a consignor is entitled 
 to stop goods in transit, although he has goods of the insolvent 
 consignee in his hands, and although it is uncertain how the 
 balance of the account between them will turn out. One Bright- 
 man, in England, had consigned goods to the plaintiffs at Quebec 
 for sale on his account. Before these goods were sold the plain- 
 tiffs shipped three cargoes of timber to Brightman, but not specifi- 
 cally against the consignments from him. They drew upon him 
 against the third cargo, and he dishonoured the bill ; their agent 
 in England therefore gave notice to stop the cargo. It was held 
 that the plaintiffs were entitled to do so ; they were not bound to 
 wait until their account with Brightman was liquidated. 
 
 But in Yertue v. Jewell (c), where the consignor was at the time 
 of the shipment indebted to the consignees, after taking into 
 account a number of bills still running which had been accepted 
 by them for him, it was held by Lord EUenborough, and the 
 Court in banc, that the consignor had no right to stop the goods 
 in transit on the consignee's bankruptcy ; and that the non- 
 payment of the bills by them could not be considered. The goods 
 had in that case been consigned on account of the balance due to 
 the consignees ; and Lord EUenborough subsequently, in Patten v. 
 Thompson {d)., said that in the case of Vertue v. Jewell the in- 
 dorsement of the bill of lading was in the nature of a pledge to 
 cover the acceptances (e). 
 
 in) Hodgson V. Loy, 7 T. E. 440. (i) 7 D. & K. 126. 
 
 («) FeiBe v. Wray, 3 East, 93 ; Edwards {e) 4 Camp. 31. 
 
 V. Brewer, 2 M. & W. 376. (d) 5 M. & S. 360, 
 
 (a) Ibid. But of. Bmmey v. Poyntz, («) But see the remarks on tie case in 
 
 4 B. & Ad. 668. Benjamin on Sales (3rd), p. 823. 
 
 C. C. Q Q 
 
594 . THE DELIVERY. 
 
 Sect. 528. 528. Kinlocli ». Craig (/) was a case of a consignment by 
 Consignment merchants to factors, who had accepted outstanding drafts to a 
 to factors. ^^j,^^ amount, against consignments, including the one in question. 
 Both merchants and factors became bankrupt, and the represen- 
 tatives of the merchants got possession of the goods before they 
 had ever come into the possession of the factors. It was held in 
 all the Courts that they were entitled to keep them. Eyre, C. B., 
 in delivering the opinions of the judges to the House of Lords, 
 said that the transaction being between principal and factor, and 
 not between vendor and vendee, the consignees could have no 
 property in the cargo, and the right of stoppage in transitu was 
 not in question. The consignees had no lien, because they had 
 not had possession. 
 
 Notice to stop 529. In order to be valid the notice stopping the goods in 
 from vendor transit must come from the vendor, or from some agent authorized 
 agenf"'^"^ to act for him in that behalf. In Bird v. Brown (g), the notice 
 was given to the master at Liverpool, on the arrival of the goods, 
 by the defendants, who were the holders of bills drawn against the 
 goods ; and the master in consequence delivered to them. But 
 they were not agents of the consignor, who was abroad, and they 
 had received no authority from him to make the stoppage. After 
 the goods had been delivered, however, a power of attorney which 
 had been executed by the consignor before the stoppage arrived at 
 Liverpool, by which one Joseph Hubback was authorized to stop 
 the goods in transit, and he adopted and confirmed the acts of the 
 defendants. It was held that the ratification by the consignor and 
 his attorney did not make the defendants' act valid. For, to be 
 effectual, such a ratification must be made within the time allowed 
 for a stoppage, and here it had not been made until the transit 
 had come to an end. 
 
 On the other hand, in Hutehings v. Nunes (h), the Privy 
 Council held that a stoppage made on behalf of the consignors by 
 one to whom "they had written before the stoppage, giving him 
 general authority, was vaM, although he did not receive the letter 
 until after he had stopped the goods («'). 
 
 In Morrison v. Gray {k), it was held that an indorsement of the 
 bill of lading to an agent, to enable him to stop the goods in 
 
 (/) 3 T. R. 119, 783. (i) Cf. Whitehead v. Anderson, 9 M. 
 
 (?) 19 L. J., Ex. 154. & W. S18. 
 
 {h) 9 L. T., N. S. 125. (J) 2 Bing. 260. 
 
STOPPAGE IN TRANSITU. 595 
 
 transit, entitled him. to sue in his own name for the value of the Sect. 529. 
 goods, which the defendants had wrongly refused to deliver to him. 
 
 530. Again, the notice to stop the goods must he given to " the I* m"st be 
 
 ± D D ^ given to those 
 
 person " who has the immediate " custody " of them (l). That is, who have 
 
 usually, to the master of the ship. Notice given to the shipowner, and l^l goods, 
 transmitted hy him to the master, is sufficient (»*). But not unless, 
 or until, it reaches the master («). There appears to be some un- 
 certainty whether the shipowner is bound to forward such a notice. 
 
 In Kemp v. Falk (w), goods had been shipped at Liverpool for Opinions in 
 Calcutta, and notice to stop them was given by the vendor, who ^"'P*'- 
 was also the shipper, to the shipowners at Liverpool, on July 27th, 
 two days before the vessel arrived at Calcutta. On the 31st the 
 owners telegraphed to their agents at Calcutta telling them to stop 
 delivery unless the bill of lading was held for value. In fact it 
 was held for value. On the 5th of August the vendor, through 
 his agents at Calcutta, gave notice to the master. In the Court of 
 Appeal, Bramwell, L. J., said : — " I think that there was no effec- 
 tual stoppage in transitu until the master of the ship was told by 
 the vendor's agents to stop the goods. I think that what took 
 place at Liverpool amounted only to telling someone to stop the 
 goods, not a stoppage «t transitu, and I cannot think that any duty 
 was imposed on the shipowners at Liverpool to stop the goods. It 
 seems to me that it would be monstrous to hold that the telling 
 somebody else to stop the goods in transitu amounted to a stoppage 
 in transitu" (o). 
 
 This question was not of importance in that case, and was not 
 discussed by the other Lords Justices ; nor in the House of Lords, 
 except by Lord Blackburn. He, however, considered the stoppage 
 was complete on July 31st, and laid down a different view of the 
 law from that of Bramwell, L. J. He said (p) : " I had always 
 understood that the law was that when you became aware that a 
 man, to whom you had sold goods which had been shipped, had 
 become insolvent, your best way, or at least a very good way, of 
 stopping them in transitu was to give notice to the shipowner in 
 order that he might send it on. He knew where his master was 
 
 (I) Per Parke, B., in Whitehead v. Bethell v. Clark, 19 Q. B. D. 553 ; 20 
 Anderson, 9 M. & W. 518. Astonptice Q- 2- ^- "^IS- 
 to consignees, see Phelps v. Comber, 29 W Kemp v. Falk, 10 Ch. D. 446 ; 7 
 
 ^•^•®^^- '(o)'uCh.D.atp.45S. 
 
 (m) Litt V. Cowley, 7 Taunt. 168 ; (p) "7 A. C. at p. 585. 
 
 Q Q 2 
 
596 THE DELIVERY. 
 
 Sect. 530. likely to he, and he miglit send if on ; and I have always been 
 under the helief that although such a notice, if sent, cast upon the 
 - shipowner who received it an ohligation to send it on with reason- 
 able diligence, yet if, though he used reasonable diligence, some- 
 how or other the goods were delivered before it reached, he would 
 not be responsible. I have always thought that a stoppage, if 
 effected thus, was a sufficient stoppage in transitu ; I have always 
 thought that when the shipowner, having received such a notice, 
 used reasonable diligence and sent the notice on, and it arrived 
 before the goods were delivered, that was a perfect stoppage in 
 transitu — consequently I think that when notice was given to the 
 shipowners (and although they had signed the biU of lading 
 instead of the master signing it, I do not think that that makes 
 any diEEerence ; I only mention it to say that it -makes none) they 
 were under an obligation to forward it with reasonable diligence, 
 if they could, to the master." 
 
 Sale of aoods 530a. The law on this subiect is now stated in sect. 46 of the 
 
 Act, 1893, ."• . 
 
 B. 46. Sale of Groods Act, 1893, which is as follows : — 
 
 "(1.) The unpaid seller may exercise iis right of stoppage in 
 transitu either by taking actual possession of the goods, or by giving 
 notice of his claim to the carrier or other bailee (or custodier) in whose 
 possession the goods are. Such notice may be given either to the 
 person in actual possession of the goods or to his principal. In the 
 latter case the notice, to be effectual, must be given at such time and 
 under such circumstances that the principal, by the exercise of reason- 
 able diligence, may communicate it to his servant or agent in time to 
 prevent a deUvery to the buyer. 
 
 " (2.) When notice of stoppage in transitu is given by the seller to 
 the carrier, or other bailee (or custodier) in possession of the goods, he 
 must re-deUver the goods to, or according to the directions of, the 
 seller. The expense of such re-delivery must be borne by the seller." 
 
 Duty to 531. We have seen that the shipowner is bound to deliver the 
 
 vendor. goods to the persons rightfully entitled to them, provided they duly 
 
 put forward their claims ; and that this is true with regard to a 
 vendor who properly claims to stop goods in transit. Should the 
 goods be delivered by the master to the vendee, after a valid notice 
 to stop them from the vendor, the latter may claim damages from 
 the master and the shipowner {q). 
 
 Moreover, the master has no right to retain the goods upon the 
 plea of holding them for the true owner when he shaU have been 
 
 (q) The Tigress, 32 L. J., Ad. 97: on tort: see Pontifex ». Mid. KaU. Co. 
 supra, SB. 469, 482. The claimis founded 3 Q. B. D. 23. 
 
STOPPAGE IN TEANSITU. 597 
 
 ascertained : " the right to stop means the right not only to Sect. 531. 
 
 countermand delivery to the vendee, hut to order delivery to the 
 
 vendor " (r). 
 
 If, however, delivery be improperly made to the vendee, or to 
 
 persons in whom his estate has become vested, the vendor may 
 
 follow the goods, and claim them, or their value (s). 
 
 But it does not seem equally certain that the vendor may follow May vendor 
 
 . . I. 1 1 follow goods 
 
 the goods after they have been delivered to assignees of the vendee, in hands of 
 
 who have in good faith given value for them and obtained an assignee. 
 
 assignment, though not La such a way as to defeat the vendor's 
 
 right of stoppage. We shall see hereafter that that may be the 
 
 position where there has been an assignment without a transfer of 
 
 the bill of lading ; and it is open to question whether the vendor 
 
 may not lose his right to claim the goods as against such assignees, 
 
 when they have actually obtained possession of them, without 
 
 notice of his claim. 
 
 532. The right of the vendor to stop the goods is liable to be Riglit to stop 
 
 , . - o ^ in transit 
 
 defeated by intervening rights of other persons. If, while the defeated by 
 transit still continues, the purchaser assigns the goods and transfers ^^ ^j lading 
 the bill of lading for them to one who gives value for them in ^°^ value, 
 good faith, without notice that they have not been paid for, the 
 vendor's right of stoppage is lost as agaiast that person. The 
 rights of property and possession which the latter has bought 
 become paramount to the dormant right of the unpaid vendor. 
 
 This has been the recognised rule of law since the case of Lick- 
 barrow V. Mason was last before the Court of King's Bench ; and 
 it seems to have become so, not so much as the result of legal 
 principles, as by the adoption of a mercantile practice which was 
 found to be of general convenience and calculated to prevent fraud. 
 
 The rule has now been extended to assignments of the goods 
 coupled with transfers of documents of title other than biUs of 
 lading ; and the operation of the rule has been defined by sect. 47 
 of the Sale of Groods Act, 1893 (t). It may still, however, be 
 useful to trace its history, 
 
 Lickbarrow v. Mason first came before the Court of King's Bench Lioktarrc-w v. 
 in November, 1787 (u). It was an action of trover for a cargo of ^ °^' 
 
 (»•) Per Dr. Lushington, 32 L. J., Ad. 349 ; reversed on another point, L. E., 
 
 at p. 102. 2 Ch. 332. 
 
 (i) Litt V. Cowley, 7 Taunt. 169 ; (<) See infm, s. 635. 
 
 Bohtlingk v. Inglis, 3 East, 381 ; Schots- («) 2 T. R. 36 ; 1 Smith's L. C. (7ih), 
 
 mans v. L. & T. Rail. Co., L. R., 1 Dq. 756. 
 
598 THE DELIVERY. 
 
 Sect. 532. corn, shipped at Middleburg by Turing & Son, on board a ship 
 bound for Liverpool, by the order and directions and on account of 
 Freeman, of Eotterdam. The master signed four bills of lading in 
 the usual form, unto order or assigns. Two of these were indorsed 
 by Turing & Son and sent by them to Freeman, with an invoice 
 for the corn. Another was kept by Turing & Son, and the 
 remaining one by the master. Turing & Son drew bills upon 
 , Freeman for 477/., the price of the goods, which he accepted. He 
 again drew bills for 520/. upon the plaintiffs and sent them the 
 two bills of lading, together with the invoice, in the same state in 
 which he had received them, the object being that the goods might 
 be taken possession of and sold by the plaintiffs on Freeman's 
 account. The plaintiffs accepted and paid the drafts for 620^. 
 Before Freeman's acceptances became due he became bankrupt, 
 and Turing & Son therefore indorsed the bill of lading which they 
 had retained, and sent it with an invoice of the goods to the 
 defendants, authorizing them to obtain possession for the benefit of 
 Turing & Son. On the arrival of the vessel the defendants obtained 
 the corn under this bill of lading and sold it. The plaintiffs 
 demanded the corn from the defendants, and tendered them the 
 freight and charges ; but did not offer to pay for it. Turing & Son 
 had to take up their own drafts on Freeman, and had not been 
 paid any part of the price of the corn. 
 
 On these facts the Court («) decided that the transfer of the bill 
 of lading to the plaintiEfs put an end to the right of Turing & Son 
 to stop the goods. And the main ground of the decision seems 
 to have been that otherwise the consignee would be enabled to 
 commit frauds on third persons. " A bill of lading carries credit 
 with it : the consignor, by his indorsement, gives credit to the biLL 
 of lading, and on the faith of that money is advanced" {y). 
 
 This decision was reversed in 1790 by the Exchequer Cham- 
 ber (z). Lord Loughborough delivered the unanimous judgment 
 of the Court, basing their decision on the ground that a transfer of 
 a bill of lading conveys only the rights of the transferor ; so that 
 the transferee takes subject to any right of the original vendor to 
 stop the goods. 
 
 In 1793 the case was brought before the House of Lords {a), 
 
 {x) Ashhurst, BuUer & Grose, JJ. Nissen, 2 T. E. pp. 680, 681. 
 
 (i/) Per Grose, J., at p. 715 ; of. the (z) 1 H. Bl. 357. 
 
 observations on the case in Salomons v. {a) 6 East, 21. 
 
STOPPAGE IN TRANSITU. 
 
 599 
 
 and the opinions of the judges were taken. Ashhurst, BuUer and Sect. 533. 
 Grose, JJ., repeated their opinions in favour of the plaintiffs, while 
 Eyre, 0. J., G-ould and Heath, JJ., and Hotham, Perryn and 
 Thomson, BB., advised in favour of the defendants. The House, 
 "thinking the facts of the case were not laid before them in such 
 a manner as to warrant a decision of the point of law, directed 
 the cause to be tried again by a jury in order to remedy that 
 defect" (S). 
 
 It was accordingly tried again, and the jury found a special 
 verdict (e), upon which the Court of Queen's Bench, understanding 
 that the case was to be carried up to the House of Lords, again 
 gave judgment for the plaintiffs without discussion. 
 
 Another writ of error was brought, but it was abandoned, and 
 it has since been the admitted doctrine that the consignee may, 
 under such circumstances, confer an absolute right and property 
 upon a third person, indefeasible by any claim on the part of the 
 consignor (a). 
 
 533. It is difficult to arrive definitely at the grounds on which Grounds of 
 that doctrine was admitted. The opinion of the large majority of 
 the judges was against it; and probably the considerations with 
 regard to it which have had the most weight and effect were those 
 of policy and convenience. BuUer, J., in his opinion to the House 
 of Lords, said, " In all mercantile transactions one great point to 
 be kept uniformly in view is to make the circulation and negotia- 
 tion of property as quick, as easy and as certain as possible. If 
 this judgment stands no man will be safe either in buying or in 
 lending money upon goods at sea." 
 
 Lord Kenyon, in Salomons v. Nissen (e), a.d. 1788, said, in 
 approval of the first decision of the Queen's Bench in Lickbarrow 
 1}. Mason, "that case was decided on principles of policy and 
 common honesty ; it was there said that if the goods come into the 
 hands of a third person for a valuable consideration, bond fide, and 
 without notice, he shall not be prejudiced, because the consignor 
 was so incautious as to trust the goods out of his possession without 
 payment." 
 
 (b) Abtott (Stt), p. 388 ; (13th), (<;) Abtott (5th), p. 389. It has not 
 
 703. See as to the effect of that judg- teen affected by the Bills of Lading Act, 
 
 ment, per Lord Blaokbum in Sewell v. i855 : Kemp v. Caravan, Ir. E., 16 0. L. 
 
 Burdiok, 10 A. C. 74, pp. 98 et seq. 216. 
 
 . (c) 5 T. R. 683. Bsiov.Uupra, s. 487. («) 2 T. R. 674, at p. 679. 
 
600 THE DELIVEKY. 
 
 Sect. 533. And in the same cas^, Ashhurst, J., said (/) that the right to 
 stop " does not hold in the case of an assignment of the bill of 
 lading to a third person for a valuable consideration without notice, 
 because the possession of the hill of lading hy the consignee makes him 
 the visible owner of the goods, and would enable him to commit a 
 fraud on a third person : such was the case of Lickbarrow and 
 Mason." And. BuUer, J., there put it on the same ground (g). 
 
 That was also the one point on which the judges who decided 
 Lickbarrow v. Mason, in the Exchequer Chamber, felt a difficulty. 
 Lord Loughborough, in delivering the judgment, said {h), " This 
 argument has, I confess, a very specious appearance. The whole 
 difficulty of the case rests upon it ; and I am not surprised at the 
 impression it has made, having long felt the force of it myself. A 
 fair trader, it is said, is deceived by the misplaced confidence of 
 the consignor. The purchaser sees a title to the delivery of the 
 goods placed in the hands of a man who offers them to sale. 
 Goods not arrived are every day sold without any suspicion of 
 distress, on speculations of the fairest nature. The purchaser 
 places no credit in the consignee, but in the indorsement produced 
 to him, which is the act of the consignor." 
 
 In more recent times we find the same ground put forward. 
 "In such a case, if the vendor is unpaid, one of two innocent 
 parties must suffer by the act of a third ; and it is reasonable that 
 he who, by misplaced confidence, has enabled such third person 
 to occasion the loss, should sustain- it " («). The rule is an 
 
 (/) 2 T. B.. p. 680. middleman to carry the goods from tie 
 
 {^) See also per Lord Alvanley in unpaid vendor, Turing, to Freeman, his 
 
 Oppenheim v. Russell, 3 B. & P. 42, vendee, but holding them as agent for 
 
 p. 49 ; decided in 1802. Lickbarro-w. It was held, first, in Ee 
 
 (A) 1 H. Bl. at p. 363. Westzinthus (5 B. & Ad. 817), and then 
 
 (j) From the judgment of the Privy in Spalding v. Ending (6 Beav. 381), 
 
 Council in Eodger v. Comptoir d'Es- that where the transitus was thus put 
 
 compte de Paris, L. E., 2 P. C. p. 406, an end to by what was in reality only a 
 
 citing Lickbarrow v. Mason. Lord pledge, the stoppage might be made 
 
 Blackburn, in Sewell v. Bui'dick (10 available in equity so far as the rights 
 
 A. 0. 74, pp. 100, 101), expressed a of the pledgee did not extend. Ithought, 
 
 different view of the point decided in and still think, that the reason why the 
 
 Lickbarrow v. Mason, and of the grounds stoppage could not be made available at 
 
 of the decision. He said :— " The point law was because the shipowner no longer 
 
 which I understand to have been decided held the goods as a middleman ; as the 
 
 in Lickbarrow v. Mason (5 T. R. 683) transferee of the bill of lading for valu- 
 
 was, that on the transfer of the bill of able consideration, and lon&fde so as to 
 
 lading to Lickbarrow the goods ceased give him a security, whether by way of 
 
 to be in transitu, the shipowner from mortgage or by way of pledge, had a 
 
 that time no longer holding them as a legal property in the goods which he 
 
STOPPAGE IN TRANSITU. 601 
 
 instance of estoppel. The vendor hj putting the vendee in posses- Sect. 533. 
 sion of the bill of lading, knowing that that is a document loj 
 which the right to possession can ordinarily be transferred, is pre- 
 cluded from setting up his right to possession as against a transferee 
 of that right (y). 
 
 534. If the right of the sub-purchaser to have the goods, free Assignment 
 from any claim to stop them in transit, depends upon the fact that without 
 he gave credit to the consignee as holder of the bill of lading, it ^^1^^°^^^ 
 might seem that he ought not to lose that right merely because no 
 formal transfer of the bill of lading has been made to himself. If, 
 for example, a bill of lading comprises a large quantity of goods, 
 which are re-sold by the consignee in smaller lots, and paid for by 
 the several sub-purchasers, it might seem that they ought all to be 
 protected against a stoppage in transit, though the bill of lading 
 may not have been transferred to any of them. 
 
 This point appears, however, to be settled against such a view, 
 by sect. 47 of the Sale of Goods Act, 1893 (k) ; and before the 
 passing of that Act the authorities were in the same direction. 
 
 In Davis v. Eeynolds (/), indeed, it was held to be unnecessary 
 to prove the transfer of the bill of lading. The bill of lading 
 was unstamped and could not be received in evidence, and Lord 
 Bllenborough considered it enough to show that the consignees 
 were purchasers of the goods in whom the property had vested, 
 and that they had entered into a binding contract with the sub- 
 purchasers (w). 
 
 But in Akerman v. Humphrey («), a transfer of a shipping note Assignor 
 for value, there being no bill of lading, was held noi to defeat the till of lading-. 
 right of stoppage. One Dent had consigned hams and butter to 
 Hutchinson, and sent him an invoice for them. The goods were 
 shipped, on Dent's orders, by forwarding agents ; and they sent 
 Hutchinson a letter signed by them, called in the report of the 
 case a shipping note, which expressed that the goods were shipped 
 by them for Hutchinson by order of Dent. Some evidence was 
 
 conld enforce as against tlie shipowner." the transit is not ended by the transfer. 
 
 This yiew does not seem reconcilable (/) Cf . per Lord Cairns in Goodwin v. 
 
 with the cases. It may be asked why Eobarts, 1 A. C. at p. 490. 
 
 a mere transfer of the biU of lading by {k) Infra, a. 535. 
 
 the vendee (without attornment by the (l) 4 Camp. 267. 
 
 shipowner) puts an end to the transit (m) See also Dick v. Lumsden, Peake, 
 
 more than a transfer by the vendor does N. P. C. 189. 
 
 80. X'uither, the pledge cases show that (») IC. &P. 53. 
 
602 
 
 THE DELIVERY. 
 
 Jenkyns v, 
 Usbome. 
 
 Sect. 534. given that in the provision trade these shipping notes were used 
 instead of bills of lading, and that loans were made upon them. 
 Hutchinson obtained a loan from the plaintifE upon giving him 
 the shipping note, and a delivery order on the wharfinger. Dent 
 stopped the goods in transit upon Hutchinson's insolvency, and 
 the plaintiff claimed them. Burrough, J., who tried the case, 
 directed the jury that the shipping note did not amount to a bill 
 of lading. " I do not think the shipping note from the nature of 
 it is indorsable, and here, in point of fact, it is not indorsed; 
 therefore, in my judgment, there was no change of property." 
 And this ruling was upheld by the Court (o). 
 
 In Jenkyns v. TJsbome (jo), John and Thomas Lloyd, of Leg- 
 horn, shipped a cargo of beans to Hunter and Coventry, of London, 
 in consequence of an order given by them. The Lloyds sent a 
 letter of advice, an invoice, two bills of exchange, drawn on 
 Hunter and Coventry for the price, and a single bill of lading for 
 the whole cargo, to Hunter and Coventry, through the plaintiff, 
 who was agent for the Lloyds in London. The bill of lading was 
 to the shippers' order, and was indorsed by them in blank. One of 
 the bills of exchange represented the beans actually ordered by 
 Hunter and Coventry, the other represented an excess quantity 
 which had been shipped. Hunter and Coventry declined to take 
 this excess quantity, and refused to accept the bill for it. An 
 arrangement was therefore made respecting it, between them 
 and the plaintiff, shown by the following letter : — 
 
 " Mr. Jenkyns. 
 
 " London, 24th May, 184L 
 
 " Sir, 
 
 " The invoice per Agnes, Turcan master, from Leghorn, 
 states 3,932 sacks beans, equal to supposed 983 quarters; the 
 amount sterling for which bills have been drawn is 857^. 3«. 7d. 
 As you have withdrawn from this amount 317/. 14s. Qd., we hereby 
 acknowledge such a proportion of the said cargo of beans per 
 Agnes, according to the said sum of 317/. 14s. Qd., the which you 
 have accepted, to be yours, and herewith hand you order to receive 
 the same, and should there be a difference in the calculating the 
 sacks as per invoice, then you must bear such proportion. 
 
 " (Signed) Hunter & Coventey." 
 
 (o) Cf. supra, B. 600, infra, s. 535. 
 
 {p) 13 L. J., C. P. 196. 
 
603 
 
 STOPPAGE IN TRANSITU. 
 
 The order referred to was as follows : — Sect. 584. 
 
 " Captain Turcan, of The Agnes. 
 « Sir, 
 
 " Please deliver to the bearer one thousand four hundred 
 forty-two and three quarters (1442f ) sacks of heans, ex Agnes. 
 
 " Hunter. & Coventry. 
 "London, 1841." 
 
 The plaintiff accordingly accepted, and in due course paid the 
 smaller bill ; and he sold his portion of the beans to one Thomas, 
 undertaking to deliver them free of damage; and sent him 
 Hunter and Coventry's letter of May 24th, and the delivery 
 order. Thomas gave his acceptance for the price. 
 
 Subsequently Thomas applied to the defendant for a loan, offer- 
 ing the beans as security. The loan was made, and the defendant 
 received the letter and delivery order ; Thomas explaining that the 
 bill of lading for the whole cargo was held by Hunter and Coventry. 
 Thomas afterwards stopped payment without haying met his accept- 
 ance, and the plaintiff gave notice to the captain of The Agnes not 
 to deliver ; but he did in fact deliver to the defendant, on an in- 
 demnity. In an action against the defendant it was held that the 
 plaintiff was entitled to stop the beans in transit, notwithstanding 
 the transfer to the defendant for value (q). 
 
 The question we are considering was touched upon, but not 
 
 (j) Tindal, C. J. , in delivering the con- possession of the bill of lading, so as to he in 
 
 sidered judgment of the Court, said : — a situation to transfer the instrument itself 
 
 " The actual holder of an indorsed bill as the symbol of the property. In the 
 
 of lading might, undoubtedly, by in- present case Thomas was not in posses- 
 
 dorsement, transfer a greater right than sion of the bill of lading, but only had 
 
 he himself has. It is at variance with the order on the captain to deliver the 
 
 the general principles of law that a man goods on arrival. And when, under the 
 
 should be allowed to transfer to another circumstances stated in the case, the 
 
 a right which he himself has not. But order was handed over to the defendant, 
 
 the exception is founded on the nature it appears to us that though an interest 
 
 of the instrument in question, which in the contract passed to the defendant, 
 
 being, like a bill of exchange, a negoti- the interest in the goods did not pass as 
 
 able instrument for the general con- it would have done if the transfer had 
 
 venience of commerce, has been allowed been by assignment of the bill of lading, 
 
 to have an effect at variance with the but that the interest in the goods was 
 
 ordinary principles of law. This opera- still liable to be defeated by the in- 
 
 tion of a bill of lading, however, being solvency of Thomas, and the proper 
 
 derived from its negotiable quality, exercise of the right of stoppage in 
 
 appears to be oonflned to the case where the transitu.^' And see Craven v. 'Ilyder,'6 
 
 person who transfers'the right is himself in Taun. 433 ; Nix w. Oli've, infra, s. 536. 
 
604 THE DELIVEKY. 
 
 Sect. 534. decided, in Kemp v. Falk, when before the House of Lords (r). 
 Opinions in A cargo of Salt, the hill of lading for which had been deposited 
 S^to^the^^^'^' '^'^^^ bankers as security, had been sold " to arrive " to various 
 
 rights of sub- gub-purchasers. The salt was delivered to the sub-purchasers and 
 purchasers. , -"^ 
 
 was paid for by them ; and no question arose as to their rights. 
 
 But there was a dispute between the unpaid vendor and the trustee 
 
 in bankruptcy of the vendee, as to who was entitled to the balance 
 
 of the purchase-monies, after paying off the claim of the bank. 
 
 And though the question of the rights of sub-purchasers to defeat 
 
 the unpaid vendor's right to stop them was not material in that 
 
 case, very important dicta on the matter were uttered. 
 
 Lord Selborne said that, after indorsing the bill of lading to the 
 bank, the original purchaser " can transfer no greater or better 
 right than he has ; and the right which he has is a right subject to 
 a stoppage in transitu in all cases in which the right of stoppage in 
 transitu remains in favour of the original seller of the goods" (s). 
 And again, the right of stoppage " could be in no way whatever 
 affected or prejudiced by any dealings between the original insol- 
 vent purchaser and persons purchasing under him without any 
 title founded upon an indorsement of the bill of lading for value 
 received" {t). 
 
 And Lord Blackburn still more distinctly said: — "No sale, 
 even if the sale had actually been made with payment, would put 
 an end to the right of stoppage in transitu, unless there were an 
 indorsement of the bill of lading. Why an agreement to sell, 
 unless it was made in such a way as to pass the right of property in 
 the goods sold, should be supposed to put an end to the equitable 
 right to stop them in transitu, I cannot understand. I am quite 
 clear that it does not " (m). 
 
 On the other hand, Lord Fitzgerald said : — " Confining myseK 
 to the facts of the case, I refrain from expressing any opinion how 
 far a bond, fide absolute sub-sale for cash made whilst the goods 
 were at sea, and without notice of the claim of the unpaid vendor, 
 may or may not affect the right of stoppage in transitu, though the 
 sub-sale be unaccompanied by an indorsement and delivery of the 
 bill of lading to the sub- vendee" («). 
 
 It is to be observed, with reference to the above dicta of Lord 
 Selborne and Lord Blackburn, that the sub-sales in that case were 
 
 (r) 7 A. 0. 573. («) 7 A. C. at p. 677. (d) At p. 578. 
 
 (m) At p. 582. (x) 7 A. C. at p. 590. 
 
STOPPAGE IN TEANSITU. 605 
 
 of undivided portions of a tulk of salt, so that no property in the Sect. 534. 
 salt passed by the sales, even if the property had not already vested 
 by mortgage in the bank. Also, that the sub-sales were apparently 
 made by persons who either did not hold the bill of lading, or did 
 not do so on behalf of him for whom they sold. 
 
 535. The effect of a transfer of a bill of lading in defeating a other 
 vendor's right of stoppage was extended to other documents of title of ytie. 
 by sect. 10 of the Factors Act, 1889 (52 & 53 Yict. c. 45), which 
 has been set out above {y). That section appears to contemplate 
 that, without the transfer of a bill of lading or other document of 
 title, an assignment of the goods would not defeat the right. And Sale of Goods 
 now the necessity of a transfer of the document seems to be s. 47. ' 
 definitely settled by sect. 47 of the Sale of Goods Act, 1893, 
 which is as follows : — " Subject to the provisions of this Act the 
 unpaid seller's right of lien or retention or stoppage in transitu is 
 not affected by any sale, or other disposition of the goods which 
 the buyer may have made, unless the seller has assented thereto. 
 
 " Provided that where' a document of title to goods has been 
 lawfully transferred to any person as buyer or owner of the goods, 
 and that person transfers the document to a person who takes the 
 document in good faith and for valuable consideration, "then, if 
 such last-mentioned transfer was by way of sale, the unpaid seller's 
 right of lien or retention or stoppage in transitu is defeated, and if 
 such last-mentioned transfer was by way of pledge or other dis- 
 position for value, the unpaid seller's right of lien or retention or 
 stoppage in transitu can only be exercised subject to the rights of 
 the transferee." 
 
 The documents of title referred to are defined (sect. 62) by 
 reference to the Factors Act, 1889, of which s. 1 (4) is as follows : 
 " The expression * document of title ' shall include any bill of 
 lading, dock warrant, warehousekeeper's certificate, and warrant or 
 order for the delivery of goods, and any other document used in 
 the ordinary course of business as proof of the possession or control 
 of goods, or authorizing or purporting to authorize, either by 
 indorsement or delivery, the possessor of the document to transfer 
 or receive goods-thereby represented/' 
 
 It thus appears that in order to defeat the right to stop in transit 
 there must not only have been a sale or disposition of the goods by 
 
 (y) S. 504. 
 
606 THE DELITEEY. 
 
 Sect. 535. the buyer, valid to transfer the property, or some property, in 
 
 them, but also a transfer by the buyer of some document of title 
 
 to the goods which has been " lawfully transferred " to him " as 
 
 buyer or owner of the goods." 
 
 The document 536. In order to defeat the vendor's right of stoppage by an 
 
 been effe™tu- assignment of the goods, and a transfer of a document of title, 
 
 feixed'^"'^" *^^* ™^®* ^^^® ^^^^ ^°- effective document (z). 
 
 In Nix V. Olive («) one Fox had ordered a quantity of wine 
 from vendors at Oporto, and they had shipped it under bill of 
 lading for delivery to order or assigns. One of these, unindorsed, 
 they sent to Fox in a letter, in which they said they had shipped 
 the wine on his account, had sent a bill of lading, and had drawn 
 upon him for the price. Fox accepted the draft, and allowed the 
 wine on its arrival to go into the king's warehouse. Subsequently 
 he sold it to the plaintiff, partly for cash and partly for an old debt. 
 Shortly afterwards he became bankrupt, and the agents of the con- 
 signors, having paid the duties, got possession of the wine. The 
 plaintiff claimed it ; but Lord EUenborough held that the right of 
 the consignors to stop it had not been lost. 
 
 But where purchasers of goods to whom the property had passed 
 got possession of the bill of lading, which was by arrangement held 
 by the vendors, by means of a fraudulent representation that they 
 had resold the goods, and then indorsed and delivered it to other 
 persons as security for a debt, it was held that this put an end to 
 the vendor's right to stop the goods in transit (6). "Here the 
 possession was not only united to the previous ownership with the 
 consent (however obtained) of the person temporarily entitled to it, 
 but transferred for the express purpose of giving to the owner 
 absolute dominion over his own property " (c). 
 
 In Cahn r. Pockett's, &c. Oo. (d) it was' held by the Court of 
 Appeal that a bill of lading had been " lawfully transferred " by 
 the intending vendor to an intended buyer, within the meaning of 
 sect. 47 of the Sale of Goods Act, 1893, although the delivery of 
 it to him had been made subject to a condition which he failed to 
 perform. The bill of lading, indorsed in blank:, had been sent by 
 the vendor to the intended buyer with a draft for the price of the 
 goods, for his acceptance. He did not accept the draft, as he was 
 
 {zj Supra, B. 487. 219. 
 
 (a) Abbott (Sth), 393 ; (13tli), 707. (c) L. R., 1 P. 0. p. 230. 
 
 (4) Pease v. Gloaheo, L. K., 1 P. 0. [sj (1899) 1 Q. B. 643. 
 
STOPPAGE IN TRANSITU. 
 
 607 
 
 required and bound to do if lie kept the bill of lading (Sale of Sect. 538. 
 Goods Act, 1893, s. 19 (3) ), but he transferred the bill of lading 
 to persons who had agreed to buy from him. It was held that 
 the right to stop the goods in transit was thereby defeated (e). 
 
 («) The point that the delivery was 
 conditional is not much discussed in the 
 judgments. Collins, L. J. (p. 665), said : 
 ' ' Mr. Cohen contended that in this 
 case the bill of lading had not been 
 'lawfully transferred' to Pintsoher as 
 buyer, inasmuch as it was not intended 
 that the property should pass. But by 
 sect. 11 of the Factors Act, 1889, 'The 
 transfer of a document may be by in- 
 dorsement, or where the document is by 
 custom, or by its express terms, trans- 
 ferable by delivery, or makes the goods 
 deliverable to the bearer, then by 
 delivery.' 'Delivery,' by the Sale of 
 Groods Act, sect. 62, means ' voluntary 
 transfer of possession from one person to 
 another.' I think there can bono doubt 
 whatever that the bill of lading which 
 was indorsed in blank, was in. this case 
 lawfully transferred to Pintsoher as 
 buyer." But can delivery of a docu- 
 ment upon the condition that it is to be 
 returned, if the receiver fails to do a 
 certain thing, be said to be a " voluntary 
 transfer of possession ' ' of that document, 
 where the condition is not satisfied ? It 
 gives "actual custody," and therefore 
 ' ' possession ' ' within the meaning of the 
 Factors Act (s. 1). But has there been 
 a "voluntary transfer" of the posses- 
 sion? "Transfer" must surely here 
 relate to the right as well as the fact of 
 possession. Pintsoher acquired no riffht 
 by the conditional delivery of the bill of 
 lading to him. Cf. supra, b. 488. 
 
 Collins, L. J., (p. 664) seems further 
 to have considered that the right of the 
 unpaid vendor to stop the goods in 
 transit was also defeated by the opera- 
 tion of sect. 26 (2) of the Sale of Goods 
 Act. By that section (which reproduces 
 sect. 9 of the Factors Act, 1889), where 
 one who has bought or agreed to buy 
 goods " obtains, with the consent of the 
 seller, possession of the goods, or the do- 
 cuments of title to the goods, the delivery 
 or transfer by that person, or by a mer- 
 cantile agent acting for him, of the 
 
 goods or documents of title under any 
 sale, pledge or other disposition thereof 
 . . . shall have the same effect as if 
 the person making the delivery or trans- 
 fer were a mercantile agent in posses- 
 sion of the goods or documents of title 
 with the consent of the owner." That 
 effect is shown by sect. 2 (1) of the 
 Factors Act, 18S9, which makes " any 
 sale, pledge or other disposition of the 
 goods," by a mercantile agent so in pos- 
 session, ' ' as valid as if he were expressly 
 authorised by the owner of the goods to 
 make the same." 
 
 It is submitted that neither s. 9 of 
 the Factors Act, nor s. 25 (2) of the 
 Sale of Goods Act, can properly be con- 
 strued as affecting the right to stop in 
 transit. If they are so construed, s. 10 
 of the Factors Act, and the proviso 
 to s. 47 of the Sale of Goods Act, 
 seem, unnecessary ; or they were only 
 necessary in order to give to other docu- 
 ments of title the same effect that biUs 
 of lading had. But for that purpose 
 they were misdrawn, and misleading, 
 if the earlier sections affected stoppage 
 in transitu. For they are narrower 
 in operation ; they require that the 
 buyer shall have been a transferee of the 
 document of title ; whereas the earlier 
 section in each case (in the same Act) 
 only requires that he shall have obtained 
 possession of it with the consent of the 
 seller. 
 
 Sect. 9 of the Factors Act, and sect. 
 25 (2) of the Sale of Goods Act, are only 
 operative by force of sect. 2 of the 
 Factors Act. That merely validates 
 dispositions of the goods made by a mer- 
 cantile agent " in the ordinary course of 
 business of a mercantile agent." It is 
 concerned with the title to the goods. 
 The defeating of the right to stop in 
 transit is outside its scope. For it 
 operates by validating, against the 
 owner, the sale, &c. of the goods by his 
 agent; whereas the sale, &c. of the 
 goods which defeats a vendor's right to 
 
608 
 
 THE DELIVERY. 
 
 Sect. 537. 
 
 Transfer of 
 bill of lading 
 ■without 
 assignment 
 of goods 
 insufficient. 
 
 Transfer must 
 he for value — 
 past debt 
 enough. 
 
 537. Also to defeat the vendor's right, the transfer of the bill 
 of lading must have been made with an intention of passing, and 
 so as to pass, the property in the goods, or some interest in them. 
 A transfer to agents to enable them to obtain and sell the goods is 
 not enough; even though those agents would have had a lien 
 on the goods, and on the proceeds of sale, for a balance due to 
 them, if the goods had in fact come to their hands. 
 
 In Patten v. Thompson (/) the buyers of a shipment of corn 
 indorsed and sent the bill of lading to their factors at the port of 
 discharge. They had been in the habit of consigning goods to the 
 factors for sale, and had also remitted bills to them and drawn upon 
 them, the account being a running account. No bills had been 
 drawn specifically against this corn nor had it been specifically 
 appropriated to any of the current bills. Before the corn arrived 
 both buyers and factors had failed, and the vendors claimed to stop 
 the goods. It appeared that, at the time of the transmission of the 
 bill of lading, and of the failure, the factors were under acceptances 
 for the buyers to an amount greater than the value of the bills and 
 goods remitted to them ; but that in consequence of their failure to 
 meet part of their acceptances, the balance turned the other way. 
 It was held that the vendor's right to stop the goods had not been 
 defeated. 
 
 Abbott, J., doubted, however, whether the factors would not 
 have been entitled to possession of the goods had they not become 
 bankrupt (g). 
 
 538. Again, the transfer must have been for value. But if 
 made to secure an already existing debt that wiU. suffice ; it is not 
 necessary that there should be a fresh advance (h). 
 
 stop in transit is made by the owner, and 
 needs no validation. Sect. 9of theFaotors 
 Act, and sect. 26 (2) of the Sale of Goods 
 Act, should then be read as merely vali- 
 dating a transferee's title to the goods ; 
 not as opening a new way of defeating 
 the unpaid vendor's right, wider than 
 that which is expressly preserved, in each 
 Act, by a 8ubsec[uent section on the 
 lines of the old law upon the subject. 
 
 To defeat the right to stop in transit 
 two things are necessary : a disposition 
 of the goods by the buyer, and a trans- 
 fer by him of a document of title. 
 Sects. 9 & 10 of the Factors Act, 1889 
 (following sects. 4 and 5 of the Factors 
 
 Act, 1877, and followed by sects. 25 (2) 
 and 47 of the Sale of Goods Act), seem 
 to have dealt with those two matters 
 separately : sect. 9 enabled the buyer to 
 make a disposition of the goods ; sect. 10 
 prescribed the conditions needful for 
 defeating a stoppage in transit by snch 
 a, disposition — it requires that a docu- 
 ment of title shall have been lawfully 
 transferred to him, and that he shall 
 have transferred that to his assigneee. 
 
 (/) 5 M. & S. 350. 
 
 (<?) 5 M. & S. at p. 367. 
 
 (A) Leask v. Scott, 2 Q. B. D. 376. 
 But of. Rodger v. Comptoir d'Esoompte 
 de Paris, L. R., 2 P. C. 393. 
 
STOPPAGE IN TEANSITU. 609 
 
 Also it must have been made in good faith ; and wit]jout notice Sect. 538. 
 
 of any circumstance which would render the transaction unfair. In good faith. 
 
 Where a transferee had taken the bill of lading knowing that the 
 
 gpods had not been paid for, and under an agreement which gave 
 
 him a partnership interest in them, it was held that he stood in the 
 
 same position as his transferor (i). 
 
 If a transferee knows at the time of the transfer that the trans- Notice of 
 ... 11. . 11 insolvenoy. 
 
 f eror is insolvent, it seems that he is put upon enquiry as to whether 
 
 the goods had been paid for ; and that he will not be permitted to 
 defeat the unpaid vendor, even though, in fact, he was ignorant 
 that the price had not been paid(/c). Mere knowledge that the 
 consignee has not paid for the goods in money, but has given bills 
 for them which have not matured, will not prevent the transferee 
 from claiming to have the goods as against the vendor ; unless he 
 also knew of other circumstances which "rendered the bill of 
 lading not fairly and honestly assignable " (l) : such as that " the 
 consignor by the terms of his deaUng with the consignee had bar- 
 gained for or expected that the payment should precede the assign- 
 ment of the bin of lading : " or that the bills given were not likely 
 to be paid (/). 
 
 If the bill of lading has been indorsed to the consignee of the 
 goods, subject only to a condition expressed in the indorsement, an 
 assignee of the bill of lading from him can only take it subject 
 to that condition (m). The assignment, therefore, does not defeat 
 the right to stop the goods unless the condition has been per- 
 formed. 
 
 539. It may be said that ordinarily an assignment of the goods. Is an asaign- 
 and transfer of the bill of lading, to defeat the vendor's right to notice to 
 stop them, must have been made before he has exercised that right. effeotu'alT 
 For he cannot exercise it until the vendee has become insolvent, 
 and an assigment by the vendee after his insolvency has become 
 known will generally be ineffectual to defeat the vendor. Still it 
 may happen that the assignee has taken without notice of the 
 vendee's insolvency, after the vendor had given notice to stop the 
 goods, and the question would then arise whether the fact that 
 the vendor had given notice would entitle him to the goods as 
 against the subsequent assignee. There does not seem to be any 
 
 (i) Salomons v. Nissen, 2 T. E. 674. („ fuming v. Brown, 9 East, 606. 
 
 (A) See Vertue v. Jewell, 4 Camp. 31 ; 
 Wright V. Campbell, 4 Burr. 2046. W Barrow v. Coles, 3 Camp. 92. 
 
 C. — C. R R 
 
610 THE DELIVERY. 
 
 Sect. 539. decision on the point ; but the considerations which have established 
 ' the general rule in favour of allowing the assignment to defeat 
 the vendor's right seem to apply to this case also. 
 Eight of 540. If the assignment of the goods and bill of lading has not 
 
 vendor sub- ° " i> -j. i i j 
 
 ject to pledge been absolute, but has been made by way ot security, to a pledgee 
 or mortgage. ^^ mortgagee, the vendor's right of stopping the goods in transit 
 continues, subject to the charge so created in favour of the pledgee 
 or mortgagee. When that has been paid off the unpaid vendor 
 stands in the same position as if there had been no transfer of the 
 bill of lading at all (m) ; and it is not necessary that he should 
 himself pay off that charge and obtain the right to possession of 
 the goods. If he has during the transit given due notice to stop 
 them, he will be entitled to claim upon the balance of their 
 proceeds in the hands of the pledgee or mortgagee, to whom 
 they have been properly delivered, and by whom they have been 
 sold (o). 
 
 The vendor, by his notice, regains his right to possession of 
 the goods, but subject to the pledge or mortgage. And in Ee 
 Westzinthus (p), it was held that he was entitled to require the 
 mortgagee to resort first to other goods of the vendee which had 
 been deposited with him and were available for the debt. 
 Right of 541. The doctrine thus established has been extended to the case 
 
 vendor where 
 
 sub-purchaser of a transfer of the bill of ladmg to a sub-purchaser of the goods 
 pai . ^j^^ j^^^ ^^|. ^^^^ £^^ them. It was held, that if the original 
 
 vendor duly gave notice to stop the goods, he was entitled to 
 require that the purchase-money due from the sub-purchaser 
 should be paid over to himself, so far as necessary to satisfy 
 his claim {q). 
 
 " I cannot distinguish the case from that of a mortgagee. If 
 surplus moneys remain in the hands of a mortgagee, all he gets is 
 satisfaction of the mortgage. If he sells the goods and pays 
 himself, and there is a balance in his hands, he must account for it. 
 In the one case the balance will be held subject to the right of the 
 vendor to stop in transitu ; in the other case, the whole purchase- 
 money will be equally subject to that right, to the extent of the 
 purchase-money due to the vendor " (r) . 
 
 («) Sale of Goods Act, 1893, s. 47. {p) 6 B. & Ad. 817. 
 
 In re Westzinthus, 5 B. & Ad. 817 ; (?) Ex parte Golding, Davis & Co., 
 
 Spalding :;. Ending, 12 L. J., Ch. 603 ; In re Knight, 13 Ch. D. 628. 
 
 Kemp V. Falk, 7 A. 0. 573. (,•) Per James, L. J., 13 Ch. D. at. 
 
 («) lii^- p. 635. 
 
STOPPAGE IN TRANSITU. 
 
 611 
 
 " Can the vendor make effectual his right of stoppage in transitu Sect. 541. 
 without defeating in any way the interest of the sub-purohaser ? 
 In my opinion he can. He can say, I claim a right to retain my 
 vendor's lien. I will not defeat the right of the sub-purchaser, 
 but what I claim is to defeat the right of the purchaser from me, 
 that is, to intercept the purchase-money which he will get, so far 
 as is necessary to pay me. That, in my opinion, he is entitled to 
 do, not in any way thereby interfering with the rights of the 
 sub-purchaser, but only, as against his own vendee, asserting his 
 right to resume his vendor's lien and to obtain payment by means 
 of an exercise of that right; interfering only with what would 
 have been a benefit to the vendee, who would otherwise have got 
 his purchase-money without paying for the goods, but in no way 
 interfering with any right acquired by the sub-purchaser of the 
 goods" (s). 
 
 This extension of the principle was approved by the Court of 
 Appeal in Ex parte Falk, In re Kiell {t). That case was taken 
 to the Hoiise of Lords on appeal (m) ; but, owing to a correction 
 which was made in the statement of facts, the point did not there 
 arise. 
 
 Lord Selborne, however, appears to have dissented from the 
 principle of Ex parte Gelding, Davis & Co., In re Knight (»). 
 He said («/) , "And against what is that right of stoppage in transitu ? 
 Not against some imaginary interest of the purchaser, but against 
 the goods themselves. It is a right to stop the goods ; and I have 
 no notion of any right of stoppage in transitu which is not a right 
 to stop the goods when they are still in transitu in contemplation 
 of law. * * 
 
 " I put, therefore, aside the whole argument founded upon the 
 existence of sub-purchasers. I assent entirely to the proposition 
 that where the sub-purchasers get a go.od title as against the right 
 of stoppage in transitu, there can be no stoppage in transitu as 
 against the purchase-money payable by them to their vendor ; at 
 all events, until I hear authority for that proposition, I am bound 
 to say that it is not consistent with my idea of the right of stoppage 
 in transitu, that it should apply to anything except to the goods 
 which are in transitu. But when the right exists as against the 
 
 («) Per Cotton, L. J., 13 Ch. D. at («) Kemp v. Falk, 7 A. C. 573. 
 
 p. 638. Ix) 13 Ch. D. 628. 
 
 (<) 14 Ch. D. 446. {i/) 7 A. C. p. 577. 
 
 K E 2 
 
612 THE DELIVERY. 
 
 Sect. 541. goods wMch are in transitu, it is manifest that all other persons 
 who have, subject to that right, any equitable interest in those 
 goods by way of contract with the original purchaser or otherwise, 
 may come in, and if they satisfy the claim of the seller who has 
 stopped the goods in transitu, they can of course have effect given 
 to their rights ; and I apprehend that a court of justice, in admi- 
 nistering the rights which arise in actions of this description, would 
 very often find that the rights of all parties were properly given 
 effect to, if so much of the purchase-money payable by the sub- 
 purchasers were paid to the original vendor as might be sufficient 
 to discharge his claim ; and, subject, of course, to that, the other 
 contracts would take effect in their order, and in their priorities." 
 Sale of Goods And now, by sect. 47 of the Sale of Goods Act, 1893, the unpaid 
 
 ^ct s 47. 
 
 ' ■ ■ seller's right appears to be definitely defeated where the re-transfer 
 has been by way of sale. 
 
OHAPTEE XYI. 
 
 FREIGHT. 
 
 613 
 
 SECT. 
 
 Meanings of " freight " 642 
 
 Payment on delivery implied — 
 
 Voyage must be la-wf ul '. . 543 
 
 Actual delivery not necessary .... 644 
 How long must owner be ready ?. . 545 
 Payment to be concurrently with 
 
 delivery 546 
 
 Prevention of voyage by causes 
 
 beyond owner's control 547 
 
 Inherent infirmity 648 
 
 Freight payable though goods 
 
 damaged — Test as to whether 
 
 they have lost their identity .... 549 
 
 Lump freights payable on delivery 
 
 of cargo — What cargo must be 
 
 delivered ? 550 
 
 Effect of delivering part cargo by 
 
 another ship 551 
 
 Lump sum payable on default of 
 a return cargo — No deduction 
 of freight earned from other 
 
 shippers 552 
 
 Lump freight, when due 553 
 
 When conipletion of voyage pre- 
 vented by freighter, full freight 
 
 payable , 554 
 
 If ship abandoned, freighter may 
 
 treat contract as at an end 555 
 
 Whole freight payable on captured 
 goods — Goods unloaded after a 
 
 recapture 656 
 
 Though voyage not completed, the 
 whole freight, or pro raid freight, 
 may be payable by implied agree- 
 ment i i 557 
 
 Christy v. Eow 558 
 
 Cases of ^TO rat& freight 559 
 
 The shipowner must have been in a 
 position to carry the goods on . . 560 
 
 Illustrations 661 
 
 Freight payable in advance must 
 be paid, though ship and goods 
 lost — Freight to be advanced " if 
 required "-^Advanced freight not 
 reclaimable , 562 
 
 SEOT. 
 
 Construction of contracts 563 
 
 Distinction between freight and 
 advances — Test of insurance .... 564 
 
 Deficiency of bill of lading freights, 
 payable in cash, due though 
 vessel lost 665 
 
 Effect of clause "subject to in- 
 surance " 666 
 
 Freight pay?.ble on "sailing" or 
 " final saiUng " 667 
 
 Ship must be seaworthy on sailing 
 or freight not payable if she be 
 lost 568 
 
 Freight partly in advance — Cargo 
 partly lost — Mode of ascertaining 
 balance to be paid 569 
 
 Time freights — When dependent on 
 arrival — " Monthly in advance " 570 
 
 Outward and homeward voyages — 
 Payment on " final discharge ". . 571 
 
 Meaning of ' ' month ' ' and ' ' calendar 
 month" 571a 
 
 Time occupied in repairs 572 
 
 Government charters — ' ' Inability 
 to execute or proceed " , 573 
 
 Hoio calailated and paid. 
 
 Where no rate stated 674 
 
 Freight free — Power of shipowner 
 to contract at nominal rates not- 
 withstanding mortgage 576 
 
 Measurement of goods for freight — 
 
 Lowest to be taken 676 
 
 Special agreements , 577 
 
 " Intake measure of quantity de- 
 livered" 678 
 
 Usages as to measurement 579 
 
 Ambiguity as to the mode of 
 
 measurement 680 
 
 Bill of lading quantity not conclu- 
 sive unless so agreed 581 
 
 Expense of measuring — Grain trade 582 
 Freights , payable according to 
 
 agreed scales 583 
 
 Lump sum freights S83a 
 
614 
 
 THE DELIVERY. 
 
 SECT. 
 
 Mode of payment — Custom of the 
 port of discharge — Payment by 
 bills 68i 
 
 Effect of taking a bill 585 
 
 Claims for damage may not be de- 
 ducted — Unless expressly agreed. 586 
 
 " Primage and average accus- 
 tomed" 587 
 
 To wlwm payable. 
 
 Generally to o-wner at time of con- 
 tract — Consignee may interplead. 688 
 
 Payment to master 589 
 
 Where there are several owners — 
 Eights of part owners inter se — 
 Mortgagee of shares 690 
 
 Upon sale of ship freight passes to 
 purchaser 591 
 
 S'reight belongs to mortgagee of 
 ship on his taking possession, but 
 not before 592 
 
 Charterer's right to deduct advances 
 as against mortgagee 693 
 
 Position of mortgagee subsequent 
 to the first 694 
 
 What is sufficient possession ? — 
 Mortgage of shares 595 
 
 SECT. 
 
 Assignment of freight — Several 
 assignees .... • 596 
 
 Priorities of assignees of freight and 
 assignees of ship 697 
 
 Set-off of consignee — ^Will not 
 defeat lien — Advances of char- 
 terer ; bottomry 598 
 
 Is owner or charterer entitled to 
 bill of lading freights 699 
 
 Eight of underwriters to freight 
 after abandonment 600 
 
 Proceedings in rem against freight 
 — Cargo may be arrested 601 
 
 Sy whom payable. 
 
 Primarily by shipper, where no 
 charter party — Shipowner may 
 lose his right of recourse 602 
 
 Liability of one who receives under 
 bill of lading 60v3 
 
 Liability by course of business , , , , 604 
 
 Effect of notice that receiver is an 
 agent only 606 
 
 Effect of Bills of Lading Act— Is 
 consignee liable for freight pay- 
 able in advance ? 606 
 
 Liability for charter party freight 
 — Cesser clause 607 
 
 Meanings 
 " freight.' 
 
 Wlien payable. 
 of 542. The remtmeratioii payable for the carriage of goods in a ship 
 is called fneight. Also, the same word is often used to denote a 
 payment made for the use of a ship. It is applied in hoth senses, 
 though objection has frequently been made to its use in the latter 
 sense. When a ship has been chartered to go on a specific voyage 
 for a lump sum, or to be at the disposal of the charterer at so much 
 a month, it might perhaps be more accurate to call the payment the 
 hire of the ship; but in practice the word "freight" is used. And 
 as the hire of a chartered ship is very commonly paid by a freight 
 in proportion to the goods carried under the charter party, it would 
 be difficult to say distinctly when the one word should be used, and 
 when the other. 
 
 But it is important to bear in mind that the word freight does 
 not always relate to the same sort of payment. For propositions of 
 law relating to freight in one sense, do not always apply to it in 
 the other. 
 
FREIGHT. 615 
 
 The remuneration for carrying the goods may be made payable Sect. 548. 
 either in advance, or upon delivery of the goods; and another 
 objection has frequently been raised, that the word "freight" 
 ought only to be applied to the remuneration when it is payable 
 for the safe carriage of the goods, upon their delivery («). We 
 shall hereafter discuss the differences in the law with regard- to pay- 
 ments upon delivery, and payments made, or agreed to be made, 
 in advance ; but, whether objectionable or not, the same word is, 
 in fact, used to describe them both. 
 
 It will be convenient to deal first with contracts under which the 
 freight is payable on delivery of the goods, leaving agreements for 
 payment in advance for subsequent discussion. Also, we will begin 
 with the more general case of freight payable in proportion to the 
 goods carried ; leaving out of consideration, for the present, cases 
 of lump freights, and time freights. 
 
 543. Where goods have been shipped without any bill of lading, Payment on 
 or special agreement, or where the bill of lading is silent as to the implied, 
 time for payment of the freight, the law implies that it is to be paid 
 upon delivery of the goods at the port of discharge. And, most 
 commonly, where a bill of lading is given, the express agreement 
 is that the payment is to be upon delivery. 
 
 In such cases the readiness to deKver at the port of discharge is 
 a condition precedent to the shipowner's right to have the freight. 
 Unless the goods have been carried to that port, and are there 
 ready to be delivered, the freight has not been earned. 
 
 And, whether the contract be express or implied, the voyage Voyage must 
 must have been a lawful one. If it was illegal no freight can be 
 recovered, although delivery may have been given. In MuUer v. 
 Gernon (5) an action was brought to recover freight on certain 
 brandies brought from France to this country, without a licence, in 
 1810. The cargo was, therefore, contraband. But the defendant 
 obtained permission from the Privy Council to have it landed upon 
 condition of his immediately exporting it again. It was held that 
 this permission did not make the voyage a legal one, so as to entitle 
 the plaintifE to claim freight (c) . 
 
 544. Actual delivery is not necessary; it is enough that the Actual 
 shipowner is ready to deliver, at the proper place ; the freight is neoessMy!" 
 
 (s) Kirohner v. Venus, 12 Moo. P. C. (c) So, also, Blanok v. Solly, 1 Moore, 
 
 361 ; Blakey v. Dixon, 2 B. & P. 321. 631. Cf. Waugh i,. Morris, L. E., 8 
 
 (J) 3 Taunt. 394. Q. B. 202 ; Aug. Carr. s. 400. 
 
616 THE DKLIVERY. 
 
 Sect. 544. then due. He may even be unwilling to deliver the goods upon 
 payment of the freight; for he may he entitled to other liens upon 
 them, as for demurrage, or general average. But he must he 
 •willing and able to deliver the goods on payment of his just 
 charges upon them before he can claim the freight {d) . " 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 
 subsfantially performed ; and according to the law of England, as 
 a rule, freight is earned by the carriage and arrival of the goods 
 ready to be delivered to the merchant " (e). 
 
 The arrival must be at the destined port, and generally it must 
 be at the usual discharging place for such a cargo at the port ; but, 
 as we have seen (/), delivery may sometimes, under special circum- 
 stances, he given at other than the usual discharging places, and 
 when that is so readiness to deliver there entitles the shipowner to 
 the freight (g). 
 
 In Stewart v. Eogerson (h) the charterers refused to name a dis- 
 charging wharf for the cargo, when the ship was ready and able to 
 deliver it. The Court inferred from this a refusal to accept and 
 pay freight on the cargo ; and held the charterer liable in damages 
 to the amount of the freight, although, owing to a subsequent 
 arrest of the cargo in a collision suit, the shipowner was not in a 
 position to deliver it. 
 
 In the Cargo ex Argos («) some barrels of petroleum were 
 shipped at London to be delivered at the port of Havre. In the 
 ordinary course they would have been delivered on the quay at 
 Havre, but for special reasons this was not allowed by the autho- 
 rities of the port; nor would they allow the petroleum to be landed 
 at Havre at all. The ship, however, was allowed to lie in the outer 
 harbour with the petroleum on board, and it was there discharged 
 into a lighter ; but no person presented the bill of lading or asked 
 
 (d) See Johnson v. Grreaves, 2 Taunt. but otherwise -vrhere a, reasonable time 
 
 344. had not elapsed : MoKee v. Hicksher, 
 
 («) Per "WHIes, J., in Dakin v. Oxley, 10 Daly, 393 ; Western Transp. Co. v. 
 
 33 L. J., 0. P. p. 119. Of. Gibbons t). Hoyt, 69 N. T. 230. So in Massa- 
 
 Buisson, 1 Bing. N. C. 283. In New ehusetts, Pay v. Alliance Ins. Co., 16 
 
 York it has been held that the freight is Gray, 455. 
 
 due when the ship has been ready to (yj ^„^„_ ghap. XIII. 
 deliver, and has tendered the cargo, 
 
 although ship and cargo have since been (^) ^^® TregUa v. Smith's Timber Co., 
 
 lost by a peril of the sea, if a reasonable ^ ^°™- ^^- ^^''■ 
 
 time for taking delivery had elapsed: W L. R., 6 C. P. 424. 
 
 Clendaniel v, Tucl^ennan, 17 Barb. 184 ; (j) L. K., 6 P. C. 134. 
 
FREIGHT. ^l'^ 
 
 for delivery, and it was, therefore, after four days, re-shipped and Sect. 544. 
 carried hack to London. It was held that the freight from London 
 to Havre was due from the shipper. The Court considered that 
 the means of performing the contract were not exhausted, nor the 
 contract dissolved, when it was found the ship could not be dis- 
 charged at the quay, and the cargo landed ; and that they ought 
 to hold that, the master being ready and able to deliver in the 
 harbour, and having kept the goods a reasonable time there for the 
 purpose, the freight had been earned (J). 
 
 545. As the shipowner must be ready and able to deliver in How long 
 
 • 11 • 1 f I'-iin ™ist owner 
 
 accordance with the contract m order to perfect his right to the remaia ready? 
 freight, it would seem that that right is only complete if he has 
 been ready to deliver the goods during the whole period allowed 
 by the contract to the consignee for taking delivery ; unless the 
 consignee has waived that obligation. If no period is fixed by the 
 contract, the consignee is entitled to a time which is reasonably 
 sufficient, having regard to the circumstances, and until that has 
 been given the freight has not in the ordinary case been earned. 
 
 In Duthie v. Hilton (k), casks of cement were shipped under a 
 bill of lading, which provided as follows : — " Freight to be paid 
 within three days after arrival of the ship, and before the delivery 
 of any portion of the goods specified in this bill of lading." On 
 the night after the ship's arrival a fire occurred on board, and she 
 Was scuttled to extinguish it. The cement was thus destroyed. 
 Held, that the freight upon it was not payable. 
 
 Brett, J., said: "Under an ordinary bill of lading, the shipowner 
 is not entitled to claim freight unless the goods have arrived, and 
 he is ready and willing to deliver them. Here there is an altera- 
 tion in that part of the contract ; and the question is, how far it 
 departs from the accustomed form. It seems to me that the ordi- 
 nary contract was intended to exist during the three days after the 
 arrival of the vessel with the goods on board. If the freighters 
 within the three days demanded the goods and tendered the 
 freight,, the shipowners would be bound to deliver them. But, 
 after the expiration of the three days, I incline to think that the 
 ordinary state of things would be altered, and that the shipowner 
 might sue for the freight without averring readiness and willing- 
 ness to deliver." 
 
 (j) L. E., 5 P. C. at p. 163. Cf. The Diana, 5 C. Eob. 67. 
 Teutonia, L. E., 4 P. C. 171 ; Tlie (A) L. E., 4 C. P. 138. 
 
618 
 
 THE DELIVERY. 
 
 Sect. 546. 
 
 Payment to 
 be concur- 
 rently witli 
 delivery. 
 
 Prevention of 
 voyage by 
 causes beyond 
 owner's con- 
 trol. 
 
 546. Where the freight is payable on delivery the consignee 
 should he ready to pay it without delay, concurrently with a deli- 
 very of the goods. He must, if required, pay upon them as they 
 are delivered. He cannot require the whole parcel included in the 
 bill of lading to be discharged before making any payment (^). 
 " Where the cargo is of such a nature that there must be a series 
 of deliveries, the law will not, I think, consider it as one transac- 
 tion, having regard to the state of circumstances. After part of 
 this cargo had been delivered, the master said, ' Pay me for it, and 
 I will deliver the rest.' He did not stand upon his right to refuse 
 to deliver before payment of the freight, but did the first act. The 
 contract of the charter party is to receive the goods simultaneously 
 with payment of the freight, and the defendants have agreed to 
 perform that duty. By not doing so they have broken their con- 
 tract, and must compensate the plaintiff for the damage which 
 they have occasioned to him " (»?). 
 
 In Paynter r. James (m), it was contended that "on right 
 delivery" was equivalent to "after right delivery," but that con- 
 struction was rejected. Payment and delivery are to be concurrent 
 acts to be performed as simultaneously as the nature of the acts 
 will admit of. " Where two acts are to be concurrent, there must 
 be a concurrent readiness on both sides — on the one to deliver, 
 and on the other to pay. Each party is entitled to see that the 
 other is ready to do his part, and it is for the jury to say which is 
 in default" (o). 
 
 Ordinarily the consignee must tender the freight before he is 
 entitled to the goods. But the need of a tender will be waived if 
 the master claims to hold the goods, in such a manner as to show 
 that it would be of no avail to tender what is actually due. And 
 that may be so, although the consignee also was wrong, as by being 
 willing only to pay a smaller sum than really was due (p). 
 
 547. If the shipowner has been prevented from carrying the 
 goods to their destination, although by causes which he could not 
 control, he cannot claim any part of the freight ; for he has not 
 earned it. That is so whether the preventing causes are phy- 
 
 W L. E., 2 0. P. 348. 
 
 {!) MoUer v. Toung, 24 L. J., Q. B. 
 217 ; reversed on another point, 26 L. J., 
 Q. B. 94 ; Black ». Eose, 2 Moo. P. C, 
 N. S. 277; 11 L. T., N. S. 31. 
 
 (in) Per Erie, J., Mbller v. Toung, 24 
 L. J., Q. B. p. 221. 
 
 (o) Per Montague Smith, J., L. E., 2 
 C. P. p. 357. Cf. Vogeman v. Bisley, 
 2 Com. Ca. 81. 
 
 ip) The Norway, 13 L. T., N. S. 60. 
 
PEEIGHT. 619 
 
 sical (q), or arise from an interference of enemies {r), or of Govern- Sect. 547 
 ment, whether British or foreign (s). Nor does it afEeot the matter 
 that the causes were perils excepted by the contract. 
 
 " The shipowners undertake that they will carry the goods to 
 the place of destination, unless prevented by the dangers of the 
 seas, or other unavoidable casualties ; and the freighter undertakes 
 that if the goods be delivered at the place of their destination he 
 win pay the stipulated freight : but it was only in that event, viz., 
 of their deKvery at the place of destination, that he, the freighter, 
 engages to pay anything. If the ship be disabled from completing 
 her voyage, the shipowner may still entitle himself to the whole 
 freight, by forwarding the goods by some other means to the place 
 of destination ; but he has no right to any freight if they be not 
 so forwarded, unless the forwarding them be dispensed with, or 
 unless there be some new bargain upon this subject. If the ship- 
 owner-will not forward them, the freighter is entitled to them 
 without paying anything. One party, therefore, if he forward 
 them, or be prevented or discharged from so doing, is entitled to 
 his whole freight ; and the other, if there be a refusal to forward 
 them, is entitled to have them without paying any freight at aU. 
 The general property in the goods is in the freighter ; the ship- 
 owner has no right to withhold the possession from him unless he 
 has either earned his freight, or is going on to earn it. If no 
 freight be earned, and he decline proceeding to earn any, the 
 freighter has a right to the possession " (t). 
 
 The same is true where the goods have been sold or left at a 
 port of refuge, whether in consequence of their damaged condition, 
 with a view to save their value («), or to enable the master to raise 
 necessary funds for repairs in order to complete the voyage («). 
 
 But the fact that some portion of a parcel of goods has been lost 
 or not delivered does not generally affect the shipowner's right to 
 freight on the remainder. 
 
 548. In the same way it seems clear that if goods cannot be Inherent 
 carried to the end of the voyage on account of their own infirmi- 
 
 (q) Cook V. Jennings, 7 T. E. 381 ; (*) Per Lord Ellenlborougli in Hunter 
 
 Metcalfe v. Britannia Ironworks Co., 1 v. Prinsep, 10 East, 378, at p. 394. Cf. 
 
 Q. B. D. 613 ; 2 Q..B. D. 423. The Teutonia, L. E., 4 P. C. 171. 
 
 , (r) Liddard v. Lopes, 10 East, 526 ; («) Vlierboom- v. Chapman, 13 M. & 
 
 CurUng V. Long, 1 B. & P. 634. W. 230 ; Hillj;. Wilson, 4 C. P. D. 329 ; 
 
 (s) Osgood V. Groning, 2 Camp. 466 ; The Industrie, (1894) P. 58. 
 Birley v. Gladstone, 3 M. & S. 205. {vy Hopper v. Burness, 1 C. P. D. 137. 
 
620 THE DELIVERY. 
 
 Sect. 548. ties, but have to be destrojed, sold or abandoned on tbe way, the 
 freight on them does not become payable under the ordinary con- 
 tract, or under the contract which is implied by law in the absence 
 of express agreement {x). So that, for example, freight would 
 not be payable upon animals which died during a voyage and 
 were thrown overboard. Nor, ■probably, would it be payable 
 although the carcasses were carried to the destination ; for the 
 thing for the carriage of which freight was to be paid was the 
 living animal. 
 
 It has, indeed, been said that if there is no express agreement 
 showing whether the reward is to be paid for lading, or for trans- 
 porting the animals, freight must be paid for the dead as well as 
 the living ; though if the agreement were to pay for transporting, 
 the freight would not be payable on those that have died during 
 the voyage (y) . But this seems to contradict the ordinary impli-i 
 cation, by which, when goods are shipped without any express 
 agreement, the contract is regarded as one for the transportation 
 of the goods, and freight on them is only to be paid if that is 
 accomplished. 
 
 Freight pay- 549. On the other hand, if the thing agreed to be carried has 
 goods in fS'Ct been brought- to its destination, and is there ready to 
 
 damaged. |jg delivered, it is no answer to a claim for freight that it is 
 damaged or deteriorated, and not in the condition in which it 
 was when shipped. Even though the damage is so great that the 
 thing is not worth the freight payable upon it (2) ; and though 
 that damage has arisen owing to the fault of the master and 
 crew (s). The consignee may be in a position to make a claim 
 for the damage done, but the freight is due in full to the ship- 
 owner (a) . 
 
 The question whether the thing, or how much of it, is to be 
 considered to have arrived for this purpose, is sometimes difficult 
 to answer; no definite rules about it have been laid down {b). 
 
 "In the case of an actual loss or destruction by sea-damage of so 
 much of the cargo that no substantial part of it remaius, as if 
 
 (ic) ButseeMaclachlaii(3rd), 468, 470. Shields v. Davis, 6 Tauu. 65; Hotham 
 
 ■ (y) Abbott(oth), 274; Macl. (3rd), 468, »• East Tndia Co., 1 Doug. 272. 
 
 citing Dig. 14, 2, 10 ; Eoccus, not. 76, ^"^ ^^- ^^^^"^ "■ ^^^^^^r, 33 L. J.y 
 
 77, 78 ; MoUoy, bk. 2, ch. 4, s. 8. See ' ^^^^ g^^^^^ ^^^j^ authorities coHected 
 
 Aug. Carr. s. 394. in Abbott (5th), 292 et aeq. ; (13th), 676 ; 
 
 («) Dakin v. Oxley, 33 L. J., C. P. 116 ; Macl. (3rd), 471 et aeq. 
 
FEEIGHT. 621 
 
 sugar in mats, shipped as sugar and paying so much per ton, is Sect. 549. 
 washed away, so that only a few ounces remain, and the mats are 
 worthless, the question would arise whether, practically speaking, 
 any part of the cargo contracted to be carried has arrived. Such 
 a case seems to be within the principle of the French Ordinance, 
 and the second clause of Article 310 of the Code de Commerce, 
 though they are both in terms confined to the case of liquids 
 where all or nearly all has leaked out, so as to iuolude molasses 
 but not sugar. Pothier, Sur la Chartepartie, sect. 60 (4th vol. of 
 Pothier's works by Bugnet, p. 404), deals with these as cases in 
 which the thing contracted to be carried has perished before 
 arrival. The Spanish Code de Commerce, Article 790, after 
 enacting that the shipowner cannot be compelled to receive the 
 cargo, whether damaged or not, in payment of the freight, arbi- 
 trarily lays down, as to liquids of which more than half has been 
 lost, that the merchant may abandon the rest for the freight. A 
 reference to these provisions is enough to show that the task of 
 finding a uniform rule in modem commercial law is at present 
 impossible. 
 
 " Where the quantity remains unchanged, but by sea-damage 
 the goods have been deteriorated in quality, the question of 
 identity arises in a different form, as, for instance, where a valu- 
 able picture has arrived as a piece of spoilt canvas, cloth in rags, 
 or crockery in broken sherds, iron all or almost all rust, rice 
 fermented, or hides rotten. 
 
 " In both classes of cases, whether of loss of quantity or change Test aa to 
 
 T , , 1 J. 1 ii • i whether they 
 
 in quality, the proper course .seems to be the same, viz., to ascer- have lost their 
 tain from the terms of the contract, construed by mercantile usage, ^^®'^*^*y- 
 if any, what was the thing for the carriage of which freight was 
 to be paid, and, by the aid of a jury, to determine whether that 
 thing, or any and how much of it, has substantially arrived" (c). 
 
 In Duthie v. Hilton {d), it was held that freight was not pay- 
 able upon casks of cement which had been submerged ; the cement 
 no longer existed as cement, being hardened into solid masses by 
 the action of the water, and this also involved the destruction of 
 the casks in which it was packed. On the other hand, in Grarrett 
 V. Melhuish (e), it was held that freight was payable upon a cargo 
 
 (c) Per Willes, J., in Dakinii. Oxley, /„\ ^ t _ -kt a n<-> oi. 
 
 33 L. J., C. P. 119, 120. ^'^ * ^""•' ^- ^- '*^' ^*^^""« °° 
 
 (<?) L. E., 4 C. P. 138, Stowage {5th), p. 330, 
 
622 THE DELrVEEY. 
 
 Sect. 549. of bricks whicli had been crushed up by heavy machinery stowed 
 on top of them. 
 
 In Asfar v. Blundell (/), the Court of Appeal, affirming 
 Mathew, J., held that destruction of the merchantable character of 
 the goods was sufficient to extinguish the liability for the freight 
 upon them. The ship, carrying dates, had been sunk in the 
 Thames, and the dates were saturated with water and sewage 
 matters. They were condemned as unfit for human food, and 
 were unmerchantable as dates ; but they were valuable, and had 
 been sold for a considerable sum for distilling purposes. No 
 freight was payable. Lord Esher said that the test is whether 
 " the nature of the thing is altered, and it becomes for business 
 purposes something else, so that it is not dealt with by business 
 people as the thing which it originally was." 
 
 In Dickson v. Buchanan (g), a ship carrying some wire fencing 
 from Liverpool for Brisbane put into Falmouth, as a port of refuge, 
 after a collision. The wire was found to be damaged ; and it was 
 given up to the shipper on his imdertaking to pay freight for the 
 voyage if he would be legally liable. It was found that most of 
 the wire could only be used as scrap iron, and that if carried on 
 it would have rusted to such an extent as to be neither wire nor 
 scrap iron when it reached Brisbane. The remainder of the wire 
 could be made serviceable by a treatment more costly than the 
 result would be worth, but only for small articles, not as fencing 
 wire. 
 
 Lord Shand held that no freight was payable ; on the ground 
 that there had been either an actual or a constructive total loss 
 of the goods. If they had been forwarded without being first 
 subjected to treatment they would have arrived at Brisbane as rust, 
 or at best, as to a small part, as scrap iron. While as to so much 
 as was capable of treatment, the process would not have restored it 
 to the condition of fencing wire, and its cost would have exceeded 
 the value of the goods. 
 
 In Moorsom t\ Page (h) an attempt was made to avoid payment 
 of freight on the damaged outside skins in which packages of 
 hides were contained ; but Lord EUenborough held that there was 
 no ground for exempting them. 
 
 (/) (1896) 2 Q. B. 196; (1896)1 Q.B. {>/} 13 So. L. E. 401. 
 
 123. {h) 4 Camp. 103, 
 
FREIGHT, . 623 
 
 550. Next as to charter parties which provide that payment Sect. 550. 
 shall be made for the use of the ship by a lump freight for the Lump freights 
 voyage, to be paid on delivery of the cargo. deUvery of 
 
 If the ship fails to complete the voyage, and the cargo is not °^^s°- 
 delivered at the agreed destination, the freight does not become 
 payable (i). But where the ship arrives without bringing in the 
 whole agreed cargo, a question arises as to how far delivery of that 
 forms a condition precedent to the right to the lump freight, and 
 as to whether that freight can be under any circumstances appor- 
 tioned. 
 
 In the first place, the " cargo " delivered need not necessarily be What cargo 
 that agreed to be loaded under the charter party.. A short cargo, delivered, 
 or a different cargo, may in fact have been loaded ; and whether 
 that was due to a default of the charterer, or to acts or defaults of 
 the shipowner, or to perils excepted by the charter, the fact is no 
 valid answer to a claim for the freight. The whole lump freight 
 is still payable, though the charterer may be entitled to counter- 
 claim for damages (k). 
 
 Nor does the " cargo " necessarily mean that which has been 
 shipped. Por if part has been lost on the voyage {I), or jettisoned, 
 or sold (to), the lump freight is still payable, without deduction, on 
 delivery of the remainder. " It does not mean the cargo she has 
 shipped, but which she is not bound to deliver, which the shipowner 
 is excused from delivering. It means the right delivery of the 
 cargo which is to be delivered, not the right delivery of the cargo 
 which was originally shipped on board of her " (n). 
 
 Further, the above proposition seems to be true, although the 
 loss of part of the cargo has been due to causes for which the 
 shipowner is answerable. In The Norway (o) Dr. Lushington held 
 that part of the cargo had been improperly jettisoned, and another 
 part of it sold at a port of refuge under circumstances which made 
 the shipowner responsible, and he therefore ordered that a 
 deduction should be made from the agreed lump freight in pro- 
 portion to the goods so jettisoned and sold. 
 
 (i) Crozier v. Smith, 1 M. & G. 407. (»«) The Norway, 1.3 L. T., N. S. SO. 
 
 (A) See Eitohie i;. Atkinson, 10 East, ^^^ p^^ Bramwell, B., in Merchant 
 
 295 ; Blanchet v. Powell's LlantiTit „, . . „ . . ■.■•,, 
 
 Colliery Co., L.E., 9 Ex. 74. Shipping Co. v. Armitage, L. E., 9 
 
 (I) Merchant Shipping Co. v. Armi- Q- B- »* P- HO. 
 tage, li. K., 9 Q. B. 99 ; Robinson v. (o) Br. & Lush. 226 ; 13 L. T., N. S.. 
 
 Knights, L. K., 8 C. P. 465. 50. 
 
624 
 
 THE DELIVERY. 
 
 Sect. 550. 
 
 Effect of de- 
 livering part 
 cargo by 
 another ship. 
 
 The Privy Council reversed this order, holding that the ship- 
 owner was not responsible for the jettison or for the sale. But 
 they further said, " It is right to add that we db 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 have 
 been a deduction. Perhaps, in this case, the proper remedy of 
 the shipper would have been by cross action " (p). 
 
 In Merchant Shipping Company v. Armitage (q), Bramwell, B., 
 put as an illustration the case of a loss of part of the cargo by a 
 theft of one of the crew, and was plainly of opinion that that 
 would not work a forfeiture of the freight ; but that the freight 
 must be paid and the shipper left to his remedy by cross action. 
 
 It seems, then, that the right to payment of the whole lump 
 freight is not conditional upon a delivery of a full cargo, even 
 though the shipowner received and was bound to deliver a full 
 one. 
 
 Whether it is a necessary condition that so?ne part of the cargo 
 shall have been delivered does not appear to have been decided. 
 But as the freight in these cases is really " in the nature of a rent 
 to be paid for the use and hire of the ship on the agreed 
 voyages" (r), it might well be contended that it is payable if she 
 completes the voyage, whether with or without the cargo. The 
 words which make the freight payable on deKvery of the cargo 
 might be read as fixing the point of time for payment, in the 
 event that is expected to happen, and not as establishing a condi- 
 tion precedent (s). 
 
 551. In Mitchell r. Darthez {t), the vessel failed to complete the 
 voyage, and it was held that the lump freight, payable on delivery, 
 could not be recovered, although part of the cargo was sent on, and 
 arrived at the intended destination. 
 
 But it appeared in that case that this part cargo had been for- 
 warded on behalf of the cargo owners, and at their expense ; and 
 Tindal, C. J., who gave the judgment of the Court, seems to have 
 considered that the charter freight would have been payable, had 
 the master forwarded the goods, on behalf of the shipowner. The 
 
 (p) 13 L. T. at p. 52. 
 (q) L. E., 9 Q. B. 99, at p. 111. 
 (r) The Norway, 13 L. T., N. S. at 
 p. 52. 
 
 (s) But see per Bramwell, B., in 
 
 Merchant Shipping Co. v. Armitage, 
 L. B,., 9 Q. B. at p. 111. Cf. The 
 Queensmore, 63 Fed. Eep. 1022. 
 ■ {t) 2 Bing. N. C. 656 ; cited post, 
 B. 569. 
 
FREIGHT. 625 
 
 question, however, whetlier the whole lump freight can be earned Sect. 551. 
 
 by delivering part of the cargo by another ship is, perhaps, open to 
 
 doubt. 
 
 652. Bell V. PuUer (u) illustrates another kind of charter at a Lump sum 
 
 payable on 
 lump freight. The ship was let and hired to freight, for a voyage default of a 
 
 to Petersburg and back to London. She was to take out 150 tons ^® "^ <^B.Tgo. 
 
 of lead, and bring back a return cargo for the charterers ; and the 
 
 freight was to be paid at a fixed rate on delivery of the return 
 
 cargo. But it was provided that if political or other circumstances 
 
 should prevent the shipment of a return cargo, or the discharge of 
 
 the outward cargo, the ship should remain at Petersburg, or in the 
 
 Baltic, forty days ; and the charterers covenanted that after she had 
 
 so remained "without such outward cargo being unloaded, and 
 
 consequently without the return cargo being loaded," she should be 
 
 at liberty to return to England, and that they would then pay a 
 
 lump sum of 2,700^. with primage and gratuity. 
 
 The vessel was not allowed by the Eussian Q-overnment to disr 
 charge the lead ; and after waiting the forty days, and failing to 
 get a return cargo from the charterers, the master sailed to Stock- 
 holm, and took ia goods on freight from other persons, and some 
 on his own account. On arrival in England he delivered the lead 
 to the charterers. It was held that they must pay the full agreed No deduction 
 lump freight, &c., without deducting anything in respect of the eamed^from 
 freight earned on the goods brought from Stockholm. othershippers. 
 
 553. The time at which a lump freight, payable on delivery, Lumpfreight, 
 becomes due from the charterer, appears to be when the cargo which ^ ^ "^ ' 
 has arrived has been completely delivered (a;). That at least was 
 held to be the case where by the charter party the master was to 
 sign bills of lading at any rate of freight if required, and those 
 freights were to be collected by the charterers (y). " On principle 
 we conceive that the freight cannot be due from the charterers on a 
 charter party, such as the present, until they have had the full user 
 of the ship for the purposes for which they chartered it. It is, in 
 fact, analogous to the demise of property until a given purpose is 
 answered : the purpose in this case being, first the outward voyage ; 
 second, the taking in of a complete cargo at such profit freight as 
 
 (m) 2Taun. 285. Of. PuUer ». Stani- the cargo for the lump freight, see 
 
 forth, 11 East, 232; and Stanif orth ». Ch. XVIII. 
 
 LyaU, 7 Bing. 169, infra, s. 721. (j^) Brownr. Tanner, L. R., 3 Ch. 597. 
 
 {x) As to the shipowner's lien on Cf. Fen-wick v. Boyd, 15 M. & W. 632. 
 
 c. — c. s s 
 
626 
 
 THE DELIVERY. 
 
 Sect. 553. 
 
 When com- 
 pletion of 
 voyage pre- 
 vented by 
 freighter, 
 full freight 
 payable. 
 
 the charterers may be ahle to obtain above the freights they have 
 agreed to pay the owner ; and third, the delivering of the cargo to 
 the consignees by the charterers " (s). 
 
 554. If the shipowner has been prevented from completing the 
 voyage by an act or default of the charterer or cargo owner, he will 
 be entitled to the fuU freight, although by the contract completion 
 of the voyage, and delivery at the destination, were conditions 
 precedent (a). 
 
 In The Cargo ex Galam (6), goods upon which a respondentia 
 bond had been granted, payable after arrival at Falmouth, were 
 shipped under a charter party. On the voyage the ship was driven 
 ashore at SeiUy, and it became necessary to land and store the 
 cargo. As the cargo owner proposed to alter the voyage by making 
 the ship proceed direct to Hamburgh, an action was brought by 
 the holders of the bond, and the cargo was arrested in SciUy. It 
 was found by the Court that the intention to carry on the cargo 
 and earn the freight was not abandoned; but the cargo owner 
 refused to appear in the proceedings, and persisted in ordering the 
 ship to carry the goods to Hamburgh direct. The action went on, 
 and an order was made by the Admiralty Court for the removal 
 of the cargo to London for sale ; and accordingly it was brought 
 there, and sold. London was not one of the ports to which the 
 cargo might have been taken under the charter. Under these 
 circumstances, it was held by the Privy Council, reversing the 
 decision of Dr. Lushington, that the orders of the Admiralty 
 Court, occasioned by the default of the cargo owner, made it 
 impossible to carry the cargo anywhere but to London ; and that 
 as those representing the ship had thus been prevented from com- 
 pleting the voyage, they were entitled to claim their freight (c). 
 
 In The Soblomsten [d), the vessel and cargo were arrested at 
 Great Grimsby in a salvage suit. The ship was surveyed, and 
 found not worth repairing, and was therefore abandoned by the 
 master and crew. The owners of the cargo did not procure the 
 release of the cargo, though they had notice that, if not released, 
 it would be sold by order of the Court ; and it was consequently 
 
 (z) L. E.,3C!h. atp. 603. 
 [a) But see Smith v. WUson, 8 East, 
 437. 
 (J) 33 L. J., Ad. 97. 
 
 («) Cf. Lutwidge v. Grey, cited post, 
 s. 659 ; Osgood v. Groning, 2 Camp. 
 466; The EHza lines, 61 Eed. Eep. 
 308, infra, s. 561. 
 
 W L. R., 1 A. & E. 293. 
 
FEEIGHT. 627 
 
 sold. Dr. Lushington said : " It might possibly be argued that ^° " 
 the conduct of the owners of the cargo in not bailing the cargo, 
 but allowing it to be sold, prevented the master from fulfilling 
 his contract to carry the goods to their destination, and so .earning 
 his full freight. But freight pro raid is all which is asked by this 
 motion, and I think that the conduct of the owners of the cargo 
 amounts to a waiver by them to have their cargo from Great 
 Grimsby to Bordeaux, and does raise an implied promise that they 
 would pay a pi-o raid freight." 
 
 In Blasco v. Fletcher (e), a claim arose against freighters for 
 preventing the completion of the voyage under peculiar circum- 
 stances. The vessel sailed from Liverpool, and got ashore on the 
 Irish coast ; the vessel and cargo were both saved, but in a damaged 
 state ; and the master telegraphed for one of the charterers named 
 Sparks. He came over to act for the cargo owners ; and was 
 requested by the master to act also on behalf of the owners of the 
 vessel to the best of his judgment and ability. Under this 
 authority, Sparks paid the salvage, incurred expenses in taking 
 the vessel to Dublin, with a view to her repair, and also engaged 
 a vessel to take part of the cargo back to Liverpool, to have it 
 dried. This cargo was found to be much damaged, and in such 
 a state that it would get worse if kept ; it was accordingly sold, 
 and the jury found that that was a reasonable course to take, 
 having regard to the interests of all the parties concerned. In the 
 meantime, however, the shipowners had claimed that these goods 
 should be detained, in order that the vessel might carry them on 
 the agreed voyage ; and after the sale, an action was brought for 
 preventing the completion of the voyage, and for the freight. It 
 was held, that what had been done was within the authority given 
 to Sparks to act on behalf of the shipowners; and that that 
 authority could not be countermanded after it had been acted 
 upon, and expenses incurred under itt 
 
 555. Where a ship has been definitely abandoned at sea, by the H ship 
 
 .,,,, abandoned, 
 
 master and crew, without any mtention of commg back to her, freighter may 
 the freighter is entitled to treat the contract of carriage as aban- -^^^^ aiTend! 
 doned. So that if the ship, or the cargo, be afterwards brought 
 into port by salvors, the cargo owners may claim to have their 
 goods without paying any freight; even though the shipowner 
 
 (e) 32 li. J., 0. p. 284. 
 
 ssS 
 
628 THE DEIilVEEY. 
 
 Sect. 555. is ready, and demands to be allowed to take them on to their 
 destination (/). 
 
 Whole freight 556. Another illustration of the rule that the freight is payahle 
 
 capkired'" if the freighter prevents the completion of the voyage is to he 
 
 goods. found in cases where, in time of war, enemy's goods have heen 
 
 captured in neutral ships and condemned. The captors were made 
 
 to pay full freight on the goods. " If a neutral vessel, having 
 
 enemy's goods, is taken, the captor pays the whole freight, because 
 
 he represents the enemy by possessing himself of the enemy's 
 
 goods jure belli; and although the whole freight has not been 
 
 earned by the completion of the voyage, yet, as the captor by his 
 
 act of seizwQ has prevented its completion, lim seizure shall operate to 
 
 the same effect as an actual delivery of the goods to the consignee, 
 
 and shall subject him to the payment of the full freight " {g). 
 
 Goods un- Cases of recapture, in which full freight has been allowed on 
 
 recapture. cargo unloaded after the recapture by order of the Court, seem to 
 
 have been decided on similar grounds. The default or misfortune 
 
 of the cargo owner has prevented the master from completing the 
 
 voyage (A). 
 
 In The Fortuna (i). Sir W. Scott said the owner "could have 
 no right but upon an entire execution of the contract, or such an 
 execution as he could effect consistently with the incapacities under 
 which the cargo might labour. Where such an incapacity on the 
 part of the cargo occurs, he has done his utmost to carry the 
 contract on to its consummation ; it is a final execution as to the 
 owner of the ship, inasmuch as it does not lie with him that the 
 contract is not performed. On the other hand, where the vessel 
 itself is incapacitated, no right accrues to her owner ; he can have 
 no right to demand that for which he stipulated only on the per- 
 formance of his engagement. The general principle has been 
 stated very correctly, that where a neutral vessel is brought in, on 
 account of the cargo, the ship is discharged with full freight, 
 
 (/) The Amo, 72 L. T. 621 ; The Eising Sun, 2 C. Rob. 104 ; The Sarah 
 
 Cito, 7 P. D. 5 ; The Kathleen, L. R., Christian, 1 C. Eob. 237 ; The Mer- 
 
 4 A. & E. 269. See supra, a. 308. curius, ibid. 288 ; The Atlas, 3 0. Eoh. 
 
 (g) Per Sir W. Scott in The Copeu- 299, 304 n. 
 
 hagen, 1 C. Eob. 289. The freight was W The Eaoehorse, 3 0. Eob. 101 ; The 
 
 not, ho-wever, allowed by the Prize Court Martha, ibid. 106 (n.) ; The Hoffnung, 6 
 
 where there had been unfair conduct on C. Eob. 231. Cf. Luke v. Lyde, 2 Burr, 
 
 the part of the vessel : as by using false 882 ; The Weddsborgaren, 4 C. Eob. 17. 
 
 papers, or carrying contraband. The (i) Ed'*'. Ad. 66. 
 
FEEIGHT. 6^9 
 
 because no blame attaches to her ; she is ready and able to proceed Sect. 556. 
 to the completion of the voyage, and is only stopped by the 
 incapacity of the cargo." 
 
 657. Again, although the ship may fail to complete her voyage, Thougli 
 and though the goods may not be brought to their destination, the completed, 
 whole, or some part of the freight, may be payable by express or i,.^iXt°oi m-o 
 implied agreement. ^"''^ freigM, 
 
 . , ™ay be pay- 
 
 The cargo owner may take delivery of the goods at a different able by 
 place from that originally agreed, under circumstances which show agreement, 
 that that was intended to be treated as a substituted performance 
 of the contract. In that case the full freight becomes payable. 
 
 Or delivery may be taken at a port of refuge, in order that the 
 owner of the goods may himself carry them on, or may deal with 
 them in some way other than that contemplated by the contract ; 
 the shipowner giving up his right to take them on, and earn the 
 full freight. In such cases a promise may sometimes be presumed 
 on the part of the cargo owner to pay a part of the freight propor- 
 tionate to the portion of the voyage which had been accomplished — 
 a freight ^ro raid itineris peraeti. 
 
 558. In Christy v. Ilow(/i;), a cargo of coals was shipped at Christy f. 
 Shields to be delivered at Hamburgh, the defendant to pay in full 
 
 for the freight of the ship for the voyage after the rate of 201. per 
 keel, on the delivery of the cargo. On the way, at Cuxhaven, the 
 ship was stopped by the British naval commander, as the French 
 forces were then approaching Hamburgh. The master sent word 
 to the consignees of the cargo at Hamburgh, and they wrote 
 reijuesting him " to sail as far as Grluckstadt where they would 
 send him lighters." He did so, and delivered part of his cargo 
 there into the lighters sent ; but before all had been delivered, the 
 ship was ordered to leave the place, and she returned to Cuxhaven, 
 and afterwards to Shields, without delivering any more of the 
 cargo. In an action for the freight the plaintiff was allowed to 
 recover freight, at the full rate of 20/. a keel, upon what had been 
 delivered at Grluckstadt, but no more. 
 
 559. The following are cases in which a proportion of the whole Cases ol pro 
 freight has been allowed : — '^'^ ^^^^ 
 
 In Lutwidge v. Grey (1), decided by the House of Lords in 
 1733, a ship had been chartered for a voyage from Glasgow to 
 
 {k) 1 Taun. 300. (?) Cited in Abbptt (Sth), 307 ; (13th), 691 ; Ma«l. (3rd), 479, 
 
630 THE DELIVERY. 
 
 Sect. 559. Virginia and back ; freight to he paid for the homeward cargo at a 
 certain rate per ton of tobacco ; half to be paid immediately after 
 the ship's discharge at Grlasgow, and the other half within six 
 months after. The ship was wrecked on her return voyage at 
 Youghall on the coast of Ireland ; but part of the cargo was saved. 
 Lutwidge, the shipowner, informed the charterers, Gbey & Co., 
 that he should provide another vessel to bring this on. But Grey 
 & Co. abandoned so much of the saved cargo as belonged to them 
 to their insurers, indorsing the bills of ladiag to them ; and they 
 took those goods to Bristol. Lutwidge provided a vessel to bring 
 on the remainder, but the owners of it refused to deliver it on 
 board her, because the master would not give bills of lading to 
 deliver it at Glasgow, nor would he bind himself to deliver it 
 there ; he only offered receipts which would oblige him to deliver 
 in Great Britain. The owners of these goods, therefore, themselves 
 forwarded them to Glasgow. 
 
 The House of Lords, on appeal from the Court of Session in 
 Scotland, declared " that the respondents, Grey and others, were 
 liable for the full freight of such of the goods as were given up 
 to the insurers, and for the freight pro raid itineris of such of the 
 goods as were brought to Glasgow, notwithstanding some of the 
 tobacco was found damnified, and burned there." 
 
 In The Copenhagen {m), the ship and cargo had been seized as 
 prize in a port into which she had been driven by stress of weather. 
 Inquiry was held as to the neutrality both of the ship and of the 
 cargo, and both were restored. But the cargo was restored first, 
 and was forwarded in other vessels, the ship being still detained. 
 The shipowners were allowed freight pro raid itineris («). But it 
 was not there questioned that some freight was payable, and the 
 circumstances under which the cargo was forwarded do not appear 
 in the report. 
 
 In Mitchell v. Darthez (o), a ship called The Jane was chartered 
 to carry a cargo of coals or other goods to the Eiver Plata and 
 there deliver them, and then reload and proceed to a port between 
 Gibraltar and Antwerp and deliver. "Freight for the said voyage 
 out and home 1,300^. in full if delivered at Gibraltar"; 200/. of it 
 to be paid in London, cash for necessary expenses to be advanced 
 
 (m) 1 C. Rob. 289. The Soblomsten, L. R., 1 A. & E. 293 ; 
 
 («) See also Baillie v. Moudigliani, cited supra, s. 654. 
 Abbott (5tb), 313 ; (13th), 596 ; and (o) 2 Bing. N. C. 565. 
 
FREIGfHT. 631 
 
 at the Biver Plata, "and the remainder to be paid on final delivery Sect. 559. 
 of the homeward cargo." The master to sign bills of lading with- 
 out prejudice to the charter party. The Jane carried out coals in 
 lieu of ballast under a bill of lading which stated that freight was 
 to be paid as per charter party. Part of these coals were delivered 
 at Buenos Ayres, but part remained on board as ballast for the 
 return voyage. A cargo of hides was put on board at Buenos 
 Ayres to be carried to Gibraltar under a bill of lading, which made 
 340^. freight payable upon them. On her voyage to Gibraltar 
 The Jane put into Payal, distressed and damaged to such an 
 extent that she was condemned. Part of the hides were sold as 
 damaged, a few were sold as sound ; and the coal also was sold. 
 The proceeds of all these were applied in paying the expenses at 
 Fayal, including the cost of reloading those hides which were 
 afterwards sent on. 
 
 The master of The Jane returned to England, and down to the 
 time of his starting no vessel had arrived able to carry on the 
 cargo, but he left instructions with the British Vice-Consul at 
 Fayal to forward the remainder of the hides (about two-thirds of 
 the whole cargo) to Gibraltar at the earliest opportunity. 
 
 The Vice-Oonsul afterwards chartered the schooner Flora, on 
 the part and behalf of the owners of the. cargo of hides landed from 
 the brig Jane, to proceed therewith to Gibraltar and there deliver 
 them on payment of 360/. freight, with primage five per cent. 
 The hides were received by the consignees in Gibraltar, and they 
 paid The Flora's freight upon them. An action was then brought 
 by the owner of The Jane against the charterers for freight under 
 the original charter party. 
 
 Held, that the plaintiff was not entitled to the chartered freight, 
 as the homeward voyage had not been performed, and the hides 
 had not been carried to their destination in fulfilment of the charter 
 party. Nor was the plaintiff entitled to any freight, pro raid 
 itineris, for the voyage from England to Buenos Ayres. But it 
 was held that he was entitled to claim a reasonable freight for the 
 conveyance from Buenos Ayres to Fayal of that portion of the 
 goods which came to the hands of the freighters and was accepted 
 by them. 
 
 " The goods were forwarded by the Vice-Oonsul, acting as the 
 agent of the freighters : but the Vice-Oonsul was desired by the 
 master of The Jane to forward them, though not desired to forward 
 
632 
 
 THE DELIVERY. 
 
 Sect. 559. them on behalf of the shipowner. The agents of the freighters 
 at Gibraltar have accepted the goods, paid the frieight, and thereby 
 recognised the act of the Vice-Gonsul as their agent. The case, 
 therefore, must stand in the same position as if the freighters had 
 accepted the goods of the master of The Jane at Fayal and con- 
 veyed them on their own account to Gibraltar, in which case we 
 think that they would be liable to pay freight for that portion of 
 the voyage performed in respect of the goods accepted. 
 
 " At what rate the freight is to be calculated is the remaining 
 question to be considered, and we are of opinion that the shipowner 
 under the circumstances of this case, cannot claim any remunera- 
 tion beyond a reasonable freight from Buenos Ayres to Fayal, the 
 amount of which the arbitrator will determine. The freight agreed 
 upon by the charter was not of an ordinary kind, but a gross sum 
 to be paid in case of the performance of an extraordinary voyage. 
 That voyage has not been accomplished. The voyage was not in 
 its nature divisible, so as to give to the shipowner a claim to any 
 aliquot part upon the performance of a certain portion of the 
 voyage. 
 
 "The claim of the shipowner must therefore rest upon an 
 implied contract to remunerate him for service performed, not 
 according to the agreement, but a service from which the 
 freighters have received a benefit ; and whether upon the whole 
 the shipowner has been overpaid or not wiU appear when the 
 account is taken by the arbitrator on this principle between the 
 parties" {p). 
 
 The sMp- 
 owner must 
 have heen in 
 a position to 
 carry the 
 goods on. 
 
 560. The claim, then, for freight, when the goods have been 
 given up by the shipowner short of their destination, must rest 
 upon a new contract, either expressly made, or to be inferred from 
 the conduct of the parties. 
 
 No such inference can be drawn unless the goods, or their pro- 
 ceeds, have been accepted voluntarily, and iu such a way as to 
 show that the further carriage by the shipowner was intentionally 
 dispensed with. If the merchant must either have accepted the 
 goods where they lay, or abandoned them, no promise to pay 
 freight can be presumed from the fact of their being given up to 
 him. The presumption cannot arise unless the shipowner was 
 
 ip) Per Tindal, 0. J., 2 Bing. N. C. at pp. 670, 571. 
 
FREIGHT. 
 
 ess- 
 
 able and willing to carry on the goods to their destination, or Sect. 560. 
 might have become so within a reasonable time (q). 
 
 In Luke v. Lyde (r), however, Lord Mansfield allowed freight 
 pro raid, though the shipowner was not willing to carry the goods 
 on. The ship Sarah was on a voyage frord Newfoundland to 
 Lisbon; she was captured by the French when seventeen days 
 out, and within four days' sail of Lisbon, but was re-taken by an 
 English privateer, and brought into Biddeford in Devonshire. 
 The owners of the cargo received it from the recaptors, on paying 
 half its value as salvors, and afterwards re-shipped it to Spain. 
 It appeared that the freight from Biddeford to Lisbon was higher 
 than from Newfoundland to Lisbon. Luke and others, the owners 
 of The Sarah, abandoned her to their insurers, and did not offer 
 to carry the goods to Lisbon, nor did Lyde, the merchant, require 
 them to do so. It was held that the owners were entitled to 
 pro rata freight upon the cargo after deducting the salvage, that 
 is to say, one-half of the cargo. 
 
 Lord Mansfield said : " If a freighted ship becomes accidentally 
 disabled on its voyage, without the fault of the master, the master 
 has his option of two things — either to refit it (if that can be 
 done v?ithin convenient time), or to hire another ship to carry the 
 goods to the port of delivery. If the merchant disagree to this, 
 and will not let him do so, the master will be entitled to the whole 
 freight of the full voyage ; and so it was determined in the House 
 of Lords, in the case of Lutwidge and Howe v. Grey, et al. . . . . 
 
 " Now, here is a capture without any fault of the master, and 
 then a re-capture ; the merchant does not abandon, but takes the 
 goods and does not require the master to carry them to Lisbon, 
 the port of delivery. Indeed, the master could not carry them in 
 the same ship, for it was disabled, and was itself abandoned to the 
 insurers of it ; and he could not desire to find another, because the 
 freight was higher from Biddeford to Lisbon than from New- 
 foundland to Lisbon. There can be no doubt but that some 
 freight is due, for the goods were not abandoned by the freighter, 
 but received by him of the re-captor. The question wiU be, what 
 freight ? The answer is, a rateable freight — i.e., pro rata itineris " 
 — and "as the master had come seventeen days of his voyage, 
 (q) See per Dr. Lushington, The 195 ; but of. O'NeU v. Armstrong, (1895) 
 Soblomsten, L. E., 1 A. & E. p. 297 ; 2 O B 70 d 77 
 Castel V. Treohman, 1 Cab. & Ell. 276 ; ••>?•• 
 
 Atlantic Mutual Ins. Co. v. Bird, 2 Bos. ('') 2 Burr. 882. 
 
634 THE DELIVERY. 
 
 Sect. 560. and was within four days of the destined port when the accident 
 happened, therefore he ought to he paid his full freight for 
 ■i-f parts of the full voyage for that half of the cargo which was 
 saved." 
 
 It may be douhted whether the grounds given for this decision 
 can now be regarded as satisfactory (s). 
 
 Illustrations. 561. In Hunter v. Prinsep {t), an acceptance of the proceeds 
 of the cargo, sold by the order of a Yioe- Admiralty Court, the 
 vessel having been wrecked but the cargo saved, did not entitle 
 the shipowner to any freight out of those proceeds. The order 
 for sale had been made by the Court, presumably in an action by 
 the salvors, on the application of the master of the vessel, who 
 acted to the best of his judgment for all concerned, but without 
 the knowledge of the cargo owners. Lord Ellenborough dis- 
 tinguished the case from one in which, if the ship and goods had 
 been restored in specie, the shipowner might have earned his full 
 freight by carrying the goods on to their destination ; and wliere 
 the possibility of doing so had only been prevented by the act of 
 the Court in making a sale pending the suit, without any fault of 
 the shipowner. " However just it may be that a substitution of 
 Acceptance of money for goods, made by the authority of a competent tribunal, 
 salTof cargo. ^^^^^ ^^ equivalent to the actual restitution of the goods them- 
 selves, as far as respects all interests in and liens upon that fimd, 
 and however reasonable it may be that an owner thus taking the 
 substitute, which requires no further conveyance, should be con- 
 sidered as virtually dispensing with the further duty of the ship- 
 owners, which would have remained to be performed if the goods 
 had ■stUl continued in specie, yet no such dispensation with the 
 duty of further conveyance on the part of the owner of the goods 
 can be implied in a ease like the present, in which the further con- 
 veyance of them is rendered impossible hy an act of the immediate agent 
 of the shipowners themselves, to which he, the owner of the goods, is 
 neither actually or virtually consenting by himself, or any agent 
 empowered to consent on hi& behalf ; and to which he is not com- 
 pelled to submit by any regular exercise of legal authority in any 
 quarter whatsoever ; and from which he can, according to what is 
 contended for on the part of the defendants, derive no benefit 
 
 (s) Cf . other cases of re-capture, cited lupra, s. 556. 
 (0 10 East, 378. 
 
FREIGHT. 635 
 
 whatever, inasmuch as the pro rat& freight claimed by them exceeds Sect. 561. 
 the whole amount of the proceeds of the goods sold" (m). 
 
 In "Vlierhoom v. Chapman {x), the goods had heen properly sold Sale at a port 
 by the master, at a port of refuge, in order to save their value, cargo's own 
 The cargo was rice, and had been damaged in a hurricane, so that '^™'^ • 
 if not sold it would have become worthless, by putrefaction. The 
 sale was, therefore, made in the interest of the cargo owner, though 
 without his knowledge, in the exercise of the agency which the law 
 confers on the master in cases of necessity ; and it was contended 
 that the master in his double agency, for shipper and shipowner, 
 might be presumed to have made a reasonable contract between 
 his principals, under which reasonable freight would be payable 
 for the part of the voyage performed. 
 
 Parke, B., however, said : — " It is difficult to conceive any con- 
 jurtction in which such a presumption could be made ; for the 
 agency of the master from necessity arises from his total inability 
 to carry the goods to the place of destination, which dispensed with 
 the performance of that primary duty altogether, and the right to 
 freight pro rata from the presumed waiver on the part of the 
 shipper of the performance of a duty which the master was ready 
 
 to execute The truth is, that the goods were in the same 
 
 situation as to the claim for freight as if they had been abandoned 
 by the shipowner and left behind at the Mauritius, and there sold 
 by the owner" (y). 
 
 In Hopper v. Burness (s) the same doctrine was extended to the Sale to raise 
 case of a sale of part of the cargo by the master at a port of refuge, repairs, 
 in order to raise funds for repairs necessary to enable the ship to 
 complete the voyage. The cargo owner was entitled to treat the 
 proceeds of the sale as a loan to the shipowner, and he did so treat 
 them, instead of claiming an indemnity, for the goods in fact had 
 sold for more at the port of refuge than they were worth at their 
 destination. Still it was held that no freight was payable, for the 
 master had put it out of his power to carry on the goods by selling 
 them, and the shipper had no option with regard to the sale. 
 
 But where a claim had been made by the shipowner for ^ro ratA 
 freight, and he had stopped certain proceeds of the cargo for it, 
 
 («) Per Lord EUenborough, 10 East', («) 13 M. & W. 230. 
 
 at p. 393. And see Western Transp. g^J^' ^o also, HiU .. Wilson, 4 0. P. D. 
 Co. V. Hoyt, 69 N. T. 230. ^J^ ^ q p j, 137 
 
636 
 Sect. 561. 
 
 Sale at 
 instance of 
 cargo owner. 
 
 Freight pay- 
 able in 
 advance ; 
 must be paid 
 though ship 
 and goods 
 lost. 
 
 THE DELIVERY. 
 
 and a promise was made to pay the pro rata freight in considera- 
 tion of the proceeds being liberated, it was held that the promise 
 was founded on a good consideration and might be enforced (a). 
 
 In The Eliza Lines (b), cargo which was not perishable had been 
 sold at a port of refuge under an order made by the Court in a 
 salvage action, upon the application of the cargo owner ; though 
 the ship was being made ready to carry it on. It was held, in the 
 United States, that the cargo owner must pay the amount of the 
 freight, less the estimated expenses of earning it saved by the 
 non-completion of the voyage ; and less also any net freight 
 earned by the ship during the time which would have been occupied 
 if the voyage had been completed. This was treated as the proper 
 measure of damages for breaking up the voyage. 
 
 562. We will now consider cases in which the contract does not 
 make the payment of freight depend on delivery of the goods. 
 When that is so, as where the payment is to be on shipment, or at 
 a definite period after the ship has sailed, the payment becomes 
 due at the defined time, and it continues to be due if not paid, 
 although, owing to the loss of the ship or of the goods, it may have 
 become impossible to carry the goods to their destination (e). 
 
 In Oriental Steam Ship Co. v. Tylor (d) one-third of the freight 
 was to be paid " on signing bills of lading." The ship sailed and 
 was lost, with her cargo, before bills of lading had been signed. 
 The charterers sought to avoid payment of any freight by not pre- 
 senting bills of lading for signature. But it was held that they 
 were still bound to present them, and were liable in the amount of 
 the freight payable in advance, as damages for not doing so. 
 
 In Weir v. Grirvin (e) the freight was to be at a certain rate per 
 ton of the quantity delivered to the consignees ; but it was to be 
 " due and paid as follows : two-thirds in cash three days after 
 sailing from Tyne, ship lost or not lost, and the balance on im- 
 loading and right delivery of the cargo." During the loading 
 part of the cargo already shipped was destroyed by fire. The 
 charterers loaded the balance of the cargo, and the ship sailed. 
 
 (a) Thornton v. Fairlie, 8 Tatin. 354. 
 (J) The Eliza Lines, 61 Fed. Rep. 
 308 (1894). 
 
 (c) Andrew v. Moorhouse, 6 Taun. 
 
 435 ; Byrne v. SchiUer, L. R., 6 Ex. 20, 
 319 ; Smith v. Pyman, (1891) 1 Q. B. 42. 
 
 {d) (1893) 2 Q. B. 618. 
 
 (e) (1900) 1 Q. B. 45, affirming (1899) 
 1 Q. B. 193. 
 
PEEIGHT. 637 
 
 Held that the two-thirds advance freight did not become payable Sect. 562. 
 upon the cargo destroyed. 
 In Smith v. Pyman (/), one-third of the freight, less an allowr Freight to be 
 
 I. . ,. n , , .„ . ,„ advanced "if 
 
 ance for interest and msurance, was to be advanced " if required, required." 
 
 The ship was lost almost immediately after, sailing. No demand 
 for freight in advance had then been made ; but it was demanded 
 afterwards, when the bUls of lading were presented for signature. 
 The Court of Appeal, reversing Charles, J., held that the ship- 
 owner could not require payment of the one-third freight after the 
 loss. The allowance to be made for insurance showed that the 
 requirement must be made while insurance was possible. 
 
 It has been said that freight is the reward for carriage and 
 delivery, and that a payment made due in advance in this way 
 cannot properly be called freight (gf). But that is the name by 
 which it is expressed by those who make these contracts, and 
 perhaps the doubt as to its propriety would not now have much 
 effect (A). 
 
 Where freight due in advance has been paid it cannot be Advanced 
 recovered again from the shipowner upon the frustration of the reclalmable. 
 voyage, although the goods be lost («). 
 
 Where the agreement was for a transit consisting of several 
 parts, to Colon (AspinwaU) by the packet of one company, thence 
 to Panama by rail, and thence to San Francisco by the packet of 
 another company, and the freight for the whole was payable in 
 advance, and was to be " considered as earned, ship lost or not lost," 
 it was held that no part of the freight could be reclaimed by the 
 shipper upon a loss of the vessel, with all her cargo, on the voyage 
 to Colon {h). 
 
 563. The question whether the freight is intended to be paid Construction 
 independently of delivery is one of construction of the contract. ° contracts. 
 
 In Mashiter v. Buller (/) the goods were shipped under bills of 
 lading, by which they were to be delivered at Lisbon. Some of 
 the bnis of lading said, " freight for the said goods being paid in 
 London ; " others, " the shippers paying freight for the said goods 
 
 {/) (1891) 1 Q. B. 42, 742. parte Nyholm, Ee Child, 43 L. J., Bank. 
 
 [}) Blakey v. Dixon, 2 B. & P. 321 ; 21. 
 
 Kirohner v. Venus, 12 Moo. P. C. 361. (») De Silvale v. Kendal, 4 M. & S. 37 ; 
 
 (h) See Andrew v. Moorhouse, 5 Taun. Saunders v. Drew, 3 B. & Ad. 445. 
 
 435 ; Allison v. Bristol Mar. Ins. Co., 1 (*) Greeves v. "West India, &o. Co., 22 
 
 A. C. 209 ; Great Indian Pen. Eailv Co. L. T. 615 ; reversing 20 L. T. 914. 
 
 V. Turnbull, 53.L. T. 325. But of. JEx ■ [1) \ Camp. 84. 
 
638 THE DELIVERY. 
 
 Sect. 563. in London." Lord Ellenborougb. held that these words only 
 meant that the freight should he paid in London instead of at 
 Lisbon, and did not dispense with performance of the voyage ; and 
 he said that i£ the freight had been paid on shipment it might 
 have been recoveyed back, the ship having been lost on the 
 voyage (m). 
 
 In Andrew v. Moorhouse («) the words in the bill of lading were 
 " freight for the said goods being paid," and evidence was given 
 that the broker who freighted the ship told the shipper that the 
 freight on the voyage, from London to the Cape, was 5/. per ton, 
 paid in London, or 71. paid at the Cape, and that the shipper pre- 
 ferred the contract at 61. The vessel was lost on the voyage, and 
 an action was brought for the freight. Gribbs, 0. J., left it to the 
 jury to say whether the contract was to pay it in any event, or 
 only if the ship arrived at the Cape, and delivered the goods. 
 The jury found for the plainti£Es, and this was upheld by the 
 Court (o). 
 
 Where the freight upon cattle was made payable upon arrival, 
 but was to be paid " ship lost or not lost," it was held in the United 
 States that the freight became payable although the ship and 
 cattle did not arrive, because they were lost {p). * 
 
 In Ex parte Nyholm, Ee Child {q), a ship had been chartered 
 for a voyage with cargo from Liverpool to Lagos, to return with a 
 cargo of African produce. The charterers agreed to " pay or cause 
 to be paid as freight for the use and hire of the vessel in respect of 
 the said voyage out and home at and after the rate of 77s. &d. 
 sterling per ton of 20 cwt. for palm kernels, if ordered to a port in 
 
 the United Kingdom If other goods, freight to be paid 
 
 thereon in due proportion to above rates. The payment of which 
 to become due and made as follows : — 250^. to be advanced in cash 
 on signing bills of lading, and clearing at the Custom House, 
 Liverpool, less five per cent, for all charges, insurance thereon in- 
 cluded ; such money as the master may require for the ordinary 
 disbursements of the vessel at Lagos, "West Coast of Africa, to be 
 advanced free of interest and commission and other charges ; and 
 the remainder on a true and faithful delivery of the cargo at the 
 
 (m) So decided in Krall v. Burnett, 25 N. S. 362 ; 2 F. & F. 763. 
 
 W. E. 305. {p) The Queensmore, 53 Fed. Rep. 
 
 («) 6 Taun. 435. , 1022. 
 
 (o) So also, Lidgett v. Perrin, 11 C. B., (j) 43 L. J., Bank. 21. 
 
FREIGHT. 639 
 
 said port of discharge, in oash, &o." (r). The master and owners Sect. 663. 
 were to have a lien and charge on the cargo and goods laden on 
 board, for " the security and payment of all freight, dead freight, 
 demurrage and other charges." 
 
 The loading of the ship was completed at Liverpool on Decem- 
 ber 4th, 1877, and niate's receipts were given for the goods. She 
 was cleared at the Custom House, and the master was ready to 
 sign bills of lading in exchange for the .250/. But this was not 
 paid ; the bills of lading were never signed ; and the ship never 
 sailed on her voyage. The charterers filed a petition for liquida- 
 tion on December 13th, and on January. 31st the_ trustee in the 
 liquidation gave notice to the shipowner disclaiming all interest in 
 the charter party. Also, he demanded the goods which had been 
 shipped ; but the shipowner claimed to retain them imder a lien 
 for freight and demurrage. 
 
 The Court of Appeal held that he was entitled to no lien. And, 
 to the contention that the 250/. became payable as soon as the 
 captain was ready and willing to sign the bills of lading, it was 
 answered, " If it were necessary to decide the point, there would 
 be very great difficulty in applying the principle of the cases 
 referred to to the case of the payment in advance, or at a 
 particular stage, of an instalment of one entire consideration for 
 one complete voyage or other service, where the complete voyage 
 or other service had never been performed, and was on the non- 
 payment entirely given up." 
 
 And it was further held that, if the instalment were payable, 
 it did not become freight for which there was a lien. The ship 
 had never earned freight, or begun to earn freight, in the sense in 
 which that word was used in the lien clause. 
 
 564. A difficulty has sometimes arisen in distinguishing in Distinction 
 charter parties between advances of cash to meet ship's expenses, freight'aud 
 and pre-payment of freight. adyanoes. 
 
 It is often stipulated that the charterer shall provide cash for the 
 ship's disbursements at the port of loading. Cash so provided is 
 in the nature of a loan to the shipowner, and is repayable by him 
 in any event. If the cargo arrives at its destination, these 
 advances may be conveniently- set against the freight, but the 
 repayment does not depend upon the freight being earned. On 
 
 (r) The whole clause does not appear in the report ; it has been taken from the 
 papers in the case. 
 
640 THE DELIVERY. 
 
 Sect. 564. the other hand, as we have seen, if freight is to be paid in 
 advance, it can in no case he recovered. Where that is stipulated 
 for, the intention of the parties is understood to he that that 
 part of the hire of the ship is to be paid beforehand, and 
 •irrevocably (s). 
 
 Whether the advances are to be made on account of freight, or 
 not, is a question of construction ; the intention of the parties 
 must be gathered from the whole charter party. Or, if the 
 advance is made without previous stipulation in the charter, the 
 intention must be gathered from the agreement, or the conduct of 
 the parties, at the time of making it (t). 
 
 Where the charter simply provided that the captain should be 
 supplied with cash for the ship's use, and there was nothing to 
 show that this was to be deducted from the freight made payable 
 on delivery, it was held that the advances were not on account of 
 freight (m). On the other hand, where cash was to be advanced at 
 the port of loading, and the " residue of such freight to be paid on 
 the delivery of the cargo in Liverpool," it was held that the 
 advances were on account of freight {x). 
 Teat of The difierence between an advance, and a payment of freight 
 
 in advance, affects the manner of insuring. The charterer is the 
 proper person to insure advances of freight, since he is at risk in 
 respect of them. Not so advances of cash, irrespective of the 
 freight ; for these must be repaid ia any event, and are, therefore, 
 not at risk (2/). If then the charter party shows that it is the 
 intention of the parties that the merchant making the advances 
 shall insure them, that is strong to show that the advances are to 
 be on account of freight {£). 
 
 In Hicks v. Shield (s), the clause was, " cash for ship's disburse- 
 ments to be advanced to the extent of 300/. free of interest, but 
 subject to insurance, and 21. 10s. per cent, commission." Lord 
 
 (s) De SUvale v. Kendal, 4 M. & S. 606 ; The John, 3 W. Eob. 170. 
 
 37 ; Saunders v. Dre-w, 3 B. & Ad. 445 ; , , -^n „ ,, -.r ■,^ j , t. » . 
 
 „ ' .^ „, T T ^ -r. „», W Manfield -o. Maitland, 4 B. & A. 
 
 Trayes v. Worms, 34 L. J., C. P. 274. ggg 
 
 A provision that cash shall be provided, 
 
 "not exceeding 160?. in all, to be ad- W ^« ^ilvale v. Kendal, 4 M. & S. 
 vanced at exchange of 6f)d. to the dollar 
 
 on account of freight," does not require (^5 ManHeld v. Maitland, supra. 
 
 the shipowner to take 150? , or pay the (z) Hicks v. Shield, 26 L. J., Q. B. 
 
 charterer's profit on exchange on 160?. : 205 ; The Karnak, L. R., 2 P. 0. 506 ; 
 
 The Primula, (1894) P. 128. The Ked Sea, (1896) P. 293 ; (1896) P. 
 
 [t] See The Karnak, L. R., 2 P. C. 20. 
 
 insurance. 
 
FREIGHT. 
 
 6il 
 
 Campbell said : " This mention of insurance seems to me to stamp Sect. 564. 
 the transaction indelibly as a payment on account of freight, and 
 not a mere loan ; for if the advance was to be insured, it must 
 be an advance of freight ■which is insurable, whereas a loan is 
 not "(a). 
 
 The question was raised, but not decided, in Tamvaco ». 
 Simpson (6), upon the clause, "The freight to be paid on un- 
 loading and right delivery of the cargo, less advances in cash at 
 current rate of exchange ; one-half of the freight to be advanced 
 by freighter's acceptance at three months on signing bills of 
 lading; owner to insure the amount, and deposit with charterer 
 the club policy, and to guarantee same." Pollock, C. B., held that 
 the acceptance for the half freight was to be a pre-payment, and 
 not a mere loan. Willes, J., inclined to the same view. But the 
 other judges appear to have doubted. 
 
 565. In Byrne v. Schiller (c) a charter was made for a voyage Deficiency of 
 from Calcutta to England ; but it gave liberty to the freighters to freights^ paf - 
 send the ship on an intermediate voyage, to Port Louis, with a ^^'^^J^ °*^t^' 
 cargo of rice, for which freight was to be paid at a certain rate, as vessel lost. 
 foUows : — " 1,200^. in rupees to be advanced the master by the 
 freighter's agents at Calcutta against his receipt, and to be deducted, 
 together with 1 J per cent, commission on the amount advanced and 
 cost of insurance, from freight on settlement thereof, and the 
 remainder on right delivery of the cargo at port of discharge in 
 cash as customary." The charter also contained the clause, " The 
 master to sign bills of lading at any current rate of freight required 
 without prejudice to the charter party ; but not imder chartered 
 rates, except the difference is paid in cash." 
 
 The freighters elected to send the ship to St. Louis ; and they 
 required the master to sign bills of lading at rates below the char- 
 tered rate. They induced him to do this without receiving the 
 difference in cash, saying that all would be made right when the 
 vessel had finished loading, and afterwards they refused to pay this 
 difference, claiming to set it off against advances they had made, 
 amounting to 1,200/. or thereabouts. The vessel was lost on the 
 way to St. Louis ; and the question was, whether the shipowner was 
 
 (a) Cf. per Bla^kbnm, J., in Allison (*) 3* L. J., 0. P. 268 ; L. E., 1 C. P. 
 
 .. Bristol Mar. Ins. Co., 1 A. 0. 209, at '^Jj^ ^ ^^ g ^^ 2^^ 3^^ ^,^_ g^^^^ 
 P- 22'- V. Brioe, 30 L. J., Ex. 108. 
 
 C. C. T r|T 
 
642 
 
 THE DELIVERY. 
 
 Sect. 565. entitled to be paid tlie above difference, in addition to the 1,200^. 
 advances. 
 
 It was held by the Exchequer Chamber, affirming the Court of 
 Exchequer, that he was. The payment of the difference in cash 
 was to be an absolute payment, as to which the shipowner was to 
 be subject to no contingency. 
 
 In Carr v. Wallachian Petroleum Co. (d), a vessel had been 
 chartered to carry a cargo of petroleum from Ibraila to London at 
 84s. a ton. The charterers were prevented from loading by an 
 accidental fire which burnt their stock of oil at Ibraila. An 
 arrangement was therefore made by which the charter was can- 
 celled, and the charterers guaranteed the vessel a sum of 900/. gross 
 freight home, on the understanding that she should be placed on 
 the most profitable charter or trade procurable, and that she would 
 carry 300 tons of cargo. 
 
 The vessel was loaded with barley at Kilia, and the estimated 
 freight fell short of the 900i'. guaranteed by 343/. 6s. She was lost 
 on the voyage. Held, that the charterers were liable to pay the 
 343/. 6s., notwithstanding the loss, their guarantee having been 
 broken when the cargo was shipped with a deficient freight. 
 
 566. Where a charter party provides that freight shall be pay- 
 able in advance " subject to insurance," this merely means subject 
 to deduction of the cost of insurance. It throws no duty on the 
 shipowner to insure the freight advanced for the benefit of the 
 merchant (e). 
 
 The arrangement amounts to this, that the shipowner, in con- 
 sideration of the convenience of having the freight advanced, is 
 willing to bear the cost of insuring that advance. That cost is 
 therefore allowed, or returned, to the merchant out of the advance 
 when he makes it. And the shipowner thus, in effect, bears the 
 risk (represented by the cost of insurance) of the freight not being 
 earned (/). 
 
 In Eodocanachi ». Milburn (g) it was contended that as the ship- 
 owner, under this clause, bears the cost of insuring the advances, 
 it has the effect of relieving him from responsibility for any kind 
 
 Effect of 
 clause ' ' sub- 
 ject to 
 insurance." 
 
 {d) L. K.,1 C. P. 636; L. E.,2C.P. 
 468. 
 
 (e) Jackson v. Isaacson, 27 L. J., Ex. 
 392 ; 3 H. & N. 405 ; Watson v. Shank- 
 land, L. R., 2 H. L., So. 304. 
 
 (/) Of. per Charles, J., Smith v. 
 Pyman, (1891) 1 Q. B. 42. 
 
 (ff) 17 Q. B, D. 316 ; 18 Q. B. D. 67. 
 Of. HiU V. Scott, (189S) 2 Q. B. 371, 
 713. 
 
FREIGHT. 
 
 643 
 
 of loss of the advances, or of the increased value in the goods Sect. 566. 
 which represents them. Charterers were there to make advances 
 " on account of freight at current exchange subject to insurance 
 only." They did so, and the cost of insurance was allowed to 
 them. On the voyage the cargo was lost by the negligence of the 
 master, and the question arose whether, in calculating the damages 
 payable by the shipowner, deduction should be made from the 
 arrived value of the cargo of the whole of the charter freight, or 
 only of the freight which remained unpaid. Manisty, J., held that 
 the whole freight must be deducted, on the ground that the char- 
 terers had agreed, as to the sum advanced, " not 'to look to the 
 shipowners, but to their rights under their contract of insurance." 
 But his ruling, was reversed by the Court of Appeal. And in 
 Dufourcet v. Bishop (h), under similar circumstances, the cargo 
 owner was allowed to recover the advanced freight, which he had 
 insured, for the benefit of his underwriters. 
 
 567. Where freight in advance is to be paid at the time of Freight pay- 
 sailing of the ship, the condition of sailing is satisfied if she fairly " sailing," 
 starts from her place of loading ready for sea, and intending there gaiJing'" 
 and then to commence the voyage. " According to several cases on 
 the insurance law the sailing is determined to be that period of 
 time when the vessel breaks ground, being at that time fully fit for 
 sea, having the cargo on board which she intends to carry, with a 
 competent crew, and having "permission to leave by having the 
 custom-house clearances on board " («). 
 
 In Sea Insurance Company v. Blogg (/c), the ship fully equipped 
 and loaded for the voyage, with her crew on board, moved from 
 her loading berth and moored a short distance off in the river 
 (at Newport News) on the evening of February 29th. The 
 object was to prevent the crew from going ashore, so that the ship 
 could proceed to sea early next morning. It was held that she 
 had not sailed on February 29th. 
 
 It is not sufficient that the vessel has left the harbour, if she 
 was not in a condition to proceed ; as where she had not got her 
 full crew on board, or her necessary papers had not been ob- 
 tained [1). 
 
 {h) 18 Q. B. D. 373. So also, Great {k) (1898) 2 Q. B. 398. 
 
 Indian Pen. Kail. Co. v. TurnbuU, S3 (?) Thompson v. Gillespie, 24 L. J., 
 
 L. T. 325. Q. B. 340 ; Hudson v. Bilton, 26 L. J., 
 
 (i) Per Parke, B., Eoelandts v. Harri- Q. B. 27; Sharp v. Gibhs, 1 H. & N. 
 son, 23 L, J., Ex. 169, at p. 173. 801. 
 
 T T 2 
 
644 THE DELIVEEY. 
 
 Sect. 567. And if the freight is to be paid on the " final sailing" of the 
 vessel from the port of loading, it is necessary that she shall have 
 done more than break ground. She must have got fairly clear of 
 the port. In Eoelandts v. Harrison {m) the ship had loaded at 
 Cardiff, in the Bute Docks ; she had left the docks ready in all 
 respects for the voyage, in tow of a tug, but in passing along the 
 Bute Ship Canal, an artificial channel which led from the docks to 
 the sea, she got aground and ultimately became a wreck. But for 
 the accident she would have gone out on her voyage without further 
 communication with the shore, except for the purpose of putting 
 her pilot ashore. Under these circumstances it was held that the 
 ship had not finally sailed within the meaning of the charter party. 
 The words were considered to mean " her final departure froin that 
 port, and being out of the limits of that artificial port, and being 
 at sea ready to proceed upon her voyage " (m). 
 
 But in Price v. Livingstone (o), where the vessel had been towed 
 out to sea clear of the loading port (Cardiff) in its commercial 
 sense, though not beyond the custom-house limits of it, and had 
 been anchored, and afterwards driven ashore, it was held by the 
 Court of Appeal that she had finally sailed ; so that advances of 
 freight, which were to be made by acceptances at three and six 
 months' date " from final sailing of the vessel from her last port in 
 the United Kingdom," were due. " ' Final saililig,' I apprehend, 
 means getting clear of the port for the purpose of proceeding on 
 the voyage" {p). 
 
 The word " port " in the charter party must be construed by 
 reference to the meaning commonly given to it by merchants and 
 shipowners. The extent of the particular port, as understood by 
 them, is not necessarily, or ordinarily, determined by its legal 
 definition for fiscal or like purposes; or even by geographical 
 considerations. Its extent in a commercial sense is rather shown 
 by such considerations as the safety afforded for shipping, the 
 convenience for loading and unloading, the usages of the place 
 with regard to anchoring, loading and discharging, and the area 
 over which those matters are regulated by the authorities having 
 jurisdiction in the port (j). 
 
 ('») 23 L. J., Ex. 169. {p) Per Lindley, L. J., 9 Q. B. D. at 
 
 (k) Per Parke, B., 23 L. J., Ex. p. p. 682. 
 
 173. Cf. Lang 1). Anderdon, 3 B. & 0. (?) See Garston Co. :;. HicMe, 15 
 
 i9^ ; Moir v. Eoyal Exchange Abs. Co., Q. B. D. 680 ; Hunter*. Northern Mar. 
 
 6 Taun. 241 ; and M. & S. 461. Ins. Co., 13 A. C. 717. aoodbody*. 
 
 (o) 9 Q. B. D. 679. Balfour, 4 Com. Ca. 119 
 
FEEIGHT. 645 
 
 668. In Thompson v. Gillespie (r), it was held, in an action after Sect. 568. 
 the ship had been lost, that the shipowner could not recover freight Ship must be 
 payable in advance unless she had sailed in a seaworthy condition. ^^^°l J^ °^ 
 The stipulation in the charter party was that one-fourth of the ^'^^^^^J ".^* , 
 freight should be advanced, less 5 per cent, for insurance, interest, is lost. 
 and commission. Lord Campbell, delivering the judgment of the 
 Court, said : " By a policy of insurance the merchant was to be 
 indemnified to the extent of the sum he was to advance. But he 
 could not have the benefit of this iudemnity unless at the com- 
 mencement of the voyage the ship was seaworthy. He must be 
 considered to have promised to pay one-fourth of the freight in 
 advance, if, when the ship sailed, she was in such a condition as 
 that a policy of insurance on the freight would attach, and enable 
 him to recover the money back in case of a subsequent loss." 
 
 569. Where part of the freight has been paid in advance, and FreigMpartly 
 
 . .1,.,, 1 ni ''" advance — 
 
 the ship arrives at her destination, but with part only of the cargo. Cargo partly 
 a question arises as to how far credit ought to be taken for the sum 
 which has been paid. Ought the payment to be apportioned over Mode of 
 the whole cargo, including that which has not arrived, in which baiaiioet™fe 
 case some of it must be considered as lost to the merchant ; or, is P^"^- 
 the merchant to have credit for the whole, when paying upon the 
 goods that have arrived ? 
 
 This question arose in Allison v. Bristol Marine Ins. Co. (s), on 
 a charter for a voyage with a cargo of coals, which provided as 
 follows : — " The freight to be paid on unloading and right delivery 
 of the cargo at and after the rate of 42s. sterhng per ton of 20 cwts. 
 on the quantity delivered in full of all port charges, pilotages, 
 Bute Dock wharfage, harbour dues on cargo, and Dover and 
 Eamsgate dues, as customary, and such freight is to be paid, say, 
 one-half in cash, on signing bills of lading, less four months' 
 interest at Bank rate, but not less than 5 per cent, per annum, 
 5 per cent, for insurance, and 2g per cent, on the gross amount of 
 freight in lieu of consignment at Bombay, and the remainder on 
 right delivery of the cargo, agreeably to bills of lading, less cost of 
 coal short delivered." 
 
 One-half of the freight was paid on shipment, calculated on 
 2,178 tons, the quantity stated in the bill of lading; the vessel was 
 wrecked about eight miles from Bombay, her destination, and only 
 about 1,050 tons of the coal were saved and taken to Bombay. 
 
 (»•) 24 L. J., Q. B. 340. (s) 1 A. 0. 209. 
 
646 THE DELIVKKY. 
 
 Sect. 569. The shipowner had insured the " freight payahle abroad ;/' and 
 the question was whether any further freight had hecome payahle 
 by the charterer, upon the coal which was saved and delivered ; or 
 whether the whole freight " payable abroad " had been lost. 
 
 The action against the insurers was tried before Brett, J., and 
 a verdict entered for the shipowner as for a total loss. This verdict 
 was upheld by three judges of the Common Pleas (including 
 Brett, J.) ; but, on appeal to the Exchequer Chamber, their judg- 
 ment was reversed by three judges to two. On further appeal to 
 the House of Lords, the judges were summoned, and four of them, 
 against two, were for reversing the decision of the Exchequer 
 Chamber ; and that was the unanimous conclusion of the House. 
 
 Blackburn, J., who took the view of the minority, considered 
 that the advance of one-half of the freight was distributive, and 
 must be regarded as a payment of 21s., less deduction, for every 
 ton put on board, without reference to whether it was all delivered 
 or not, and that the remaining 21s. left unpaid on each ton was to 
 be paid upon those tons which were delivered. 
 
 But the Lords took the opposite view, viz., that the sum paid 
 represented half of the freight of the cargo which should, in fact, 
 be delivered at the destination. 
 
 Much stress was laid upon the points that the whole agreed 
 freight was to be caloidated " on the quantity deliveredi" and that, 
 if the charterer were compelled to pay anything further, he would 
 be paying at a rate higher than that agreed for upon the coals 
 delivered to him. 
 
 It seems difficult, however, to read the clause, " such freight to 
 be paid, say one-half in cash on signing bills of ladiag," as 
 referring to the freight ultimately to become payable, and not to 
 the freight expected to be payable. If the former were its meaning 
 there would seem to be a clear right in the charterer to a repay- 
 ment, if ultimately no freight at aU became payable, for the 
 payment would have been a mistake ; but it was expressly recog- 
 nised that no right to repayment could arise. The result of the 
 decision may, perhaps, be said to be, that the words " the amount 
 paid on signing the biU of lading to be deducted from freight in 
 settlement thereof " ought to be implied in charters of this kind, if 
 they have not been expressed {t). 
 
 {t) Per Lord Selbome, 1 A. C. p. 254. 
 
FREIGHT. 647 
 
 It is an d fortiori corollary to this case that a lump sum, paid for Sect S69. 
 freight in advance, must he deducted in full on settlement of the 
 freight at the port of discharge, although some of the cargo may 
 have heen lost on the voyage. 
 
 570. Next, as to charters in which the freight is payable in Time freights, 
 proportion to the time during which the ship is occupied. Here 
 the freight is in the nature of a rent paid for the use and hire of 
 the ship, and the question when is it earned and payable to the 
 shipowner depends entirely upon the. intention of the parties, as 
 shown by the contract. 
 
 Difficulties of construction on this point have arisen, because the 
 clause in the charter party which defines the time for payment 
 frequently assumes the existence of conditions which may, or may 
 not, be regarded as conditions precedent to the right to payment. 
 The following cases illustrate these difficulties : — 
 
 In Havelock v. Geddes (to) the charterers covenanted to pay for 
 the hire and service of the ship at the rate of 24s. per calendar 
 month per ton, to be paid as follows : — Two months on the execu- 
 tion of the charter party, two months more at the end of six 
 months from the commencement date of the charter party, two 
 months more at the end of ten months, two months more at the 
 end of fourteen months, and afterwards two months' freight at the 
 end of each succeeding two months, until the ship should be dis- 
 charged, the balance to be paid immediately upon such discharge. 
 The ship was accidentally -destroyed by fire during the eleventh 
 month. Held, that as the charterers were to pay a given freight 
 per month, each month's freight was earned and became completely 
 due at the end of each month, and the times fixed for actual 
 payment merely postponed that, without creating a condition upon 
 which payment was to depend. 
 
 On the other hand, in Gibbon v. Mendez («) the freight was to When de- 
 be at a certain rate per ton per calendar month, and in proportion arrival* °^ 
 for any time less than a whole calendar month, until her final dis- 
 charge, or up to the day of her being lost, &c. But it was made 
 payable to the master " in manner following : that is to say, so 
 much as might be earned at the time of the arrival of -the ship at 
 her first destined port abroad, to be paid within ten days next after 
 her arrival at such port and previous to the delivery of her cargo ; 
 
 («) 10 East, 555. Cf. Crozierv. Smith,! M. & G. 407. (a:) 2 B. & Aid. 17. 
 
648 THE DELIVERY. 
 
 Sect. 570. and at the expiration of every calendar month after that period, 
 the freight then due was to be paid up from time to time during 
 the continuance of the ship in the service of the freighter " : the 
 balance to be paid on final discharge. The ship was lost by perils 
 of the seas before arriving at any port abroad. Held, that no part 
 of the freight was payable unless, and until, the vessel arrived at 
 her first destined port abroad. " Where the freighter derives no 
 beneficial use from the ship there ought to be a clear express stipu- 
 lation in order to charge him with the payment of freight, and this 
 charter party contains no such stipulation " (y). 
 
 In Brown v. Hunt(s), the vessel was chartered for a round 
 voyage, from Boston to Savannah, thence to a port in the "West 
 Indies, and thence to Boston ; with liberty to return from the West 
 Indies to any port in the TJ. S., and from thence to Boston. The 
 freight or hire was to be at a certain rate per ton per month, and so 
 in proportion for a less time as she should be continued in the service ; 
 and was to be paid " in thirty days after her return to Boston." 
 She proceeded to Savannah, carried a cargo from there to the West 
 Indies, and another cargo back to Savannah. The latter cargo 
 was discharged by June 23rd, 1812. On July 4th she sailed in 
 ballast for Boston ; and on July 14th she was captured by a British 
 frigate and destroyed. It was held by the Supreme Court of 
 Massachusetts that hire down to June 23rd was payable, notwith- 
 standing the non-arrival at Boston. For that purpose the voyages 
 were distinct, and payment must be made for those which were 
 accomplished. 
 
 "Monthly j^ modern time-charters it is frequently provided that the 
 
 in advance. , . . . 
 
 monthly freight, or hire, shall be paid " in advance." A common 
 
 form of clause is that an agreed sum shall be paid " per calendar 
 
 month, and at and after the same rate for any part of a month, 
 
 hire to continue until her re-delivery to the owner, payment for 
 
 the said hire to be made in cash monthly in advance." Under this 
 
 clause it has been held by the Court of Appeal (Lord Esher, M. R., 
 
 and Rigby, L. J., diss. Smith, L. J.) that the full monthly payment 
 
 must be made at the beginning of each month, including the last, 
 
 although the reasonable expectation may be that the employment 
 
 will only continue for a part of the month {a). 
 
 {y) Per Bayler, J,, 2 P, * Aid. at ("' " ^*^^- ^^ (l^l*). 
 
 2' -' ■" " W Tonnelier ». Smith, 77 L. T. 277 ; 
 
 P' -' 2 Com. Ca. 121, 258. 
 
FREIGHT. 649 
 
 571. In Maokrell v. Simond (&) a vessel was chartered ty the Sect. 571. 
 month for an outward and homeward voyage, the hire to be at a Outward and 
 certain rate per month payahle on and after the completion of her l^o^^ward 
 
 ':':•' r voyages. 
 
 homeward voyage. She delivered her cargo outwards, but was 
 lost with cargo on the homeward voyage. It was held by the 
 King's Bench that freight was payable for the period of the 
 outward voyage, but not for the period occupied on the voyage 
 homeward before she was lost (c). 
 
 And where the freight, except certain advances, was " to become Where pay- 
 due and be paid on the final discharge of the vessel " on the home- discharge." 
 ward voyage, it was held that it could not be claimed after the 
 vessel had been lost while performing her outward voyage {d). 
 
 So also in Smith v. Wilson {e), where the charterer covenanted 
 to pay 670^. " per month for every calendar month the ship should 
 be employed by him " during her intended voyage to Monte Yideo 
 and back to her port of discharge ; such freight " to be paid on 
 the arrival and discharge of the said ship at her destined port in 
 Ghreat Britain." The ship was forcibly seized on her outward 
 voyage, and brought back to England by her captors. There she 
 was liberated, and after repairs was again placed at the disposal of 
 the charterer ; but he refused to give any directions for the voyage, 
 and renounced the charter party. The shipowner brought an action 
 
 («) Abbott (5th), 333 ; (13th), 617 ; voyage out and in, and the ship be oast 
 
 Maol. (3rd), 483. away on the homeward voyage, no 
 
 («) Lord Mansfield said : — ' ' This ques- freight is due, no wages are due, because 
 
 tion depends upon the construction of the whole profit is lost ; and by express 
 
 the charter party. If. the parties have agreement the parties may make the 
 
 expressed their meaning defectively, the outward and homeward voyage one. 
 
 Court must be guided by the nature of Nothing is more common than two 
 
 the thing. " The charter party puts no voyages ; wherever there are two 
 
 . case but that of a prosperous voyage out voyages, and one is performed, and the 
 
 and home ; it provides for freight on the ship is lost in the homeward voyage, 
 
 supposition that the ship wiU arrive safe freight is due for the first. Here the 
 
 and report her cargo. No provision is outward and homeward voyage are so 
 
 made for any other case. If the ship callecIMn the charter party. The cargo 
 
 be cast away on the coast of England is loaded outwards, and the owner 
 
 and never arrive at the port of London, covenants to pay port charges on the 
 
 yet, if the goods are saved, freight outward voyage. The whole of that 
 
 shall be paid, because the merchant voyage was completed : port duties are 
 
 receives advantages from the voyage. incurred and paid. Nothing, however 
 
 This is not expressed by the charter is due on the homeward voyage, though 
 
 party, but arises out of the equity of the the ship might be out a month." 
 case. Freight is the mother of wages, (d) Byrne v. Pattinson, Abbott (5th), 
 
 the safety of the ship the mother of 335; (13th), 619; Macl. (3rd), 485. 
 freight : that is the general rule of (e) 8 East, 437. Cf. Liddard v. Lopez, 
 
 maritime law. If there be one entire 10 East, 526. 
 
650 
 
 THE DELIVERY. 
 
 Meaning of 
 "month," 
 "calendar 
 mouth." 
 
 Sect. 571. for the full freight whioh would have been earned had the voyage 
 been completed. But it was held that his readiness to perform the 
 voyage did not entitle him to the fi'eight ; for the right to pay- 
 ment of that depended on his arrival at the destined port ia Great 
 Britain, and the most the shipowner could do was to endeavour to 
 complete the voyage ; he could not ensure its accomplishment. 
 
 571a. The word "month" in a charter party, as in other com- 
 mercial contracts, is understood to mean " calendar month," unless 
 the context indicates the contrary (/). 
 
 A " calendar month " is computed by proceeding from the given 
 day in one month to the day with the corresponding number in 
 the next month. For example, noon of April 30th to noon of 
 May 30th is a calendar month (ff) . As, however, a part of a day 
 is in law reckoned as a whole day, where no intention to the con- 
 trary is expressed (h), a charter for a month which began at any 
 time on April 30th would expire at the close of May 29th. 
 
 If the succeeding month, being shorter, has no day with a 
 number corresponding to that of. the day of commencement, 
 the calendar month expires at the close of the last day of that 
 month (i). Thus, a charter for one calendar month which began 
 to run on January 30th would expire at the close of February 28th 
 in an ordinary year, and at the close of February 29th in leap 
 year. 
 
 Where a contract is made for a period "from" a particular date, 
 the rule is to exclude the day of the date named. So that a policy 
 "for twelve calendar months from November 24th, 1887," was 
 held to extend to and include November 24th, 1888 (A-). 
 
 And where something is to be done "within" a specified period, 
 after some event, the day of the event happening is excluded (/). 
 
 Time ocou- 572. If the charterer is to pay at a given rate, in proportion to 
 
 pied in •. ....... , 'i.x- 
 
 repairs not the time the ship IS m his employment, he will not be allowed to 
 
 (/) See Jolly v. Young, 1 Esp. 186 ; 
 Hart V. Middleton, 2. 0. & K. 9. Cf. 
 Turner i. Barlow, 3 F. & F. 949. In 
 Acts of Parliament, also, ' ' mouth ' ' 
 means calendar month: 13 & 14 Vict, 
 c. 21, 8. 4. 
 
 (g) Freeman v. Head, 4 B. & S. 174. 
 
 (A) Glaasington f. Rawlins, 3 East, 
 407; Eeg. V. St. Mary, Warwick, 22 
 L. J., M. C. 109 ; Angier v. Stewart, 1 
 
 C. & E. 359 ; and see infra, s. 631. 
 
 (i) Migotti V. ColviU, 4 C. P. D. 233. 
 
 (k) South Staffordshire Tramways Co. 
 V. The Sickness, &c. Association, (1891) 
 1 Q. B. 402 ; and see Sickness, &o. 
 Assoc. V. General Accident Ass. Corp., 
 19 Sess. Ca. (4th) 977. • 
 
 (l) Havdy v. Eyle, 9 B. & C. 603 ; 
 EadoUffe v. Bartholomew, (1892) 1 
 Q. B. 161. 
 
FREIGHT. 651 
 
 make any deduction for time during whicli she may have been laid Sect. 572. 
 up for repairs, unless this has been stipulated for. And that is so deducted 
 even where the charter expressly makes it the duty of the ship- gtip^ated. 
 owner to keep the ship in repair (m). 
 
 The same is true of other detentions which may occur. If they 
 arise owing to defaults of the shipowner, there may be a counter- 
 claim against him ; but in the absence of agreement to the con- 
 trary, the time for which the freight is to be paid runs without 
 a break, from the beginning to the end of the agreed voyage or 
 service («). 
 
 In Hough V. Head(o), a time-charter provided that, "in the 
 event of loss of time by deficiency of men, collision, breakdown of 
 engines, and the vessel becomes incapable of steaming or proceeding 
 for more than forty-eight working hours, payment of hire to cease 
 until such time as she is again in an efficient state to resume her 
 voyage." Also, damages of the seas and other perils were mutually 
 excepted. In the course of a voyage under the charter, the 
 vessel struck something with her bottom ; but she made no water, 
 and continued working for some months after ; until, on being put 
 into dry dock for inspection, it was found that her keel had been 
 broken, and considerable damage had been done to her bottom. 
 The charter was still running, and the charterer claimed exemption 
 from payment of the hire until the vessel should be fit to resume 
 employment. In an action against underwriters for the freight 
 thus lost, it was held that the charterers were not entitled to refuse 
 to pay the freight; the cause of the loss of time not being a 
 " collision." 
 
 In Hogarth v. Miller (p), a time-charter provided that " In the 
 event of loss of time from . . . breakdown of machinery, 
 want of repairs, or damage whereby the working of the vessel is 
 stopped for more than 48 consecutive hours, the payment of the 
 hire shall cease until she be again in an efficient state to resume 
 her service." The vessel put back to a port of refuge owing to a 
 breakdown of her high-pressure engine. A tug was sent out by 
 
 (»«) Havelookii. Geddes, 10 East, 553 ; -(o) 54 L. J., Q,. B. 294 ; affirmed, tut 
 Ripley v. Soaife, 6 B. & C. 167 ; i°* "'^ t^^ point mentioned in the text, 
 
 United States.^. Shea, 152 IT. S. 178, ^^ ^- ^■•^- ^„*^-.^,, . ,^, , ^ ^^ 
 
 [p) 16 Seas. Oa. (4th) 699. As to the 
 
 (^°° )■ expenses at a port of refuge under a 
 
 (m) SeelnmanS.S. Co. d. Bisohoff, 6 charter of this kind, see The Durham 
 
 Q. B. D. 648 ; 7 A. 0. 670. City, 14 P. D. 85. 
 
652 THE DELIVERY. 
 
 Sect. 572. the shipowners, under arrangement with the charterers, and the 
 vessel proceeded with the aid of the tug, partly using her own 
 engines, to her destination, and there discharged her cargo. 
 Lord Trayner held that the hire continued ; the vessel having in 
 fact carried the cargo, though she was less efEeient than but for 
 the breakdown she would have been. This was, however, reversed 
 by the Court of Session, mainly on the ground that the arrange- 
 ment under which the tug was sent out had determined the matter. 
 On appeal to the House of Lords {q), it was held that the hire 
 ceased to run from the date of the breakdown until the arrival at 
 the destination ; but that the shipowners were entitled to payment 
 during the period of the discharge, as the vessel was then efficient 
 for that purpose. 
 
 In Moorsom v. Greaves (r), the ship was chartered for a voyage 
 to any port or ports in St. Domingo, and back to London, and the 
 charterers were to pay 6,300/. for the first eight months, " and if 
 she should take up longer in completing the said voyage, then at 
 the rate of 47s. &d. per ton per month for such further time as 
 she should be so employed or engaged." The ship discharged 
 part of her outward cargo at Port au Prince, and was then 
 ordered by the charterer's supercargo to go to Cape Nichola Mole. 
 That place at the time was blockaded, and the ship was seized in 
 attempting to run the blockade, and was detained between five and 
 six weeks. After being liberated, she returned to Port au Prince 
 and took in a homeward cargo, which she brought to London. 
 The whole adventure lasted thirteen nionths. Lord Ellenborough 
 held that the charterers were liable for the whole period. "As 
 the ship was taken in proceeding to Cape Nichola Mole by order 
 of the supercargo, the voyage was never discontinued; and the 
 freighters were answerable for the subsequent detention in the 
 same manner as if it had arisen from contrary winds or from an 
 embargo." 
 Government 573. In Government charters it has long been the practice to 
 
 charters. • n 
 
 insert a clause empowenng Commissioners of Transport, or of the 
 Admiralty, to make an abateraent from the time-freight payable 
 for the chartered ship if delay has occurred owing to breach of 
 orders, or neglect of duty by the master, or owing to the ship 
 becoming incapable of performing the service. In Beatson v. 
 
 (j) (1891) A. C. 48 ; dies. Ld. Bramwell, who agreed with Ld. Trayner. 
 (r) 2 Camp. 626. 
 
FREIGHT. 653 
 
 Schenck (s), the charter provided for this ahatement, in case of loss Sect. 573. 
 of time " from the ship's inability to execute or proceed on the " inability to 
 service on which she might he employed; " and it was held that pjoggg^?)"^ 
 an inability to proceed which arose from loss of the crew, through 
 small-pox, and an impossibility of getting others, was within the 
 clause. 
 
 How calculated and paid. 
 
 574. The rate at which the freight is to be paid is generally Where no 
 stated in the bill of lading or charter party. If it is not stated, 
 
 but the contract shows that freight is to be paid, it must be 
 calculated at the ordinary rate ruling at the time when the ship- 
 ment was made. In Grumm v. Tyrie {t), a cargo had been shipped 
 which was to become the property of the owners of the ship on 
 certain contingencies, and the bill of lading made it deliverable 
 
 " to order , who on faithful delivery thereof being shown 
 
 shall pay me. for freight and conveyance." No rate of 
 
 freight was stated, and the space which would usually contain the 
 statement was filled up by a black line drawn along it. It was 
 held that the bill of lading holders must pay freight for the cargo. 
 
 575. But where the bill of lading expresses that the goods are Freight free. 
 to be carried freight free, or at a nominal rate, the holder of the 
 
 bill of lading is entitled to have them upon paying what is 
 reserved, and cannot be called upon to pay more. That course is 
 frequently adopted when goods are shipped on account of the ship- 
 owners. And questions sometimes arise between holders of the ♦ 
 bills of lading, who have advanced on the goods, and assignees 
 or representatives of the shipowner. 
 
 It is clearly decided that a mortgagee of the ship, who takes Power of 
 possession of her after the goods have been shipped under the contr°aot"at ° 
 contract, cannot claim more freight than the contract stipulates ''°™i'^'- 
 for (m). The shipowner in possession has power to employ the withstanding 
 ship in carrying goods freight free, or at nominal freights, although 
 she has been previously mortgaged. 
 
 So where the ship has been sold the purchaser only takes her 
 subject to the existing contracts. 
 
 (s) 3 East, 233. («) Keith v. Burrows, 2 C. P. D. 163 ; 
 
 («) 33 L. J., Q. B. 97 ; 34 L. J., Q. B. 2 A. C. 636 ; Brown v. North, 22 L. J., 
 124. Ex. 49 ; infra, s. 692, 
 
654 THE DELIVERY. 
 
 Sect. 575. In Mercantile Bank v. Gladstone (x), cotton had been shipped 
 at Calcutta, under bills of lading which made it deliverable to the 
 defendants' order, freight "for the said goods free on owner's 
 account." This was done- under an arrangement between the 
 defendants and Fernie & Co., who were the owners of the ship. 
 But before the shipment had been effected, Fernie & Co. had 
 transferred the ship to the plaintiffs ; and it was contended that 
 the master had no authority to sign bills of lading in that form, 
 and that the plaintiffs were entitled to freight. It was held that 
 the master retained the authority he had received from Fernie & 
 Co. until he received notice of the change of ownership. 
 
 Bramwell, B., said (y): "I am very clearly of opinion that they 
 (the plaintiffs) cannot recognize the act of the captain in receiving 
 goods on board, and at the same time say that they will not be 
 bound by the terms upon which he received them. It seems to 
 me, therefore, that the fact that the plaintiffs are the buyers of 
 the ship makes no difference in the liability of the defendants; 
 it does not make them parties to a contract into which they 
 never entered." 
 
 The goods were there claimed by the defendants as unpaid 
 vendors, on the failure of Fernie & Co. ; and it was contended that 
 freight became payable as the goods ceased to be on Fernie & Co.'s 
 account. But that contention also did not avail. The goods were 
 freight free, whatever might happen. 
 
 In Miller v. "Woodfall (s), the question arose whether any freight 
 was payable upon goods which were being carried by the ship- 
 owners on their own account, in a ship which was wrecked on the 
 voyage, and abandoned to the underwriters ; the cargo being 
 brought on in her after the abandonment. The voyage was from 
 St. John, New Brunswick, to Liverpool ; the ship went ashore at 
 Southport, where notice of abandonment was given; and after 
 some of the cargo had been lightered to Liverpool, she was towed 
 in with the remainder. It was held that the underwriters were 
 entitled to compensation for the use of the ship, after the casualty, 
 in respect of so much of the cargo as was carried in her from 
 Southport to Liverpool ; but not to freight for the voyage from 
 St. John to Liverpool. 
 
 On the other hand, there is no reason why goods shipped on 
 
 {x) L. E., 3 Ex, 233. (y) L. K., 3 Ex. at p. 240. («) 27 L. J., Q. B. 120. 
 
FREIGHT. 655 
 
 behalf of the owner of the vessel should not he liable to freight. Sect. 575. 
 If a bill of lading be made out for the goods, reserving a freight, 
 a consignee, or indorsee from the owner, is only entitled to claim 
 them subject to payment of that (a). 
 
 576. The amount of freight is generally to be determined by Measurement 
 reference to some standard of weight or measurement specified in fre^ht.^ 
 the contract. The goods are to be weighed or measured in order 
 to calculate the payment. The question when this is to be done is 
 frequently left undetermined ; and as the weight or the measure- 
 ment of the same goods differs at different times, it may be a 
 matter of importance (6). 
 
 In the absence of agreement, or of a uniform custom of trade, to Lowest to be 
 the contrary, the rule is that, if the weights or measurements at 
 the loading port and the port of delivery differ, the lowest weight 
 or measurement is to be taken in calculating the freight. So that 
 if the cargo has swelled on the voyage, the freight is payable on 
 the quantity as shipped ; while if it has wasted, as by drainage or 
 evaporation, the quantity to be taken is that on delivery (c). 
 
 This agrees with the other rules as to freight. For, on the one 
 hand, the contract is made with reference to the goods delivered to 
 be carried, and not with regard to any water or foreign substance 
 which may get into them during the voyage, and so increase their 
 bulk and weight ; and, on the other hand, freight is not payable 
 upon any part of the goods which may have been lost on the 
 voyage, whether by wasting or otherwise. 
 
 The matter seems to have been first definitely decided, in 
 England, in Gibson ». Sturge ((f). There a cargo of wheat was 
 shipped under a bill of lading, which described it as 3,700 chetworts 
 (2,664 quarters), but which contained the words " Quantity or 
 quality unknown." On delivery it was found that the wheat had 
 increased in measure to 2,785 quarters. The cause of this was 
 unknown, but the majority of the Court assumed that it was due 
 to an absorption of water. Pollock, C. E., and Alderson and 
 Piatt, BB., held that the freight was payable on the number of 
 quarters shipped. Martin, B., dissented. The rule laid down was, 
 
 (a) Wegueliav. Cellier,L.E., 6H.L. tli^t is expressly agreed: supra, sa. 69 
 nog et seq. ; Q-eraldes v. Donison, Holt, 346. 
 
 («) But of. per WiUes, J., in Dakin v. 
 (i) The statement of quantity m the Oxlev 33IiJ CPullQ 
 
 till of lading is not conclusive, unless ((?) 24 L. J., Ex. 121. 
 
656 
 
 THE DELIVERY. 
 
 Sect. 576. that tlie freight is to he paid " on that amount alone which is put 
 on hoard, carried throughout the whole voyage, and delivered at 
 the end to the merchant" (e). 
 
 Martin, B., dissented, mainly on the ground that a rule which 
 required the measurement to he taken at the port of loading 
 would he highly inconvenient, and might enable the consignees of 
 cargo to raise questions for the purpose of delaying payment of 
 the freight. He said : " In my opinion, therefore, in the ahsence 
 of contract upon the subject, and considering what is most just 
 and reasonable, what is most analogous to cases of a similar kind, 
 and what is the most convenient practical rule upon the subject, 
 and the most beneficial to all parties interested, the measurement 
 at the port of delivery affords a test for the ascertainment of freight 
 preferable to that of measurement at the port of loading." 
 
 Pollock, 0. B., replied to this view that if the experience of 
 commerce had discovered that measurement at the port of dis- 
 charge was most convenient, a usage in the matter would have 
 been established. As there was no evidence of any such usage, he 
 inferred there was no such convenience as ought to influence them 
 in establishing a rule. On the other hand, the rule laid down by 
 Martin, B., would tend to encourage fraud and negligence on the 
 part of masters, for they would be able to increase the freight by 
 injuring the cargo. 
 
 The judgment of the majority of the judges in that case was 
 approved, and followed, by the Courts of Exchequer and Ex- 
 chequer Chamber, in Buckle ». Knoop (/). There the cargo was 
 of cotton, shipped under a charter party, by which freight was to 
 be paid at the rate of " 75s. per ton of 50 cubic feet delivered." 
 The cotton had been highly pressed shortly before shipment, at 
 Bombay, and when unloaded at Liverpool, being released from 
 the confined space of the hold, it expanded very considerably — 
 beyond, indeed, what the ship could have contained. It was held 
 that the freight was payable on the measurement of the cotton at 
 Bombay. 
 
 Special 577. This rule will not be followed if the parties express them- 
 
 selves clearly to a contrary effect. 
 
 In Buckle v. Knoop (/), the word " delivered" in the clause, 
 " and deliver the same ... on being paid freight as follows, 
 
 (e) Per Alderson, B., 24 L. J., Ex. at p. 126. (/) L. E., 2 Ex. 125, 333. 
 
FEEIGHT. 657 
 
 viz., 75s. per ton of 50 cubio feet delivered for cotton and/or wool," Sect. 577. 
 was held to have reference to what cargo was to he paid upon, not 
 to the time at which the measurement was to he taken. It there- 
 fore did not prevent the application of the ordinary rule. 
 
 But in Coulthurst v. Sweet [h), where the words were " paying 
 freight for the said goods at the rate of 3/. sterling per ton of 
 20 cwt., nett weight delivered" the intention to pay on the delivery 
 weight was considered clear ; and it was held that excess freight, 
 paid under protest upon the shipping weight stated in the bill of 
 lading, in order to obtain possession of the goods, might be 
 recovered back («). In that case, however, the bill of lading 
 adopted the ordinary rule, for the goods (green bark) would 
 naturally be lighter on delivery than on shipment. 
 
 It is not unusual, in carrying grain, for the shipowner to 
 stipulate that, "in the event of the cargo or any part thereof 
 being delivered in a damaged or heated condition, the freight 
 shall be payable upon the invoiced quantity taken on board, as 
 per the bill of lading, or half freight upon the damaged or heated 
 portion, at the captain's option, provided no part of the cargo be 
 thrown overboard or otherwise disposed of on the voyage." Where 
 a charter party containing this clause also provided that the freight 
 should be at the rate of " 7s. per imperial quarter delivered," and 
 a small part of the cargo was damaged by heating, it was held 
 that the captain was entitled to elect to be paid on the quantity 
 taken on board, as shown in the bill of lading ; and that it was no 
 bar to his right to do so, that the bill of lading contained the 
 memorandum " quantity and quality unknown" {k). 
 
 578. In Spaight ®. Farnworth {I), the charter party provided "Intake 
 that the freight on the cargo of deals, battens, &c. should be paid ^^^ntity" 
 at the rate of 3/. 5s. per St. Petersburg standard hundred of 1,980 delivered." 
 superficial feet, and on deal-ends at the rate of 21. Is. Bd. per the 
 Hke hundred, eight feet and under. " Freight payable on deals 
 and sawn lumber on the intake measure of quantity delivered." 
 
 A cargo was shipped at St. George's, New Brunswick, and a 
 bill of lading was signed for a specified number of pieces of deals, 
 battens, and scantling, and for a specified number of pieces of 
 deal-ends, freight to be paid as per chaxter party. According to 
 
 {h) L. R., 1 C. P. 649. {k) TuUy v. Terry, L. E., 8 0. P. 679. 
 
 (i) Of. Shand v. Grant, 9 L. T. 390. [I) 5 Q. B. D. 115. 
 
 C. — C. ' U U 
 
658 
 
 THE DELIVERY. 
 
 Sect. 578. the usual course at St. George's, tlie timber was measured by the 
 shipper on the method known as the overall measurement, and the 
 shipper made up a specification showing the number of pieces 
 shipped of various dimensions. The dimensions of each piece were 
 chalked upon it before shipment. 
 
 On the voyage some of the deal and deal-ends were lost. And 
 on some of the pieces deKvered the chalk-marks had become oblite- 
 rated. The question was, how was the freight on these to be 
 ascertained? The defendants claimed to remeasure them at 
 Liverpool, the place of discharge, on the overall method, and pay 
 on that. But this mode would have brought out the pieces lost 
 as abnormally large, if the specification was accurate. The ship- 
 owners, on the other hand, claimed to treat the sizes of those 
 pieces as being of the fair average of the cargo ; to deduct the 
 proportion which they bore, on that assumption, to the rest of the 
 cargo ; and to receive freight for the remainder on the St. George's 
 specification. 
 
 Bowen, J., adopted the shipowners' contention as being better 
 directed to the true problem to be solved, viz., to discover the 
 intake figures and dimensions actually attributed at the port of 
 loading to the cargo which was delivered. " The plain meaning 
 of the words in the charter party is that freight is to be paid on 
 the intake, that is to say, the shipment measure or dimensions of 
 the actual quantity delivered ; the measure, that is to say, which 
 the surveyors put upon the timber when it is measured for the 
 purposes of the specification before shipment alongside the ship. 
 I see no reason for attributing to the words ' intake measure ' the 
 less obvious meaniag, ' intake method of measurement ' " (m). 
 
 Usages as to 579. Again, the rule as to measurement may be controlled 
 measurement. , . 
 
 by an established uniform usage in the particular trade. In 
 
 Bottomley v. Forbes (w) the freight on cotton shipped at Bombay 
 
 was to be paid on a calculation of fifty cubic feet to the ton. It 
 
 was held that evidence was admissible, to explain the meaning of 
 
 the contract, of a usage at Bombay to pay on the measurement 
 
 taken at Bombay before loading. 
 
 It is said that in the West India trade the freight on sugar and 
 
 («i) At p. 118. Cf. Fullagseue;. Wal- qn&niiiy dLeliYeied., as ascertained at the 
 
 ford, 1 Cab. & Ell. 198. These timber pm-t of discharge." 
 
 ohartersnow sometimes make the freight («) 5 Bing. N. C. 121. So, also, 
 
 payable "on the intake measvirements of Buckle v. Knoop, L. R., 2 Ex. 126, 333. 
 
FEEIGHT. 659 
 
 molasses is regulated by the weight of the casks at the port of Sect. 579. 
 delivery ia this country (o). That weight is always less than the 
 weight on shipment, so that here also the customary rule accords 
 with that estahlished by law in the absence of custom or agreement. 
 In Young V. Canning Jarrah Timber Co. {p), the cargo was to 
 consist of " 9 in. X 3 in. planks of reasonable lengths ; " planks 
 were shipped whose cross-measurements exceeded those dimensions. 
 By the custom, in London, of the hardwood timber trade fractions 
 of a quarter of an inch are disregarded in measuring cross-dimen- 
 sions. Held, that the freight must be ascertained by measuring 
 the planks in accordance with the custom. 
 
 580. Where there is an ambiguity in the meaning of the words AmHgrdtyas 
 used to describe the standard, or the mode of measurement of the measurement. 
 cargo, the true meaning must be ascertained by considering the 
 circumstances under which the contract was made, and the ordinary 
 practice of the particular trade (q). The matter to be determined 
 is, what meaning did the parties attach to the words when they 
 made the contract ? 
 
 But if the contract itself indicates the meaning to be given, that 
 will of course be adopted. In The Skandinav (r), the charter party 
 provided that freight on a cargo of props should be "at and after 
 the rate of 35s. British sterling, in full per 180 English cubic feet 
 taken on board as per Gothenburg custom." The cargo was 
 shipped at Werkeback for Hull, and was not measured before 
 loading. On arrival at Hull it was measured on the English 
 method, which is more favourable to the cargo owners than the 
 Gothenburg method of measuring. The Court of Appeal, reversing 
 the judgment of Sir E. Phillimore, held that freight was payable 
 on the quantity ascertained on the Gothenburg method. "The 
 Court must adopt a construction which has a meaning with refer- 
 ence to the facts of the case. ... It has been proved that there 
 is a particular custom or method of measuring props in use at 
 Gothenburg. There is no other custom to which the words in the 
 charter party can apply but that. It was suggested on the part 
 of the respondents that the custom mentioned had reference to the 
 
 (o) Abbott (3th), 296 ; (13th), 579 ; (?) See Nielsen v. Neame, 1 Cab. & 
 
 Gibson V. Sturge, 24 L. J., Ex. 121. Ell. 288. 
 
 Xp) 4 Com. Ca. 96. (r) 50 L. J., P. 46 ; 51 L. J., P. 93. 
 
 TJU2 
 
660 
 
 THE DELIVEEY. 
 
 Sect. 580. Qianner of loading the vessel ; but there is no evidence at all of 
 any such custom " (s). 
 
 Bill of lading 581. Unless the freight is expressly to he paid upon the quan- 
 coBclusive titles stated in the hill of lading, those quantities are not conclusive. 
 
 nn I psa so 
 
 agreed. They have generally been put in by the shipper, and if so may be 
 
 used against him as admissions. If they were accepted as correct 
 by the master, they are also evidence against him and against the 
 shipowner. But either party is generally at liberty to show that 
 there has been a inistake in the statement {t) . If, however, the 
 freight is expressly to be paid upon the quantity as stated in the 
 bin of lading, it is not open to either party, in the absence of 
 fraud, to vary the amount by showing that the statement was not 
 correct (m). 
 
 In Blanchet v. Powell's Llantivit Collieries Co. (x) the master, 
 by the bill of lading, acknowledged receipt of 256,782 kilos, of 
 timber, to be delivered to the " bearer or his order on his paying 
 me 3,441 shillings and 41. gratuity." The cargo, on delivery, 
 turned out less than the stated quantity ; but it was held that the 
 whole lump sum of 3,441 shillings must be paid to the master. 
 
 In MoUer v. Living (y) the shipment was of wheat, described in 
 the bill of lading as " 100 lasts in 2,092 bags," and the freight pay- 
 able was 14/. sterling per last of wheat taken in. The shipment was 
 at Dantzic, for London ; the bills of lading were in German ; and 
 the plaintiff (the master apparently) was a Prussian. He claimed 
 freight for as many lasts as the cargo was believed to amount 
 to according to English measurement, and this appears to have 
 accorded with the number stated in the bill of lading. But it was 
 shown that the Dantzic " last " was greater than the English (by 
 a difference varying from one-tenth to one-twentieth) ; and the 
 defendant contended that the freight was payable on so many lasts 
 as the cargo would amount to by Dantzic measurement. The jury 
 took that view. But their verdict was overruled by the Court. 
 Lord Mansfield, giving judgment, said : " We are of opinion that 
 we cannot distiuguish this contract from the usual case of written 
 contracts, where there is no ambiguity, and that on this contract 
 
 («) Per Jessel, M. K., 61 L. J., P. 10 C. P. 662 ; McLean v. Meming, 2 
 p. 94. Cf. MoUer v. LiTing, 4 Taun. H- I--. So. 128. 
 
 102. M Tully I). Terry, L. R., 8 C. P. 679. 
 
 (x) L. E., 9 Ex. 74. 
 
 *) Bro-wn v. Powell Coal Co., L. E., (j,) 4 Xavin 102 
 
PEEiaHT. 661 
 
 the captain has agreed to carry, and the freighter has agreed to Sect. 681. 
 
 pay for, the quantity mentioned in the contract, and that is 100 
 
 lasts ; that they are bound hy the words of this hill of lading as 
 
 they would be by any other written instrument; and that it is 
 
 irrelevant for them to inquire whether it is Dantzic measure or 
 
 English measure; the instrument describes not merely 100 lasts, 
 
 but 100 lasts very specifically mentioned as contained in so many 
 
 bags ; and I am of opinion that if evidence had been offered, as in 
 
 truth it was not, for showing what was the real quantity, it ought 
 
 not to have been received." 
 
 582. Where it is necessary to weigh or measure the cargo in Expense ol 
 order to ascertain the freight to be paid, the expense of weighing 
 or measuring is payable by the shipowner, unless the matter is 
 regulated by agreement or usage. " In the absence of any custom 
 to govern the matter, the person who wants to ascertain the quan- 
 tity must incur the trouble and expense of weighing. It is by no 
 means an uncommon thing to have goods weighed on board ; but I 
 never heard of the merchant being called upon to pay for it " (z). 
 
 In Watts V. Grant {a), however, tried in Scotland in 1889, it Grain trade, 
 was found that in the grain trade it is the custom for the merchant 
 to bear the expense of weighing and measuring the cargo ; though 
 that is necessary for the purpose of ascertaining the freight pay- 
 able. The question arose with reference to a cargo of wheat from 
 the Black Sea, discharged at Aberdeen, but evidence was received 
 as to the practice in other British ports, and with respect to grain 
 cargoes from other places ; with the result that the judge found 
 " an almost universal consensus to the effect that the consignee 
 must pay for the weighing and bushelling of the cargo." It 
 appeared that the chief part of the necessary expense (weighing) 
 was expense which the consignee would ordinarily incur for his 
 own purposes, apart from the calculation of the freight. 
 
 Sometimes an option is given to the consignee to pay freight on 
 the bUl of lading quantity, or to have the cargo weighed. In 
 The Hollinside (5), freight was to be paid at the rate of 9s. per 
 ton delivered, or on the bill of lading quantity less 2 per cent., at 
 receiver's option. Weighing, if done, was to be at his expense. 
 A further clause required the receiver to effect the discharge of 
 
 (?) PerWiUes, J., Ooulthurst ». Sweet, L. E., 1 0. P., p. 654. 
 
 (a) 26 So. L. E. 660. (6) (1898) P. 131, 
 
662 
 
 THE DELIVERY. 
 
 scales. 
 
 Sect. 588. the cargo, steamer paying 1 franc per ton. It was held that the 
 two clauses must he read together, and that if the receiver elected 
 not to weigh, he could only claim payment for discharging upon 
 the hiU of lading weight less 2 per cent. 
 
 Freights pay- 583. Freights in some trades are fixed hy reference to certain 
 to agreed agreed scales of freight for different goods. In these scales a 
 numher of different kinds of merchandise are specified, and the 
 propoi-tions are fixed in which the freight upon them respectively 
 is to he paid. So that if the contract states the rate of freight 
 for one kind, the corresponding rates for other kinds are at once 
 known. 
 
 In Eussian Steam Navigation Co. v. Silva (Jb) the freight on some 
 hales of wool was made payahle, hy the hill of lading, " at the rate 
 of 80s. sterling per ton of 20 cwt., gross weight, tallow, other goods, 
 grain, or seed, in proportion, as per London Baltic printed rates." 
 Evidence of merchants was received showing that the meaning of 
 this clause was, not that 80s. per ton should he paid on the wool, 
 hut that tallow was to he the standard, and the rates on other 
 goods were to he in proportion to 80s. per ton for tallow. And 
 that was held to be the true meaning of the clause. 
 
 583a. Charter parties for fixed or lump sum freights are made 
 in various ways. Often the sum payahle is defined by a specified 
 rate upon some measure of the ship's capacity, as her " registered 
 tonnage," or " dead weight capacity," and doubt as to the meaning 
 sometimes arises. 
 
 In S.S. Heathfield Co. v. Eodenacher (c), the ship was to load a 
 full and complete cargo of sugar in bags, &c., and she was 
 "guaranteed by owners to carry 2,600 tons dead weight, ex- 
 cluding bunkers." The freight was to be at a certain rate " all 
 per ton dead weight capacity as above." It turned out that the 
 ship could carry 2,950 tons of cargo. The charterers loaded 
 2,673 tons, and they contended that freight was only payable at 
 the agreed rate on 2,600 tons. But the Court of Appeal, affirming 
 Mathew, J., held that the charterers were bound to ship a " full 
 and complete cargo " of 2,950 tons, and that the freight was to be 
 payable at the agreed rate upon that quantity. 
 
 In S.S. Eotherfield Co. v. Tweedy {d), the ship was to load under 
 a berth-note a full cargo of wheat, at a certain rate "per ton on the 
 
 (b) 13 0. B., N. S. 610. [e] 2 Com. Ca. 55. (<;) 2 Com. Ca. 84. 
 
 Lump SI 
 freights, 
 
FREIGHT. 663 
 
 guaranteed d.w. capacity of 4,250 tons " ; and the note contained Sect. 583a. 
 a guarantee by the owners that the steamer could carry 4,250 tons 
 dead weight. The 4,250 tons included her hunker coals, and she 
 only took on hoard 3,947 tons of cargo. It was held by Collins, J., 
 that on the true construction of the note the freight was only 
 payable upon 3,947 tons, not upon 4,250 tons. 
 
 584. The freight is payable in cash, and without deduction, Modeofpay- 
 unlesB the contract provides otherwise ; and, presumably, it should 
 
 be paid in the currency of the place of payment. 
 
 In Brown v. Byrne (e), however, the payment was held to be Custom of the 
 governed by a custom at the port of discharge, by which a deduc- charge, 
 tion was allowed from the fuU agreed rate. Cotton had been 
 shipped at New Orleans for Liverpool under a bill of lading, 
 reserving freight for the goods " five-eighths of a penny sterling^ 
 per pound." It was admitted that, according to the usual custom 
 among merchants and shipowners at Liverpool, three months' 
 interest or discount is deducted from freight payable under bills 
 of lading, on goods coming from New Orleans, and certain other 
 American ports. And the indorsee of this bill of lading claimed 
 to be entitled to make that deduction. It was held that the custom 
 was not inconsistent with the contract, and that he was entitled to 
 do so. 
 
 If by the agreement payment is to be by acceptances, it is for Payment by 
 the master, or representative of the ship, to prepare the bills. The ^' 
 consignee is not bound to tender them in order to entitle himself 
 to the cargo ; it is enough for him to offer to accept if the master 
 will draw them (/). But where the payment is to be by good and 
 approved bills, the consignee must procure and tender them {g). 
 
 If the consignee is to pay in bills or cash at his option, and he 
 elects to pay in cash, the shipowner's lien on the goods continues 
 ■until cash has been given {h). 
 
 585. The effect of taking a bill of exchange for the freight is to EfEeot of 
 suspend the right to claim payment in any other mode while the ***""^ ^ °'"^- 
 bill is running ; but it does not usually operate as a discharge of 
 
 the freight, and the claim revives upon a dishonour of the biU, if 
 it is in the shipowner's hands (»). The question, however, is one 
 
 (e) 23 L. J., Q. B. 313. 348. 
 
 (/) Luaid V. Butcher, 2 0. & K. 29. (») Tapley v. Martens, 8 T. K. 461 ; 
 
 {g) Tate v. Meek, 2 Moore, 278. Marsh v. Pedder, 4 Camp. 257 ; Taylor 
 
 (A) Paynter v. James, L. K., 2 C. P. v. Briggs, M. & M. 28. 
 
664 
 
 THE DELIVERY. 
 
 Sect. 585. of intention, and if it was intended that the Mil should be a full 
 satisfaction of the claim for freight, both against the person giving 
 the bill, and against others who would have been liable, they will 
 be discharged. The master has authority to take a bill instead of 
 cash, so as to bind the owners (/«) . 
 
 As against the shippers, who are liable for the freight if it be 
 not paid by the consignees, the claim may, it seems, be discharged 
 by taking a bill, although in doing so it was not intended to dis- 
 charge the consignees themselves. This is the case if the master 
 takes the bill for his own convenience, when he might have got 
 cash. In Strong v. Hart {I), the receivers of a cargo, under bills 
 of lading which made the freight payable by them, gave the master 
 a bin of exchange for it ; but they failed before the bill became 
 due. In an action for the freight brought against the shippers of 
 the cargo, the jury were directed by Abbott, C. J., to find for the 
 defendants if they thought that the master took the bill voluntarily, 
 and for his own convenience, without insisting upon payment in 
 cash ; but to find for the plaintiffs if they thought that the master 
 took the bill because he could not obtain payment in cash. The 
 jury found for the defendants, and the direction was upheld by the 
 Court. Bayley, J., said, " The onus of proving that he could not 
 obtain payment in any other mode lay on the plaintiffs." 
 
 586. The consignee, or person liable for the freight, is not 
 entitled to deduct claims for damages to which he may be entitled 
 against the shipowner, though they may have accrued in respect of 
 breaches of the contract under which the- freight is payable {m) . In 
 Meyer v. Dresser (m), an attempt was made to prove that it was the 
 universal custom of merchants to make such deductions in paying 
 the freight ; but the Court held that such a custom could not have 
 any effect to contradict the settled rule of law. 
 
 It is, however, sometimes expressly agreed that claims shall be 
 deducted. In " Grarston " Co. v. Hickie («), the charter party pro- 
 vided that the freight should be paid at a certain rate on the 
 quantity delivered ; it then expressed that certain perils were 
 
 Claims for 
 damage may 
 not be de- 
 ducted. 
 
 Unleaa 
 
 expressly 
 
 agreed. 
 
 (k) Anderson v. HiUies, 21 L. J., 0. P. 
 150. 
 
 (I) 6 B. & C. 160. 
 
 (ot) Meyer v. Dresser, 33 L. J., C. P. 
 289 ; Seeger v. Duthie, 29 L. J., C. P. 
 253 ; 30 L. J., C. P. 65. Cf. Campljell 
 V. Thompson, 1 Stark, 490. But the 
 
 consignee may counter-claim for the 
 damages: see Judicature Act, 1873, 
 s. 25 (6) ; Young v. Kitchiu, 3 Ex. D. 
 127. Cf. Pellas v. Neptune Mar. Ins. 
 Co., 5 C. P. D. 34 ; Ee MUan Tram- 
 ways Co., Ex parte Theys, 22 Ch. D. 
 122 ; 25 Ch. D. 687. 
 (») 18 Q. B, D. 17, 
 
FREIGHT. 665 
 
 always mutually excepted ; and then provided as follows : " The Sect. 586. 
 
 freight to be paid, say, two-thirds in cash, less 5J per cent, for 
 
 interest and insurance, ten days after the final sailing of the vessel 
 
 from her last port in Great Britain, and the remainder in cash at 
 
 the exchange of 2.s. per rupee on the right and true delivery of the 
 
 cargo agreeably to bills of lading, less cost of coals or coke delivered 
 
 short of hill of lading quantity." Part of the cargo, of coals, was 
 
 lost during the voyage, by excepted perils. The charterers claimed 
 
 to deduct the cost of that part from the freight. It was held that 
 
 they were entitled to do so. The clause as to deductions was not 
 
 qualified by that as to exceptions. 
 
 But where the freight was to be payable " less value of cargo 
 short delivered or damaged (if any), not covered by the" excep- 
 tions clause, it was held that only damage through breach of the 
 shipowner's contract could be deducted^ and hence that damage 
 by inherent weakness could not (o). 
 
 587. Certain small payments are usually associated with freight "Primage 
 under the terms " primage and average accustomed," the amounts accustomed^' 
 of which depend upon the usage of the particular trade and voyage. 
 The right to payment of them seems to depend upon the same 
 conditions as the right to freight does, apart from express stipula- 
 tions. 
 
 "Primage" was originally a payment to the master for his 
 care of the cargo ; but it is now commonly arranged between the 
 master and the shipowner that it shall belong to the latter. If 
 there is no such agreement the master may recover the primage 
 from the consignees of the cargo {p), or from the shipowner, if he 
 has received it {q). But, "if by the contract between the owner 
 and the master, the master is not to receive primage, he can main- 
 tain no action for it, whatever the owner may ; and I think that 
 cases may also arise where a contract between the owner and 
 shipper, which excludes primage, may be brought to the know- 
 ledge of the master, and prevent him from having any right to 
 claim it" {r). 
 
 In Oaughey v. Gordon (s), a ship had been chartered at a 
 certain rate of freight to be paid, on delivery, "in fuU," the 
 
 (o) The Baroore, (1896) P. 294. (,) Per Lord Tenterden, M. & M. 
 
 [p) Best V. Saunders, M. & M. 208. 212 
 {q) Charleton v. Cotesworth, E. & M. 
 
 176. (s) 3 C. P. D. 419, 
 
666 
 
 THE DELIVERY. 
 
 Sect. 587. captain to sign bills of lading at any rate of freight as required 
 by the charterers without prejudice to the charter party. Bills of 
 lading were presented by the charterers, and signed by the 
 captain, embodying the conditions of the charter party, but pro- 
 viding for payment of " five per cent, primage in cash on delivery 
 as customary." 
 
 The defendants received the cargo, under the bills of lading, on 
 behalf of the charterers, and refused to pay the primage. The 
 master sued for it, but admitted that by his agreement with the 
 shipowner he received a fixed salary, which included all charges 
 and allowances, and that if he recovered the primage he would 
 have to account for it to the owner. Held, that neither owner nor 
 master was entitled to primage. 
 
 "Average" in the bill of lading denotes a share of certain 
 expenses which are by usage borne partly by the ship and partly 
 by the cargo, such as the expenses of towage, beaconage, &o. (i). 
 
 To whom Payable. 
 Generally to 588. The freight is payable, primarily, to the person with whom 
 of contract.™ ^^ Contract was made: that is, generally, to the person who 
 owned the ship at the time of contracting. 
 
 But the owner who made the contract may have sold or 
 assigned the ship, or the freight, after the contract was made ; or 
 he may have been owner subject to a mortgage upon her. Hence 
 questions sometimes arise as to who is entitled to the freight. 
 And as between owner and charterer also, where goods have been 
 shipped by third persons, questions may arise as to whether the 
 freight payable on those goods is due to the owner or to the 
 charterer. 
 Consignee ^^ claims for the freight are made upon the shipper, or con- 
 
 "lead"'**'" signee, by more than one person, and actions are brought or 
 threatened against him for it, he may interplead and so avoid the 
 difficulty of deciding between the claimants. 
 
 But these questions sometimes arise upon a detention of the 
 goods under a claim of lien for the freight ; or after payment has 
 been made to one person. It is therefore necessary to discuss 
 shortly the positions of the persons who may raise conflicting claims. 
 The points involved are, however, rather questions in the law of 
 partnership and the law of assignments. 
 
 (0 Abb. (6tli), 272; (13th), 631 ; Macl. (Srd), 460, 633. 
 
FREIGHT. 
 
 667 
 
 589. Usually tlie master represents the owner ; and payment of Sect. 589. 
 freight to him when due is effectual as against a claim by the Payment to 
 owner ; unless made after notice from the owner not to pay to 
 him (u). Perhaps, howoTer, this would not he so at the port at 
 which the owner or ship's husband manages the business of the 
 ship : or where there is a known course of business for the freight 
 to be paid to the agents of the ship. And if the owner appoints 
 an agent to collect the freight the master's authority to do so is 
 superseded («). The master is not entitled to claim the freight as 
 against the owner ; although money may be due to him from the 
 owner for wages, or for disbursements on the ship's account (y). 
 He has no charge upon the freight . for those claims, such as to 
 entitle him to possession of it (s) : though he has a maritime lien 
 for them which is enforceable against ship and freight, by legal 
 process (a). 
 
 The master may sue for the freight when the contract was made 
 with him (J). In Brouncker v. Scott (c) Lord Mansfield said: 
 "How long ago it is since an action brought by a captain of a ship 
 for freight was first entertained, I do not know ; but it is observ- 
 able with reference to that species of actions, that the bill of lading 
 usually specifies ' that the captain is to deliver the goods on pay- 
 ment of the freight,' and if he delivers them without such payment, 
 he becomes liable to his owner for so doing ; it has been held, 
 therefore, that he may maintain an action against the consignee 
 upon an implied promise to pay the freight, in consideration of his 
 letting the goods out of his hands before payment" (d). 
 
 Ajid where the master sued for freight under a charter party 
 made with himself, it was held to be no defence that the shipowner 
 was indebted to the defendant, and that the defendant claimed to 
 set that debt off against the freight, the master being only an 
 agent and trustee for the owner (e). For there was no such right 
 of set-off at common law ; and the case did not fall within the 
 
 («) Per Abbott, C. J., in Atkinson v. (a) M. S. Act, 1894, s. 167. Of. The 
 
 Cotesworth, 3 B. & C. 647 ; Gruion v. Castlegate, (1893) A. C. 38 ; The Eipon 
 
 Trask, 29 L. J., Ch. 337. City, (1897) P. 226. 
 
 (a;) The Edmond, Lush. 58. (i) Of. Cawthron v. Trickett, 33 L. J., 
 
 ly) Smith v. Plummer, 1 B. & A. 575 ; C. P. 182 ; Priestley v. Femie, 34 L. J., 
 
 Atkinson v. Cotesworth, 3 B. & C. 647 ; Ex. 172. 
 
 Gibson v. Ingo, 6 Hare, 112. (c) 4 Tauu. 1. 
 
 {«) Ibid. But see Bristow v. Whit- {d) Cf . Shields v. DaTies, 6 Taun. 65. 
 
 more, 31 L. J., Ch. 467 ; White v. (e) Isberg v. Bowden, 22 L. J., Ex. 
 
 Baring, 4 Esp. 22. 322. 
 
668 
 
 THE DELIVERY. 
 
 Where there 
 are several 
 owners. 
 
 Bights of 
 part-owners 
 inter se. 
 
 Sect. 589. statute which enables " mutual dehts hetween the plaintifE and the 
 defendant" to be set one against the other (/). 
 
 590. Where there are several part-owners in the ship they are 
 entitled to the freight jointly, and usually they appoint a managing 
 owner or ' ship's husband who represents them all, and can give 
 valid discharges for the freight {g). 
 
 With regard to the rights of the part-owners among themselves, 
 the rule of law is, that the earnings of the ship are to be dealt with 
 according to the rules relating to partnerships {h). The co-owners 
 are tenants in common, not partners in the ship, but the earnings 
 are treated on the footing of a partnership. So that the expenses 
 of fitting out the ship for the adventure, including repairs done to 
 her with a view to that adventure, must be deducted before a divi- 
 sion of the earnings is made («'). 
 
 As the expenses of the voyage have usually been incurred by 
 the managing owner or ship's husband, it may generally be said 
 that he is the person to whom the freight ought to be paid. He 
 has not, however, any charge upon it {k) ; but only a right to retain 
 his advances on the ship's account out of it, when it comes to his 
 hands. So that he cannot (apart from special powers) make a 
 valid assignment of the freight, although the ship is indebted to 
 him at the time (1). 
 
 In Guion v. Trask {m) the ship's husband, and major owners, of 
 an American ship had assigned the whole of the freight which 
 would be coming to the ship on her then next voyage, as security 
 for an advance. The vessel took a cargo of cotton from Mobile to 
 Liverpool, and freight became payable there to a larger amount 
 than the sums advanced, after deducting the vessel's necessary 
 expenses. The master (who was also a part-owner) proceeded to 
 discharge the cargo and to collect the freight ; but the assignees of 
 the freight, fearing he would apply the proceeds to a further ad- 
 venture, obtained an injunction restraining him from receiving it. 
 On appeal this injunction was discharged. 
 
 It appeared that, according to the ordinary practice of the 
 owners, the ship would return to America in ballast, unless she 
 
 (i) Ibid. 
 
 {Ic) Of. Gibson v. Ingo, 6 Hare, 112. 
 
 [t] Beynon v. Godden, 3 Ex. D. 263 ; 
 Guion V. Trask, 29 L. J., Oh. 337. Of. 
 Bum V. Herlofson, 6 Asp. 126. 
 
 (w) 29 L. J., Oh. 337. 
 
 (/) 2 Geo. II. c. 22, s. 13 ; 8 Geo. II. 
 u. 24. See now Judicature Act, 1873, 
 B. 24 ; K. S. 0. 1883, Ord. XTX. r. 3. 
 
 (^) See supra. Chap. II. 
 
 (A) Greenv.Briggs, 17 L. J., Oh. 323 ; 
 Holdemess v. Shaokels, 8 B. & 0. 612. 
 
FREIGHT. 
 
 669 
 
 could be advantageously chartered. The master alleged it to be Sect. 590. 
 his intention to procure a return cargo of salt, which would serve 
 as ballast. The Court of Appeal said that the legal right to coUeot 
 the freight was in the master; that the ship's husband had no 
 right, as against the other owners, to assign the whole freight, and 
 that the voyage was not terminated, and the profit earned might, 
 be lost in the further prosecution of the joint adventure. But the 
 injunction was only dissolved upon the master giving an under- 
 taking not to employ the moneys received by him otherwise than 
 in the employment of the ship in its due and ordinary course. 
 
 A mortgagee of the shares of a part-owner stands in the position Mortgagee of 
 of the mortgagor towards the other part-owners, in regard to the 
 division of the freight, and can only claim his share subject to the 
 deduction of expenses (w). And the same is true of one who holds 
 an assignment of the freight which may accrue on the shares of a 
 part-owner (o). 
 
 591. Where the ship has been sold after the contract of carriage Upon sale of 
 has been made, the right to the freight passes to the purchaser {p). passes to pur- 
 The " freight follows as an incident to the property in the ship " ; ° ^^^' 
 and the owner of the goods must generally pay it to him who is 
 owner of the ship at the time when the payment becomes due {q). 
 
 In Lindsay v. Gribbs {p), the owner of a ship chartered her, and 
 afterwards, in June, 1854, sold her, and executed bills of sale for 
 the shares. The assignees of twenty-four sixty-fourths registered 
 their transfer shortly after; but the transfer of the remainder 
 remained unregistered until January, 1855. Meanwhile, in Decem- 
 ber, 1854, the original owner assigned the charter party freight to 
 the plaintiffs, and they gave notice of this to the charterers. It 
 was held, that an assignment of shares in a vessel includes the 
 earnings which may be attributable to those shares, although the 
 word " freight " may not be mentioned. The assignees of the 
 freight were, therefore, not entitled to the freight belonging to the 
 
 («) Cato ». Irying, 21 Xi. J., Ct. 675 ; v. DaTidson. But see per Brett, M. R., 
 
 Alexander v. Simms, 23 L. J., Ch. 721. in Sea Insur. Co. v. Hadden, 13 Q. B. 
 
 Of. Japp ». Campbell, 57L. J., Q.B. 79. D. 706, at pp. 713, 716. In Stephenson 
 
 (o) Green v. Briggs, 17 L. J., Ch. 323 ; v. Dawson, 3 Beav. 342, it was held that 
 
 Lindsay ». Gibbs, 22 Beav. 522. the right to the freight under a charter 
 
 [p) Lindsay v. Gibbs, 22 Beav. 622 ; party did not pass to the legatee of the 
 
 Morrison v. Parsons, 2 Taun. 407 ; Case ship. The charter party had been made 
 
 V. Davidson, 5 M. & S. 79 ; 2 B. & B. after the will, and the voyage was not 
 
 379. completed until after the testator's 
 
 (?) See per Lord Ellenborough in Case death. 
 
670 THE DELIVEEY. 
 
 Sect. 591. twenty-four sixty-fourths. But they were entitled to that belong- 
 ing to the forty sixty-fourths ; for the purchasers of those shares 
 could only be regarded as owners from the time of registering. 
 
 This distinction between transfers which have, and have not, 
 been registered would not now arise, under the Merchant Shipping 
 Act, 1894. For though a purchaser is required, by s. 26 of that 
 Act, to register his transfer, its vaKdity is not made to depend 
 upon the registration. Nor, generally, would the neglect to 
 register give a subsequent assignee of the freight any equity to 
 it, as against the transferee of the ship. And that is so, although 
 the transfer of the ship be to a mortgagee only, if he has taken 
 possession of her (r). 
 
 The contract to pay freight, however, is not transferred to the 
 new owner by the sale of the ship ; so that he could not formerly 
 sue for it in his own name (s). 
 
 But payment to the person beneficially entitled is a sufficient 
 discharge to the consignee {t). 
 
 Freight 592. Where the ship is mortgaged only, the mortgagee does not 
 
 mortJa^geeof thereby acquire the right to accruing freight, unless he also takes 
 
 ship on his possession of the ship. A sale carries the right to all accruing 
 taMng posses- '- ^ _ -^ , ° ° 
 
 Bion, but not freight from the time of assignment ; a mortgage only from the 
 
 time of taking possession {u). And that is so, whether the mort- 
 gage was made before or after the voyage commenced (m). 
 
 When, however, a mortgagee has taken possession of the ship 
 he takes the right to all the freight which is then accruing (x). 
 " And if he finds any cargo on board in respect of which the 
 freight has accrued, and on which the mortgagor has a lien for the 
 freight, the mortgagee succeeds to that lien, and can enforce it in 
 a court of law " (y) . But freights which have become payable, 
 and have been received by the mortgagor before possession taken, 
 
 (r) See the judgment of 0. P. Div. in Burrows, 2 0. P. D. 163 ; and per Lord 
 
 Keith V. Burrows, 1 C. P. D. 722. Of. Oaims, S. 0., 2 A. C. 636. But of. the 
 
 s. 66 of M. S. Act, 1894. judgments in Eusden v. Pope, L. E., 
 
 (a) Splidt V. Bowles, 10 East, 279; 3 Ex. 269; and Wilson v. Wilson, L.E., 
 
 Morrison v. Parsons, 2 Taun. 407. Of. 14 Eq. 32. 
 
 Eusden v. Pope, L. E., 3 Ex. 269. See (x) Kerswill v. Bishop, 2 0. & J. 629 ; 
 
 now Judicature Act, 1873, s. 24 (1) ; Grumm v. Tyrie, 33 L. J., Q. B. 97 ; 34 
 
 Gandy v. Gandy, 30 Ch. D. 57. L. J., Q. B. 124 ; Japp v. Campbell, 67 
 
 {t) Morrison v. Parsons, supra. L. J., Q. B. 79. 
 
 («) Chinnery v. Blaokbume, 1 H. Bl. {y) Per Mellish, L. J., Keith v. Bur- 
 
 117, n. ; Gardner v. Cazenove, 26 L. J., rows, 2 0. P. D. at p. 165. Of. Brown 
 
 Ex. 17 ; per Mellish, L. J., in Keith v. v. Tanner, L. R., 3 Oh. 597. 
 
 before. 
 
FREIGHT. 671 
 
 although for the voyage then current, cannot be recovered from Sect. 598. 
 him hy the mortgagee (z). 
 
 "While the mortgagor continues in possession of the ship, he 
 has full control over her employment. He may let her lie idle, 
 or employ her in carrying goods on his own account; or may 
 contract to carry at such rates of freight as he may choose. And 
 the mortgagee on taking possession is not entitled to anything 
 more than has been reserved by the contracts so made (a). 
 
 " When a mortgagee takes possession he becomes the master 
 or owner of the ship, and his position is simply this : from that 
 time everything which represents the earniugs of the ship, which 
 had not been paid before, must be paid to the person who then is • 
 the owner, who is in possession. The owner then in possession 
 happens to be the mortgagee, and it is in consequence of his fiUing 
 that position, and not by virtue of any contract or any antecedent 
 right, that he becomes the person entitled to receive the freight. 
 But that right again is itself checked by another consideration. 
 AH that he can receive is, that which the ship was in the course of 
 earning, either by way of express contract, or, which is the same 
 thiag, by carrying goods upon a quantum meruit" (b). 
 
 593. In Tanner v. Phillips (c), it was held that a mortgagee of a Charterer's 
 
 chartered ship, on taking possession, was entitled to the charter "fot adTauoes 
 
 freight, without deducting sums which the charterers had advanced ^^ ap«»st 
 , . mortgagee. 
 
 to the eaptaia abroad for disbursements ; though they had at the 
 time no notice of the mortgage. The charter party had stipulated 
 that the charterers should make advances, not exceeding 150^., on 
 account of freight, and that the balance of the freight should be 
 paid on delivery. But the charterers had actually made advances 
 to the captain beyond the 150/., both at the loading port, and at 
 the port of discharge, for the ship's purposes, before they received 
 notice of the mortgage. Bacon, Y.-0.,held that the whole freight 
 was payable to the mortgagee on his taking possession, without 
 deduction of anything but the 150/. (d). 
 
 (a) WiUis V. Palmer, 29 L. J., C. P. freight as against the mortgagee, see 
 
 194. infra, a. 597. 
 
 (a) Keith v. BurroTTS, 2 A. C. 636 ; (j) Per Lord Cairns, 2 A. C. p. 646. 
 
 Mercantile Bank v. Grladstone, L. E., 3 ' ^ ^ 
 
 Ex. 233 ; Brown v. North, 22 L. J., Ex. ^ *^ ^- '' ■' ^- ^^^■ 
 
 49 ; Alexander v. Simms, 23 L. J., Ch. (<?) Cf. The Salaoia, 32 L. J., Ad. 43. 
 
 721 ; CoUina v. Lamport, 34 L. J., Ch. But see WUsou v. Gabriel, 8 L. T. 502. 
 
 196. As to the efleot of assignments of Infra, s. 698. 
 
672 THE DELIVERY. 
 
 Sect. 594. 594. Where there, are several mortgages of the ship they rank 
 Position of according to the dates at which they were registered, not according 
 subsequent to to the dates at which they were made (e). And the right of the 
 the first. mortgagees to the freight follows the same rule. A second or 
 
 subsequent mortgagee may perfect his right to the freight by 
 taking possession, subject to the rights of the prior incumbrancers. 
 "Although a second mortgagee has no legal as distinguished from 
 equitable right to possession, and although he cannot take pos- 
 session as against a first mortgagee, yet as against all other persons 
 he has a right to take possession, and can enforce such right if 
 necessary by obtaining the appointment of a receiver " (/). 
 
 What is suffi- 595. In order to be able to claim the freight the mortgagee of 
 sion. ' the ship must have taken possession of her, or done something 
 
 equivalent. It is hot, however, necessary that the possession should 
 have been taken before or during the continuance of the voyage. 
 Where the freight is payable on delivery it is enough if possession 
 be taken before the cargo is delivered {g). But possession after the 
 cargo has been delivered, though before the freight has been paid, 
 will not suffice {h) . 
 
 In Brown v. Tanner (t), the mortgagee only took possession 
 after the greater part of the cargo had been delivered. It was 
 held that that was sufficient to entitle him to the whole charter 
 freight, as against one to whom that freight had been assigned by 
 the shipowner. The Court considered that, under the particular 
 charter, the freight did not become due to the, owner until the 
 delivery was absolutely completed, and therefore that the mortgagee 
 who had taken possession before complete delivery could demand 
 the whole freight. Perhaps the same result would have followed, 
 apart from that construction of the charter party, under the 
 doctrine that the mortgagee became entitled to the lien for the 
 freight which the owner still had (/c). 
 
 If the vessel is at sea it is enough for the mortgagee to give 
 notice to the charterers or consignees, before the freight becomes 
 payable, demanding payment to himself ; provided he takes 
 
 (e) M. S. Act, 1894, b. 33. Gibson v. Ingo, 6 Hare, 112. Cf. Alex- 
 
 (/) Keith V. Burrows, 1 C. P. D. p. ander v. Simms, 23 L. J., Ch. 721. 
 
 736. And see Liverpool Marine Credit [h) Ohinnery v. Blaokbume, 1 H. Bl. 
 
 Co. V. Wilson, L. E., 7 Ch. 501. Cited 117, n. 
 
 imfra, s. 597. (i) L. E., 3 Ch. 597. 
 
 [g) Oato V. Irving, 21 L. J., Ch. 675 ; (/,;) Keith v. Burrows, 2 O.P. D. 163 ; 
 
 Eusden v. Pope, L. E., 3 Ex. 269 ; 2 A. 0. 636. 
 
FEEIGHT. 673 
 
 possession of the sMp afterwards, as soon as an opportunity Sect. 595. 
 offers (Z) . 
 
 In Eusden v. Pope(/), the ship was chartered for a voyage from 
 Liverpool to the Brass River, at a freight which was payable, in 
 part, five days after sailing, " and the remainder on the true 
 delivery of the cargo in cash on receipt of the captain's advice of 
 delivery." The mortgagee applied to the owners (mortgagors) for 
 the freight payable in advance, both before and after it was paid 
 by the charterers, but did not get it. The vessel arrived at the 
 Brass Eiver on May 1st, and was discharged by the 18th; but 
 advice of delivery was not received by the owners and charterers 
 until July 3rd. On May 24th the mortgagee gave notice to the 
 charterers of his mortgage, and claimed the balance of the freight; 
 and on the ship's return to England he took possession of her. 
 It was held that he was entitled to the balance of freight (Bram- 
 well, B., dissenting). 
 
 When the mortgage is not of the whole ship, but of shares in Mortgagee of 
 her, the mortgagee may entitle himself to the portions of the 
 freights which accrue to those shares, by giving notice to the 
 owners who are in possession of the ship that he requires payment 
 of them to himself ; or by other acts equivalent to taking possession 
 of the shares (m). In Beynon v. Grodden (w), it was held that where 
 the mortgagees had joined with the owners of other shares in the 
 ship in appointing a new ship's husband in place of the mortgagor, 
 they had effectually intervened so as to entitle themselves to the 
 freight to be earned. 
 
 In Japp V. Campbell (o), the mortgagees of sixty- two sixty-fourth 
 shares in a ship from the master, who also acted as ship's husband, 
 took possession of the ship before the cargo was delivered, and 
 gave notice to the consignees to pay the freight to them. It was 
 held that they were entitled to receive the gross freight as against 
 one who had obtained judgment against the master for supplies to 
 the ship, and had attempted to attach the freight by a garnishee 
 order. Being in possession, and holding the majority of the shares, 
 they were in a position to demand the whole freight, and to forbid 
 any other person from receiving it. 
 
 {1} Rusden v. Pope, L. E., 3 Ex. 269 ; W See Cato v. Irving, 21 L. J., Ch. 
 
 Wilaon v. Wilson, L. E., 14 Eq. 32. ^'^^■ 
 
 Of. The BenweU Tower, 72 L. T. 664. )■! gy l j q b 79 
 
 C. — 0. X X 
 
674 
 
 THE DELIVERY. 
 
 Sect. 596. 
 
 Assignment 
 of freight. 
 
 Several 
 assignees. 
 
 596. The freight may be assigned, separately from the ship, 
 before it has been earned, or even contracted for {p) ; and the 
 freighter cannot safely pay it to the shipowner after receiving 
 notice of the assignment. 
 
 As between assignor and assignee an assignment of freight takes 
 effect at once, and does not depend upon the assignee taking 
 possession of the ship, or giving notice to those who are liable to 
 pay. If the freight be received by the owner the assignee may 
 claim it from him {q). 
 
 Apart from the Judicature Act, 1873, s. 25 (6), an assignment 
 of freight gives only an equitable interest to the assignee. But, 
 by that Act, where an absolute assignment of freight which has 
 been contracted for is made by writing under the hand of the 
 assignor (not purporting to be by way of charge only), and express 
 notice in writing has been given to the person from whom the 
 assignor would have been entitled to claim the freight, the assign- 
 ment is effectual in law to transfer the legal right to the fi-eight 
 from the date of such notice (r). 
 
 Such assignments, therefore, rank in the order in which notice 
 of them has been given to those by whom the freight is or wiU be 
 payable. But the Act expressly provides that the legal transfer of 
 the right to the freight is to be subject to all equities which would 
 have been entitled to priority over the right of the assignee if the 
 Act had not passed. And thus the order in which equitable 
 interests take priority is the material question. 
 
 Equitable assignees rank, primd facie, in the order of their 
 assignments ; but a subsequent incumbrancer, who has taken 
 without knowledge of an earlier assignment, becomes entitled to 
 the prior charge if he first gives notice of his claim to those by 
 whom the freight is or will be payable (s). Or, if the freight has 
 been paid, and is held in trust by some person {e.g., a mortgagee of 
 
 (ji) Leslie v. Guthrie, 1 Bing. N. 0. 
 697 ; Douglas v. Russell, 4 Sim. 524 ; 
 1 Mylne & K. 488. But of. Robinson v. 
 Maodonnell, 5 M. & S. 228. 
 
 An assignment of the freight must not 
 be confounded with an assignment by a 
 part owner of his shares in it. The 
 part owner is only entitled to a share of 
 the surplus after discharging expenses : 
 supra, s. 590. 
 
 (?) Willis V. Palmer, 29 L." J., 0. P. 
 
 194. As to the effect of an assignment 
 of freight due under a charter party, 
 where the shipowners were jointly 
 interested in theiadventure, see Boyd v. 
 Mangles, 18 L. J., Ex. 273. 
 
 ()■) See Jud. Act, 1873, s. 25, sub-B. (6) ; 
 Brice v. Bannister, 3 Q. B. D. 569 ; 
 Walker v. Old Bradford Bank, 12 
 Q. B. D. 511. 
 
 («) See notes to Eyall ». Rowles, 2 
 W. & T. Leading Cases, 734, p. 794. 
 
FEEIGHT. 675 
 
 the ship in possession) {t), such priority may be acquired by first Sect. 596. 
 giving notice of the claim to the trustee, after it has come to his 
 hands. A notice given to one who becomes a trustee of the freight 
 before he has in fact received it vyill not have the effect of changing 
 the order of priority given by the dates of the assignment {u). 
 
 With regard to assignments of future freights, not at the time 
 contracted for, it would seem that notices given before the freight 
 contract has actually been made will not affect priorities. Until 
 that time the supposed assignment, of the future freight, merely 
 confers a right to have specific performance of the contract to 
 assign when a right to freight comes into existence. 
 
 597. Difficult questions sometimes arise between assignees of Priorities of 
 the freight and purchasers or mortgagees of the vessel. Where an freight and 
 absolute assignment of freight has preceded a sale or mortgage of g;^^^^*^ 
 the vessel, the title of the assignee is effectual as against the 
 subsequent assignees, either of ship or freight, provided the condi- 
 tions of s. 25 (6) of the Judicature Act, 1873, are satisfied. For 
 the assignee acquires the legal title to the freight (x). 
 
 But in cases to which the Judicature Act does not apply, as the 
 assignment of freight gives only an equitable interest, it is liable 
 to be defeated by the legal title to the freight acquired by a 
 purchaser or mortgagee of the vessel, who takes without notice (y) . 
 A second or subsequent mortgage of the ship wiU not, however, 
 have this effect. For a second mortgagee only takes an equitable 
 interest in the freight, and will therefore be postponed to a prior 
 equitable assignee of that freight (z). 
 
 (t) See the judgment of the C. P. Div. of the second mortgagee is the same as 
 
 in Keith v. Burrows, 1 C- P. D. 722, the legal right of the first mortgagee : 
 
 p. 736. just as in the case of land, if the first 
 
 («) SeeBuUers. Plunket,30L. J., Ch. mortgagee declines to take possession, 
 
 641 ; Johnstons. Cox, 16 Ch. D. 571. the second mortgagee may obtain a, 
 
 (x) Supra, s. 596. receiver, and so have the possession and 
 
 (y) Wilson t. Wilson,' L. B., 14 Eq,. the benefits of the possessory right. But 
 
 32. this is to be understood only as between 
 
 {z) Liverpool Marine Credit Co. v. the second mortgagee and the mort- 
 
 Wilson, L. B., 7 Oh. 507 ; The Beuwell gagor. As regards the intervening iu- 
 
 Tower, 72 L. T. 664. "What is the oumbranoes, interests, and titles of every 
 
 position of a second mortgagee of a kind not requiring registration, the 
 
 ship with respect to the freight? He respective positions of the first and 
 
 has no legal right to take actual posses- second mortgagees are essentially dif- 
 
 sion, and cannot, therefore, by his own f erent, arising from the essential differ- 
 
 aot give himself that which is equivalent euoe between a legal and an equitable 
 
 to possession. But, as between himself title. The legal owner's right is para- 
 
 and the mortgagor, the equitable right mount to every equitable charge not 
 
 X x3 
 
676 
 
 THE DELITEEY. 
 
 Sect. 597. But where the assignment of freight takes place after a sale of 
 the ship it cannot avail, for the right to the accruing freight passed 
 on the sale (a) . And though an assignment of freight made after 
 a mortgage of the ship is effectual, unless the mortgagee takes 
 possession before the freight becomes due, still, if the mortgagee 
 does take possession, the assignment of freight does not avail 
 against him (&) . For the mortgagor has not power to prevent the 
 mortgagee from taking the freight if he takes possession of the 
 ship. "So to hold would enable the mortgagor to deprive the 
 mortgagee of the whole benefit of the security. The ship might 
 be chartered for several years, and the freight immediately assigned 
 behind the back of the mortgagee "(c). 
 
 And the mortgagee's right is not prejudiced by a neglect on his 
 part to register his mortgage {d). 
 
 598. An assignment of the freight does not take away the right 
 of the freighter, or holder of the bill of lading, to set off against it 
 debts due to him from the shipowner ; provided those debts have 
 accrued before notice of the assignment of the freight has been 
 given to him (e) . Where debts have accrued after such notice they 
 cannot be set off (/). 
 
 Where a lien for the freight is available a set-off will not defeat 
 
 afieotiug his own conscience ; the equit- first mortgage on Whiteacre and Black- 
 
 Set-ofE of 
 consignee 
 
 Set-off -will 
 not defeat a 
 lien. 
 
 able owner, in the absence of special 
 circumstances, takes subject to all 
 equities prior in date to his own estate 
 or charge. The Courts of Equity, in 
 appointing a receiver at the instance of 
 an equitable incumbrancer, takes posses- 
 sion in fact on behalf of all, and so as 
 not to disturb any legal right, or inter- 
 fere with equitable priorities. 
 
 ' ' If there be a legal mortgage of a 
 ship, then a charge on the freight, then a 
 second mortgage of the ship, the second 
 mortgagee of the ship cannot by any 
 act of his oust the incumbrance on the 
 freight. And if the first mortgagee 
 of the ship takes, under these circum- 
 stances, possession of the ship, his 
 possession cannot be allowed to alter 
 the equities of the parties. He takes 
 both ship and freight by the same title ; 
 and, there being cue equitable owner of 
 the ship, and another equitable owner of 
 the freight, as between those equitable 
 owners his charge must be considered as 
 satisfied pro ratd, just as if there was a 
 
 acre belonging, subject to that mort- 
 gage, to several owners." Per James, 
 L. J., L. E,., 7 Ch. p. 511. 
 
 (a) Lindsay v. Gibbs, 22 Beav. 522 ; 
 supra, s. 591. 
 
 (i) Brown v. Tanner, L. R., 3 Ch. 
 597 ; Keith v. Burrows, 1 C. P. D. 722 ; 
 2 C. P. D. 163, at p. 172. Mortgagee 
 of shares : Beynon v. Godden, 3 Ex. D. 
 263. 
 
 (c) L. E,., 3 Ch. at p. 603. 
 
 {d) See the judgment of the C. P. Div. 
 in Keith v. Burrows, 1 C. P. D. 722, at 
 pp. 733, 734. 
 
 (e) Wilson v. Gabriel, 4 B. & S. 243 ; 
 8 L. T. 602 ; Campbell v. Thompson, 1 
 Stark. 490 ; Eoxbui-ghe v. Cox, 17 Ch. 
 D. 520. But see Tanner v. PhUlips, 42 
 L. J., Ch. 125. 
 
 {/) Weguelin v. Cellier, L. E., 6 H. L. 
 286 ; Watson ■,: Mid Wales Rail. Co., 
 L. E., 2 C. P. 593 ; Re Milan Tramways 
 Co., Ex parte Theys, 22 Ch. D. 122 ; 25 
 Ch. D. 587. 
 
FREIGHT. 677 
 
 that. In Weguelin v. Cellier (g) the goods had teen shipped on Sect. 598. 
 
 behalf of the shipowner under hills of lading which made them 
 
 deliverable, subject to freight, to Thomson & Bonar, who made 
 
 advances by accepting bills against these bills of lading. The 
 
 shipowner assigned the freight to the respondents, and they gave 
 
 notice to the master, and to Thomson & Bonar before the bills 
 
 were due ; and also gave notice to the Dock Company to stop the 
 
 cargo for the freight. It was contended that Thomson & Bonar 
 
 might set off their claims against the freight, and so defeat the 
 
 claim of the respondents to it. But Lord Chelmsford said : " The 
 
 captain of The Java would have been entitled, if not bound, to insist 
 
 upon the payment of the freight before the delivery of the cargo. 
 
 The respondents had placed a stop on the cargo for the freight, 
 
 and they had given to Thomson & Bonar notice of their title, and 
 
 of the cargo being stopped for freight. The respondents had 
 
 therefore a lien for the freight which Thomson & Bonar were 
 
 bound to discharge. They cannot insist that this obligation does 
 
 not exist because money is due to them from the person who 
 
 created this right of lien, which is paramount to any claim which 
 
 they have upon the cargo. Nor can this lien, which is not of the 
 
 nature of a debt, be defeated by a set-off, which can only be 
 
 applicable to the case of mutual debts" (h). 
 
 In The Salacia (i) the question arose whether charterers who Advances of 
 had made advances to the captain for ship's disbursements were bottomry on 
 entitled to deduct them from the freight, before paying it to an "^^'^ " 
 assignee under a bottomry bond. The charter party provided that 
 the charterers should advance the master what money he required 
 for the " necessary ordinary disbursements " at Moulmein (the 
 loading port), and these were to be deducted from the freight. 
 On the way to Moulmein the master gave a bottomry bond on the 
 ship, and on the cargo and freight to be shipped at Moulmein. 
 The charterers afterwards, with notice of this bond, made advances 
 to the master. Dr. Lushington held that so far as those advances 
 were for " necessary ordinary disbursements," within the meaning 
 of the charter party, the charterers could not be required to pay 
 them over again {k). But so far as they were advances for extra- 
 ordinary expenses, they were not secured by the charter on the 
 
 (^) L. E., 6 H. L. 286. (i) 32 L. J., Ad. 43. 
 
 (A) L. R.,6H.L. atp. 298. Andsee (A) See also The Standard, Swab. 267 ; 
 
 Pinnook v. Harrison, 3 M. & W. 532. The Kamak, L. K., 2 P. 0. 505. 
 
678 THE DELIVERY, 
 
 Sect. 598. freight, and could not be deducted from it as against the bond- 
 holder (l). 
 Is owner or 599_ "Where the ship has been chartered, and goods have been 
 
 charterer ^ . . 
 
 entitled to bill shipped Under bills of lading reserving freight, the questions arise : 
 
 freights? By whom Can that freight be claimed from the consignees ? and who 
 
 is entitled to have it when it has been paid ? Is the charterer or 
 
 the shipowner to sue for the bill of lading freight ? and which of 
 
 them is the true owner of it ? 
 
 With regard to suing, the action must be either on the bill of 
 lading contract, or on an implied contract, arising on the claim for 
 delivery, and the giving up the lien on the goods. On the latter 
 ground the action would be by the shipowner. On the bill of 
 lading contract it should be by him whose contract that is (m). 
 
 The question with whom does the shipper usually contract in 
 such a case has already been' discussed («). 
 
 But the question whether the owner or the charterer is entitled 
 to the bill of lading freight, when received, depends upon the 
 contract between them. And if the result of that is to make the 
 charterer entitled to some portion of the freight, and notice has 
 been given to the consignees not to pay that part to the shipowner, 
 they will be protected in refusing to do so (o). If by the charter 
 the shipowner was to have a lien on the goods for the charter- 
 party freight, he is entitled to keep the bill of lading freights so 
 far as is necessary to satisfy his claim {p). But where the bill of 
 lading freights are payable at a time and in a manner which are 
 inconsistent with a lien upon the goods, or upon those freights, for 
 the charter-party freight, the case may be different. 
 
 In Janentzky v. Langridge {q) the ship was chartered fpr a lump 
 sum, part of which was payable on sailing and the balance on 
 right delivery ; and the master was to sign bills of lading at any 
 rate of freight required by charterers. Bills of lading were signed 
 making the freights payable at the loading port, where they were 
 collected by the charterers. The ship was lost on the passage ; so 
 
 {I) CI. Tanner v. Phillips, 42 L. J., {p) Christie v. Lewis, 2 B. & B. 410 ; 
 
 Ch. 125 ; The John, 3 W. Eob. 170 ; The Canada, 13 T. L. R, 238. 
 The Catherine, Swah. 263. 
 
 (m) Cf . NeiU v. Eidley, 9 Ex. 677 ; ({) 1 Com. Ca. 90 ; and see Marquand 
 
 Zwilohenhart v. Henderson, 23 L. J., v. Banner, 25 L. J., Q. B. 313, discussed 
 
 Ex. 234. supra, a. 155. As to the right of 
 
 (m) Supra, sects. 155—157. bottomry lenders to sub-freights, see 
 
 (o) Michenaon v. Begbie, 6 Bing. 190. The Eliza, 3 Hagg. 87. 
 
FREIGHT. 
 
 679 
 
 that the balance of the charter freight did not hecome payable. Sect. 599. 
 Held by Mathew, J., that the shipowner could. not claim to have 
 that balance paid out of the bill of lading freights in the charterer's 
 hands. 
 
 600. Where a ship has been abandoned to her underwriters Right of 
 during the course of the voyage, and freight has been afterwards to freio-ht 
 earned by the ship, by completing the voyage, that belongs to ^^^ s^ban- 
 the underwriters (r). And no apportionment is made; the whole 
 freight goes to them. Though, where a cargo was being carried 
 
 by the shipowners on their own account, and the ship was wrecked 
 and abandoned to the underwriters, but part of the cargo was 
 afterwards brought by her into the port of discharge, it was held 
 that the underwriters were entitled to compensation for the use of 
 the ship after the abandonment, but not to freight for the entire 
 voyage («). 
 
 On the other hand, if the goods are carried on after the abandon- 
 ment in another ship engaged by the captain, and the freight for 
 the voyage is thus earned, it does not belong to the abandonees, 
 but to the original shipowners (i). And where the ship is not able 
 to earn the freight, any claim for loss of that against persons who 
 have caused the loss, e.c/. against owners of another ship after a 
 collision, belongs to the shipowners, and does not pass to the under- 
 writers on ship upon the abandonment («e). 
 
 601. The freight may become payable to "persons having a Maritime 
 maritime Hen upon the ship and freight, enforced by them by pro- ^^g^^^t^ 
 ceedings in a Court having Admiralty jurisdiction («). Thus, maybe 
 where proceedings in rem are taken against a ship which has carried 
 goods, for damage done by her to another vessel, the parties com- 
 plaining may proceed against the freight earned as well as against 
 the ship herself ; and tbey may for that purpose arrest the cargo as 
 secm'ity until payment is made (j/) . And probably the same is true 
 in any other case in which there is a maritime lien upon the ship (s) . 
 
 {r) Case v. Davidson, 5 M. & S. 79 ; («) Sealnsnr. Co. v. Hadden, 13 Q. B. 
 
 2 B. & B. 379 ; Stewart v. Greenock D. 706. 
 
 Mar. Ins. Co., 2 H. L. C. 159. See per (x) As to bottomry, supra, Chap. X. 
 
 Lord Blackburn, Keith „. Burrows, 2 (y) The Leo, 31 L. J., Ad. 78 ; The 
 
 A. 0. p. 657. Orpheus, L. E., 3 A. & E. 308 ; "WilHams 
 
 , , ,,.„ xrr 3J. 11 ^., T X ,-> T. ^ Bruce, pp. 193, 194. As to release, 
 
 W MJler .. WoodfaU, 27 L. J., Q. B. ^^^ B^.^^e Ad., ;. 157. 
 
 («) The Andalina, 12 P. D. 1. See 
 {t) Hiokie v. Eodooanachi, 28 L. J., The Riby Grove, 2^. Eob. 52, at p. 59 ; 
 Ex. 273. The Eliza, 3 Hagg. 87. 
 
 arrested. 
 
680 THE DELIVERY. 
 
 Sect. 601. But the maritime lien on freight, and the remedy in rem against 
 it, depend upon the like remedy being available against the ship {a). 
 
 And if the freight on the goods is not yet due, as where they 
 have been seized at a port short of their destination:, they cannot 
 properly be detained, and will be released. The right to carry 
 them on to the destination and earn the freight is not transferred 
 to the person damnified (J). 
 
 Also, the claimants cannot require payment of more than is due 
 from the cargo owner. Any deductions to which he is entitled 
 under his agreement are allowed. And so are any expenses to 
 which he is put, by having to pay the freight into Court instead of 
 to the shipowner (c). And where the cargo had not been brought 
 to its destination, a deduction was allowed for the expenses of 
 transhipment [d). 
 
 If the freight is due, it is immaterial to the right of the 
 claimants that it may be due, not to the shipowner, but to a 
 charterer, who has made a sub-contract with the shipper, and is not 
 himself indebted to the same amount (e) . 
 
 Where part of the cargo which was on board at the time of a 
 collision has been taken out of her before the arrest, the portion 
 seized will not be released until payment of the freight on the 
 whole has been made (/). 
 
 Further, the cargo arrested need not actually have been on board 
 at the time of the collision, provided the freight in respect of which 
 it is arrested was then in course of being earned. Thus, in The 
 Orpheus {fj), the vessel was on an outward voyage to Viborg when 
 the collision occurred ; but she was then under charter to proceed 
 there (with liberty to take an outward cargo for owner's benefit), 
 and load a cargo of deals to be delivered at Grimsby ; and this 
 return cargo was arrested on arrival at Grimsby, in order to secure 
 the freight payable upon it. Sii- E. Phillimore held that this 
 freight must contribute to the damages. 
 
 By whom payable. 
 Primarily by 602. Next, we have to inquire by whom the freight is payable. 
 
 no^ohartlr ^^^ Primarily, the liability for it is on the person who makes the con- 
 party. 
 
 (a) The Castlegate, (1893) A. 0. 38. (e) The Andalina, 12 P. D. 1. 
 
 lb) The Flora, L. K., 1 A. & E. 45. , rs rr,, -d v^ t t, „ . .^-r. „„„ 
 
 ;/rri T Qi T T Aj ^o (/) The Roeoliff, L. E. 2 A. & E. 363. 
 
 (c) The Leo, 31 L. J., Ad. 78. 
 
 \d) Ibid, (?) L. B., 3 A. & E. 308. 
 
FEEIGHT. 681 
 
 tract. That is, where there is no charter party, the shipper of the Sect. 602. 
 goods, or the person on whose behalf they were shipped {h) . The 
 actual shipper is liable, although in fact acting only as agent for 
 another, unless he made it clear that he shipped for his principal, 
 and not as himself a contracting party. 
 
 In Drew v. Bird («), Lord Tenterden ruled that under a bill of 
 lading which made the goods deliverable to a named consignee or 
 his assigns, " he or they paying freight for the same," the ship- 
 owner could not resort to the shipper for the freight, after deliver- 
 ing to the consignee without getting it (/«) . 
 
 But this ruling has not been followed. In Domett v. Beckf ord (l) , 
 it was held, following Shepard v. De Bernales {m), that the clause 
 " he or they paying freight," in the bill of lading, is not for the 
 benefit of the shipper, but for that of the master or shipowner, to 
 enable him, if he thinks fit, to insist on payment before delivery ; 
 and that it does not cast a duty on the master to obtain the freight 
 from the consignees on delivery («). 
 
 In Domett v. Beckford the defendant was not only the shipper 
 of the goods but also the owner, and he continued to be owner 
 until after they were delivered, the consignees being his agents. 
 But the decision was based upon his liability as shipper, and would 
 therefore have been the same, presumably, if he had sold the goods 
 on the voyage. 
 
 That view seems to have been taken by the framers of the Bills 
 of Lading Act, 1855 (o), which recited that " by the custom of 
 merchants a biU of lading of goods being transferable by indorse- 
 ment the property in the goods may thereby pass to the indorsee, 
 but nevertheless all rights in respect of the contract contained in 
 the bni of lading continue in the original shipper or owner " ; and 
 enacted (sect. 2) that nothing in that Act should prejudice any 
 right to claim freight against the original shipper or owner. 
 
 The shipowner may, however, lose his right of recourse to the Shipowner 
 shippe^r by giving credit to the consignee. For example, if the ™g^t °f® ^ 
 master, instead of requiring payment of the freight in cash, takes recourse, 
 a bill of exchange from the consignee, for his own convenience,' 
 
 (A) Fox V. Nott, 30 L. J., Ex. 259 ; (1) 5 B. & Ad. 521. 
 
 Cawthron v. Trickett, 33 L. J., 0. P. (m) 13 East, 565. 
 
 182 ; Dickenson v. Lano, 2 E. & P. 188. (n) Of. Strong v. Hart, 6 B. & 0. 160 ; 
 
 (i) M. & M. 156. G. W. Bail. Co. v. Bagge, 15 Q. B. D. 
 
 (A) And see per Bayley, J., in Moor- 625 ; Angell, Carr. s. 397. 
 
 som V. Kymer, 2 M. & S. 303, at p. 318. (o) 18 & 19 Viot. o. 111. 
 
683 THE DELIVERY, 
 
 Sect. 602. when he might have got cash, that will discharge the shipper from 
 further liahility {p). 
 
 ^^^°l 603. The Bills of Lading Act, -while preserving the liahility of 
 oeives under the shipper, enahles the shipowner to sue the holder of the bill of 
 ' lading, where he has also taken the property in the goods. But 
 before that Act, and now independently of it, and apart from all 
 questions as to property in the goods, one who presents a hill of 
 lading, and takes delivery of the goods under it, may become liable 
 to pay the freight. Conduct of that kind is evidence of an implied 
 promise on his part to pay the freight in consideration of the 
 master giving delivery of the goods {q). But the question is one 
 of fact in each case ; a promise will generally be inferred, where 
 nothing has been done to qualify the effect of the receipt, but it is 
 not implied as a matter of law (r). 
 
 In Moller v. Young, Parke, B., said : " The case of Saunders v, 
 Vanzeller settles the law on this point, that no obligation to[^pay 
 the freight arises in point of laiv from the receipt of the goods under 
 the bill of lading ; but that such receipt by the indorsee of the bill 
 of lading is reasonable evidence from which a jury may infer a 
 contract by him to pay it, the consideration for the contract being 
 that the captain has given up his lien on the cargo " (s). 
 
 In Furness v. White (^),. the fact that an agent-consignee had 
 made a deposit to meet a claim against goods warehoused under 
 the Merchant Shipping Act, 1862, s. 68, &c., and had thus obtained 
 possession of the goods, was held not to show an undertaking by 
 him to pay the freight. 
 
 Liability by 604. Further, an implied undertaking by one who receives the 
 business. goods to pay the freight may be inferred from the mere receipt, 
 although he has not presented any bill of lading, or asked for 
 delivery, if the course of business between the parties on previous 
 occasions has been for him to receive goods consigned to him, and 
 pay the freight on them (m). In Wilson v. Kymer {x) goods 
 
 (p) Strong V. Hart, 6 B. & C. 160 ; A. C. 40. 
 
 Tobin V. Crawford, 9 M. & "W. 716. See («) 25 L. J., Q. B. at p. 96. Of. per 
 
 supra, a. 585. Cave, J., in AUen v. Coltart, 11 Q. B. D. 
 
 {q) Cook V. Taylor, 13 East, 399 ; at p. 785. 
 
 Dougal V. Kemble, 3 Bing. 383 ; Bell v. {t) (1895) A. 0. 40, reversing, (1894) 
 
 Kymer, 3 Camp. 545. 1 Q. B. 483. 
 
 (»•) Sanders v. Vanzeller, 11 L. J., (u) Coleman v. Lambert, 5 M. & W. 
 
 Q. B. 241 ; MoUer v. Toung, 25 L. J., 502. 
 
 Q. B. 94 ; Eurness v. WMte, (1895) (x) 1 M. & S. 157. 
 
FREIGHT. 683 
 
 shipped under tilla of lading were consigned to a firm of Williams Sect. 604. 
 & Wilson ; they received the bills of lading and indorsed them to 
 the defendants, brokers m London, to whom they were indebted, 
 and from whom they obtained further advances upon the bills of 
 lading. The defendants entered the goods at the Custom House 
 in their own names, and paid the duties ; but, under their direc- 
 tion, the goods were landed at the West India Docks in the names 
 of Williams & Wilson, who appeared in the manifest as the con- 
 signees. Williams & Wilson then gave defendants an order for 
 delivery addressed to the Dock Company, and under this order the 
 goods were transferred to the defendants, and were afterwards sold 
 by them, and the amount credited to Williams & Wilson. Wil- 
 liams & Wilson failed without paying the freight, and an action 
 was brought for it by the shipowners against the defendants. 
 Lord EUenborough held that the shipowner's lien for the freight 
 continued while the goods remained in the hands of the Dock 
 Company : and he left it to the jury to say whether the defendants 
 had promised to pay the freight, in consideration of the plaintiffs 
 having allowed delivery to be made to them. The jury found for 
 the plaintiffs. 
 
 On motion, however, a new trial was ordered ; on the ground 
 that it appeared that defendants had taken the goods, not as in- 
 dorsees of the bills of lading, but as agents for the consignees. On 
 the second trial evidence was given that the defendants had on 
 former occasions obtained delivery of goods under similar orders 
 from Williams & Wilson, and had on those occasions always paid 
 the freight. The jury again found for the plaintiffs; and the 
 verdict was upheld by the Court (y). It does not appear from the 
 report whether the previous transactions, upon the strength of 
 which the second verdict was allowed to stand, had 'been between 
 plaintiffs and defendants ; or were only such as to show the course 
 of business as between defendants and Williams & Wilson. But 
 it seems to have been assumed that the former was the case. 
 
 605. If the shipowner, or master, has notice that delivery is Effect of 
 being taken on behalf of some one else than the actual receiver, receiver is an 
 the mere receipt of the goods is not sufficient to found an inference ^^^^^ °^^' 
 that the receiver promises to pay the freight personally (s). 
 
 In Amos v. Temperley (z), the biU. of lading made the goods 
 
 (y) Cf. Moorsomj). Kymer, 2M:. &S. (a) Ward ». Felton, 1 East, 507; 
 
 303. Amos v. Temperley, 8 M. & W. 798. 
 
684 
 
 THE DELIVERY. 
 
 Sect. 605. deliverable "unto Mr. Nicholas Temperley for the London Gas 
 Company, or to his assigns, he or they paying freight." It was 
 held that " the promise to be inferred from the receipt of the goods 
 under such a bill of lading is prima facie a promise by the defen- 
 dant as agent for the company to pay the freight on their account, 
 and not a promise to be personally responsible for it." 
 
 Conversely, where the goods were delivered to indorsees of the 
 bill of lading who were acting as agents, and credit was given to 
 them for the freight, the shipowner was not allowed to claim pay- 
 ment of it from the principals, on ascertaining their existence after 
 the agent's failure (a) . That decision was before the Bills of Lading 
 Act. 
 
 Efeeot of BiUs 
 of Lading 
 Act. 
 
 Is consignee 
 liable for 
 freight pay- 
 able in 
 advance ? 
 
 606. The liability under the bill of lading contract to pay freight 
 is now, by the Bills of Lading Act, 1865, imposed upon the con- 
 signee or indorsee of the bill of lading, if the property in the goods 
 has passed to him. The provisions of that Act have already been 
 set out and discussed {h). 
 
 The liability does not depend upon precise words being used in 
 the bill of lading. If it appears that freight is to be paid, it will 
 generally be understood that that is to be by the person who takes 
 delivery. The ordinary form is, that the goods are to be delivered 
 to the consignees, or to assigns, " he or they paying freight, &c. ; " 
 but if the expression be merely " freight for the said goods (so 
 much)," that will have the same effect (c). 
 
 The' Act makes the consignee or indorsee liable in respect of the 
 goods, as if the contract in the bill of lading had been with him- 
 self. "Whether this makes him liable for freight which by the 
 contract was to be, but in fact has not been, paid in advance, seems 
 to be doubtful. The words are wide enough to do so, unless the 
 contract can be read to mean not only that the freight is to be paid 
 in advance, but that it is to be paid by the shipper, and that no 
 one else will be looked to {d). The statute does not say that the 
 consignee is to be liable as though the contract had been made with 
 himself as shipper. It may therefore mean that he is to be liable 
 as though it had been made with himself as well as with the 
 
 Cf. S.S. County of Lancaster v. Sharp, («) See "WegueHn v. Cellier, L. E.; 6 
 
 24 Q. B. D. 158. h. L. 286. 
 
 {a) Tobin v. Crawford, 9 M. & W. 
 
 njg ((^ See Neish v. Graham, 27 L. J., 
 
 (*) Supra, S8. 62—66. Q. B. 15. 
 
FREIGHT. 
 
 shipper. If then by the contract the shipper only is to be looked Sect. 606. 
 to for the freight, the consignee may be exempt (c). 
 
 If the bill of lading represents that the freight, or some part of 
 it, has been paid, the shipowner cannot, as against an assignee of 
 the goods, who has given value for them on the faith of that 
 representation, say afterwards that it has not been paid. He can 
 neither sue the assignee for that freight nor set up a lien for it as 
 against him (/). 
 
 607. The freight agreed for by a charter party is payable by LiabiKty for 
 the charterer, unless the contrary is clearly expressed. And the freight, 
 fact that bills of lading reserving the same freight have been given 
 to shippers, or are outstanding in the hands of third parties, so as 
 to make them liable, does not ordinarily put an end to the char- 
 terer's liability. He must still see that the freight is paid {g), and 
 the shipowner is not obliged to try to enforce payment by the bill 
 of lading holders before having recourse to the charterer. He is 
 not precluded from his claim by having given delivery of the 
 goods to them without payment {h). 
 
 If the benefit of the charter has been assigned to another, the 
 liability or otherwise of the original charterer will depend upon 
 whether the shipowner has, or has not, accepted the assignee as the 
 contracting party in bis place («'). 
 
 But it is not uncommonly the intention that the charterer shall Cesser clause, 
 only be bound to procure a cargo for the agreed voyage ; and that 
 for the payment of freight, and other subsequent performance of 
 the charter party, the shipowner shall look to the shippers or 
 owners of the cargo, enforcing it by means of a lien expressly 
 given to the shipowner, both for freight and for other claims under 
 the charter party. This intention is effected by inserting a clause 
 known as a cesser clause, to the effect that the charterer's liability 
 is to cease when the cargo has been shipped. 
 
 We shall have occasion to discuss the operation of such clauses 
 
 [e] As to tie shipowner's right to a (A) Shepard v. De Bemales, 13 East, 
 
 lien for freight payable in advance, see 565 ; Penrose v. Wilkes, there cited by 
 
 infra, ss. 663 — 665. Lord EUenborough. As to lien for 
 
 charter freight against bill of lading 
 (/) Howard v. Tucker, 1 B. & Ad. j^^j^^^^ ^ .^^,.^_ ^^_ g^g^ gg9_ 
 
 712;Tamvaoot-.Simpson,34L.J.,C.P. ^.j ^^ ^^ transfers of charters, see 
 
 268 ; L. R., 1 C. P. 363. Dimech v. Corlett, 12 Moo. P. C. 199, 
 
 (^) Christy v. Row, 1 Taun. 300. p. 223. 
 
THE DELIVEKY. 
 
 Se^t. 607. hereafter in relation to demurrage (/c). Here it may be stated that 
 such a cesser clause will not generally exonerate the charterer, 
 unless another remedy for the freight is given by the charter party, 
 as hy lien upon the goods. And even where the clause relieves 
 him from liability as charterer he may still be liable as bill of 
 lading holder (/). 
 
 {k) Infra, ss. 645—650. 
 
 (0 GliUisolien v. Stewart, 11 Q. B. D. 186 ; 13 Q. B. D. 317. Inpa, s. 651. 
 
CHAPTER XVII. 
 
 DEMUKKAGE. 
 
 687 
 
 SECT. 
 
 Undertaking as to time of loading 
 or discharge is by freighter . , . . > 608 
 
 Demurrage days — Detention 609 
 
 Modes of fixing time 610 
 
 Effect of a fixed time 611 
 
 Default of shipowner — Quarantine. 612 
 Strike of shipowner's labourers — ■ 
 Shipowner bound to take reason- 
 able steps 612a 
 
 Meaning of "days," " runniag 
 
 days," &o.— " Holidays " 613 
 
 " Usual despatch," &c 614 
 
 "As fast as ship can deliver" . . ..614a 
 No time fixed — Reasonable time . . 615 
 Ford V. Cotesworth — Is joint inabi- 
 lity essential to excuse charterer? 616 
 Where work done by independent 
 
 authority 616a 
 
 The cargo must be ready ........ 617 
 
 Must the appliances for loading or 
 
 discharging be ready P. 618 
 
 Postlethwaite ii. Freeland 619 
 
 "Where appliances controlled by port 
 
 authority , 619a 
 
 " In regular turn " 620 
 
 Notice of arrival at port of loading 
 required — ^Not so at port of dis- 
 charge 621 
 
 When do the lay days commence P . . 622 
 Where must the ship be lying ? . . , , 623 
 
 Where dock named 624 
 
 If port named lay days run from 
 ship's readiness within the 
 
 port 624a 
 
 Where ship to load or discharge at 
 a berth or dock " as ordered ' ' by 
 
 charterer , . . , i 624b 
 
 Is charterer responsible for delay in 
 reaching agreed place ? — He does 
 ilot generally undertake to pro- 
 cure access , 625 
 
 Charterer responsible where delay 
 caused by the state of his business 626 
 
 SECT. 
 
 Summary as to commencement of 
 lay days 627 
 
 Loading " as per colliery guar- 
 antee " 627a 
 
 Where lay days are not fixed — Is 
 freighter liable for delay caused 
 by his selection of dock P 628 
 
 Effect of "so near thereto, &o." — 
 Do lay days run continuously 
 where ship is lightened ? 629 
 
 Charterer not liable for delay after 
 loading completed 630 
 
 Part days counted as whole days — 
 Usually calendar days — Broken 
 "weather working days" — • 
 "Working day of twenty-four 
 hours" 631 
 
 Loading and discharging considered 
 separately — Liberty to average. . 632 
 
 Despatch money — Per hour 633 
 
 ConstruoUon of demurrage clauses . 634 
 
 Waiting for convoy 635 
 
 By whom payable. 
 
 Liability for demurrage or deten- 
 tion under bill of lading 636 
 
 Incorporating conditions of charter 
 party — Lien for demurrage at 
 port of loading — Personal liability 637 
 
 Liability of shipper 638 
 
 Liability of consignees — Bills of 
 Xading Act, 1855 — ImpEed pro- 
 mise 639 
 
 Liabilities of several holders of bills 
 of lading, each containing a de- 
 murrage clause 640 
 
 Distinction between shipments in 
 a general ship and imder a 
 charter 641 
 
 Is each holder liable although de- 
 murrage paid by others ? ,,,,,, 642 
 
 As to the uiaster's right to sue , , , , 643 
 
688 
 
 THE DELIVERY. 
 
 SECT. 
 
 Cliarterer's liatility for demurrage. 644 
 
 Cesser clauses — Ambiguity 645 
 
 Where the words are clear 646 
 
 Where explained by clause giving 
 lien — Charterer not liable for 
 demurrage at port of loading .... 647 
 Does ' ' demurrage ' ' include "de- 
 tention " in the lien clause ? . , . , 648 
 
 SECT. 
 
 Where no lien given charterer still 
 liable for demurrage and deten- 
 tion at port of loading 649 
 
 But not for breaches after cargo 
 loaded 650 
 
 Charterer may be liable as bUl of 
 lading holder, notwithstanding 
 cesser clause 651 
 
 Undertaking 
 as to time of 
 loading or 
 discharge is 
 by freighter. 
 
 608. The work of putting the goods into the ship, and of taking 
 them out again, whether under a charter party, or in a general 
 ship, is in nearly all cases done hy the servants of the shipowner. 
 But the duty of bringing the goods to be shipped, and of receiving 
 them at the port of discharge, lies upon the freighter. And in 
 these matters, defaults are apt to occur which lead to detention of 
 the ship, and consequent loss to the shipowner. 
 
 It is, therefore, usual in charter parties, and sometimes in bills of 
 lading, to fix times within which the ship is to be loaded, and 
 discharged ; and where that is done, the provision is understood as 
 an undertaking by the freighter that the ship shall be loaded 
 or discharged within the time so fixed. The shipowner must not 
 be in default ; he must by his servants do his part of the work of 
 receiving and stowing, or unloading, with diligence and with the 
 proper number of men ; but the undertaking as to the time which 
 the loading or discharge shall occupy is given by the freighter, not 
 by the shipowner. 
 
 This is commonly marked in the charter party by saying that £o 
 many days " are to be allowed the said merchant for loading, &c." 
 But the effect is the same whether the clause is in that form, 
 or states, generally, that the cargo " shall be loaded "in so many 
 days. The promise is made by the freighter, for the benefit of the 
 shipowner. 
 
 Exceptional cases, however, occur. A charter party provided 
 that the cargo should be " received from alongside ship at port of 
 discharge as customary as fast as steamer can deliver in ordinary 
 
 working hours Not less than 100 standards a day loading 
 
 or discharging, and ten days on demurrage over and above the 
 said laying days at "Ql. per day." The Court of Appeal, affirming 
 Wills, J., held that the stipulation as to 100 standards a day was 
 for the protection of the charterers ; and did not amount to an 
 
DEMURRAGE. 689 
 
 undertaking by them that the ship should he discharged at that Sect. 608. 
 rate (a). 
 
 609. The charter, in addition to allowing certain times for Demurrage 
 loading and unloading, very frequently also allows the charterer to 
 
 occupy additional days, up to a certain number ; and provides 
 that he shall pay for them at a specified rate. The payment for 
 these additional days is called demurrage. 
 
 And strictly, that only is the meaning of demurrage ; but the Detention, 
 word is also commonly used to denote damages which become due 
 to the shipowner for the detention of the ship, in breach of the 
 charter party, or bill of lading (5). Such damages may become 
 due in addition to demurrage proper, as when the ship is detained 
 during all the agreed days on demurrage, and longer. Or they 
 may be payable without any demurrage proper being due, if the 
 charter party does not provide for days on demurrage. 
 
 Charter parties frequently stipulate for a rate of demurrage, to 
 be paid in case the ship is detained beyond the agreed or proper 
 time, Avithout stipulating for any particular number of extra days 
 to be allowed by the shipowner. In such cases the true view seems 
 to be that the charterers are entitled to keep the ship on demurrage 
 for a reasonable time (c). 
 
 Damages for detention are generally calculated at the rate 
 which has been agreed upon for the demurrage days, if any are 
 provided for. But either party may show that that is not the true 
 measure of the loss to the shipowner by the detention, and in that 
 case that rate ought not to be adopted (d). The shipowner should 
 have a just compensation for his loss, and not more, or less (e). 
 
 Moreover, in estimating damages for detention, it must be con- 
 sidered whether the detention was reasonable. The master ought 
 not to keep the goods on board, and so detain the ship, if he 
 might land and warehouse them with safety to the shipowner's 
 interests (/) . 
 
 610. The time to be allowed, or the number of " lay days," Modes of 
 as they are usually called, is stated in various ways. Sometimes ^^ ^"^' 
 separately for the loading and for the discharging ; sometimes a 
 
 (a) DobeU v. Watts, 7 T. L. R. 426, («?) Moorsom v. BeU, 2 Camp. 616. 
 
 622. " (e) Of. The GazeUe, 2 W. Rob. 279. 
 
 (4) See infra, s. 648. (/) See perCrompton, J., in Erichsen 
 
 (c) Lilly V. Stevenson, 22 Sess. Ca. v. Barkwortt, 28 L. J., Ex. p. 96, and 
 
 (4th) 278 ; Western Transp. Co. v. Barber Mors-le-Blanch v. Wilson, L. R., 8 0. P. 
 
 (1874), 56 N. T. 444. 227, infra, s. 683. 
 
 C. — C. Y Y 
 
690 
 
 THE DELIVERY, 
 
 Sect. 610. given period is allowed for both; and occasionally the time 
 consumed in waiting for orders is also included. The period is 
 usually calculated hy days ; and these may be runniag days, or 
 working days, or days with specified' exceptions. 
 
 Frequently the time allowed is not definitely calculated, but is 
 to be that required by the " usual despatch of the port," or " the 
 usual and customary time ; " leaving that to be estimated if need 
 be. Or it may be that the cargo is to be discharged at the rate of 
 so many tons per day. 
 
 And, again, the time is often left wholly undefined, the charter 
 being silent about it. In such cases the charterer undertakes no 
 definite obligations in the matter ; but, as in other cases where the 
 contract is silent, the law requires him to perform his part in the 
 work with diligence. 
 
 Efeect of a Qn rpj^g difference between charters in which a specific time is 
 
 fixed time. _ _ '- ^ _ 
 
 allowed, whether for loading or unloading, and those in which the 
 
 lay days are wholly undefined, is thus of great impoi-tance. In the 
 
 one case the time is limited without regard to the circumstances 
 
 under which, when the time arrives, the contract has in fact to be 
 
 performed. In the other case, the question whether the charterer 
 
 has been duly diligent must be determined by. reference to the 
 
 conditions under which he has actually worked. 
 
 When the time is definitely fixed, or is described so as to be cal- 
 culable beforehand, there is an absolute obligation on the charterer 
 to have the work completed within that period, whatever circum- 
 stances occur. He is answerable, although the completion may 
 have become impossible owing to causes which have arisen without 
 any fault or omission on his part. Thus, he bears the risk of delay 
 arising from the crowded state of the place at which the ship is to 
 load, or discharge (g) ; or from frost (h), or bad weather («'), pre- 
 venting access to the vessel; or from acts of enemies {Ic), or of the 
 Government of the place prohibiting export, or preventing com- 
 munication with the ship (/) . 
 
 And it is immaterial that the shipowner also is prevented from 
 doing his part of the work within the agreed time ; unless he is in 
 
 (j) Eandall v. Lynch, 2 Camp. 352 ; (Z) Barker v. Hodgson, 3 M. & S. 
 
 Potter V. Burrell, (1897) 1 Q. B. 97. 267; Blight v. Page, 3 B. & P. 295, n. ; 
 
 (A) Barret ». Button, 4 Camp. 333. supra, s. 255. The disahility in these 
 
 (i) Thiis V. Byers, 1 Q. B. D. 244. cases affected the charterer, not the ship : 
 
 \k) Burrill v. Orossman, 69 Fed. Kep. c{. White v. S.S. Winchester Co., 23 So. 
 
 747. L. R. 342. 
 
DEMURRAGE, 
 
 691 
 
 fault. The charterer takes the risk. His contract is " that, if the Sect. 611. 
 
 ship is not able to discharge the whole of her cargo within the given 
 
 number of days after she is at the usual place of discharge," he 
 
 will pay for the delay, " however the delay may be caused, unless. 
 
 it is by default of the shipowner" (m). In Thiis v. Byers (w) the 
 
 place of discharge was in the Eiver Tees ; the cargo was timber, 
 
 and by the practice of the port it was the master's duty to put it 
 
 over the ship's side and form it into rafts, when the consignees 
 
 would send steam tugs to take it away. Owing to bad weather 
 
 the timber could not be put over and formed into rafts ; and thus, 
 
 though the tugs could have worked, the charterers were unable to 
 
 take away the cargo within the prescribed days for discharging. 
 
 Still they were liable. 
 
 In Budgett v. Binnington (o) the cargo was to be discharged at 
 Bristol in a fixed number of days". The discharge was begun, but 
 owing to a strike of the dock labourers, both those employed on 
 behalf of the ship and those engaged by the consignees, it was 
 delayed beyond the stipulated time. The labourers who were 
 doing the ship's part of the work were not engaged by the ship- 
 owners, but by a firm of stevedores who were employed by the 
 shipowners. It was held by the Court of Appeal, affirming the 
 judgment of the Divisional Court, that the consignees were Kable 
 for demurrage. For the ability of the shipowners to discharge was 
 not a condition precedent to the obligation of the merchant to have 
 the discharge completed in the fixed time. Performance of that 
 obligation would only be excused by showing that the shipowner 
 improperly prevented it, 
 
 612. But the freighter is not liable for the delay, if it has been Default of 
 due to a default on the. part of the shipowner (^) ; for example, in shipowner. 
 refusing to deliver in the proper manner (g) ; or in not addressing 
 the ship to the charterer's agents, as agreed, so that notices have 
 not been given to consignees of cargo (r) ; or, ia failing to bring 
 the ship to the loading place at the time notified to the charterer 
 
 (»j) Per Brett, L. J., Porteus v. Wat- v. EeUows (1690), Slio-wer 334. 
 
 ney, 3 Q. B. D. at p. 543. (j) Benson v. Blunt, 1 Q. B. 870 ; 
 
 (») 1 Q. B. D. 244. But of. Harper Thorsen f . McDowall, 19 Sess. Ca. (4th) 
 
 V. McCarthy, 2 B. & P., N. R. 258. 743 ; Aktieselkab HeUos v. Ekman, 
 
 (o) 25 Q. B. D. 320 ; (1891) 1 Q. B. (1897) 2 Q. B. 83. 
 
 35. (»•) Bradley v. Goddard, 3 F. & F. 
 
 (i») See an early illustration in Wynne .638. 
 
 yy2 
 
692 THE DELIVERY. 
 
 Sect. 612. under the contract (s) ; or, in failing to have the ship's mnehes in 
 proper working order (t). 
 
 Nor is the freighter liable for a failure to complete the work of 
 loading or discharging in the agreed time if that has resulted from 
 a refusal of the shipowner to employ enough men to do his part of 
 the work in that time. 
 
 Though the stipulation that the ship shall be loaded or dis- 
 charged in a particular time constitutes a promise by the charterer, 
 still the correlative duty on the shipowner must be proportioned to 
 that on the charterer. When the opportunity for loading or dis- 
 charging is given, the shipowner ought to do all he reasonably 
 can to get his part of the work done at the agreed rate, whether by 
 employing extra hands, or by working overtime (u). 
 
 In Hansen v. Donaldson («) eight days were allowed for discharg- 
 ing; and "should the vessel be detained above that time" 51. a day 
 was to be paid. The master did not employ any extra hands in dis- 
 charging ; and it appeared that with his crew only he could not put 
 the cargo out in eight days. The crew was a sufficient one for the 
 ship. It was held that the owner could not claim for the detention 
 beyond eight days, caused by this failure to put the cargo out. 
 Quarantine. And where the^ ship has been herself directly disqualified from 
 loading, or unloading, as by quarantine regulations of the port, 
 it has been held that the shipowner cannot claim for the consequent 
 delay. In White v. S.S. Winchester Co. (y), the cargo was " to be 
 supplied at the rate of not less than 140 tons per running day, 
 Sundays excepted." The vessel was lying at Port Said when the 
 charter was made, and on arrival at the loading port it was found 
 that vessels from Egypt were required to go into quarantine. The 
 Court of Session held that the charterer was not liable for the 
 detention in quarantine ; for the lay days did not begin until the 
 vessel was not only at the place of loading but could also be placed 
 there at the charterer's disposal as ready to receive cargo. 
 
 So, too, the freighter is not generally liable for a delay caused 
 by neglect, or difficulty, in getting the necessary custom-house 
 papers for discharging ; imless the delay has been incurred at his 
 
 (s) Harris v. Haywood, 14 So. L. E. (x) 1 Sess. Ca. (4th) 1066. 
 
 ^°f.N All T 1, 4. ,n a n W 23 So. L. R. 342; The Austin 
 
 (t) Allan V. Johnstone, 19 Sess. Ca. ' 
 
 (4th) 364. Friars, 71 L. T. 27. Of. Cunningham 
 
 (m) See per Lord Blackburn, Maokay "■ Dunn, 3 C. P. D. 443, discussed swpro, 
 
 V. Dick, 6 A. C. at p. 263. s. 228. 
 
DEMUEEAGE. 693 
 
 request (s), or in consequence of a special order being required for Sect. 612. 
 discharging the goods which he has shipped (a). 
 
 612a. In Budgett v. Binnington (b) the facts showed that the strike of 
 shipowner did not prevent the consignee from completing the dis- labou^s!^^ 
 charge ; for, owing to the strike, the consignee was himself unable 
 to work. But the Court of Appeal further held that, if the 
 merchant had been prevented by acts of the labourers who were 
 doing the ship's part of the work, that could not be imputed to the 
 shipowners. Lord Bsher said (c) : " Now, has the shipowner failed 
 in his duty thi'ough any default of his own, or of persons for whom 
 he is responsible ? The persons for whom he is responsible are the 
 persons who represent him in his absence. If, for instance, the 
 master refused to discharge the cargo, the owner would be respon- 
 sible. How much further this rule of liability extends I am not 
 prepared to say. Whether, for instance, it extends to the ease of 
 the crew refusing to work : but of this I am certain, that if the 
 shipowner is prevented from carrying out his share of the discharge 
 by the acts of persons over whom he has no control, the case comes 
 within the same category as the case of non-delivery caused by 
 some physical misfortune over which he has no control." 
 
 This passage must be read with some caution. Acts of persons 
 who are doing the shipowner's work cannot be treated as in all 
 respects analogous to misfortunes, such as bad weather, with which 
 the shipowner has nothing to do. It is implied in the shipowner's 
 contract that he will, at least, be reasonably diligent in doing his 
 part of the discharge : and he is liable to the consignee for any 
 damages sustained through a failure in that respect. It is a 
 question of fact in each case whether he has taken all reasonable 
 steps to get the work done. 
 
 In the Divisional Court, in Budgett v. Binnington, it seems to sUpowner 
 have been considered that a want of diligence on the part of the ^°y^^ *° *^^ 
 shipowner, which prevented the merchant from performing his con- steps to get 
 tract, might not only give rise to a claim for damages, but also done, 
 might afford -an excuse for the merchant's failure. Vaughan 
 Williams, J., delivering the considered judgment, said (d) : " If 
 the strike of the stevedores had resulted from unreasonable con- 
 duct of the master in refusing reasonable wages asked by the steve- 
 
 («) Famell v. Thomas, 5 Bing. 188. 36 ; supra, a. 611. 
 
 («) Hill V. Idle, 4 Camp. 327. (c) (1891) 1 Q. B. p. 38. 
 
 (i) 25 Q. B. D. 320 ; (1891) 1 Q. B. (i) 25 Q, B. D. p, 337, 
 
694 THE DELIVERY. 
 
 Sect. 612a. dores, the case migM have been different ; for then, perhaps, it 
 might have heen said that the shipowner prevented the charterer 
 performing the contract, and that the act of the shipowner was the 
 causa causans preventing the charterer ; but even in such a case the 
 charterer, would, in our opinion, have to show that he was actually 
 prevented by the default of the shipowner, i.e., that there were no 
 available means of performing the contract, notwithstanding the 
 default of the shipowner (see Alston ». Herring (e) ). If such 
 means were available the charterer must avail himself of them to 
 discharge the ship, and take his remedy by suing the shipowner for 
 breach of contract, or he will be liable to demurrage " (/). 
 Meaning of 613. When " days," or " running days," are spoken of without 
 
 qualification, in a bill of lading or in a charter party, they are 
 understood to mean consecutive days ; and Sundays and holidays 
 are counted (g). And when demurrage or despatch money is to be 
 paid at so much " per hour," it is to be calculated on the number 
 of consecutive hours during which the ship has been detained, or 
 which have been saved, as the case may be (/«). 
 
 In Cochran v. Eetberg (i), however, a special jury of the City 
 of London found that the word " days," in a bill of lading which 
 required the cargo " to be discharged in fourteen days," meant, by 
 usage, working days, and excluded Sundays and holidays at the 
 custom house. 
 
 " Working days " are those upon which work would ordinarily 
 be done in the port ; that is, excluding holidays usually observed 
 there (k) ; but not excluding days on which the usual working is 
 merely prevented, as by bad weather (l). 
 
 («) 11 Exch. 822. 437. Cf. The aiendevon, (1893) P. 269. 
 
 (/) See Hansen v. Donaldson, 1 Sess. (i) 3 Esp. 121. 
 
 Oa. (4th) 1066 ; supra, e. 612. Also, (A) Holman v. Peruvian Nitrate Co., 
 
 Empire Transp. Co. v. Philadelphia, &o. 5 Sess. Ca. (4th Ser.) 657. And see per 
 
 Co., 77 Fed. Rep. 919 ; and Wood i/. Lord Esher, Nielsen v. Wait, 16 Q. B. 
 
 Keyser, 84 Fed. Eep. 688 ; 87 Fed. Eep. D. 67, p. 71. A hoHday taken, acoord- 
 
 1007, where it was held (U. S.) that, ing to custom, for the funeral of one of 
 
 where delay by "strikes" is excepted, the men loading was not allowed : Wood 
 
 the charterer is not bound to find men v. Keyser, 84 Fed. Eep. 688 ; 87 Fed, 
 
 by paying extra wages ; he is only bound Eep. 1007. If a local holiday is not in 
 
 to employ men on reasonable terms. fact observed as a holiday by those who 
 
 (ff) Brown v. Johnson, 10 M. & W. are loading or discharging the ship, 
 
 331 ; Niemann v. Moss, 29 L. J., Q. B. it will count as a working day. Holman 
 
 206. But see infra, s. 628, as to cases v. Peruvian Nitrate Co., supra. 
 
 in which the loading or discharge is (2) Thiis v. Byers, 1 Q,. B. D. 244 ; 
 
 done at more than one place. Holman v. Peruvian Nitrate Co., 5 Sess. 
 
 (A) See Laing v. HoUway, 3 Q. B. D. Ca. (4th Ser.) 657. 
 
DEMUREAGE. 695 
 
 " Weather working days " are working days on whicli the Sect. 613. 
 weather does not prevent working. When substantial work is 
 done, but the weather prevents working through the whole day, 
 it is counted as a half-day, or fuU day, according to the circum- 
 stances (m). 
 
 Where " holidays" are expressly excepted, and the ship is foreign "Holidays." 
 to the place at which the work is being done, there may be a doubt 
 as to whether the holidays referred to are those at the port, or thos& 
 usually observed by the ship, or both. As the exception is for the 
 protection of the charterer, it presumably relates to holidays at the 
 port. On the other hand, as days upon which the crew fail to do 
 their part in the work, ought not to be counted against the charterer, 
 it is not necessary to make the word include ship's holidays. 
 Probably, therefore, ship's holidays should be counted as working 
 days, if the crew are in fact ready to work, and if there is no 
 holiday on shore. 
 
 Where the words in the charter party were " loading and dis- 
 charging the ship as fast as the steamer can work, but a minimum 
 of seven days to be allowed merchants," it was held that the seven 
 days must mean working days, exclusive of Sundays («). And, 
 no doubt, when the work is to be done at a certain rate " per day," 
 that must mean per working day (o). 
 
 614. If the contract requires that the loading, or discharging, be "Usual 
 done " with the usual despatch of the port," or " in the usual and &o." ' 
 customary time," this is in effect a contract giving a fixed time for 
 the work : namely, such a time as would under ordinary conditions 
 be usually occupied at that port. The charterer is responsible for 
 all delay beyond the period so calculated. In Kearon v. Pearson (p) 
 the contract provided that the charterers should load a cargo of 
 coals at Liverpool " with usual despatch." They intended to bring 
 the coals from a colliery at Wigan, by canal ; but after the loading 
 had begun a severe frost prevented this, and a long delay occurred 
 in consequence. The judge, at the trial, ruled that " usual des- 
 patch " meant the usual despatch of persons who have a cargo in 
 readiness at Liverpool for the purpose of loading ; and this ruling 
 was upheld (5'). 
 
 {m) Branokelow S.S. Co. 0. Lamport, (0) See Hooper v. McCarthy, 2 B. & 
 
 (1897) 1 Q. B. 670 ; infra, s. 631. P., N. R. 258. 
 
 (m) The Commercial S.S. Co. v. Boul- (p) 31 L. J., Ex. 1. 
 
 ton, L. R., 10 Q. B. 346. (j) A contract to give " prompt 
 
696 THE DELIVERY. 
 
 Sect. 614. In Asheroft v. The Crow Orchard Colliery Co. (r) a cargo of 
 coals was to be loaded " with the usual despatch of the port " in 
 the Bramley Moore or Wellington Docks, at Liverpool, from the 
 High Level Railway. By the dock regulations the charterers 
 were not allowed to have more than three vessels in these docks, 
 loading and to load, at one time ; and, unknown to the master of 
 the ship, they already had three ships loading, and ten others on 
 their books having priority to the plaintiff's ship. In consequence 
 of these engagements the ship was not allowed to go into dock to 
 load until thirty days after she was ready. This delay was 
 admitted to be unusual, and it was held that the charterers were 
 liable to pay for it. 
 
 In Rodgers i). Forrester (s), where the freighter of a cargo of 
 wine was to be allowed "the usual and customary time to unload," 
 Lord EUenborough ruled that he was not liable for delay arising 
 from the crowded state of the London Docks. " What is the usual 
 and customary time for a ship to unload a cargo of wines in the 
 port of London ? According to the evidence, when the ship gets a 
 berth by rotation, and the wines can be discharged into the bonded 
 warehouses." But the accuracy of this seems doubtful. 
 "Asoua- Where the loading or discharging is to be done "in the usual 
 
 ™^^' and customary manner," this relates to the mode of doing the 
 
 work, and not to the time within which it is to be completed (t). 
 So, where the work is to be done " as customary " (m), or " with all 
 despatch as customary " (x), or " as fast as steamer can deliver as 
 customary" («/), the words " as]customary " are equivalent to in the 
 customary manner. In such cases there is no warranty by the 
 charterer that the work wiU be done within the usual or any par- 
 ticular time ; nor that it shall be commenced or completed without 
 delay. 
 In Gardiner v. Macfarlane (2) it was held that the words 
 
 despatch" has been held, in U. S., to BoTill, C. J., in Tapsoott v. Balfour, 
 
 require the charterer to have a berth L. E., 8 0. P. p. 62. 
 
 ready at once ; Ten thousand and („) Dunlop v. BaUour, (1892) 1 Q. B. 
 
 eighty-two oak ties, 87 Ped. Kep. 936. g^y . ^he Nifa, (1892) P. 411 ; Gardiner 
 
 (»•) L. E., 9 Q. B. 640. ^ Macfarlane, 20 Sess. Ca. (4th) 414 ; 
 
 (») 2 Oamp. 483. Cf. Burmester v. Aberdeen, &o. Co. v. Macken, (1899) 2 
 
 Hodgson, 2 Camp. 488 ; Postlethwaite I E, 1 
 
 V. Freeland, 5 A. 0. 599, p. 620 ; Hick ' , [ ^ ,, . a a r, t> 
 
 .. Eodocanachi, (1891) 2 Q. B. 626; , {^) Oastlegate S.S. Co. .. Dempsey, 
 
 (1893) A. C. 22. (18^2) 1 Q. B. 854. 
 
 (<) Per Brett, L. J., in Nelson v. W Q-ood «>. Isaacs, (1892) 2 Q. B. 665. 
 
 VA-A, 12 Ch. p. p. 688, citing per (z) 20 Sess. Ca. (4th) 414, 
 
DEMURRAGE. 697 
 
 " loaded as customary " related to the mode of loading, e.g., by Sect. 614. 
 lighters, crane, &o. ; and did not relate to a suggested practice to 
 giTS steamers a preference over sailing ships. 
 
 614a. Sometimes the expression is that the discharge shall be "As fast as 
 ^ _ _ ° smp can 
 
 done " as fast as ship can deliver." The effect of this appears to deliver." 
 
 be that delivery shall be taken by the consignee as fast as the ship 
 working reasonably can give delivery, under the conditions and 
 with the means available (or which ought to be available) at the 
 place of delivery (a). The charterer does not warrant that she 
 shall be able to discharge at any particular rate ; nor is he bound 
 to take delivery until she is at a proper place for it. 
 
 In the American case of Hine v. Perkins {b), the ship was to be 
 discharged at one safe berth in New York Harbour, as ordered by 
 charterers. She was to " discharge as fast as she can deliver in 
 ordinary working hours " ; and the charter party stipulated that 
 she should " provide sufficient steam to run all cargo winches at 
 one and the same time." The vessel had four hatches, and corre- 
 sponding winches, and was ready to discharge at all hatches at the 
 same time. But the berth to which she was ordered did not admit 
 of that being done. It was held that the charterers were liable 
 for the consequent delay. 
 
 615. Next as to cases ia which the time for loading, or dis- where no 
 charging, is not fixed beforehand ; either definitely, or by reference *^™® 
 to any ordinary practice or despatch. The contract implied by law 
 in those circumstances is that the merchant, and shipowner, shall 
 " each use reasonable despatch in performing his part " (c). 
 
 The expressions " reasonable despatch " and " reasonable time," EeaaonaWo 
 commonly used, are ambiguous unless we know the state of ™^' 
 circumstances to which they refer. If the reasonable despatch is 
 to be estimated by reference to the circumstances which ordinarily 
 exist, the time to be occupied is a definite one, and may be calcu- 
 lated beforehand. But in the case we are considering, the true 
 view is, that the despatch required from the parties is that which 
 can reasonably be expected from them under the actual circum- 
 
 (a) See Wyllie v. Harrison, 13 Sess. holme). 
 Oa. (4th) 92 ; Good •</. Isaacs, (1892) 2 (c) Ford v. Cotesworth, L. R., i Q. B. 
 
 Q. B. 555; TheJaederen, (1892)P. 351. 127, at p. 137; supra, ss. 179, 180. 
 
 (5) 55 Fed. Rep. 996, Cir. Ct. of Where a vessel was to be loaded in time 
 
 Appeals (1893), reversing the District for a particular convoy, see Thompson 
 
 Judge, 50 Fed. Rep. 434 (The Nether- v. Inglis, 3 Camp. 428. 
 
THE DELIVERY. 
 
 Sect. 615. stances ■which exist at the time of performance [d). Not, however, 
 allowing as excuses impediments which the party has himself 
 created, or which are under his control (e). 
 
 " The delay having happened without fault on either side, and 
 neither having undertaken hy contract, express or implied, that 
 there should be no delay, the loss must remain where it falls. 
 
 If the contract be, as we construe it, only to use 
 
 reasonable diligence in performing his part of the delivery, he was 
 guilty of no breach, whilst the landing of the cargo was rendered 
 impossible by a cause over which he had no control " (/). 
 
 In Postlethwaite v. Freeland {g), the cargo was " to be discharged 
 with all despatch, according to the custom of the port ; " and Lord 
 Blackburn, discussing the charterer's obligation, said : " In Taylor 
 V. Great Northern Eail. Co., it was laid down that a ' reasonable 
 time ' meant what was reasonable under the circumstances. 
 Byles, J., there says : ' My brother Hayes treats ordinary time and 
 reasonable time as meaning the same thing ; but I think reasonable 
 time means reasonable time looking at all the circumstances of the 
 case. The delay in this case was an accident as far as the defen- 
 dants were concerned, entirely beyond their control, and therefore 
 I think they are not liable.' This is, I think, right, and applicable 
 to the present case." 
 
 On the other hand, in Wright v. New Zealand Shipping Co. {h), 
 Thesiger, L. J., said that a " reasonable time " for unloading 
 " means a reasonable time under ordinary circumstances." This 
 did not, however, agree with the other judgments in that case. 
 Bramwell, L. J., said (i) : " The charter party contained no state- 
 ment as to the number of days which should be allowed to the 
 charterers for discharging the cargo ; they were therefore bound 
 to unload the vessel in a reasonable time. In my judgment a 
 reasonable time for doing an act is a time within which it can be 
 done by a person working reasonaUy; but the time which he spends 
 
 {£) Hick -0. Rodocanachi, (1891) 2 (1891) 2 Q. B. p. 645. 
 
 Q. B. 626; affirmed as Hiok v. Ray- (/) Eord«). Coteswortli, L. E., 4 Q. B. 
 
 mond, (1893) A. 0. 22 ; Carlton S.S. Co. atp. 137. Cf. Taylor v. G. N. Rail. Co., 
 
 V. Castle, &o. Co., (1898) A. C. 486; L. R., 1 C. P. 385, and per Brett, L. J., 
 
 Hick V. Tweedy, 63 L. T. 766. inNelson v. DaU, 12 Ch.D. 568, pp. 583, 
 
 (e) Tillett v. Cwm Avon Works, 2 684. But see Hill v. Idle, 4 Camp. 327. 
 
 Times Rep. 675 (1886) ; HiU v. Idle, 4 (^) 5 A. C. p. 621. 
 Camp. 327 ; Wright v. New Zealand 
 
 Sh. Co., 4 Ex. D. 166, per Cotton, L. J. ; ('') * ^^- D. 166. 
 
 Hiok V. KodooanaoM, per Fry, L. J., (i) 4 Ex. D. at p. 168. 
 
DEMUERAGE. 
 
 in making his preparation for doing the act is not to be taken into Sect. 615. 
 account." 
 
 The question is now set at rest hy the judgment of the House 
 of Lords, affirming the decision of the Court of Appeal in Hick v. 
 Eodocanachi(/i;), that, where the contract is silent, the obligation 
 of the merchant is to use " all reasonable diligence under the cir- 
 cumstances which exist at the time of unloading." 
 
 In that case no time was fixed within which the unloadiiig must 
 be done. The shipowners were able and wUling to do their part 
 by the crew; but the consignees were prevented from taking 
 deUvery by a strike of the dock labourers — they could not obtain 
 the necessary labour — and delay consequently occurred. It was 
 held that the shipowners had no claim, the consignees having done 
 aU they could under the circumstances, " We have to deal with 
 implied obligations, and I am not aware of any case in which an 
 obligation to pay damages is ever cast by implication upon a 
 person for not doing that which is rendered impossible by causes 
 beyond his control" {I). 
 
 The requirement, then, in these cases is, that each party shall be 
 reasonably diligent in doing his part of the work. And his dili- 
 gence must be continuous. Eeasonable diligence on the average 
 will not suffice. He cannot excuse neglect at one period of the 
 work by pointiag to extraordinary efforts at another period 
 of it (m). 
 
 616. In Ford v. Ootesworth (m), above referred to, the charter Pordv. 
 party provided that the ship should proceed to Lima or Valparaiso ° ^'^° 
 as ordered, and there " dehver the said cargo in the usual and 
 customary manner, agreeable to bills of lading, and so end the 
 voyage." She was ordered to Lima, and arrived, and was ready 
 to imload at Callao, the port of Lima, on March 1st. Goods could 
 only be landed there by launches or lighters (provided by the 
 merchant) ; and only through the custom house. 
 
 WhUe the ship was unloading, about April 11th, the authorities 
 refused to allow any more cargo to be landed at the custom house, 
 
 (A) (1891) 2 Q. B. 626 ; affirmed iu (J) Per Lindley, L. J., (1891) 2 Q. B. 
 
 the H. L. as Hick v. Eaymond, (18«3) at p. 638. 
 
 A. C. 22. See also Carlton S.S. Co. v. (m) Aberdeen, &o. Co. v. Maoken 
 
 Castle, &c. Co., (1898) A. C. 486. In (1899), 2 I.E.I; Avon S.S. Co. v. Leask, 
 
 the XJ. S., see Empire Transp. Co. v. 18 Sess. Ca. (4th) 280. 
 
 PhUadelphia, &o. Co., 77 Fed. Eep. 919 («) L. E., 4 Q. B. 127; affirmed, 
 
 (1896). L. E., 5 Q. B. 544. 
 
700 THE DELIVERY. 
 
 Sect. 616. in consequence of anticipated danger from the Spanish fleet, then 
 Ford V. in the neighbourhood. And, about the 18th, shipping was ordered 
 
 to move out of the expected line of fire of the fleet. On. the 26th 
 the ship did, on peremptory orders, move away several miles ; and 
 did not return till May 12th, when the discharge was proceeded 
 with and finished. 
 
 The question was, whether the shipowner was entitled to demur- 
 rage for the time (agreed at seven days) during which the ship lay 
 at her berth but could not unload owing to the refusal of the 
 authorities to allow the cargo to be landed. Blackburn, J., de- 
 livering the judgment of the Court, said (o) : " Where the act 
 to be done is one in which both parties to the contract are to 
 concur, and both bind themselves to the performance of it, there is 
 no principle on which, in the absence of a stipulation to that effect, 
 either expressed by the parties or to be collected from what they 
 have expressed, the damages arising from an unforeseen impedi- 
 ment are to be cast by law on the one party more than on the 
 other ; and consequently we think that what is implied by law in 
 such case is, not that either party contracts that it shall be done 
 within either a fixed or a reasonable time, but that each contracts 
 that he shall use reasonable diligence in performing his part. It 
 is on the application of this principle to a charter party that the 
 present question depends. We think that delivering cargo is as 
 much the duty of the shipowner as of the merchant ; and conse- 
 quently that the contract, implied by the law in the absence of 
 any stipulation, in a charter party is, that each party shall use 
 reasonable diligence in performing his part of the delivery at the 
 port of discharge ; the merchant being ready to receive in the usual 
 manner, and the owner by his captain and crew to deliver in the 
 usual manner. So that there is no contract implied by law on the 
 part of the shipowner to allow his vessel to be kept there for the 
 usual time, if by reasonable diligence on the part of the merchant 
 the cargo might be sooner taken away ; and no contract implied by 
 law on the part of the merchant to take the cargo out within such 
 usual time, if he could not by reasonable diligence perform it : 
 though very commonly there are stipulations to that effect." 
 
 This judgment was aflirmed in the Exchequer Chamber (p), and 
 Kelly, C. B., there said : " I was from the first prepared to agree 
 with the Court of Queen's Bench in treating the delivery of the 
 (o) L. R., 4 Q. B. p. 133. {p} L. R,, 6 Q. B. 644. 
 
DEMURRAGE. ' 701 
 
 cargo at the port of destination as one entire act, in wliich toth Sect. 616. 
 pai'ties have to perform their parts ; the defendants have to provide Ford v. 
 lighters, and the plaintiffs to assist in putting the goods over the 
 side of the ship ; and the plaintiffs were as much prevented from 
 doing their part as the defendants. For had the defendants pro- 
 vided lighters, as it was contended they ought to have done, not- 
 withstanding the order not to land any more goods, no douht the 
 authorities would have prevented the goods from being put on 
 hoard the lighters ; and it is absurd to suppose that the goods 
 could have been put into seventy or eighty lighters and left float- 
 ing in the harbour." 
 
 It is, however, difficult' to understand how the decision in that la Joint in- 
 case can have depended upon the joint inability of the merchant tial to excuse 
 and shipowner. Though the discharging was a matter in which ® ° ^"^ 
 both parties had to take part, it appears that the master of the 
 ship would have been able to perform his part, that is, the putting 
 the goods out of the ship into the lighters, had the lighters been 
 there. The disabling cause directly affected the charterer's opera- 
 tions only. The question was not as to the delay during the time 
 the ship was ordered away from her berth ; that would have been 
 a case of joint inability ; but it was not under consideration (q). 
 
 Moreover, ii the charterer, in Ford v. Cotesworth, would have 
 been liable for the delay but for the fact of a Joini inability to 
 perform the work of discharging, it would seem that under similar 
 circumstances he ought also' to be relieved fi-om liability although 
 a definite time may have been fixed by the contract. If there was 
 a contract to have the ship discharged in a reasonable time under 
 ordinary circumstances, and joint inability was a good excuse for 
 failing in that, it ought also to be a good excuse where the time for 
 discharging has been fixed. But that is clearly not the rule (r). 
 
 It appears to me, then, that the decision did not depend upon 
 the fact that the shipowner was also prevented from discharging ; 
 but rested on the general principle that the charterer was only 
 bound to work with such diligence as was practicable, and reason- 
 able, under the circumstances which arose (s). Martin, B., in the 
 
 {g) Cf. Cunningliam v. Dunn, 3 0. P. Budgett v. Binningtou, 25 Q. B. D. 320 ; 
 
 D. 443 ; disousaed supra, ss. 228, 229. (1891) 1 Q. B. 35. 
 
 (r) Randall v. Lynch, 2 Camp. 352 ; (s) This view of the case was taken 
 
 Barker v. Hodgson, 3 M. & S. 267 ; by the 0. A. in Hick v. Bodooanaohi, 
 
 Thiis V. Byera, 1 Q. B. D. 244 ; "White (1891) 2 Q. B. 628; afarmed in H. L. 
 
 V. S.S. Winchester Co., 23 Sc. L. B. 342 ; aa Hick v. Raymond, (1893) A. C. 22 ; 
 
702 
 
 THE DELIVERY. 
 
 Sect. 616. Exchequer Chamter, said (t) : " In this case there is only an 
 implied contract on the part of the defendants, for there is no 
 positive contract whatever on their part ; and I am not aware of 
 any case which goes to iiflpose, hy mere implication of law, without 
 any stipulation whatever, so unreasonable a liability as that which 
 the plaintiffs seek to impose on the defendants, that they are to be 
 answerable for the delay caused by vis major." 
 
 Where work 
 done hj 
 independent 
 authority. 
 
 The cargo 
 must he ready. 
 
 616a. The work of loading or discharging is usually a joint 
 operation, done by the freighter or consignee on the one hand, and 
 the shipowner on the other hand. But sometimes, by the law or 
 custom of the place, that work is done by neither of them, but by 
 third persons (such as a dock authority) who act for them both. 
 Where that is the case, and where there has been no undertaking 
 that the work shall be completed in a fixed time, it would seem 
 that the merchant will not be liable for a delay, although unreason- 
 able, caused by the authority doing the work ; unless he in some 
 way brought it about (ii). 
 
 617. But though the charterer, where no time is fixed for loading 
 or unloading, does not come under any obligation to have the work 
 completed in any particular time, and is excused if the work is 
 delayed by causes beyond his control, that is true only of the actual 
 work of loading or unloading. 
 
 Unless expressly excused («), the charterer is bound to be ready 
 to proceed with the work without delay. The cargo must be ready 
 at the proper place for loading («/). And if it is the charterer's 
 duty to provide the apparatus for loading or unloading, that also 
 must be ready (s). The charterer cannot set up the excuse of vis 
 major for delay in these matters. 
 
 Must the 618. The important question whether the charterer is ordinarily 
 
 appliances for i . n , -n i. 
 
 loading or bound to DC ready with the appnances required for taking the 
 
 bereadf'?'^ cargo to Or from alongside the ship is perhaps not definitely 
 settled. 
 
 supra, a. 615. But see Cunningham v. 
 Dunn, 3 C. P. D. 443 ; discussed sttpra, 
 B. 228. 
 
 («) L. R., 6 Q. B. p. 548. 
 
 (m) See The Jaederen, (1892) P. 351 ; 
 Castlegate v. Dempsey, (1892) 1 Q. B. 
 854. Infra, s. 619a. 
 
 {x) As to express exceptions, see 
 supra, ss. 267 — 268. 
 
 (t/) Grant v. Coverdale, 9 A. C. 470 ; 
 Kay V. Field, 8 Q. B. D. 594 ; 10 Q. B. 
 D. 241 ; Elliott v. Lord, 48 L. T. 542 ; 
 Adams v. Royal MaU Steamship Co., 28 
 Ii. J., C. P. 33 ; Kearon v. Pearson, 31 
 L. J., Ex. 1. See supra, ss. 252 — 
 254. 
 
 (z) Wright 41. New Zealand Shipping 
 Co., 4 Ex. D. 165. 
 
DEMURRAGE. 703 
 
 InWright^.New Zealand Shipping Co. (zz), great delay occurred Sect. 618. 
 in tlie discharge of a ship, which had to he done by lighters, owing 
 to the large number of vessels waiting to be discharged, and to the 
 scarcity of lighters at the command of the charterers. The charter 
 party was silent as to the time to be allowed for unloading ; but it 
 provided that the cargo should be delivered into lighters alongside, 
 and should be taken from alongside free of expense and risk to the 
 ship. It was held by the Court of Appeal that the charterers were 
 liable for the delay ; and the ground of the decision, taken by the 
 majority of the Court, was that they were bound to have been 
 ready with the lighters which were necessary for the work of 
 unloading. 
 
 Cotton, L. J., said : " An obligation is imposed on the charterer 
 of providing at the port of discharge sufficient appliances of the 
 kind ordinarily used at the port, and that he must have them 
 ready either when the ship anives, or within a short time, such as 
 a day or a couple of days after her arrival. Perhaps where a ship 
 arrives, unexpectedly, much sooner than could have been antici- 
 pated, a delay may be allowed, and a different rule may be applic- 
 able from that governing a case where the ship arrives at the 
 appointed time " {a). 
 
 And Bramwell, L. J., said that the charterers, " upon the arrival 
 of the ship, were bound to have lighters ready to discharge her 
 forthwith, and were not entitled to excuse the omission to do 
 so on the ground that at the port of discharge there was only a 
 certain number of lighters, and when the plaintiff's vessel arrived, 
 other ships belonging to other persons required those lighters, and 
 the defendants got lighters for unloading the cargo as soon as they 
 could" (6). 
 
 619. But that case must now be read in the light of Postle- Postlethwaite 
 thwaite v. Freeland, as finally decided in the House of Lords (c). "' ^^^ "" ' 
 In that case also delay had arisen from an insufficiency of lighters 
 for the work of discharging. The charter party of The Cumber- 
 land Lassie stipulated that the cargo, of steel rails, should be 
 discharged at East London, in South Africa, " with all despatch, 
 according to the custom of the port ; " and it was to be taken 
 from alongside at the charterers' risk and expense. The work of 
 
 {zz) .4 Ex. D. 165. h) 4 Ex. D. p. 168. 
 
 («) Per Cotton, L. J., 4 Ex. D. p. 169. (c) 4 Ex. D. 155 ; 5 A. C. 699. 
 
704 
 
 THE DELIVERY. 
 
 Sect. 619. iinloading at East London was tlien, and had for long previously 
 been, done in a very peculiar manner, by means of a set of ligbters, 
 under the control of a company there, which were navigated over 
 the bar of the harbour along a system of warps or cables. There 
 were only four lighters suitable for discharging the cargo of The 
 Cumberland Lassie, and other vessels requiring them. had arrived 
 before her. It was the settled practice of the port that vessels 
 should be discharged in turn by means of this system of lighters 
 and warps, and no other mode of discharging seems to have been 
 available ; and thus a long delay occurred after the ship's arrival 
 before the unloading was commenced. It was held by the House 
 of Lords, affirming the decisions of Lord Coleridge and the 
 Exchequer Division, and of the majority of the Court of Appeal, 
 that the charterers were not liable for the delay. 
 
 Cotton, L. J. (in a minority in the Court of Appeal), thought 
 they were liable, inasmuch as a larger number of lighters might 
 have been employed in discharging in the usual manner of the 
 place. But all the other judges held that the charterers had per- 
 formed their undertaking to unload according to the custom of the 
 port. 
 
 That custom was the definite one of using a specific apparatus 
 there existing, in the manner habitually observed. And thus the 
 circumstances were very different from those in Wright v. The 
 New Zealand Shipping Co. (i^). As was pointed out by Lord 
 Selborne (e), " the distinctions between that case and the present 
 (whether the doctrine laid down in it can be supported or not) are, 
 that there no express reference was made in the contract to the 
 custom of the port, and that, if such a reference ought to have been 
 implied, no custom or other circumstanoe existed which would have 
 made it impossible for the charterer, by the use of reasonable 
 diligence, to provide himself with lighters for the discharge of the 
 cargo earlier than he did." 
 
 But Lord Blackburn seems to have thought that they were in 
 truth reviewing and overruliag the rule laid down on this point in 
 Wright V. The New Zealand Co. He thought the express refer- 
 ence to the custom of the port, in the charter party, was no more 
 than would be implied had it not been made (/) ; and came to the 
 
 (d) 4 Ex. D. 165. (/) See The Jaederen, (1892) P. 
 
 (e) 5 A. C. p. 609. 351. 
 
DEMtrREAGE. 
 
 7QS 
 
 oonolusion that the charterer's duty was performed if he had used Sect. 619. 
 reasonable despatch under the circumstances that arose. 
 
 In the course of his judgment, Lord Blackhurn said : " I am 
 not aware of any case contradicting the doctriile that, in the 
 ahsence of something to qualify it, the undertaking of the mer- 
 chant to furnish a cargo is absolute. And if the obtaining lighters" 
 or other customary appliances for the discharge of a ship on its 
 arrival was, like the procuring a cargo for loading the ship, a 
 matter which fell entirely on the merchant, so that he might 
 choose his own mode of fulfilling it, I am not prepared to say 
 that on the same principle he ought not to be held to undertake, 
 without qualification, to provide those appliances. And this 
 seems to be the basis of the judgments of Bramwell and Gotten, 
 L. JJ., and, as it rather seems to me, of Thesiger, L. J., also, as 
 then expressed, though he does not adhere now to that opinion, in 
 Wright V. New Zealand Co. (g) ; and of Cotton, L. J., in the case 
 now at bar. But I do not think that the undertaking to supply 
 lighters or other appliances to assist in discharging the ship does 
 fall within the same principle as the undertaking to supply a cargo. 
 There is no case in which it has been held so to do ; and, so far as 
 I can find, there is nothing in any of the text-books in support 
 of the doctrine that it does ; and, as it seems to me, what 
 authority there is (I agree it is not very direct) is against the 
 position" (h). 
 
 Still, that case does not seem to overthrow the rule laid down in 
 Wright V. New Zealand Shipping Co., that the charterer is usually 
 bound to be ready with such appliances as are ordinarily used at 
 the port (?■). Though it does exclude from the application of that 
 rule, cases in which the unloading has to be done upon a customary 
 system, with a particular set of apparatus. In such cases the 
 charterer can only be required to be diligent in using the regular 
 appliances, in the usual manner. And the same propositions 
 appear to apply to the work at the loading port, 
 
 {g) 4 Ex. D. 165, n. not there shown that the charterers 
 
 (A) Cf . the judgment of Lord Black- ' ' could not hy reasonable precautions or 
 
 buminDahl«'.Nelson,6A.C.38,atp.43. exertions have procured the neoessary- 
 
 (i) See per Lord Hersohell in Hick v. lighters elsewhere or earlier, and so 
 
 Eaymond, (1893) A. C. at pp. 31, 32, have avoided the delay which took 
 
 distinguishing the oases and approving place." But of. per Bigham, J., in 
 
 the decision ia Wright v. Kew Zealand Lyle Shipping Co. v. Cardiff, 69 L. J.,. 
 
 Shipping Co., on the ground that it was Q. B. 93. 
 
 C. C. Z Z 
 
706 THE DELIVERY. 
 
 Sect. 619a. gigg,. This question takes a somewliat different shape at ports 
 Where appU- Mf'here, though the appliances of discharging are not definitely 
 trolledby'port fixed, as they were in Postlethwaite v. Freeland, stiU those appli- 
 authority. ^^^^^ ^^^^^ ^^ ^^^ ^^^^^^ ^^^^^ ^^ custom, he provided hy some 
 
 oontroUing authority, or by a body, such as a railway company, 
 which owns or controls the place. 
 
 This point is illustrated by WyUie v. Harrison (/<;), where a ship 
 was delayed by the want of railway trucks into which to discharge 
 her cargo. She had been chartered to carry iron ore " to Glasgow 
 General Terminus or Queen's Dock in charterer's option," and 
 there " deliver as customary ;" " cargo to be discharged as fast as 
 steamer can deliver after being berthed." She was ordered to the 
 General Terminus, where the customary mode of discharge was 
 into trucks, and the only trucks permitted were those of the Cale- 
 donian and North British Railway Companies. It was custoinaxy 
 for consignees to notify one or other of those companies that trucks 
 were required, and for that company to provide trucks according to 
 its ability. 
 
 The Court of Session held that the charterers were not respon- 
 sible for the delay caused by want of trucks. The Lord Justice- 
 Clerk (Moncreiff) said: "The place of delivery may be a port 
 which is subject to regulations which are not within the powers of 
 the charterer, and which must be complied with before delivery 
 can be given at all. When these regulations, which are incorpo- 
 rated into the charter party, provide that goods shall not be laid 
 down on the quay, but put into trucks, I think the whole obliga- 
 tion of delivery is subject to the possible contingency of trucks 
 being available." 
 
 That decision was approved by the Court of Appeal in Good v. 
 Isaacs {m). A cargo of oranges was there " to be discharged at 
 usual fruit berth as fast as the steamer can deliver as customary, 
 and where ordered by the charterers." The vessel got into a usual 
 fruit berth, opposite the fruit warehouses (at Hamburg), on March 
 8th, 1889 ; but the discharge did not begin until March 11th, as 
 the warehouses were full. The warehouses, and the cranes by 
 which cargoes were discharged into them, were under the control of 
 
 W 13 Seas. Ca. (4th) 92 (1886). Cf. 19 Sess. Ca. (4th) 124; Letrioheux v. 
 Kruse v. Drynan, 18 Sess. Ca. (4th) Dunlop, ibid. 209. 
 1110 ; Granite City SS. Co. v. Ireland, (m) (1892) 2 Q. B. 665. 
 
DEMURRAGE. 707 
 
 Grovernment officials, and their sanction for the use of the cranes Sect. 619a. 
 could not he got earlier. Nor was there any other usual fruit 
 berth where an earlier discharge would have been allowed ; unless 
 into lighters, and a proposal to discharge in that way had been 
 rejected by the master. It was held that the charterers were not 
 liable for the delay. There was no warranty on their part that the 
 customary appHanees would be available for discharging the ship 
 immediately, or without restriction. 
 
 In Lyle Shipping Co. v. Cardiff Corporation (w), the ship was to 
 be discharged "with all dispatch as customary, weather per- 
 mitting." The discharge was delayed owing to an insufficiency 
 of trucks of the Gr. W. Eail. Co., into which, according to the 
 usual practice at Cardiff, the cargo had to be delivered. The want 
 of trucks was due to great pressure of traffic at the time upon the 
 railway. There was no want of diligence on the defendants' part 
 in taking delivery. They did their best to obtain the necessary 
 trucks. 
 
 Bigham, J., held that the defendants were not liable. He con- 
 sidered that the ease was like Postlethwaite v. Freeland, and 
 Wyllie ». Harrison. " Having regard to these authorities, I am 
 of opinion that the whole obligation in the present case upon the 
 charterer is to do his best to procure the appliances that are 
 customarily used at this port for the purpose of discharging such 
 vessels. The appliances customarily used were the waggons of 
 certain specified railways and no others. The defendants used 
 their best exertions to get the services of those appliances." 
 
 620. The ship is sometimes, as in coal charters, to be loaded or "In regular 
 unloaded, " in regular turn," or " in regular turns of loading ;" or 
 other similar expressions are used. If in such eases the ship is 
 ready, at the proper place, and does not get her turn, the charterer 
 is liable for her detention. 
 
 The meaning of " in regular turn " must depend upon the 
 manner in which the work is ordinarily done at the port. Evidence 
 may be given of any general regulation or practice there (o) . 
 
 («) 69 L. J., Q. B. 93. See also Tlie port. 
 
 Jaederen, (1892) p. 351, -where the , ^ t .-, r, , ■, 
 
 worda were, " Steamer to be discharged ^"^ Leidemann v. Sohultz, 23 L. J., 
 
 as fast as she can deUyer," without C.P.17; Eobertsoni;. Jackson, 16 L. J., 
 
 • O "P 98 
 
 express reference to the custom of the ' 
 
 zz2 
 
 turn.' 
 
708' THE DELIVERY. 
 
 Sect. 630. In King t>. Hinde (jo), a sailing vessel was chartered to proceed 
 to Whitehaven for a cargo of coals, and the charter party con- 
 tained the clause, " Eegular turn to be allowed the said merchant 
 for loading," &c. At Whitehaven there was hut one colliery 
 owner, the Earl of Lonsdale ; and the usage of his colliery was to 
 supply vessels in their order of arrival, hut to give a preference 
 to steamers over sailing vessels. The plaintiff's vessel was there- 
 fore postponed to several steamers which arrived after her, but was 
 loaded in turn according to the usage of the colliery. It was 
 held that this was in " regular turn " within the meaning of the 
 charter party; and that the shipowner's ignorance of the usage 
 did not alter the matter. 
 
 But in Hudson v. Clementson (g'), where a "cargo of coke" 
 was to be loaded at Sunderland- " in regular turn," it was held that 
 evidence could not be given that by the custom of Sunderland 
 under such a charter party, the shipowner was bound to wait until 
 a manufacturer of coke, not named in the charter, had supplied all 
 ships entered in his turn book, provided the manufacturer's name 
 were given at the time of contracting, and provided he used 
 reasonable despatch. 
 
 In Lawson v. Bumess (r) the ship was to proceed to Tyne 
 Dock, and there load in thq customary manner a cargo of Marley 
 Hill coke, to be loaded in regular turn. It appeared that at the 
 Marley HiU. Colliery a " turn book " was kept, and that vessels 
 were entered before they were ready, and were loaded according to 
 the order of entry. In consequence of this practice many vessels 
 were loaded before the plaintiff's, although they had not been 
 ready until after she was. The jury were asked to say what " in 
 regular turn " meant ; and whether the ship had been loaded in 
 regular turn. They found that she was loaded according to the 
 practice of the Marley Hill Colliery ; but that it was not an esta- 
 blished or known custom ; and that " regular turn " was the order 
 of readiness, not the order of entry on the book. This finding 
 was approved by the Court, and the charterer was held liable for 
 the delay. 
 
 In Stephens v. Macleod (s), The Cassia was chartered to load at 
 " Portugalete or any other usual ore-loading place on the Eiver 
 Nervion .... as ordered " ; she was to be loaded with iron ore at a 
 
 {p) L. K. It., 12 C. L. U3. {r) 1 H. & C. 396. 
 
 (?) 25 L. J., 0. P. 234. («) 19 Sess. Ca. (4th) 38. 
 
DEMUEKAGE. 709 
 
 certain rate, "after being berthed in turn." On arriving at Por- Sect. 620. 
 tugalete she was entered on a turn list, according to the rule of the 
 port, in the order of arrival on that day. But there were several 
 loading wharves in the port, connected by rail with various deposits 
 of iron ore ; and as the wharf to which she was ordered by the 
 charterers was occupied by other vessels, The Cassia did not get her 
 berth till after other vessels which had arrived at Portugalete after 
 her had been berthed at other wharves. 
 
 » 
 
 The Court of Session (Lord Toung dissenting) held that the 
 ship was not " berthed in turn " ; for that meant in turn with 
 vessels as they arrived at Portugalete for iron ore. It was not 
 a stipulation that she should be berthed in turn at any particular 
 berth, or for ore from any particular deposit. 
 
 But if the ship loses her turn because she is not ready when it 
 comes, the charterer is not liable ; whether the cause of her not 
 being ready is one for which the owner is to blame or not (t) ; 
 unless it is a matter in respect of which the charterer is in default. 
 
 Where by the charterer's default the ship missed her turn, and 
 afterwards, when her turn came again, was not allowed by the 
 harbour master to load owing to the state of the weather, so that 
 she was further detained, it was held that the charterer was liable 
 to pay for the whole detention (u). 
 
 621. Before the lay days at the port of loading can begin to run Notice of 
 against the charterer, he must have had notice of the ship's arrival, of loading 
 and of her readiness to receive cargo. If a delay occurs owing to '^^l™^® ■ 
 no notice having got to him, and if he had not "fair means of 
 knowing that the ship had arrived and was ready," he is not 
 responsible (x). "Where notice of a specific kind is stipulated for, 
 it is a. condition of the charterer's obligation (^y). 
 
 The same rule does not apply at the port of discharge. The Not so at port 
 master is not there bound to notify his arrival to the consignees of 
 goods. They are bound themselves to watch for it, and to take 
 notice of it without any communication. This has repeatedly been 
 held with regard to consignees of goods shipped under bills of 
 
 («) Taylor v. Clay, 16 L. J., Q. B. 44. (y) Gordon *. Powis, 8 T. L. R. 397. 
 
 (u) Jones ». Adamson, 1 Ex. D. 60. ^ *" whether the ship must be actuaUy 
 
 Of. Jamieson v. Laurie, 6 Bro. Pari. C. ^^^^^ *° ^°^\ '^* *^« *f"^ °^ f 7^ *^« 
 
 notice to load on a subsequent day, see 
 474 ; Abbott (5th), 186 : infra, s. 630. Dalbeattie SS. Co. .;. Card, 67 Fed. 
 (x) Stanton v. Austin, L. E., 7 0. P. Rep. 304 ; Wenoke v. Vaughan, 60 Fed. 
 651 ; Fairbridge v. Pace, 1 C. &E. 317. Rep. 448. 
 
710 THE DELIVERY. 
 
 Sect. 621. lading (z). "It is the duty of the consignee, apart from special 
 custom or contract, to use due and reasonable diligence to discover 
 when the ship arrives with his goods on board " («) . And the same 
 rule appears to apply in the case .of chartered ships (b). 
 
 But the master must not mislead the consignee in any way. 
 Delay by the latter may be excused, for example, if the ship has 
 been entered by the master at the custom house under a different 
 name from that given in the bill of lading (c). 
 
 Wien do the 622. It is often a matter of great difficulty to determine when 
 meuoe f^ *'°"^' the lay days are to be considered to have commenced ; or, if no lay 
 days are fixed, to determine when the charterer's responsibility for 
 the detention of the ship attaches. Speaking generally, the ship 
 must have arrived at the place agreed upon for the loading, or dis- 
 charging, and must be ready to take in the cargo, or to deliver it, 
 as the case may be (d). 
 
 But the place named is usually one of wide extent, comprising 
 areas where the work of loading or unloading would, in a practical 
 sense, be impossible. And thus the question arises, whether the 
 ship must be lying in any particular part of the named place of 
 loading or discharging. Also, the further question as to who is 
 to bear the burden of the delay if the shipowner is prevented, 
 by causes for which he is not responsible, from at once bringing 
 the ship to the spot where she ought to be. 
 
 Where must 623. Eirst, as to where the ship ought to be lying. The place 
 lying ?^ ^ named for the loading or the discharge is generally some wharf, or 
 dock, or river ; or is described by an indefinite geographical name, 
 as Alexandria, or the port of Alexandria. If it be a particular 
 wharf, the ship must get alongside that wharf, before the charterer 
 can be required to load or take delivery. And he will not be 
 responsible for a delay in getting alongside, due to the state of the 
 tides (p), or to the occupation of the wharf by other ships (/). The 
 
 (z) Harman *. Clarke, 4 Camp. 159 ; 23 So. L. R. 342, cited supra, s. 612. 
 Harman v. Mant, ibid. 161 ; Houlderi). (e) Bastifell k. Lloyd, 31 L. J., Ex. 
 
 General Steam Nav. Co., 3 F. & F. 170. 413 ; Parker v. Winlo, 27 L. J., Q. B. 
 
 («) Per Cookbum, C. J., 3 F. & P. ^^■ 
 p. 174. (/) Tharsis Co. v. Morel, (1891) 2 
 
 (J) Per Brett, L. J., in Nelson J.. Dahl, ^- ^- ^*^ ' Sanders v. Jenkins, (1897) 
 
 12 Ch D p. 683. ^ ■^' ^'^ ' WS'tson v. Eorner, 4 Com. 
 
 ,,„' " ' , .„ ,^„ Ca. 335 ; Murphy ». Coffin, 12 Q. B. D. 
 
 (c) Harman v. Clarke, 4 Camp. 169. 07. oj. i, A , ■ ■, .,,..,,, 
 
 ^ ' . ' ^ 87 ; Strahan v. Gabriel, cited by Brett, 
 
 {d) Where she is disabled by quarau- L. J., ia Nelson v. Dahl, 12 Ch. D. 
 tine, see White v. Winchester SS. Co., p. 690. 
 
DEMURRAGE. 
 
 711 
 
 wharf is the place at which, only; the charterer has undertaken to Sect.. 683. 
 do his part ; therefore, generally, the lay days do not begin until 
 the ship is ready for him there. Moreover, the ship must have 
 got to the agreed wharf with the assent of the dock or harbout 
 authorities, where that is necessary. It is not enough for her to 
 get there, if she is not allowed to remain [g). 
 
 The same is true where the place named is of wider extent, as a 
 dock, river, or port. The charterer is not under any obligation to 
 load, or receive the cargo, until she has got within the place 
 described. 
 
 And here the usage of the place, or the obligation to perform the 
 contract reasonably, would seem to require something more than a 
 mere arrival within the wide limits so indicated. For it will 
 generally be the case that the work of loading or unloading is 
 usually done in some parts only of the area named ; and, if so, it 
 is implied in the contract that it is to be done at that part of the 
 place named which is usual for that work. So that here again, it 
 might be supposed, the lay days would not run, until the ship is 
 not only within the port or river, but is also ready at that part of 
 it which is usual for the work which the charterer has undertaken 
 to perform. That was the view formerly held {h). 
 
 In Brereton v. Chapman («), the port of diseharge. was Wells, a 
 port formed by an inlet of the sea ; the entrance to it being a 
 considerable distance from the quay where vessels unloaded. By 
 the custom of the port, lay days for unloading did not commence 
 until ships arrived at the quay. It was held that the true construc- 
 tion of the charter party was that they did not commence until the 
 vessel had got to the place where it was usual to unload. 
 
 In Brown v. Johnson {k) the ship, after loading, was to proceed 
 to some port in the United Kingdom ; she was ordered to Hull, 
 and arrived there, and was reported on the 1st of February : she 
 got into the dock, which was the usual place of discharge, on the 
 2nd, and to a berth there on the 4th. It was held that the lay 
 
 (y) Good V. Isaacs, (1892) 2 Q. B. 665. Ca. (4th) 934. And see the rule stated 
 
 {h) Brereton V. Chapman, 7Bing. 659; in Thiis v. Byers, 1 Q. B. D. at p. 249. 
 
 Brown v. Johnson, 10 M. & W. 331 ; But see per Bramwell, L. J., in Davies 
 
 11 L. J., Ex. 373; Kell v. Anderson, v. MoVeagh, 4 Ex D. p. 268; and per 
 
 10 M. & W. 498 ; 12 L. J., Ex. 101 ; Brett, L. J., in Nelson v. Dahl, 12 Oh. 
 
 Tapscott V. Balfour, L. E., 8 C. P. 46 ; D. 581. 
 
 NordenSS. Co. v. Dempsey, l.C. P. D. j^j ►, -q^^ ggg 
 
 654 ; La Cour v. Donaldson, 1 Sess. Ca. 
 
 (4th) 912 ; Bremner v. BurreU, 4 Sess. W 1° ^- & '^- 331- 
 
.712 THE DELIVERY. 
 
 Sect. 623. days " commenced from the time the vessel entered the dock ; it 
 had then arrived at the usual place of discharge. They certainly 
 did not commence at the period of its entering the port, as. that 
 might be very extensive " {I). 
 
 In Kell V. Anderson (/») the place of discharge was London ; 
 the ship was detained at Gravesend, waiting her turn to he 
 admitted, according to the rules of the port, into the usual place 
 at London for discharging. It was held that the lay days did 
 not commence tiU she reached that place. It has indeed heen said 
 that the ship had not (in that case) completed her voyage when 
 she was at Gravesend («). But Gravesend is within the port of 
 London, and the judgments of the Court show that the ground of 
 the decision was that she had not arrived at the usual place of 
 discharge. 
 
 But in more recent cases a different rule has been laid down. 
 In Davies ». McYeagh (o), Bramwell, L. J., said: "Definitions 
 are always dangerous, and I am not anxious to state one which 
 hereafter may be questioned ; but I think it may be laid down 
 that a vessel has reached the place of loading as distinguished from 
 the spot of loading when she has entered that port from which 
 her voyage is to commence. I am not afraid of the consequences, 
 even if this definition is pushed to a great extent. Suppose that 
 the defendants' vessel had been lying in the River Mersey, and 
 that her captain had given notice to the plaintiff that he was ready 
 to enter the dock, and ready to take on board the cargo ; I do not 
 think it would have been open to the plaintiff as charterer to 
 contend that the vessel was not at the place of loading, that she 
 was not in a proper position, and that the nineteen days did not 
 begin to run." 
 
 And, again, in Nelson v. Dahl (p), Brett, L. J., gave an elabo- 
 rate exposition of the law on this subject, and laid down that the, 
 " liability of the charterer, either as to loading or discharging the 
 ship, does not commence until the ship is in the place named as 
 that whence the carrying voyage is to begin, or where the carrying 
 voyage is to end " (q) ; and that if the place named for the 
 carrying voyage to begin is a wide space, " as a port or dock, the 
 
 (Z) Per Lord Abinger, 10 St. & "W. (o) (1879), 4 Ex. D. at p. 268. See 
 
 P- 334. this case explained in Tharsis Co. v. 
 
 {m) 10 M. & "W. 498. Morel, (1891) 2 Q. B. 647. 
 
 (w) Per Bramwell, L. J., in Davies v. . (p) (1879), 12 Ch. D. 568. 
 
 5IoVeagh, 4 Ex. D. 265. (g) 12 Ch. D. »t pp, 390, 591. 
 
DEMUBEAGE. 
 
 713 
 
 shipowner may place his ship at the disposition of the charterer, Sect. 623. 
 when the ship arrives at that named place, and so far as she is 
 concerned is ready to load, though she is not then in the particular 
 part of the port or dock in which the particular cargo is to be 
 loaded" (r). 
 
 624. And even in the older cases the rule that the ship must be Where dock 
 at a usual loading or discharging place was not followed out 
 strictly. If a ship is to be loaded or discharged in a particular 
 dock, or if, a port being named, some particular dock there is the 
 usual place for loading or discharging such a cargo, it will also 
 generally be the case that the work is habitually done at the quays 
 of the dock, or even at some one part of the quays — as where coal 
 is loaded at " spouts" or " tips." Yet it has been repeatedly 
 decided that the lay days in such cases commence as soon as the 
 ship gets into the dock, ready for her cargo. 
 
 " The rule is that where a port is named in the charter party as 
 the port to which the vessel is to proceed, the lay days do not com- 
 mence upon the arrival of the vessel in the port, but upon her 
 arrival at the usual place of loading in the port: not the actual berth 
 at tvhich she loads, hut the dock or roadstead where loading usually 
 takes place" (s). And this view is in accord with the earlier case 
 of Brown v. Johnson {f). 
 
 But it is difficult to resist the conclusion that it is not logical. 
 One would think that the charterer's liability should begin either 
 as soon as the ship has been brought within the named port, and 
 there placed in readiness at the charterer's service, or not until she 
 has arrived at some spot in the port at which the charterer can 
 perform his undertaking in the usual way. Either he undertakes 
 the risks of delay between those periods, or he does not. It seems 
 illogical to say that he undertakes part of them. 
 
 624a. The construction pointed out by Bramwell, L. J., and UportnamaX 
 Brett, L. J., in the dicta quoted above (s. 623), was adopted in fcomthipT 
 Pyman v. Dreyfus (m). The plaintifE's steamer was in that case '"'^■^f^-"^?? 
 chartered to proceed "to Odessa," and there load. Twelve running port, 
 days (Sundays excepted) were allowed for loading and unloading, 
 with days on demurrage beyond those lay days. She reached the 
 
 (r) 12 Ch. D. at p. 582. W 10 M. & W. 331 ; 11 L. J., Ex. 
 
 373. Cf. Davies v. McVeagh, 4 Ex. D. 
 {») Per Bovill, C. J., in Tapsoott v. ges ; Leer v. Yates, 3 Taun. 387. 
 Balfour, L. K., 8 C. P. p. 52. („) (1889), 24 Q. B. D. 162. 
 
714 THE DELIVERY. 
 
 Sect. e34a. outer harbour at Odessa on December 22nd, 1888, and the captain 
 gave notice of his readiness to load. But there were then no 
 practicable means of loading her at Odessa, except at or alongside 
 a quay berth, in the outer or in the inner harbour; and the harbour 
 master refused to allow the steamer to go to a loading quay berth 
 in the outer or the inner harbour until her regular turn came, after 
 other ships which had arrived before her. The charterers were 
 ready to load her as soon as she got a quay berth in the inner 
 harbour, where the cargo was stored, but not before. She got 
 orders for a quay berth on January 8th, in her turn, and the 
 charterers began to load her, in the inner harbour, on January 10th. 
 It was held, following the rule laid down by Brett, L. J., in 
 Nelson v. Dahl, that the lay days began to run on December 22nd. 
 
 The rule, then, appears to be, that when a fixed period is allowed 
 for loading or discharging, and the place named in the contract for 
 the loading or discharging is of wide extent, and not a definite 
 spot, the lay days begin when the ship is ready and at the charterer's 
 disposal within the named place, although she may not be in the 
 berth or dock where the particular cargo is to be loaded or dis- 
 charged, or even in a place where the loading or discharge could be 
 done. 
 
 The period fixed by the charter party in such cases for "loading," 
 or " discharging," is a period within which the charterer undertakes 
 that the ship, after she is ready within the named port or place, 
 shall get to her place of loading and load, or shall get to her 
 place of discharging and discharge. 
 
 Where ship to 624b. Sometimes the charter party expressly gives the charterer 
 ^°'ha ™ ^' ^^® right to name the pai-ticular berth, or dock, in the port named 
 berth or dock for the loading, or discharge, at which the work shall be done. 
 
 "as ordered" ° . . , 
 
 Toy charterer. There has been some uncertamty as to the construction m such 
 cases. But the Court of Appeal has definitely laid down that, 
 where the charterer has exercised an option so given, the effect is the 
 same as though the dock or berth ordered by him had been named 
 in the charter party, so that the lay days do not run until the ship 
 has got there {x). 
 
 It had been doubted whether a charterer is entitled under such 
 
 {x) TharsisCo. v. Morel, (1891) 2 Q. B. Dall'Orso v. Mason (1876), 8 Sess. Ca. 
 
 647 ; approving Murphy t. Cofan, (4th) 419. Cf. Stephens v. Maoleod, 
 
 12 Q. B. D. 87 ; overruling The Caris- (1891) 19 Sess. Ca. (4th) 38. 
 brook, 15 P. D. 98 ; and dissenting from 
 
DEMUEEAGE. ^15 
 
 an option to name a dock or tertli which is not at once available. Sect. 624b. 
 That douht is now disposed of hy the decision in Tharsis Co. v. 
 Morel («). The ship was to proceed to the Mersey, and deliver the 
 cargo "at any safe berth as ordered on arrival in the dock at- 
 Garston." On arrival a berth was ordered by the harbour-master. 
 But, owing to the crowded state of the dock, the ship, though in 
 the dock, could not at once get to her berth. The charterers were 
 not liable for the delay. 
 
 " The option is given for the benefit of the person who has to 
 exercise it. He is bound to exercise it in a reasonable time, but is 
 not bound in exercising it to consider the benefit or otherwise of ' 
 the other party. The option is to choose a port or berth or dock, 
 that is, one that is reasonably fit for the purpose of delivery. . It 
 will not do, for instance, to choose a dock the entrance to which is 
 blocked — that would be practically no exercise at all of the option ; 
 and I think this is what Blackburn, J., meant in Nelson v. Dahl (y), 
 and follows from the cases he there cited, of Ogden v. Graham (z) 
 and Samuel v. Royal Exchange Assurance Co. («). To Umit the 
 option of the charterer by saying that in the choice of a berth he 
 is to consider the convenience of the shipowner is to deprive him 
 of the benefit of his option. The most that can be said is that the 
 charterer does not exercise his option at all unless he choose a berth 
 that is free, or is likely to be so in a reasonable time " (b). 
 
 In Carlton Steamship Co. v. Castle, &c. Co. (c), a ship was to 
 proceed to Senhouse Dock, Maryport, and there -load, always afloat, 
 as and where ordered by the charterers. On her arrival in 
 Senhouse Dock orders were given for a berth in which she could 
 only partly load, without grounding, unless she waited about a 
 fortnight for the next spring tides. The judges in the Court of 
 Appeal were agreed that the order given ought to be for a berth to 
 which the ship could go mthin a reasonable time, and there load, 
 always afloat. In the House of Lords it was considered that this 
 point did not arise, as the difficulty existed in regard to the entire 
 dock and all the berths in it. The question was whether, having 
 regard to the tidal conditions of the port, there had been any 
 unreasonable delay in the loading. 
 
 {x) See preceding note. (*) ^^r Bowen, L. J., (1891) 2 Q. B 
 
 («) 6 A. C. 38, at p. H. P' ,®f ^; , . „ 
 
 S?) iB.&a. 116. 485^ reversing Mathew, J., 2 Com. Ca. 
 
 (a) 8 B. & C. 119. 173. 
 
716 
 
 THE DELIVERY. 
 
 Sect. 624b. In Bulman v. Dickson (d) the ship was to load in the Tyne, and 
 to proceed to London, to " the Pool, Eegent's Canal, Victoria 
 Docks, the Derricks, Beckton, or other safe herth as ordered." 
 ■ Before leaving the Tyne orders were given to discharge at Eegent's 
 Canal. Suhsequently a strike occurred among the labourers at 
 that place ; but the charterers for some time refused to alter their 
 orders and send her to another berth not affected by the strike. It 
 was held by the Court of Appeal, affirming Pollock, B., that the 
 charterers were within their right. 
 
 In Sanders i\ Jenkins (e) the ship was to " proceed to Port 
 ' Yendres and, as usual and customary, deliver .... alongside 
 
 any store, craft, steamer, depot, ship, wharf, or arsenal 
 
 The steamer to be discharged at the rate of 200 tons per weather 
 working day (Sundays and holidays excepted). Time for delivery 
 to count when steamer is ready to discharge." The customary 
 place to discharge at Port Yendres was a certain quay, which was 
 not available until some days after the ship arrived. Held, by 
 Collins, J., that the ship was not ready to discharge, and the time 
 did not run, until she was ready at the usual quay (/). 
 
 On the other hand, in Pyman v. Dreyfus {g), where the right to 
 name the place of discharge was an implied right only, it was held 
 that the lay days ran while the ship was waiting for the berth. 
 
 Is charterer 625. But where the ship is to go, and is ready to go, to the particular 
 ' for delay in wharf or dock at which it has been agreed that she shall be loaded 
 
 agreed" place P °^ discharged, and is prevented from reaching that place by causes 
 over which the shipowner has no control, such as the crowded state 
 of the port, the regulations of the dock or other authorities, or 
 the state of the weather or tides, the further question arises 
 whether the charterer may not in some of these cases be responsible 
 for that delay. 
 
 If the contract requires the ship to reach a particular berth, or 
 dock, and if the charterer is in no way in default, the answer 
 seems to be clear. He has undertaken to load, or unload, the ship 
 at that place ; the lay days are the days allowed him for that 
 
 ' {d) (1894) 1 Q. B. 179. Except on this view, the decision would 
 
 (c) (1897) l.Q. B. 93. seem contrary to the more modem rule 
 
 (/) The learned judge apparently . . ^ , . „„„ „„. , , ■■ , 
 
 ^•'' , ,, J. ^, , ,J^ pomted out m ss. 623, 624 (a), and to 
 
 considered tiat the clause gave the ^ ' 
 
 charterers the right to designate the *^« decision in Pyman v. Dreyfus, 24 
 
 particular wharf, and so hronght the Q- B. D. 152. 
 
 case within Tharsis Co. v. Morel, supra. {g) 24 Q. B. D. 152. 
 
DEMURRAGE. 
 
 717 
 
 ■work ; they cannot therefore hegin until the opportunity of doing Sect. 625. 
 that work at that place is given to him. 
 
 But the matter is sometimes complicated hy the question 
 whether the charterer does not guarantee that the ship shall find 
 the ,place of loading or discharge aocessihle, and ready for her. As 
 we have seen, the risk. of had weather or low tides, preventing the 
 ship from reaching the agreed place of loading, does not fall upon 
 the charterer {h). Nor, generally, does the risk of the place being 
 crowded («). The charterer does not undertake that the com- 
 mencement of the lay days shall not he prevented* by causes of 
 this kind, unless by the agreement, or by usage of the trade, he is 
 bound to procure that a loading or discharging berth shall be 
 ready for the ship. 
 
 In Dahl «7. Nelson (^), the ship was to "proceed to London, 
 Surrey Commercial Docks, or so near thereunto as she might safely 
 get," and there deliver her cargo of timber. 
 
 Those docks belonged to a private company, and when the ship 
 arrived were so full that there was no prospect of her getting in in 
 less than a month, if then. It was held by the Court of Appeal, 
 overruling Jessel, M. E., that she had got as near to her destina- 
 tion as she could safely get within the meaning of the charter 
 party. 
 
 But, further. Cotton, L. J., finding that it was in fact the prac- 
 tice of the charterer or consignee to make arrangements for an 
 unloading berth, held that " it was solely in consequence of the 
 inability of the consignee to obtaia an unloading berth in the 
 Surrey Commercial Docks that the ship was refused admittance " ; 
 and that " as from the time when the ship was ready to enter the 
 dock, the case, as between the shipowner and consignee, must be 
 dealt with as if the ship had been in dock, and the delay, if any, 
 must be considered as that of the charterer" (/). And James, L. J., 
 appears to have agreed in this view. 
 
 Brett, L. J., did not, however, agree on this point with the other 
 judges. And in the House of Lords (w), while the decision of the 
 Court of Appeal as to the effect of the words " so near thereto as 
 
 (A) Brereton». Chapman, TBing. 559 ; 11 L. J., Ex. 373 ; Kell v. Anderson, 10 
 
 BastlfeU v. Lloyd, 31 L. J., Ex. 413 ; M. & W. 498 ; 11 L. J., Ex. 101. 
 Parker v. Winlo, 28 L. J., Q. B. 49. „,„»/>„„ .„ /^, ^ 
 
 /•^ r„u ■ n -M- 1 /10O1X o n Tj W ^ A. 0. 38 ; 12 Ch. D. 568. 
 
 (») TharsiB Co. v. Morel, (1891) 2 Q. B. ^ ' ' 
 
 647 ; Murphy v. Coffin, 12 Q. B. D, 87 ; (0 12 Ch. D. at p. 699. 
 
 Brown v. Johnson, 10 M. & W. 331 ; W 6 A. 0. 38. 
 
718 THE DELIVEEY. 
 
 Sect. 625. she may safely get" was affirmed, the dicta above given of James 
 
 Charterer and Cotton, L.JJ., Seem to have been disapproved of. Lord 
 
 generally Blackburn said, that it was clearly untenable that, under such a 
 
 undertake to charter party, the merchant undertook to procure the ship admis- 
 
 prouure access r j j i i i pj •. n a xi 
 
 to the agreed sion into the docks. " If the charter party had leit it tree to the 
 ^ ^'^' merchant to select a dock, it may be well that he was bound to 
 
 select one into which admittance could be procured. Ogden v. 
 Graham («) is an authority in favour of that position. But when, 
 as in this case, the dock is named from the beginning by both 
 parties, I think the refusal of the dock authorities to let the ship 
 inside the dock gates is the fault of neither party" (o). 
 
 Where delay 626. It may, however, happen that the ship is prevented from 
 charterer%^° getting to a loading berth, owing to obstacles which have been 
 business. caused by the charterer himself ; for example, by the state of his 
 business with other ships in the port or dock. In such cases the 
 delay is attributable to the charterer ; and the lay days begin to 
 run when the shipowner has done all that is needful to bring his 
 ship to the loading place, except that which has been prevented by 
 the charterer's default, or by obstacles which he has introduced. 
 
 In Ashcroft v. The Crow Orchard Colliery Co. (/>), a ship was 
 chartered to carry a cargo of coals, which were to be loaded at 
 Liverpool " in the Bramley Moore or Wellington Docks, High 
 Level Railway, with the usual despatch of the port." By the 
 published dock regulations of Liverpool, no vessel was allowed to 
 enter these docks, to load coal from the high level railway, without 
 a certificate from a coal agent to that effect ; and no coal agent 
 was allowed to have more than three vessels in the docks, loading 
 and to load, at the same time. 
 
 The charterers acted as their own coal agents, and at the time 
 of the charter party they already had three ships loading in the 
 docks and ten others on their books having priority to the plain- 
 tiff's ship. In consequence of these engagements, the vessel was 
 
 (m) 1 B. & S. 773 ; 31 L. J., Q. B. 26. bound to name a quay berth that was 
 
 (o) 6 A. C. at p. 44. Cf. Lilly v. ready ; and that on his default in doing 
 
 Stevenson, 22 Sess. (4th) 278 ; Little v. so, the shipowner became entitled to 
 
 Stevenson, (1896) A. C. 108 ; aiipra, damages, although the charter party 
 
 B. 254a. "Where a ship was to " proceed provided that the lay days should not 
 
 to London or Tyne dock to such ready begin until the day following that on 
 
 quay berth as ordered by charterer," and which the ship was in berth : Harris v. 
 
 deliver her cargo, it was held, in the Jacobs, 16 Q. B. D. 247. 
 
 Court of Appeal, that the charterer was (^) L. B., 9 Q. B. 540. 
 
DEMURE A.GE. 719 
 
 not allowed to go into dock until tMrty days after she was ready Sect. 626. 
 to do so. The loading was then completed in two days. This 
 period of thirty days was an unusual detention ; and was caused 
 not hy pressure of business in the dock, but " solely by the inca- 
 pacity which the defendants had placed themselves under, by their 
 previous engagements, of getting a berth for her at an earKer 
 period." 
 
 It was held that the charterers were liable for the delay. " The 
 engagement to load with the usual despatch is absolute ; and the 
 obligation covers the whole period from the time when the vessel 
 at the port is placed at the disposal of the charterer there in a 
 condition to receive her cargo. The object is to provide against 
 unusual delay on the part of the charterer in putting the cargo on 
 board ; and whether the delay occurs in the course of loading or 
 before the loading commences, whether it consists in keeping the 
 vessel outside or inside the dock, is obviously immaterial. The 
 question is, whether the vessel is at his disposal, and whether the 
 detention is his act {q) . If so, the contract is broken as much in 
 the one case as in the other " (r). 
 
 On the other hand, in Watson v. Bomer is), the ship was to go 
 to a named private wharf and there deliver, and the time for dis- 
 charging was to count from 6 a.m. after she was " ready in berth." 
 The charterers sold the cargo to the owners of the wharf, who took 
 delivery under the bill of lading. For their own convenience 
 they did not give the ship a berth at the wharf so soon as they 
 might have done. Still, as between the charterers and the ship- 
 owner, the time did not begin to run until she got there. 
 
 627. It seems impossible to reconcile all these authorities, but Summary as 
 the following propositions are submitted to be correct : — ment'ofw'^' 
 
 (1) When a particular wharf is named as the place of loading, ^*y^- 
 or discharging, the lay days will not begin to run until the ship 
 
 is ready alongside that wharf. 
 
 (2) When a particular dock is named the lay days will begin 
 as soon as the ship is ready, and at the freighter's disposal, inside 
 
 [g) This seems to be an essential (r) L. E., 9 Q. B. p. 543. SeeTillett 
 
 ground of the decision; see per Lord "■ Cwm Avon Works, 6 Times, L. E. 
 
 Blaokhum in Postlethwaite v. E^eeland, ^''f; ^""^ of. Tapseott v. BaUour, L. E., 
 
 ,„_„., 80. P. 46; Crawford 4>. Wilson, 1 Com. 
 
 5 A. C. 622. And of. Kell v. Anderson, q 1 54 077 
 
 10 M. & W. 498. if) 4 Com. Ca. 336. 
 
72Q THE DELIVERY, 
 
 Seot. 627. tHe dock, though not. alongside the quay ; even though the work 
 can only take place at the quay. 
 
 (3) When the place named is a port, or other wide district, the 
 lay dayl hegin when the ship is ready, and at the .freighter's 
 disposal, within the named place (t) ; though she may not he in a 
 position to take in or discharge cargo, and though she may not he 
 at the wharf, dock, or other part of the place to which the charterer 
 may have properly required her to go. 
 
 (4) If, however, in case (3) the contract expressly entitles the 
 charterer to order the ship to a particular wharf or dock, the wharf 
 or dock so ordered becomes the place of loading or discharge, as 
 though it had been originally named in the contract. 
 
 (5) If in any case the ship is prevented from going to the 
 wharf, dock, or other agreed place for loading or dischargiag, 
 by obstacles caused by the freighter, or in consequence of other 
 engagements which he may have entered into, then the lay days 
 will begin as soon as the ship is ready, and could, but for such 
 obstacles, go to that place to load or discharge; 
 
 (6) But in each case, so far as relates to loading, the lay days 
 do not begin until the charterer has had notice of the ship's 
 readiness to load. 
 
 Loading " as 627a. The commencement and duration of the lay days is some- 
 ^^mra^e^" ^1™^^ determined by a document collateral to the charter party. 
 In the coal trade it is a commpn practice for shippers to obtain a 
 guarantee from the colliery which is to supply the coal, as to the 
 time and conditions on which they will load a cargo, and then to 
 charter a ship with reference to that. 
 
 In Monsen v. Macfarlane (m) the ship was chartered to proceed 
 " to a customary loading place in the Eoyal Dock, Grimsby," and 
 there take in a cargo of Kiveton Park coals, "to be loaded as 
 per colliery guarantee in fifteen colliery working days." The 
 charterers obtained a guarantee (in ordinary form) from the 
 Kiveton Park Colliery Company, dated after the charter party. 
 By this the colliery company undertook to load the vessel in fifteen 
 colliery working days " after the said ship is wholly unballasted 
 and ready in dock at Grimsby to receive her entire cargo. . . • 
 Time to count from the day f ollowiag that on which notice of 
 
 {t) The name of the place must be graphical meaning: see supra, s. 567. : 
 taken in its commercial sense, ■which 
 may differ from its strict legal or geo- (") (1895) 2 Q. B. 662. 
 
DEMURRAGE. 'J'21 
 
 readiness Is received." The customary loading place in the Boyal Sect. 627a. 
 Dock was at the Coal Staith, and the vessel could not get. there 
 untU Septemher 17, owing to the crowded state of the dock. She 
 was however in the dock, ready for her cargo, on Septemher 3, and 
 notice of her readiness was then given. 
 
 The Court of Appeal, affirming Mathew, J., held that the terms 
 of the colliery guarantee were incorporated in the charter party ; 
 and that the lay days accordingly began on Septemher 4, and not 
 upon the ship's arrival at the customary loading place. 
 
 628. Where tho numher of lay days, or the rate at which the Where lay 
 loading or discharge is to be done, is not fixed by the contract, fi^ed. 
 there is, as we have seen, no absolute undertaking by the charterer 
 as to when the ship shall be loaded or discharged. He is only 
 bound to be reasonably diligent in doing his part of the work. 
 Hence his obligation does not begin until the ship has been brought 
 to the agreed loading or discharging berth ; or, where no particular 
 berth has been agreed upon, until she has been brought to one 
 which is usual and proper for the particular cargo. He is under 
 no engagement that she shall not be delayed in getting there. 
 
 If, however, the ship's arrival at the agreed berth, or at a usual 
 berth, has been delayed by the freighter's act, whether by obstacles 
 which he has caused, or by his having entered into other engage- 
 ments which have the effect of shutting the ship out, the freighter 
 wiU be liable to pay for that delay. He is still bound to load or 
 receive delivery with reasonable diligence, and if his business 
 arrangements stand in the way of the work, he fails to perform 
 that obligation. 
 
 In Tillett ». Cwm Avon Works (y), a claim was made against 
 the consignees of the cargo for delay in unloading. No time for 
 unloading was fixed by the biU. of lading. But when the vessel 
 arrived at the port of discharge. Port Talbot, all the berths were 
 occupied by ships laden with cargoes belonging to the defendants ; 
 and no berth was available for a week after the ship was ready to 
 discharge. The Divisional Court held that the defendants were 
 liable. They were bound " to unload within a reasonable time, 
 and they could not relieve themselves of their liability for delay 
 
 in) 2 Timea Rep. 675 (1886) ; and see Ashcroft v. Crow Orchard Co., supra, 
 s. 626. 
 
 C. — C, 3 A 
 
722 
 
 THE DELIVERY. 
 
 Sect. 688. because they had rendered themselves unable through previous 
 
 engagements" (x). 
 Delay caused On the other hand, if the charterer expressly has the right to 
 
 by selection , . - , j. t t i 
 
 of berth or name the dock or berth, for loading or unloading, he is not uable 
 for delay in getting there, although he may have caused that by 
 selecting a berth which was occupied by vessels of other persons. 
 The express option overrides the implied obligation to use des- 
 patch ; and the only limitation seems to be that the charterer must 
 not select a berth which cannot be reached within a reasonable 
 time, if one that can be reached is available (z). 
 
 Effect of "so 629. We have already discussed the effect of the clause " or so 
 
 near thereto, 
 
 &c." near thereto as she can safely get in qualifying the obligation of 
 
 the shipowner to bring his ship to the agreed place of loading or 
 
 discharge (a). It also operates in determining when the lay days 
 
 are to begin to count, by helping to fix what that agreed place is. 
 
 Do lay days Further, we have seen that when the ship cannot eet to her 
 
 run con- . . jr o 
 
 tinuously destination fully laden, she may in some cases be required to dis- 
 Ughtened? '* charge part of her cargo, and afterwards proceed to the agreed 
 place (6). Questions therefore arise whether the lay days in such 
 a case, having begun to run at the point where the lightening 
 takes place, afterwards run on without intermission ; and whether 
 any allowance ought to be made for the time during which the 
 ship is moving on further to her destination. 
 
 Where, by the usage of the agreed port of discharge, vessels 
 drawing more than a certaiu depth of water discharge and deliver 
 some of their cargo at one part of that port, and then proceed to 
 another part at which the discharge is completed, the lay days 
 begin to run from the time when the ship is ready to discharge at 
 that first point (c). And if the discharge is to take place in a fixed 
 period, the time, having begun to run at that point, runs on con- 
 tinuously, without excluding the time occupied in moving from 
 one part of the port to the other [d). 
 If there is an established custom at the port not to count the 
 
 (x) Per Hawkins, J. ; of. per Cotton, 458. 
 
 L. J., in Wright v. New Zealand Ship- (*) Supra, s. 457. 
 
 ping Co., 4 Ex. D. 165. (,) M'Intosh v. Sinclair, Ir. R., 11 C. 
 
 {z) See Tharsis Co. v. Morel, (1891) L. 456. 
 
 2 Q. B. 647 ; Bulmanj). Dickson, (1894) {d) Ibid. ■ and see per Lord Esher, 
 
 1 Q. B. 179 ; Carlton SS. Co. v. Castle Nielson v. "Wait, 16 Q B D 67 p 75; 
 
 &o. Co., (1898) A. C. 486; (1897) 2 and per PoUook, B., ibid., 14 Q. B. D. 
 
 Q. B. 485 ; ante, «. 624b. 516, p. 523. Cf. CafBarini ;. Walker, 
 
 {a) Supra, ss. 225, 226 ; and ss. 453— Ir. E., 10 C. L. 250. 
 
BEMUHEAGE. 723 
 
 time so ocoTipied, that may alter the matter. In Nielsen v. Sect. 629. 
 Wait (e), a steamer, with a cargo of wheat in bulk, was ordered to 
 " GrloTicester, Bristol Channel, for discharge." Eight running days, 
 Sundays excepted, were allowed the merchants " for loading and 
 discharging the steamer." Sharpness Dock, in the Bristol Channel, 
 a place within the port of Grioucester, hut ahout seventeen miles 
 from the hasin where grain cargoes were usually discharged, was 
 the nearest place to which the steamer could get fully loaded. On 
 arriving there she was cleared at the custom house and was ready 
 to deliver the cargo. The defendants (consignees) took delivery 
 of rather more than one-third of it ; and then required the master 
 to take the steamer up the Berkeley Ship Canal, and complete the 
 discharge in the hasin. This was done under protest. And the 
 question was, whether the time occupied in going up the canal, 
 and afterwards in coming down again to Sharpness Dock, ought to 
 be included in calculating the period of the discharge. 
 
 It was proved that a custom existed at the port of Gloucester, 
 that when vessels with grain cargoes destined for Grioucester were 
 of too heavy a burden to go up the canal, they were lightened 
 at Sharpness ; that time so occupied was counted in the lay days ; 
 but that the time occupied in going up the canal to Grioucester 
 Basin and in returning to Sharpness was not counted. The Court 
 of Appeal, affirming Pollock, B., held that this was a reasonable 
 custom, and gave judgment in favour of the consignees. The 
 question chiefly discussed was, whether the custom was consistent 
 with the provisions of the charter, that the lay days were to be 
 " running days." PoUock, B., considered that it was, on the 
 ground that the lightening of the ship at Sharpness was not part 
 of the discharge. But in the Court of Appeal this distinction 
 was not relied upon. Lord Esher expressly treated the discharge 
 as a " double discharge," partly at one place and partly at another 
 within the port. The expression "running days" did not neces- 
 sarily mean that every day was to be counted, from the beginning 
 to the end of the discharge. The period of discharge was cut by 
 the custom into two periods, and each of these was, under that 
 charter, to be calculated by " running days." 
 
 If the lightening be done outside the port of discharge, there 
 seems to be doubt both as to whether the lay days begin to run, 
 and also whether the actual time occupied in lightening is to be 
 
 (e) U Q. B. D. 516 ; 16 Q, B. D. 67. 
 
 3a2 
 
724 THE DELIVERY, 
 
 Sect. 629. counted in the lay days (/). But where the contract is to get to 
 a port of discharge, " or so near thereto as she can safely get," 
 and a partial discharge is made when the ship has got as far as 
 she can, in order to enahle her to go up further, it would seem 
 immaterial whether the place of that discharge be within the port 
 or not (g) . 
 
 Charterer not 630. The charterer is not liable for a detention which occurs 
 delay after without any fault on his part after the loading has once been 
 oom'°fted completed. Thus, where a ship was frozen into the port during 
 the loading, and could not sail, owing to the ice, for some time 
 after the loading was finished, the charterer was not liable to 
 pay for that delay (h). So, too, where the ship's clearances could 
 not be got, owing to the custom house having been burnt down, 
 so that she could not get away («). 
 
 And where a ship was detained, after discharging, at the port 
 of discharge, because a small sum for certain dues on landing 
 had not been paid by the consignee of the goods, it was held 
 that the shipowner could not claim demurrage, or damages for 
 that delay. For he might' at once have got away by paying the 
 dues himself; and could have claimed repayment from the con- 
 signee (/«) . 
 
 In Jamieson v. Laurie (l), a ship had been sent to Cronstadt to 
 receive a quantity o£ tallow and other goods, under an arrange- 
 ment with merchants of a somewhat indefinite character. It 
 appeared, however, that the goods ought to have been shipped 
 before the 1st of September, but that, owing to delay in their 
 arrival at the port, they were not in fact shipped until October, 
 and the ship was consequently not ready, to sail until October 
 28th. She then waited a few days for a wind, and sailed ; but soon 
 meeting with adverse winds and frost, was forced to return to 
 Cronstadt, and was there frozen up, and remained until the 11th 
 of May. The winter began earlier than usual. The sliipowner 
 claimed demurrage from the 1st of September to the 11th of May. 
 
 (/) See per Lord Esher, Nielsen v. Waiting for convoy : Connor «;. Smythe, 
 
 Wait, 16 Q. B. D. at p. 74 ; and per 6 Taunt. 634. 
 
 PaUes, C. B., M'Intosh ^. Sinclair, Ir. (A) Holler v. Jenks, 19 C. B., N. S. 
 
 E., 2 C. L. at p. 465. 332. Cf. Sully ,/. Duranty, 33 L. J., 
 
 iff) See Dickinson v. Martini, 1 Sess. Ex. 319. Hick v. Rodooauaolii, (1891) 
 
 Ca. (4th) 1185. 2 Q. B. 626 at p. 632. 
 
 (A) Pringle v. MoUett, 6 M. & W. 80. (l) 6 Bro. Pari. C. 474 ; Abtott (Stli), 
 
 (i) Barret v. Button, 4 Camp. 333. 186. 
 
DEMURRAGE. 725 
 
 The case came before the House of Lords on appeal from the Sect. 630. 
 Scotch Ooiirts. It was admitted that the master might by law 
 have returned empty, or might have taken another cargo after the 
 1st of September, but the owner contended that as the master had 
 waited at the request of Jamieson & Co. (the merchants), they were 
 answerable for all the damage arising from the delay. It was de- 
 cided in the House of Lords that they were liable to pay compen- 
 sation, in the nature of demurrage, for the period between the 1st 
 of September and the 29th of October ; but not in respect of the 
 detention after the ship was ready to sail. 
 
 631. In calculating the number of demurrage days to be paid Part days 
 for, a part of a day is counted as a whole one. whole days. 
 
 A ship under charter arrived in dock at the port of discharge at 
 
 5 p.m. on a Tuesday. The lay days had all been exhausted at the 
 port of loading. Owing to timber of the charterers being in the 
 way, the discharging did not commence until 8 a.m. on the Wed- 
 nesday. It was completed at 8 a.m. on the Thursday. By the 
 charter party ten days were allowed " on demurrage over and 
 above the said lying days at 251. per day." It was held that the 
 charterers must pay for two full days, Wednesday and Thurs- 
 day (m). "There is no ground for saying that in the case of 
 demurrage there can be any division of a day, without express 
 stipulation to that effect " (■«)• So in Hough v. Athya (o), where 
 
 ■ nine lay days were left for calling and discharging ; four and a- 
 half days were spent at the port of call, and five and a-haK at the ' 
 port of discharge ; the Court treated these as eleven days in all, 
 allowing two days' demurrage. 
 
 And for this purpose days are generally to be counted according Usually 
 to the calendar, and not as periods of twenty-four hours. So that j^^y^ *' 
 if the ship begins to discharge in the middle of the day, that is 
 counted as a whole lay day, or demurrage day, as the case may be, if 
 the inference from the cirouinstances is "that the parties intended 
 the time to be counted at all (p). But a charterer, or consignee, is 
 not bound to take a part day as one of the lay days ; he is entitled 
 to have a full day, and may therefore refuse to begin to take 
 delivery on a broken day (q). And usually, it seems, the day upon 
 
 im) The Commercial SS. Co. v. Boul- (o) 16 So. L. E. 553. 
 
 ton,L. E., lOQ. B. 346; 3 Asp. M. C. (p) The Katy, (1895) P. 56 ; The 
 
 111. Commercial SS. Co. v. Boulton, 3 Asp. 
 
 («) Per Lush, J., L. R., 10 Q. B. at M. C. 111. Cf. Allan v, Johnstone, 19 
 
 p. 349. Cf. Angier v. Stewart, 1 Cab. Bess. Ca. (4th) 364. 
 
 6 Ell. 367. ({) IMd. 
 
726 
 
 THE DELIVERY. 
 
 Sect. 631. 
 
 Broken 
 " weather 
 "working 
 days." 
 
 "Working 
 day of twenty- 
 four hours." 
 
 Loading and 
 discharging 
 considered 
 separately. 
 
 wMch the vessel gets to her dock or berth is occupied in making 
 preparations, so that the lay days do not begin until the following 
 morning {>■). 
 
 The question here considered is different from that as to broken 
 days which occur during the loading or discharge, owing to inter- 
 ruptions, say, by bad weather. As we have seen, if a certain 
 number of " days " or " running days " are allowed for the work, 
 they run contiuuously, although the work may be prevented. But 
 the agreement frequently is for "weather working days," and a 
 question arises as to how the time is to be counted when, owing to 
 bad weather, work can only be done on portions of days. 
 
 In Branckelow Steamship Co. r. Lamport («), Lord EusseU, C. J., 
 held that haK-days must be counted as half-days. " The most 
 equitable view is to charge half a day against the charterers where 
 substantial work is done, though not amounting to half a day ; and 
 to charge a full day against them where substantially a full day's 
 work, though not amounting to twelve hours, is done. No smaller 
 fraction than half a day should, however, be taken into considera- 
 tion, and if the time worked is quite insignificant it should not be 
 charged at all." 
 
 In Ehymney Steamship Co. v. Iberian Iron Ore Co. (t), the 
 charterers were "to be allowed 350 tons per working day of 
 twenty-four hours, weather permitting (Sundays and holidays 
 excepted) for loading and discharging .... to count from 
 6 a.m. of the day following the day when steamer is reported. . . . 
 Steamer to work at night if required, and also on Sundays and 
 holidays, such time not to count as lay days unless used." It was 
 held by the Court of Appeal (diss. Eigby, L. J.), affirming 
 Bigham, J., that this meant that the charterers were to have 
 twenty-four working hours for loading, or discharging, each 
 350 tons. 
 
 Where the claim is not in respect of days on demurrage, but for 
 damages for improper detention, those damages should be calcu- 
 lated with reference to the actual detention that has taken place. 
 
 632. Grenerally the operations of loading and discharging are 
 treated as separate. In Marshall v. Bolckow (u), the charter pro- 
 vided " 400 to 600 tons per working day (Sundays and holidays 
 excepted) to be allowed the charterer for loading, and 300 dis- 
 
 (r) Cf. Brown v. Johnson, 10 M. & 
 W. 331. 
 
 (s) (1897) 1 Q. B. 670. 
 
 (0 79 L. T. 240. 
 («) 6Q. B. T>. 231. 
 
DEMURRAGE. 
 
 727 
 
 oliargmg, all demurrage over and atove the said days at the rate of Sect. 632. 
 2s. per hour for every 100 tons cargo .... If the vessel is loaded 
 at other than Portugalete or Luoana shipping staithes, the loading 
 and discharging to be at the rate of 300 tons per working day." 
 
 The vessel did load at a place other than the Portugalete and 
 Luoana shipping staithes, but the loading was not done at the rate 
 of 300 tons a-day ; on the other hand, the discharging was done at 
 a greater rate than 800 tons a-day ; and the question was, whether 
 the two periods were to be lumped together in estimating how 
 much demurrage was payable. It was held that this could not be 
 done ; that the periods for loading and unloading were distinct 
 from one another ; and thus, that the amount of demurrage 
 incurred on the loading was not to be reduced by the gain on the 
 allowed time for unloading. 
 
 So, in Avon Steamship Co. v. Leask (x), where the cargo was 
 " to be loaded and discharged as fast as steamer can receive and 
 deliver during usual working hours," delay in loading could not 
 be made up by working extra hours at the port of discharge. The 
 charterer was still liable for demurrage. 
 
 But charterers sometimes stipulate for " liberty to average the Liberty to 
 days for loading and discharging." This was held, in Moliere 
 Steamship Co. v. Naylor (y), to entitle them to add together the 
 time allowed for loading and the time allowed for discharging, and 
 to exhaust the whole before demurrage could begin to run. 
 
 633. In Laing v. HoUway (z), the charter stipulated that de- Despatch 
 murrage, if any, should be paid at the rate of 20s. per hour ; and per hour. 
 " despatch money 10s. per hour on any time saved in loading and/or 
 discharging." The charterers, in fact, saved four days at the 
 port of loading, and five at the port of discharge, upon the times 
 allowed them, which were calculated at the rate of 200 tons per 
 working day. The question was, whether the despatch money was 
 payable on nine days at the rate of twenty-four hours each, or of 
 twelve hours each. ' The Court of Appeal, reversing the Queen's 
 Bench Division, held that it must be calculated on nine days of 
 twenty-four hours each. 
 
 In The Glendevon (a) the steamer was "to be discharged at the 
 rate of 200 tons per day, weather permitting (Sundays and fete 
 days excepted)," and " if sooner discharged, to pay at the rate of 
 
 {x) 18 Sess. Ca. (4th) 280. (z) 3 Q. B. D. 437. 
 
 (y) 2 Com. Ca. 92. («) (1893) P. 269. 
 
728 
 
 THE DELIVERY. 
 
 Sect. 633. 8s. id. per hour for every hour saved." It was held that " every 
 hour saved " meant every hour saved from the allowed working 
 time ; not every hour by which the discharge was completed earlier 
 than the contract required. As the cargo was 2,103 tons, ten 
 and a half days, or 252 working-day hours were allowed for 
 discharging. Had all that time been used the ship would also 
 have been detained during certain holidays. But the charterers 
 were only allowed payment upon the difference between 252 hours 
 and 106 hours, the number of working-day hours actually occupied. 
 
 o/de^mge 634. The foUowing cases further iUustrate how demurrage clauses 
 clauses. have been construed (J.) . 
 
 A charter, dated December 2nd, provided that a ship then lying 
 at Pembroke should sail with all convenient speed to Cardiff, there 
 to be loaded with a cargo of coals and iron for Alexandria. Forty 
 running days to be allowed the merchant for loading at Cardiff 
 and unloading at Alexandria, to commence on the 16th of December. 
 After the charter had been made, it was agreed, at the shipowner's 
 request, that part of the loading should be done at Pembroke; 
 and accordingly the ship stayed there, loading, until December 
 26th. Thence she went to Cardiff to complete, and was detained 
 there forty days : thence to Alexandria, and the unloading occu- 
 pied a further ten days. It was held that the charterer was liable 
 to pay for twenty days' demurrage ; for the substitution of Pem- 
 broke for Cardiff did not affect the rest of the charter party, and 
 under that the lay days were to be reckoned from the 16th of 
 December, wherever the ship might be stationed (c). 
 
 An agreement for the carriage of certain engines, provided that 
 the ship should not be required to lie in her berth more than ten 
 days, and that such of the engines as weighed above 20 cwt. 
 should be put in the steamer, stowed, taken out, and landed at the 
 shipper's risk and expense. At the time of the agreement it was 
 expected that alterations in the hatchways would be necessary, in 
 order that the engines might be stowed. Owtng to such altera- 
 tions, which were needful in shipping some of the engines which 
 weighed over 20 cwt., the ship was delayed beyond the ten days. 
 The shipper was held liable for the delay (d) . 
 
 A ship was to load at Pemambuco and to proceed " to Val- 
 
 (A) As to exceptions in demurrage C. 71. 
 clauses, see supra, ss. 267—258. {d) Bleck v. Balleras, 29 L. J., Q. B. 
 
 (c) Jackson v. Galloway, 5 Bing. N. 261. 
 
DEMURRAGE. 739 
 
 paraiso, a legal port bet-ween Valparaiso and Q-uayaquil, and Sect. 634. 
 Guayaquil, all or any, and there discharge the cargo laden on 
 hoard at Pernambuco, and at the port between Valparaiso and 
 Guayaquil inclusive, also discharging any goods taken on board 
 at Valparaiso for that purpose, and at any and all the aforesaid 
 ports," should receive a homeward cargo ; and seventy running 
 days were allowed the charterer for " loading, discharging, and 
 reloading the ship at the several ports." It was held that these 
 words did not include the final discharge at the home port, so that 
 an additional time must be allowed for that (e). 
 
 635. The following are cases of detention by waiting for Waiting for 
 
 convov. 
 
 convoy : — 
 
 In Lannoy v. Worry (/), two ships were chartered for a voyage 
 with cargo from the Mediterranean to London, and they were 
 to remain at Gibraltar for convoy to Lisbon or England ; if taken 
 by convoy to Lisbon they were to wait there for further convoy to 
 England ; and if the convoy should not go into the Downs they 
 were to wait at the first port they should make in England, for 
 convoy thence to the Downs. The merchants agreed to pay 
 certain sums for each day the vessel should u-ait for convoy at 
 Gibraltar, Lisbon, or elsewhere during the voyage, above the space 
 of twenty days in the whole. 
 
 The vessels were convoyed the whole way by Captain Moody. 
 But he put in to Lisbon and to Falmouth, and stayed some time 
 at each place. The masters claimed in respect of these detentions, 
 but the merchants contended that nothing was due for the time 
 the vessels waited after Captain Moody had first joined them. 
 
 It was held by the Lord Chancellor Cowper, and afterwards by 
 the House of Lords, that demurrage was payable during the 
 periods in which the convoy was not ready to sail ; for if it was 
 not ready to sail, it was the same as if no convoy were at hand, 
 The merchants were therefore liable for all the time the ships had 
 waited at Gibraltar", Lisbon, and Falmouth, except for some days 
 of detention at Falmouth, which were owing to bad weather. 
 
 In Marshall ». De la Torre [g), a charter party provided that 
 the ship should " join convoy, and that forty-one days should be 
 allowed for waiting at Portsmouth to join convoy and discharging 
 
 {.) SweetiBg .. Dartliez, 23 L. J., ^^[f) ^ ^'°- ^"l" «• «" ' ^^^°*' (^th), 
 ^- ^- 1^1- is) 1 Esp. 367. 
 
730 
 
 THE DELIVEEY. 
 
 Sect. 635. at Barcelona," demurrage to be paid for all the time beyond. The 
 ship arrived at Portsmouth too late for the convoy to Barcelona, 
 and consequently had to join other convoys from Portsmouth to 
 Palmouth, thence to Gibraltar, and thence to Barcelona. It was 
 held by Lord Kenyon that demurrage was only payable under the 
 contract for delays at Portsmouth and at Barcelona, and not for 
 the detentions which occurred at Falmouth and Gibraltar. 
 
 Liability for 636. We have thus far chiefly considered cases of demurrage 
 
 demurrage or , "^ _ ° 
 
 detention and detention of chartered ships ; but there may be liabilities to 
 lading. pay for the detention of a general ship, arising out of the bill of 
 
 lading contracts. And where the ship has been chartered, but the 
 goods have been shipped under bills of lading given to, or indorsed 
 to strangers to the charter party, important questions arise as to 
 the liability of the holders of the bills of lading for demurrage. 
 
 Bills of lading do not generally contain any provision as to the 
 time in which the goods are to be discharged, unless the ship is 
 under charter. Where that is the case, however, the terms of the 
 charter party on the point are frequently incorporated by a refer- 
 ence to them. And, subject to what may be expressed in the bill 
 of lading, it is in all cases implied in it that the shipper, or his 
 consignee or assign, wiU. be reasonably diligent in receiving the 
 goods (A). 
 
 If the biU of lading fixes a period within which the goods are to 
 be discharged, then, as we have seen in the case of charter parties, 
 the person who is responsible for the performance of that contract 
 takes the risk of any delays which may prevent the ship's dis- 
 charge ; and must have his goods out of the ship within the time 
 stated — always, however, excepting delays which are due to the acts 
 or defaults of the shipowner, or his agents. If no time is fixed by 
 the contract, but the implied duty of the merchant is relied upon, 
 the question is, has he been reasonably diligent in taking his 
 goods, having regard to the circumstances under which the 
 discharge has in fact taken place ? («). 
 
 Bills of lading 637. If it is intended to make shippers, or consignees, who are 
 
 ooudUi'onB'of strangers to the charter under which the ship is sailing liable for 
 
 charter party. ^ failure to discharge, and for demurrage, in accordance with its 
 
 terms, there must be a clear and unambiguous reference to those 
 
 terms in the bill of lading. Frequently the bill of lading makes 
 
 {h) Fowler v. Enoop, 4 Q. B. D. 299. (i) See supra, s. 615. 
 
DEMUERAGE. 731 
 
 the goods deliverable " against payment of freight and other con- Sect. 637. 
 ditiona as per charter party " ; and this, it has been held, incorpo- 
 rates the demurrage clauses of the charter party, so as to make the 
 holder of the bill of lading liable for demurrage, or detention, at 
 the port of discharge {k) . Though probably it would not make 
 him liable for demurrage incurred before sailing from the loading 
 port. 
 
 Where a bUl of lading made the goods deliverable " on being 
 
 paid for freight the sum of 1, (according to charter party) " 
 
 the assignees of the bill of lading were not liable for a detention 
 beyond the time allowed by the charter party for discharging; 
 although the bill of lading had in the margin the note " There are 
 eight working days for unloading in London" {I). And in Smith 
 V. Sieveking (ot) the words "paying for the goods as per charter 
 party" were held not to cover demurrage incurred under the 
 charter party at the port of loading. 
 
 In Gray v. Carr («) , great differences of opinion were expressed Lieu for 
 as to the effect of a bUl of lading which made the goods deliverable port of load- 
 " unto order or to his or their assigns, he or they paying freight ^^' 
 and all other conditions (o) or demurrage (if any should be incurred) 
 for the said goods as per the aforesaid charter party." The ques- 
 tion there was whether this entitled the shipowner, as against the 
 bUl of lading holders, to the benefit of a clause in the charter party 
 which gave him " an absolute lien on the cargo for all freight, 
 dead freight, demurrage, and average," in respect of demurrage 
 incurred at the port of loading before the bill of lading had been 
 granted {p). The charter contained no provision for demurrage on 
 discharge. The Queen's Bench, and a majority of the Exch. 
 Chamber, held that the clause entitled the shipowner to a lien for 
 the demurrage at the port of loading ; and that by the terms of the 
 biU of lading this right was preserved against the consignees. 
 Also, that if there had been any "dead freight" incurred the 
 
 [Tc] "Wegener v. Smitt, 241,. J., C. P. («) L. E., 6 Q. B. 523. 
 
 25 ; Porteus v. Watney, 3 Q. B. D. 534 ; (o) The -words in italics were in 
 
 GuUisohen ». Stewart, 11 Q. B. D. 186 ; writing, the bill of lading being on a 
 13 Q. B. D. 317. printed form. 
 
 {p ) The case also raised the question 
 
 [T) Chappell V. Comfort, 31 L. J., ^^^^-^^^^ damages for detention at the 
 C.V. 58 ; Young v. MoUer, 5 E. & B. 7, ^^^ of loading were included in the 
 
 lien for " demurrage," and decided that 
 
 (m) 24 L. J., Q. B. 257 ; in Ex. Oh. they were not: see this discussed, mfra, 
 6 E. & B. 689. B. 648. 
 
732 
 
 THE DELIVERY, 
 
 Personal 
 liability of 
 indorsee. 
 
 Sect. 637. same would have been true of that. Bramwell, B., considered 
 '" that the words " if any should be incurred " must be read " if any 
 
 shall have been incurred " ; and that the words " all other condi- 
 tions " must mean " performing or satisfying all other conditions"; 
 and that they would have no application unless they secured the 
 liens of the shipowner under the charter party. 
 
 On the other hand, Brett and Willes, J.J., in a minority, held 
 that the words would be satisfied by making them apply to 
 damages, in the nature of demurrage, for delay at the port of 
 discharge. " At all events the bill of lading does not clearly and 
 plainly apply to claims made in respect of transactions which 
 occurred before the particular goods were on board, and not in 
 respect of those goods, and which claims, therefore, when made 
 against persons in the position of the defendants, are, to say the 
 least, not reasonable " ($■). 
 
 The question in that case was whether the lien was preserved as 
 against the bill of lading holder ; this subject wIU be more fully 
 discussed in the next chapter. But the case also throws some light 
 upon the question whether the contract in the bill of lading, which 
 the holder is personally bound to perform, incorporates the terms of 
 the charter party as to the loading, as well as those which relate to 
 matters subsequent to the shipment. 
 
 If the biU of lading expressly provides that the consignee is to 
 pay the amount due under the charter party for demurrage, it may 
 well be that that will make the 'bill of lading holder personally 
 liable for all demurrage, wherever incurred. But where the stipu- 
 lation is not that a payment shall be made, but that the conditions 
 of the charter party shall be performed, the proper construction 
 seems to be that it only creates personal liability in regard to 
 matters which have to be performed after the bill of lading was 
 given (r). So that the holder of the bill of lading woidd be 
 personally bound to take delivery of the cargo in the time allowed 
 by the charter party, or pay for the default ; but woidd not be 
 personally liable for any default which may have taken place at 
 the port of loading. 
 
 638. The liability to pay demurrage or damages for detention, 
 
 under a biU of lading, is primarily upon the person who made the 
 
 contract ; that is, generally, upon the shipper (s). 
 
 (}) L. E., 6 Q. B. at p. 540. supra, a. 160. 
 
 (>•) Serraino v. Campbell, 25 Q. B. D. («) Cawthron v. Triokett, 33 L. J., C. 
 
 601 ; (1891) 1 Q. B. 283, and eases cited P.182 ; Diokensomi. Lauo, 2 1". &I'.188. 
 
 Liability of 
 shipper. 
 
DEMUEEAGE. 733 
 
 The question whether the shipper is liable, after he has assigned Sect. 638. 
 away the bill of lading, and the goods, for subsequent breaches of 
 the contract, does not appear to have been decided. At Common 
 Law the assignment would not have the effect of relieving him 
 from the responsibility for the subsequent performance of the con- 
 tract ; but under the Bills of Lading Act, 1855, the effect appears 
 to be that all those liabilities (except as to payment of freight) are 
 transferred from the shipper to the persons to whom the bill of 
 lading and the goods have been assigned {t) . 
 
 639. By that Act, consignees or indorsees of the bill of lading, Liability of 
 to whom the property in the goods passes, are made liable as Bills of 
 though the contract had been made with them(M). But before 18^55.°^ °' 
 that Act, it was held, as we have seen in the matter of freight, 
 that an implied promise might arise, on the part of one who 
 received the goods under the bill of lading, to perform its terms, 
 and amongst others those relating to demurrage (*). 
 
 The question in each case, whether such a promise was given, Implied 
 appears to be one of fact (y) ; but where there has been an 
 unqualified demand, and acceptance of the goods under the bill of 
 lading, it will generally be inferred that the person who received 
 them agreed to be bound by its terms. " It seems to me that if 
 the holder of a bill of lading, under which he is entitled to the 
 delivery of the goods on certain terms, presents that bill of lading, 
 and demands delivery of the goods, he thereby prima facie offers to 
 perform those terms of the bill of lading on which alone the goods 
 are deliverable to him" (2). 
 
 In Steamship County of Lancaster i>. Sharp (a), the defendants 
 took delivery under a bill of lading which made the cargo deliver- 
 able " on payment of freight and other conditions as per charter 
 party." Demurrage was claimed under the charter for detention 
 at the port of loading. But the defendants were acting as forward- 
 ing agents only, and before taking delivery of any part of the cargo 
 they had refused to pay the demurrage. The master had retained 
 some of the goods under a lien for demurrage given by the charter 
 party. Held, that the defendants were not liable. 
 
 («) See supra, s. 65. (y) Moller v. Youn^, 25 L. J., Q. B. 
 
 («) Supra, as. 62 et seq. 94 ; Shadforth v. Cory, 32 L. J., Q. B. 
 
 {x) Dobbin ■,!. Thornton, 6 Esp. 16 ; 78, 379. 
 
 Leer v. Tates, 3 Taun. 386 ; Jesson v. , , t. « t .„ « ,, 
 
 a 11 .1 rn en a..- J4. -D I, _t 17 i") ^^^ Cave, J., Allen v. Coltart, 11 
 
 Solly, 4 Taun. 52 ; Stmdt .. Roberts, 7 ^^ ^ ^^ 
 
 L. J., Q. B. 166 ; Wegener v. Smith, 24 ^ ' ^ 
 
 L. J,, C, P. 25. • («) 24 Q. B. D. 158. 
 
734 
 
 THE DELIVERY. 
 
 Sect. 639. Delivery of the cargo is a sufficient consideration to bind a 
 promise to pay demurrage, even though the receiver he only acting 
 as an agent {b). 
 
 If there are no express terms ia the hill of lading as to the period 
 allowed for discharging, there may (apart from the Bills of Lading 
 Act) be considerable difficulty in fixing liability for detention upon 
 one Who merely receives the goods. In Moller v. Young (c), the 
 Exchequer Chamber, reversing the Queen's Bench, held that 
 the demand of delivery, and receipt of part of the cargo, by 
 assignees of a bill of lading for the whole cargo, was no evidence 
 of a promise by them to take the cargo in a reasonable time {d). 
 Under the Bills of Lading Act, however, the consignee or 
 indorsee, to whom the property has passed, comes under the 
 obligations of the contract in the bill of lading ; and these include 
 an implied promise to be reasonably diligent in taking delivery of 
 the goods (e). 
 
 of several^ 640. Where there are several bills of ladiug which relate to 
 
 holders of various parts of the cargo, and are in the hands of various holders, 
 bills of lading ^ ..,.,. /. , ,. n i t i 
 
 each contain- the effect of a provision which gives a fixed time for the discharge 
 
 rage^olaSe!^" is sometimes difficult to determine. 
 
 In Leer v. Yates (/), some casks of brandy were shipped in a 
 general ship under a bill of lading, which provided that they 
 should " be taken out in twenty days after arrival or to pay 41. per 
 day demurrage." It was held to be no defence to a claim for 
 demurrage that the defendant was ready to take delivery; but that 
 the shipowner could not give it, he being prevented by goods of 
 other consignees, which lay above the defendant's and had not been 
 removed. For it was considered not to be the fault of the plaintiff 
 that the goods could not be taken out ; and the contract could not 
 be restricted so as to apply only to those goods which were upper- 
 most in the ship. 
 
 This decision was disapproved of by Lord Tenterden, and he 
 ruled contrary to it upon similar bills of ladiug in Eogers v. 
 Hunter {g) and Dobson v. Droop {h). He said, "The true principle 
 seems to be this : If the goods of the particular consignee are not 
 
 (J) Benson v. Hippius, 4 Bing. 455 ; («) Fowler v. Kuoop, 4 Q. B. D. 299. 
 
 Sooteonv. Pegg, 30 L. J., Ex. 225. / ^\ o m on» , tt 
 
 /\ ^^ T T r. -do/ • nA ■^^ ^^^- 387 ; also Harman v. 
 
 (c) 25 L. J., Q. B. 94 reversing 24 „ , , , „ 
 
 L. J., Q. B. 217. Gandolph, Holt, N. P. O. 35. 
 
 (d) But see Palmer «. Zarifi, 37 L. T. iff) M. & M. 63. 
 790 ; and of. Hill v. Idle, 4 Oamp. 327. (A) M. & M. 441. 
 
DEMUERAGE. 735 
 
 ready for disoliarge at the time of the ship's arrival he must have a Sect. 640. 
 
 reasonable time for removing them after they are so. If in such a 
 
 case, using reasonable despatch, he cannot clear them within the 
 
 stipulated period from the ship's being ready to discharge her cargo, 
 
 generally, he will not be liable for demurrage till the expiration 
 
 of such a reasonable time ; but when it is expired he will be liable, 
 
 though the stipulated period, if computed from the time when the 
 
 discharge of his own goods could have commenced, is not at an 
 
 end" («). And again, " I am certainly of opinion that if a consignee 
 
 cannot get his goods because some other person's goods prevent him, 
 
 he is not liable for the delay of the vessel " (k). 
 
 But in the recent cases of Straker v. Kidd {I) and Porteus v. 
 Watney (m), Leer v. Tates was regarded as a sound authority. 
 
 In Straker v. Kidd bills of lading were given for various portions 
 of a cargo of wheat, all shipped by one firm, and one of them had 
 been indorsed to the defendants. Each bill of lading contained 
 the clause, " Three working days to discharge the whole cargo or 
 30/. sterling per day demurrage." The discharge of the defendant's 
 portion was delayed beyond the three days, owing to delay in 
 unloading portions lying above it. Lush, J., held that the 
 defendants were liable. " The defendants are, therefore, liable 
 unless they can show that some act or default of the owner, or of 
 someone for whom he is responsible, prevented them from 
 performing their contract. Now it is clear that the master was not 
 in default; he was ready and anxious to deliver. The leaving 
 those goods in the ship which overlaid the defendants' goods was 
 not his act, but was the act of third persons, not with his consent, 
 but against his will" (n). 
 
 In Porteus v. "Watney the facts were very similar, except that 
 the cargo had been shipped by several persons, and that the clause 
 in the bill of lading was, " paying freight for the same goods and 
 all other conditions as per charter party." The Court of Appeal 
 afiBrmed the decision of Lush, J., in favour of the shipowner. 
 
 Brett, L. J., said (o), "There is no fault on the part of the 
 shipowner; the delay might be caused by accidents over which 
 none of the holders of the bills of lading had any control ; or it 
 may have been caused by delay of the holders of cargo above that 
 of the defendant. But even supposing it is by their neglect, in 
 
 (i) M. & M. p. 65. (ot) 3 Q. B. D. 227, 534. 
 
 (A) M. & M. p. 443. («) 3 Q. B. D. at p. 226. 
 
 (T) 3 Q. B. D. 223. (o) 3 Q. B. D. at p. 643. 
 
736 
 
 THE DELIVERY. 
 
 Sect. 640. the contract between the shipowner and the defendant there is 
 no stipulation about the negligence of other people. The defendant 
 is to pay unless it is the fault of the shipowner. The negligence 
 of the owners of the cargo above is not the fault of the ship- 
 
 owner. 
 
 Distinction 
 between ship- 
 ments in a 
 general ship, 
 and under a 
 charter. 
 
 Is each 
 holder liable 
 although de- 
 murrage paid 
 by others ? 
 
 641. There is, however, a distinction which is perhaps important 
 between these later cases and the earlier. In Leer». Tates and 
 Eogers r. Hunter the bill of lading did not in terms make the 
 defendant responsible for the discharge of any but his own portion 
 of the cargo. In the later cases the defendants were expressly to 
 be answerable for detention arising from non-discharge of any part 
 of the cargo. Also in the early cases the shippers were persons 
 independent of one another ; while in Straker v. Kidd there was 
 only one shipper, and in Porteus v. Watney all shipped under the 
 authority of the charterer, and assumed his responsibility. 
 
 Where goods independently shipped have been placed by the 
 shipowner above those of the defendant, it may well be doubted 
 whether the shipowner is not responsible for a default in removing 
 those other goods — at any rate, to the extent of preventing him 
 from saying that the defendant is in default. 
 
 642. Great difficulty has been felt as to the effect of the doctrine 
 of Leer v. Yates (p), where the shipowner claims payment of the 
 demurrage^ from several shippers. As Lord Mansfield there said, 
 he may thus make a gain out of the detention " which may possibly 
 much exceed what in justice and conscience he ought to have." 
 
 In Dobson v. Droop (q), Lord Tenterden expressly ruled that 
 the payment by one consignee did not affect the shipowner's claim 
 against another. 
 
 And in Porteus ». Watney (r), Brett, L. J., said, " I think that 
 if the consignee of a portion of the cargo had a bill of lading in the 
 same words, and had been called upon to pay, and had paid the 
 whole demurrage to the shipowner, the holder of another bill of 
 lading, if sued, could not set that up as a defence. That defence 
 would arise in respect of a wholly independent contract between 
 the shipowner and the holder of another bill of lading. He could 
 not set it up as a defence, because he would have no right to prove 
 that other and wholly independent contract. I accept the proposi- 
 tion that it would be no defence for the owner of the bill of lading 
 
 [p) 3 Taun. 387. (?) M. & M. 441. (r) 3 Q. B. D. at p. 643. 
 
DEMURRAGE. 737 
 
 to say that the shipowner had heen paid the same sum by all other Sect. 648. 
 holders of hUls of lading for cargo in the ship." 
 
 In that case the demurrage to he paid was a certain sum of 35^. 
 a day, prescribed, not by the bills of lading, but by a charter party, 
 the conditions of which were incorporated in the bills of lading. 
 And Thesiger, L. J., having regard to this, doubted whether the 
 view of Brett, L. J., on the point was sound. " I do not think it 
 altogether clear that where a bill of lading stipulates that a con- 
 signee under it is to have his goods on payment of freight and on 
 the performance of all other conditions of the charter party, and in 
 point of fact all demurrage due under the. charter party has been 
 paid to the shipowner by some other consignee under a similar bill 
 of ladiug, so that the condition in the charter party as to demurrage 
 has heen performed, although not by the particular consignee, that 
 fact would not constitute in equity, if not at law, a defence to an 
 action for demurrage brought against the first consignee." Cotton, 
 L. J., declined to express an opinion on the point. 
 
 It would seem that the view of Thesiger, L. J., ought to be 
 adopted, if logically it can be, as being the one which would most 
 nearly carry out the intentions of the persons concerned in the 
 transaction. The shipowner in making the charter party intended 
 to stipulate for 35/. a day, and no more, in case his ship was 
 detained ; and the object of incorporating this condition into each 
 bill of lading was to preserve his lien and other remedies, for that 
 demurrage, against each portion of the cargo. 
 
 Further, the words of the bill of lading, which make the goods 
 deliverable to the consignee on paying freight for the said goods 
 and all other conditions as per charter party, seem primarily to 
 mean that the consignee is not to have delivery until those condi- 
 tions have been performed; and though no doubt they must be 
 read to mean that the consignee undertakes himself to perform the 
 conditions, if necessary, they express even that very loosely ; and 
 it seems unnecessary to mate them further mean, that he under- 
 takes to perform them whether they remain unperformed or not. 
 
 This view does not, however, remove the difficulty in Leer v. 
 Tates ; but that case can scarcely be regarded as a settled authority. 
 
 Nor, perhaps, does it remove the similar difficulty in Straker v. 
 Kidd (s) ; where the bills of lading each stipulated " three working 
 days to discharge the whole cargo, or 30/. sterling per day demur- 
 
 (») 3 Q. B. D. 223. 
 V. — c- 3 B 
 
738 THE DELIVERY. 
 
 Sect. 642. rage " ; unless tliat can be read to mean that one sum of 30^. a day 
 was to be paid by some person (if necessary, by tbe holder of that 
 bill of lading). That was doubtless the intention of the parties ; 
 for it is to be remembered that the whole cargo was shipped by 
 one firm. And it is not clear that they said anything but that. 
 As to the 643. The right to sue for demurrage, or detention of the ship, 
 
 tTsue!'^ "^''* is in the owner with whom the contract was made. But where the 
 contract has been made with the master, he may sue for the breach 
 of it. Thus, where the bill of lading signed by the master con- 
 tained a memorandum that the ship was to be delivered in sixteen 
 lay days, 8/. per day demurrage to be paid after that time, the 
 master was allowed to sue the consignee for demurrage {t). So, 
 where the bill of lading provided that the vessel should take her 
 regular turn in unloading, the master, who was also a part-owner, 
 was held able to sue the consignor for a breach of that stipula- 
 tion {u). Erie, C. J., said : " I take it that a master may sue the 
 consignor upon any contract in the bill of lading." 
 
 But a different rule has been adopted where the bill of lading 
 has not contained an express term as to the time or mode of un- 
 loading. Thus, in Brouncker v. Scott {x), it was held that the 
 master, not being owner, could not bring an action on the implied 
 promise in the bill of lading not to detain the ship improperly. 
 And this was followed in Evans v. Foster {y). 
 
 There does not seem to have been any recent discussion of the 
 point ; and it is difficult to see why the master's power of enforcing 
 the implied terms of a bill of lading should be less than his power 
 of enforcing those which are express. On the other hand, modern 
 decisions have perhaps been rather in favour of diminishing the 
 independent action of the master. 
 
 Charterer's 644. The person responsible for demurrage due under a charter 
 
 demurs™ party is ordinarily the charterer. And he continues liable although 
 other persons also may have become responsible ; whether as ship- 
 pers, or as holders of the bills of lading. The charterer must still 
 carry out the terms of the contract, or see that they are carried 
 out. 
 
 Thus, he continues liable to give proper orders as to the port of 
 discharge ; to pay the freight ; to see that delivery of the cargo is 
 
 (if) Jesson V. Solly, 4 Taun. 62 ; Dob- 0. P. 182. 
 bra V. Thornton, 6 Esp. 16. {cc) 4 Taun. 1. 
 
 (m) Oa-wthron v. Triokett, 33 L. J. (y) 1 B. & Ad. 118, A.r. 1830. 
 
DEMUEEA6E. 
 
 739 
 
 taken in proper time, or demurrage paid ; and so forth. Unless, Sect. 644. 
 indeed, the shipowner has dealt with the hill of lading holders in 
 a manner inconsistent with the charter party. In that case his 
 relations with, and rights against, the charterer may hecome 
 changed. 
 
 In Eriohsen v. Barkworth (s) a ship had heen chartered by the 
 defendants, and by the charter a fixed number of lay days were 
 allowed for discharging. The cargo was shipped by persons named 
 by the defendants, and it was intended that the defendants should 
 become the purchasers of it. The bills of lading were given to the 
 shippers. A dispute afterwards arose between the defendants and 
 the shippers as to the quality of the cargo ; and in the I'esult the 
 defendants refused to pay for it, and the bills of lading passed to 
 other persons. But those persons did not present the bills of 
 lading, or take delivery, until some days after the lay days had 
 elapsed. Meanwhile the defendants, as charterers, had offered 
 themselves to receive the cargo from the ship, and pay the freight, 
 for account of whom it might concern, so as to save detention. 
 But the holders of the bUls of lading had also given notice to the 
 master not to part with the cargo to the defendants without pro- 
 duction of the bills of lading ; and he did not act on the defen- 
 dants' offer. It was held by the Exchequer Chamber, reversing 
 the decision of the majority of the Exchequer, that the master was 
 entitled to refuse delivery to the charterers without production of 
 the bills of lading; and that the charterers were liable for the 
 demurrage, and for detention beyond the demurrage days. 
 
 Where by the charter party a ship was to be addressed to the 
 charterer's agents at the port of discharge, and the shipowner con- 
 signed her to other persons, he was not allowed to claim for a 
 delay caused by the want of notices to the consignees of -tsargo, 
 which would have been given had she been addressed to the 
 charterer's agents {a). 
 
 645. Sometimes, however, it is intended that the charterer shall Cesserolauses. 
 not continue responsible for the performance of the charter party 
 after he has provided the agreed cargo; but that the shipowner 
 shall have his remedies against the goods, and under the bills of 
 lading, only. The charterer may be in fact acting for other 
 persons ; or he may mean to sublet to others in need of tonnage ; 
 
 [z] 27 L. J., Ex. 472 ; 28 L. J., Ex. 95. {a) Bradley v. Goddard, 3 P. & F. 638. 
 
 3b2 
 
740' 
 
 THE DELIVERY. 
 
 Sect. 645. or may intend to ship a cargo which he has sold, or will sell when 
 it has heen shipped. Hence clauses are frequently introduced into 
 charter parties, known as cesser clauses, which run somewhat as 
 follows : — " Charterer's liability to cease when the ship is loaded,- 
 the oaptaiQ haying a lien upon the cargo for freight, dead freight, 
 and demurrage." 
 Ambiguity. Clauses of this kind have given rise to numerous decisions, in 
 
 which the difficulty has usually been to determine whether the 
 clause exempted the charterer from a liability already incurred at 
 the time when the cargo was loaded, e.g., demurrage at the port of 
 loading. Does the clause mean that all the charterer's liabilities 
 and possibilities of liability under the charter party are to dis- 
 appear ? or merely that no more are to accrue ? And, again, does 
 the cesser of liability depend upon whether the captain, or ship- 
 owner, has a lien upon the cargo for his claims ? 
 
 Where the contract contains no words expressly and clearly 
 extinguishing the liabilities which the charterer may have incurred 
 before completion of the loading, the presumption would seem to 
 be that these liabilities are not to be extinguished ; and therefore 
 that " charterer's liability to cease " only refers to the subsequent 
 performance of the contract. But that view has not been taken {b). 
 The cases have proceeded on the contrary interpretation, that the 
 words may be treated as covering accrued as well as subsequent 
 liabilities ; and are to be so construed where it appears from the 
 rest of the contract that another remedy is given for the accrued 
 claims. 
 
 The result has been a group of perplexing cases which have 
 established that the same form of cesser clause may have opposite 
 effects in charters which differ in their loading clauses, and that ia 
 the same charter party the clause is retrospective as to some claims, 
 and not so as to others. In each case the effect depends upon the 
 interpretation of other parts of the contract. 
 
 646. In Milvain v. Perez (c) the clause was, " This charter being 
 concluded by Messrs. Perez, "Williams, and Bilton on behalf of 
 another party resident abroad, it is agreed that all liability of the 
 former in every respect, and as to all matters and things, as well 
 before and during as after the shipping of the said cargo, shall cease 
 
 (b) See, however, per Brett, J., and Lord Coleridge, Brett, J., and Grove, 
 BramweU, B., in Gray v. Can', L. E., 6 J., m Kasli v. Cory, L. E., 10 Q. B. 553. 
 Q. B. 522, at pp. 537, 648; and per (c) 30 L. J., Q. B. 90. 
 
 Where the 
 words are 
 clear. 
 
DEMUEEAGE. 
 
 741 
 
 as soon as they have shipped the cargo." It was held that this Sect. 646. 
 protected the defendants from liahility for not loading the vessel 
 in regidar turn, as stipulated by the charter. They had agreed for 
 absolute exemption, and there was nothing against public policy in 
 their doing so. That decision followed Oglesby v. Tglesias {d), in 
 which a similar clause had been held to exempt the charterer from 
 liability for demurrage at the port of discharge. 
 
 On the other hand, where the clause was, " This charter being 
 concluded by the charterers on behalf of another party, it is agreed 
 that all liability of the former shall cease as soon as the cargo is 
 shipped, loading excepted, the owners and master of the vessel agree- 
 ing to rest solely on their lien on the cargo for freight, demurrage, 
 and all other claims, and which lien it is hereby agreed that they 
 shall have ; " it was held that the charterers were liable for delay 
 in loading the cargo. The words "loading excepted" did not 
 j'elate merely to loading a full cargo, but to all liabilities connected 
 with the loading (e). 
 
 647. In these cases the words were considered to speak for them- Wtere ex- 
 selves. We come next to others in which the clause was ambiguous, clause giving 
 but was explained by other words giving other remedies to the ®°' 
 shipowner. 
 
 In Francesco v. Massey (/), the clause was, " Charterer's liability 
 to cease when the ship is loaded, the captain having a lien upon the 
 .cargo for freight and demurrage." The charter provided that the 
 loading and discharging should be done each in a certain number 
 of days, and allowing " ten days on demurrage over and above her 
 said laying days at 8/. per day." It was held that the lien for Charterer not 
 demurrage extended to demurrage at the port of loading as well as demurrage at 
 at the port of discharge ; and that, the cargo having been loaded, Pj"^' ° °'^ 
 the charterer was not liable for demurrage during the loading. 
 .BramweU., B., said: "It is impossible to say that this would not 
 give a Hen for demurrage incurred as well at the port of loading as 
 at the port of discharge, and so for the demurrage sued for ; and it 
 seems impossible to hold that the matters as to which the liability 
 was to cease were not the same as to which the lien was given." 
 
 This was followed by the Exchequer Chamber in Eish v. Cory {g), 
 where the charter party was in practically the same terms. In each 
 
 (<^27L.J.,Q.B.356. (/) L. E., 8 Ex. 101. 
 
 («) Lister V. Van Haansbergen, 1 
 Q. B. D. 269. {g) L. K., 10 Q. B. 553. 
 
742 THE DELIVERY. 
 
 Sect. 647. case the claim was for true demtirrage, the clauses as to demurrage 
 days being read to apply both to the port of loading and that of 
 discharge. 
 
 Bannister v. Breslauer (7t), however, had previously gone a step 
 further. There the claim was for detention at the port of loading. 
 There was no provision with regard to demurrage in the charter 
 party. It was held that the clause which gave a lien for demurrage 
 included damages for detention ; and that the cesser clause 
 applied. 
 
 In all these cases, it was the fact that a Uen was given for the 
 claim, accrued before the ship was loaded, which led the ' Court 
 to give the cesser clause a retrospective effect. 
 
 Does "demur- 648. Whether the lien for demurrage can be properly construed 
 "detention" to include damages for detention at the port of loading has been 
 cW?'^° i^uch debated. 
 
 In Gray v. Carr («) it was held that the lien for " demurrage " 
 given by the charter party, and preserved in the bill of lading, 
 only related to the agreed payment for the " ten days on demur- 
 rage " {k) allowed by the charter at the port of loading ; and not 
 to damages payable for detention at that port beyond those de- 
 murrage days. 
 
 In Kish ®. Cory [l) the question arose upon the cesser clause, 
 and did not call for actual decision ; but opinions were expressed 
 in favour of extending the Hen, and diminishing the charterer's 
 liability, by making the word demurrage include detention. 
 
 In Sanguinetti v. Pacific Steam Navigation Co. (m), the charter 
 provided that a cargo of coals should be loaded at Cardiff at the 
 average rate of seventy-five tons a day, commencing when the 
 vessel was in berth "wholly unballasted and ready to receive 
 cargo ; " stiffening coal, if required, to be supplied at the ship's 
 expense at the rate of forty tons a day after notice given of its 
 being required, " but all days on which stifiening coal is taken on 
 
 {h) L. R., 2 C. P. 497. The decision Channell, and OleaslDy, BB., afBrming 
 
 is of doubtful authority : see Clink v. the judgment of the Queen's Bench. 
 
 Kadford, (1891) 1 Q B. 625. It was, ^ j„ ^ ^^3 
 
 ho-wever, followed m Francesco ». Mas- \ '"!■ 
 
 sey, and was approved of by Lord (»«) 2 Q. B. D. 238. See also Eesti- 
 
 Coleridge in Eish •</. Cory, L. E., 10 tution SS. Co. v. Pirie, 61 L. T. 330 
 
 Q. B. atp. 538. (1889), afSrmed in C. A., but not 
 
 (i) L. E.,. 6 Q. B. 522 (1871). reported ; Harris v. Jacobs, IS Q. B. D. 
 
 (A) Per Kelly, C. B., and BramweU, 247 ; mfra, s. 667. 
 
DEMUEEAGE. 743 
 
 board, or the ship detained for the same, are to be excluded in the Sect. 648. 
 
 computation of the said working days allowed for loading." The 
 
 vessel was to be discharged at the average rate of forty tons a 
 
 day, " demurrage to be paid for each day beyond the said days 
 
 allowed for loading and discharging respectively at the rate of 
 
 Sd. per registered ton per day. All Kability of the charterers 
 
 under this agreement shall cease as soon as the cargo is on 
 
 board . . . the owners and master to have a lien on the cargo for 
 
 all freight, dead freight, and demurrage." 
 
 The stiffening coal was not supplied until several weeks after 
 notice had been given that it was required, and until it was 
 supplied the whole of the ballast could not be discharged ; the 
 practice being to retain a portion for the purpose of keeping the 
 vessel upright, and to discharge this as the stiffening coal was 
 received. The question was, were the charterers liable for this 
 delay, after the cargo was on board ? It was held by the Court 
 of Appeal, affirming the Queen's Bench Division, that they were 
 not, on the ground that the demurrage clause and the lien clause 
 related to delay in supplying stiffening coal as well as to delay in 
 loading ; as no number of demurrage days was mentioned in the 
 charter party, it was considered that all detention, beyond the lay 
 days, must be demurrage within the demurrage clause. 
 
 On the other hand, in Lockhart v. Falk (w), the charter party 
 provided that a cargo of salt should be loaded at Weston Point 
 "in the customary manner," and should be discharged in ten 
 working days. "Demurrage at 21. per 100 tons register per 
 day." " The ship to have an absolute lien on cargo for freight 
 and demurrage, the charterer's liability to any clauses in this 
 charter ceasing when he has delivered the cargo alongside ship." 
 It was held that the lien for " demurrage " did not include 
 damages for improper detention of the ship at Weston Point; 
 and therefore that the exemption of the charterers did not extend 
 to that (o). 
 
 In Gardiner v. Maofarlane (p), the Court of Session in Scotland, 
 after revievsing aU these cases, held that where the charter contains 
 a stipulation for " days on demurrage " at the port of discharge, 
 but no such stipulation with reference to the port of loading, a 
 Hen for " demurrage" does not extend to damages for detention at 
 
 (») L. E., XO Ex. 132 (1875). L. T. 267; 5 W. E. 290. 
 
 (o) See also Pederson v. Lotinga, 28 {p) 26 So. L. E. 492 (1889). 
 
744 THE DELIVERY. 
 
 . Sect. 648. the latter port ; and, consequently, that the clause " charterer's 
 responsihility to cease on cargo being loaded " does not put an end 
 to the charterer's liability for such a detention. 
 
 Again, in Clink v. Eadford {q), the Court of Appeal, affirming 
 Pollock, B., arrived at the same result. A cargo of coal was to be 
 loaded in the usual and customary manner, and to be discharged 
 at the rate of 100 tons per working day, subject to certain excep- 
 tions. No rate of demurrage was mentioned with respect to the 
 port of loading ; but, if the cargo was not discharged at the agreed 
 rate, the charterers were to pay "demurrage" at the rate of 4c?. per 
 ton. Further, the charterer's liabiKty under the charter was " to 
 cease on the cargo being loaded, the owners having a lien on the 
 cargo for the freight and demurrage." The ship was detained 
 improperly at the port of loading, and the shipowners claimed from 
 the charterers. It was held that they were liable. For the lien 
 for demurrage did not extend to damages for the improper deten- 
 tion, and therefore the cesser clause did not terminate the char- 
 terers' liability for those damages. 
 
 The Court considered that the lien for "demurrage" cannot 
 cover damages for detention at the port of loading where the 
 charter party does not fix the rate of demurrage at that port; partly 
 because there is then no "demuiTage" to which the detention there 
 can be regarded as analogous; and partly because there is no 
 guide to the amount of the damages, and a construction which 
 gives a lien for unascertained sums is to be avoided. 
 
 Dunlop V. Balfour (r) was similar to Clink v. Radford, but with 
 the difference that the charter party there fixed a rate of " de- 
 murrage" which was apparently applicable to both the loading 
 and discharging ports. The cargo was " to be loaded as customary, 
 and to be discharged as customary, at the average rate of not less 
 than 100 tons per working day. . . . Demui-rage to be at the 
 rate of 20/. per day." But here, again, the Court of Appeal held 
 that the lien expressly given for "demun-age" did not cover a 
 claim for detention at the loading port, on the ground that there 
 was no time fixed for the loading, whereas there was a time fixed 
 for the discharging; and therefore that the provisions of the 
 charter party with regard to demurrage only applied to the latter 
 port. 
 
 " In my opinion, demurrage is more applicable to a delay after 
 [q] (1891) 1 Q. B. 625. ()•) (1892) 1 Q. B. 507. 
 
DEMURRAGE. 745 
 
 a time expressly fixed, than, to a delay after a time whicli is only Sect. 648. 
 implied as reasonable. That rule underlies the construction put 
 on a similar clause in Lookhart ■v. Falk (s), and is, in my opinion, 
 a reasonable one. If this is the correct view, the words as to 
 demurrage in this charter party relate only to the port of 
 discharge" (f). 
 
 The result of these cases appears to be that the lien for Result of the 
 "demurrage" wiU not include damages for detention at the port 
 of loading, and consequently that the cesser clause will not put an 
 end to the charterer's liability for that detention, where the charter 
 does not ia terms deal with the question of demurrage at that port, 
 but does provide for days on demurrage, or fix a rate of demurrage, 
 at the port of discharge. And, further, that general words fixing 
 a rate of demurrage are not to be read to relate to detention at a 
 port at which the lay days are not fixed, if that can be avoided. 
 
 Whether the converse proposition that the lien clause teill 
 include, and the cesser clause will therefore relieve the charterer 
 from, any damages for detention at the port of loading, when 
 there is a clause fixing the rate of demurrage in relation to that 
 port, seems left doubtful. That proposition is, however, contrary 
 to the decision of the Exchequer Chamber in Gray v. Carr (m) ; 
 and to the opinions in Grardiner v. Macfarlane {x) ; unless the fact 
 that the charters in those oases provided for specified " days on 
 demurrage " (that is to say, for demurrage in the original sense) 
 makes the cases distinguishable (y). 
 
 («) L. R., 10 Ex. 132. all payments claimed for detention, 
 {t) Per Pry, L. J., (1892) 1 Q. B. at whether the detention has been allowed 
 p. S20. by the contract or not, and whether the 
 {«) L. R., 6 Q. R. 522. rate has been fixed or not. This being 
 {«) 26 So. L. R. 492. so, is there any sufficient reason why the 
 " (y) It may be respectfully questioned word should not have its full meaning 
 whether these difficulties as to the mean- in the lien clause ? The fact that an 
 iugof "demurrage" are really neces- agreed payment is called " demurrage," 
 sary. That word seems originally to in the loading or discharging clause of 
 have meant an agreed payment for the charter, does not show that the word, 
 agreed extra days ; but its commercial when used in the lien, clause, means 
 meaning has become much wider, and that and only that. The difficalty that 
 the contracts in question are modern in the damages for detention are unliqui- 
 form. Agreements for days on demur- ' dated arises whenever the Uen is ex- 
 rage are now comparatively rare. The tended to damages for detention. It is 
 more usual plan is to fix a rate of a difficulty which has often to be dealt 
 "demiirrage" to be paid where the with; e.g., in regard to general aver- 
 allowed time is exceeded, that is, where age and dead freight : see McLean ■(/. 
 the contract is broken. But, further, Fleming, L. R., 2 H. L. So. 128. 
 the word is commonly used to denote The cases have been with reference to 
 
746 THE DELIVERY. 
 
 Sect. 649. 649. The language of Mellisli, L. J., in Sanguinetti's Case (s), 
 
 Where no Seems to show that he would have decided in favour of the charterer, 
 
 charSrer°still although there had heen no lien given to the shipowner, to take the 
 
 demuira' e P^ace of the charterer's liability. He considered that the cesser 
 
 and detention clause, prima fade, could not be confined to breaches after the 
 
 loading. loading, but included all liability under the charter, of every 
 
 description; agreeing in this with Cleasby, B., in Kish v. Cory (a); 
 
 but differing from Lord Coleridge, Grove, J., Brett, J., and perhaps 
 
 others of the judges, in that case. 
 
 The authorities, however, where no lien has been given for claims 
 accrued prior to the completion of the loading, are to the effect 
 that the words "liability to cease" only relate to matters subseq[uent 
 to the loading. That was held in Christoffersen v. Hansen (&), 
 where, the charter being concluded by the defendant on behalf of 
 another party resident abroad, all liability of the defendant was to 
 cease as soon as he had shipped the cargo. The cargo had not been 
 loaded in regular turn, as was agreed for, and the question was 
 whether the charterer was liable for the consequent delay. The 
 words being ambiguous, it was necessary to seek for the intention 
 of the parties ; and, as no lien had been given, it was considered 
 that the intention was merely to discharge the charterers from 
 liability for any breach of the contract after the cargo had been 
 shipped. 
 
 This view has been expressed, with increasing definiteness, 
 through a series of cases (c). In Clink v. Eadford, Lord Esher 
 said {d) : " The principle to be gathered from the decisions appears 
 to me to be this, that unless the cesser clause is expressed in 
 terms so clear that we cannot get rid of it, the Court will be 
 inclined to construe it as not applicable to a breach of contract com- 
 plained, of, if by so construing it the Court will leave the shipowner 
 unprotected as to that breach of contract." 
 
 detentions at the port of loading, but ever, the judgment of the same judge in 
 
 the question may also arise in regard to French v. Gerber, 2 C. P. D. 247. 
 
 detention at the port of discharge. A (a) L. E., 10 Q. B. at p. 561. 
 
 recent decision seems to show that, even /m l_ jj 7 q_ b_ 599. 
 
 as to .that, the cesser clause -will not free (<,) Lockhart v. Falk, L. E., 10 Ex. 
 
 the charterer from Uability unless the 132 ; Gardiner v. Maofarlane, 26 Sc. 
 
 lien clause covers it: Hansen f.Harrold, L. r. 492 (1889); Clink ij. Eadford 
 
 (1894) 1 Q. B. 612 ; infra,B. 650. This (isgi) 1 Q. b. 626 ; Dunlop v. Balfour, 
 
 increases the importance of not unduly (1892) 1 Q. B. 507 ; and Hansen v. 
 
 limiting the lien. Harrold, (1894) 1 Q. B. 612. 
 
 («) 2 Q. B. D. at p. 247. See, how- ((?) (1891 1 Q. B. at p. 627. 
 
DEMUBRAGE. 747 
 
 650. Whether a lien be giYen or not, the ordinaxy cesser clause Sect. 650. 
 would seem, by its terms, to put an end to the charterer's liability "WTiatever the 
 for defaults in carrying out those provisions of the charter party ^^^dgger ' 
 which are to be performed after the cargo has been loaded. And clause covers 
 
 . „ 1J.1 -r> 1 breaches after 
 
 that view was formerly taken. But the recent case of Hansen v. cargo loaded. 
 Harrold (e) shows that it is probably not correct. 
 
 In French v. Grerber (/), the claim was for not giving orders at 
 the port of call as to the port of discharge. The charter party 
 provided that the ship, after being loaded, should proceed to 
 Queenstown or Falmouth for orders, which were to be sent within 
 forty-eight hours after notice to the charterer's agents, " or lay 
 days to count." Twelve working laying days were " allowed the 
 freighters for loading the said ship at the port of loading and 
 waiting for orders at port of caU. in Europe .... and fifteen 
 days on demurrage are allowed over and above the said laying 
 days at ^d. per registered ton per day." Further, the liability of 
 the charterers was to cease as soon as the cargo was on board, 
 provided it was worth the freight at the port of discharge, " but 
 the owners of the ship to have an absolute lien on the cargo for all 
 freight, dead freight, and demurrage, which they shall be bound 
 to exercise." The breaches assigned were, first, that the defendants 
 (the charterers) refused to give any orders as to the port of dis- 
 charge, whereby the freight could not be earned and expenses were 
 incurred; secondly, that they gave orders for a port which was not* 
 a safe port, so that delivery could not be given according to the 
 charter party. To this the defendants pleaded that their HabDity 
 under the charter party had ceased when the cargo was on board ; 
 and this was demurred to. 
 
 The judgment of the Queen's Bench Division was in favour of 
 the charterers. The Court considered that part of the damages 
 sued for were obviously unascertained damages, for which there was 
 no lien given ; but it was held that that did not prevent the cesser 
 clause from applying. " The words of the clause must necessarily 
 absolve from aU future liability, or mean nothing " (^). And this 
 
 (e) (1894) 1 Q. B. 612. lien: but where the words of the ab- 
 
 {/) 1 C. P. D. 737 ; 2 C. P. D. 247. solving part are open to either interpre- 
 
 (g) " The rule, therefore, seems to be tation, then, without regard to lien, 
 
 that where the words of the absolving liability as to future transactions is not 
 
 part of the clause plainly show that all to accrue, but liability as to antecedent 
 
 liability is to cease on loading, it is so to breaches is to cease only so far as an 
 
 cease both as to antecedent and future equivalent lien is given," Per Brett, J., 
 
 liabilities, and without" regard to any 1 C. P. D. at p. 744. 
 
748 
 
 THE DELIVERY. 
 
 Sect. 650. decision was upheld in tte Court of Appeal ; but the judgments 
 given were not all to the same effect. Bramwell, L. J., agreed 
 with the Court below in refusing to limit the exemption of the 
 charterers to those matters for which a lien was created. Baggallay, 
 L. J., doubted about this, and also as to whether the damages 
 incurred were, or were not, within the lien. And Mellish, L. J., 
 thought that as the lay days and demurrage days were to begin to 
 run at the port of call, a sufficient remedy was given by the lien 
 clause (h). 
 
 In Hansen v. Harrold («), the shipowner claimed from the char- 
 terers the balance of a lump sum freight of 4,000/., payable, by 
 the terms of the charter party, on the delivery of the cargo. 
 The charter provided that the charterers might re-charter the 
 vessel ; that the captain should sign bills of lading at any rate of 
 freight required ; and that " should the freight list according to 
 bills of lading show a less sum in the aggregate than chartered 
 freight, the difference to be paid in cash prior to the ship's 
 clearance at the custom-house." It also contained the following 
 cesser clause : " The liabilities of charterers to cease on the vessel 
 being loaded, the master and owners having a lien on the cargo for 
 all freight and demurrage under this charter party." 
 
 A cargo of oats was loaded by sub- charterers, and bills of lading 
 were signed showing an aggregate freight less than the lump sum 
 freight by 5S21. 12s. 9d. That difference was duly paid at the 
 port of loading. The cargo, however, lost weight during the 
 voyage ; with the result that the full bill of lading freights, which 
 were payable on the weights delivered, could not be collected. It 
 appeared that a loss of weight during the voyage was usual with 
 cargoes of oats from New Zealand ; but the loss in this case had 
 been unusually great. The bills of lading did not refer to the 
 charter party, and so did not preserve a lien for the charter freight. 
 The shipowner sued for the portion of that freight which he had 
 thus failed to receive. The charterers relied on the cesser clause. 
 
 (A) "If there was some clause in the tain any clause as to damages which is so 
 
 charter upon which it was perfectly plainly not ooTered by the lien that one 
 
 plain that no remedy was given by the may fairly say that the parties cannot 
 
 lien as against the purchaser of the have intended what they have appar- 
 
 cargo, then I certainly should have ently said, namely, that the charterers 
 
 struggled to hold that this clause could should be entirely exonerated." Per 
 
 not exonerate the charterers from pay- Mellish, L. J., 2 C. P. D. at p. 251. 
 ing damages." But, " I cannot find ,•■, nagA) i o B 612 
 
 that this charter dqes, in substance, con- 
 
DEMURRAGE. 749 
 
 The Court of Appeal, affirming Day, J., allowed the claim, on Sect. 650. 
 the ground that as the shipowner had, in fact, no lien on the oargo 
 for the charter-party freight, the cesser clause did not exonerate the 
 charterers. Lord Esher laid down the rule of construction in wide 
 terms ; repeating what had been said by himself and the L. JJ. in 
 Clink ». Radford (/), and applying it to breaches after as well as 
 before the loading of the ship. " Where the provision for cesser 
 of liability is accompanied by the stipulation as to lien, then the 
 cesser of liabiKty is not to apply in so far as the lien, which by the 
 charter party the charterers are enabled to create, is not equivalent 
 to the liability of the charterers." Lopes, L. J., concurred. 
 
 Davey, L. J., treated the matter somewhat differently. He 
 considered that the two branches of the cesser and lien clause 
 formed correlative stipulations. Also, that the form of the 
 clause showed "that the creation of a lien was a condition pre- 
 cedent to the cesser of liability, the effect being that the liability 
 of the charterers would only be discharged in so far as it was 
 replaced by the Hen. I do not desire, however, to rest my 
 judgment on that ground, because it is not the view adopted 
 m the earlier cases, and it is not necessary to adopt it for the 
 purpose of this case. It is sufficient to say that the two branches 
 of the clause thus linked together form correlative stipulations." 
 Further, he held that it must be taken to have been the charterers' 
 fault that no sufficient Hen had been created or procured ; and that 
 " whether the case is put on the ground of condition precedent or 
 on the ground of breach of contract, for which the damages are 
 the difference between the two freights, the result is the same " (l). 
 
 The judgments in this case throw a new and important Ught 
 on this vexed subject. They seem to lead to the conclusion that 
 the charterer remains Kable, notwithstanding the ordinary cesser 
 clause, for all claims of the shipowner under the charter party, 
 whether accrued before or after the loading, unless the shipowner 
 has an effectual lien upon the cargo for those claims (m). 
 
 651. A charterer may, however, be Hable for matters subse- Charterer 
 quent to the loading of the ship, notwithstanding the cesser ^Ym rf'* 
 clause, if he is himself the holder of the bills of lading given for Jfo^^th^tindl 
 
 the cargo. Though as charterer he may be absolved from lia- ing cesser 
 
 clause. 
 
 (J) (1891) 1 Q. B. 625. (*") Brankelow SS. Co. v. Canton Ins. 
 
 ,. ,,„„„ , „' ' Office, (1899) 2 Q. B. 178; Burrill v. 
 
 « (1894) 1 Q. B., pp. 621, 622. ^rossJn, 69.1'ed. Rep. 747. 
 
750 
 
 THE DELIVERY. 
 
 Sect. 651. Mlity hj the terms of the chaxter party, he may still be respon- 
 sible under the new contract made by the bills of lading. 
 
 In Ghallischen v. Stewart (w) this point was expressly decided 
 with regard to demurrage at the port of discharge. By the charter 
 party it was agreed that the charterer's responsibility should cease 
 as soon as the cargo was on board, and that the vessel should have 
 a lien for freight and demurrage. A cargo was shipped by the 
 charterers, and biUs of lading were given to them, making it de- 
 liverable to them or their assigns, " they paying freight and all 
 other conditions as per charter party." The charterers sold part 
 of the cargo, but they held some of the bills of lading, and received 
 part of the cargo under them. It was held that they were liable, 
 as consignees, for detention beyond the lay days specified in the 
 charter. 
 
 The contention that the cesser clause of the charter party was 
 incorporated ia the biU of lading, and operated to discharge the 
 consignees, was discussed and rejected ; that clause being considered 
 to have no application to the bill of lading contract. 
 
 In the same way the charterer may be liable, as holder of the 
 bills of lading, for detention at the port of call (o). 
 
 (») 11 Q. B. D. 186 ; 13 Q. B. D. 317. Eliza Lines, 61 Fed. Eep. 308. 
 Cf. Barwiok v. Buinyeat, 36 L. T. 250. (o) Bryden v. Niebnhr, 1 Cab. & Ell. 
 
 As to freight at a port of refuge : The 241. 
 
CHAPTER XVIII. 
 
 THE shipowner's LIENS FOE FREIGHT, DEAD FREIGHT, 
 AND DEMURRAGE. 
 
 751 
 
 SECT. 
 
 Nature of the lien — Not enforceable 
 on goods wrongfully shipped , , , , 652 
 
 Lien for freight at common law . , 653 
 
 Not lost by maMng express contract 
 — Confined to the particular ship- 
 ment 654 
 
 Rule extends to freights under 
 charter party 655 
 
 Quiere, where charterer may use the 
 ship as a general ship — ^Difference 
 between charter and bill of lading 
 freights, made payable in advance 656 
 
 On what goods may the lien be 
 enforced f 657 
 
 No Uen at common law for other 
 claims, except general average, 
 and expenses for cargo 658 
 
 Express lien clause — Early form . . 659 
 
 Modem form — ^Attaches to outward 
 cargo 660 
 
 Terms inconsistent with lien — ^Pay- 
 ment after delivery— Payment by 
 bills 661 
 
 Charter giving possession to 
 charterer 662 
 
 Is there a Uen for freight payable 
 in advance ? 663 
 
 Where the voyage is abandoned . . 664 
 
 No Uen if acceptance in advance 
 running 665 
 
 Express lien for dead freight 666 
 
 Express lien for demurrage 667 
 
 Charter-party liens not preserved 
 against shipper or assignee of 
 
 EOT. 
 
 bills of lading unless incorporated 
 
 in them 668 
 
 When is lien for charter freights 
 incorporated ? 669 
 
 Notice of existence of charter party 
 not sufficient 670 
 
 Liens for dead freight and de- 
 murrage 671 
 
 Liens valid against factor of 
 charterer 672 
 
 Liens valid against shipper, if bill 
 of lading not authorized and 
 shipper ought to have inquired. , 673 
 
 Or if shipper has coUuded with 
 charterer 674 
 
 Summary 675 
 
 Are the charter-party liens valid 
 against goods shipped under 
 agreement vrith the charterer ? . . 676 
 
 Shipowner must keep possession of 
 goods 677 
 
 Lien may in some cases revive on 
 regaining possession 678 
 
 Lien may be lost by inconsistent 
 conduct 679 
 
 Tender may be waived 680 
 
 Lien for charter freight not lost by 
 delivering and ooUeoting freight 
 under bills of lading 681 
 
 EfEect of lien where performance 
 of the contract becomes impos- 
 sible 682 
 
 Expenses of preserving Uen not re- 
 coverable — ^Except as damages . . 683 
 
 652. Apart from any lien, tlie shipowner has the right to keep Nature of the 
 possession of the goods until they have been properly claimed from 
 him. The hiU of lading or other document which represents them 
 
752 
 
 THE DELIVERY. 
 
 Sect. 652. ought to be produced, and the goods taken under it. The consignee 
 cannot take them by force, so as to avoid producing-, the bill of 
 lading and acceding to its conditions. If he does so, the ship- 
 owner may sue him in trespass (a). 
 
 But, beyond this, the shipowner generally has a right to retain 
 the goods in his possession until the freight upon them, and some- 
 times other charges also, have been paid. This right is called a 
 jien. It does not give the shipowner any property in the goods ; 
 nor does it enable him to sell them ; even though the retention of 
 them may be attended with expense (6). It is simply a right to 
 keep possession, and to resist all claims to take them away. And 
 it avails against the true owner of the goods, although he may not 
 be the person liable for the freight, or other charges. 
 aHe oDf°oodB ^^^ indeed, the goods have been shipped without the authority of 
 
 ■wrongfully the owner, and he has not in any way ratified the contract, it seems 
 shipped. 
 
 that the shipowner cannot as against him enforce the lien which 
 
 the law, or the agreement, would otherwise have given ; at any 
 
 rate, he cannot do so if he had notice of the want of authority (c). 
 
 And if the goods were shipped in fraud of their owner, it seems 
 
 that the shipowner, although innocent of the fraud, cannot refuse 
 
 to give them up to him [d). 
 
 Lien for 653. Apart from any express contract, the shipowner has a lien 
 
 cot^oiTla-w. ^^^ ^^ freight ; that is, for the remuneration payable to him for 
 carrying the goods. This rule has been laid down generally ; 
 whether the goods are carried under a charter party, or in a general 
 ship, the shipowner may retain them until the freight upon them 
 is paid (e). And it is said to have been adopted by the common 
 law from the general maritime law ; that is to say, from the rules 
 which were recognised in early times among peoples engaged in 
 maritime commerce (/). 
 
 The lien for freight is, however, analogous to others which are 
 given by the common law, and it may perhaps be regarded as 
 
 {a) Lucas v. Nookells, 4 Bing. 729. Grenaugh, 2 Ld. Eaym. 866 ; Johnson 
 
 (i) MuUiner v. Florence, 3 Q. B. D. v. Hill, 3 Stark. 172. 
 484 ; Thames Ironworks Co. e. Patent (e) Anonymous, 12 Mod. 447 ; Cross 
 
 Derrick Co., 29 L. J., Ch. 714. on Lien, p. 289 ; infra, s. 655. 
 
 (c) Waugh V. Denham, 16 Ir. C. L. (/) See Parsons, Shipping, note to 
 
 405. Vol. I., pp. 174—177; and Drinkwater 
 
 ((?) Story, BaU., s. 588, citing Rohia- v. The Brig Spartan there cited; and 
 
 son V. Baker, 5 Cush. 137 ; Parsons, see the statements of the maritime law 
 
 Sh. I., p. 180. But cf. the case of given there, and in Abhott (6th), 247; 
 
 The Exeter Carrier, cited in Torke v. (13th), 446. 
 
LIENS FOE FREIGHT, ETC. 753 
 
 having a sufi&oient foundation in principles wHch are native to that Sect. 653. 
 system. A- similar lien is given to common carriers by land (g'). 
 And though this has been said to arise from the fact that they are 
 bound to carry for any persons who may req.uire them to do so {h), 
 it seems also to be justified as an instance of the general rule, that 
 where goods have been delivered to a man to do work on them, in 
 altering and improving their condition, he is entitled to a lien on 
 them for his reward {i). And probably that rule also suflBciently 
 justifies the lien for freight on goods carried by sea, which we are 
 discussing {k). 
 
 654. The Hen for freight, then, is not dependent on any express isTot lost by 
 agreement. Nor is it lost when a contract is made which provides ™e^ontraot 
 for the manner in which the freight is to be paid, unless the con- 
 tract is ia some way inconsistent with the Ken {I). But, as we 
 
 shall see shortly, the terms of the contract are generally such as 
 themselves to confer it. 
 
 The right is confined to the freight payable on the particular Confined to 
 shipment of goods. A shipowner cannot retain the goods for other sMprnTnt! 
 freights due from their owner upon other transactions, unless an 
 agreement to that effect has been made expressly, or unless such an 
 agreement must be inferred from the course of business between 
 the parties, or from a general usage in the trade (m). And no 
 usage could entitle the carrier to retain the goods as against con- 
 signees to whom they belong, for debts due to him from the 
 shipper (»). Nor can usage give the carrier a general Hen on 
 the goods for debts due from the consignee in such a way as 
 to defeat the right of the vendor-shipper to stop the goods in 
 transit (o). ' 
 
 655. The Hen for freight under a charter party is often a less Eule extends 
 obvious deduction from common law principles than is that for under charter 
 freight under a bill of lading. The charter freight may be regarded '^^'^^• 
 
 (?) Skinner v. Upshaw, 2 Ld. Eaym. citing per Johnson, J., in Cracie v. 
 
 I^i. Palmer, 8 Wheat. 605. 
 
 (A) Per Holt, C. J.,Torke'!).Grenaugh, (0 Cliase v. "Westmore, 5 M. & S. 180 ; 
 
 2 Ld. Eaym. 866 ; per Lord EUen- Crawshay v. Homfray, 4 B. & A. 60. 
 
 borough, Eushf orth v. Hadfield, 6 East, W See Eushforth v. Hadfleld, 6 East, 
 
 519. 519 ; 7 East, 224. 
 
 ,. „ .„ „ , (n) Cf. Wright v. SneU, 5 B. & A. 
 
 W Smith, Mere. Law (9th), p. 560 ; gg^ 3^^^^ ^ ^„„l„„t, 2 N. E. 64 ; 
 
 Scarfe .. Morgan, 4 M. & W. 270. Leuckhart v. Cooper, 3 Bing. N. 0. 99. 
 
 (*) See Parsons, Shipping, I., 177 n., (0) Oppenheim?;. Ewssell, 3 B. &P. 42. 
 
 C— a 3 C 
 
754 THE DELIVERY. 
 
 Sect. 655. as in part a payment for the sTiIp's voyage to the port where the 
 cargo is to be loaded. Moreover it is often a fixed sum, having no 
 direct relation to the quantity of goods carried. StUl it appears 
 to he well settled that, whether the freight he payable in proportion 
 to what is carried, or hy a fixed sum, the lien arises independently 
 of the express terms of the charter party, unless they are incon- 
 sistent with it. 
 
 "Whether the same is true with regard to freights payable for 
 the use of the ship in proportion to the time occupied, does not 
 appear to have been decided. But where the contract is one by 
 which the shipowner undertakes to carry the goods, and does not 
 merely lease his ship, the same rule seems applicable. 
 
 In Tate v. Meek (p) a ship was chartered to proceed to Bahia 
 and load, and thence to a port of discharge, and " make a right 
 and true delivery of the whole of the cargo agreeably to bills of 
 lading that should be signed for the same." The freighters cove- 
 nanted to pay for the freight or hire of the vessel at a certain rate 
 upon the goods delivered, which was to be paid as follows : 300/. 
 in cash on the day the vessel was reported inward, and the re- 
 mainder by good and approved bills at two months after date from 
 the day on which the delivery should be completed. A cargo was 
 shipped at Bahia, of which part belonged to the charterers, and 
 part to other merchants. A bill of lading given for that which 
 belonged to the charterers made the goods deliverable to them, or 
 their assigns, he or they paying freight as per charter party. On 
 arrival, the goods shipped hy the other merchants were delivered 
 on payment of the bill of lading freights, which were collected by 
 the shipowner. The charterers had become insolvent, and no 
 tender of the rest of the charter freight was made. The ship- 
 owner refused to deliver the goods shipped hy the charterers to the 
 assignees for the benefit of their creditors until payment of that 
 freight was made. It was held that he was entitled to do so ; for 
 the delivery and the payment of the remaining freight were to be 
 concomitant acts, one of which could not be required without per- 
 formance of the other. 
 
 The same Court, in Tates v. Meynell (q), also considered that 
 this lien was not affected by the form of the charter party, under 
 which the shipowner " granted and let " the ship, and the charterers 
 took the same on freight. 
 
 {p) 8 Taun. 280. But of. Hntton v. (?) 2 Moore, 297. And see Chiistie v. 
 
 Bragg, 7 Taun. 14. Lewis, 2 B. & B. 410. 
 
LIENS FOE FREIGHT, ETC. 755 
 
 These cases were followed in Saville v. Campion (r), where the Sect. 655. 
 freight was payahle under a charter for an outward and homeward 
 voyage, at a certain rate per registered ton. 500/. was to he paid 
 in cash at the expiration of six months from the date of the 
 charter party ; a moiety of the remainder hy bills at two months 
 after date from the day on which the ship should arrive in the 
 Thames, on her return from her homeward voyage ; and the residue 
 by bills at four months' date from the same period. The charterers 
 became bankrupt, and neither they nor their assignees tendered 
 the bills for the freight. In an action by the assignees for the 
 goods, it was held that the shipowner was entitled to retain them 
 until payment. 
 
 Abbott, 0. J., in delivering the considered judgment of the Court, 
 said : " Upon this instrument, therefore, and between the parties 
 to this suit, we think the defendant had the possession of the ship 
 and goods for the voyage, and a lien on the goods for the stipulated 
 hire of the ship, there being nothing to show that the delivery of the 
 goods was to precede the payment of that hire in cash and bOls, as 
 provided for by the deed " (s). 
 
 In Black v. Eose {t) the freight under a charter party was to be 
 paid at a certain rate on the quantity of cargo safely delivered ; 
 but there was no stipulation as to when it was to be paid. The 
 shipowner demanded payment as the cargo was delivered, and 
 refused to deliver except on those terms. The Privy Council, 
 afiBrming the judgment of the Supreme Court of Ceylon, held 
 that he was entitled to do so ; and they appear to have approved 
 the rule laid down by the Chief Justice of the Supreme Court 
 (Creasy), that "when there is no express stipulation as to the 
 time and manner of payment of- freight the master is not bound 
 to part with the goods until his freight is paid " (m). 
 
 656. But where the charter party provides that the master shall ^^^^^^^^^^ 
 
 sign bills of lading as required, and entitles the charterer to collect nee the ship 
 nci.i . • iijij.j!i^^^ general 
 
 the freights under those bills of lading, it seems to be doubttul ghip. 
 
 whether a Uen for the charter freight will arise, even as against the 
 
 charterer (»), if he has in fact used the ship as a general ship. 
 
 (r)2B. &Ald. 603. N. S. 31. 
 
 W See also Faith v. Bast India Co., («) See also MoUers. Foung, 24 L. J., 
 
 4 B. & A. 630 ; and Campion v. Colvin, Q. B. 217 ; 25 L. J., Q. B. 94. 
 
 3 Bing. N. C. 17. {x) As to the shipowner's rights 
 
 (0 2 Moo. P. C, N. S. 277 ; 11 L. T., against the sHppers, see infra, s. 668. 
 
 3c2 
 
756 THE DELIVERY. 
 
 Sect. 656. The question as to when the chartered freight hecomes due under 
 such circumstances was carefully considered in Brown v. Tanner (y) ; 
 and it was held not to be due until the cargo had been completely 
 delivered. The ship had there been chartered to go to Algoa Bay 
 for a cargo of merchandise, with which she was to proceed to 
 London, where it was to be deliTered on payment of freight after 
 certain specified rates for the various articles of merchandise 
 enumerated. The freight was to be paid " on unloading and right 
 delivering of the cargo as customary." The master was to sign 
 bills of lading at any rate of freight, if required, without prejudice 
 to the charter party ; and these bills of lading freights were to be 
 collected by the charterers. 
 
 The Court held that the charter party freight was not due until 
 the objects of the voyage had been completely carried out. " On 
 principle, we conceive that the freight cannot be due from the 
 charterers on a charter party such as the present until they have 
 had the full user of the ship for the purposes for which they char- 
 tered it. It is, in fact, analogous to the demise of property until a 
 given purpose is answered : the purpose in this case being, first, the 
 outward voyage ; second, the taking in of a complete cargo at such 
 profit freight as the charterers may be able to obtain above the 
 freights they have agreed to pay to the owner ; and, third, the 
 delivering of the cargo to the consignees by the charterers" (s). 
 
 The question in that case was as to the right to the freight of a 
 mortgagee of the ship, who had taken possession of her while the 
 cargo was being discharged ; the other claimant being an assignee 
 of the freight from the shipowner. The right of the shipowner to 
 a lien for the chartered freight was not discussed ; and inasmuch 
 as the charter there gave the shipowner a lien expressly, the Court 
 probably did not intend to decide the question before them in a 
 manner which was inconsistent with that lien. The ground, how- 
 ever, put forward, as above quoted, does appear to cut away the 
 lien for freight under charters of this kind, where it has not been 
 expressly reserved. 
 Difference In Gardner v. Trechmann (a), the charter party expressly gave 
 
 charter and ^ lie^- ^0^ freight, but it also contained the clause, " It is further 
 frdffht^made ^S^^®^ *^^ captain to sign bills of lading as presented, and at any 
 
 payable in rate of freight, but should the total amount of freight as per bills 
 adrance. . . . 
 
 of lading be under the amount estimated to be earned by this 
 
 it/) L. K., 3 Ch. 597. («) L. K., 3 Oh. p. 603. (a) 15 Q. B. D. 154. 
 
LIENS FOE FREIGHT, ETC. 757 
 
 charter, the- captain to demand payment of any difference in ad- Sect. 656. 
 vance; on the other hand, any difference in excess of chartered 
 freight to be deducted by charterers' agents at port of discharge." 
 Upon this, Brett, M. E., expressed the opinion that the charter 
 party gave no right of lien for the difference between the charter 
 party freight and that which was payable under the bills of lading. 
 The excess of the former " was to be paid immediately before the 
 ship sailed ; it was to be demanded by the captain ; the shipowner 
 had no rignt of lien for that excess even against the charterer; 
 the stipulation was a mere reservation of a right which the ship- 
 owner could not enforce by lien." 
 
 657. The shipowner, in enforcing his lien for freight, may retain 0°^ J^^^ 
 all the goods in respect of which that is payable, until the whole the lien be 
 has been paid (6) ; or he may give delivery by instalments, and 
 require the freight on each instalment to be paid concurrently 
 
 with delivery of that (e). 
 
 If he has delivered some of the goods without receiving the 
 freight on them, he may still retain the remainder for the whole 
 of the freight due (d). And if goods comprised in several bills of 
 lading are deliverable to the same person, it seems that they may 
 be treated as all one lot of goods for the purpose of this lien, 
 provided that they were shipped under one contract (d) ; but not 
 otherwise (e). 
 
 On the other hand, where several bills of lading have been 
 given for different parts of one shipment, and have been assigned 
 by the shipper to different persons, the shipowner cannot exercise 
 the Hen for freight under one bill of lading upon goods comprised 
 in another which is in other hands (d). 
 
 In Thorsen v. McDowall (/) the freight was payable " after unload- 
 ing " ; it was held that the shipowner could not properly stop the 
 discharge until the freight on the goods still in the ship was paid. 
 
 658. In addition to this lien for freight, the shipowner, as we ^° lien at 
 
 T , . . common law 
 
 have seen, has liens at common law for general average contri- for other 
 butions due from the cargo, and for particular expenses incurred general ^^ ^^ 
 by him for its safety (g). Otherwise he is not entitled, apart from eren^es™^ 
 
 cargo. 
 (5) Perez u. Alsop, 3 F. & F. 188. ment in Hanson v. Meyer, 6 East, 
 
 {e) Black V. Rose, 2 Moo. P. C, N. S. P" ®^^- ' ,, , „ 
 
 „,» ,, -r _, „ „ (e) Bemal ». Pim, 1 Gale, 17. 
 
 277 ; 11 L. T., N. S. 31 ; supra, s. 546. Jj^ ,, g^^^, q,, [..^^^ ^.^ 
 
 (d) Sodergrenr. Flight, cited in argu- (V) Supra, ss. 295, 442. 
 
768 THE DELIVEKY. 
 
 Sect. 658. express contract, to retain tlie goods to secure payment of claims 
 wMcli he may have against the shippers or owners. 
 
 He has no lien, for example, for demurrage, or for damages for 
 detaining the ship {h) ; nor for dead freight, or compensation for 
 not loading the full agreed cargo {h) ; nor for charges, such as 
 pilotage and port charges, which the charterer may have agreed 
 to pay (■«■). 
 
 Express lieu 659. But clauses are frequently inserted in charters which ex- 
 form. ' pressly give a lien on the cargo for the freight, and also for dead 
 freight, and for demurrage. 
 
 It was at one time not uncommon for a charter party to contain 
 a clause that "for the true performance of every article, matter and 
 thing herein contained the parties hereby mutually bind and oblige 
 themselves, especially the shipowners, the said ship, her tackle, and 
 appurtenances, and the charterers, the goods and merchandises to 
 be laden and put on board the said vessel, each unto the other and 
 others of them, in the penal sum of 3,000/. sterling, to be forfeited 
 and paid by the party delinquent to the party observant, to the 
 true and punctual performance thereof " (/c). 
 
 It seems to have been intended to incorporate by this clause an 
 early rule of maritime law by which the ship and freight were 
 bound to the performance of the covenants of the shipowner, and 
 the goods to the performance of the covenants of the merchant {}) . 
 But it was held in Birley v. Gladstone {m), that the clause did not 
 give the shipowner any lien; and Lord Ellenborough said it seemed 
 that if any benefit could be derived imder it, it must be in a court 
 of equity. 
 
 In that case a biU was afterwards filed in Chancery, asking a 
 declaration of a lien, but was dismissed («). Sir W. Gb'ant, M. E., 
 said, " A com-t of equity is not bound to find an equitable efEect 
 for a clause, merely because the construction which a oom't of law 
 has put upon it would leave it inoperative ; in truth, it has been 
 copied from foreign charter parties, with very little consideration 
 of the effect that might be allowed to it in the law of this country. 
 I think it very probable, that in other countries it would have the 
 
 (A) Phillips V. Rodie, 15 East, 547 ; (A) See Birley v. Gladstone, 3 M. & S. 
 
 Birley v. Gladstone, 3 M. & S. 205. 205. 
 
 [l) See Abtott (llth) ; (iv), 2, 1. 
 (i) Faith v. East India Co., 4 B. & A. \m) 3 M. & S. 205. 
 
 630. («) Gladstone v. Birley, 2 Mer. 401. 
 
LIENS FOE FREIGHT, ETC. 759 
 
 effect of entitling the shipowner to retain the cargo for every sort Sect. 659. 
 of demand that could accrue to him under the charter party." 
 
 660. In modern charters the lien is very frequently given by. a Modem form, 
 general clause that the shipowner is to have, "an ahsolute lien 
 
 on the cargo for the recovery of all freight, dead freight, and 
 demurrage." 
 
 Such a clause covers all freight payable during the voyage, so 
 that the lien may attach to outward cargo for the charter freight, 
 or part of it, although it may be agreed that that shall be calculated 
 upon the homeward cargo. 
 
 Thus, in Gilkison v. Middleton (o), the agreed voyage was to AttaoBesto 
 China and back, and the freight was to be calculated on the home- oarJoT 
 ward cargo. But it was partly payable by an acceptance of the 
 charterers, to be given on sailing outwards. The vessel sailed with 
 cargo for Singapore ; and before she arrived there the charterers 
 failed, and their acceptance was dishonoured. It was held that 
 the express lien given by the charter party would have attached 
 to the outward cargo, so that the shipowners might have retained 
 it for the amount of the acceptance, had not bills of lading been 
 given which stated that a smaller sum only was payable on those 
 goods (i?). 
 
 661. If the bm of lading or charter party is inconsistent with Terms ineon- 
 the lien for freight which the shipowner would have at common Ylso.. 
 
 law, the right to that lien does not, of course, arise. The parties 
 
 must be considered to have excluded it by their contract. Thus, Payment after 
 
 if the freight is not to be payable until after the goods have been ^ ^^^' 
 
 delivered, the shipowner has no lien on them for it (g'). And the 
 
 fact that the freighter or consignee has become insolvent does not 
 
 alter the obligation to deKver the goods without payment (»■). 
 
 But a stipulation that the freight is to be paid by bills, which Payment by 
 will themselves not be due until after the cargo has been 
 dehvered, does not affect the right to hold the goods imtil the bOls 
 are given. And in Tate v. Meek (s), it was held not to be 
 inconsistent with this lien that the bills were to be payable at two 
 months after date from the day on which the delivery should be 
 
 (o) 26 L. J., C. P. 209. Bing. 729. 
 
 (p) See infra, s. 663. {f) Alsager v. St. Katherine's Dock 
 
 (?) Foster v. Colby, 28 L. J., Ex. 81 ; Co., mpra. Cf. Thompson v. Small, 1 
 
 Alsager v. St. Katherine's Dock Co., 15 C. B. 328 ; 14 L. J., C. P. 157. 
 
 L. J., Ex. 34 ; Lucas v. Nookells, 4 (s) 8 Taun. 280. 
 
760 
 
 THE DELIVERY, 
 
 Sect. 661. completed. It was considered that the difficulty could be met by 
 the captain landing the whole cargo in his own name, and deliver- 
 ing it all at once. 
 
 If the contract gives a lien expressly, and yet contains terms 
 that are inconsistent with it, the conflict must be settled so as best 
 to give effect to the apparent intentions of the parties, having 
 regard to the ordinary rules of construction. 
 
 In Foster v. Colby {t) a charter party gave the shipowners an 
 " absolute lien on the cargo for aU freight." The freight was to 
 be a lump sum, and was to be paid partly on sailing, partly on 
 delivery of an outward cargo, and " the remainder in cash two 
 months from the vessel's report inwards at London or Liverpool, 
 and after right delivery of the cargo, or under discount at 51. per 
 cent, per annum, at freighter's option." The point was not 
 necessary to the decision, but all the judges were of opinion that 
 the lien did not attach for that part of the freight which was 
 payable after delivery of the homeward cargo («). 
 
 Charter 
 giving posses- 
 sion to 
 charterer. 
 
 Is there a lien 
 for freight 
 payable in 
 advance ? 
 
 662. A charter party by which the owner gives up the possession 
 and control of the ship to the charterer is not consistent with a 
 lien for the freight on the goods carried in the ship. For the 
 owner has not possession of the goods. He cannot, therefore, 
 detain them for unpaid freight due under the charter («). 
 
 But in SmaU v. Moates (y) it was considered that if the charter 
 party expressly gives a lien for the freight, this diffictilty may be 
 overcome. For if the owner is not in possession of the ship, still, 
 under the terms of the contract, it must be taken that the 
 charterer has possession of her on his behalf, so far as the lien 
 on the cargo is concerned. 
 
 663. The cases which present the greatest difficulty are those in 
 which it has been agreed that the freight shall be paid in advance, 
 or independently of delivery ; for example, on sailing, or at a fixed 
 time afterwards. Lord Kingsdown, delivering the judgment in 
 Kirchner v. Yenus (s), laid down that freight payable in that way 
 is not in truth freight, and is not protected by a lien as a legal 
 
 {t) 28 L. J., Ex. 81. 
 
 (m) So also, Lucas v. Nockells, 4 Bing. 
 729. 
 
 (x) Belcher v. Capper, 4 M. & G-. 502. 
 Cf. Christie v. Lewis, 2 B. & B. 410; 
 
 Hutton V. Bragg, 7 Taun. 14. 
 
 {!/) 9 Bing. 574. Cf . The Stomoway, 
 46 L. T. 773. 
 
 [z] 12 Moo. P. C. 361. 
 
LIENS FOR FREIGHT, ETC. 761 
 
 incident ; so that no lien for suoh freight arises unless it has been Sect. 663. 
 agreed for in the contract. 
 
 He said, " a sum of money payable before the arrival of the 
 ship at her port of discharge, and payable by the shippers of the 
 goods at the port of shipment, does not acquire tha legal character 
 of freight because it is described under that name in a bill of 
 lading, nor does it acquire the legal incidents of freight. It is in 
 effect money to be paid for taking the goods on board and under- 
 taking to carry, and not for carrying them." And " when parties, 
 instead of trusting to the general rule of law with respect to 
 freight, have made a special contract for themselves for a payment 
 which is not freight, it must depend upon the terms of that 
 contract whether a lien does or does not exist ; and when the 
 contract made gives no lien, the law will not supply one by 
 implication." 
 
 These dicta have not altogether been approved of in later cases (a) ; 
 and it may, perhaps, be doubted whether there is any such essential 
 difference between freight payable in advance, and freight payable 
 on delivery (b). Freight payable in advance is stiO. the remune- 
 ration for the carriage of the goods, although the payment is not 
 conditional upon a complete performance of that service. The 
 question as to the Uen for that freight generally arises when the 
 service has in fact been performed ; the goods being, at their 
 destination. And that being the case, it is difficult to see why the 
 ordinary rule of the common law does not apply ; unless it can be 
 said that the contract is inconsistent tcith the lien. This, it would 
 seem, should be the test (c). But Lord Kingsdown's judgment 
 laid it down that there was no lien unkss the contract gave it. 
 
 Kirchner v. Yenus followed How v. Kirchner {d), also in the 
 Privy Council, where the facts were very similar. In both cases 
 the freight was to be paid " one month after sailing, ship lost or 
 not lost ; " but in How v. Kirchner it was payable by the shippers ; 
 while in Kirchner v. Venus it was to be paid in Liverpool (the port 
 of loading), to a certain person there. In each case the freight had 
 not been paid, and the shipowner claimed to hold the goods at the 
 
 [a) Cf. Allison v. Bristol Mar. Ins. Gardnerv. Treoliniann, 15 Q. B.D. 154; 
 
 Co., 1 A. C. 209. cited mpra, s. 656. 
 
 (S) But see per Brett, J., in Nelson v. ., , „^ , 
 
 Association for Protection of Commercial ^ ^^^ P^"^ ^""^^ Wensleydale in How 
 
 Interests, 43 L. J., C. P. 218 ; Exparte *• Kirchner, 11 Moo. P. C. 21. 
 
 Nyholm, Re Child, 43 L. J., Bank. 21 ; {d) II Moo. P. C. 21. 
 
763 
 
 THE DELIVERY. 
 
 Sect. 663. destination until payment, as against the assignee of tbe bill of 
 lading. They were cases to which the Bills of Lading Act, 1855, 
 did not apply. 
 
 In Kirchner v. Venus (e) the cases of Gilkison v. Middletoli (/) 
 and Neish v. Graham (g), which had been decided shortly before, 
 by the Courts of Common Pleas and Queen's Bench, were discussed 
 and dissented from. 
 
 Grilkison v. Middleton (/) was the ease of a ship chartered for 
 a round voyage, at a freight partly payable in advance by a bill 
 for 900^. The charter provided that the master should sign bills 
 of lading as required by the charterers, without prejudice to the 
 charter party, and that the owners should have a lien upon the 
 cargo for all freight. She was loaded at Liverpool as a general 
 ship, the charterers themselves shipping certain goods which they 
 consigned to the defendants at Singapore. Bills of lading were 
 signed by the master for these goods, which made them deliverable 
 to the defendants, or their assigns, " paying freight for the said 
 goods here as per margin ; " and the clause, " Freight payable in 
 Liverpool one month after sailing, vessel lost or not lost," was 
 added. 
 
 The defendants had a house in Liverpool; and they took the 
 bills of lading, and advanced against them, before the ship sailed. 
 The bill of lading freight was not paid, and the charterer's bill 
 for 900/. was dishonoured before the ship arrived. It was held 
 that the owners were entitled as against the bill of lading holders 
 to a lien for the hill of lading freight, though not for the 900/. 
 
 In Neish v. Graham [g) the goods shipped at Glasgow were 
 consigned to defendants abroad, under a bill of lading which made 
 the freight payable by the shipper one month after sailing. This 
 bill of lading was handed to the defendants, who had a house in 
 Liverpool, in exchange for advances. 
 
 The Court considered that the case was governed by Gilkison v. 
 Middleton {h), and upheld the lien for the impaid freight. Erie, 
 J., said : " The general rule is that the shipowner has a lien, 
 unless there be anything in any document, by which he is bound, 
 to show an intention to waive it ; and the Court of Common Pleas 
 has said that a document Uke the present does not express 
 
 {e) 12 Moo. P. C. 361. ^^^ B^^ ^f ^.^ j ^ Tamyaco 
 
 (/) 26L. J.,0. P. 209. „; ^^ ^ ' ' 
 
 1;) 27 L. J., Q. B. 15. "■ ^""1'=°'^' 34 L. J., C. P. p. 268. 
 
LIENS FOE FREIGHT, ETC. 7^63 
 
 sucli an intention ; and I see no harm in holding that it does Sect. 663. 
 not." 
 
 It is on this last point that the decisions of the Privy Council 
 are in conflict with those of the other Courts, and the issue does not 
 seem to have been finally decided. 
 
 If the true test is whether such a contract is inconsistent with 
 a lien, it may he said that it is inconsistent where the bill of lading 
 provides that the payment of the freight is to be made by the 
 shipper, and that the delivery is to be to some other person in a 
 different place. That was the effect of the bill of lading in each 
 of the Privy Council cases. And as they were not affected by the 
 Bills of Lading Act, the consignees there were not liable for the 
 freight. Where, however, the bill of lading merely provides that 
 the freight is to be paid in , advance, or independently of the 
 arrival of the goods, that provision does not seem to be inconsistent 
 with a lien ; especially if the consignee is himself liable for the 
 freight, under the Act («) . 
 
 If, indeed, the biU of lading represents that the freight has been 
 paid, the shipowner is estopped from denying that, as against one 
 who has given value for the bUl of lading in ignorance that it was 
 not true. He cannot, therefore, claim the lien {k) . 
 
 664. The ease of Ex parte Nyholm, In re Child (l), shows that Not where 
 a lien given by a charter party, for the charter freight, does not abandoned, 
 attach for a part of the freight made payable on signing bills of 
 lading, where the voyage is entirely given up, and the bills of 
 lading are not signed. It was not enough that the goods had been 
 shipped, and that the shipowner was ready to give bills of lading. 
 The charterer had failed, and the trustee in the liquidation had 
 disclaimed all interest in the charter party {m). 
 
 In Nelson v. Association for the Protection of Commercial 
 Interests («) a lien was claimed, though the goods had been 
 abandoned by the shipowner on the voyage. They had been 
 shipped under a bill of lading by which the freight was payable at 
 the port of discharge (Liverpool), " ship lost or not lost." The 
 
 (i) See supra, a. 606. As to tlie effect B. D. 154. 
 of a custom at Liverpool preserving the {1} 43 L. J., Bank. 21. Cf. Thompson 
 
 lien, which was set up in Kirchner v. v. Small, 1 C. B. 328 ; 14 L. J., 0. P. 
 
 Venus, see supra, s. 200. 157. 
 
 (J) Howard t). Tucker, 1 B. & Ad. 712. (m) See the case stated supra, s. 563. 
 
 And see Gardner v. Treohmann, 15 Q. {«) 43 L. J., 0. P. 218. 
 
764 THE DELIVERY. 
 
 Sect. 664. gtip -vpas wrecked on the voyage ; and was abandoned by the 
 owners, who took no steps to save either ship or cargo. But they 
 claimed to have a lien on the cargo ; and they arranged with the 
 defendants that an agent who had been sent out by the defendants, 
 on behalf of the underwriters, to assist in saving it, should be 
 allowed to save and forward as much as he could, without prejudice, 
 and for the benefit of whom it might concern. On the arrival of 
 the goods at Liverpool the shipowners claimed a lien on them for 
 the full freight, without deduction of the salvage and forwarding 
 expenses, which in fact exceeded the freight. 
 
 It was held that they were not entitled to any Uen. Brett, J., 
 said : " Upon the arrival of the goods at the port of destination no 
 lien existed, for the goods were forwarded by other persons than 
 the plaintiffs." And he added : " If the shippers were bound to 
 pay the freight whether the ship was lost or not lost, there was no 
 lien at all, for the right to lien does not arise unless the payment 
 of the freight is to be on the delivery of the cargo; if the 
 freight is payable without delivery of the cargo, the lien does not 
 accrue." 
 
 No lien if 665. In Tamvaco v. Simpson (o), a ship was chartered for a 
 
 acceptance vovage with a carffo of coals to Alexandria : " The freight to be 
 running. paid on Unloading and right delivery of the cargo, less advances 
 in cash at current rate of exchange ; one-half . of the freight to be 
 advanced by freighter's acceptance at three months on signing 
 biUs of lading; owner to insure the amount and deposit with 
 charterers the club policy, and to guarantee same." 
 
 A bill of lading was given for the cargo making freight payable 
 as per charter party, and a receipt for half the freight was indorsed 
 upon it when the charterers had given the agreed acceptance. 
 
 The ship arrived at Alexandria while the charterer's acceptance 
 was still running ; but he had ia the meantime stopped payment, 
 and the master claimed a lien on the coal for the full chartered 
 freight. It was held, in the Exchequer Chamber, affirming the 
 Common Pleas, that there was no lien for the half covered by the 
 outstanding acceptance, and that the holder of the bill of lading 
 was entitled to the cargo on payment of the other half. 
 
 The question was there discussed whether there would have been 
 a lien for the whole freight, if the vessel had not arrived until after 
 (o) 34 L. J., 0. P. 268 ; in Ex. Ch., L, E., 1 C. P. 363. 
 
LIENS FOR PEEIGHt, ETC. 765 
 
 the aoceptance had become due and teen dishonoured (p) ; but it Sect. 665. 
 was not decided. 
 
 666. The expression "dead freight" is used to denote the com- Express lien 
 pensation payable to the shipowner when the charterer has failed freight, 
 to ship a full cargo. It may be payable at an agreed rate, but 
 more generally its amount has to be assessed, by ascertaining the 
 loss actually sustained by the shipowner, after taking into account 
 the further expenses he would have been put to if the whole cargo 
 had been shipped. 
 
 As we have seen, the shipowner has no lien for this compensation 
 apart from express contract. And it was at one time said that the 
 express Hen for " dead freight" could not apply to an unliquidated 
 claim to compensation (q). But it has been decided that the 
 agreed lien does cover such damages, although they may have to 
 be calculated, and though the calculation may be difficult (r). 
 
 667. With regard to the lien expressly given for demurrage. Express lien 
 
 for de 
 rage. 
 
 questions have frequently arisen, as we have already seen (s), as to 
 
 what that includes ; and particularly as to whether it extends to 
 damages for detention; and if so, whether to detention at any part 
 of the voyage, or only at some particular points of it. 
 
 In Francesco v. Massey (t) and Kish v. Cory (u) , where payment 
 for time on demurrage was expressly provided for, both at the 
 port of loading and at the port of discharge, the lien clause was 
 read to relate to demurrage at both ports. And in Bannister v, 
 Breslauer (x), it was held to relate to detention at the port of 
 loading, as weU. as at the port of discharge ; there being no pro- 
 vision at all for time on demurrage in the charter party. 
 
 In Harris v. Jacobs (y), the provision in the charter party was, 
 simply, " Demurrage to be at the rate of 30/. per running day ; " 
 and a lien was given on the cargo for " all freight, dead freight 
 and demurrage in respect thereof." The ship was detained at the 
 port of discharge owing to no "ready quay berth" having been 
 provided by the charterer, as stipulated for in the charter party. 
 
 {p) See "per Blackburn, J., L. R., 1 128. 
 C. P. at p. 372. (s) Supra, s. 648. 
 
 (j) Pearson v. aosohen, 33 L. J., C. P. (*) L. B., 8 Ex. 101. 
 
 265. And see Gray v. Carr, L. K., 6 (m) L. R., 10 Q. B. 553. 
 
 Q. B. 522. Cf. Clink ». Kadford, (1891) («) L. R., 2 C. P. 497. 
 
 1 Q. B. 625. (V) 15 Q. B. D. 247. And see the 
 
 (r) McLean ». Meming, 2 H, L. So. other cases cited stipra, s. 648. 
 
766 
 
 THE DELIVERY. 
 
 Sect. 667. It was held that the shipowners had a lien on the cargo for their 
 damages hy this detention. 
 
 Brett, M. E., said (s) : " It is true that the damage in this case 
 is not strictly demurrage, but it is in the nature of demurrage, and 
 the clause as to demurrage in a charter party is elastic enough, in 
 the ordinary construction of a charter party, to comprise such a 
 damage as this." 
 
 But in Lockhart v. Falk (a), where there was a demurrage clause, 
 relating only to the port of discharge, it was held that the lien for 
 demurrage did not include damages for detention at the port of 
 loading. And this has been recently followed by the Court of 
 Appeal in Clink v. Eadford (6), and in Dunlop v. Balfour (c). 
 
 Charter-party 668. The shipowner's liens under a charter party may be 
 
 served against modified by the biUs of lading which have been given for the 
 
 assF<?nee°of goods. As regards the charterer himself, the terms of a bill of 
 
 bills of lading, lading, given to him for goods which he has shipped, do not alter 
 
 poratedin the contract with him. The charter party is still the contract. 
 
 The master has not authority to qualify it. But as regards third 
 
 persons, not parties to the charter, the terms of the biU of lading 
 
 may greatly change the shipowner's powers over the goods. If 
 
 the bill of lading has been given with the shipowner's authority, 
 
 or by the master acting within the scope of his ordinary apparent 
 
 authority, and if goods have been shipped, or purchased from 
 
 shippers, upon the faith of it, the shipowner cannot avail himself 
 
 of rights given by the charter party, but not indicated in the bill 
 
 of lading, to the prejudice of the shipper or purchaser. He is 
 
 precluded from contradicting the terms of the bill of lading. 
 
 Thus he cannot claim a lien for more freight than is reserved by 
 the bill of lading, against a shipper or purchaser who is a stranger 
 to the charter party, and has taken the bill of lading without 
 notice of it; though by the charter party itself the owner may 
 have stipulated for a lien on all goods shipped, for the whole 
 charter freight (d). 
 
 («). 15 Q. B. D. at p. 261. {d) Gardner v. Trechmann, 15 Q. B. 
 
 (a) L. R., 10 Ex. 132 ; and Pederson D. 154 ; Pry v. Chartered Mere. Bank, 
 
 r. Lotinga, 28 L. T. 267. L. E., 1 C. P. 689 ; Shand v. Sander- 
 
 (S) (1891) 1 Q. B. 625. son, 28 L. J., Ex. 278 ; Foster «>. Colby, 
 
 (c) (1892) 1 Q. B. 507. See also 28 L. J., Ex. 81 ; GilMsoni). Middleton, 
 
 Gardiner v. Macfarlane, 26 So. L. E. 26 L. J., C. P. 209 ; Mitchell v. Soaife, 
 
 492 ; and see the matter further dis- 4 Camp. 298 ; Paul v. Birch, 2 Atk. 621. 
 
 cussed, supra, b. 648. In this last case the merchants shipped 
 
LIENS FOE FREIGHT, ETC. 767 
 
 "A hona fide indorsee of a Mil of lading having no notice Sect. 668. 
 whatever of any charter party, or any other freight to be paid 
 except that which is expressed in the bill of lading, and not - 
 colluding with any person to get an advantage that he is not 
 entitled to," is " entitled to the goods on payment of the freight 
 stipulated in the bill of lading " (e). 
 
 669. If, however, the bill of lading incorporates the terms of the When is lien 
 
 , , , 1 . 1 1 . 1 cc • for charter 
 
 charter party, as by using such comprehensive words as " paying freight incor- 
 freight for the same goods and all other conditions as per charter po'^**^'^ ^ 
 party," the owner's lien on the goods for the charter freight is 
 preserved (/). On the other hand, where the words used' are 
 " paying for the said goods as per charter party," they are read to 
 mean, paying for the particular goods at the rate mentioned in 
 the charter party. And the further liens given by the charter 
 are not preserved against those goods, if they have passed to third 
 persons (^r). 
 
 In Fry v. Chartered Mercantile Banls {h), a charter had been 
 made by which the cargo was to be delivered " on being paid 
 freight as follows : the ship to have a lien on cargo for freight, 
 3/. 10s. sterling per ton of 50 cubic feet measured in Shanghai, to 
 be paid to the captain or his agents on right and true delivery at 
 the port of discharge (the act of God, &o. &c. always excepted) , the 
 freight to be paid on unloading and right delivery of the cargo." 
 
 The charterers themselves shipped a quantity of ^ea as part of 
 the cargo, under a bill of lading which stated " Freight for the 
 
 said , payable in Liverpool as per charter party, with 
 
 primage and average accustomed." They then obtained an ad- 
 vance from the defendants upon this bill of lading and a letter of 
 hypothecation. No copy of the charter party was shown to the 
 defendants, nor did they know its contents ; but they were given to 
 understand that the freight was 70.s. a ton. On amval, all the 
 goods shipped by merchants other than the charterers were 
 
 under contract with the charterer ; and (/) Lamb v. Kaselaok, 19 Sc. L. R. 
 
 it was held that he could not bind the 336 ; Porteus v. Watney, 3 Q. B. D. 
 
 goods for the charter freight ; it does 223, 534 ; Gray v. Carr, L. K., 6 Q. B. 
 
 not appear whether any bill of lading 523. Cf. Serraiao v. Campbell, 25 Q. B. 
 
 was given to the shippers. D. 601 ; (1891) 1 Q. B. 283. 
 
 As to holder of a respondentia bond (jr) Smith v. Sieveking, 24 L. J., Q. 
 
 anteoedeutto shipment, Cargo ex Galam, B. 257; afBrmed, 5 E. & B. B89 ; Fry 
 
 33 L. J., Ad. 97. v. Chartered Merc. Bank, L. E., 1 C. P. 
 
 (e) Per PoUook, C. B., ia Foster v. 689. 
 
 Colby, 28 L. J., Ex. p. 86. (A) L. K., 1 C. P. 689. 
 
768 
 
 THE DELIVEEY. 
 
 Sect. 669. delivered on payment of freight according to their bills of lading. 
 This left an unpaid deficiency of the chartered freight greater in 
 amount than the freight payable on the tea, if calculated at the 
 70s. rate. The shipowners claimed a lien on the tea for the 
 balance of freight due under the charter party. Held, that they 
 were not entitled to it as against the defendants ; for the words in 
 the bill of lading referred to the charter party for the purpose of 
 determining the rate of freight to be paid, and only stipulated for 
 payment at that rate upon those goods. 
 
 In Grardner v. Trechmann («) the biU of lading m*ie " freight 
 for the said goods payable on delivery, at the rate of 22s. Qd. per 
 ton, &c. ; " and it contained the clause " all extra expenses in 
 discharging to be borne by receivers, and other conditions as per 
 charter party, dated the 23rd of July, 1883." The charter party 
 reserved a higher rate of freight, and gave a Uen for it expressly; 
 though, as it also provided for payment of the difference between 
 the chartered and bill of lading freights in advance, it was 
 considered, by Brett, M. R., and Lindley, L. J., that the lien so 
 given did not apply to that excess. It was held that the lien, if 
 any, for the charter-party freight was not preserved as against a 
 consignee under the biU of lading. 
 
 Brett, M. R., said : " If the right of lien ever existed it was 
 ousted by the terms of the bill of lading. There are many cases as 
 to what is brought into the bill of lading by this general reference 
 to the charter party. It brings in only those clauses of the charter 
 party which are applicable to the contract contained in the bill of 
 lading ; and those clauses of the charter party cannot be brought 
 in which would alter the express stipulations in the bill of lading. 
 Here there is an express stipulation that the goods shipped are to 
 be delivered on payment of a specific amount of freight ; and this 
 sum is fixed upon without allusion to any other amount of freight. 
 The general reference to the charter party would bring in a lien for 
 demurrage ; but it does not allow a lien to be brought in as to the 
 freight payable under the charter party." 
 
 Notioe of 670. These eases further show that an assignee for value of the 
 
 charter party bill of lading, to whom the contract in the biU of lading has 
 
 not sufficient, pagged, does not lose his right to have the goods free of liens of 
 
 the shipowner, not expressly reserved in the bill of lading, merely 
 
 (i) 15 Q. B. D. 154. 
 
LIENS FOE FREIGHT, ETC. 769 
 
 because he has notice of the existence of the charter party. Nor Sect. 670. 
 heoause he obtains his title from the charterer himself (/). 
 
 Where the assignee for value takes only as pledgee his inde- 
 pendence of the charter-party liens would seem to depend upon 
 estoppel, and therefore to depend upon absence of notice of the 
 Hens. But mere notice of the existence of a charter party is not 
 sufficient to put him on inquiry. 
 
 In ChappeU v. Comfort (m), Willes, J., said, that " If there is a 
 bill of lading given by the master, which gets into the hands of an 
 assignee for value, he is entitled to have the goods delivered to him 
 upon his fulfilling the terms mentioned in such bill of lading, and 
 he is not ordinarily in practice bound to refer to the charter party." 
 
 The qualification which has sometimes been made, that the 
 indorsee shall have taken without notice of the charter party, 
 seems therefore to be too stringent. It may perhaps be said, 
 generally, that when a shipper or an assignee of the bill of lading 
 is not a party to the charter party, it is immaterial that he knows 
 of its existence ; or even that he knows its very terms, unless they 
 show that the bill of lading has been improperly issued. If the 
 shipper or assignee has no notice that the bill of lading was not 
 authorized, and if it apparently falls within the ordinary authority 
 of the master, or person signing it, he may regard it as containing 
 the whole contract between himself and the shipowner, notwith- 
 standing any charter party which may exist {n). 
 
 671. In the same way the liens given by the charter party for f'i^^s for dead 
 
 •' ° . . freight and 
 
 dead freight, and demurrage, cannot generally be maintained as demurrage; 
 against shippers, or assignees for value, unless the bills of lading 
 expressly incorporate those terms of the charter party. 
 
 When the bill of lading expresses that the consignee is to pay 
 " freight and 'all other conditions as per charter party," the condi- 
 tions of paying the dead freight, and demurrage due under the 
 charter before getting delivery are brought in, and the Kens are 
 preserved (o). But if the bUl of lading merely provides that 
 
 {1} But cf . Small ■». Moates, 9 Bing. to sign bills of lading giving up charter- 
 
 679 ; Kern v. Deslandes, 30 L. J., C. P. party liens, see supra, s. 161. 
 297 ; post, B. 673. (o) Porteus v. Watney, 3 Q. B. D. 
 
 H 31 L. J., C. P. 58. And see per 534 ; Gray v. Carr, L. E., 6 Q. B. 622 ; 
 
 Lindley, L. J., in Manchester Trust v. Wegener v. Smith, 24 L. J., C. P. 25. 
 
 Fumess, (1895) 2 Q. B. at p. 546. Of. Serraino v. CampheU, 25 Q. B. D. 
 
 («) As to the authority of the master 501 ; (1891) 1 Q. B. 283. As to personal 
 
 C— C. 3 T> 
 
770 THE DELIVERY. 
 
 Sect. 671. freight shall be paid, or that the goods shall be paid for, " as per 
 charter party," the lien given by the charter party does not attach 
 either for dead frieght [p), or demurrage {q), as against bill of 
 lading holders who are strangers to the charter party. 
 
 Liens vaM 673. Where, however, the charter party itself was made on 
 
 against factor ,,,„., , ,..., „.^. , . ., 
 
 of charterer, behalf of the person to whom the bill of lading has been indorsed, 
 
 though not in his name, he is bound by its terms, and the liens 
 
 given by it (r). 
 
 And so, too, if the indorsement of the bUl of lading has been to 
 one who is acting as agent for the charterer. 
 
 In Gledstanes t\ Allen (s), part of the cargo was consigned to 
 the plaintiffs by the .charterers, for sale on their account ; and the 
 proceeds were to be set off against bills whieh had been drawn by 
 the charterers upon the plaintiffs, and accepted by them, but not 
 specifically against these goods. It was held that the plaintiffs 
 were in the same position as the charterers at the time of ship- 
 ment ; and that so long as the goods remaiaed the property of the 
 charterers, they were subject to the charter freight. 
 
 In Kern v. Deslandes {t), the goods were consigned to an agent 
 of the chai'terer to whom he was indebted. It was held that they 
 were subject to the lien for the charter freight. 
 
 Liens valid 673. Further, the shipowner is not bound by the terms of a bill 
 
 shipper if bill °^ lading in the hands of a shipper, or his agent, to the prejudice 
 of lading not Qf |-]jq charter-party liens, if that bill of lading was given without 
 
 authorized . o o 
 
 and shipper authority, and under circumstances which should have put the 
 inquired. shipper upon inquiry. And the same is probably true as against 
 
 an assignee who has taken the goods and bill of lading from one 
 who has shipped under such circumstances. 
 
 In Small r. Moates (m), a ship was chartered to one Wilkinson, 
 who was appointed master of her, for a round voyage, upon which 
 he was to take such cargoes as he chose. He was to pay freight 
 for the " use or hire " of the ship at a certain rate per registered 
 ton per month, by agreed instalments. The owner was to have a 
 
 liability of the consignee for demurrage P. 58 ; Smith v. Sievekiug, 24 L. J., Q. 
 
 at the port of loading, see supra, ss. 160, B. 267 ; 6 E. & B. 589. 
 
 637. (r) McLean v. Fleming, L. R., 2 H. L. 
 
 [p) Kerford v. Mondel, 28 L. J., Ex. Sc. 128. 
 
 303 ; McLean «>. Fleming, 2 H. L. Sc. (s) 12 0. B. 202. 
 
 128, per Lord Chelmsford, p. 133. \i) 30 L. J., C. P. 297. 
 
 (?) Ohappoll V. Comfort, 31 L. J., C. («) 9 Bing. 674. 
 
LIENS FOR FREIGHT, ETC. 
 
 771 
 
 lien upon the loading of the ship for all arrears of freight to heoome Sect. 673. 
 due under the charter, and for certain other payments. 
 
 Wilkinson received cargo from shippers for the return voyage ; 
 but not being able to fill up, he bought and shipped some rice and 
 saltpetre on his own account ; and to enable him to pay for them 
 he obtained an advance from Boyd, Beeby & Co., of Calcutta, 
 upon the security of the goods. By agreement with them he 
 signed bills of lading, which made the goods deliverable to his 
 own order or assigns on payment of a nominal freight ; and he 
 delivered these to Boyd, Beeby & Co. The question was whether 
 holders of these bills of lading, who acted as their agents, could 
 demand possession of the rice and saltpetre, free of the charter- 
 party lien, on payment of a reasonable freight upon those goods. 
 And it was held that the shipowner was entitled, as against them, 
 to the hen given by the charter party for the freight, and other 
 payments (ce). 
 
 {xj Tindal, C. J., giving the judgment 
 of tlie Court, said: — "That a shipper 
 putting his goods on board the ship, as 
 a general ship, upon, the faith of a bill 
 of lading signed by a person whom the 
 owner has allowed to bear the character 
 of master, would be entitled to receive 
 his goods at the end of the voyage upon 
 payment of the freight reserved by the 
 bill of lading, may be readily admitted, 
 as wen upon the reasonableness of the 
 proposition itself, as upon the authority 
 of the decided cases referred to by the 
 plaintiffs in the course of the argument. 
 No question, however, arises in this 
 case, as to goods the property of third 
 persons, originally loaded by them on 
 board the ship ; all such goods having 
 been duly delivered, so far as appears, 
 to the consignees, or the indorsees of the 
 bills of lading. But the present case is 
 reduced to the single inquiry, whether, 
 under the circumstances stated in the 
 special case, the rights of the plaintiffs 
 with respect to these goods are the same 
 (as contended for them) as the rights of 
 an indorsee for a valuable consideration 
 of a bill of lading given to a shipper, 
 who has loaded his goods on hoard the 
 ship, as a general ship, and without 
 notice of any agreements between the 
 charterer and the owner of the ship : 
 
 3d 
 
 and we are of opinion that the rights of 
 the plaintiffs are not the same with the 
 rights of shippers under the circum- 
 stances above supposed. 
 
 ' ' In the present case the rice and salt- 
 petre were purchased by WilMnson, the 
 master of the ship, and shipped by him 
 as dead freight on his own account in 
 January, 1828. From the moment these 
 articles were loaded on board, the lien 
 of the defendant attached upon them for 
 the freight and other payments, due to 
 him, under the express contract con- 
 tained in the charter party. If the 
 master had sold this cargo of rice and 
 saltpetre to a third person, but still 
 retained it in his possession on board 
 the ship, to be carried to London, it is 
 difl&cult to state the principle upon 
 which this lien, once vested in the ship- 
 owner, should have become divested 
 from him by such sale. Where goods 
 are put on board a general ship under 
 a bill of lading, and the owner of the 
 ship has by the charter party reserved 
 to himself a lien upon the goods laden 
 on board the ship, for his freight due 
 under the charter party, he has such 
 lien to the extent of the freight due for 
 these particular goods under the bill of 
 lading, whether the goods remain the 
 property of the same person during the 
 
 2 
 
772 
 
 THE DELIVERY. 
 
 Sect. 674. 
 
 Liens yalid if 
 Blipper has 
 colluded with 
 charterer. 
 
 674. In Faitli v. East India Co. (y), a ship had been chartered 
 to one Groooh, on hehalf of himself and one Sivrao, who was 
 appointed master of her for the voyage. The freight was at a 
 certain rate per ton for the voyage, payable partly on sailing out- 
 wards, and the remainder on delivery of the homeward cargo. 
 The outward cargo shipped by the charterers was consigned to 
 Colvins & Co., at Calcutta, as agents for Bazett & Co., merchants 
 in London, who had made advances to the charterers. The ship 
 also was consigned to Colvins & Co., and they had notice of the 
 charter party. 
 
 At Calcutta, Sivrac gave up the command of the ship, and 
 Colvins & Co. concurred with him in appointing another master. 
 They put her up as a general ship, and a homeward cargo was 
 shipped by various merchants, from whom bills of exchange were 
 taken for the freight, made payable to Bazett & Co. after delivery 
 of the goods. And biUs of ladiag for these shipments were signed 
 by the master, making them deliverable on payment of freight 
 " agreeable to freight bUl." This was contrary to the instructions 
 which had been given by the shipowner io Sivrac. 
 
 Colvins & Co. also shipped some goods which they bought on 
 account of the charterers, and, by arrangement, consigned them 
 under bills of lading to Bazett & Co., to whom the charterers were 
 still indebted. 
 
 voyage, or are sold, before delivery, to a 
 stranger ; or, in other words, the extent 
 of the shipowner's lien remains un- 
 altered, whether the bill of lading is 
 indorsed to a third person for a valu- 
 able consideration, or the ^goods are 
 deliverable to the original consignee. 
 And upon the same principle it would 
 seem to follow that if the lading of the 
 ship belongs to the charterer, and such 
 lading is subject to the shipowner's lien 
 for the freight, reserved by the charter 
 party, such lading, if it be sold by the 
 charterer after it is put on board, would 
 pass to the purchaser, subject to the Ken 
 which theshipowner had before the sale." 
 (This passage does not seem to be in 
 accord with the later decisions.) " It has 
 been urged in argument, that this con- 
 struction throws a considerable hardship 
 on Boyd, Beeby & Co., who acted in 
 ignorance of the existence of any charter 
 party, or of the reservations thereof. 
 
 But it seems a sufficient answer, that a 
 very little inquiry on their part would 
 have been sufficient to enable them to 
 discover the rights of the shipowner 
 reserved by the charter party. It wa« 
 surely no more than what common 
 attention to their own interest required, 
 to make some inquiry as to the terms on 
 which the master's goods were to be 
 carried, before they advanced money 
 on the security of the goods : more 
 particularly when the very form of the 
 bill of lading, signed by Wilkinson as 
 master, by which he appears to be also 
 the shipper of the goods, and to make 
 them deliverable to his own order on 
 payment of certain freight, was calculated 
 to provoke some inquiry as to the exact 
 relation in which Wilkinson stood with 
 respect to the ship." 
 
 {y) 4 B. & A. 630. Cf. Campion v. 
 Colvin, 3 Bing. N. 0. 17. 
 
LIENS FOR FREIGHT, ETC. 773 
 
 On the ship's arrival, the shipowner claimed liens on the goods Sect. 674. 
 shipped hy the other merchants for the freights payable in respect 
 of these goods ; and upon what had heen shipped by Colvins & Co. 
 for the whole charter party freight remaining unpaid. He was 
 held entitled to these liens (s). 
 
 In Eeynolds v. Jex (a), the ship was chartered for a voyage out 
 to Shanghai and home, at a lump freight of 3,000^. : payable 
 1,500/. on discharge of the outward cargo, and 1,500/. on discharge 
 of the return cargo. Bills of lading were to be signed at any rate 
 of freight without prejudice to the charter. At Shanghai the 
 master, requiring funds, obtained an advance on account of the 
 charter party from the charterer's agents there, upon the condi- 
 tion that the ship should take home certain cargo shipped by them 
 under bills of lading making the freight payable to their agents at 
 the port of discharge. Accordingly bills of lading were given by 
 the master in that manner, making the freight payable to the 
 plaintiffs at Liverpool. These bills of lading were sent to the 
 plaintiffs, together with the charter party ; and on arrival they 
 claimed to have the goods free of freight, on the ground that that 
 was payable to themselves. The amount of freight due on the 
 bills of lading was 981/. 9s. The balance of the charter party 
 freight, after deducting the advance, was 1,040/. lis. 9d. It was 
 held that the shipowner still had a lien on the cargo for the 
 balance of the charter freight. The master had no autliority to 
 
 (z) Abbott, 0. J., said: "Bytbevery witb tbe terms of tbe original cbarter 
 terms of this cbarter party, tbe freigbt party) can be allowed to bave effect, so 
 was to be paid on tbe deUyery of tbe as to deprive tbe owner of bis lien. If 
 goods. Then the question is, whether it could succeed, a gross fraud, as it 
 Gooch can, by a collusive bargain with seems to me, would be practised. 
 Colvins & Co. and other tliird persons, ***** 
 permit them so to ship goods as to I think, therefore, that the owner of the 
 deprive the owner of his lien. It is ship was entitled to » lien upon the 
 not necessary to decide what effect the goods put on board by the different 
 payment of the freigbt, if made before shippers abroad^ to the extent of the 
 tbe goods were laden on board in the freight due upon each of those consign- 
 East Indies, would have had. If such ments. The goods purchased by Col- 
 an event had happened, which, however, vins & Co., for Gooch and Sivrac, are in 
 is not very probable, perhaps the a different situation. I am of opinion 
 owners' lien for freigbt might have that, as between these parties, those are 
 ' been thereby defeated. But in this case to be considered as the goods of Gooch 
 the freight has not so been paid, and the and Sivrac, and in that case they are 
 only question is, whether this bargain liable to the lien of the owner of the 
 to receive the freight by freight biUs ship to the full extent of the freight due 
 made between Gooch and Sivrac and on the charter party." 
 Colvins & Co. (the latter being acquainted (a) 34 L. J., Q. B. 251 ; 7B.&S-.8&. 
 
774 THE DELIVERY. 
 
 Sect. 674. give bills of lading which made the freight payable to third per- 
 sons, and thus give up the owner's lien. 
 
 In The Canada (&) the master had, without authority, signed a 
 bill of lading for goods, making the freight on them payable at the 
 port of loading, where it was received by the charterer. Sir F. 
 Jeune held that the shipowners were entitled to a Ken for the 
 amount of freight named ia the biU of lading ; the charter freight 
 being unpaid. 
 
 Summary. 675. The general result seems to be, that where the master or 
 
 agent of the shipowner gives a bill of lading which does not so 
 incorporate the terms of the charter party as to make the liens 
 given by the charter party — whether for freight, dead freight, or 
 demurrage — part of the bill of lading contract, then those liens 
 cannot be maintained, 
 
 (1) As against strangers to the charter party who have shipped 
 
 under the bill of lading ; or 
 
 (2) As against assignees for value of the bill of lading, whether 
 
 from the charterers, or from strangers to the charter 
 
 party ; 
 even though they had notice of the existence of the charter party ; 
 unless the master had not authority to give the bill of lading, and 
 they had notice of that ; or unless they were put upon inquiry, and 
 that would have shown the absence of authority. 
 
 Are the 676. But where the shipper of goods in a chartered vessel ships 
 
 ikns'vaUd'^'^ Under a contract with the charterer only, and obtains no bill of 
 against goods lading or undertaking at all from the shipowner or his aarents, the 
 
 shipped under ° ... . r> > 
 
 agreement right of the latter to majntam the liens given by the charter party 
 terer? " against those goods would appear to be unqualified. In Paul v. 
 Birch (c), however, Lord Hardwicke held that,' though- the char- 
 terers could bind the goods for the freight agreed to be paid upon 
 them, they could not bind them to answer the charter freight. 
 The facts of that case are not very distinctly reported ; but the 
 shipping- agreement appears to have been made with the charterers; 
 and no bill of lading is mentioned. It would seem that if the 
 shipper knew he was dealing with the charterer of the ship, and 
 not with the owner, he would impliedly authorize the charterer to 
 subject the goods to the terms of the charter party. And, even 
 when the shipper has no such notice, it may be that by omitting to 
 
 (J) 13 T. L. R. 238 ; sup>-a, s. 161. (c) 2 At£ 621. 
 
LIENS FOR FREIGHT, ETC. 775 
 
 require a bill of lading from the master, or other agent of the ship, Sect. 676. 
 he would he precluded from saying that he had not authorized the 
 charterer to ship under the charter party (d) . 
 
 Charterers sometimes fill up the ship with goods of other persons, 
 to whom they give bills of lading or other acknowledgments ; they 
 themselves taking bills of lading from the master for the whole 
 cargo. If goods so shipped do not become bound by the charter 
 party Hens, a great opportunity for fraud on the shipowner seems 
 to be open. The shipper in such a case might have protected him- 
 self by requiring a bill of lading from the master, and might have 
 refused to take one which incorporated the terms of the charter 
 party, if he had not previously agreed to come under those terms [e) . 
 But the master may well have been unable to distinguish the goods 
 of. such a shipper from those of the charterer ; and so have been 
 unable to protect the shipowner. 
 
 In The Stornoway (/), a vessel which worked as a regular trader 
 between Lowestoft and London had been chartered by her owners 
 to Thompson & Co. at a certain rate per month ; and the charter 
 provided that the owners should have a lien on the cargo and 
 fi-eight for arrears of the hire. The owners paid the master and 
 crew, and apparently worked the ship; but Thompson & Co. 
 advertised her in their own names. The plaintifE shipped goods in 
 her at Lowestoft, for London, in ignorance of the charter party, 
 under an arrangement he had before made with the master that 
 his goods should be earned at a certain rate of freight. He did 
 not receive any bill of lading; but the agent of the steamer at 
 Lowestoft (Thompson & Co.'s clerk) gave him a receipt for the 
 goods. On arrival at London the goods were detained by the 
 owners for arrears of the hire under the charter party, Thompson & 
 Co. having failed. Sir E. Phillimore held that their claim to a 
 Hen could not be sustained. 
 
 In Tharsis Sulphur and Copper Mining Co. v. Culliford(£r), a 
 ship had been chartered to Malcolm & Co. for twelve months at 
 a certain sum per month, the owner to have a lien on the cargo 
 and freight for arrears of hire. Malcolm & Co. sub-chartered the 
 vessel to the plaintiffs for a voyage to Spain, and she proceeded 
 there and took on board a cargo from them. After it had been put 
 
 IA\ r* -™ 13 _ V T /-ii, • !• («! Peek v. Larsen, L. E., 12 Eq. 378. 
 
 («) Ct. per Burrough, J., Chnstie «;. M, ,,t t a ^ «» 
 
 T . -.^ _ \J) 41 1j. J., Ad. 27. 
 
 Lewis,2B.&B.p.441. (^ 22 W. R. 46. 
 
776 THE DELIVEEY. 
 
 Sect. 676. on board the captain required that the hills of lading should contain 
 a stipulation for payment of freight as per the original charter, and 
 that was inserted under protest. It was held that the owner was 
 not entitled to a lien on the cargo for the arrears of hire under that 
 charter. The goods had been taken on board under the sub-charter, 
 and after that it was too late to insist on the terms of the other. 
 
 ^at'keT'' ® ''"''■ ^^ order to maintain his lien the shipowner must keep pos- 
 
 possession of session of the goods, either ia his own hands or in the hands of his 
 goods. __^ ^ _ , 
 
 agents. Even if he parts with them to another who acts on his 
 
 instructions, but in such a way as to give the right of possession to 
 that other, as against himself, the lien will be terminated. Thus 
 it is competent to the master to land the goods, and still preserve 
 the lien, by placiag them in a warehouse over which he, or the 
 agent of the ship, has exclusive control. But if he puts them into 
 the warehouse of an independent person, who thereby acquires an 
 independent Hen for warehousing charges, it seems that the ship- 
 owner's lien is lost; even though the warehouseman undertakes not 
 to deliver to the consignee without being paid the freight (h) . 
 
 It has been held by the Court of Appeal in New York, that 
 where the shipowner warehouses the goods in the warehouse of a 
 stranger, contrary to the contract, he thereby puts an end to his 
 lien for freight. But that where the consignee is in default, in not 
 receiving the goods, the shipowner may store them, either in his 
 own warehouse or in his own name in the warehouse of a stranger, 
 without losing his lien. The creation of a further lien for ware- 
 house charges, made necessary in such a case by the default of 
 the owner of the goods, was held not to affect the shipowner's 
 lien (i). 
 
 Where the shipowner is required by law to land and warehouse 
 the goods in a particular place, the lien will continue while they 
 are so deposited. As they are taken out of his hands by operation 
 of law, the law preserves the charge for him (k). 
 
 Also, as we have seen {I), a shipowner is able, under the Mer- 
 chant Shipping Act, 1894, in ports of the United Kingdom, to 
 land goods and warehouse them subject to a stop for freight, which 
 takes the place of his lien, 
 
 {h) See Mors le Blanch v. Wilson, (m -Wilson v. Kymer, 1 M. & S. 157, 
 
 L. B., 8 0. P. 227. at p. 163. 
 
 (i) Western Transp. Co. v. Barber, 
 66 N. y. Hi (1874). W S. 475. 
 
LIENS FOR FREIGHT, ETC. 777 
 
 678. If the goods have been merely placed in warehouse pending Sect. 678. 
 a delivery to the consignee, even though the lien may be for the Lien may in 
 time lost, it seems that it will revive and re-attach upon the ship- revive°on^ 
 owner's retaking possession of the goods (m). regaining 
 
 possession* 
 
 But that is not so when the goods have been parted with, with 
 the intention of making delivery to their owner ; or of finally 
 parting with the control over them (»). Unless, indeed, they were 
 obtained from the shipowner by fraud (o) . 
 
 679. The shipowner may lose his lien by conduct which is in- Lien may be 
 consistent with its continuance {p). For example, by taking a bill sistent oon- 
 of exchange for the freight, payable at a future date {q) . "Where "^^ ' 
 
 the freight was payable by good and approved bills, and objection 
 was taken by the shipowners to one of the bills given, still the lien 
 was lost upon their negotiating the bill objected to (»•). Abbott, 
 0. J., said he considered the negotiation amounted to approbation 
 of the bill. 
 
 If, however, the bill be dishonoured at maturity, before the goods 
 have been delivered, the lien will, it seems, revive (s). 
 
 In the same way the lien is lost if the shipowner causes the goods 
 to be taken in execution and sold at his own suit it). He thereby 
 gives up possession to the sheriff. Or, again, it may be waived, 
 and lost, by the shipowner claiming to retain the goods upon some 
 different ground, and not under the Ken («<). 
 
 680. When the shipowner claims to detain the goods on the Tender may 
 ground that he has a lien on thena for more than the freight, e. g., 
 for dead freight also,' the consignee is not relieved from the neces- 
 sity of paying the freight before being entitled to the goods, 
 although that further lien maybe claimed improperly («). He 
 ought, therefore, to tender the freight. 
 
 But the need for this tender may be waived. If the shipowner's 
 conduct is such as to show that a tender of the freight alone would 
 
 {m) See Levy v. Barnard, 8 Taun. 149 ; 497 ; Bunney v. Poyntz, 4 B. & Ad. 568. 
 Guuu V. Bolokow, L. R., 10 Ch. 491. (s) Gunn v. Bolokow, L. R., 10 Ch. 
 
 («) Sweet V. Pym, 1 East, 4 ; Hartley 491 ; Byles on Bills (ISth), p. 392 ; 
 
 V. Hitohooofc, 1 Stark. 408. Benj. on Sale (3rd), p. 813. 
 
 (o) Wallace v. Woodgate, R. & M. [t] Jacobs v. Latour, 5 Bing. 130. 
 
 193. (m) Boardman ». Sill, 1 Camp. 409, n ; 
 
 {p) See Fisher on Mortgages (4th), Dirks v. Richards, Car. & M. 626. But 
 
 S3. 1314—1316. see White v. Gainer, 2 Bing. 23. 
 
 (q) Hewison v. Guthrie, 2 Bing. N. C. [x] Soarfe v. Morgan, 4 M. & W. 270 ; 
 
 755 ; Byles on Bills (13th), p. 391. Allen v. Smith, 31 L. J., C. P. 306. Cf. 
 
 (r) Homcastle v. Farran, 3 B. & A. Ashmole v. Wainwright, 2 Q. B. 837. 
 
778 
 
 THE DELIVERY. 
 
 Sect. 680. 
 
 Lien for 
 charter 
 freight not 
 lost by de- 
 Kvering and 
 oalleoting 
 freight under 
 bOls of lading. 
 
 Effect of lien 
 where per- 
 formance of 
 the contract 
 becomes 
 impossible. 
 
 be insufficient, tlie rigM of tte cargo owner to sue him for 
 conversion and detention is complete thougli no tender has been 
 made {y). 
 
 And that may bo so, although it may appear that the consignee 
 was not willing to pay all the sums for which the owner was law- 
 fully entitled to a lien on the goods. Thus in The Norway (z) the 
 master had claimed too much freight, while the owners of the cargo 
 sought, without justification, to deduct certain claims from the 
 freight ; yet it was held that they might recover damages against 
 the shipowner for not delivering, without having tendered what 
 was due, on the ground that the demand of the master was so made, 
 as to amount to an announcement that it would be useless to tender 
 any smaller sum. 
 
 Dr. Lushington further laid it down in that case (a) that the 
 master ought to produce all papers necessary to enable the con- 
 signee to calculate the amount to be tendered; and that if this 
 be not done the consignee is not to be prejudiced by a failure 
 to tender. 
 
 681. In Christie v. Lewis (b), it was held that the owner's lien 
 for the charter party freight, as against the charterer, was not lost 
 upon his delivering the cargo to the consignees under the bills of 
 lading which had been given for it. The owner had collected the 
 freights reserved by the bills of lading from the consignees, and it 
 was held that he was entitled to retain those monies towards pay- 
 ment of the charter freight. 
 
 682. The question whether the shipowner's lien for the freight 
 is terminated upon the contract becoming impossible of perform- 
 ance has been very little considered in our Courts. It seems clear 
 that under some circumstances that must be so ; for instance, 
 where the ship has been wrecked, and the shipowner has no means, 
 or no intention, of carrying the cargo on to its destination (c). On 
 the other hand, the mere fact that the exact performance of the 
 contract has for the time become impossible wHl not put an end to 
 the lien, if another mode of substantially performing the contract 
 is open to the parties. And if the shipowner tranships the goods, 
 
 (b) The Norway, 12 L. T. at p. 61. 
 (b) 2 B. & B. 410. 
 
 [y) The Norway, 12 L. T. 57 ; 13 
 L. T. 50 ; Kerford v. Mondel, 28 L. J., 
 Ex. 303 ; Jones v. Tarleton, 9 M. & W. 
 
 675. 
 
 (s) 12L.T.57; 13L. T. 50. Cf.The 
 Euergie, L. E., 6 P. 0. 306. 
 
 [c) Nelson v. Association for the Pro- 
 tection of Commercial Interests, 43 L. J., 
 C. P. ■218. 
 
LIENS FOE PEEIGHT, ETC. 779 
 
 he may perhaps exercise the lien through, or transfer it to, the Sect. 683. 
 owner of the other ship (d). 
 
 In The Teutonia (c), a Prussian vessel under charter had been 
 ordered by the charterer to discharge at Dunkirk; but war had 
 broken out between France and Germany after the order was 
 given, ' and it thus became illegal, and practically impossible, for 
 her to go there. She was therefore taken to Dover. Eut the 
 master refused to deliver the cargo to the charterers at that place 
 unless they paid the freight. The charter party provided that the 
 discharge might be at any safe port in Great Britain, or on the 
 Continent between Havre and Hamburg. It was held that the 
 contract was not dissolved by the impossibility of delivering the 
 cargo at Dunkirk, and that the shipowner had not lost his chartered 
 freight, nor his lien for it. 
 
 683. The general rule of law is, that one who has a lien on Expenses of 
 goods, and incurs expenses in keeping them in order to preserve Hen not°^ 
 that lien, is not entitled to claim those expenses from the owner of recoverable, 
 the goods (/). So that a shipowner is not necessarily entitled to 
 charge the consignee of goods with the warehousing charges, or 
 other expenses he may have incurred in preserving his lien. 
 
 But where goods are in a bailee's hands, under a contract which 
 requires the bailor to pay for the place in which they are lodged 
 according to the time they remain there, it seems that the bailee 
 may charge for the whole time during which the goods remain, 
 although that may be prolonged by his claims to a lien for charges 
 under the contract (g') . And thus it would seem that where a 
 shipowner reasonably keeps cargo on board to preserve his lien for 
 freight, &c., he may claim demurrage during the detention ; or 
 time-freight, where the ship is under a time-charter (A). 
 
 (<^ See per Cookbum, 0. J., in Mat- These bad been done under a contract 
 
 thews V. Gibbs, 30 L. J., Q. B,, 65, for a lump sum. No grounds for in- 
 
 p. 63. ferring' a contract to pay dock rent 
 
 (e) L. E., 4 P. C. 171 ; affirming, could be found. 
 L. E., 3 A. & E. 39i; cited supra, (A) In MbUer v. Young, (24 L. J., 
 
 s. 240. Q. B. 217 ; reversed on another point, 
 
 (/) Somes «. Britith Empire Shipping 25 L. J., Q. B. 94), the Q. B. allowed 
 
 Co., 27 L. J., Q. B. 397; 28 L. J., damages for detention during the exer- 
 
 Q. B. 220 ; 8 H. L. 0. 338. cise of a lien for freight. In Thorsen?;. 
 
 (?) See Eex v. Humphrey, M'Clee. & McDowaU (19 Sess. Ca. (4th), 743), the 
 
 T. 173. In Somes' case, supra, the discharge was stopped for the purpose of 
 
 claim was by a shipwright for dock rent enforcing payment of freight under a 
 
 during a detention by him of the ship, lien given by the charter party, but the 
 
 under a lien for the price of the repairs. freight was payable " after unloading." 
 
780 THE DELIVEEY. 
 
 Sect. 683. Further, the consignee is bound by the contract to take delivery 
 Except as in the agreed time, or with reasonable diligence, as the ease may 
 be; and if the expenses of taking care of the cargo have been 
 incurred owing to a failure on his part to do this, he is liable to 
 repay them as damages for his breach («). Those damages must, 
 however, be only such as the shipowner was reasonably compelled 
 to incur : he is not justified in detaining the ship in order to use 
 her as a warehouse for the goods, when he might have landed and 
 warehoused them {]{). 
 
 Bills of lading often contain express clauses empowering the 
 master to land the goods at the consignee's risk and expense, in 
 case of his default in taking delivery. It has been held that such 
 a power is only in aid of the shipowner, and that the master is not 
 bound to exercise it {I). But if the shipowner is claiming 
 damages, the fact that he was empowered to act in such a way as 
 would mitigate the loss may be material. 
 
 Demurrage was disallowed because the 227. The discussion in tiie last case 
 
 lien was claimed improperly. In the showed, negatively, that the right to 
 
 U. S. it has been held that demurrage claim for detention is not necessarily at 
 
 cannot be claimed during enforcement an end when the cargo is kept on board 
 
 of the lien unless timely notice has been to preserve a lien. The jury had been 
 
 given, so as to enable the charterer to apparently influenced by a direction of 
 
 findsecurity; TenThousand and Eighty- the judge, that the shipowner would 
 
 two Oak Ties, 87 Fed. Eep. 935. have lost his lien if he had landed the 
 
 (j) Houlder v. General Steam Nav. cargo. The Court discussed the accuracy 
 
 Co., 3 F. & F. 170 ; G-. N. EaU. Co. v. of this direction ; but appear to have 
 
 Swaffleld, L.E., 9Ex. 132. Cf. Stewart assumed that the retention of the lieu 
 
 V. Eogerson, L. E., 6 C. P. 424. was a matter which might be taken into 
 
 [k) Per Crompton, J., Eriohsen f. account. 
 Barkworth, 28 L. J., Ex. 95, p. 96; (?) Per Lindley, L. J., in Hick v. 
 
 Mors le Blanch v. Wilson, L. R., 8 C. P. Eodooanaohi, (1891) 2 Q. B. at p. 632. 
 
CHAPTER XIX. 
 
 REMEDIES OF FREIGHTERS — IN REM AGAINST THE SHIP — 
 AGAINST COLLIDING SHIPS. 
 
 781 
 
 Remedies in rem. 
 
 BEOT. 
 
 Meaning of action in rem 684 
 
 Admiralty Court Act, 1861, s. 6 . . 685 
 
 Applies where goods have or should 
 hare been brought into an 
 English port by the vessel pro- 
 ceeded against 686 
 
 The port may be a port of call only 
 — Or a port of refuge 687 
 
 The breach must relate to goods 
 which were or should have been 
 carried into the port 688 
 
 Damage to the goods not necessary 
 — Breach of contract of Carriage 
 not necessary 689 
 
 Who may sue ? — Claims under con- 
 tract 690 
 
 Claims for breach of duty, apart 
 from contract 691 
 
 County Courts Adm. Jur. Acts, 
 1868 and 1869 692 
 
 Jurisdiction under, how far limited 
 to that of High Court of Admi- 
 ralty 693 
 
 Jurisdiction under Act of 1869 not 
 BO limited — Shipowner may pro- 
 ceed against cargo 694 
 
 Effect of sect. 2 of Act of 1869 695 
 
 Can the ship be proceeded against 
 where owner not personally 
 liable ? 696 
 
 Jurisdiction in rem exercised over 
 foreign ships — ^Foreign judg- 
 ments in rem enforced 697 
 
 SECT. 
 
 Proceeding in rem originally based 
 on maritime lien — Nature of 
 maritime lien 698 
 
 Maritime lieu not generally con- 
 ferred by statutes giving remedy 
 in rem 699 
 
 The charge given by the proceed- 
 ing in rem takes effect from the 
 arrest 700 
 
 Remedy only available so far as 
 property continues that of person 
 liable 701 
 
 Collisions. 
 Actions for wrongs — Underwriters 
 
 entitled to benefit 702 
 
 Collisions 703 
 
 Where both ships to blame — ^Eule 
 
 of half-damages 704 
 
 Claim against carrier not affected 
 
 — Exceptions protect carrier 
 
 against claims in tort — Where 
 
 both ships belong to same owner. 705 
 Proceedings may generally be in 
 
 rem 706 
 
 Not unless owner or person in 
 
 control liable 707 
 
 Jurisdiction exercised over foreign 
 
 ships 708 . 
 
 Liability of foreign ships, by what 
 
 law determined 709 
 
 Where collision has occurred within 
 
 a foreign jurisdiction 710 
 
 Remedies in rem. 
 684. In addition to the. ordinary rights of personal action for Meaning, of 
 breaches of the contract of carriage, or for wrongful acts done *°*'°'' '" ''""• 
 
782 THE DELIVERY. 
 
 Sect. 684. against the goods, freighters and shipowners may also, in certain 
 cases, enforce their claims by proceeding in rem against the 
 property of the other party. 
 
 Ey means of this remedy the person suing can at once obtain the 
 property proceeded against as security for the claim, before that 
 has actually been established and'judgment obtained. The juris- 
 diction to enforce claims in this manner lies in the Probate, 
 Divorce and Admiralty Division of the High Court of Justice («), 
 and in certain county courts, and other inferior courts, which have 
 Admiralty jurisdiction. The procedure will be found discussed in 
 works on Admiralty Practice (6). 
 
 Briefly, the claimant is enabled to arrest the ship or other 
 property, and to have it detained in the custody of officers of the 
 law, until his claim has been adjudicated upon, or until security 
 by bail has been given for the amount, or for the value of the 
 property proceeded against, where that is less than the amount of 
 the claim. " The aiTest enables the Court to keep the property as 
 security to answer the judgment, and unailected by chance events 
 which may happen between the arrest and the judgment" (c). 
 
 It concerns us here more especially to point out in what cases 
 this remedy is open to freighters, and in what cases they are left 
 to the ordinary remedies, by jtidgment in personam and execution. 
 Where there is a remedy in rem as well as in personam the claimant 
 may resort to either in the first instance, and, if not thereby fully 
 satisfied, may afterwards resort to the other (d). And where pro- 
 ceedings have been taken in rem the Court can enforce judgment, 
 against a defendant who appears, for an amount exceeding the 
 value of the res, or the bail which represents it, if that defendant 
 is personally liable for the excess (e) . 
 
 Admiralty 685. This jurisdiction of Courts of Admiralty in rem, in matters 
 
 1861^B e!' arising out of contracts for the carriage of goods, depends upon 
 recent statutes (/). 
 
 (ffl) Jud. Act, 1873, ss. 16, 34. The JoLn and Mary, Swa. 471. And 
 
 (i) "Will. & Bruce, Adm. Pr., Part II. per Sir J. Hannen in The CeUa, 13 
 
 Chap. I. ; Eosooe, Adm., Part II. P. D. 82, p. 85. 
 
 (c) Per Fry, L. J., in The Cella, 13 («) The Dictator, (1892) P. 304 ; The 
 
 P. D. 82, p. 88. The property is held Gemma, (1899) P. 285. 
 
 for all creditors of the same clasa who (/) See the history of the jurisdiction 
 
 assert their claims in time; TheAfricano, of the Admiralty Court given in Will. 
 
 (1894) P. 141. & Bruce, Adm. Pr., Introd. ; and per 
 
 {d) The Orient, L. R., 3 P. C. 696, Dr. Lushington in The Ironflides, 31 
 
 p. 702 ; The Zephyr, 11 L. T. 351 ; L. J., Ad. 129, p. 131. 
 
REMEDIES IN REM. 783 
 
 By the Admiralty Coui-t Act, 1861, sect. 6, it was enacted Sect. 685. 
 that : — "The High Court of Admiralty shall have jurisdiction over 
 any claim by the owner or consignee or assignee of any hill of 
 lading of any goods carried into any port in England or Wales, in 
 any ship (g), for damage done to the goods, or any part thereof, 
 by the negKgence or misconduct of, or for any breach of duty or 
 breach of contract on the part of, the owner, master or crew of 
 the ship, unless it is shown to the satisfaction of the Court that at 
 the time of the institution of the cause any owner or part owner is 
 domiciled (h) in England or Wales : provided always, that if in 
 any such cause the plaintiff do not recover 20f. he shall not be 
 entitled to any costs, charges or expenses incurred by him therein, 
 unless the judge shall certify that the cause was a fit one to be 
 tried in the said Court." 
 
 And by sect. 35, " The jurisdiction conferred by this Act on 
 the High Court of Admiralty may be exercised either by proceed- 
 ings in rem, or by proceedings in personam." 
 
 The object of the enactment was thus described by Dr. Lushing- 
 ton: "The statute is remedial. The short delivery of goods 
 brought to this country in foreign ships, or their delivery in a 
 damaged state, the goods being the property of British merchants, 
 was frequently a grievance — an injury without any practical 
 remedy ; for the owners of such vessels being resident abroad, no 
 action could successfully be brought in a British tribunal, and to 
 send the British merchant, who had sustained a loss, to commence 
 a suit before a foreign tribunal, and probably in a distant country, 
 could not be deemed a practical and effectual remedy. And this 
 enactment, therefore, was intended to operate by enabling the party 
 aggrieved to have recourse to the arrest of the ship bringing goods 
 delivered short, or damaged, in cases where, from the absence of 
 the defendant in foreign parts, the common lawtribunals could not 
 afford effectual redress " («). 
 
 686. That the Court may have jurisdiction under the Act it is Applies where 
 
 essential that the goods in respect of which the claim is made, or fhould have°'^ 
 
 some of them, shall have been brought into a port of England or JXan'""^^* 
 
 Wales in the ship which is proceeded against, or that there shall English port 
 
 have been a breach of contract or duty in not bringing them in proceeded 
 
 a,gaiast. 
 (?) By sect. 2, " ship " includes "any (A) The Pacific, 10 L. T. 641. 
 
 description of vessel used in nayigation (i) The St. Cloud, 8 L. T. 54, at 
 
 not propelled by oars." p. 55, 
 
784 THE DELIVERY. 
 
 Sect. e86. her. So that if the goods have been properly transhipped after 
 being damaged, and brought to their destination in another ship, 
 the original ship cannot be arrested on coming within the jurisdic- 
 tion, although the owner may be liable for the damage {j). 
 
 " I am of opinion that the jurisdiction conferred upon this Court 
 is confined to the arrest of the ship which brings any goods into 
 any port in England or "Wales, and that to found such jurisdiction 
 the ship itself proceeded against must have brought some part of 
 the cargo into a port of England or Wales. I think to authorize 
 the Court to make any vessel responsible for damage of this kind, 
 the plaintiff must be the owner, consignee, or assignee of a bill of 
 lading of some goods carried into a port of England or Wales in 
 some particular ship when the damage has been done by the owner, 
 master, or crew of the same ship. The ship means the particular 
 ship " {k). 
 
 But it is enough that some of the goods comprised in the bill of 
 lading have been brought into the port. Thus, the Court can 
 entertain a claim for the non-delivery of goods which ought to have 
 been, but were not, brought in (/). And Dr. Lushington appears 
 to have held that whenever the ship in which the goods were 
 agreed to be carried, and on which they were shipped, reaches an 
 English port, the jurisdiction attaches ; unless the goods have been 
 transhipped (m). 
 
 The port may 687. The " port of England or Wales " into which' the goods are 
 call only. carried need not be the intended port of discharge. It is, at any 
 rate, sufficient if it was an intended port of call ; although the dis- 
 charge may afterwards take place abroad. 
 
 " Cases must frequently arise at ports of call and intermediate 
 ports, giving occasion for the remedy it was intended to afford to 
 English merchants against foreign shipowners, by proceedings in 
 the English Court of Admiralty. Besides the instances where 
 causes of action have arisen before the arrival of the ship at such 
 ports, take the cases of damage done to goods, or of unjustifiable 
 delay, in the port of call itself ; or the case of a ship bound, without 
 calling for orders, to go direct to London to discharge her cargo, 
 and the master improperly putting into some other English port, 
 and refusing to take the cargo on. Instances of this kind would 
 
 [f] The Ironsides, 31 L. J., Ad. 129. [T) The Danzig, 32 L. J., Ad. 16i ; 
 
 (k) Per Dr. Lushington, The Iron- The Emilien Marie, 32 L. T. 435. 
 31 L. J., Ad. 129, p. 132. («?) The Danzig, supra. 
 
REMEDIES m REM. 78^ 
 
 certainly be within the scope of the mischief intended to he dealt Sect. 687. 
 with ; and their Lordships are reluctant in construing the Act so 
 to interpret words, large enough in their ordinary meaning to 
 embrace such cases, as to exclude them from its operation, and thus 
 leave foreign masters who may have broken their contracts free to 
 take away their ships from this country in the sight of English 
 consignees, who would be powerless, as they were before the Act, 
 
 to stop them In this case the parties contemplated that 
 
 the goods would, or at least might, be carried into and delivered in 
 an English port, and the biU of lading signed by the master at 
 Eangoon, iu pursuance of a charter party made in London, so pro- 
 vided. The master ia fact put into the port" of Falmouth for orders, 
 in part fulfilment of the contract of carriage, and might, in further 
 fulfilment of it, have been ordered to discharge there, or at some 
 other English port. Their Lordships think that under these cir- 
 cumstances the jurisdiction, at least in respect of then existing 
 causes of suit, arose when the goods were so carried in the port of 
 Fahnouth, and was not taken away when the ship was subsequently 
 ordered to a foreign port to be discharged " (w). 
 
 If the jurisdiction has once attached it continues, and may be 
 exercised, after the ship has left the port, if she again comes within 
 reach of the process of the Court (o). 
 
 Further, the Court may have jurisdiction although it was not Or a port of 
 contemplated that the vessel would put into any English port. In ^^ "^^' 
 The Bahia (p), the voyage was from New Tork to Dunkirk, in 
 France; and the ship was French. Owing to damage sustained 
 on the voyage she put into Eamsgate ; and as it was found that 
 the cost of repair would exceed the value of the ship, the master 
 sought to abandon to the underwriters ; the cargo was discharged 
 and warehoused, and a dispute arose as to the freight to be paid. 
 
 Dr. Lushington said : " Here, then, is a cargo originally destined 
 to be imported into the port of Dunkirk ; in consequence of acci- 
 dent the ship puts into the port of Ramsgate, and the master 
 refuses to carry on the cargo to Dunkirk or to give delivery at 
 Eamsgate. That this is a great grievance cannot be denied, and 
 the Court ought to give, if necessary, great latitude to the con- 
 struction of the Act of Parliament, in order to extend the remedy 
 to this case. However, it appears to me that this section was care- 
 
 (») The Pieve Superiore, L. E., 6 (o) The Pieve Superiore, supra. 
 
 P. C. 482, at pp. 490, 491. {pj Br. &; L. 38 ; 12 L. T. 146. 
 
 C. — C. 3 E 
 
786 THE DELIVEKY. 
 
 Sect. 687. fully ■worded to give the utmost jurisdiction in the matter. It uses 
 the words ' carried into any port in England,' and does not use 
 the word ' import.' I apprehend the phrase ' carried into ' was 
 advisedly used instead of the word ' import.' Then it goes on, ' or 
 for any breach of duty or breach of contract.' Here there is a 
 clear breach of contract and breach of duty. I am of opinion that 
 without any violence of construction the statute applies to this 
 case" {q). 
 
 And the same has been held where the ship has put into an 
 
 English port for safety, and has failed to proceed to her foreign 
 
 port of discharge (/-). 
 
 The breach 688. The Act does not give jurisdiction to the Admiralty Court 
 
 goods which in regard to breaches of contract or duty which do not relate to the 
 
 should'have goo^s which were, or which ought to have been, carried into the 
 
 been carried Eufflish port. So that where a vessel had been chartered to take a 
 
 mto the port. o j. 
 
 cargo of coals outward from OardiS to Havilan, and thence to pro- 
 ceed to Moulmein, and bring home a cargo of timber on account of 
 the charterers. Dr. Lushiagton held that the Court had no juris- 
 diction in respect of a claim for the non- delivery of some of the 
 coals at Havilan (s) . 
 
 In The Dannebrog {t) the claim was by the charterer for damages 
 for the failure of the ship to proceed to the agreed loading place, 
 abroad, where she was to have taken in a cargo for England ; in 
 consequence of which default extra expense and delay were incurred 
 by the charterer in loading her. 
 
 Sir El. PhiUimore said : " It cannot be denied that some limita- 
 tion, some reasonable limitation, must be placed on the meaning of 
 the words ' breach of contract.' It cannot be that the legislature 
 intended the Court to exercise jurisdiction over every breach of 
 contract on the part of the owners, master, or crew of a ship. The 
 Court has now to decide whether the provisions of the section in- 
 clude a case in which the breach of contract was committed before 
 the goods were put on board. I have already said, I feel great 
 difficulty in arriving at a satisfactory decision upon the construction 
 of the statute, but I do not think that the statute can relate to such 
 a case as that now before the Court " (m). 
 
 ((/) Br.&L.atp.62. Cf. The Princess Ad. 97. 
 
 Eoyal, L. E., 3 A. & E. 41. (i!) L. R., 4 A. & E. 386. 
 
 ()•) The Patria, L. E., 3 A. & E. 436 ; {«) L. E., 4 A. & E. 389. Cf. The 
 
 The Teutonia, L. E., 4 P. C. 171. Felix, L. E., 2 A. & E. 273 ; The Santa 
 
 (s) The Kasan, Br. & L. 1 ; 32 L. J., Anna, 32 L. J., Ad. 198. 
 
REMEDIES IN REM. 787 
 
 689. It is not, however, necessary that there should have been Sect. 689. 
 actual damage to the goods, in order to found the jurisdiction. Damage to 
 
 In The Princess Eoyal («), the cargo, of timher, was shipped at neoeasary.'^" 
 Elsinore for West Hartlepool. The claim of the assignees of the 
 bill of lading was for damages, on the ground that the crew had 
 wrongfully injured and abandoned the ship on the voyage ; that 
 she had been picked up as derelict by salvors, who brought her 
 into Middlesborough, in consequence of which salvage had become 
 payable ; and that the cargo was never delivered in accordance with 
 the bill of lading. Sir E. PhUlimore held that he had jurisdiction 
 to deal with the claim, although there was no allegation of damage 
 to the cargo itself. 
 
 Nor, it would seem, need the breach of duty be a breach of the Breach of 
 contract of carriage. It was held in The Tigress {y) that an unpaid carriage not 
 vendor (on whose order the shipment was made), who had right- '^^"^^s*"'?'' 
 fully attempted to stop the goods in transit, might proceed against 
 the ship, under the Act, for damages for a refusal by the master to 
 deUver the cargo to him. 
 
 Dr. Lushington said : " This action, therefore, is sustainable if it 
 charge a breach of duty or of contract; and if it shall appear 
 eventually that the master was bound to deliver the goods, as 
 claimed by Messrs. Lucy, I should hold the refusing so to do was 
 a breach of duty, and a good cause of action against the ship 
 under this statute " (s). 
 
 690. It would seem that the Act does not enable the Court of Who may 
 Admiralty to entertain a claim "for a breach of the contract of 
 carriage, unless the party suing has himself a right to complain of 
 
 the breach. Sect. 6 enables any " consignee or assignee of any bill 
 
 of lading " to sue, but only in respect of claims which he would 
 
 have apart from that Act. It does not purport to give new rights 
 
 of action, but only a new form of remedy. 
 
 If, then, the claim made is under the contract in the biU of lading. Claims under 
 , . T . 1 1 , j_i • 1 J. i! -J. contract. 
 
 the consignee or assignee must be entitled to the rights oi suit 
 
 under that contract ; either as an original contracting party, or by 
 
 virtue of the Bills of Lading Act, 1855. 
 
 There has, however, been some difference of opinion on this point. • 
 
 Dr. Lushington discussed the matter in The St. Cloud (a), and 
 
 decided that a bare assignee of the biU of lading, to whom the pro- 
 
 {«) L. R., 3 A. & E. 41. (2) 32 L. J., Ad. p. 100. 
 
 {«) 8 L. T. S4. 
 3e2 
 
788 • THE DELIVERY, 
 
 Sect. 690. perty in the goods has not passed, is not enabled to sue on the 
 contract. He said : " The 6th section declares that the Court shall 
 have jurisdiction over any claim by the owner, consignee, or assignee 
 of the goods ; but it does not enact that there shall be a right of 
 action in all cases by the assignee. I think that in aU probability 
 the true construction of the words ' any claim' must be held to be 
 any claim lawfully existing at the time of the passing of the 
 Act"(&). 
 
 The same view appears to have been taken by the Privy Council 
 in The Freedom (e). Sir J. Napier, in delivering the judgment, 
 said : " By this section a new remedy has been given to those who 
 have a right of suit ia any of the cases specified." 
 
 On the other hand. Sir E. Phillimore took a different view. In 
 The Nepoter {d), the claim was for damage to goods by leakage 
 from other parts of the cargo, and it was found that certain needful 
 precautions to prevent the accumulation of this leakage had not 
 been taken by the master. The point was taken for the defence 
 that the consignees named in the bill of lading, who were suing, 
 were not persons to whom the property ia the goods had passed. 
 But Sir E. Phillimore held that that was not a valid objection. 
 He considered that, for the protection of absent owners, it was 
 " intended to give every consignee or assignee of a bOl of lading a 
 capacity to sue in this Court for damage done to the goods men- 
 tioned in the bill." 
 
 And in Sewell v. Burdick (e), in the House of Lords, conflicting 
 opinions were expressed. Lord Selborne (/) agreed with the view 
 that the Admiralty Court Act only gave jurisdiction where " there 
 was, independently of that statute, a right of action or suit." But 
 Lord Blackburn [g) considered it to be " contrary to all rules 6f 
 construction to interpolate any reference to the BiU of Lading 
 Act into the Admiralty Act" ; and thought that the latter Act 
 might be satisfied if the consignee or assignee had a property in 
 the goods. 
 
 Claims for 691. Where, however, the claim made is for a breach of duty in 
 
 dut''°'a°Lt relation to the goods, independent of the contract, the right to sue 
 from contract, under the Admiralty Court Act, 1861, does not depend upon pos- 
 
 (J) 8 L. T. p. 56. («) 10 A. 0. 74. 
 
 {c) L. E., 3 P. C. 694, at p. 598. ^ n in A r ,t „ R« 
 
 (A) L. E., 2 A. & E. 375. Cf. The ^^^ ^^ ^^ ^- "* P" *^- 
 
 I-elix, L. K., 2 A. & E. 273. (?) 10 A. C. at p. 94. 
 
REMEDIES IN REM. 789 
 
 session of the bill of lading, or upon having the rights of suit Sect. 691. 
 under the hill of lading. 
 
 So that if a wrongful act for whioh the shipowner is answerahle 
 has hfeen done in carrying or delivering the goods, hy which they 
 have been damaged, or lost, any person who was beneficially 
 interested in them may, it seems, sue in rem under the statute, 
 whether he is the holder of the bill of lading or not (h) ; or, being 
 the consignee or assignee of the bill of lading, whether his interest 
 in. it, or in the goods, is absolute, or is a limited interest only («). 
 
 Where such an act has been committed, any person who is 
 damnifi,ed may sue for compensation, although his interest in the 
 goods may be only limited (k), and although he may not be in 
 any way privy to the contract of carriage (l). And, according to 
 the construction which has been put upon the Act, the word 
 "owner" in sect. 6 appears to include the owner of a special 
 property, or of a partial interest in the goods, so as to entitle him 
 to sue in rem. 
 
 692. This remedy by proceedings in rem against the ship has County 
 
 ■L J 1 1 • J! m i T. J.1 Courts Admi- 
 
 been made much more general m cases of small amount, by the ralty Juris- 
 Oounty Courts Admiralty Jurisdiction Acts, 1868 and 1869. ^sesZd"*'' 
 
 By sect. 3 of the Act of 1868 (m), isss- 
 
 " Any county court having admiralty jurisdiction shall have juris- 
 diction, and all powers and authorities relating thereto, to try and 
 determine, subject and according to the provisions of this Act, the 
 following causes (in this Act referred to as admiralty causes) : — 
 " (1) As to any claim for salvage — any cause in which the value of 
 the property saved does not exceed one thousand pounds, or 
 in which the amount claimed does not exceed three hundred 
 pounds ; 
 " (2) As to any claim for towage, necessaries, or wages — any cause 
 in. which the amount claimed does not exceed one hundred 
 and fifty pounds ; 
 " (3) As to any claim for damage to cargo, or damage by colli- 
 sion (n) — any cause in which the amount claimed does not 
 exceed three hundred pounds ; 
 
 (A) The Tigress, 32 L. J., Ad. 97. (0 See per Bramwell, L. J., in Hayn 
 
 V. CuUiford, 4 C. P. D. 182, at p. 185. 
 (0 The Figlia Maggiore, L. E., 2 A. ^^j g^ ^ 32 yj^t ^ 71, 
 
 & E. 106; The Nepoter, L. E., 2 A. & ^^j ^ ^-^^^ for damage done by «, 
 
 ■ ' P' *''• ship striking an object on the shore is 
 
 (A) TheThyatirarSP. D. 155; Infra, not included: Eobson v. The Kate, 21 
 
 «s. 702, 727. Q. B. D. 13. 
 
790 THE DELIVERY, 
 
 Sect. 692. " (4) Any cause in respect of any such claim or claims as aforesaid, 
 but in which the value of the property saved or the amount 
 claimed is beyond the amount limited as above mentioned, 
 when the parties agree by a memorandum signed by them, 
 or by their attorneys or agents, that any county court having 
 admiralty jurisdiction, and specified in the memorandum, 
 shaU have jurisdiction." 
 
 These powers were extended by the Act of 1869 (o). 
 By sect. 2 of that Act, 
 
 " Any county court appointed, or to be appointed, to have admiralty 
 jurisdiction shall have jurisdiction, and all powers and authorities 
 relating thereto, to try and determine the following causes : — 
 
 " (1) As to any claim arising out of any agreement made in relation 
 to the use or hire of any ship, or in relation to the carriage of 
 goods in any ship, and also as to any claim in tort in respect 
 of goods carried in any ship, provided the amount claimed 
 does not exceed three hundred pounds ; 
 " (2) As to any cause in respect of any such claim or claims as afore- 
 said, but in which the amount claimed is beyond the amount 
 limited as above mentioned, when the parties agree, by a 
 memorandum signed by them, or by their attorneys or agents, 
 that any county court having admiralty jurisdiction, and 
 specified in the memorandum, shall have jurisdiction." 
 
 By sect. 3, 
 
 " The jurisdiction conferred by this Act, and by the County Courts 
 Admiralty Jurisdiction Act, 1868, may be exercised either by proceed- 
 ings in rem, or by proceedings in personam." 
 
 By sect. 4, 
 
 "The third section of the County Courts Admiralty Jurisdiction 
 Act, 1868, shall extend and apply to all claims for damage to ships, 
 whether by collision or otherwise, when the amount claimed does not 
 exceed three himdred pounds." 
 
 The JTirisdiotion under these Acts is also possessed by the Liver- 
 pool Court of Passage (p), and by the City of London Court {q). 
 
 The Acts do not affect the ordinary jurisdiction, over matters 
 which may be within the Acts, of those county courts on which 
 admiralty jurisdiction has not been conferred (r). 
 
 (o) 32 & 33 Vict. 0. 61. (r) E. v. Southend Comity Court, 13 
 
 {p) See sect. 25 of the Act of 1S68. q. b. D. 142 ; SooveU v. Sevan, 19 
 
 (j) By Order in Council issued under n B D 42S 
 
 sect. 38 of the Jud. Act, 1873. H. . . 
 
REMEDIES IN REM. 791 
 
 693. The jurisdiction in rem of county courts, and other inferior Sect. 693. 
 
 Courts, under the Act of 1868, has been decided to extend only to Jurisdiction 
 
 cases in which the Court of Admiralty might exercise such a juris- "^r n^ted^to 
 
 diction. The jurisdiction conferred was only a portion of that of !J"'* °* ^&^ 
 ■^ . Court of 
 
 the Court of Admiralty, and did not extend beyond that. Admiralty. 
 
 So that, for example, it does not extend to an action against a 
 ship for necessaries where the owner is domiciled in England, 
 though the County Court Act imposes no such limitation ex- 
 pressly is). 
 
 On the other hand, it is now established, though after considerable 
 controversy, that the admiralty jurisdiction of the county courts 
 under the Act of 1869 is to some extent {£) independent of that of 
 the Court of Admiralty, and extends to claims in which the latter 
 Court would have no original jurisdiction. 
 
 In Simpson v. Blues (m), the Court of Common Pleas prohibited 
 a county court from proceeding in an action in rem against a ship, 
 whose owner was domiciled in England, for short delivery of cargo 
 under a charter party, on the ground that the Act of 1869 was 
 not intended to give a jurisdiction in admiralty which the Court 
 of Admiralty never possessed. And this was followed in Grunnestad 
 V. Price (»), with regard to an action by the shipowner for freight 
 and demurrage. 
 
 But the view thus taken was dissented from by the Privy Council 
 in the cases of The Cargo ex Argos, and The Hewsons {x). In the 
 former of these the action was by the shipowner, in rem, for freight, 
 demurrage, and expenses, against certain barrels of petroleum which 
 had been shipped in his ship under a bill of lading. 
 
 In the latter the action was in rem against the ship for breach of 
 a charter party, in not completing an agreed series of voyages. 
 The Judicial Committee decided, in both oases, that the Act of 
 1869 gave jurisdiction to the inferior courts; notvnthstanding the 
 anomaly that the High Court of Admiralty could not have enter- 
 tained those proceedings. 
 
 Aad in The Alina («/) the Court of Appeal decided the matter 
 in the same manner. A prohibition to a county court judge had 
 
 («) AUen V. Garbutt, 6 Q. B. D. 165 ; {x) L. E., 5 P. 0. 134 (1873). 
 
 The Dowse, L. R., 3 A. & E. 135; ,. g j,^_ jy 227 (1880). See also 
 
 Everard v. Kendall, L. R., 5 C. P. 428. „ ' , „ , . „ ..„, „ ^ ^j , „ . 
 
 (0 Cf. The Zeta, (1893) A. C. 468. ^"^sley v. Eopkms, (1892) 2 Q. B. 184 ; 
 
 («) L. R., 7 C. P. 290 (1872). o*- ^^S- "• City <>* London Court, (1892) 
 
 (») L. R., 10 Ex. 65 (1875). 1 Q. B. 273. 
 
im- 
 
 THE DKLIVERY. 
 
 Sect. 693. 
 
 Jurisdiction 
 under Act of 
 1869 not 
 limited to 
 that of the 
 High Court. 
 
 Shipowner 
 may proceed 
 against cargo. 
 
 Effect of 
 sect. 2 of Act 
 of 1869. 
 
 there been granted by a divisional court, against proceeding in an 
 action for breach of a charter party, brought against a Russian ship. 
 On appeal the Court of Appeal dissolved the prohibition. They 
 considered that the supposed anomalies did not alter the fact that 
 the Act in terms gave the jurisdiction. 
 
 " It is said that because they say in these cases the Court shall 
 have jurisdiction in rem, that is, to cut down the cases in vyhich 
 jurisdiction is given. If it had been intended to have said merely 
 that the county court shall have the jurisdiction of the Court of 
 Admiralty, in those particular cases, it appears to me it would have 
 said so in so many words ; that is to say, the Act being an Act to 
 amend a former Act, and to give jurisdiction in certain maritime 
 cases, the first section would have said that the Court should have 
 such jurisdiction as the Court of Admiralty possesses in the follow- 
 ing matters, and then the whole thing would have been made quite 
 clear. It seems to me that the legislature intentionally did not do 
 so, but gave jurisdiction in certain matters, and then went on to 
 give the particular remedy of the Court of Admiralty in all the 
 cases in which it had so given jurisdiction " (2). 
 
 And in The Eona («) it was held, that holders of bills of lading 
 could sue under the Act of 1869 for damages for delivering the 
 cargo in a damaged- condition, although one of the owners was 
 domiciled in England. 
 
 694. Thus, it seems that the county court jurisdiction in rem 
 under the Act of 1869 over claims arising out of an agreement 
 " in relation to the use or hire of any ship, or in relation to the 
 carriage of goods in any ship," and over claims " in tort in respect 
 of goods carried in any ship," is not limited by any condition 
 that the goods shall have been carried into a port in England or 
 Wales ; nor that the owner shall be domiciled abroad. 
 
 Eurther, the remedy in rem under that Act is available to the 
 shipowner, as well as to the freighter or owner of the goods. The 
 shipowner may arrest the goods in respect of claims he may have 
 in relation to the carriage of them (J). 
 
 695. A claim for breach of a charter party by refusing to 
 perform the agreed voyage is within the meaning of sect. 2 of the 
 Act of 1869 (c) ; so are claims for not delivering in accordance with 
 
 {%) Per James, L. J., 5 Ex. D. at 
 p. 238. {a) 7 P. D. 247. 
 
 (A) The Cargo ex Argos, L. R., 5 
 
 P. C. 134. 
 
 (c) The AHna, 5 Ex. D. 227; 
 HewBous, L. R , 6 P. C. 134. 
 
 The 
 
EEMEDIES IN REM. 793 
 
 the contract (d) ; and so, also, are claims for freight, or Sect. 695. 
 demurrage, or for charges payable to the shipowner in relation to 
 the carriage of the goods (e). So, again, a claim for a hreaoh of a 
 towage contract is within the words (/). 
 
 But some limitation must, it seems, be put upon the literal effect 
 of the section {g). In E. v. City of London Court {h) it was held, 
 that a claim for loss of a passenger's luggage was not within 
 them. And Day, J., there said : " It seems to me that the first 
 part of sub-s. 1, which gives jurisdiction over claims arising out of 
 agreements made in relation to the use or hire of a ship, refers to 
 claims under charter parties, and the next clause, in relation to the 
 carriage ' of goods in any ship,' to claims under bills of lading. 
 We are asked to-extend the latter to claims in respect of passengers' 
 luggage, but the agreement in this ease is not made with reference 
 to the carriage of goods, but was one for the carriage of a pas- 
 senger, and it is only as incidental to this agreement that the 
 luggage was carried. This seems to me to show that such luggage 
 was not ' goods ' in the sense in which that term is used in the 
 section." 
 
 In The Nuova Eaffaelina («), the question was raised whether 
 brokers who had effected a charter party could proceed in rem 
 against the ship under this Act, for their commission stipiilated 
 for in the charter party, to which, however, they were not parties. 
 Sir E. PhiUimore held that they could not ; on the ground that 
 they were not parties to the contract. But he appears to have 
 considered that if the charterers had been suing, on behalf of the 
 brokers, it would have been a claim " arising out of an agreement 
 made in relation to the use or hire " of a ship. 
 
 696. It does not appear to have been decided whether the Can ship be 
 remedy in rem against the ship for damage to goods, or for breach against,^ 
 of contract of carriage, is given in cases where there would be no „^t^pers^aUy 
 right of action against the shipowner himself. liable? 
 
 The Admiralty Court Act, 1861, gives jurisdiction over any 
 claim for damage to the goods " by the negligence or misconduct 
 of or for any breach of duty or breach of contract on the part of 
 
 (rf) The Eona, 7 P. D. 247. guarantee to load the ship in a certain 
 
 («) The Cargo ex Argos, L. E., 6 time was held not within the Act. 
 
 P. C. 134. (ff) See per Cleasby, B., in Grtmnestad 
 
 (/) The Isca, 12 P. D. 34. Cf. The v. Price, L. E., 10 Ex. 65. 
 
 Zeus, 13 P. D. 188, where a claim (A) 51 L. T. 197. 
 
 against a colliery company under a (i) L. E., 3 A, & E. 483. 
 
794 
 
 THE DELIVERY. 
 
 Sect. 696. the owner, master, or crew of the ship," and it enacts (sect. 35) that 
 this jurisdiction may be exercised by proceedings in rem. 
 
 Also, the County Court Admiralty Act of 1869 gives jurisdic- 
 tion in rem, still more generally, in respect of claims " in tort in 
 respect of any goods carried in any ship." 
 
 But it is at least open to doubt whether it was intended that the 
 res of the shipowner should be liable to compensate wrongs for 
 which he would not be personally answerable {k). And the proviso 
 in the Act of 1861, which limits the jurisdiction to cases in which 
 there is no owner domiciled in England or Wales, appears to show 
 that that result was not intended. For, otherwise, a difference of 
 liability would be imposed on owners living abroad, and owners 
 living in England. 
 
 Where the ship has been chartered, or let, to persons who are 
 allowed to have the control of her for the time being, and who are 
 personally liable for the claim which is made, the remedy against 
 the ship is perhaps available, though her owners may not be liable. 
 The point does not seem to have been decided. If in such a ease 
 the claim were based upon a maritime lien, the authorities show 
 that the ship could be proceeded against (^). But as the claims 
 we are considering do not give rise to maritime liens, the proceed- 
 iug in rem must be justified, if at all, by the words of the Act ; 
 and it seems unlikely that those words were intended to give a 
 remedy against the owners, in effect, which would not otherwise 
 exist {m). 
 
 In The Emilien Marie (w), Sir E. Phillimore held that the Court 
 had jurisdiction in rem against the whole ship, in regard to a claim 
 for short delivery under a bill of lading, although the captain (who 
 was a part owner) might be the only owner who was personally 
 liable. 
 
 Jurisdiction 697. The jurisdiction in rem is exercised over foreign as well as 
 exercised over Over British ships, when they come within the territorial jurisdic- 
 
 in rem 
 exerois 
 foreign ships, 
 
 (h) Cf. The Castlegate, (1893) A. 0. performance of contracts made by the 
 
 38 ; The Utopia, (1893) A. 0. 492. See master, within the scope of his apparent 
 
 infra, o. 707. authority, whether he is acting as agent 
 
 (?) The Ticonderoga, Swab. 215 ; The for the owner of the ship, or on behalf 
 
 Lemington, 2 Asp. N. S. 475 ; The Tas- of the charterer, or other person who is 
 
 mania, 13 P. D. 110 ; The Eipon City, allowed to have control of the ship for 
 
 (1897) P. 226. the time being. Hickox ». Buckingham, 
 
 {m) In the United States it appears to 18 Howard, 182 (Supreme Court), 
 
 be the law that the ship is liable for the («) 32 L. T. 435. 
 
EEMEDIES IN REM. 795 
 
 tion of the Courts of Admiralty, without regard to whether the Sect. 697. 
 same remedy might be had under the law of the country to which 
 the ship belongs. The remedy (o), and the procedure (ja), are 
 determined by the law of the Court itself. 
 
 Also, the judgment of a foreign tribunal against a ship is recog- Eoreign 
 nized by our Courts, and may be enforced against her by pro- J-m^enforoed" 
 ceedings in rem in the Admiralty Court, if she is within the 
 jurisdiction. 
 
 " A consideration of these authorities, and the principle upon 
 which they rest, leads me to the conclusion that it is the duty of 
 one Admiralty Court, a duty arising from the international comity, 
 to enforce the decree of another upon a subject over which the 
 latter had jurisdiction. I do not think it necessary to enter into a 
 consideration of all the cases decided by the common law courts as 
 to the effect of foreign judgments in this country. The general 
 principle of recognizing and giving effect to such judgments is now 
 admitted by these Courts. I did not, indeed, understand it to be 
 denied by Mr. Butt that the Admiralty Court has power to execute 
 the sentence of a foreign Admiralty Court. His objection is as to 
 the mode by which it is sought to enforce it. He contends that a 
 proceeding in rem can only be instituted where there is a maritime 
 lien, and that the foreign judgment does not confer such a lien. I 
 am of opinion that it is the duty of this Court to act as auxiliary 
 to the Portuguese Court, and to complete the execution of justice, 
 which, owing to the departure of the ship, was necessarily left 
 unfinished by that Court. In other words, it is my duty to place 
 the English Court in the position of the Portuguese Court after its 
 sentence has been given against the defendants " {q). 
 
 (o) Dela Vega«. Vianna, 1 B. &Ad. the groiind that the judgment of the 
 
 284 ; The Vernon, 1 W. Kob. 316 ; The Portuguese Court had not been in rem. 
 
 Mildford, Swab. 362. As to limitation Lush, J., said, "It is part of the law 
 
 of liability, see The Amalia, 32 L. J., of nations that Courts of Admiralty in 
 
 Ad. 191 ; General Iron Screw Collier different countries have the power to 
 
 Co. 1). Sohurmanns, 29 L. J., Ch. 877 ; condemn vessels and order them to be 
 
 Cope V. Doherty, 27 L. J., Ch. 600. sold for the satisfaction of a maritime 
 
 (p) As to limitation of time, Don v. Ken. Maritime liens are recognized by 
 
 Lippman, 5 CI. & F. 1 ; British Linen Co. all civilized nations, and damage by 
 
 ». Drummond, 10 B. &0. 903 ; Trimbey collision is classed among those things 
 
 ». Vignier, 1 Bing. N. 0. 151. As to which create a maritime lien; and had 
 
 evidence, Leroux v. Brown, 22 L. J., this been a judgment in rem, that is to 
 
 C. P. 1, supra, B. 213. say, a judgment condemning the ship 
 
 (?) Per Sir R. PhUlimore, The City of and ordering the ship to be sold in order 
 
 Mecca, 5 P. D. 28, p. 32. The decision to satisfy the maritime Hen, that judg- 
 
 was reversed on appeal (6 P. D. 106) on ment would have been recognized in 
 
796 
 
 THE DELIVERY. 
 
 Sect. 698. 
 
 Proceeding in 
 
 rem originally , , . , / \ 
 
 baaed on ceeded agamst (r) 
 
 maritime lieu. 
 
 Nature of a 
 maritime lien. 
 
 698. The remedy in rem given by the Admiralty Court was, it 
 has heen said, founded on a maritime lien upon the thing pro- 
 The right to a maritime lien in respect of 
 certain claims was recognised by adoption from the civil law and 
 the early maritime law, and was enforced by the Court of Admiralty. 
 These were claims for salvage and damage by collision, on the 
 high seas (to which the jurisdiction was confined) («), and for wages 
 of seamen, and under bottomry bonds. And the same right of 
 maritime lien has been conferred by modern statutes in regard to 
 some other similar claims (t). 
 
 A maritime lien attaches to the property from the time the claim 
 first arises, and clings to it without regard to the person who may 
 have possession, and notwithstanding any transfers of the general 
 rights in the property ; so that, if enforced without improper delay, 
 it overrides all other titles to the ship which are not based on 
 superior or equal liens. Thus it is paramount to the title of a 
 purchaser or mortgagee, whether the purchase or mortgage was 
 
 this country and every other civilized 
 country." 6 P. D. at p. 116. As to the 
 validity of a sale of a ship under a 
 judgment in rem of a foreign Court, see 
 Castrique ». Tmrie, L. E., 4 H. L. 414. 
 Blackburn, J., there said: "We think 
 the inquiry is, first, whether the subject- 
 matter was 80 situated as to be within 
 the lawful control of the state under the 
 authority of which the Court sits : and, 
 secondly, whether the sovereign autho- 
 rity of that state has conferred on the 
 Court jurisdiction to decide as to the 
 disposition of the thing, and the Court 
 has acted within its jurisdiction. If 
 these conditions are fulfilled, the ad- 
 judication is conclusive against aU the 
 world." L. R., 4 H. L. p. 429. See 
 also Messina v. Petroooohino, L. R., 4 
 P. C. 144 ; and Minna Craig S.S. Co. ii. 
 Chartered Merc. Bank of India, London 
 and China, (1897) 1 Q. B. 65, 460. A 
 mistake of the foreign tribunal on a 
 point of law, although of English law, 
 is not a defence to an action upon it 
 (Godard v. Gray, L. R., 6 Q. B. 139) ; 
 unless the mistake is admitted (Meyer v. 
 Ralli, 1 C. P. D. 358). As to the effect 
 of a foreign judgment obtained on de- 
 fault of appearance, see Schibsby v. 
 
 Westenhok, L. E., 6 Q. B. 155 ; The 
 Delta, 1 P. D. 393 ; Eouaillonu. Eousil- 
 lon, 14 Ch. D. 351 ; cf. Copin v. Adam- 
 son, L. R., 9 Ex. 345 ; 1 Ex. D. 17 : or 
 by fraud, Abouloffi v. Oppenheimer, 10 
 Q. B. D. 295. 
 
 ()■) The BoldBuccleugh, 7 Moo. P. C. 
 267 ; and see per Ld. Watson, in the 
 Henrioh Bjorn, 11 A. C. 270. But see 
 per Jeune, J., in The Dictator, (1892) 
 P. 304. Also see Clarke's Praxis, cited 
 in Will. & Br. Adm. Practice (2nd), 77, 
 which seems to show that the original 
 procedure in the Admiralty Court was 
 by arrest of the person, to enforce the 
 giving of security. Cf. Kennedy, Sal- 
 vage, pp. 9 et seq. 
 
 («) The judges of the Court were re- 
 strained from "meddling of anything 
 done within the realm," by 15 Rich. II. 
 i>. 5. 
 
 (<) As to salvage and collision within 
 the body of a county, see A. C. Act, 
 1840, B. 6; A. C. Act, 1861, s. 7; per 
 MeUish, L. J., in The Two Ellens, 
 L. R., 4 P. C. 161, p. 167. And see 
 per Lord Halshury in The Sara, 14 A. C. 
 209, p. 216. As to wages and disburse- 
 ments of the master : M. S. Act, 1894, 
 B. 167. 
 
REMEDIES IN REM. 797 
 
 mstde before or after the claim accrued (u) ; and also to possessory Sect. 698. 
 
 liens, even to that of a shipwright who has since repaired, and 
 added value, to the ship (x). 
 
 But the lien is only enforceable by means of the process of the 
 Court. " Having its origin in this rule of the civO. law, a maritime 
 lien is well defined by Lord Tenterden to mean a claim or privilege 
 upon a thing to be carried into effect by legal process ; and Mr. 
 Justice Story (p) explains that process to be a proceeding in rem, 
 and adds, that whenever a lien or claim is given upon the thing, 
 then the Admiralty enforces it by a proceeding in rem, and, indeed, 
 is the only Court competent to enforce it. A maritime lien is the 
 foundation of a proceeding in rem, a process to make perfect a right 
 inchoate from the moment the lien attaches ; and, whilst it must 
 be admitted that where such a lien exists a proceeding in rem may 
 be added, it wiU be found to be equally true that in all cases where 
 a proceeding in rem is the proper course, there a maritime lien 
 exists which gives a privilege or claim upon the thing, to be carried 
 into effect by legal process. This claim or privilege travels with 
 the thing into whatsoever possession it may come. It is inchoate 
 from the moment the claim or privilege attaches, and, when carried 
 into effect by legal process by a proceeding in rem, relates back to 
 the period when it first attached " (z). 
 
 699. Since the judgment in The Bold Buccleugh (z) was Maritime lien 
 delivered the remedy in rem has been extended, by the Admiralty confined by^ 
 Courts Acts above mentioned, to a number of new cases ; and, as is stafites 
 now well established, it is not a necessary inference from the fact remedy in 
 that these statutes have given the remedy in rem for a particular 
 class of claims, that it was intended to confer a maritime lien for 
 those claims (a). Thus it was decided, by the Privy Council, in 
 The Pieve Superiore (a) that the Admiralty Courts Act, 1861, did 
 not give a maritime lien for claims for damage to the cargo, or 
 breach of duty, or breach of contract, within sect. 6 of that Act. 
 
 (m) The Bold Buooleugh, 7 Moo. P. C. (2) The Bold Buccleugh, 7 Moo. P. C. 
 
 267 ; The Nymph, Swab. 86 ; The 267, p. 284, a.d. 1851. 
 Charles Amelia, L. R., 2 A. & E. 330. («) The Pacific, 33 L. J., Ad. 120 
 
 The law as to maritime lien is the same The Troubadour, L. R., 1 A. & E. 302 
 
 in Scotland, Currie v. McKnight, 1897, The Two Ellens, L. R., 4 P. C. 161 
 
 A. C. 97. The Pieve Superiore, L. R., 5 P. C. 482 
 
 [x] The austaf, 31 L. J., A. D. 207. The Henrioh Bjorn, 11 A. O. 270 ; 10 
 
 Of. The Oaigo ex Galam, 33 L. J., Ad. P. D. 44 ; The Sara, 14 A. C. 209 ; 12 
 
 97- P. D. 158. And see The Rio Tinto, 9 
 
 (y) The Brig Nestor, 1 Sumner, 78. A. C. 356. 
 
 rem. 
 
798 THE DELIVERY. 
 
 Sect. 699. The ground taken being that the jurisdiction given to the Court by 
 that section is made to depend not on the state of things at the 
 time when the claim arises, but upon the state of things when the 
 suit is instituted, namely, whether there is at that time an owner of 
 the ship domiciled in England; whereas, a maritime lien must 
 attach and be enforceable from the time the claim arises (&). 
 
 This reasoning does not apply to the County Courts Admiralty 
 Acts, which confer an unconditional jurisdiction. But in later 
 cases the more comprehensiTe view has been taken, that words con- 
 ferring the remedy in rem do not suffice to create a maritime Hen. 
 And it seems certain that the County Courts Acts do not create 
 any new maritime liens. 
 
 In The Henrioh Bjorn (c) the question was whether a maritime 
 lien is given by the Admiralty Court Act, 1840, for necessaries 
 supplied to a foreign ship. The jurisdiction under that Act is not 
 conditional. But the House of Lords, affirming the Court of 
 Appeal, held that, though that jurisdiction was exercisable by 
 proceedings in rem, no maritime lien for the claim was conferred. 
 " Words simply giving jurisdiction do not seem appropriate or 
 adequate to the creation of so important a right as that conferred 
 by a maritime Hen, a right towards which, too, the law of England 
 was less friendly than the law of Eome and of the countries which 
 have adopted the civil law" {d). And in The Sara (e) the House 
 of Lords took the same view with regard to the claim to a mari- 
 time Hen for a master's disbursements, under the Admiralty Court 
 Act, 1861, sect. 10. 
 
 The charge 700. The remedy in rem, then, given by the Admiralty Court 
 
 proceedmg In -^cts for claims arising under contracts of carriage, is not founded 
 
 effeot^foom ^P°^ ^ maritime Hen. But it enables the claimant to arrest and 
 
 the arrest. detain the property ; and gives him a charge upon it, subject to 
 
 other prior claims, from the time of the arrest. "The object of 
 
 the statute is only to found a jurisdiction against the owner who is 
 
 liable for the damage, and to give the security of the ship, the res, 
 
 from the time of the arrest" (/). 
 
 (i) Cf. TheT-woEUens,L. K., 4P. C. p. 12: and per Brett, J., Simpson v. 
 
 161, at p. 169. Blues, L. E., 7 C. i>. 290, p. 295. 
 
 (e) 11 A. C. 270 ; 10 P. D. 44. (e) 14 A. C. 209 ; reversing 12 P. D. 
 
 (d) Per IVy, L. J., delivering the 158. See noiv M. S. Act, 1894,8.167; 
 
 Judgment of the C. A., 10 P. D. at of. Xhe Oastlegate, (1893) A. 0. 38. 
 
 p. 63. See also per Dr. Lushington, (/) The Pieve Superiore, L. E., 6 
 
 The Mary Ann, L. B., 1 A. & E. 8, P. 0. 482, p. 491. 
 
REMEDIES IN EEM. 799 
 
 In The Henrich Bpm, the Court of Appeal, speaking in rela- Sect. 700. 
 tion to a claim for necessaries under the Admiralty Court Act, 
 1840, said (g) : " But if the material man may thus arrest the 
 property to enforce his claim, how does his claim differ from a 
 maritime lien ? The answer is, that a maritime lien arises the 
 moment the event occurs which creates it ; the proceeding in rem 
 which perfects the inchoate right relates back to the period when 
 it first attached ; ' the maritime lien travels with the thing into 
 whatsoever possession it may come ' (The Bold Buccleugh {h) ) ; 
 and the arrest can extend only to the ship subject to the lien. 
 But, on the contrary, the arrest of a vessel under the statute is 
 only one of several possible alternative proceedings ad fundandam 
 jurisdicHonem ; no right in the ship or against the ship is created 
 at any time before the arrest ; it has no relation back to any 
 earher period : it is available only against the property of the 
 person who owes the debt for necessaries ; and the arrest need not 
 be of the ship in question, but may be of any property of the 
 defendant within the realm. The two proceedings, therefore, 
 though approaching one another in form, are different in sub- 
 stance : in the one case the arrest is to give effect to a pre-existent 
 lien, in the other, the arrest is only one of several alternative 
 modes of procedure, because, to use the language of Dr. Lushing- 
 ton in The Volant («'), ' it offers the greatest security for obtaining 
 substantial justice in furnishing a security for prompt and imme- 
 diate payment.' " 
 
 In The CeUa {k), the limited company which owned the ship 
 went into liquidation after an action in rem for necessaries had 
 been commenced. The liquidator claimed to be entitled in 
 priority to the plaintiff, but without success. " If the money be 
 in Court, or the Court has possession of the res, it can give effect 
 to its judgment as if it had been delivered the moment after it 
 took possession of the res " {I). 
 
 701. It appears, then, that the remedies in rem., which we are Eemedyonly ~ 
 
 discussing, can only be availed of against the ship and freight on f'^is pra-° 
 
 the one hand, and as-ainst the cargo on the other, so long or so far P^'^^y "on- 
 
 ' ° . ° ° tmues that of 
 
 only as they continue at the time of arrest to be the property of person liable. 
 
 the person who is personally liable for the damage, or breach of 
 
 is) 10 p. D. 44, p. 54 ; affirmed 11 (i) 1 W. Hob. 383. 
 
 A. C. 270. [k) In 0. A. 13 P. D. 82. 
 
 (A) 7 Moo. P. C. 267. W Per Lord Bsher, 13 P. D. p. 87, 
 
800 
 
 THE DELIVERY. 
 
 Sect. 701. ^uty complained of. " According to the true construction of this 
 section (sect. 5 of the Admiralty Court Act, 1861) the res, the ship, 
 does not become chargeable with the debt for necessaries until the 
 suit is actually instituted, and all valid charges, on the ship, to 
 which any person other than the owner of the ship who is liable 
 for the necessaries is entitled, must take precedence " (m). 
 
 In The Pacific (w), also a suit for necessaries, the claim was post- 
 poned to that of a mortgagee whose mortgage had been granted 
 after the necessaries were supplied, but prior to the suit. In The 
 Aneroid (o), it was held that a sale of the ship, before action, 
 defeated the right to payment out of the res for materials supplied 
 for the equipment of the ship, although the purchaser had notice 
 of the claim when he purchased. 
 
 Sir E. Phillimore said : " It would be difficult to see what 
 principle of equity could render the purchaser, who it must be 
 presumed had paid the full value of the repaired ship, liable for 
 the debt of the vendor to the repairing tradesman, with whom the 
 vendee had no contract at all. I do not think that the fact of 
 notice being given can create a lien which is neither a maritime 
 lien nor a possessory lien." 
 
 It appeared in that case that the shares in the ship which had 
 been sold, were mortgaged back to the vendors by the purchaser, 
 on the day of the sale. So that apparently the whole price of the 
 shares had not in fact been paid. Whether that should make a 
 difference in any ease does not appear to have been decided. 
 
 Losses of Goods by Collision. 
 Actions for 702. We have further to refer to the remedies which the cargo 
 
 owner may have against persons who are strangers to the contract 
 with the shipowner. 
 
 Cargo may have been lost or damaged while in the shipowner's 
 custody under circumstances which entitle the owner to compensa- 
 tion from persons other than the shipowner. Where damage has 
 been done to the goods wrongfully, as by the wilful, negligent, or 
 reckless act of any person who is not empowered by law to do that 
 act, the owner of the goods may sue the wrongdoer for compensa- 
 tion for the consequences ; whether he also has a remedy against 
 the shipowner or not. 
 
 (m) Per MelBsh, L. J., The Two («) 33 L. J., Ad. 120. 
 
 EUenB, L. E., 4 P. C. 161, p. 170. \o) 2 P. D. 189. 
 
 ■wrongs. 
 
COLLISIONS. 801 
 
 Ajid a right to sue in respect of such damage is also vested in Sect. 702. 
 any person who had any interest in the goods which has heen 
 destroyed, or prejudiced, by the wrongful act. 
 
 In The Thyatira (p), the cargo belonged to the owners of the 
 carrying ship. The Atmosphere, but the plaintiffs had advanced 
 1,650/. to the owners upon it, and this was secured to them by an 
 assignment of bills of lading for the cargo, by which the cargo was 
 to be delivered on payment of freight at a certain rate. These bills 
 of lading were indorsed with a receipt for 1,000/. on account of 
 freight. Also two policies, one for 1,000/. advanced freight, and 
 another on cargo, were effected, and were handed with the bills of 
 lading to the plaintiffs. The cargo was lost owing to a collision 
 with The Thyatira, for which she was to blame. 
 
 In an action by the plaintiffs against The Thyatira it was con- 
 tended that the plaintiffs could not recover the 1,000/. advanced 
 freight against The Thyatira, on the ground that no freight in 
 advance had in fact been paid ; the freight reserved only repre- 
 senting the possible increase of value of the cargo at its destination ; 
 and that the owners of The Atmosphere had already in another 
 action claimed compensation for loss of the disbursements made to 
 earn this so-called freight. But it was held that the plaintiffs 
 were entitled to recover the amount as compensation for their loss 
 of the benefit of the enhanced value of the cargo. 
 
 In The Glamorganshire (q), the cargo was shipped on the order 
 of the plaintiffs, but it was deliverable to Barings, and the bill of 
 lading had been indorsed to the Hong Kong Bank to secure 
 advances. Still it was held, in the Privy Council, that the plain- 
 tiffs had " an interest to maintain the suit to recover the money 
 for the benefit of those persons who on the inquiry are proved to 
 be entitled to it, and under circumstances in which the money will 
 not be paid out till the owners of The Grlamorganshire are com- 
 pletely freed from claims." 
 
 And if the person who has been damnified was insured against Underwriters 
 such a loss, and has been indemnified by his underwriters, he may ^g^efit. 
 stiU sue for compensation on their behalf. They are entitled to 
 the benefit of his right of action, either against the wrongdoer, or 
 against the shipowner on the contract, where the loss is one for 
 which he has undertaken responsibility; and they may claim to 
 
 {p) 8 P. D. 156. (?) 13 A. C. 454. 
 
 C— C. 3 F 
 
803 
 
 THE DELIVERY. 
 
 Collisions. 
 
 Sect. 702, sue in the name of the assured upon properly indemnifying 
 him (r). 
 
 703. The most frequent cause of claims by cargo owners, against 
 third persons, is collision between the carrying ship and another. 
 
 Where a collision has been purely accidental, having happened 
 without any fault on the part of those managing either ship, the 
 loss lies where it has fallen ; unless the cargo owner can claim from 
 the shipowner under the contract. And where the fault has been 
 wholly on the side of the ship which is carrying the goods, there 
 is, of course, no claim against the owners of the other. But if the 
 collision has been due to negligent, or improper, management of 
 the stranger ship, compensation becomes payable by those respon- 
 sible for that management ; and, as we shall see, it may generally 
 be enforced by proceedings in rem against her (s). 
 
 704. Where both vessels have been in fault, in bringing about 
 the collision, the rule is that the liability of the stranger ship, or 
 those responsible for her management, is for one-half only of the 
 damage occasioned to the goods. 
 
 On the view of the common law taken in Thorogood v. Bryan (t), 
 and Armstrong v. L. & T. Ey. Co. (m), the owner of goods on board 
 a ship would have been regarded as identified with those in charge 
 of the ship, so as to be affected by negligence on their part which 
 contributed to the collision ; and consequently would have been 
 unable to make any claim upon the other delinquent vessel. But 
 this view of the law has been overruled by the judgments of the 
 Court of Appeal and of the House of Lords in the case of the 
 Bemina («). And it is now clear that the fact that the collision 
 was iu part due to negligence of those in charge of the carrying 
 ship does not stand in the way of a claim by the cargo owners 
 against the other ship in fault. 
 
 And at common law, the right of the cargo owner would be to a 
 fiail compensation. But by the rules of law administered in the 
 Court of Admiralty, where both vessels are to blame, even though 
 not in equal degrees, the whole loss sustained by their owners is 
 apportioned equally between the two (y). Each party becomes 
 
 Where both 
 ships to 
 blame. 
 
 Kule of half' 
 damages. 
 
 (r) Castellain v. Preston, 11 Q. B. D. 
 380 ; Darrell v. Tibbits, 6 Q. B. D. 560. 
 ■Cf. Simpson v. Thomson, 3 A. C. 279. 
 
 («) Infra, s. 706. 
 
 (t) 8 C. B. 115. 
 
 («) L. B., 10 Ex. 47. 
 (») 13 A. C. 1 ; 12 P. D. 58. 
 {y) The Woodrop Sims, 2 Dods. 83 ; 
 Hay r. Le Neve, 2 Shaw, Sc. App. 395. 
 
COLLISIONS. 803 
 
 liaUe to pay to the other one-half of the damage which he has Sect. 704 . 
 sustained (s). And this rule has been extended to the claim of an 
 owner of cargo in one of the vessels. He is allowed to claim for 
 half his loss, and no more, against the other vessel (a). 
 
 " It is true, as I thiak, that the owner of the cargo is to be con- 
 sidered a perfectly innocent person, and that, as a plaintiff, he does 
 not stand in the same position as the owner of one of two delin- 
 quent ships; and if that were the sole ground upon which the 
 owner of the ship would only recover one-half, it might well be 
 that the owner of the cargo would recover the whole ; but this is 
 not exactly the view taken by the Admiralty law ; it endeavours, 
 whether wisely or not I do not say, to administer more equitable 
 justice, and, where both parties are delinquent, to give a moiety of 
 the loss, or to divide the whole loss, it being impossible to ascertain 
 the proportionate culpability. I apprehend that, carrying out this 
 principle according to its practice, the Court of Admiralty would 
 say : ' Tou, the innocent owner of a cargo, proceeding against one 
 only of two delinquent ships, shall recover only a moiety of the 
 damage, because we can affix to the vessel proceeded against only 
 a moiety of the blame, and you shall be left, v/ith respect to the 
 other half of your loss, to your remedy against the other vessel, 
 which we hold to be equally delinquent.' It may be true that this 
 principle is not altogether reconcileable with the rules and practice 
 of common law, and much might be said as to the equity of its 
 operation and effect ; but still I think that this resolution of the 
 question is most conformable to the case of Hay v. Le Neve and 
 other cases ; and therefore my decree must be that the plaintiffs do 
 recover a moiety of the damage only " (5). 
 
 (z) The half-damages are set against are proved for pari passu -with the claims 
 one another, and the balance is payable of the shipowner, and of the master and 
 to him who has sustained the greater crew. See Chapman v. Royal Nether- 
 loss. This course is followed although lands Steam Nav. Co., 4 P. D. 167. 
 one of the shipowners may have taken (a) The Milan, 31 L. J., Ad. 105 ; 
 proceedings for Umiting his liability. Chartered Merc. Bank of India v. 
 See Stoomvaait Maatschappy Nederland Netherlands India Steam Nav. Co. , 
 V. P. &0. Steam. NaT. Co., 7 A. C. 795. 10 Q. B. D. 621. 
 
 Where one ship is exempted on the (J) Per Dr. Lushington, The Milan, 
 
 gronnd of compulsory pilotage, see The 31 L. J., Ad. 106, at p. 112. In the 
 
 Hector, 8 P. D. 218. The rule of de- U. S. the owner of cargo, or the ship- 
 
 dnoting the half-damage to the other owner on his behalf, may recover in full 
 
 sliip, in ascertaining the amoimt to be against the other ship : The Beaoons- 
 
 paid, or proved for, does not apply to field, 158 U. S. 303 ; The Atlas, 93 U. S. 
 
 the claims of the cargo owners. Those 302 ; and her owner may claim one-half 
 
 3f2 
 
804 
 
 THE DELIVERY. 
 
 Sect. 704. 
 
 Claim against 
 carrier not 
 aSeoted. 
 
 Exceptions 
 protect carrier 
 against claims 
 in tort. 
 
 Where totK 
 ships belong 
 to same 
 owner. 
 
 Proceedings 
 may gene- 
 rally be in 
 rem. 
 
 By sect. 25, sub-sect. 9, of the Judicature Act, 1873, it is pro- 
 vided that, " In any cause or proceeding for damages arising out 
 of a collision between two ships (c), if both ships shall be found to 
 have been in fault, the rules hitherto in force in the Court of 
 Admiralty, so far as they have been at variance with the rules in 
 force in the courts of common law, shall prevail." 
 
 705. The right to proceed against the other colliding vessel, 
 whether for the whole of the loss, or for half only, does not, where 
 it is unsatisfied, prejudice the right of the freighter to claim for 
 the whole loss against the carrying shipowner, under the con- 
 tract {d). 
 
 The claim against the carrier is generally under the contract, 
 though in some cases it might be framed in tort. For the carrier 
 is answerable for such losses, unless the contract excuses him ; and 
 if the contract exempts him from responsibility for the causes 
 which have produced the loss, it will relieve him from liability, 
 even though he would have been answerable for the loss had no 
 contract at all existed (e). The exemptions in the contract are not 
 confined in their operation to limiting the obligations which are 
 created by the contract. 
 
 The rule of half-damages was applied in Chartered Mercantile 
 Bank of India v. Netherlands India Steam Navigation Co. .(/), 
 where the carrying ship and the colliding ship, which had been 
 both to blame, belonged to the same owners. The shipowners 
 there were not liable under the contract of carriage ; but were held 
 to be liable as wrongdoers, in respect of the colliding ship, for one- 
 half of the loss. They were not excused from liability for the acts 
 of their servants in navigating that vessel, by the biU of lading 
 exception of " accidents, loss or damage from any act, neglect or 
 default whatsoever, of the pilots, master or mariners, or other 
 servants of the company in navigating the ship." 
 
 706. The owner of cargo which has been damaged by a collision 
 with another ship, for which those in charge of her are to blame, 
 
 of the amount so paid against the carry- 
 ing ship, notwithstanding the Harter 
 Act, The Chattahoochee, 173 U. S. 540 
 (1899). 
 
 (c) By sect. 742 of the M. S. Act, 1894, 
 a " ship " is defined to include " any de- 
 scription of vessel usedinnarigationnot 
 
 propelled by oars." Bee The Mac, 7 
 P. D. 126. 
 
 (d) The Bushire, 62 L. T. 740. 
 
 («) See Delaurier v. Wyllie, 27 So. L. 
 R. 148 ; stipra, a. 67. 
 
 (/) 10 Q. B. D. 521. 
 
COLLISIONS. 805 
 
 may proceed against her in rem ; whether the collision has occtored Sect. 706. 
 on the high seas or not {g). 
 
 And he has a maritime lien for his claim ; by virtue of which 
 he can follow the ship, and proceed against her, although she may 
 have been sold or mortgaged by those who owned her at the time 
 of the collision {h). This appears to be true although the collision 
 may have been within the body of a county, and so only within 
 the statutory jurisdiction of the Admiralty Court (^'). 
 
 707. It has been much debated whether this maritime lien, and Not unless 
 the consequent right to proceed against the ship, depend upon the person in 
 existence of personal responsibility for the collision on the part of ""'^^^ liablo. 
 the owners. "The damage may have been caused by the wilful act 
 of the master outside the scope of his employment, so that his 
 employers are not personally answerable for it {k) ; or it may have 
 resulted from negligence of a pilot whom the owners have been 
 compelled by law to employ. In such cases the lien and proceeding 
 against the ship are not available {I). 
 
 In The Druid, where the suit was for damage caused by a wilful 
 unauthorized act of the master. Dr. Lushington said {m) : " In all 
 causes which may arise from circumstances occurring during the 
 ownership of the persons whose ship is proceeded against, I appre- 
 hend that no suit could ever be maintained against a ship where 
 the owners were not themselves personally liable, or where their 
 personal liability had not been given up, as iu bottomry bonds, by 
 taking a lien on the vessel. The liability of the ship and the 
 responsibility of the owners in such cases are convertible terms ; 
 the ship is not liable if the owners are not responsible ; and, vice 
 
 (y) By the Admiralty Court Act, 1861, 12 P. D. 158. 
 
 8. 7, "The High Court of Admiralty ijc) See Limpus v. London General 
 
 shall have jurisdiction over any claim Omnibus Co., 32 L. J., Ex. 34 ; Bayley 
 
 for damage done by any ship." This v. M. S. & L. EaU. Co., L. R., 8 0. P. 
 
 section does not enable the cargo owner 148 ; Venables v. Smith, 2 Q. B. D. 279 ; 
 
 to proceed »« »-e»i against the ship vrhich Eayner v. Mitchell,' 2 C. P. D. 357; 
 
 carried the cargo, for damage done by Steel v. Lester, 3 C. P. D. 121. 
 
 anegUgent collision: The Victoria, 12 [T) The Druid, 1 W. Kob. 391; The 
 
 P. D. 105. See also County Courts Protector, 1 W. Kob. 45 ; The Anapolis, 
 
 Admiralty Jurisdiction Act, 1868, s. 3, 30 L. J., Ad. 201 ; Lush. 295 ; The 
 
 Bub-s. 3 ; and the Amendment Act, 1869, Utopia, (1893) A. C. 492. Cf . Currie v. 
 
 s. 2, sub-s. 1. McKnight, (1897) A. C. 97. 
 
 (h) Supra, s. 698. (m) 1 W. Rob. 391, at p. 399. And 
 
 (t) See per Mellish, L. J., The Two see per Brett, L. J., in The Parlement 
 
 Ellens, L. R., 4 P. C. 161, at p. 167. Beige, 5 P. D. 197, at p. 218. And per 
 
 Cf. The Henrich Bjom, 11 A. C. 270 ; Sir R. Phillimore, in The Leon, 6 P. D. 
 
 10 P. D. 44 ; The Sara, 14 A. C. 209 ; 148, at p. 160, 
 
806 THE DELIVEEY. 
 
 ■ Sect. ?07. ijersd, no responsibility can attach upon tbe owners if tlie ship is 
 exempt and not liable to be proceeded against." 
 
 Where, however, the ship has been chartered, and the charterers 
 put in control of her, then, if they are responsible for the acts 
 which have caused the collision, the ship maybe proceeded against, 
 although the owner may not be personally responsible (n). And 
 the same has been held where the vessel has been temporarily 
 placed in charge of persons acting, not as servants of the ship- 
 owner, but as independent contractors with him (o). 
 
 " The result of the authorities cited appears to me to be this, 
 that the maritime lien resulting from collision is not absolute. It 
 is a primd facie liability of the ship, which may be rebutted by 
 showing that the injury was done by the act of some one navigating 
 the ship not deriving his authority from the owners ; and that, by 
 the maritime law, charterers, in whom the control of the ship has 
 been vested by the owners, are deemed to have derived their 
 authority from the owners, so as to make the ship liable for the 
 negligence of the charterers, who are, pro hac vice, the owners " (p). 
 
 In the valuable judgment of Gorell Barnes, J., in The Eipon 
 City (§'), the cases are all reviewed, and the conclusion is drawn 
 that this right of maritime lien on a ship must " in some way have 
 been derived from the owner,, either directly or through the acts of 
 persons deriving their authority from the owner." And further, 
 " as maritime liens are recognized by law, persons who are allowed 
 by those interested in a vessel to have possession of her for the 
 purpose of using or employing her in the ordinary manner, must 
 be deemed to have received authority from those interested in her 
 to subject the vessel to claims in. respect of which maritime Hens 
 may attach to her, arising out of matters occurring in the ordinary 
 course of her use or employment, unless the parties have so acted 
 towards each other that the party asserting the Hen is not entitled 
 to rely on such presumed authority " (r). 
 
 Jurisdiction 708. The Court of Admiralty exercises its jurisdiction in rem, 
 
 lore^rdiipr although one or both of the vessels which have been in coUision are 
 
 foreigners (s). 
 
 («) The Tioonderoga, Swab. 215 ; The (p) Per Hanaen, J., in The Tasmania, 
 
 Lemington, 2 Asp. N. S. 475; supra, 13 P. D. 110, p. 118. Cf. per Lord 
 g_ 696. Watson in The Castiegate, (1893) A. 0. 
 
 ■ (0) ^eRnhyQueen Lu8h.266 But '\f (fsg^) p. ^^e. 
 
 Tv rZ^' T ' ^' T?." W (1«97) P. at pp. 242 and 244. 
 
 3 P. C. 696 ; The American and The , ( nru t\. -^ • j ■ •■ ,-,„•.,,, 
 
 Syria, L. R., 6 P. 0. 127. 35^ T^e Johann Fnedenoh, 1 W. Koh. 
 
COLLISIONS, 807 
 
 And by seot. 688 of tlie Merohant Shipping Act, 1894 (t), the Sect. 708. 
 courts are enabled to detain any foreign ship hy which any injury 
 has, in any part of the world, been caused to any property belong- 
 ing to British subjects, if she be found in any port or river of the 
 United Kingdom, or within three miles of the coast, upon its 
 being shown that such injury was probably caused by the miscon- 
 duct, or want of skill, of the master or mariners of such ship. 
 
 709. The question whether a foreign colliding vessel is liable for Liability of 
 a coUision which has occurred on the high seas, is determined by by what law 
 the Court of Admiralty according to the general maritime law, as ^^termmed ? 
 there understood and adopted ; though that may differ from the 
 
 law as administered in the country to which the ship belongs. 
 And if, in such a case, proceedings are taken in personam against 
 the owner of the foreign ship, he may, if within the jurisdiction, 
 be made liable for the acts of the master and crew, though he would 
 not be so by the law of his flag (m). 
 
 But regulations of navigation established by our legislature do 
 not generally bind foreign ships on the high seas. " As regards 
 the foreign ship, for her owner cannot be supposed to know or to 
 be bound by the municipal law of this country, the case must be 
 decided by the law maritime, by those rules of navigation which 
 usually prevail among nations navigating the seas where the 
 collision takes place. If the foreigner comes before the tribunal of 
 this country the remedy and form of proceeding must be according 
 to the lex fori "(ai). 
 
 On the other hand, as regards the Collision Eegulations, and 
 the provisions of Part V. of the M. S. Act, 1894, " in any case 
 arising in a British court concerning matters arising vrithin British 
 jurisdiction, foreign ships shall ... be treated as if they were 
 British ships " (y). 
 
 710. Where a collision has taken place within a foreign juris- Where colU- 
 
 1* . 1 . n sion has 
 
 diction the rule is different. " As a general rule, m order to found occurred 
 
 (0 57 & 58 Vict. c. 60, s. 688. As to verein, Swab. 96, at p. 99. And see 
 
 the effect of this section in extending the The Dumfries, Swab. 63; The Leon, 
 
 jurisdictionof the Court, see The Bilbao, 6 P. D. 148; M. S. Act, 1862, s. 58 ; 
 
 3 L. T. 338. Marsden on Collisions (2nd), 215. The 
 
 /.,\ mT,T n T, -n -.jn r^-L L J liability of foreign shipowners was not 
 
 (m) The Leon, 6 P. D. 148 ; Chartered ,. ., / , ^^ ,. , % , , -. _ 
 
 Meroantne Bank of India .. Netherlands ^^'^ under Enghsh law before M S. 
 
 India S. Nay. Co., 10 Q. B. D. S21, at ^'=*' ^^^^' '■ ^*- ^^ "^"^ ^- ^- ^''*' 
 
 pp. 537,545. 1894, s. 503. 
 
 ' (y) M. S. Act, 1894, s. 418 (2) ; and 
 
 {x) Per Dr. Lushington, The Zoll- see s. 424. 
 
808 THE DELIVERY. 
 
 Sect. 710. a suit in England for a wrong alleged to have been committed 
 within a abroad, two conditions must be fulfilled. First, the wrong must be 
 
 diction. of such a character that it would have been actionable if committed 
 
 in England: therefore in The Halley (2), the Judicial Committee 
 pronounced against a suit in Admiralty, foimded upon a liability 
 by the law of Belgium, for collision, caused by the act of a pilot 
 whom the shipowner was compelled by that law to employ, and for 
 whom, therefore, as not being his agent, he was not responsible by 
 English law. Secondly, the act must not have been justifiable by 
 the law of the place where it was done " (a). 
 
 The wrong complained of must not only be such as to give rise 
 to a cause of action in this country against the person proceeded 
 against ; but also must be a matter for which he would be liable 
 according to the law of the place where it occurred. 
 
 And this rule was held to apply where damage was done, within 
 a foreign jurisdiction, by a British vessel (b). Mellish, L. J., said: 
 " The law respecting personal injuries, and respecting wrongs to 
 personal property appears to me to be perfectly settled, that no 
 action can be maintained in the courts of this country on account 
 of a wrongful act either to a person or to personal property, com- 
 mitted within the jurisdiction of a foreign country, unless the act 
 is wrongful by the law of the country where it is committed, and 
 also wrongful by the law of this country." 
 
 (") I'- K., 2 P. C. 193. in PhilKps V. Eyre, L. R. , 6 Q. B. 1, at 
 
 (a) Per WUles, J., delivering the p. 28. 
 judgment of the Exchequer Chamber, (J) The M. Moxham, 1 P. D. 107. 
 
CHAPTER XX. 
 
 THE MEASUEE OF DAMAGES. 
 
 809 
 
 SECT. 
 
 The subjects for discussion — Failure 
 to ship cargo 711 
 
 General principles 712 
 
 The rule in Hadley v. Baxeu- 
 dale 713 
 
 Ulnstrations of the general rule . . 714 
 
 Ulustrations of exceptional cases ; 
 communioated special circum- 
 etances ..,,,,., 715 
 
 Mere knoTvledge of special circum- 
 stances not always sufSoieut — 
 Home V. Midland Eail. Co 716 
 
 Sembk, the rule in Hadley v. 
 Baxendale expresses the whole 
 limitation as to remoteness 717 
 
 The plaintiff must not aggravate 
 the loss 718 
 
 The plaintiff must seek to mitigate 
 the loss 719 
 
 The shipowner should seek another 
 cargo when the freighter fails to 
 load 720 
 
 Substituted freights are taken into 
 account — ^Not so collateral bene- 
 fits to shipowner 721 
 
 SECT. 
 
 Damages may be fixed by contract 
 — Penalty clauses in charters . . 722 
 
 Pailnre to supply ship, or take in 
 goods — Engaging larger ship — 
 Where no means of carriage 
 available 723 
 
 Delay in carrying and delivering 
 goods — Loss of the use of the 
 goods — Special use 12i 
 
 Deterioration and wasting of the 
 goods 725 
 
 Loss of market value by delay .... 726 
 
 Goods lost or damaged, value to be 
 estimated as at the time and place 
 fordelivery — Sale at portof refuge 727 
 
 Wrongful deprivation of goods — 
 Losses by collision 728 
 
 Effect of misdescription of goods in 
 bill of lading 729 
 
 Effect of rights against third persons 
 — Insurances not taken into ac- 
 count — Liability for the goods 
 entitles plaintiff to claim 730 
 
 Costs incurred in actions by third 
 persons owing to breach 731 
 
 711. The subiect of damages has been very fully treated in The subjects 
 
 ° , for discussion, 
 
 well-known treatises {a), to which the reader may be referred ; but 
 
 it wiU be conTenient to discuss, shortly, the principles which govern 
 
 the amount of damages recoverable in cases which specially belong 
 
 to our subject. 
 
 This has already been done incidentally upon many questions 
 
 during the foregoing chapters ; more especially with regard to 
 
 (a) Mayne on Damages (4th), 1884, by J. D. Mayne and Lumley Smith; 
 Sedgwick on the Measure of Damages {7th), 1880. 
 
810 
 
 THE DELIVERY, 
 
 Sect. 711. 
 
 Failure to 
 ship cargo. 
 
 Greneral prin- 
 ciples. 
 
 claims on the part of the shipowner. Thus, it will be unnecessary 
 to repeat what has been said, in Chapter XVII., with respect to 
 detentions of the ship. 
 
 Nor need much be said as to the damages recoverable by the 
 shipowner for a failure to ship goods as agreed, or to load the kind 
 of cargo which was agreed. In such cases the loss which the ship- 
 owner sustains is the difPerence between the freights which he 
 would have received, had the goods been properly shipped, and the 
 freights which become payable on what has in fact been shipped 
 by the freighter, or by others in his stead ; deducting, on the one 
 hand, the expenses which the shipowner avoids by not having to 
 take on board, carry, and discharge the cargo not shipped ; and, on 
 the other hand, adding any extra expenses which the shipowner 
 has prudently incurred in obtaining and carrying the substituted 
 cargo. The questions which arise in practice are, as to what cargo 
 ought to have been shipped under the contract, and how ought 
 the freights to be calculated ; and these are discussed in previous 
 chapters (b). 
 
 Thus, we shall here for the most part consider what the damages 
 are which the freighter may recover, for breaches of the contract 
 by the shipowner. 
 
 713. But before dealing with the different classes of claims 
 which arise, it will be well to point out certain general principles 
 which determine the extent to which damages are allowed for 
 breaches of contracts. 
 
 The fundamental principle is that compensation ought to be 
 made to the party who has been wronged by the breach, for the 
 losses which he has sustained in consequence of it ; that he ought 
 to be placed in the same position, pecuniarily, as if the contract had 
 been performed and not broken. 
 
 But to that principle there are important limitations ; and com- 
 pensation is not in fact recoverable for every loss or detriment 
 which may be traceable as a consequence, however remote, of the 
 breach of contract. Even where the loss follows immediately upon 
 the breach, it is in every case the consequence of a group of causes, 
 of which the breach of contract is only one, and of which some 
 may have no connection with the contract, or with the manner of 
 performing it. And where the loss does not follow immediately 
 
 (J) Chaps. IX. and XVI. 
 
THE MEASURE OF DAMAGES. 811 
 
 upon the breach, its proximate causes may, or may not be conse- Sect. 712. 
 quenoes of that ; other new and entirely independent causes may 
 have iutervened ; and the breach may often be regarded rather as 
 having given the opportunity for the loss, than as having caused it. 
 We have then to consider to what extent the party who breaks the 
 contract is liable for losses due to other causes, which co-operate 
 with, or ensue upon, the breach. 
 
 The matter may be put in another way. The effect of the 
 breach of a contract can in some respects be seen definitely before- 
 hand. If money is to be paid, or goods are to be delivered, the 
 loss of the money or goods is the plain consequence of a failure to 
 pay, or to deliver. If payment, or delivery, is improperly delayed, 
 the temporary deprivation of the money or goods is the definitely 
 foreseen result of that breach. So, if a ship be improperly detained 
 by the freighter, the clear result is a loss of her services to the 
 shipowner. And if the shipowner faUs to carry goods as agreed, 
 or the freighter fails to provide a cargo as agreed, the necessary 
 consequences are a loss of the conveyance by that means in the 
 one case, and of the opportunity of earning freight by carrying 
 the agreed cargo in the other. 
 
 But the pecuniary loss involved in these definite consequences 
 may be aggravated by other circumstances, which accompany the 
 breach, or foUow upon it. Also the breach may, under the circum- 
 stances, have further and different consequences which also involve 
 loss. This aggravated or additional loss may, or may not, have 
 been calculable beforehand. It depends upon the conditions which 
 actually obtain at or after the time when the performance should ' 
 have taien place ; and those may, or may not,[have been known or 
 expected when the contract was made. The question is, how far 
 are aggravations of the ordinary, definite, effects of a breach, which 
 are due to the circumstances which attend it, to be taken into 
 account ? 
 
 The general answer is, that they are not to be taken into account, 
 except so far as the circumstances to which they are due were 
 the ordinaryj,probable circumstances, which might beforehand be 
 expected to attend or follow upon the breach. 
 
 But that rule is subject to the exception, that if the party who 
 has broken the contract entered into it in contemplation of special 
 circumstances, which would affect the consequences of a breach, 
 and accepted those circumstances as conditions under which the 
 
812 THE DELIVERY. 
 
 Sect. 713. contract was to be performed, then he is h'able for any special 
 ' losses which have arisen, and were likely to arise, from the breach 
 under those circumstances. 
 
 The rule in 713. The rule and the exception were laid down by Baron 
 
 Baxendale. Alderson, in the considered judgment of the Court in the leading 
 case of Hadley v. Baxendale (c), as follows : — " Where two parties 
 have made a contract which one of them has broken, the damages 
 which the other party ought to receive in respect of such breach of 
 contract should be, either such as may fairly and reasonably be 
 considered arising naturally (d), i. e., according to the usual course 
 of things, from such breach of contract itself, or such as may 
 reasonably be supposed to have been in the contemplation of both 
 parties at the time they made the contract, as the probable result 
 of the breach of it. 
 
 " Now, if the special circumstances under which the contract was 
 actually made were communicated by the plaintiff to the defen-, 
 dant, and thus known to both parties, the damages resulting from 
 the breach of such a contract which they would reasonably contem- 
 plate would be the amount of injury which would ordinarily follow 
 from a breach of contract under those special circumstances, so 
 known and communicated. But, on the other hand, if those 
 special circumstances were wholly unknown to the party breaking 
 the contract, he at the most could only be supposed to have had in 
 his contemplation the amount of injury which would arise gene- 
 rally, and in the great multitude of cases not affected by any 
 special circumstances, from such a breach of contract. For had 
 the special circumstances been known, the parties might have 
 especially provided for the breach of contract by special terms as 
 to the damages in that case, and of this advantage it would be 
 very unjust to deprive them." 
 
 In that case carriers had been unreasonably slow in delivering a 
 broken mill-shaft, which had been sent to an engineer as a model 
 
 («) 23 L. J., Ex. 179, p. 183. been used in many cases ; and it may 
 
 {i) Cf. per Martin, B., in "Wilson v. not be easy to substitute a better word 
 
 Newport Dock Co., L. R., 1 Ex. 177, to express what is meant. Normal, or 
 
 p. 184. In Smith «. Green (1 0. P. D. likely or probable of occurrence in the 
 
 92),Grove, J.,Baid " Great difEoulty no ordinary course of things, would per- 
 
 doubt arises from the use of the word haps be the more correct expression." 
 
 ' natural ' in those cases. It is used by See also Wilson v. Dun-riUe, 6 L. R., Ir. 
 
 Lord Campbell and Erie, J., in Randall 210. 
 V. Roper (27 L. J., Q. B. 266), and has 
 
THE MEASURE OP DAMAGES. 813 
 
 for a new one. In consequence of this delay the making of the Sect. 713. 
 
 new one was delayed, and the mill was stopped for want of it. It 
 
 was held that the carriers were not liable for the loss of profits due 
 
 to the lengthened stoppage at the mill. " For such loss would 
 
 neither have flowed naturally from the breach of this contract in 
 
 the great multitude of such cases occurring under ordinary circimi- 
 
 stances ; nor were the special circumstances, which perhaps would 
 
 have made it a reasonable and natural consequence of such breach 
 
 of contract, communicated to or known by the defendant." 
 
 714. This general rule, that the loss to be paid for is that which lUustrations 
 would naturally arise " in the usual course of things," thus laid ^e!'^ genera 
 down ia Hadley v. Baxendale, has been approved and adopted in 
 numerous cases. But the application of the rule has been fre- 
 quently a matter of difficulty. The following cases will illustrate 
 this. 
 
 In Wilson v. General Iron Screw Collier Co. (e), the plaintiffs 
 were allowed to recover damages for the detention of their ship 
 while defective machinery supplied by the defendants was being 
 replaced. 
 
 In The City of Lincoln (/), a ship lost her compasses and charts 
 in a collision, and the ship herself was lost while being navigated to 
 a port of refuge owing to the want of compass and chart. It was 
 held that compensation for that loss could be recovered, as being a 
 consequence of the collision. 
 
 In Mowbray v. Merry weather (g), the plaintiffs (stevedores) 
 agreed to discharge a ship of the defendant, who undertook to 
 provide proper tackle for the purpose. Owing to a defect one of 
 defendant's chains broke, and plaintiffs became liable to one of 
 their men who was thereby injured. It was held that they could 
 recover the amount of this liability from the defendant ; although, 
 relying on defendant's undertaking, they had themselves been 
 negligent in not testing the chain. 
 
 In these cases the losses were regarded as consequences which 
 would be contemplated beforehand as likely to arise from the 
 breach. On the other hand, in Gee v. The Lancashire and York- 
 shire Eail. Co. (h), there had been delay in delivering some cotton 
 to a cotton mill-owner, owing to which his mill stood idle for a 
 
 'fl'.^lh,^^ ^" ^' ^^^' (?) (1895) 1 Q. B. 857; 2 Q. B. 641. 
 
 (/)15P. D. 15. Cf . The Marpessa, , ^ ' Z, 
 
 (1891) P. 403 W 30 L.J. Ex. p. 11. 
 
814 THE DELIVERY. 
 
 Sect. 714. time. It was held to be a misdirection to tell the jury that he 
 was entitled to claim the wages he had paid, and the profits he 
 would have made during that time. PoUock, 0. B., said («) : " It 
 was not the consequence of the non-arrival of the cotton alone, but 
 it was the consequence of the non-arrival of the cotton and of the 
 plaintiffs having no cotton to resort to. No doubt, if it could be 
 made out that the practice in the neighbourhood of Liverpool and 
 Manchester was such that every carrier must know that when 
 cotton was sent there was a mill standing still until it should 
 arrive, all this would have been a right direction. If they had 
 notice of that, either actual notice, or if from the course of business 
 they could have anticipated it, the damages would have been 
 perfectly right" {k). 
 
 In Portman v. Middleton (1), the defendant had failed to supply 
 part of a certain machine in the agreed time, so that the plaiatiS 
 became liable for damages under a contract he had made to supply 
 the whole machine, to which the defendant's contract was subsi- 
 diary. The defendant had had no notice of the plaintiff's contract 
 until after the delay had occurred. It was therefore held that 
 those damages could not be recovered over against him. 
 
 So where goods have been sold for future delivery, and the vendor 
 fails to make a delivery, he is liable for a difference between the 
 contract price and the market price, but not generally liable for a 
 further loss of profits which would have been made by the pur- 
 chaser upon a re-sale, even though it may be shown that the object 
 of the purchaser was to sell again, and that the vendor knew it (m). 
 If, indeed, there be no market in which the goods can be replaced, 
 the case is somewhat different; the value of the goods to the buyer 
 may then be determined by the price he could have got for them 
 under his re-sale (»), or by the cost of other goods reasonably 
 bought to replace them (o). 
 
 Nor, again, is a vendor, who has sold without notice of a sub-sale, 
 generally liable for damages which the buyer may have to pay to 
 
 (i) 30 L. J., Ex. p. 15. D. 457. 
 
 (/c) See also Hales t). L. & N. W. Rail. («) Grr^bert-Borgnis v. Nugent, 15 
 
 Co., 32 L. J., Q. B. 292 ; Woodger v. G. Q. B. D. 85, per Lord Esher, p. 89 ; 
 
 W. Rail. Co., L. R., 2 C. P. 318. Borries v. Hutolunson, 34 L. J., C. P. 
 
 (I) 27 L. J., C. B. 231. Cf. Elbin- 169 ; and see Eranoe v. Gaudet, L. R., 
 
 ger AotiengeseUschaft v. Armstrong, 6 Q. B. 199 ; Duff v. Iron, &o. Co., 19 
 
 L. R., 9 Q. B. 473. Sess. Ca. (4tli) 199. 
 
 (m) WilUams v. Reynolds, 34 L. J., (o) Hinde v. liddell, L. R., 10 Q. B. 
 
 Q. B. 221 ; Thol v. Henderson, 8 Q. B. 266. 
 
THE MEASURE OF DAMAGES. 815 
 
 his vendee, owing to the vendor's breach. But the case is altered Sect. 714. 
 ■where the vendor has had notice of a suh-sale made, or ahout to he 
 made, at the time of the contract (p) . 
 
 Again, where a vessel of special construction had heen sold, and 
 there was delay in delivery, the buyers were not allowed compensa- 
 tion for the loss of special profits which they would have made by 
 using it for a special purpose, of which the sellers had not had 
 notice (q). " If the two parties are not ad idem quoad the use to 
 which the article is to be applied, then you can only take as the 
 measure of damages the profit which would result from the ordinary 
 use of the article for the purpose for which the seller supposed it 
 was bought" {r). And the plaintiEEs were allowed to recover on 
 that basis, although they had not meant to use the vessel in the 
 ordinary way, their loss having in fact been larger. 
 
 In British Columbia Saw Mill Co. v. Nettleship (s), the plaintiffs 
 had delivered several cases of machinery to the defendant's servants 
 on a quay at Grlasgow, for shipment to Vancouver Island on 
 board the defendant's vessel which lay alongside. The master 
 knew at the time that these cases eontaiued different portions of 
 machinery, which were intended for a sawing mill to be erected 
 and used by the plaiutiffs in British Columbia. On the vessel's 
 arrival, one of the cases was missing, and consequently the mill 
 could not be erected. The plaintiffs were obliged to send to 
 England to replace the lost parts, and thus great delay and loss of 
 profitable business ensued. 
 
 Compensation for the whole loss sustained was claimed, but it 
 was held that the plaintiffs could only recover the cost of replacing 
 the lost parts, including freight to Vancouver Island, with interest 
 at five per cent, upon the amount, by way of compensation for the 
 delay. It was considered that the master could not be supposed to 
 know that the whole machinery would be useless without the parts 
 that were lost, or that those parts could only be replaced in 
 England (t). 
 
 {p) Hammond v. Busaey, 20 Q. B. D. the profits derivable from the use of a 
 
 79 ; Urebert-Borgnis v. Nugent, 15 ship, or other chattel, see per Jervis, 
 
 Q. B. D. 85 ; Elbinger Aotiengeaell- C. J., and WiUes, J., in Fletcher v. 
 
 sohaft V. Armstrong, L. R., 9 Q. B. Tayleur, 25 L. J., 0. P. 65. 
 
 473. («) L. R., 3 0. P. 499. 
 
 (?) Cory V. Thames Ironworks Co., (t) Cf. Baldwin 'v. L. 0. & D. Rail. 
 
 L. R., 3 Q. B. 181. Co., 9 Q. B. T>. 582, infra, s. 725, where 
 
 {r) Per Cookbum, 0. J., L. R., 3 Q. B. damage arose from a concealed condition 
 
 p. 188. As to the manner of estimating of the goods : Sanders v. Stuart, 1 0. P. 
 
816 THE DELIVERY. 
 
 Sect. 715. 715. There has also been much difficulty and difference of 
 lUustrations Opinion with regard to the exceptional cases admitted hy the rule 
 cLTesTcom-^ in Hadley v. Baxendale. The following are illustrations :— 
 
 municated In Smeed V. Foord (u), the defendant had agreed to supply a 
 
 special cir- . . . . . „ 
 
 cumstances. threshing machine to the plaintiff, a farmer, in three weeks from 
 
 Jidy 24th ; but had failed to send it tiU September 11th. The 
 plaintiff, as the defendant knew, wanted the machine for the pur- 
 pose of threshing his wheat in the field ; his practice being to 
 thresh it there, and send it to market at once. As the machine 
 did not come, it became necessary to stack the wheat ; and when 
 that had been done a thunderstorm occurred, which did great 
 damage, as the plaintiff had no straw to thatch the stacks with. 
 Hence it became necessary to kiln-dry a quantity of the wheat, 
 and the quahty was thus much deteriorated. Further, the markets 
 were lower when the threshing was completed than they had been 
 when it should have been done. 
 
 It was held that the defendant was liable for the expenses of 
 stacking and kiln-drying, and for the deterioration of the wheat, 
 these being losses which might reasonably be supposed to have been 
 in the contemplation of the parties, at the time of the contract, as 
 the probable result of a breach of it. 
 
 But a further claim for the loss of value, owing to the fall in the 
 market price, was disallowed, on the ground that it could not have 
 been foreseen. 
 
 In Hydraulic Engineering Co. v. McHaffie («), the defendants 
 had contracted to manufacture for the plaintiffs a certain part of a 
 machine which they were about to supply to one Justice ; and the 
 defendants were informed that the machine was wanted by Justice 
 at the end of August. Owing to improper delay of the defendants 
 the plaintiffs could not deliver to Justice until the end of Septem- 
 ber ; and he then refused to accept the machine. The plaintiffs 
 recovered damages for the loss of profits which they would have 
 made, on their contract with Justice, and for their useless expendi- 
 ture on the other parts of the machine. 
 
 In Gxebert-Borgnis v. Nugent («/), a contract had been made for 
 
 D. 326, wliere a telegram in cipher was (a) 4 Q. B. D. 670. 
 
 not transmitted. Improper refusal to /\n;/-ix>-i->oc a ■< tt 
 
 . . , J. ;, f oi • (y) 16 Q. B. D. 85. See also Ham- 
 
 register a transier of snares : SMnner v. 
 
 City of London Mar. Ins. Corp., 14 "''"^^ ^- '^'^^^' ^0 Q. B. D. 79, po,t, 
 
 Q. B. D. 882. s. 731. Of. Elbinger-AotiengeseUschaft 
 
 («) 28 L. J., Q. B. 178. V. Armstrong, L. R., 9 Q. B. 473. 
 
THE MEASURE OF DAMAGES. 817 
 
 future deliveries of sheep skins of particular shapes and descrip- Sect. 715. 
 tions ; and the vendor knew, at the time, that the purchaser was 
 huying them to enable him to fulfil a contract he Had made, or was 
 ahout to make, with a customer at Paris. The vendor failed to 
 deliver, and the purchaser in consequence lost his profit on the suh- 
 contract, and had to pay damages for failing to perform it. The 
 skins could not have been procured elsewhere, unless they had been 
 ordered some time in advance. It was held by the Court of Appeal, 
 affirming Denman, J., that the purchaser was entitled to recover 
 the profits he had lost ; and also compensation for his liability to 
 his sub-purchaser, estimated by reference to what his liability 
 might have been expected probably to be. 
 
 " In a case of this sort, where there was no market into which 
 the parties could go and buy against the broken contract, the 
 natural result which must have been contemplated, at the time the 
 original contract was made, must have been that there would be a 
 HabiUty by the purchaser to his sub-purchaser. It was for the 
 judge to do the best he could with regard to the amount which he 
 might assess in respect of this. The limit of the liability must 
 clearly be what the purchaser had to pay. But it does not follow 
 that was necessarily what he would be entitled to charge against 
 his vendors " (s). 
 
 716. But mere knowledge, or mere communication to a con- Merekaow- 
 tractor, that the contractee may lose special advantages, or suSer gpeoial cir- 
 special consequences, if the contract be not punctually performed, °o™aJ^°yg 
 wOl not in all cases make the contractor answerable for those sufficient. 
 special matters. 
 
 In contracts of sale, where the purchaser has disclosed his 
 position with regard to sub-purchasers, the inference is made that 
 the vendor undertook liability for consequences of those special 
 circumstances. "The proper inference, and one which the jury 
 might infer, would be that he had contracted with the plaintiff 
 upon the terms, that if he broke his contract he should be liable for 
 all the consequences of a failure by the plaintiff to perform his sub- 
 contract" (o). 
 
 But it seems to be doubtful whether the same inference could 
 properly be made from mere notice given to a carrier of special 
 
 («) Per Bowen, L. J., 15 Q. B. D. p. 93. 
 
 (a) Per Brett, M. R., in Gr61)ert-Borgnis v. Nugent, 16 Q. B. D. 85, p. 90. 
 
 C. — c. 3 O 
 
818 THE DELIVEKY. 
 
 Sect-. 716. circumstances affecting the shipper's, or the consignee's, position in 
 
 regard to' the goods. 
 
 In British Columhia Saw Mill Co. v. Nettleship, WiUes, J., 
 
 said {h) : " The knowledge must he hrought home to the party 
 
 sought to he charged under such circumstances that he must know 
 
 that the person he contracts with reasonahly believes that he 
 
 accepts the contract with the special condition attached to it." 
 
 And " knowledge on the part of the carrier is only important if 
 
 it forms part of the contract. It may be that the knowledge is 
 
 acquired casually from a stranger, the person to whom the goods 
 
 belong not knowing, or caring, whether he had such knowledge 
 
 or not. Knowledge in effect can only be evidence of fraud, or of 
 
 an understanding by both parties that the contract is based upon 
 
 the circumstances which are communicated." 
 
 S?™^^- ., In Home v. Midland Eail. Co. (c), the plaintiffs were shoe 
 Midland Eail. . ^ " ^ 
 
 Co. manufacturers at Kettering, and had undertaken to supply 20,000 
 
 pairs of shoes at 4s. a pair, intended for the French army, to certain 
 contractors in London. The last day for delivery was February 3rd, 
 1871. The last instalment of the shoes, 4,595 pairs, was delivered 
 to the defendants to be carried to the contractors in London in 
 time to be delivered there on February 3rd. And notice was at 
 the time given by the plaintiffs to the defendants' station master 
 at Kettering, that the plaintiffs were under a contract to deliver 
 by the evening" of the 3rd of February, and that the goods would 
 be thrown on the plaintiffs' hands if they were not so delivered. 
 The defendants improperly failed to tender the shoes to the 
 contractors until the 4th of February, when they were rejected 
 and thrown on the plaintiffs' hands, and were sold at 2s. 9d. a 
 pair ; that being the best price then obtainable. The plaintiffs 
 claimed for the difference of Is. 3d. a pair which they had lost. It 
 was held by the Court of Exchequer, and afterwards by a majority 
 of the Exchequer Chamber, that they were not entitled to compen- 
 sation on that footing, on the ground that the defendants had not 
 had notice of the exceptional nature of the contract, and of the 
 unusual loss that would result from a breach of it. 
 
 But, both in the Court below and. in the Exchequer Chamber, 
 opinions were expressed that mere notice of the exceptional cir- 
 cumstances would not be enough. Blackburn, J., said (d) : " If it 
 
 (i) L. E., 3 C. P, at p. 609. (d) L. E., 8 C. P. p. 141. Cf. Elbiu- 
 
 (c) L. E., 7 0. P. 683 ; 8 C. P. 131. ger Actiengesellsohaft *. Aimetrong, 
 
THE MEASURE OF DAMAGES. 819 
 
 were necessary to decide the point, I should be mucli disposed to Sect. 716. 
 agree with what my brother Martin has suggested, viz., that in 
 order that the notice may have any efEect it must be given under 
 such circumstances as that an actual contract arises on the part of 
 the defendant to bear the exceptional loss." 
 
 And Lush, J., who thought that the shoes had in fact been 
 accepted by the defendants on the terms that they must be liable 
 for the plaintiffs' loss if the shoes were not delivered in time, still 
 agreed that the notice " can have no effect except so far as it leads 
 to the inference that a term has been imported into the contract 
 making the defendant liable for the extraordinary damages " (e). 
 
 In any case, the notice of the special circumstances must be 
 given, it would seem, at the time of entering into the contract, 
 not afterwards (/). 
 
 717. Some of the judgments delivered in cases on this subject Semble, the 
 
 seem to point to some further limitations, on grounds of remote- Hadiey v. 
 
 ness, to the damages recoverable, which are not included in the Baxendale 
 ' o ' expresses tno 
 
 rule established by Hadiey v. Baxendale. It has been suggested, whole limita- 
 rather than laid down, that damages are too remote which are not moteness. 
 proximately, or not directly, the result of a breach of the contract^ (g'). 
 
 L. E., 9 Q. B. 473, at p. 478 ; Simpson serve on a ship for an ordinary voyage, 
 
 V. L. & N. W. EaU. Co., 1 Q. .B. D. discovered after sailing that she woiild 
 
 274 ; Soaramanga v. English, 1 Com. he employed in the service of the Peru- 
 
 Ca. 99. vian government, at war with Spain. 
 
 («) Jj. E., 8 C. P. p. 145. He ohjected to serve on those conditions, 
 
 (/) Per Brett, L. J., Hydraulic, &o. and left the ship at Eio. It was held 
 
 Co. V. McHaffie, 4 Q. B. D. 670, p. 676. that he was entitled to treat the oon- 
 
 Cf. per Bramwell, B., in Gee v. L. & T. tract as having been broken ; and the 
 
 Rail. Co., 30 L. J., Ex. 11, p. 16. question of damages arose. Whilst the 
 
 (y) In Hoey v. Felton (31 L. J., C. P. plaintifi was on shore at Eio he was im- 
 
 105), an action for false imprisonment, prisoned as a Peruvian deserter for ten 
 
 in which the plaintiff claimed damages days ; and during that time the ship 
 
 for being prevented from obtaining a sailed away, taking some of his clothes 
 
 situation, Erie, C. J., in delivering a whichwere on board. The jury assessed 
 
 oonBidered judgment of the Court, said : the damages at 111. 10s. for loss of wages, 
 
 — "The damage does not immediately 20?. for loss of clothes, and 30Z. for 
 
 and according to the common course general damage for imprisonment and 
 
 of events foUow from the defendant's otherwise. It was held (Kelly, C. B., 
 
 wrong ; they are not known by common di^s.) that the damages for loss of 
 
 experience to be usually in sequence. clothes and imprisonment could not be 
 
 The wrong would not have been fol- recovered. 
 
 lowed by the damage if some facts had Bramwell, B., said, " It is true that 
 
 not intervened for which the defendant in one sense the defendant's conduct 
 
 is not responsible." caused the imprisonment; but for that 
 
 In Burton «. Pinkerton (L. R., 2 Ex. no doubt the plaintifl would not have 
 
 340), the plaintiff, who had engaged to been imprisoned. That, however, is not 
 
 3g2 
 
820 
 
 THE DELIVERY. 
 
 Sect. 717. ^jj^ ^jjQ limitation has teen indicated, that a loss is not a ground 
 for damages where it has heen occasioned by causes which were 
 
 enoiigli. Suppose, for instance, the 
 plaintiff had met robbers whilst ashore, 
 and been injured by them, he certainly 
 could have recovered nothing from the 
 defendant for such injury, yet the de- 
 fendant might, in that case also, be said 
 to have caused the damage. According 
 to the ordinary rule, damage to be re- 
 coverable by a plaintiff must inevitably 
 flow from the tortious act of the de- 
 fendant. It must be caused by him as 
 the causa causans, and this imprisonment 
 was not so caused." (Cf. per Lord 
 Ellenborough in Boyce v. Bayliffie, 1 
 Camp. 58.) 
 
 And Martin, B., said : "In respect of 
 his imprisonment and loss of clothes he 
 is, in my judgment, entitled to nothing. 
 The defendant was not immediately 
 concerned in causing either the one or 
 the other." 
 
 Kelly, C. B., thought the jury might 
 take the imprisonment into account as 
 a result of the state of things at Rio, 
 where the defendant had compelled the 
 plaintiff to land. 
 
 In Hobbs v. L. & S. "W. Bail. Co. 
 (L. E,., 10 Q. B. Ill), a man and his 
 wife and two children were taken by 
 the defendants, in breach of their con- 
 tract, to Esher Station instead of to 
 Hampton Court. They had in conse- 
 quence to walk some miles to get home, 
 being unable to get either lodging or 
 conveyance to Esher. The night was 
 wet, and the wife caught cold and was 
 laid up. The jury awarded 81. damages 
 for the inconvenience the plaintiffs had 
 been put to, and 201. for the wife's 
 illness and its consequences. But it was 
 held by the Court that the 20?. could not 
 be recovered ; and the verdict was re- 
 duced accordingly. 
 
 Cockbum, C. J., said: "I see very 
 great difficulty indeed in coming to any 
 other conclusion than that the 201. is not 
 recoverable ; and when we are asked to 
 lay down some principle as a guiding 
 rule in all such cases, I quite agree with 
 my brother Blackburn in the infinite 
 dif&culty there would be in attempting 
 to lay down any principle or rule which 
 
 shall cover all such cases ; but I think that 
 the nearest approach to anything hke a 
 fixed rule is this : That to entitle a per- 
 son to damages by reason of a breach of 
 contract, the injury for which compen- 
 sation is asked should be one that may 
 be fairly taken to have been contem- 
 plated by ihe parties as the possible 
 result of the breach of contract. There- 
 fore you must have something imme- 
 diately flowing out of the breach of 
 contract complained of, something im- 
 mediately connected with it, andnot merely 
 connected with it through a series of causes 
 intervening between the immediate con- 
 sequence of the breach of contract and 
 the damage or injury complained of." 
 *•»«»»*<< In tijia case the wife's 
 cold and its consequences cannot stand 
 upon the same footing as the personal 
 inconvenience arisingfrom the additional 
 distance which the plaintiffs had to go. 
 It is an effect of the breach of contract 
 in a certain sense, but removed one 
 stage ; it is not the primary, but the 
 secondary, consequence cf it." 
 
 Blackburn, J., also considered the 
 damage to be too remote. " On the 
 principle of what is too remote it is 
 clear enough that a person is to recover 
 in the case of a breach of contract the 
 damages directly proceeding from that 
 breach of contract, and not too remotely. 
 Although Lord Bacon had, long ago, 
 referred to this question of remoteness, 
 it has been left in very great vagueness 
 as to what constitutes the limitation ; 
 and therefore I agree with what my lord 
 has said to-day, that you make it a 
 little more definite by saying that such 
 damages are recoverable as a man, when 
 making the contract, would contemplate 
 could fl.ow from a breach of it." 
 
 " It were infinite for the lawto judge 
 the cause of causes and their impulsions 
 one of another ; therefore it contenteth 
 itself with the immediate cause, and 
 judgeth of acts by that, without look- 
 ing to any further degree." Bac. Max. 
 Eeg. 1, cited by Blackburn, J., in 
 Sneesby v. L. & T. Hail. Co., L. K., 9 
 Q. B. 263, p. 267. 
 
THE MEASURE OP DAMAGES. 821 
 
 independent of the breach, if they came into operation subsequently Sect. 717. 
 to that ; although but for the breach the loss would never have " 
 
 occurred. 
 
 But such a rule would be in conflict with many decisions. 
 Where the proximate cause of a loss has itself been a direct 
 consequence of the breach, it is clear that damages for that can be 
 recovered (h). And the same is true where the proximate cause 
 has been one which might probably, under ordinary circumstances, 
 come into operation ; although it may have been subsequent to, 
 and quite iadependent of, the breach itself («). It seems to follow, 
 on the principles adopted in Hadley v. Baxendale, and subsequent 
 cases, that although the subsequent cause may have been extra- 
 ordiuary, the loss occasioned by it is a matter for damages, if the 
 parties, when they entered into the contract, knew that that cause 
 might probably operate. 
 
 If this is so, the rule in Hadley v. Baxendale seems to be a com- 
 plete general expression of the limitations which are set, on the 
 score of remoteness, to the right to recover for losses actually sus- 
 tained, which but for the breach would not have been sustained. 
 The various dicta as to the directness and proximity of the con- 
 nection of losses with the breach perhaps indicate tests which 
 throw light on the application of the general rule, rather than add 
 further limitations to those contained in it {k). 
 
 718. But a further limitation of importance to the right to TheplaintifE 
 claim compensation for losses actually sustained is, that if there aggravate the 
 has been an aggravation of the loss through unreasonable conduct °^; 
 on the plaintiff's part, he cannot claim to charge that to the 
 
 (A) Burrows «. March Gas Co. , L. K. , Mowbray v. Merryweather, (1895) 1 
 
 5 Ex. 67 ; L. E., 7 Ex. 96 ; Sneesby v. Q. B. 857 ; 2 Q. B. 641. 
 L. &T. Rail. Co., L. E., 9 Q. B. 263 ; (A) Mr. Mayne, in a passage which 
 
 1 Q. B. D. 42 ; Bradshaw v. L. & Y. has frequently been quoted with ap- 
 
 Eail. Co., L. E., 10 C. P. 189. proval, said: " The first, and in fact the 
 
 (j) Smeed v. Foord, 28 L. J., Q. B. only, inquiry in all these cases is whether 
 
 178; Wilson v. DunvUle, 6 L; E., Ir. the damage complained of is the natural 
 
 210 ; Smith »; Green, 1 C. P. D. 92 ; and reasonable result of the defendant's 
 
 MoMahon t>. Eield, 7 Q. B. D. 591, act. It will assume this character if it 
 
 where the decision in Hobbs v. h. & S. can be shown to be such a consequence 
 
 W. EaU. Co. was commented upon. as in the ordinary course of things would 
 
 Also see Jones v. Adamson, 1 Ex. D. 60 ; flow from the act, or, in cases of contract, 
 
 and The City of Lincoln, 16 P. D. 15. if it appears to have been contemplated 
 
 Cf . Jamiesou v. Laurie, 6 Bro. Pari. by both parties. Where neither of these 
 
 Ca. 474 ; Abb. (6th), 186, supra, s. 630 ; elements exists, the damage is said to be 
 
 Sharp V. Powell, L. E., 7 0. P. 263 ; too remote." Mayne, Damages (4th), 
 
 Clark V. Chambers, 3 Q. B. D. 327 ; p. 45. 
 
822 
 
 THE DELIVEEY. 
 
 Sect. 718. defendant (l). And if the plaintiff has, after the breach, aggra- 
 vated his loss hy an independent course of action, reasonable or 
 not, which has not been forced upon him by the breach, but has 
 been voluntarily adopted by him, that cannot be charged to the 
 defendant (»?). 
 
 " In applying this general intention of placing the complainant 
 in the same position as he would have been in if the contract had 
 been performed to a case like the present, we must remember that 
 the altered position to be redressed must be one directly resulting 
 from the breach, and not from any act or omission of the com- 
 plainant subsequent to the breach, and not directly attributable to 
 it. It is not sufficient that it be an act or omission which would 
 not in fact have taken place but for the breach." * * * * " The 
 law never contemplates its being reasonable for him to create a loss 
 for himself because the contract has been broken " (m). 
 
 Thus, with regard to the shipowner, he cannot claim, as damages 
 for the charterer's failure to load, a loss incurred by keeping the 
 ship waiting for a cargo beyond the agreed lay days, and days on 
 demurrage (o). Nor can he claim for a detention of the ship which 
 the master might have avoided by a small sacrifice ; although the 
 detention may have been owing to a default of the freighter. As 
 where a ship was detained at the port of discharge, because the 
 consignee of the goods had failed to pay a small sum for dues, 
 which the master might have paid himself, and claimed from the 
 consignee (p) ; or where the ship has been kept in order to preserve 
 the shipowner's lien on the goods, when they might have been 
 landed and warehoused (q). 
 
 So with regard to the freighter. If the shipowner fails to pro- 
 vide a ship as agreed, he must act reasonably. He may generally 
 
 IJ) See Wilson v. The Newport Dock Q. B. D. 506 : Hammond v. Bussey, 20 
 
 Co., L. E., 1 Ex. 177; Eonneberg v. Q. B. D. 79. 
 
 Ealkland Islands Co., 34 L. J., C. P. („) per Mtzgerald, B., Irvine v. Mid. 
 
 34; Glover v. L. & S. W. Eail. Co., q. w. e^^. Co., 6 L. E., Ir. 65, at 
 
 L. E., 3 Q. B. 25. Welch «;. Anderson, pp. 63, 65. Infra, s. 723. 
 
 7 Asp. 177; Wilson v. Carmiohael, 21 / v t>v ui -n » t. e, t, „„, 
 
 o n ,,L\',oc^ kit IV- mu (o) Bhght t). Page, 3 B. & P. 295, n. ; 
 
 SesB. Oa. (4th) 732. After collision, The -r.. , ,-, , ^^ ,' „ .., 1 ' ' 
 
 •c vj o TT oa-, rri, -Dii ■ ^. , Dimech v. Corlett, 12 Moo. P. C. 199 ; 
 
 Eolides, 3 Hagg. 367 ; The Flymg Fish, „. , _ , • ' ■, r., _ . ^- '■"•' ' 
 
 o.T T Aj iiQ ^\, rn. ■ ■ ,, Hick J). Tweedy, 63 L. T. 765. 
 
 34 L. J., Ad. 113; The Thuiingia, 41 ^ 
 
 L. J., Ad. 44. (p) Mbller ». Jenks, 19 C. B., N. S. 
 
 [m) Waddell v. Blockey, 4 Q. B. D, 332. And see Davis v. L. & N. W. EaH. 
 
 678 ; Baxendale v. L. C. & D. EaU. Co., Co., 32 L. T., O. S. 148. 
 
 L. E., 10 Ex. 85. Cf . Loder ». Kekule, [q) See Mors le Blanch v. Wilson, 
 
 27 L. J., C. P. 27 ; Kiddle j>. Lovett, 16 L. E., 8 O.P. 227. 
 
THE MEASURE OF DAMAGES. 823 
 
 procure another ship, or other means of conveying his goods, and Sect. 718. 
 may claim the consequent increase of cost as damages. But that 
 will not he so if the suhstitution has heen made in an imprudent or 
 extravagant manner (r). 
 
 719. And, again, compensation wiU not be allowed for losses The plaintiff 
 which might reasonably have been avoided by the plaintiff; mUigate'the 
 although they may have directly resulted from the breach. He ^™^" 
 ought to take such steps as may be prudent, and reasonably within 
 
 his power, to mitigate the loss(s). And expenses or losses pru- 
 dently incurred in mitigating the ultimate loss will be allowed as 
 part of the damage (t). 
 
 Thus if a freighter, whose goods are left behind, can get another 
 ship or means of conveyance for them, that must be taken into 
 account in estimating his damages ; he cannot, by neglecting to 
 take advantage of the other means, recover damages on the footing 
 of a failure of his adventure (it) . 
 
 720. And so, too, with the shipowner. If the freighter fails to The ship- 
 send goods for shipment as agreed, the shipowner, on having notice geek another 
 that they will not be sent, must take such reasonable steps as are ^^^^ "^^^ 
 within his power to obtain other goods in their place (*).■ And if fails to load. 
 a charterer refuses to load the agreed cargo, the master should do 
 
 what he prudently can to get another cargo, at as good a freight 
 as may be had, and so avoid sailing empty («/). 
 
 In Wilson v. Hicks (s) the action was for not loading under a 
 charter, by which the ship was to proceed to Eangoon for orders 
 
 (r) Le- Blanche ». L. & N. W. Eail. Johnson, L. E., 8 0. P. 167. Eoth 
 
 Co., 1 C. P. D. 286 ; WaUer v. Mid. G. „. Taysen, 1 Com. Ca. 306. 
 
 W. Bail. Co., 4 L. E., Ir. 376; infra, (ti) Irvine v. Mid. G. W. Eail. Co., 5 
 
 s. 723. L. E., Ir. 66 ; O'Connor v. Poster, 10 
 
 ,.__., ^. ., „„T T -ci o^n Watts, 418 (U. S.), cited Sedgwick, 
 
 («) Wilsonf.Hicks, 26L. J.,Ex. 242 ' .. ,„„ ^ t j ri 
 
 TT . -E,, J ,\-i e TT-Bor rrx. Damages, 11., 102. Cf . per Lord Camp- 
 
 Hames (J.Edmonds, 10. &K. 686; The , ,, . „ ■, tj, j„oTTr>^ 
 
 _,, , . , ^ ' . ^ , „ heU m Smeed v. Toord, 28 L. J., Q. B. 
 
 Blenheim, 10 P. D. 167. But cf. per ,_„ ,oo a ii. tit v, ii oir t 
 
 HT i- i . «.,,.■ ^ . „.. 178, p. 182; Ansetti). Marshall, 27L. J., 
 
 Martm, B., in Smith v. McGuire, ^^ q ^ us 
 
 L. J., Ex. 465, p. 472. •^^^- g^^ '^j^^ Argentino, 13 P. D. 61, 
 
 («) See Tindall v. Bell, U M. & "W. 191 ; 14 A. C. 819 ; Aitken v. Ernst- 
 
 228; The Columbus, 3 W. Eob. 168; hausen, (1894) 1 Q. B. 773. Cf. Abbott 
 
 The Empress Eugenie, Lush. 138. Cf. (5th), 179. 
 
 The Marpessa, (1891) P. 403. As to (2^) The master has power to make new 
 
 the obligation to obtain a new contract arrangements for the employment of the 
 
 where a contract to be performed in the ship, where the charter party is broken 
 
 future has been repudiated, see Brown at a foreign port. Pearson v. Goschen, 
 
 V. Muller, L. E., 7 Ex. 319 ; Erost v. 33 L. J., 0. P. 266 ; supra, a. 44. 
 
 Knight, L. E., 7 Ex. HI; Eoper v. (2) 26 L. J., Ex. 242. 
 
824 
 
 THE DELIVEEY. 
 
 Sect. 720. and load a full cargo of rice at Eangoon or Bassein. On March 
 15tli the ship received orders at Eangoon to proceed to Bassein 
 (a place distant two or three days' sail) to receive orders from the 
 charterer's agents. On April 2nd she was at Basseia ready for 
 cargo. There was, however, no rice to be had there ; and on the 
 26th of April the agents proposed to the master that he should 
 either go hack to Eangoon, at an extra freight, and load a cargo 
 of rice there ; qr go to Moulmein and take a cargo of timher at an 
 extra freight ; or to Madras and load there ; the agents guaran- 
 teeing a good cargo and all extra charges. The master refused to' 
 take any of these courses, and remained at Bassein until the lay 
 days had expired ; after which he sailed to Penang. The result 
 was a delay of five months, and a great loss of freight ; and plaintiff 
 claimed full freight (less freight received), and expenses at Penang, 
 and extra wages and provisions during the five months. 
 
 Pollock, C. B., told the jury that in his opinion the captain was 
 bound, upon the evidence, to go again to Eangoon ; that it was the 
 duty of a master in such cases to do what was reasonable, and that 
 unless there was some clear objection to what was proposed by the 
 charterer's agent, his proposition should be acceded to as to some 
 change of the vessel's course or cargo ; that the rule in all cases 
 where a plaintiff sought to recover damages for breach of contract, 
 where the amount of damages depended on the conduct of the 
 party, was, that prima facie he was entitled to the full measure of 
 damages, but the jury were to take into consideration all the cir- 
 cumstances, and if the plaiatiS had acted unreasonably they might 
 diminish the damages on that account. The jury found for much 
 less than the plaintiff's claim. 
 
 This direction was approved by the Court ; but a new trial was 
 ordered on the ground that the damages were too small. 
 
 In Hudson v. HiH («), the ship was to have been loaded with 
 sugar at Barbadoes; but she arrived there after the sugar crop had 
 been shipped, and the charterer's agents refused to load, and 
 repudiated all liability under the charter party. They offered, 
 however, to load a cargo of sugar at St. Vincent, about ninety 
 miles off, if the master would go there ; and said that he might 
 take their offer " under protest." But he refused to depart from 
 the terms of the charter party without an indemnity, and, not 
 obtaining this, remained at Barbadoes, insisting upon having a 
 
 («) 43 L. J., C. P. 273. 
 
THE MEASURE OF DAMAGES. 825 
 
 cargo loaded there. After waiting more than the lay days he took Sect. 720. 
 a cargo under a charter made with other persons. At the trial, 
 Coleridge, 0. J., directed the jury, that the master might reasonably 
 think that if he shipped a cargo, under protest, elsewhere than at 
 Barhadoes, he might discharge the charterers from liability under 
 the charter party. And, on motion for a new trial, this direction 
 was held to have been right. 
 
 Brett, J., said {b) : " The defendants' agents were insisting that 
 there was no breach by them of the charter party, and the Lord 
 'Chief Justice pointed out that the captain may well have thought 
 that if he took any one of the cargoes proposed by the defendants' 
 agents, he might be deemed to have accepted it in substitution of 
 the cargo which the defendants were originally bound to load at 
 Barhadoes. His Lordship left this as an element to be considered 
 by the jury in determining the rights of the parties ; that is the 
 real effect of the summing up. I think the Lord Chief Justice 
 right in the view taken by him. The defendants' counsel have 
 urged that if the captain had availed himself, under protest, of the 
 offer made by the defendants' agents, he would not have altered 
 the liability of the defendants under the charter party now sued 
 upon ; but, in my opinion, if the captain had shipped any cargo 
 suggested by Messrs. Louis, he must have been deemed to accept 
 it upon the terms proposed by them." 
 
 In Dimech v. Corlett (c), it was held that the master was not 
 bound to accept another charter party, which was offered by other 
 persons, before the agreed days on demurrage had expired. For 
 he was still bound to be ready for cargo under the original charter 
 party, which had not been repudiated. 
 
 In Harries v. Edmonds (d), the charterer failed to load under a 
 charter for a cargo from Limerick to " London or some port in the 
 channel." Parke, B., said that the master was not bound to reduce 
 the damages by taking a cargo, which was offeted by others, to be 
 carried to Oowes to wait for orders. 
 
 721. The freight earned upon substituted cargo must be taken Substituted 
 into account in estimating the damages ; and if it has amounted ^^-^^^ ^^^^ 
 to as much as should have been earned under the charter party, *<=°oi™t' 
 after bringing in aU expenses, the damages for the breach will be 
 only nominal. 
 
 (*) 43 L. J., 0. P. p. 279. (e) 12 Moo. P. 0. 189, p. 231. {Oj I C. & K. 686. 
 
826 
 
 THE DELIVEEY. 
 
 Sect. 721. In Stanif orth v. Lyall (e), the sHp, after discharging her outward 
 cargo at Port Jackson, was to proceed to such port or ports in New 
 Zealand as the charterers or their agent at Port Jackson or in New 
 Zealand should direct, or, in the absence of such direction, to the 
 place in New Zealand where their principal agent might he settled, 
 and should wait fourteen days for the decision of the agent whether 
 to load a cargo or not. If the agent gave notice within the four- 
 teen days of his determination not to load, the voyage in the service 
 of the charterers was to be at an end after the fourteen days ; and 
 in that case the charterers agreed to pay 500/. to the shipowner for 
 the freight or hire of the ship for the voyage which should be so 
 ended. 
 
 The ship arrived in New Zealand, but there was no agent of the 
 charterers there to load, or to give the notice to terminate the 
 voyage ; and after waiting a reasonable time she sailed home by 
 Batavia, where she obtained a cargo. On the whole this voyage 
 was a more profitable one to the owner than the voyage with the 
 agreed cargo would have been. It was held that the event on 
 which the 500/. was to be paid had not happened, that the parties 
 were therefore " in the same situation as if the charter party con- 
 tained no stipulation on the subject ; " and that as no loss had been 
 sustained the damages should be only nominal (/). 
 Not so col- -^^t the fact that the shipowner has been incidentally benefited 
 
 iTenefiL t ^^ ^^ breach of contract, in transactions with which the contract 
 shipowner. has nothing to do, cannot be taken into account in estimating his 
 damages. For example, an increase of freights earned by other 
 vessels of the shipowner, in consequence of an improper detention 
 of the chartered ship, does not diminish the liability of the charterer 
 for the detention {g). 
 
 In Aitken i\ Ernsthausen {K) a fire occurred when the ship was 
 partly loaded, and destroyed part of the goods shipped. The 
 charterers refused to ship any more cargo, on the ground that they 
 were excused by an exception of fire. The shipowner completed 
 the cargo with goods from other shippers, and also filled the space 
 which had been occupied by the burnt goods. In an action against 
 the charterers for not loading the remainder of a full cargo, they 
 
 (e) 7 Bing. 169. Dock Co., L. R., 10 0. P. 300. Cf. The 
 
 (/) And see Puller V. Staniforth, 11 City of Peking, 16 A. C. 438; The 
 
 East, 232. Cf. Bell v. Puller, 2 Taun-. Mediana, (1900) A. C. 113. 
 
 285 ; supra, s. 652. (A) (1894) 1 Q. B. 773. Cf. "Weir v. 
 
 {ff) Jebsen v. East and West India Girvin, (1900) 1 Q. B. 45. 
 
THE MEASURE OF DAMAGES. 827 
 
 claimed, in estimating the damages, to have credit for the whole of Sect. 721. 
 the freight earned on the goods so shipped. It was held, by the 
 Court of Appeal, that they were not entitled to credit for the 
 freight on the goods taken in place of the burnt goods. The effect 
 of the fire was to reduce the contract to one for so much of the 
 ship as was not occupied by those goods. As to that space, the 
 shipowner could do with it what he liked, provided he did not 
 delay the voyage. 
 
 722. The amount of damages to* be paid upon a breach of a bill Damages may 
 of lading or charter party may be fixed by the contract itself, the contract. 
 Thus there may be an agreed sum payable for each day's deten- 
 tion of the ship ; or for each day's delay in delivering the goods ; 
 and a fixed dead freight may be payable for each ton short-shipped. 
 But in most cases the amount must be settled according to general 
 principles. 
 
 Such a clause as " penalty for non-performance estimated amount Penalty 
 of freight" (or some fixed sum), is frequently found in charters, charters, 
 but practically it appears to have little effect. On the one hand, 
 it does not limit the amount of damages which may be claimed («) ; 
 on the other hand, it does not entitle either party to claim the 
 amount of the penalty for a partial breach of the contract (Jc). 
 
 In Dimech r. Corlett (l), however, the Privy Council allowed 
 the plaintiff to recover the full estimated freight, claimed under a 
 penalty clause in respect of a total failure of the charterer to load 
 the ship. The only deduction made was of some freight earned by 
 taking a substituted cargo ; and it seems to have been considered 
 doubtful whether that deduction (which was made voluntarily) 
 could have been insisted on. " The true sense," the Court said, 
 "seems to be that, for any minor breach, the damages to be 
 recovered within the amount of freight are the damages actually 
 sustained, though it is not inconsistent with this that in case of an 
 entire non-performance, such as a neglect or refusal to put any 
 cargo on board, so that no freight could be earned, the parties had 
 agreed that the damages should be the full amount of freight 
 stipulated for in the instrument " {m). 
 
 (i) Harrison v. Wright, 13 East, 343. 139 ; The Princess, 70 L. T. 388 ; Eay- 
 
 Cf. Lea D. Whitaker, L. E., 8 0. P. 70. ner v. Eederiaktieholaget Condor, (1895) 
 
 . (k) Dimech v. Corlett, 12 Moo. P. C. 2 Q. B. 289. 
 
 199. See Betts ■„. Burch, 28 L. J., Ex. (Z) 12 Moo. P. 0. 199. 
 
 267 ; Godard v. Gray, L. R., 6 Q. B. {m) 12 Moo. P. C. p. 230. But of. 
 
828 
 
 THE DELIVERY. 
 
 Sect. 728. The claim to the penalty, there, was considered to comprehend 
 the whole of the shipowner's claims under the charter party, so 
 that an additional demand of ten days' demurrage, for waiting for 
 a cargo as required by the charter party, was disallowed. 
 
 Where a charter party contained a guarantee hy the shipowner 
 that the ship should sail with, if not before, any other vessel in the 
 berth for Havana on a certain date, " under penalty of forfeiting 
 one-half of the freight," it was held that the shipper might, on 
 default, sue for the amount of the half freight, without proving 
 any actual damages (n). "It is a sum payable on one event. It 
 is not a sum to secure the performance of several matters." 
 
 Failure to 723. Turning now to breaches of the contract by the shipowner, 
 
 take in goods. "^^ have to consider, first, what damages are payable where he fails 
 to supply a ship, or to take in goods as agreed. 
 
 The freighter loses the benefit of the agreed means of convey- 
 ance. He can, however, ordinarily obtain other means ; but that 
 may involve delay, and also increased freight. If so, he is entitled 
 to recover the amount of the extra freight and charges to which he 
 may be put, and also compensation for the delay in the transit. 
 
 Where the goods are waiting for shipment the cost of ware- 
 housing, or otherwise preserving them, is an ordinary consequence 
 of the breach, and forms part of the extra cost of the substituted 
 mode of sending them. 
 
 In Eeatherston v. Wilkinson (o). The Edith Emily was chartered 
 to take a cargo of 1,300 tons of coal in the Northumberland Dock 
 on the Tyne, during the first or second week of January, 1872, 
 and carry it to Havre. The charterer then agreed with the Beb- 
 side Colliery to take 1,300 tons at 10s. 6d. a ton in the first or 
 second week of January ; and The Edith Emily was put on the 
 turn-book for that time. She failed to take her turn, and the 
 charterer had to substitute two other vessels for her at an increased 
 rate of freight. Also, by the custom of the Tyne he could not 
 obtain his coal until he had substituted the vessels which were to 
 carry it ; consequently, as the price of coal had risen at Newcastle, 
 he had to pay an increased price for the coal. It did not appear 
 whether the price he could realise at Havre had increased corre- 
 spondingly. And, in the absence of such evidence, it was held 
 
 per Blaokburn, J., in Grodard -v. Gray, («) Sparrow i/. Paris, 31 L. J., Er. 
 
 L. E., 6 Q. B. 139, p. 147; Abtott 137. 
 
 (6th), p. 170. (o) L. R., 8 Ex. 122. 
 
THE MEASURE OF DAMAGES. 829 
 
 that lie was entitled to recover in respect both of the extra freight Sect. 723. 
 and the extra price paid for the coal. 
 
 Where a ship's husband had failed to carry (as he had cove- 
 nanted) certain brandy for the freighters outwards, to the port at 
 which they were to load a cargo of fruit, in consequence of which 
 the freighters could not obtain the homeward cargo, and were com- 
 pelled to pay damages for not loading it, it was held that they 
 could not claim to recover the amount of those damages for the 
 breach of the covenant (p). 
 
 If the charterer cannot get a ship of the same kind or size, he is Engaging 
 entitled to take the best reasonable substitute which is available to '^^"^ ^ ^' 
 him (q). If necessary he may properly charter a larger vessel. 
 The damages in that case will be the difference between the freight 
 on the whole cargo of the substituted ship, and that which would 
 have been payable for the agreed ship ; but giving credit for any 
 profit made on the surplus cargo carried to fill up the larger ship (r) . 
 
 In Irvine v. Midland Great Western Eail. Co. (s), the defendants 
 had failed to provide wagons of a particular kind, as agreed, for 
 the carriage of a quantity of hay to a place at which the plaintiff 
 might have sold it to advantage. He consequently sold it where 
 it lay, at a loss. It was held that he could not recover the amount 
 he would have realised had the hay been carried to the place in- 
 tended ; that the measure of damages, if the hay had been con- 
 veyed to the market in some other reasonable manner (as might 
 have been done), would have been the extra cost of doing so ; but 
 that, as it was, the plaintiff was entitled to no damages, except in 
 respect of a small portion of the hay which had been actually sent 
 in other wagons. 
 
 The judgment in that case turned on the fact that there were wtere no 
 other reasonable means of carrying the hay. What the result i^jj^ge 
 would have been had that not been the case was left doubtful. In avaiiaoie. 
 a case decided in Pennsylvania, in which the defendant had failed 
 to carry some wheat from Pittsburg to Philadelphia by canal, and 
 it did not appear that any other conveyance was practicable, it was 
 held that the measure of damages was the difference between the 
 value of the wheat in Pittsburg, with the freight added, and the 
 
 (p) Walton V. FothergiU, 7 C. & P. (r) MitoheU v. Kahl, 2 F. & F. 709, 
 
 392. per Cookburn, C. J. 
 
 (?) Hinde v. LiddeU, L. E., 10 Q. B. («) 6 L. E., Ir. • S5. Of. WaUer v. 
 
 265. Mid. a. W. EaU. Co., i L. E., Ir. 376. 
 
830 
 
 THE DELIVEEY. 
 
 Sect. 723. 
 
 Delay iu 
 carrying and 
 deliyering 
 goods. 
 
 Loss of the 
 use of the 
 goods. 
 
 Special use. 
 
 market price at Philadelphia at the time it should have arrived {t). 
 Such cases seem a,nalogous to those in which the shipowner has 
 failed to bring goods which have been shipped to their destination 
 (as to which, see below, s. 727). 
 
 724. Next, as to improper delay in carryiag the goods, and 
 delivering them at their destination. 
 
 The losses to the freighter, of frequent occurrence in such cases, 
 may be divided as follows : — (1) Loss by being deprived of the use 
 of the goods, or their value ; (2) Loss by their deterioration or 
 wasting, owing to the delay; (3) Loss by a fall in the market value 
 of the goods at their destination ; (4) Loss of profits, and liabilities 
 incurred upon a sale or contract for the use of the goods which the 
 delay has frustrated ; (5) Loss by beiag prevented from usiag other 
 property through want of the delayed goods. 
 
 Of these, (4) and (5) have been already dealt with (m). With 
 regard to (1), the loss of the ordinary use of the goods themselves, 
 or of the price they would have realized, is clearly a matter for 
 compensation. That is the necessary consequence of the delay, 
 and the measure of it which has been adopted, in some cases, has 
 been the amount of interest at a fair rate, for the time lost, upon 
 the value of the goods («). 
 
 The matter becomes more difficult when the use to which the 
 goods would have been put was of a special kind. The question 
 then is, as we have seen above, whether the carrier has received 
 and accepted notice of that special object, so that the proper 
 inference to drtw is that he contracted with reference to it. 
 
 If there was no such notice, the special use to which the 
 goods might have been put cannot be properly taken into account. 
 Thus, in Wilson v. L. & T. Rail. Co. {y), it was held that the 
 plaintiff could not recover the profits he would have made by 
 manufacturing the goods (cloth) into caps, had they been de- 
 livered within the proper time ; though the depreciation in value 
 of the cloth, due to the season having passed, might be taken into 
 account. 
 
 In Simpson v. L. & N. W. Eail. Co. (s), the plaintiff delivered 
 
 [t) O'CoBnor v. Foster, 10 "Watts, 418, 
 cited Sedgwick, Damages, 357. And 
 see Nourse v. Snow, 6 Greenl. 208, cited 
 Angell, Carr. s. 485. 
 
 («() Supra, Bs. 714—716. 
 
 [x) See British Columhia Saw Mill Co. 
 V. Nettleship, L. R., 3 0. P. 499, 
 {y) 30 L. J., 0. P. 232. 
 {z) 1 Q. B. D. 274. 
 
THE MEASURE OF DAMAGES. 831 
 
 some samples of goods, with a show tent, &c., to the defendants, Sect. 734. 
 to be carried to a show ground at Newcastle, where he meant to 
 exhibit the samples. They arrived too late for the show, owing to 
 improper delay ; and the plaintiff thereby sustained expenses and 
 wasted time to no purpose at Newcastle, and failed to make the 
 sales at the show which he might have made had he had the 
 samples. The Court considered that the plaiatiff's object in 
 sending the goods was known to the defendants; and held that 
 he was entitled to a sum which had been agreed upon as com- 
 pensation for his loss of profit and loss of time (a) . 
 
 Oookbum, C. J.; said : " The principle is now settled that when- 
 ever the object of. the sender is specially brought to the notice of 
 the carrier, or circumstances are known to the carrier from which 
 the object ought in reason to be inferred, so that the object may 
 be taken to have been within the contemplation of both parties, 
 damages may be recovered for the natural consequences of the 
 failure of that object " {b) . 
 
 The description of the goods may itself notify the carrier that 
 delay will diminish their value. Thus, in Schulze v. Gr. E. Eail. 
 Co. (c), where a parcel deKvered to the defendants with notice 
 that it contained samples had been delayed until the samples 
 were of no use, the plaintiEPs were allowed to recover the special 
 value they would have had if delivered within a reasonable time. 
 
 725. A loss by the physical deterioration or wasting of the Deterioration 
 
 ,,,,1. ■,. Ill ^"^ wasting 
 
 goods owing to the delay is an ordinary probable consequence, so of the goods, 
 far as it is such as might be expected to happen to such goods in 
 their ordiaary condition (d). If, however, the deterioration has 
 been the result of some specially sensitive condition of the goods, 
 which has not been brought to the notice of the carriers, the rule 
 excludes a claim for damages for that special loss. 
 In Baldwin ». L. C. & D. EaU. Go (e), some bales of rags were 
 
 (a) Cf. Gr. W. Rail. Co. v. Redmayne, ately," on the goods, was held not to he 
 
 L. R., 1 0. P. 329 ; Woodger v. Gr. W. a suffioient notice of a special purpose to 
 
 Rail. Co., L. R., 2 C. P. 318 ; and Watson the carriers. 
 
 V. Amhergate Rail. Co., 16 Jur. 448, {d) The Parana, lP.D.452; 2 P. D. 
 
 where the plaintiff lost the chance of a 118 ; Hawes v. S. E. Rail. Co., 52 Xi. T. 
 
 prize owing to delay in the carriage of a 614. Damage to cattle hy shortness of 
 
 model. food, owing to delay on the voyage due 
 
 (5) See Smeed v. Poord, 28 L. J., Q. B. to unseaworthiness of the ship, has been 
 
 178, cited stipra, s. 716. allowed in the U. S. ; The Caledonia, 
 
 {«) 19 Q. B. D. 30. In Candyi-. Mid. 157 U. S. 124 (1896). 
 Rail. Co., 38 L. T. 226, the marking (e) 9 Q. B. D. 582. Cf. Waller v. 
 
 "Traveller's goods; deliver immedi- Mid. G. W. EaU. Co., 4 L. B. Ir. 376. 
 
832 THE DELIVEEY. 
 
 Sect. 725. delayed more tlian a fortnight, over a transit whicli would ordi- 
 narily have occupied only twenty-four hours. The rags had been 
 packed in a damp state, and they consequently heated and rotted, 
 and became worthless. Had they been packed dry they would 
 not have suffered. It was held that the defendants were not 
 liable for the loss, as they had no notice of the condition of the 
 rags. 
 
 Loss of 726. Loss of market value is in some respects analogous to 
 
 ty delay. deterioration of the goods; but from the point of view of the 
 present discussion there is an essential difference between them. 
 The fall in the market is not a consequence of the improper 
 delay ; and where it is due to a fluctuation which is not of a 
 periodical, regularly recurrent kind, so that it would not be antici- 
 pated as a matter of common expectation, it is not one of those 
 ordinary circumstances by which the carrier's liability may be 
 increased (/). 
 
 In The Parana {g), hemp and sugar had been shipped at 
 Manilla and Ilo-Ilo for London. Owing to the defective con- 
 dition of the ship's boilers the voyage occupied 127 days, which 
 was thirty- seven days more than a reasonable allowance. The 
 plaintifis claimed damages for loss of weight of sugar by drainage 
 during this delay, for loss of interest upon the value of the cargo, 
 and for loss of market on the hemp ; the price of hemp having 
 fallen 20s. a ton during the last thirty-seven days of the voyage. 
 The first two items of damage were allowed ; the third was dis- 
 allowed by the Court of Appeal, reversing the judgment of Sir 
 E. Phillimore. 
 
 In giving judgment, Mellish, L. J., said : " There is no case, I 
 believe, in which it has ever been held that damages can be 
 recovered for delay in the carriage of goods on a long voyage by 
 sea, where there has been what may be called a merely accidental 
 fall in price between the time when the goods ought to have 
 arrived, and the time when they did arrive — no case that I can 
 discover where such damages have been recovered ; and the ques- 
 tion is, whether we ought to hold that they ought to be recovered. 
 If goods are sent by a carrier to be sold at a particular market— if , 
 for instance, beasts are sent by railway to be sold at Smithfield, or 
 fish is sent to be sold at Billingsgate — and, by reason of delay on 
 
 (/) See per Cave, J., Hawes v. S. E. of. The Caledonia, 137 U. S. 124 (1895). 
 KaU. Co., 52 L. T. 614, p. 516. But (y) 1 P. D. 452; 2 P. D. 113. 
 
THE MEASURE OF DAMAGES. 833 
 
 the part of the carrier, they -have not arrived in time for the Sect. 726. 
 
 market, no doubt damages for the loss of market may he recovered. 
 
 So if goods are sent for the purpose of being sold in a particular 
 
 season when they are sold at a higher price than they are at other 
 
 times, and if, by reason of breach of contract, they do not arrrive 
 
 in time, damages for loss of market may be recovered. Or if it is 
 
 known to both parties that the goods will sell at a better price if 
 
 they arrive at one time than if they arrive at a later time, that 
 
 may be a ground for giving damages for their arriving too late 
 
 and selling for a lower sum. But there is in this case no evidence 
 
 of anything of that kind.- As far as I can discover it is merely 
 
 said that when the goods arrived in November they were likely to 
 
 sell for less than if they had arrived in October, for the market 
 
 was lower." 
 
 And after referring to cases of carriage by railway (Ji), and 
 suggesting a diilerence between those and cases of carriage by sea, 
 he continued : — " The diiierenee between cases of that kind and 
 cases of the carriage of goods for a long distance by sea seems to 
 me to be very obvious. In order that damages may be recovered, 
 we must come to two conclusions — first, that it was reasonably 
 certain that the goods would not be sold until they did arrive ; and, 
 secondly, that it was reasonably certain that they would be sold 
 immediately after they arrived, and that that was known to the 
 carrier at the time when the bills of lading were signed. It 
 appears to me that nothing could be more uncertain than either of 
 those two assumptions in this case. Groods imported by sea may 
 be, and are every day, sold whilst they are at sea. If the man 
 who is importing the goods finds the market high, and is afraid 
 that the price may fall, he is not usually prevented from selling 
 Ms goods because they are at sea. The sale of goods to arrive, the 
 sale ^ of goods on transfer of bill of lading, with cost bills and 
 insurances, is a common mercantile contract made every day. It 
 may be that, from not having samples of the goods, or from not 
 knowing what is the particular quality of his goods, the consignee 
 may have a difliculty in selling them until they arrive, but that 
 would not affect the question. Nor would it signify that the goods 
 no longer belonged to the original consignee, but to a man who had 
 acquired them by the assignment of the biU of lading whilst the 
 
 (A) See Collard V. S. B. Rail. Co., 30 Co., 30 L. J., 0. P. 232. Butof.Hawea 
 L. J., Ex. 393 ; Wilson v. L. & T. Kail, 4-. S. E. Rail. Co., 52 L. T. 514. 
 c— C. 3 H 
 
834 
 
 THE DELIVERY. 
 
 Sect. 7Z6. 
 
 Goods lost or 
 damaged, 
 value to be 
 estimated as 
 at the time 
 and place for 
 delivery. 
 
 goods were at sea,. We were told that in this case the plaintiff was 
 a person who had advanced money on the security of the hills of 
 lading. That possibly may be the case ; but whether he has done 
 that, or is the purchaser, would make no difference. It was said 
 that the goods were sold, and that if the person who sells them 
 does not suffer the damage, then the purchaser would suffer the 
 damage. But that is pure speculation. If a man purchases goods 
 while they are at -sea, no- person can say for what purpose he pur- 
 chases them. He may purchase them because he thinks that if he 
 keeps them for six months they will sell for a better sum, or he 
 may want to use them in his trade. It is pure speculation to enter 
 into the question for what purpose he purchases them. In this 
 particular case the plaintiff did not sell the goods when they 
 arrived, for he sold them some months afterwards, when a further 
 fall had taken place in the market. Of course, he does not seek to 
 recover from the defendant that additional loss, but it serves to 
 iUustrata how uncertain it is whether he would have sold them. If 
 he did not sell them when they did arrive, but kept them because he 
 thought the market would rise, how can we tell that he would not 
 have done exactly the same thing if the goods had arrived in 
 time ? Therefore it seems to me that to give these damages would 
 be to give speculative damages — to give damages when we cannot he 
 certain that the plaintiff would not have suffered just as much if the 
 goods had arrived in time. According to the principles on which 
 the Courts have acted in all such speculative and uncertain cases, 
 damages ought not to be recovered " (i). 
 
 727. It remains to consider cases in which the carrier has 
 wholly failed to deliver the goods; or has delivered them damaged. 
 
 Apart from special circumstances, which may affect the case in 
 such ways as we have been considering, the value of the goods for 
 which compensation must be made, when they have been lost, or 
 damaged, is that which they would have had at the time, and 
 place, at which they ought to have been delivered (Ji). And this is 
 
 (j) This decision was followed in The 
 Hotting Hill, 9 P. D. 105, where tie 
 claim was for damages owing to a colli- 
 sion. Cf. Smith y. Tregarthen, 57 L. T. 
 68, where the goods were brought for- 
 ward in the wrong steamer, and so were 
 delayed. 
 
 {k) Brandt v. Bowlby, 2 B. & Ad. 
 932 ; Rico v. Baxeudale, 30 L. J., Ex. 
 
 371 : O'Hanlan v. Or. W. Rail. Co., 34 
 L. J., Q. B. 154 ; TheThyatira, 8 P. D. 
 155 ; Gt. Indian Pen. Rail. Co. v. Turn- 
 bull, 63 L. T. 325 ; Gillingham v. Demp- 
 sey, 12 S. & R. 188 (U. S.), cited Ang. 
 Carr. s. 482. Cf. Parker v. James, 4 
 Camp. 112; Sedgwick, Damages, II., 
 96 ; Aug. Carr. ss. 482 — 485. The same 
 measure of damages was adopted in an 
 
THE MEASURE OF DAMAGES. 835 
 
 true although the freighter who is claiming may have contracted Sect. 7S7. 
 to sell the goods at a less price than they would have realised on 
 arrival (/). The value is ordinarily estimated by reference to the 
 market price at the place. But if there is no market at the desti- 
 nation in which such goods can be replaced, so that they could 
 only be bought there, if at all, at a fancy price, that would not be 
 the proper measure of their value. In O'Hanlan v. Great "Western 
 Eail. Co. (m), it was held that the value in such a case must be 
 ascertained by considering their cost at the place of manufacture, 
 and the expenses of transit, and adding a reasonable sum for profit 
 to the importer. 
 
 Any freight or charges which the freighter would have had to 
 pay in order to get the goods must be deducted from the estimated 
 value. But freight paid in advance is not to be deducted, 
 although the shipowner may have made an allowance to the 
 freighter for insurance of the advance (m). 
 
 Where the goods have been sold at a port of refuge to pay for Sale at port 
 repairs to the ship, the freighter, as we have seen (o), is entitled to 
 claim the amount of the proceeds, or, if the ship arrives, the 
 amount they would have realised at the port of destination, after 
 deducting freight and charges. 
 
 The same is true where the sale has been wrongful. But if the 
 goods were sold in a damaged, or perishing, condition, and the 
 shipowner was not responsible for that, their condition must be 
 taken into account. The amount to be ascertained is what the 
 goods would have been worth to their owners, had they not been 
 sold, as they lay, and paying regard to the obligations of the 
 carrier under the contract (p). 
 
 728. Where the claim for damages is apart from contract, as for Wrongful 
 a wrongful act done to the goods, the rule which excludes losses goods, 
 that arise from special circumstances, not anticipated beforehand, 
 does not apply. If the plaintifE has been wrongfully deprived of 
 goods which he could not replace, and if they had a peculiar value 
 to him, or if through want of them he has sustained a special 
 
 action against the master, who signed (m) 34 L. J., Q. B. 154. 
 
 the hill of lading although the goods (k) Bodocanaohi v. Milburn, 18 Q. B. 
 
 came forward later in another ship. D. 67 ; reversing 17 Q. B. T>, 316, cited 
 
 Smith n. Tregarthen, 57 L. T. 58. supra, s. 566. 
 
 (I) Eodooanaohi v. Milburn, 18 Q. B. (o) Supra, 6. 320. 
 
 D. 67 ; reversing 17 Q. B. D. 316. Of. [p) See Ewhank v. Nutting, 7 0. B. 
 
 Magnln v. Dismore, 62 N. T. Rep. 35. 797 ; Aoatos v. Bums, 3 Ex. D. 282. 
 
 3h2 
 
836 THE DELIVERY. 
 
 Sect. 728. detriment, he is entitled to compensation for the loss of that value, 
 or for that detriment, although the wrongdoer may have had no 
 notice of the circumstances which caused it(g'). "The actual value 
 is fixed by circumstances at the time of the demand, and no notice 
 of the special circumstances could then affect the actual value 
 of the goods withheld from their rightful owner, who thereby 
 sustains an 'actual present loss,' which appears to us to be a 
 convertible term with ' actual value'" (r). 
 
 If, however, the wrong be a continuing one, as an improper 
 detention of goods, it may be that a special loss sufEered in conse- 
 quence will not be recoverable unless the wrongdoer was aware of 
 the special injury he was causing (s). 
 Losses by In cases of collision it has been held that compensation must be 
 
 paid for loss of the business on which the ship was engaged at the 
 time (t). And where a ship was prevented by a colKsion from 
 proceeding to take in cargo under a profitable charter, so that the 
 charterers were entitled to cancel the charter, and did so, that was 
 held to be a matter to be taken into account (m). 
 
 Presumably the same principle would apply with regard to cargo 
 damaged by a collision. But it has been held that a loss by a fall 
 in the market price during a delay caused by a collision is not to be 
 taken into account («). 
 
 Effect of mis- 729^ ^ question of some difficulty arises where the goods have 
 
 descnption 01 -^ " ^ ° 
 
 goods in. bill been shipped under a wrong description. If that' has been done 
 fraudulently, and the carrier has been deceived as to their quality 
 and value, it has been held in several cases that he is not responsible 
 in damages for them (y). 
 
 (j) Bodley v. Eeynolds, 8 Q. B. 779 ; plation of the parties. 
 
 Wood V. Bell, 25 L. J., Q. B. 148 ; (»•) Per MeUor, J., delivering the 
 
 Trance v. Gaudet, L. E., 6 Q. B. 199. judgment in France v. Gaudet, L. E., 6 
 
 "The rule with regard to remoteness of Q. B. 199, p. 205. 
 
 damage is precisely the same whether (») Per Mellor, J., ibid. 
 
 the damages are claimed in actions of {i) The Betsey Gaines, 2 Hagg. 28 ; 
 
 contract or of tort." Per Brett, M. E.^ The Eisoluto, 8 P. D. 109. 
 
 The Notting HiU, 9 P. D. 105. I would («) The Star of India, 1 P. D. 466 ; 
 
 suggest that there is this difBerence, that The Gonsett, 5 P. D. 229 ; The Kate, 
 
 in cases of tort the inquiry is whether (1899) P. 165. Gf. The Argentine, 13 
 
 the damage was the natural consequence P. D. 61, 191 ; 14 A. 0. 519. 
 
 of the circumstances in fact existing ; {xj The Notting TTill, 9 p. D. 105. 
 
 whUe in oases of contract only those (y) Gibbon v. Paynton, 4 Burr. 2298 ; 
 
 circumstances are to be taken into Batson v. Donovan, 4 B. & Aid. 21. 
 
 account which may reasonably be sup- And see per Parke, B., in Walker v. 
 
 posed to have been within the oontem? Jackson, 10 M. & W. 161, p. 168. 
 
THE MEASUEE OP DAMAGES. 837 
 
 Thus, in Belfast and Ballymena Eail. Co. v. Keys(z), it was Sect. 729. 
 held that the company were not responsible for merchandise which 
 the plaintifE had taken as personal luggage when he knew that 
 they required all merchandise carried to he paid for. Lord "West- 
 hury said (a) : " Under these circumstances there could not exist, in 
 law or in reason, any contract whatever between the plaintiff and 
 the company touching these goods, upon the breach of the perform- 
 ance of which contract the plaintiff could have a right against the 
 company." 
 
 Where a misdescription has occurred by mistake, there has been 
 some difference of opinion as to whether the shipowner is respon- 
 sible at all under the contract ; and if he is responsible it is, it 
 seems, doubtful for what (b). The better opinion appears to be 
 that, though the thing delivered and received to be carried may 
 have been misdescribed, the contract to carry has in fact been made 
 with reference to it, and to nothing else. And if so, the carrier's 
 liability would appear to extend to the whole value of that ; unless 
 the shipper is precluded from saying that there has been a mis- 
 description. 
 
 ' When there has been no mistake, but the contract and the rate 
 of freight have been based upon an assumed fictitious state of 
 values of the things carried, the shipper will be bound by that (c). 
 But it has not been decided whether the same holds good in a case 
 of mistake. 
 
 730. It is no defence to a claim for a loss of goods that another Effect of 
 person is liable to give them up, or to pay their value. But the tMrd^pCTsons. 
 right of recovery against the other may be taken into account in 
 estimating the amount of damage suffered {d). 
 
 The shipowner is not, however, entitled to any benefit from the insurancea . 
 fact that insurers have paid, or are liable to pay, in respect of the ^^^ account, 
 loss (e). 
 
 Where the goods are not the property of the person who is LiabUity for 
 claiming under the contract in respect of them, he may still be ^ ^°° ^ 
 
 (z) 9 H. L. C. 556. pp. 205, 206. See Hiort v. L. & N. W. 
 
 (a) 9 H. L. 0. p. 873. Eail. Co., 4 Ex. D. 188. Cf. Mayne, 
 
 (J) See the judgments in Lebeau v. Damages, p. 102. 
 Gen. Steam Nav. Co., L. E. 8 0. P. (e) Tatesv.Wbyte, 4Bing. N. C. 272 ; 
 
 88 ; cited supra, s. 72. Bradbum v. G. W. EaU. Co., L. E., 10 
 
 if) M'Canoeji. L. feN. W. Eail. Co., Ex. 1. And see Jebsen v. East and 
 
 34 L. J., Ex. 39. West India Dock Co., L. E., 10 0. P. 
 
 M Per Bayley and Holroyd, JJ., 300; Hill i;. Scott, (1895) 2 Q. B. 371 ; 
 
 Morris v. Eobinson, 3 B. & C. 196, 713. 
 
838 THE DELIVERY. 
 
 Sect. 730. entitled to their value, if he is Kable for that to another (e) ; or is 
 entitles plain- Suing on behalf of the owner (/). 
 
 tiff to claim. i- j. 
 
 Costs incurred 731. Where, in consequence of a breach by one of the parties to 
 
 ttird*^°erson^ a contract actions have been brought against the other by third 
 
 o-wiug to tke persons, the question arises whether he can recover the costs he has 
 
 thus incurred, or has become liable to pay, as being part oi his 
 
 damages by the breach. 
 
 In Mors-le-Blanch v. Wilson (g), charterers brought their "action 
 against sub-shippers for detaining the ship at the port of discharge, 
 and claimed to recover costs which they had incurred in defending 
 an action for the same matter brought against them by the ship- 
 owner. It was held that they were entitled to these costs ; the jury 
 having found that it was a reasonable thing for the charterers to 
 defend the action. But this decision was disapproved of by the 
 majority of the Exchequer Chamber, in Baxendale t". L. C. & D. 
 Eail. Co. {h), on the ground that the two contracts were inde- 
 pendent of one another. Lush, J., however, distinguished Mors- 
 le-Blanch V. Wilson on the grounds that the amount of demurrage 
 ascertained in the first action would necessarily be the measure of 
 damages in the second, and that the jury had expressly found that 
 the charterer's course had been reasonable. 
 
 And the subsequent decision of the Court of Appeal in Ham- 
 mond v. Bussey («) shows that the question in each case is, 
 whether the costs which have been incurred were damages which 
 may reasonably be supposed to have been in the contemplation of 
 both parties, at the time they made the contract, as a probable 
 result of the breach of it. In that case the defendant had con- 
 tracted to supply the plaintiffs with " steam coal " for use on 
 steamships, knowing that the plaintiffs were buying to resell the 
 coal as fit for that purpose. The coal supplied was not fit for the 
 purpose, and the defect in it was one which could not be ascertained 
 by inspection. Claims were in consequence made on the plaintiffs 
 
 (c) Randall v. Koper, 27 L. J., Q. B. v. Smith, 12 L. J., C. P. 203, where 
 
 266; Crouch )). L. & N. W. Rail. Co., charterers who had been sued by shippers 
 
 2 C. & E!. 789. Cf. Wilson v. Car- recovered the loss from the shipowner, 
 
 miohael, 21 Sess. Ca. (4th), 732, where (A) L. R., 10 Ex. 36. Cf. Fisher v. 
 
 the claim based on liability to another Val de Travers Asphalte Co., 1 C. P. D. 
 
 was disallowed because it might hare 611 ; Evans v. Bullock, 38 L. T. 34 ; 
 
 been avoided if skill had been used. CoUen v. Wright, 27 L. J., Q. B. 215 ; 
 
 {/) See Lloyds v. Harper, 16 Ch. D. Godwin v. Francis, L. R., 6 C. P. 295. 
 
 290 ; Robertson v. Wait, 8 Ex. 299. (i) 20 Q. B. D. 79. Cf. Bramley v. 
 
 is) L. R., 8 C. P. 227 ; and see Blyth Chesterton, 27 "h. J„ 0, P. 23. 
 
THE MEASURE OF DAMAGES. 839 
 
 by their sub-purchasers ; and as the defendant repudiated liability Sect. 731. 
 and declined to interfere, the plaintiffs defended the action brought 
 for those claims and thus incurred costs as well as damages. It 
 •was held by the Court of Appeal, aflfirming the ruling of Field, J., 
 that the plaintiffs, under the circumstances, acted reasonably in 
 defending the action, and that the costs consequently incurred 
 •were recoverable by them from the defendant as damages under 
 the rule in Hadley v. Baxendale. 
 
 Lord Esher said (k) : " To my mind it is perfectly clear that, 
 according to a reasonable business view of the reasonably probable 
 course of business, the parties may be supposed to have contem- 
 plated at the time when the contract was made, as the inevitable 
 or at any rate the highly probable result of a breach of it, that 
 there would be a law suit between the plaintiffs and their sub- 
 vendees, in which it would be reasonable for the plaintiffs to 
 defend, and in which, if it turned out that there was a breach of 
 the warranty, the plaintiffs would lose, and that they would 
 thereby necessarily incur costs." 
 
 This was followed in Agius v. Great Western Colliery Co. (l), 
 where the plaintiff was allowed his costs of defending the former 
 action taxed as betweep. solicitor and client ; giving credit for so 
 much of them as he had recovered from the plaintiffs in that 
 action, under a successful plea of payment into court. 
 
 (i) 20 Q. B. D. at p. 93. {I) (1899) 1 Q. B. 413 (C. A.). 
 
841 
 
 APPENDIX A. 
 
 The following are tlie forms of bills of lading approved by the Asso- 
 ciation for the Eeform and Codification of the Law of Nations at their 
 Conferences at Liverpool, in 1882, and at Hamburg, in 1885 : — 
 
 1. LiTEEPOOL Bill of Lading, 1882. 
 
 Shipped, in apparent good order and condition, by , in and upon 
 
 the good steam ship called the , now lying in the port of ; 
 
 and bound for , with liberty to call at any ports, in any order, to sail 
 
 without pilots, and to tow and assist vessels in distress, and to deviate for 
 the purpose of saving life or property; also with liberty, in case the ship 
 sbaJl put iato a port of refuge for repair, to tranship the goods to their desti- 
 nation by any other steamer (vessel) ; and with liberty to convey goods in 
 Hghters to and from the ship, at shipper's risk. Such lighterage to be at 
 ship's expense, except that if the cargo is necessarily landed in lighters, the 
 ship being unable to reach the port of destination, the cost of such hghterage 
 shall fall on the cargo 
 
 being marked and numbered as per margin, and to be delivered in the like 
 good order and condition at the aforesaid port of 
 
 The act of God, perils of the sea, fire, barratry of the master and crew, enemies, pirates, and 
 thieves_, arrest and restraint of princes, rulers, and people, collisions, stranding, and other accidents 
 of navigation excepted, even when occasioned by the negligence, default, or error in judgment of 
 the pilot, master, mariners, or other servants of the shipowners. 
 
 Ship not answerable for losses through explosion, bursting: of boilers, breakag:e of 
 shafts, or any latent defect in the machinery or hull, not resulting from want of due 
 (Uligence by the owneiB of the ship, or any of them, or by the ship's husband or manager ; nor for 
 decay, putrefaction, rust, sweat, atiange of character, drainage, or leakage arising from the nature 
 of the goods shipped or the insufficiency of the packages ; nor for any damage or loss occasioned 
 by the prolongation of the voyage, nor for obliteration or absence of marks, numbers, addresses, 
 or descriptions of goods shipped 
 
 unto , or to his or their assigns, freight, primage and charges lor 
 
 the said goods, as per margiu, to be paid on delivery by . Preight 
 
 to be paid in cash, without discount, at the rate of exchange lor bankers' 
 bills at sight, current on the day of the ship's entry inwards at the custom- 
 house. General average payable according to York-Antwerp Eules. 
 
 In witness whereof, the master or agent of the said ship hath affirmed to 
 three bills of lading, all of this tenor and date (drawn as first, second, and 
 third), the first of which bills being accomplished, the others to stand void. 
 
 1. — Quality -marks, if wny, to he of the same size as and contiguous to the 
 leading marhs ; and if inserted in the shipping notes accepted hy the mate, the 
 •master is hound to sign hills of lading conformahle thereto. 
 
 2. — Ship not liable for breakage of glass, earthenware, or china. 
 
 3. — Not accountable for goods of any description which are above the value of 
 100?. per package, unless the value he herein expressed and a special agreement 
 
842 APPENDIX A. 
 
 Appendix A. made; nor for gold, silver, bullion, specie, docv/ments, jewellery , pictures, emhroi- 
 deries, or works of art, silJcs, furs, china, watches, or clocks, unless iills of lading 
 are signed therefor, with the value therein expressed, and a special agreement be 
 made. 
 
 4. — Shippers accountahle for any loss or damage to ship or cargo caused hy 
 inflammable, explosive, or dangerous goods, shipped without full disclosure of 
 their nature, whether such shipper shall have been aware of it or not, and 
 whether such shipper be principal or agent; such goods may be thrown over- 
 board or destroyed hy the master or owner of the ship at any time without 
 compensation. 
 
 0. — All fines or damages which the ship or cargo may incur or suffer by reason 
 of incorrect or insufficient marking of packages or description of their contents, 
 shall be paid by the shipper or consignee, and the ship shall have a lien on the 
 goods of such shipper or consignee for the amount thereof. 
 
 6. — Goods delivered to the ship, whilst on quay awaiting shipment, to be at 
 shipper's risk, as regards all the perils excepted in this bill of lading. 
 
 7.- — Goods once shipped cannot be taken aivay by the shipper except upon pay- 
 ment of full freight, together with the expenses of landing them, and compensation 
 for any damages sustained by the owners through such taking away. 
 
 8. — In case the ship shall be prevented from reaching her destination by 
 quarantine, blockade, ice, or the hostile act of any power, the master or owners 
 may discharge the goods into any depot or lazaretto, or at any near available 
 port ; all expenses thereby incurred upon the goods to be borne by the owners or 
 receivers thereof. 
 
 9.- — Ship to have a lien on all goods for payment of freight and charges, 
 including back freight, demurrage, forwarding charges, and charges for carriage 
 to port of shipment, whether payable in advance or not. 
 
 10. — Jf the ship is able to carry the goods to their destination, but the goods, 
 by reason of damage sustained or of their own nature, are not fit to be carried all 
 the way, and if such goods have received an enhancement of value hy reason of 
 their partial carriage, the ship shall be entitled to a pro rata freight in proportion 
 to the distance performed, which freight is in no case to exceed the amount of such 
 enhancement of value. Pro rata freight is admissible in no other case than that 
 dealt with in the preceding sentence, unices there be an acceptance of the goods hy 
 the shipper or owner of the goods. 
 
 11. — When the goods are fit to be carried to their destination, but the ship is 
 unable to carry them, the shipowner may earn full freight by sending the goods 
 to their destination at his own expense ivithin reasonable time in another bottom ; 
 this right is not affected by an abandonment of the ship by her crew, or to the 
 underwriters, and the ship is to be, for this purpose, deemed unable to carry the 
 goods to their destination, if she either cannot he repaired at all, or cannot he 
 repaired except at an expense exceeding her value when repaired. 
 
 12. — Full freight is due on damaged goods. 
 
 13. — No freight is due on any increase in bulk or weight caused by the absorp- 
 tion of water during the voyage. 
 
 14. — To the extent of the value of the lien, freight which, by the terms of the 
 hill of lading, is made payable by the consignee, cannot he demanded from the 
 shipper after the master has parted with his lien on the goods. 
 
 15. — The goods, if not taken by the consignee immediately on landing, or 
 within such further time as is provided hy the regulations of the port of dis- 
 charge, may he stored by the master, at the expense and risk of the owner of the 
 goods. The master shall be entitled to recover from the shipper the difference 
 betiveen the amount of freight stipulated in the hill of lading and the proceeds of 
 the goods, should the consignee neglect or refuse to receive the same. 
 
 16. — In the event of claims for short delivery, when the ship reaches her 
 destination, the price to he the market price at the port of destination on the day 
 of the ship's reporting at the custom-house, less all charges saved. 
 
 Notice. — In accepting tMs bill of lading, tie owner of the goods and the 
 shipper expresBly accept and agree to all its stipulations and conditions, 
 ■whether -written or printed. 
 
 Dated in , this day of , 188 . 
 
 Weight, quality, and contents unkiwwn. 
 
APPENDIX A. 843 
 
 2. HAMBUEGt Bill of Ladino, 1885. Appendix A. 
 
 Shipped in apparent good order and condition on board the sUp , 
 
 whereof is master for the present voyage , now lying in the port 
 
 of and hound for , being marked and numbered as per margin, 
 
 to be carried and delivered at the port of unto or order on his 
 
 paying freight for the said goods at the rate of 
 
 Subject to all the conditions of the Hamburg Rules of Affreightment. 
 
 In witness whereof the master of the said ship has signed bills of lading, 
 all of this tenor and date, one of which being accomplished the others to 
 stand void. 
 
 Dated at , 188 . 
 
 Signed, , Master. 
 
 And "The Hamburg Eules of Affreightment," which are thus 
 incorporated, are as follows : — 
 
 I. — The shipowner shall be responsible that his vessel is properly equipped, 
 manned, provisioned, and fitted out, and in all respects seaworthy and 
 capable of performing her intended voyage, and for the stowage and right 
 dehvery of the goods. He shall also be responsible for the barratry, faults, 
 and negligence, but not for errors in judgment of the master, officers, and 
 crew. 
 
 n. — The shipowner shall not be responsible for loss or damages arising 
 from vis major, public enemies, civil commotions, pirates, robbers, fire, 
 explosion, bursting of boilers, breakage of shafts or screws, nor for any 
 latent defect in hull or machinery, not resulting from want of due diligence 
 by the owner, husband, or manager of the ship, nor for the cargo's decay, 
 putrefaction, rust, sweat, change of character, drainage, leakage, breakage, 
 or any damage arising from the nature of the goods shipped, or such defective 
 packing as could not be noticed externally, nor for the obliteration of marks, 
 numbers, addresses, or descriptions of goods shipped, nor for any damage or 
 loss caused by accidental prolongation of the voyage, nor for other accidents 
 of the seas, unless it is proved that such exception comes under Eule I. 
 
 m. — Steamship to be at liberty to call at any intermediate ports, to sail 
 without pilots, provided such sailing does not constitute a fault of negligence, 
 to tow and assist vessels in distress, and to deviate for the purpose of saving 
 life or property ; also at liberty, in case the ship shall put into a port of 
 refuge for repairs, to tranship the goods to their destination by other vessels, 
 and at liberty to convey goods in lighters to and from the ship at shipper's 
 risk, but at ship's expense. 
 
 IV. — Quality-marks, if any, to be of the same size as and contiguous to the 
 leading marks ; and if inserted in the shipping notes accepted by the mate, 
 the master is bound to sign bills of lading conformable thereto. 
 
 V. — Ship not accountable for gold, silver, bullion, specie, documents, 
 jewellery, works of art, or other precious articles, unless bills of lading are 
 signed therefor with the value therein expressed, and a special agreement 
 be made. 
 
 "VI. — Shipper accountable for any loss or damage to ship or cargo caused 
 by inflammable, explosive, or dangerous goods, shipped without full dis- 
 closure of their nature, whether such shipper shall have been aware of it or 
 not, and whether such shipper be principal or agent; such goods may be 
 thrown overboard or destroyed by the master or owner of the ship at any time 
 without compensation. 
 
 VII. — Shipper and consignee to be responsible for all fines or damages 
 which the ship or cargo may incur or suffer by reason of incorrect or insuffi- 
 cient marking of packages or description of their contents. 
 
 VIII. — Goods delivered to the ship while on quay awaiting shipment to 
 be considered as taken on board as far as the shipowner's responsibihty is 
 concerned. 
 
 IX. — Goods once shipped cannot be taken away by the shipper except 
 upon payment of full freight and compensation for any damages sustained 
 by the shipowners through such taking away. 
 
 X. — In case the ship shall be prevented from reaching her destination by 
 quarantine, blockade, ice, or the hostile act of any power, the master or 
 
844 APPENDIX A. 
 
 Appendix A. owners may disoharge the goods into any depot or lazaretto, or at the nearest 
 ' convenient port ; the shippers and consignees to be responsible for all expenses 
 
 thereby incurred upon the goods. 
 
 XI. — No goods can be abandoned for freight. This rule does not apply 
 to liquids. 
 
 XII. — If the goods be not taken by the consignee -without delay or ■within 
 such time as is provided by the regjulations of the port of discharge, they 
 may be stored or discharged into hulks or lighters by the master at the 
 expense and risk of their owners ; provided always, that due notice is given 
 of the arrival of the ship and the commencement of the discharge, and that 
 the same does not begin at night or at any unreasonable hour. 
 
 XIII. — Ship to have a lien on all goods for payment of freights and 
 charges, including dead freight, demurrage at the port of destination, 
 forwarding charges, charges for carriage to port of shipment, and the fines, 
 damages, and expenses mentioned in Eules VII. and X., and for general 
 average claims, and to be entitled to recover from the shipper the difference 
 between the amount of freight stipulated in the bill of lading and the pro- 
 ceeds of the goods should the freight not be paid otherwise. 
 
 XIV. — To the extent of the value of the Hen, freight, which by the terms 
 of the bill of lading is made payable by the consignee, cannot be demanded 
 from the shipper after the master has parted with his lien on the goods. 
 
 XV. — In the event of claims for short delivery when the ship reaches her 
 destination, the price to be the market price at the port of destination on the 
 day of the ship's entry at the custom-house, less freight and charges saved. 
 
 XVI. — Weight, measure, quality, contents, and value, although mentioned 
 in the biU of lading, to be considered as unknown to the master unless 
 expressly recognized and agreed to the contrary. Simple subscription not to 
 be considered as such agreement. 
 
 XVII. — General average to be paid according to York and Antwerp Eules. 
 
 XVIII. — Freight, if payable at port of destination, to be paid immediately 
 on delivery in cash, without discount, and in the currency stipulated in the 
 bill of lading or at consignee's option, at the rate of exchange of bankers' 
 bills at sight current on the day of the ship's entry at the custom-house. 
 
 XIX. — Nothing contained in these rules is to be construed so as to 
 authorize an agreement in respect to anything not expressed in these rules. 
 
 Neither of these bills of lad^g seems to have met with any practical 
 success. And one main principle of the 1885 bill of lading was dis- 
 sented from by the Conference of the same Association which met in 
 London in 1887, when the following resolution was passed : — 
 
 ' ' That the following principle adopted by the Conference of this Association, 
 held at Liverpool in 1882, be now confirmed and adopted as the basis of 
 discussion : That the principle of the common form of bill should be this — 
 that the shipowner, whether by steam or sailing ship, should be liable for the 
 faults of his servants in aU matters relating to the ordinary course of the 
 voyage, such as the stowage and right delivery of the cargo, and other 
 matters of this kind ; but on the other hand, the shipowner should be exempt 
 from liability for everything which comes under the head of accidents of 
 navigation, even though the loss from these may be indirectly attributable to 
 some fault or neglect of the crew." 
 
 In 1893, at a Conference of the same Association held at the Guild- 
 hall in London, and attended by representatives from many associations 
 of merchants, shipowners, and insurers, a fresh attempt was made to 
 formulate rules for general adoption, to be embodied in bills of lading. 
 This resulted in the "London Conference Eules of Affreightment, 
 1893," which were as follows : — 
 
 1. The shipowner shall not be responsible for loss or damage arising 
 
APPENDIX A. 845 
 
 from the act of God, perils of tlie seas, or otKer navigable waters, barratry Appendix A. 
 of the master or crew, enemies, pirates, civil commotions, robbers, thieves, 
 arrest or restraint of princes, rulers, or people, riots, strikes, or stoppage of 
 labour, capture or seizure or arrest under civil process ; nor from fire on 
 board, in hulk or craft or on shore, collisions, strandings, explosions, break- 
 down of machinery or tackle, or other accidents at sea, in other navigable 
 waters, or in port, even when occasioned by negligence, default, or error in 
 judgment of the pilot, master, crew, or other servants of the shipowner ; nor 
 from heating, decay, putrefaction, rust, sweat, change of character, drainage, 
 leakage, breakage, or any loss or damage arising from the nature of the 
 goods, or the insufficiency of packages, or vermin ; nor for land damage ; 
 nor for the obliteration, errors, instifficiency or absence of marks, numbers, 
 address, or description ; nor for risk of hulk, craft, or transhipment. 
 
 2. The shipowner shall be responsible for loss or damage arising from any 
 unfit state of the vessel to receive the goods, or any unseaworthiness of the 
 vessel when she sails on the voyage. But any latent defect in hull, 
 machinery, equipment, or fittings shall not be considered unfitness or un- 
 seaworthiness, provided the same do not result from want of due diligence 
 of the shipowner or of the ship's husband or manager. 
 
 3. The shipowner shall be responsible for loss or damage arising from 
 want of reasonable care and skill in the loading, stowage, or discharge of 
 the goods. Shipowners' responsibility to cease on delivery from the ship's 
 tackle. 
 
 4. The ship to be at liberty to call at any port in order, to sail without 
 pilots, and to tow and assist vessels in distress, and to deviate for the purpose 
 of saving life or property. 
 
 5. General average payable according to York- Antwerp Eules. 
 
 N.B. — Tlie above rules are proposed for those trades where no form of bill of 
 lading has been already settled by mutual agreement between shipowner 
 and merchant. 
 
 The following forms have been adopted in the " Mediterranean, 
 Black Sea, and Baltic trades, and in the New Tork trade, respec- 
 tively ; in each case after long negotiations, in which both merchants 
 and shipowners took part : — 
 
 1. Geneeal Pbodtjcb, Mediteeeanean, Black Sea, ajtd Baltic 
 Steamee Bill of LADisra, 1885. 
 
 Shipped, in good order and condition, by in and upon the good 
 
 steamship , now lying in the port of , and bound for , with 
 
 hberty to call at any ports on the way for coaling or other necessary purposes, 
 
 being marked and numbered as per margin, and to be delivered in like good 
 order ajid condition at the port of , unto , or to his or their 
 
 assigns, he or they paying freight on the said goods on delivery at the rate 
 of , and charges as per margin. 
 
 It is mutvAxlly agreed that the ship shall have liberty to sail without pilots ; to 
 tow and assist vessels in distress ; to deviate for the purpose of saving life; 
 to convey goods in lighters to and from tlie ship at the risk of the owners of 
 the goods but at ship's expense ; and in case the ship shall put into a port 
 of refuse for repairs, to tranship the goods to their destination by any other 
 
 The act of God, perils of the sea, fire, barratry of the master and crew, enemies, 
 pirates, and robbers, arrests and restraints of princes, rulers, and people, 
 and other accidents of navigation excepted. Strandings and collisions,^ and 
 all losses and damages caused thereby, are also excepted, even when occasioned 
 by negligence, default, or error in judgment of the pilot, master, mariners, 
 or other servants of the shipowners, hut nothing herein contained shall exempt 
 
846 APPENDIX A. 
 
 Appendix A. the shipowner from liahility to pay for damage to cargo occasioned ly lad 
 
 stowage, hy improper or inaufflcient dunnage or ventilation, or by improper 
 
 opening of valves, sluices, and ports, or hy causes other than those above 
 excepted, and all the above exceptions are conditional on the vessel being sea- 
 worthy when she sails on the voyage, but any latent defects in the machinery 
 shall not be considered unseaworthiness, provided the same do not result from 
 want of due diligence of the owners, or any of them, or of the ship's husband 
 or manager. 
 
 The shipowner is not liable for loss or damage occasioned ly decay, putrefaction, 
 rust, sweat, change of character, drainage, leakage, breakage, or any loss or 
 damage arising from the nature of the goods or the insufficiency of packages ; 
 nor for land damage; nor for the obliteration or absence of marks or 
 numbers ; nor for any loss or damage caused hy the prolongation of the 
 voyage. 
 
 The steamer, while detained at any port for the purpose of coaling, is at lilerfy 
 to discharge and receive goods and passengers. 
 
 The goods are to be applied for within twenty-four hours of ship's arrival and 
 reporting at the Custom JSou^e, otherwise the master or agent is to be at 
 liberty to put into lighters or land the same at the risk and expense of the 
 owners of the goods. 
 
 In case of quarantine at any port, the goods destined for that port may be dis- 
 charged into quarantine depot, hulk, or other vessel, as required for the 
 ship's despatch. Quarantine expenses upon the said goods, of whatever 
 nature or kind, shall be borne by the owners thereof. 
 
 The master or agent shall have a lien on the goods for freight and payments 
 made, if any, or liabilities incurred in respect of any charges stipulated 
 herein to be borne by the owners of the goods. 
 
 In case any part of the within goods cannot be found during the ship's stay at 
 the port of their destination, they are to be sent back by first steamer, at the 
 ship's risk and expense, and subject to any proved claim for loss of market. 
 
 The ship shall not be liable for incorrect delivery of packages unless each of them 
 shall have been distinctly marked by the shippers before shipment. 
 
 Should grain or seed be delivered in a heated or damaged condition, and the 
 receivers claim to deduct half-freight upon such damaged or heated portion, 
 it shall be at the master's option either to allow the same, or to be paid full 
 freight upon the quantity shipped according to the bill of lading, provided 
 always that no portion of the same has been jettisoned or otherwise disposed 
 of on the voyage and the quantity delivered exceeds the quantity named in the 
 bill of lading. 
 
 General average pay able .according to York- Antwerp Bules. 
 
 The owner and consignee of the goods, and shipowner mutually agree to be bound 
 by all of the above stipulations, exceptions, and conditions, notwithstanding 
 any custom of the ports of loading and discharging to the contrary. 
 
 In Witness whereof tlie master or duly authorized agent of the said ship 
 hath affirmed to three bills of lading, all of this tenor and date, one of ■which 
 bills being accomplished, the others to stand void. 
 
 Dated in this day of , 188 . 
 
 Weiglit, quality, and contents unknown. 
 
 2. Meditekeanean, Black Sea, and Baltic Grain Caeqo Steamee 
 Bill op Lading, 1885. 
 
 Shipped, in good order and condition, by in and upon the good 
 
 steam vessel called the now lying in , and bound for , with 
 
 liberty to call at any ports on the way for coaling or other necessary pur- 
 poses, to sail without pilots, and to tow and assist vessels in distress, and to 
 deviate for the purpose of saving life ; 
 
 and to be delivered in the like good order and condition at the aforesaid port 
 of unto - or to his or their assigns, he or they paying freight, and/or 
 
 demurrage, if any, for the said goods. All conditions as per charter party, 
 dated . The act of God, perils of the sea, fire, barratry of the master 
 
APPENDIX A. 847 
 
 and cre-w, enemies, pirates, and robbers, arrests and restraints of princes, Appendix A 
 
 rulers, and people, and other accidents of navigation excepted. Strandings 1 
 
 and collisions and all losses and damages caused thereby, are also excepted, 
 even when occasioned by negKgence, default, or error in judgment of the 
 
 Edot, master, mariners, or other servants of the shipowners, but nothing 
 erein contained shall exempt the shipowner from liability to pay for damage 
 to ca,rgo occasioned by bad stowage, by improper or insufficient dunnage or 
 ventilation, or by improper opening of valves, sluices and ports, or by causes 
 other than those above excepted, and aU the above exceptions are conditional 
 on the vessel being seaworthy when she sails on the voyage, but any latent 
 defects in the machinery shall not be considered unseaworthiness, provided 
 the same do not result from want of due diligence of the owners, or any of 
 them, or of the ship's husband or manager. 
 
 General average payable according to York- Antwerp Eules. 
 
 laying days have been used at the ports of loading. 
 
 In witaess whereof, the master of the said ship hath affirmed to three bills 
 of lading, all of this tenor and date, one of which biUs being accomplished, 
 the others to stand void. 
 
 Dated in , this day of 188 . 
 
 Quantity and quality unknown. 
 
 Eeceived of Messrs. on account of freight the sum of which is 
 
 to be deducted therefrom at port of discharge with cost of insurance. 
 
 3. New Toek Produce Exchange Bill op LADiira. 
 
 Eeceived, in apparent good order and condition, by from , to 
 
 be transported by the good steamship , now lying in the port of , 
 
 and bound for , with liberty to call at , being marked and 
 
 numbered as per margin (weight, quality, contents, and value unknown), 
 and to be delivered in like good order and condition at the port of (or 
 
 so near thereto as she may safely get) unto or to his or their assigns, 
 
 he or they paying freight and primage (if customary) in cash, without dis- 
 count, on the said goods on discharge, at the rate of , with primage and 
 charges as per margin. General average payable according to York- Antwerp 
 Eules. 
 
 It is iviii'rii AT.T. v AGREED that the ship shall have liberty to sail without 
 pilots ; to tow and assist vessels in distress ; to deviate for the purpose of 
 saving life or property ; that the carrier shall have liberty to convey goods 
 in lighters to and from the ship at the risk of the owners of the goods ; and, 
 in case the ship shall put into a port of refuge or be prevented from any 
 cause from proceeding in the ordinary course of her voyage, to tranship the 
 goods to their destination by any other steamship. 
 
 It is also mutually agreed that the car:^er shall not be liable for loss 
 or damage occasioned by causes beyond his control, the perils of the sea, or 
 other waters; by fire from any cause and wheresoever occurring ; by barratry 
 of the master or crew ; by enemies, pirates, or robbers ; by arrest aaid 
 restraint of princes, rulers or people, riots, strikes, or stoppage of labour ; 
 by explosion, bursting of boilers, breakage of shafts, or any latent defect in 
 hull, machiaery or appurtenances ; by collisions, stranding or other accidents 
 of navigation, of whatsoever kind (even when occasioned by the negligence, 
 default, or error in judgment of the pilot, master, mariners, or other servants 
 of the shipowner, not resulting, however, in any case, from want of due 
 diligence by the owners of the ship or any of them, or by the ship's husband 
 or manager) ; nor by heating, decay, putrefaction, rust, sweat, change of 
 character, drainage, leakage, breakage, or any loss or damage arising from 
 the nature of the goods or the insufficiency of packages ; nor for land damage; 
 nor for the obliteration, errors, insufficiency, or absence of marks or numbers, 
 address or description ; nor for risk of craft, hulk or transhipment; or any 
 loss or damage caused by the prolongation of the voyage. 
 
 1. — It is also mutually agreed that the carrier shall not he liable for gold, 
 silver, lullion, specie, documents, jewellery, pictures, emiroideries, perfumeries, 
 
848 APPENDIX A. 
 
 Appendix A. works of art, silks, furs, china , porcelain, watcTics or clocks, in any respect, or for 
 
 ' goods of any description whatever above the value of |20 per cubic foot, and in 
 
 no case is the carrier to be liable beyond |500 per package, unless bills of lading 
 are signed therefor, with the value therein expressed, and a special agreement is 
 made. 
 
 2. — Also, that shippers shall be liable for any loss or damage to ship or 
 cargo caused by inflammable, explosive or dangerous goods, shipped without 
 full disclosure of their nature, whether such shipper he principal or agent ; and 
 such goods may be thrown overboard or destroyed at any time without com- 
 pensation. 
 
 3. — Also, that the carrier shall have a lien on the goods for all freights, 
 primages and charges, and also for fines or damages vihich the ship or cargo may 
 incur or suffer by reason of the incorrect or insufficient marking, numbering or 
 addressing of packages or description of their contents. 
 
 4. — Also, that in case the ship shall be prevented from reaching her destination 
 by quarantine, the carrier may discharge the goods into any depot or lazaretto, 
 and such discharge shall be deemed a final delivery under this contract, and all 
 the expenses thereby incurred on the goods shall be a lien thereon. 
 
 0. — Also, that the ship may commence discharge immediately on arrival and 
 discharge continuously, the collector of the port being hereby authorized to grant a 
 general order for discharge immediately on arrival, and upon discharge the goods 
 shall be at the risk of the consignee, and if not taken by him ivithin such time as 
 is provided by the regulations of the port of discharge, they may be stored by the 
 carrier at the expense and risk of their owners. Note. — After Clause 5 all con- 
 ditions relating to delivery at different ports {also ice and lighterage, blockade and 
 special quarantine clauses, &c,), to be inserted as agreed upon by shippers and 
 carriers in various trades, 
 
 6. — Also, that full freight is payable on damaged or unsound goods ; but no 
 freight is due on any increase in bulk or weight caused by the absorption of water 
 during the voyage. 
 
 7. — Also, in the event of claims for short delivery when the ship reaches her 
 destination, the price shall be the market price at the port of destination on the 
 day of the ship's entry at the Custom House, less all charges saved. 
 
 8. — Freight payable on weight is to be paid on gross weight landed from ocean 
 steamship unless otherwise agreed. 
 
 9. — Parcels for different consignees collected or made up in single packages 
 addressed to one consignee to pay full freight on each parcel. 
 
 And finally, in accepting tliis bill of lading, tlie shipper, owner and 
 consignee of the goods, and tlie holder of the bill of lading, agree to be 
 bound by all of its stipulations, exceptions and conditions, -whether -written 
 or printed, as fully as if they -were all signed by such shipper, o-wner, con- 
 simee, or holder. 
 
 In -witness -wheeeof the master or agent of the said ship hath affirmed 
 to bills of lading, aU. of this tenor and date, numbered consecutively, 
 
 one of -which being accomplished and given up to the carrier, the others to 
 stand void. 
 
 Dated in , this day of , 188 . 
 
APPENDIX B. 
 
 POEM OP TIME-CHAETEE. 
 
 It is this day nmtually agreed between owners of the good 
 
 steam-Bhip called the of tons gross register, 
 
 and tons net register, horse-power, provided with 
 
 steam winches and Board of Trade certificates for hull and machinery, 
 classed of tons dead weight, and tons cubic capacity 
 
 or thereabouts, exclusive of bunkers, which contain tons of 
 
 coals and of merchants and charterers, as follows, 
 
 yiz. : — 
 
 The said agree to let, and the said agree to hire the 
 
 said steam-ship for the term of calendar months, commencing 
 
 she then being placed at the disposal of the charterers, at 
 in such dock, or at such wharf or place (where she may always safely 
 he afloat) as the charterers may direct, she being then tight, staunch, 
 strong, and every way fitted for the service (and with full complement 
 of officers, seamen, engineers and firemen for a vessel of her tonnage) ; 
 to be employed in any lawful trades, between 
 
 as the charterers, or their agents shall direct : — 
 
 The owners shall provide and pay for all oils, paints, and stores for 
 the vessel, and for all the provisions and wages of the captain, officers, 
 engineers, firemen, and crew ; shall pay for the insurance on the 
 vessel (a) ; also for aU engine-room stores, and maintain her in a 
 thoroughly efficient state in hull and machinery for the service. 
 
 The charterers shall provide and pay for all the coals and fuel (J), 
 port charges (c), pilotages, agencies, commissions, and all other charges 
 whatsoever not appertaining to the working or efficiency of the 
 steamer. 
 
 The charterers shall pay for the use and hire of the said vessel at 
 
 (a) This will not exonerate the char- 25 Seas. Ca. (4tli) 528. But lie cannot 
 
 terer from liability for damage to the pledge the owners' credit for coals, and 
 
 ship caused by neghgenoe of his serpants, he has no lien on the ship for his own 
 
 although covered by the insurance. Aira disbursements, or liabilities, in respect 
 
 Force S.S. Co. v. Christie, 9 T. L. K. of coal. The Tuxgot, 11 P. D. 21; The 
 
 104. Durham City, 14 P. D. 85 ; Morgan v. 
 
 (i) Itstillremainsthedutyof themaster Castlegate S.S. Co., (1893) A. C. 38. 
 
 to Bee that sufficient coals are taken on {c) Newman v. Lamport, (1896) 1 
 
 board for the voyage. Park v. Duncan, Q. B. 20. 
 
 C. — c. 3 I 
 
850 APPENDIX B. 
 
 Appendix B. the rate of per gross register ton per calendar month, 
 
 and at and after the same rate for any part of a month (d) : 
 
 the hire to continue from the time specified for terminating the charter 
 
 until her delivery to the owners (unless lost) at payment whereof 
 
 shall be made in cash. 
 
 and in default of such payment or payments as herein specified, the 
 owners shall have the right of withdrawing the said steamer from the 
 service of the charterers {e), without prejudice to any claim the owners 
 may otherwise have on the charterers in pursuance of this charter. 
 
 The cargo or cargoes shall be loaded and/or discharged in any dock 
 or at any wharf or place that the charterers may direct, where the 
 vessel can always safely lie afloat. 
 
 The whole reach, burthen, and passenger accommodation of the 
 ship (not being more than she can reasonably stow and carry) shall be 
 at the charterers' disposal, reserving only proper and sufficient space 
 for ship's officers, crew, tacHe, apparel, furniture, provisions and 
 stores. Cargo and/or coals may be taken on deck at the charterers' 
 risk, so far as the same do not endanger the safety of the vessel. 
 
 The expense of loading and discharging shall be borne by the 
 charterers, but the stowage shall be under the control of the master, 
 and the owners shall be responsible for same. Ballast and dunnage, 
 as required, shall be found by the charterers (/). 
 
 The charterers shall have the right of keeping a supercargo on board 
 during the continuance of this charter, the owners finding him with 
 provisions and accommodation on the same scale as the ship's officers, 
 free of expense to the charterers. 
 
 The charterers shall have liberty to send passengers by the vessel 
 upon any voyage made under this charter, the owners finding pro- 
 visions and all requisites, except liquors, the charterers paying at the 
 rate of shillings per diem for each first-class passenger, and 
 
 at the rate of shillings per diem for each second-class passenger, 
 
 during the time such passengers are on board the steamer. 
 
 The master shall prosecute his voyage with the utmost despatch, and 
 shall render all customary assistance with ship's crew and boats. 
 
 The master (although appointed by the owners) shall be under the 
 orders and direction of the charterers as regards employment, agency, 
 
 {d) Where payment for a voyage is to (higher) rate during the time beyond- 
 
 he made monthJy in advance, the pay- the agreed period. Gray v. Christie, 5 
 
 ment for the last month must he in full, T. L. E.. 577. 
 
 though it may he prohable that the ship , \ i , ■ » ., . . , , , , , . 
 
 wm only he employed for part of the <") ^i'° ^■17^'' °! '^^ right hy talang 
 
 month. TonneUer v. Smith, 77 L. T. 9^''^° ^^^, *^'1"^« ^° P"*? *^ ^^"■e (-i™ 
 
 277. Where the charter party was for f advance) punctually, see Nova Scotia, 
 
 a period, towards the end of which the *•=• f °; "• Sutherland, &o. Co., 5 Com. 
 ship was sent on a voyage which could 
 
 not he completed within the period, it (/) In the absence of such special 
 
 was held that the shipowner could not term, see Weir v. Union S.S. Co., (1900) 
 
 claim damages, or freight at the ciirrent 1 Q. B. 28. 
 
APPENDIX B, 851 
 
 or other arrangements ; and the charterers hereby agree to indemnify Appendix B. 
 the owners from all consequences or liahilitiea that may arise from 
 the master signing bills of lading by their orders or those of their 
 agents, providing the master does not sign usual steam bill of lading 
 or in otherwise complying with the same (g). The act of God, the 
 Queen's enemies, pirates, robbers, risk of lighterage to and from the 
 vessel or craft or hulk, or transhipment, explosion, heat, fire, at any 
 time and place whatever, boilers, steam or machinery, and the conse- 
 quence of any damage to or defect in boilers or machinery, collision, 
 stranding, steaming, jettison, or any other peril of the sea, rivers, 
 navigation, or of land transit of whatsoever nature or kind, and 
 whether any of the perils, causes, or things above mentioned, or the 
 loss or injury arising therefrom be occasioned by the wrongful act, 
 default, negligence, or error in judgment of the owners, pilot, master, 
 officers, crew, stevedores, or other persons whomsoever in the service 
 of the ship, or for whose acts the shipowner would otherwise be liable, 
 or by unseaworthiness of the ship- at the commencement of the voyage 
 (provided all reasonable means have been taken to provide against 
 such unseaworthiness) or otherwise howsoever excepted, 
 
 If the charterers shall have reason to be dissatisfi-Bd with the conduct 
 of the master, officers or engineers, the owners shall, on receiving par- 
 ticulars of the complaint, investigate the same and, if necessary, make 
 a change in the appointments. 
 
 The master shall be furnished from time to time with all requisite 
 instructions and sailing directions, and shall keep a full and correct 
 log of the voyage or voyages, which are to be open to the charterers 
 or their agents. The master shaU take every advantage of the wind 
 by using the sails, with a view to economising the expenditure of fuel. 
 
 The charterers shall have the option of continuing the charter for a 
 further period of on giving notice thereof to the owners 
 
 before the first-named term shall expire. 
 
 In the event of loss of time from the deficiency of men or stores, 
 collision, want of repairs, breakdown of machinery, or other causes 
 appertaining to the duties of the owners, preventing the working of the 
 vessel for more than twenty-four working hours, the payment of hire 
 shall cease until she be again in an efficient state to resume her 
 service (A) ; and if, in consequence of such deficiency, collision, want 
 of repairs, breakdown or other causes, the vessel puts into any port or 
 ports other than those to which she is bound, port charges, pilotages, 
 and other expenses (?) at those ports shall be borne by the owners. 
 But should the vessel be driven into port or to anchorage by stress of 
 weather, such detention or loss of time shall fall on the charterers (A), 
 
 (i?) See Milburu v. Jamaica, &o. Co., (i) The Durham City, 14 P. D. 85. 
 
 4 Com. Ca. 331 ; Park v. Duncan, 26 (A) In Howdeni;. S.S. Nutfield Co. (3 
 
 Seas. Ca. (4th) 528. Com. Ca. 56), the vessel put into a port 
 
 (A) Hogarth v. Miller, (1891) A. C. of refuge under such circumstances that 
 
 48 ; supra, s. 672. the hire ran on. Under Tork- Antwerp 
 
 3i2 
 
852 APPENDIX B. 
 
 Appendix B. providing the time is reasonable and other vessels of same size, power 
 and class put in, from same cause. Should it be found that the vessel 
 has put in from any other cause aU payment to be stopped, and any 
 loss to charterers from this unreasonable delay to be made good by 
 the owners. 
 
 Should the vessel be lost, any freight paid in advance and not 
 earned (reckoning from the date of loss) shall be returned to the 
 charterers. 
 
 Should any dispute arise between the owners and the charterers, the 
 matters in dispute shall be referred to three persons at one to be 
 
 appointed by each of the parties hereto, and the third by the two so 
 chosen, whose decision, or that of any two of them, shall be final : and 
 for the purpose of enforcing any award this agreement may be made a 
 rule of Court. 
 
 The owners shall have a lien upon all cargoes, and all sub-freights, 
 for freight or charter-money due under this charter; and the charterers 
 shall have a lien on the ship for all moneys paid in advance and 
 not earned. 
 
 All salvage and derelicts shall be for the joint and equal benefit (Z) 
 of the owners and the charterers. 
 
 The charterers shall have the option of sub-letting the steamer, on 
 obtaining owners' consent in writing. 
 
 Five per cent, commission on the estimated amount of freight is due 
 from the owners on the execution of this charterparty to 
 
 rules the owners obtained contribution (I) Held to mean equal division, sub- 
 
 froiu the cargo to the cost of wages and jeot to deduction of losses and expenses 
 
 provisions while in the port. The time- incurred in earning the salvage. Booker 
 
 charterers sought to recover from them v. PockUngton S.S. Co., (1899) 2 Q. B. 
 
 the money so received, but failed. 690. 
 
853 
 
 APPENDIX C. 
 
 GENERAL AVERAGE. 
 
 YOEK-ANTWEEP EULES (a). 
 
 EuLE I. — Jettison of Deck Oaego. 
 No jettison of deck cargo shall be made good as general average. 
 Every structure not built in with, tbe frame of the vessel shall be 
 considered to be a part of the deck of the vessel. 
 
 EuiiE II. — Damage by Jettison and Sacritice eoe, the Common 
 
 Safety. 
 Damage done to a ship and cargo, or either of them, by or in con- 
 sec[uence 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. 
 
 Etile m. — Extinguishing Piee on Shipboabd. 
 Damage done to a ship and cargo, or either of them, by water or 
 otherwise, including damage by beaching or scuttling a burning ship, 
 ia extinguishing a fire on board the ship, shall be made good as 
 general average ; except that no compensation shall be made for 
 damage to such portions of the ship and bulk cargo, or to such 
 separate packages of cargo, as have been on fire. 
 
 EcLE IV. — Cutting away "Wreck. 
 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, shaU not be made good as general average. 
 
 (a) The name "York and Antwerp" of Nations, held at Genoa, it was for- 
 
 or " York- Antwerp " was first given to mally declared that the only interua- 
 
 the rules formulated in 1877. The rules tional rules of general average having 
 
 as revised in 1890 (given above) were at the sanction of the Association were the 
 
 first called "The York- Antwerp Rules, York- Antwerp Rules as revised in 1890; 
 
 1890." But they quickly displaced the and that theoriginal rules wererescinded. 
 
 rules of 1877 in practice ; and in 1892, It is thus the later body of rules which 
 
 at a conference of the Association for is now known as " The York- Antwerp 
 
 the Reform and Codification of the Law Rules." 
 
854 APPENDIX C. 
 
 Appandiz c. jj^^j, y._YoLTjNTAEY SiBAiroiNa. 
 
 "Wlien a sMp is intentionally run on shore, and the circumstances 
 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, hy such intentional running 
 on shore, shall he made good as general average. But in all other 
 cases where a ship is intentionally run on shore for the common safety, 
 the consequent loss or damage shall be allowed as general average. 
 
 EuLB YI. — Caerting Peess of Sail. — DAMAaa to oe Loss of Salls. 
 
 Damage to or loss of sails and spars, or either of them, caused by 
 forcing a ship off the ground or by driving her higher up the ground, 
 for the common safety, shall be made good as general average ; but 
 where a ship is afloat, no loss or damage caused to the ship, cargo, 
 and freight, or any of them, by carrying a press of sail, shaU be 
 made good as general average. 
 
 EuLE VII. — Damage to Engines in Eeploating a Ship. 
 
 Damage caused to machinery and boilers of a ship, which is ashore 
 and in a position of peril, in endeavouring to refloat, shall be allowed 
 in general average, when shown to have arisen from an actual inten- 
 tion to float the ship for the common safety at the risk of such damage. 
 
 Etjle YIII. — Expenses Lightening a Ship when Ashore, and 
 Consequent Damage. 
 
 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 re-shipping (if incurred), and the loss 
 or damage sustained thereby, shall be admitted as general average. 
 
 EuLE IX. — Cargo, Ship's Materials, and Stores Buent for Fuel. 
 
 Cargo, ship's materials, and stores, or any of them, necessarily burnt 
 for fuel for the common safety at a time of peril, shall be admitted as 
 general average, when and only when an ample supply of fuel had 
 been provided ; but the estimated quantity of coals that would have 
 been consumed, calculated at the price current at the ship's last port of 
 departure at the date of her leaving, shall be charged to the shipowner 
 and credited to the general average. 
 
 EuLE X. — Expenses at Poet of Eefuge, &o. 
 
 (a). — When a ship shall have entered a port or place of refuge, or 
 shall have returned to her port or place of loading, in consequence of 
 accident, sacrifice, or other extraordinary circumstances, which render 
 that necessary for the common safety, the expenses of entering such 
 
APPENDIX C. 855 
 
 port or place shall be admitted as general average ; and when she Appendix C. 
 shall have sailed thence with her original cargo, or a part of it, the 
 corresponding expenses of leaving 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 
 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 repau-ed, 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 storing such 
 cargo on board the said ship, together with all storage charges on 
 such cargo, shall likewise be so admitted. But when the ship is 
 condemned or does not proceed on her original voyage, no storage 
 expenses incurred after the date of the ship's condemnation or of the 
 abandonment of the voyage shall be admitted as general average. 
 
 (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 
 extraordiaary expense saved. 
 
 Etjle XI. — Wages ahd Maihtenance op Chew in Poet of EEFtroE, &o. 
 
 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 Eule X., the wages payable to the master, officers, and 
 crew, together with the cost of maintenance of the same, during the 
 extra period of detention in such port or place until the ship shall or 
 should have been made ready to proceed upon her voyage, shall be 
 admitted as general average. But when the ship is condemned or 
 does not proceed on her original voyage, the wages and maintenance 
 of the master, officers, and crew, incurred after the date of the ship's 
 condemnation or of the abandonment of the voyage, shall not be 
 admitted as general average. 
 
 ExTLB XII. — Damage to Cargo m Dischaeging, &c. 
 
 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. 
 
856 
 
 APPENDIX C. 
 
 Appendix C. 
 
 Etjle XIII. — ^Deductions prom Cost of Eepaibs. 
 
 In adjusting claims for general average, repairs to be allowed in 
 general average shall be subject to tbe following deductions in respect 
 of "new for old," viz. : — 
 
 In the case of iron or steel ships, from date of original register to 
 the date of accident, — 
 
 Up to 
 
 1 year old 
 
 (A.) 
 
 Between 
 1 and 3 years 
 
 (B.) 
 
 Between 
 3 and 6 years 
 
 (C.) 
 
 Between 
 
 6 and 10 years 
 
 (D). 
 
 Between 
 10 & 15 years 
 
 (E.)^ 
 
 Over 
 
 15 years 
 
 (F.) 
 
 All repairs to be allowed in full, except painting 
 or coating of bottom, from which one-third is to be 
 deducted. 
 
 One-third to be deducted off repairs to and 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), awnings, covers, and painting. 
 
 One-sixth to be deducted off wire rigging, wire 
 ropes and wire hawsers, chain cables and chains, 
 donkey engines, steam winches and connexions, steam 
 cranes and connexions ; other repairs in full. 
 
 r Deductions as above under clause B, except that 
 one-sixth be deducted off ironwork of masts and 
 spars, and machinery (inclusive of boilers and their 
 
 L mountings). 
 
 Deductions as above under clause C, except that 
 one-third be deducted off ironwork of masts and spars, 
 repairs to and renewal of all machinery (inclusive of 
 boilers and their mountings), and all hawsers, ropes, 
 . sheets, and rigging. 
 
 One-third to be deducted off all repairs and re- 
 newals, except ironwork of huU and cementing and 
 chain cables, from which one-sixth to be deducted. 
 Anchors to be allowed in full. 
 
 One-third to be deducted off all repairs and re- 
 newals. Anchors to be allowed in full. One-sixth 
 to be deducted off chain cables. 
 
 Generally 
 (G.) 
 
 r The deductions (except as to provisions and stores, 
 machinery, and boilers) to be regulated by the age of 
 the ship, and not the age of the particxilar part of her 
 to which they apply. No painting bottom to be 
 allowed if the bottom has not been painted within six 
 months previous to the date of accident. No deduc- 
 tion to be made in respect of old material which is 
 repaired without being replaced by new, and provi- 
 sions and stores which have not been in use. 
 
APPENDIX C. 857 
 
 In the case of wooden or composite ships : — Appendix c. 
 
 When a ship is under one year old from date of original register, at ~ 
 
 the time of accident, no deduction new for old shall be made. 
 After that period a deduction of one-third shall be made, with 
 the following exceptions : — 
 
 Anchors shaU be allowed in full. Chain cables shall be sub- 
 ject 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. 
 
 In the case of ships generally : — 
 In the case of all ships, the expense of straightening bent ironwork, 
 including labour of taking out and replacing it, shall be allowed 
 infulL 
 
 Graving dock dues, including expenses of removals, cartages, 
 use of shears, stages, and graving dock materials, shall ,be 
 allowed in full. 
 
 Eiri.E XrV. — Tempoeaet Eepaies, 
 
 "No deductions "new for old " shall be made from the cost of tem- 
 porary repairs of damage allowable as general average. 
 
 Etjle XY. — Loss OF Febight. 
 
 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 good. 
 
 Etile XVI. — ^Amount to be made good eoe Oaeqo lost oe damaged 
 
 BY Saceifice. 
 The amount to be made good as general average for damage or loss 
 of goods sacrificed shaU. 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. 
 
 Exile XVII. — Contributoet Values. 
 
 The contribution to a general average shall be made upon the actual 
 values of the property at the termination of the adventure, to which 
 shall be added the amount made good as 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 
 
858 
 
 APPENDIX C. 
 
 Appendix C. 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 biU of 
 lading, shall not contribute to general average. 
 
 Rule XVIII. — Adjustment. 
 
 Except as provided in the foregoing rules, the adjustment shall be 
 drawn up in accordance with the law and practice that would have 
 governed the adjustment had the contract of affreightment not con- 
 tained a clause to pay general average according to these rules. 
 
 YOEK-ANTWEEP EULES, 1877. 
 The original rules, formulated in 1877, were as follows : — 
 
 EuLE I. — Jettison of Cargo. 
 
 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. 
 
 EuiE n. — Damaoe by Jettison. 
 
 Damage -done to goods or merchandise by water which unavoidably 
 goes down a ship's hatches opened, or other opening made, for the 
 purpose of making a jettison, shall be made good as general average, 
 in case the loss by jettison is so made good. 
 
 Damage done by breakage and chafing, or otherwise from derange- 
 ment of stowage consequent upon a jettison, shall be made good as 
 general average, in case the loss by jettison is so made good. 
 
 EULE III. — ExTIHGUISHINd ElEE ON ShIPBOAED. 
 
 Damage done to a ship and cargo, or either of them, by water or 
 otherwise, in extinguishing a fire on board the ship, shall be general 
 average, except that no compensation be made for damage done by 
 water to packages which have been on fire. 
 
APPENDIX C. 859 
 
 EULE IV.— CuTTim AWAY WeEOK. ^PP'°^'' °- 
 
 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-perU, shall not be made good as general average. 
 
 EULE V. — VOLUNTAEY StEANDIB-G. 
 
 When a ship is intentionally run on shore because she is sinking or 
 driving on shore or rocks, no damage caused to the ship, the cargo 
 and the freight, or any or either of them, by such intentional running 
 on shore, shall be good as general average. 
 
 Etjle VI. — OABEYma Press op Sail. 
 
 Damage occasioned to a ship or cargo by carrying a press of sail 
 shall not be made good as general average. 
 
 EuLE VII. — Poet op Eefuge Expenses. 
 
 When a ship shall have entered a port of refuge under such circum- 
 stances that the expenses of entering the port are admissible as 
 general average, and when she shall have sailed thence with her 
 original cargo, or a part of it, the corresponding expenses of leaving 
 such port shall likewise be admitted as general average ; and whenever 
 the cost of discharging cargo at such port is admissible as general 
 average, the cost of reloading and stowing such cargo on board the 
 said ship, together with all storage charges on such cargo, shall like- 
 wise be so admitted. 
 
 EuLE VIII. — Wages and Maihtenance of Oeew in Poet op Eepuqe. 
 
 When a ship shall have entered a port of refuge under the circum- 
 stances defined in Eule VTI., the wages and cost of maintenance of the 
 master and mariners, from the time of entering such port until the 
 ship shall have been made ready to proceed upon her voyage, shaU be 
 made good as general average. 
 
 Eule IX. — Damage to Caego in Dischaeging. 
 
 Damage done to cargo by discharging it at a port of refuge shall 
 not be admissible as general average, in case such cargo shall have 
 been discharged at the place, and in the manner customary at that 
 port with ships not in distress. 
 
860 APPENDIX C. 
 
 Appendix C. Eule X. — CoNTEDBrTOET Valtjes. 
 
 The contribution to a general average shall be made upon the actual 
 values of the property at the termination of the adventure, to which 
 shall be added the amount made good as 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 ; deduction being 
 also made from the value of the property of all charges incurred in 
 respect thereof subsequently to the arising of the claim to general 
 cargo. 
 
 EuLE XI. — Loss OF Feeiqht. 
 
 In every case in which a sacrifice of cargo is made good as general 
 average, the loss of freight (if any), which is caused by such loss of 
 cargo shall likewise be so made good. 
 
 Ettle XH. — Amount to be made good toe Caego. 
 
 The value to be allowed for goods sacrificed shall be that value 
 which the owner would have received if such goods had not been 
 sacrificed, 
 
861 
 
 APPENDIX D. 
 
 The following article, by tlie present author, bearing upon tbe changes 
 introduced by the York- Antwerp Rules, appeared in the " Law 
 Quarterly Eeview" for July, 1892 :— 
 
 EXPENSES AT A PORT OF EEPUGE. 
 
 In th6 autumn of 1890, at Liverpool, the Conference of the Associa- 
 tion for the Eeform and Codification of the Law of Nations, revised 
 the York- Antwerp Rules of general average, and adopted unanimously 
 "the new partial Code of general average which is known as the York- 
 Antwerp Rules, 1890. 
 
 In these later Rules the provisions with regard to port of refuge 
 expenses were stated with greater fullness ; and were widened, so as 
 to carry further the important departure from English law which 
 appeared in the earlier Rules, formulated in 1877. Views prevalent 
 on the Continent, and in the United States, have been again preferred 
 tcf the doctrines of our law ; and as the Conference was largely 
 attended by Englishmen practically concerned with the subject, ship-- 
 owners, shippers, underwriters, average adjusters, and lawyers, it 
 may be supposed that the conclusions they adopted are nearer to the 
 business ideas of what is right than the law is. And this supposition 
 is confirmed by the fact that the York- Antwerp Rules, and now the 
 York-Antwerp Rules, 1890, have been very widely adopted in contracts 
 of affreightment and insurance. 
 
 These facts seem to justify an inquiry into the position of the law 
 of England on this subject, with a view to considering whether it may 
 not be desirable that the law itself should be amended, and if so, in 
 what manner. 
 
 Without attempting to consider all the various cases which occur 
 of putting into a port of refuge, I propose to discuss the law, and 
 the practice of English adjusters, with reference to the frequent case 
 of a ship which has put into port for repairs, necessary for the safe 
 prosecution of the voyage, where the repairs cannot be effected with- 
 out first discharging the cargo. And then to contrast these with the 
 rules which prevail abroad on the subject; and also with the York- 
 Antwerp Rules, 1890, of wHch the short effect is that the expenses of 
 
862 
 
 APPENDIX D. 
 
 Appendix D. discharging the cargo to enable such repairs to be done, and the 
 suhseqiient expenses of storing that cargo and reshipping it, are to Tbe 
 treated as general average. 
 
 "When a ship deviates to a port of refuge, because it is unsafe to 
 remain at sea, whether on account of some immediate danger, such as 
 a storm or an enemy's cruiser, or because the ship is so damaged, or 
 her equipment so impaired, that she cannot safely continue on her 
 voyage, in either case the putting in to port is a general average act. 
 It is an act done voluntarily for the common safety under the pressure 
 of a common risk. Hence the extraordinary expenses incurred in 
 getting into the port of refuge, and the necessary harbour dues, are 
 always general average expenses. 
 
 Where repairs are needed, and the need has been caused by a 
 general average sacrifice, as by cutting away masts, or rigging, the 
 law as to consequential expenses is sufficiently clear. The Court of 
 Appeal, in Atwood v. SeUar (a), decided that the expenses of ware- 
 housing cargo which had been necessarily discharged in order to 
 repair damage of that kind, and also the expenses of reshipping that 
 cargo, and the outward expenses, pilotage, &c., incurred in leaving 
 the port, were all chargeable to general average. The cost of dis- 
 charging the cargo from the ship was there admitted to be general 
 average, so that no decision on that point was called for ; but the 
 reasoning of the Court plainly covered the expenses of that work. 
 The necessity for repairing at a port of refuge is an immediate conse- 
 quence of cutting away the mast, &c., and the expense of effecting 
 the repairs, which involve the discharge of cargo, is all general 
 average expenditure. 
 
 We pass then to the more difficult group of cases in which the ship 
 puts into port in consequence of having sustained accidental damage, 
 which must be repaired before she can safely proceed on her voyage, 
 and which cannot be effected without first discharging all or part of 
 the cargo. In such a case, the cost of the repairs falls wholly upon 
 the shipowner; the accident has befallen his property, and if he 
 decides to repair it he must pay the cost. That is well established (5). 
 The trouble arises with regard to the expenses of discharging, storing, 
 and reloading the cargo incurred in consequence of doing the repairs. 
 
 The law on this sub] ect was much discussed in Svendsen v. Wallace (c), 
 and BO far as it can be considered as settled, was settled by that case. 
 The Court of Appeal there decided that, in the circumstances we 
 are considering, the expenses of warehousing the discharged cargo 
 and reloading it are not general average; also that the expenses 
 of pilotage, &c., in putting out to sea again, are not general average. 
 The House of Lords affirmed this judgment with regard to the 
 expenses of reloading the cargo, but left the other points undeter- 
 
 U) 5 Q. B. D. 286. [e) 11 Q. B. D. 616; 13 Q. B. D. 69 ; 
 
 (J) HaUett V. Wigram, 9 C. B. 680. 10 A. C. 404. 
 
APPENDIX D. 863 
 
 mined as being unnecessary to the decision then called for. Lord Appendix D. 
 
 Blackburn, who gave the leading opinion in the House of Lords, 
 
 did not state his reason for deciding that the reloading expenses 
 
 were not general average {d). But in the Court of Appeal, the 
 
 grounds of the judgments of the majority (Lord Esher, M. E., and 
 
 Bowen, L. J.) are very clear. It was held that such expenditure is 
 
 not general average, because it is not incurred to save the ship and 
 
 cargo from a common peril threatening their physical safety ; nor 
 
 is it expenditure "caused or rendered necessary" by any sacrifice made 
 
 for that purpose and under those conditions. " A general average 
 
 sacrifice is an extraordinary sacrifice voluntarily made in the hour of 
 
 peril for the common preservation of ship and cargo "(e). "The 
 
 reloading of the cargo and the outward expenses, are expenses of acts 
 
 done when both ship and cargo are safe from existing danger, and are 
 
 therefore not within the rule " (_/ ), 
 
 The opposing view, contended for in that case, that an expenditure 
 is general average if made for the benefit of ship and cargo, io enable 
 the common adventure to be completed, was distinctly rejected by both 
 judges. Bowen, L. J., said (jr) : "Exceptional cases apart, it is not 
 sufficient, according to English law, that an expenditure should have 
 been made to benefit both cargo-owner and shipowner. The idea of a 
 common commercial adventure as distinguished from the criterion of 
 common safety from the sea, would lead to the inclusion in general 
 average of, at all events, temporary repairs of the ship caused by 
 particular average loss, and would enable the shipowner to complete 
 his part of the contract of affreightment by means of a money con- 
 tribution levied perforce upon the cargo-owner." 
 
 Let us now compare the practice of adjusters on these points with 
 the law there laid down : — 
 
 (1) With regard to the cost of unloading, there has been a re- 
 markable steadiness of practice among adjusters ; it has been the 
 uniform rule to charge it to general average, whether the repairs to be 
 done have been necessitated by accident or by sacrifice. ■ And thus it 
 has come about that the question has not been raised in the Courts. 
 Even in Svendsen v. Wallace it was not disputed. 
 
 But it is, I believe, quite impossible to reconcile this practice 
 with the leading principle definitely adopted in Svendsen v. Wallace. 
 Where the condition of the ship after arrival in the port of refuge 
 is such that both ship and cargo are in danger, say of sinking, 
 untU the cargo is discharged, the operation of unloading is no doubt 
 done for the common safety " in the hour of peril," or, perhaps more 
 accurately, under pressure of a common danger ; and is therefore 
 itself a general average act. But the cases which I put for con- 
 sideration are those in which the ship and cargo are safe within the 
 
 (d) 10 A. C.p. 417. (/) PerBowen,L.J.,13Q.B.D.p.84. 
 
 (e) Per Lord Esher, 13 Q. B. D. p. 78. is) 13 Q- B. T). at p. 86. 
 
864 
 
 APPENDIX D. 
 
 Appendix D. port of refuge, but in whicli tie ship cannot be repaired, and the 
 voyage consequently cannot be proceeded with, unless the cargo, 
 or part of it, be discharged. In such a case it is for the shipowner 
 to determine whether he wiH, or will not repair. Generally he is 
 bound to repair, unless the damage sustained has been caused by 
 perils excepted in the contract of carriage, and is of such & character 
 that it prevents, in a business sense, the completion of the voyage (A). 
 But, whether bound or not, if the owner elects to repair he must 
 discharge the cargo for that purpose ; the operation is an incident of 
 the repairs ; it is not a general average act in the sense above defined, 
 for it is not done under the pressure of danger or for the safety of the 
 cargo ; and it is not an operation " caused or rendered necessary" (i) 
 by the act of putting into the port for safety. On the theory of the 
 - law, then, it seems plain that the cost of discharging should properly 
 fall, with the cost of repairs, upon the shipowner. 
 
 Hallett V. Wigram (9 C. B. 680) was to that effect. A shipper sued 
 for the value of goods which had been sold by the master at a port 
 of refuge. The shipowner pleaded that the goods were sold to defray 
 expenses of unloading at the port and repairing damage caused by a 
 storm, to enable the ship to prosecute her voyage, and to prevent her 
 and her cargo from being wholly lost, and for the common benefit of 
 all interested. The plea further alleged that the expenses so incurred 
 in unloading and repairing had exceeded the value of the ship, and 
 contended that the shipowners were only liable to contribute to the 
 amount as general average. On demurrer the Court held that this 
 was not a good defence ; no case for general average contribution 
 being disclosed. The damage being accidental the cost of the repairs 
 fell on the shipowner. No distinction was suggested between the 
 expenses of unloading and the expenses of repairs. 
 
 In Svendsen v. "Wallace the question did not arise, as the adjusters 
 on both sides agreed in treating the expenses of unloading as general 
 average. But the view of Bowen, L. J., may be gathered from the 
 following passage {k) : — " In practice, it has in recent times become 
 common to carry these unloading expenses to general average, both 
 where the repairs of the vessel have been rendered necessary by a 
 general average act, and where they are rendered necessary by a 
 particular average loss. Nor is it necessary to discuss a practice 
 which may have become inveterate and which is found adequate. 
 Still, if strict theory were to be in each case relied upon, such 
 unloading ought, as it seems to me, to be dealt with specifically in 
 every instance by applying to it the two tests I have named. If 
 necessary for the common preservation of both ship and cargo, the 
 Unloading will be in itself a general average sacrifice ; see The 
 
 (A) See per CoUinB, J., Assiourazioni (i) Per Bowen, L. J., 13 Q. B. D. 
 
 Generali v. Bessie Morris Co., (1892) 1 p. 86. 
 Q. B. 571. (*) 13 Q. B. D. p. 87. 
 
APPENDIX D. 
 
 Copenhagen (/). If not so neceseai-y, it -will not in itself amount to Appendix D. 
 a general average sacrifice at all, but it may nevertheless be properly 
 included as a subject-matter of contribution whenever the expenditure 
 is directly caused by some antecedent act of general sacrifice." 
 
 It is true that the Master of the Rolls, in the same case, endeavoured 
 to reconcile this practice of treating the expenses of discharge as 
 general average with the law, by suggesting that the general average 
 act of putting into the port of refuge was a "going in to repair"; 
 and that the unloading was a part of that act " done in order to put 
 the ship into such a position that she can be repaired." But, as 
 already said, an act to be a general average sacrifice must be done 
 for the common safety. That is the doctrine insisted on throughout 
 this and other cases. And, on the hypothesis, after arrival in the 
 port nothing more was necessary for the purpose of securing 
 physical safety. If, then, the putting in was for repair, it was still 
 only a general average sacrifice so far as it was a putting in /or safety. 
 Moreover, if the whole act of going in to repair is to be regarded as 
 a general average act, it seems almost impossible to say that the 
 other incidental expenses of repair, such as storage of cargo, are not 
 also general average, as being parts of that act, or consequences of it. 
 Mr. Lowndes, in the last edition of his work on general average, 
 accepted the suggestion of the Master of the Rolls as the true explana- 
 tion of the adjusters' practice. But he at once (p. 218) proceeded, to 
 deduce from it that the expenses of warehousing and reloading ought ~ 
 also to be general average. 
 
 We have then, as it seems to me, in this uniform practice of 
 charging the expenses of unloading to general average, a plain 
 instance of conflict between the business view and the theory of the 
 law. 
 
 (2) I proceed to the next head of expenditure, the warehousing 
 charges on cargo discharged to enable the repairs to be done. The 
 practice of adjusters is to charge these expenses to the owners of the 
 cargo. And that practice has been judicially approved. Bowen, 
 L. J. (to), in Svendsen v. Wallace, said that "warehousing the cargo 
 is a charge that ought to be borne by the cargo which benefits 
 exclusively by it." There may at first sight be some difficulty in 
 seeing why these charges for protecting the cargo should not be borne 
 by the shipowner, on the ground that they save him from responsi- 
 bility for the damage which the cargo might otherwise sustain. It 
 might be argued that the shipowner has by his contract undertaken 
 to deliver the goods at their destination in good order, unless he is 
 excused by the express or implied exceptions. And that the loss or 
 damage which might happen to the goods after landing (say by theft, 
 or exposure to rain) would not be a loss proximately by the perils of 
 the sea which had rendered the unloading necessary. Also that it 
 
 (/) 1 Chris. Rob. 289. (m) 13 Q- B. D. p. 89. 
 
 C— c. 3 K 
 
APPENDIX D. 
 
 Appendix D. would not be covered by other exceptions in the contract if means of 
 protecting the goods had been available. The explanation, however, 
 seems to be that the shipowner has been prevented by the perils of the 
 sea from completing the voyage, unless he first discharges the cargo ; 
 and as the contract contemplates that the voyage shall be completed, 
 and indeed rec[uires the shipowner to complete it, it foUows that, 
 having regard to that contract, the discharge is a necessary conse- 
 quence of the accident by perils of the sea («). 
 
 That being so, the shipowner is not liable under the contract for 
 the consequences to the cargo of the discharge; and though bound 
 to do his best to mitigate the effects of the misfortune which has thus 
 befallen the cargo, he only has to do so on behalf of the owner of the 
 cargo, and at his own cost (o). The rule as to the expenses of storage 
 adopted in practice, therefore, seems to be consistent with the law. 
 
 But is that rule a fair rule, as between the owners of diSerent parts 
 of the cargo ? It frequently happens that only part of the ship's 
 cargo need be discharged to enable the repairs to be done. In such a 
 case the risks and expenses consequent upon the discharge fall wholly 
 Upon those goods ; while the benefit of continuing the voyage, which 
 has been thus procured, is shared by the owners of the other parts of 
 the cargo, without risk or expense. Moreover, it may be a matter of 
 choice with the master as to which goods he will discharge ; he may 
 have it in his power to put the risk and expense upon one part of the 
 cargo, or upon another part, arbitrarily. 
 
 The case is in these respects very analogous to that of a jettison, or 
 to an exposure of part of the cargo on the shore, or in lighters. A 
 benefit to the whole is procured at the expense of a part. Do not the 
 grounds of justice and policy, which in those cases require that all. 
 shall be put upon a footing of equality, apply also to the case we 
 are considering ? It would seem that these expenses should either 
 be treated as general average, or should be at least contributed to 
 by all the cargo-owners. And as the shipowner is also interested in 
 the safe arrival of the cargo, in respect of his freight, there would 
 be no hardship iu making him contribute also, at any rate in respect 
 of the freight. 
 
 But though considerations of policy and justice lead us to that 
 conclusion, the legal theory does not. Here, as before, the fact 
 which prevents the warehousing expenses being treated as general 
 average is the absence of any common danger. The expense is not 
 incurred for the common safety, it can at most only be said to be in 
 furtherance of the common voyage. And that is not, with us, a 
 sufficient ground. 
 
 (3) Now as to the third group of expenses, those of reloading the 
 
 [n) See Montoya v. London Assurance (o) See Notaia v. Henderson, L K 
 
 Co., 20 L. J., Ex. 254 ; of. Pink v. 7 Q. B. 226, p. 235 ; Cargo et Argos! 
 Fleming, 25 Q. B. D. 396. L. E., 5 P. C. 134 ; Kingston v. Wendt 
 
 1 Q. B. D. 367. 
 
APPENDIX D. 867 
 
 cargo after the ship has heen repaired. These are in practice Appendix D. 
 charged to freight. The view taken being that they are incurred 
 for the purpose of earning the freight by completing the voyage. 
 That they cannot be charged to general average was finally deter- 
 mined by the House of Lords in Svendsen v. Wallace ; although the 
 view was taken that the discharge of the cargo had there been 
 necessary for its safety. The Court of Appeal had already come 
 to the same conclusion on the view that the unloading was merely 
 for repairs. 
 
 The question who ought to- bear the reshipping expenses did not 
 there arise, except in that limited manner, that is to say, whether 
 or not they were general average ; but Bowen, L. J., expressed the 
 opinion that the " charges of reloading ought in principle to fall 
 upon the freight, or else upon the freight and the ship together, if 
 the two interests are severed." 
 
 These expenses, as the same judge pointed out, are "a loss caused 
 by the captain's decision to repair his ship, and to unload and reload 
 the cargo for that purpose " (13 Q. B. D. p. 89). They are expenses 
 incident to the repairs which the shipowner, as carrier, was bound to 
 undertake ; and which he has undertaken in order to perform his 
 contract of carriage. Having repaired the ship, he is by his contract 
 bound to put the goods on board and carry them forward. Where, 
 indeed, as in Atwood v. SeUar, the repairs have been necessitated by 
 a general average sacrifice, so that the cost of repairing at the port of 
 refuge is a consequence of that act, these incidental expenses are 
 chargeable to general average. But where the cost of repairing falls 
 on the shipowner only, so too should the expenses naturally incident 
 to that. The only alternative, that they should be treated as general 
 average, has been negatived. 
 
 Whether the shipowner can claim indemnity against these charges 
 from his underwriters on freight is another question ; a question 
 which cannot properly be determined until after the inquiry upon 
 whom, independently of insurance, the expenses ought to fall. 
 
 But the practice of adjusters has been to debit the charges to 
 freight directly; not to the shipowner first, and through him to 
 his underwriters on freight. And thus it has come about that, where 
 some of the freight has been paid in advance, part of these charges 
 is debited to the cargo-owners (or their underwriters), as being in- 
 terested in that prepaid freight. A result which will be seen to 
 be wrong if the primary liability of the shipowner be recognised. 
 Freight is at the present day very commonly paid in advance, either 
 wholly or in part, so that this treatment of the matter is of serious 
 importance. That the practice is erroneous is clear, if the above 
 statement of the law is right. 
 
 This point has not come very distinctly before the Courts ; but 
 in Svendsen v. Wallace the judgment of the House of Lords pro- 
 ceeded upon the assumption that the whole of the reloading ex- 
 
 3k2 
 
APPENDIX D. 
 
 Appendix D. penses would be borne by the shipowner, although part of the 
 freight had there been paid in advance. Lord Blackburn, though 
 fuUy aware of that fact, said: "If the 460Z. which is the cost of 
 re-shipping is properly charged to freight, the defendants (the mer- 
 chants) are not liable to pay any portion of it." 
 
 The difSculty which has apparently given rise to the prevailing 
 practice is that the shipowner who has received part of the freight 
 in advance, and therefore has insured with respect to part of the 
 freight only, viz., that which remains at risk, is not in a position to 
 charge the underwriters on that remaining freight with the whole 
 of the reloading and outward expenses. Those underwriters may well 
 claim that these extraordinary expenses have been partly incurred 
 by the shipowner in order to perform the service for which he 
 received the prepaid freight ; and on that he has paid no insurance 
 premium. But this is no sufficient reason for putting that part of 
 the expenses upon the cargo-owner. He has not by paying the 
 freight in advance undertaken to bear any part of the cost of 
 bringing the goods to their destination. And the accident which 
 gave rise to the expenses has not altered his right to have the 
 voyage completed. 
 
 If, however, the view were taken (as I would think erroneously) 
 that the accident has altered the rights of shippers, then though 
 it is no doubt true that a shipper who has paid freight in advance 
 has, to that extent, a greater interest in the completion of the 
 voyage than another shipper of similar goods who has not paid in 
 advance (for he is entitled to have them at the destination upon 
 making a pro tatito smaller payment), stUl his interest is greater 
 only to that extent. The justice of the case therefore would require 
 that all the cargo-owners should contribute ; the difference in 
 interest being allowed for by adding the freight advanced upon 
 any goods to the value of those goods. On this view the contribution 
 by cargo should not depend upon whether any freight has been 
 advanced or not. If the cargo- owners are not entitled to have their 
 goods carried on, they are aU interested, as well as the shipowner, in 
 making some sacrifice in order to get the voyage completed with the 
 goods on board. In short, we are led, on this view, to the conclusion 
 that the reloading and outward expenses should always be borne by a 
 contribution among the cargo-owners in respect of their goods, and 
 the shipowner in respect of his freight still at risk. 
 
 Summing up, then, with regard to these three groups of expenses, 
 we find : — (1) That the adjusters' practice of making the expenses of 
 unloading general average is not justified by the law. 
 
 (2) That their practice of charging storage expenses to the owners 
 of the cargo discharged agrees with the law ; but that there are strong 
 reasons for considering the law and the practice to be unjust, and for 
 requiring contribution to those expenses by all the cargo-owners, if 
 not also by the shipowner. 
 
APPENDIX D. 869 
 
 (3) Ttat the practice of charging the reloading expenses to freight Appendix D. 
 agrees with the law so far as they are thus charged to the shipowner. 
 But that the practice of making those who have paid advanced freight 
 contribute is not justified by the law ; and can only be justified by a 
 view which requires that all the cargo-owners should contribute. 
 
 These results seem to me very remarkable. As to (1) and (3) 
 English law and English practice are in conflict ; whUe the practice 
 as to (1) agrees with, and as to (3) points towards, the foreign rules, 
 which I shall presently discuss. As to (2) the law and the practice 
 agree, but are both unjust, and seem to require alteration in the 
 direction of the foreign view. 
 
 II. 
 
 If we now turn to the rules which obtain on this subject abroad, it 
 win be found that they are practically uniform, and that they every- 
 where difEer both from English law and English practice. Lowndes, 
 in his book on general average (4th ed. 1888), compared and tabulated 
 the rules in seventeen European and American States ; and his table 
 shows that in all those States, with the doubtful exceptions of Spain, 
 Peru, and Chili, substantially one view has been adopted. The 
 expenses of putting into and coming out of a necessary port of refuge, 
 including the cost of unloading, warehousing, and reloading the cargo, 
 are aU treated as general average. And, except in Erance, so also are 
 the wages and keep of the crew during the stay at the port. No 
 distinctions are made between cases in which the putting into port, or 
 the need of repairs, has been necessitated by accident and those in 
 which it has been the result of a sacrifice. Some minor distinctions 
 occur; e.g., in the law of Norway, putting in owing to "pursuit of an 
 enemy, contrary wind, ice, falling short of provisions, or other similar 
 cause," is treated differently from a putting in owing to damage which 
 renders the ship unseaworthy ; and in the Dutch Code, damage done 
 to the cargo by discharging is only treated as general average when 
 the discharge takes place in a manner unusual at the port. But apart 
 from such smaller points, there is in practice a broad agreement in 
 the rule I have stated. 
 
 I say in practice, because when one examines the Codes in which 
 in most countries the law is expressed they do not seem always to 
 bear out the rules actually adopted.' Despite the formal expression of 
 the law in the Codes, practice often departs from the law abroad as 
 much as or more than it does in England. Eor example, the Erench 
 Code (s. 400) includes in general average, " damage voluntarily 
 sustained and expenses incurred after express deliberation for the 
 common good and safety of the ship and cargo." But it is expressly 
 declared by s. 403 (3) that " expenses resulting from the putting into 
 a port of refuge, if occasioned by the accidental loss of such articles " 
 (cables, anchors, sails, masts or cordage) " or by the need of victualling 
 
870 APPENDIX D. 
 
 Appendix B. or to repair a leak," are to belong to particular average. Notwith.- 
 standing tMs, Lowndes (p. 377) found that the practice in France is to 
 charge all the expenses consequent on putting into a port of refuge to 
 general average, as already described, when the putting in has been 
 to repair damage which has rendered the ship unnavigalle. And I 
 gather that this practice has sometimes, if not always, had the support 
 of the French Courts. 
 
 Similarly, in Spain the expenses of putting into a port are, it is said 
 (Lowndes, p. 561), treated as general average when the putting in is 
 necessitated by general average damage, though by s. 821 of the last 
 Code (1805) it is provided that " the expenses of the putting into a 
 port of refuge are always to the shipowner's or lessor's account : " 
 while 8. 822 puts the cost of discharging for repairs on the shipowner ; 
 and s. 823 makes him responsible for the custody and care of the 
 discharged cargo, except as against fuerza mayor. 
 
 And in Portugal the practice is apparently even more contrary to 
 the Code ; which contains a provision (s. 1612), similar to that of the 
 Spanish Code, charging the expenses of entering a port of refuge to 
 the owner (Lowndes, 3rd ed. p. 96). 
 
 The discrepancy between theoretical law and practice appears to 
 be of old standing in France. Emerigon, writing in 1783, treated 
 the subject with his usual conciseness and clearness. Summing 
 up the authorities, from the Roman law down to the Ordinance of 
 Louis XrV., of 1681, he said (^) : "It results from these texts 
 (1) That expense incurred and damage suffered are not general 
 average, except in the case where they have been incurred volun- 
 tarily for the common safety. It is necessary that the act of man 
 should have concurred with the accident ; there must have been a 
 forced will. (2) It must have been a question of shunning an 
 immiaent danger. A panic would not excuse a captain in making a 
 jettison without being forced to it by a real danger. Still prudence 
 does not allow him to wait the last extremity." An exact statement 
 of the doctrine which has led to our English position. 
 
 Later (yD.{q) he treats of expenses at a port of refuge. After 
 showing that the Eoman law and other authorities did not allow 
 contributions to the cost of repairs, he cites the following passage 
 from Eicard (negoce d' Amsterdam) : " When a vessel is forced by 
 tempest to enter a port to repair damages, if she cannot continue her 
 voyage without risk of being entirely lost, the wages and subsistence 
 of the crew from the day it has been resolved to seek a port for 
 repairs to that of her departure therefrom are carried into general 
 average, together with all the expenses of discharging and reloading, 
 anchorage and pilot dues, and all other charges and expenses caused 
 by this necessity." 
 
 To this Emerigon adds : " Such is pretty nearly the jurisprudence 
 
 (i)) Chap. XII. 39. 6. (j) Chap. XII. 41. 6. 
 
APPENDIX D. 871 
 
 of our Admiralty But the expenses and cost of the repairs, ^PP^^^^^P- 
 
 the price of the masts, sails and other rigging it has been necessary 
 to purchase are not so admitted. Still, if there has been an excessive 
 value in all these objects either from a scarcity of workmen or from 
 dearness of timber, rigging and other materials, this surplus of price 
 would enter into general average." 
 
 He goes on : "It is true the law above cited is contrary to our Juris- 
 prudence. But if the vessel injured by tempest were not repaired in 
 the port of repose she would remain unnavigable ; this would bring 
 the most serious prejudice to the cargo. It is then a question of 
 expense incurred for the common good and safety." 
 
 This persistence of practice, in spite of inconsistent theory, and in 
 spite of contrary enactments, is very significant to show how strong 
 has been the opinion that justice, or convenience, require a treatment 
 of the matter different from that required by the legal view. More- 
 over, we not only have examples of this conflict between Code and 
 Practice, but in some of the modern Codes we find a corresponding 
 conflict within the Code itself. The practical view seems to have been 
 grafted upon the legal theory, with perhaps some sacrifice of logic. 
 
 Thus the German Code (adopted in 1862) defines (Art. 702) general 
 average as, "all damage intentionally done to ship or cargo, or both, 
 by the master or by his orders, /"or the purpose of rescuing loth from a 
 common danger, together with any further damage caused by such 
 measures, and also expenses incurred for the same purpose." 
 
 Theu by Art. 708 (4) it provides that "When the ship, in order to 
 avoid a common danger, threatening ship and cargo in case of con- 
 tinuing the voyage, is run into a harbour of refuge, particularly 
 where the running in is for the necessary repairing of a damage 
 which the ship has suffered during the voyage," the cost of dis- 
 charging, warehousing, and reloading shall belong to general average, 
 if the cargo has to be discharged "on account of the motive which led 
 to the putting into port." 
 
 That position, if I rightly understand it, is exactly the one which 
 our Courts held to be untenable, in Svendsen v. Wallace {r). For it 
 adopts the " common danger " principle as essential, and yet makes 
 the expenses at a port for repairs general average, though incurred 
 after ship and cargo are in safety. 
 
 In the United States also the law appears to differ from our law 
 in the same way, though professedly based on the same principle of 
 " common safety " («). 
 
 In England we have parted company from other maritime com- 
 munities; but our Text Books and Law Eeports show that what we 
 may caU the Continental view has only been dissented from by our 
 judges in quite modern times, and after very remarkable fluctuations 
 
 W 13 Q. B. D. 69 ; 10 A. C. 404. „ _„ .^. 
 
 («) Phillips, Insur. of. ss. 1270, 1320, 1326 ; Lowndes, pp. 606, 620, citing 
 Gonrlie. 
 
^'^^ APPENDIX D. 
 
 Appendix D. ^^ opinion^ j^ j)^ Oosta «. Newnham(0 (a.d. 1788), Buller, J., cited 
 a passage from Beawes^ showing the law in foreign countries with 
 regard to expenses at a port for repairs, in the sense ahready stated, 
 and added, "I do not know that this point has ever been settled in 
 England." 
 
 In The Copenhagen (m) (a.d. 1799), and The Gratitudine (a;) (a.d. 
 1801), Lord Stowell's judgments seem to show that he was of opinion 
 that expenses incurred for the common benefit at a port of refuge 
 should be treated as general average. 
 
 In 1802 the first edition of Abbott on Shipping was published; 
 and the view there expressed was that, where the cost of repairs at 
 a port of refuge falls on the shipowners, they ought also to bear all 
 the expenses accessory to those repairs ; it being their duty, so far 
 as in them lies, to keep the ship in good conditipn during the 
 voyage (y). 
 
 On the other hand Stevens, who first published his book on Average 
 in 1813, laid it down (p. 25) that " all extra charges incurred for the 
 general good on putting into a foreign port in distress (y), ought by 
 the common law to be made good by 'a general contribution." He 
 cited Da Costa v. Newnham, which is, however, no authority for the 
 point, and referred to the foreign laws. 
 
 But he further spoke of a "practice of Lloyds," and of "the cus- 
 tomary decision of the Registrar and merchants in such cases, that 
 all the charges incurred expressly for the general benefit are to be 
 placed to the general average ; those incurred for the preservation 
 of the goods to the cargo ; and the outward charges whereby the 
 ship is again set forward on her voyage, to the freight" (z). 
 
 We here evidently have traces of the practice which has ever since 
 prevailed in England. And in Benecke's Principles of Indemnity, 
 published in London in 1824, the practice as it at present exists is 
 described and spoken of as "so far sanctioned by custom that an 
 attempt to correct it would meet with great opposition " (p. 198). 
 Benecke did not, however, regard the practice as correct. 
 
 In January, 1815, the matter camB before the Queen's Bench in 
 the case of Plummer v. Wildman (a), and Lord EUenborough and 
 Le Blanc and Bayley, JJ., decided that the expenses of putting in 
 to a port of refuge, and of landing and storing the goods during 
 repairs, and of reloading them afterwards, were all chargeable to 
 general average. And not only these incidental expenses, but also 
 the cost of the repairs was allowed in general average ; the only 
 limitation being that any benefit resulting to the ship from the repairs, 
 beyond the prosecution of the voyage, was to be deducted. 
 
 (t) L T. R. 407. {z} See also The Copenhagen, 1 C. 
 
 r ^ 9,- 5°^ ^®^' P- ^^*- ^^- 289. ■K'Jiere it was referred to the 
 
 (x) 3 C. Eoh. 240, p. 264. Registrar and merchants to inquire as to 
 
 («/) See the passage set out in Shee's the existence of a rule of practice 
 
 pote, Abbott, nth ed., p. 533. (a) 3 M, (^ S 482, 
 
APPENDIX D. 873 
 
 The damage there had been caused by a collision, by which the Appendix D. 
 ship's "false stern and knees were broken, and the master was in 
 consequence obliged to cut away part of the rigging of her bow- 
 sprit, and to return to Kingston (the port of departure) to repair 
 the damage sustained by the accident and the cutting away." 
 
 The decision went to the fullest extent of the Continental view. 
 And it was based on the ground that, as all were equally benefited 
 by the removal of the ship's incapacity to continue her voyage, it 
 was reasonable that all should contribute towards the expenses 
 of it. 
 
 But, within four months, the authority of the case was qualified 
 by a reference made to it in Power v. Whitmore (J), which came before 
 the same three judges in May, 1815. Lord EUenborough is reported 
 to have spoken of it as a case in which " the master was compelled 
 to cut away his rigging in order to preserve the ship and afterwards 
 to put into port to repair that which he sacrificed." And this has in 
 recent years been taken as the explanation of the decision. 
 
 It is, however, impossible to read the judgments in Plumnier v. 
 'Wildman(c) as depending upon the fact of an original voluntary 
 sacrifice. The language, especially of Lord EUenborough, is too 
 clear. And the decision was that all the expenses necessary to 
 enable the ship to prosecute the voyage, including the accidental 
 repairs, were to be general average. And though the case is now 
 of no authority, it was evidently treated as an authority by Lord 
 Tenterden, who had been counsel in Power v. Whitmore, when the 
 fifth edition of his book was brought out in 1837, under the editor- 
 ship of his son. The passage in the earlier editions to which I 
 have referred above was then omitted, and a new passage was 
 inserted (p. 347) giving the effect of the decision in Plummer v. 
 Wildman, so far as it related to the expenses of unloading, ware- 
 housing, and reshipping, without any suggestion that the ruling 
 had been qualified. Lord Tenterden was then alive, and it is quite 
 improbable that these changes were made without his sanction. 
 
 Again, a few years later (1848), Amould published his work on 
 Insurance, and cited (c?) Plummer v. "Wildman as an authority for 
 the proposition which he then laid down, generally, that "when in 
 order to repair the ship it becomes absolutely necessary to discharge 
 the cargo, all the expenses of unloading, warehousing, and reloading 
 it come into general average, because incurred for the joint benefit 
 both of the ship and of the cargo : of the ship, that she may be 
 repaired, and of the cargo that it may be preserved." 
 
 To this we may add that Plummer v. Wildman has been treated as 
 an authority in the United States, where the law seems to be in 
 accord with that decision (e). 
 
 fM ATjr .R-s 141 W 2naed., 921, s. 335. 
 
 (*)4M-&S. 1". W Phjll. Insur., ss. 1300, 1320; 3 
 
 (c) 3 M. & S. 482. Kent, 188. 
 
874 
 
 APPENDIX D. 
 
 Appendix D. j^ 1355^ again, Hall t». Janson (/) is another decision that "the 
 expenses necessarilj' incurred in unloading and reloading for the 
 purpose of repairing the ship that she may be made capable of pro- 
 ceeding on the voyage" are general average; being "deliberately 
 done for the joint benefit of those who are interested in the ship 
 and cargo and the freight." 
 
 But meanwhile it had been definitely made clear in HaUett v. 
 Wigram (y) (a.d. 1850), that the actual cost of accidental repairs must 
 be borne by the shipowner, although the repairs may have been done 
 for the common benefit at a cost exceeding the repaired value of the 
 ship. And in that and the later cases it has been steadily insisted on 
 that a sacrifice or expense to be general average, must have been 
 incurred under circumstances of impending peril. , 
 
 Finally, as we have already seen, this essential condition was 
 re-stated with great distinctness in Svendsen v. "Wallace ; and the 
 idea of a " common commercial adventure as distinguished from the 
 criterion of common safety from the sea" was expressly said to be 
 inadmissible. 
 
 III. 
 
 It is difficult to resist the conclusion that the expenditures we have 
 been considering cannot logically be treated as general average, if 
 imminent peril, threatening the physical existence of ship and cargo, 
 is to be regarded as an essential condition of a general average sacrifice 
 or expenditure. But we find that while that theoretical view has been 
 repeatedly asserted, here and elsewhere, practical men nearly every- 
 where, indeed we may say everywhere, have agreed in ignoring it in 
 relation to some or all of those expenditures. 
 
 And the tendency of this practical opinion is rather in the direction 
 away from the legal theory than towards it. The York-Antwerp 
 Eules of 1877 (VII.), brought the warehousing and reloading expenses 
 at a port of refuge within general average ; and, (VIII.) also the 
 wages and maintenance of the crew during the stay at the port. The 
 corresponding Tork- Antwerp Eules of 1890 go further. Eule X. 
 allows as general average the cost of discharging, storing, and reload- 
 ing, whenever cargo is discharged for repairs which have accidentally 
 become necessary, although the repairs be done, not at a port of 
 refuge, but at one of the ordinary ports of loading or caU on the 
 voyage. It is enough that the damage to be repaired shall have been 
 caused by sacrifice or accident during the voyage, so that the repairs 
 shall have been necessary for the safe prosecution of the voyage. 
 And Eule XI. makes the wages and maintenance of the crew general 
 average during any detention for such repairs. These rules are un- 
 mistakably based on the view that an expenditure for the sake of 
 
 if) 24 L. J., a B. 97. (y) 19 L. J., C. P. 281. 
 
APPENDIX D. 875 
 
 accomplishing the voyage, necessitated by an accident, should be treated Appendix D. 
 as general average. 
 
 The idea seems to be that, while the actual cost of repairing acci- 
 dental damage which has befallen one of the interests concerned 
 should be borne by that interest alone, the incidental expenses neces- 
 sary to prevent the frustration of the voyage by that accident should 
 be borne by all. 
 
 The conclusion seems forced upon us that the legal theory of 
 general average recLuires expansion. A broader statement of the 
 principle is wanted, extending it to cover extraordinary expenditures 
 which may be incurred to prevent the frustration of the voyage by 
 accidental perUs. Accidental damage and losses must lie where they 
 fall; but if we are to be guided by the views of business men, 
 expenses which have become necessary, owing to accident, to enable 
 the safe prosecution of the voyage, ought to be made good by general 
 average contribution, if the prosecution of the voyage is in the interest 
 of both ship and cargo. 
 
 And the only satisfactory way of altering the rules on this subject 
 is by legislation. The method of the York- Antwerp Eules has been 
 by contract. They have no effect except where they have been 
 expressly adopted in contracts of carriage, and of insurance. Their 
 effect in that way is very large, but it is only partial ; and the wider 
 their operation, the more does it become unsatisfactory that cases in 
 which no contract has been made should be dealt with under rules 
 which are condemned by the best practical opinions. 
 
 Moreover the method of contract is apt to fail. The contracts may 
 not agree. Some bills of lading may adopt the York-Antwerp Eules 
 while others do not. There may be a charter party relating to the 
 voyage which adopts the new rules, while biUs of lading for goods 
 shipped under the charter may fail to do so. Or, again the contracts 
 of insurance may not agree with the contracts of carriage. And even 
 where a particular set of rules is adopted in aU the biUs of lading, 
 Btni questions of general average affect the shippers among themselves, 
 and their bOls of lading are contracts with the shipowner, not with 
 other shippers. The law of general average governs the right of 
 persons, co-adventurers, who are not aU under contractual relations 
 with one another ; and the rules of that law must apply where they 
 have not been modified by contract. 
 
 Other considerations also point to the desirability of legislation on 
 the subject of general average. More especially the Hi-defined state 
 of the law on many points. The cases decided in the Courts have been 
 too few to enable the legal principles to be worked out in that detail 
 which business requires. The matters discussed in this paper afford 
 illustrations, which might easily be added to, of the want of certainty 
 which exists. An uncertainty which sheds no lustre on our juris- 
 prudence, and is unworthy of our position as leaders in maritime 
 commerce. 
 
877 
 
 INDEX. 
 
 ABANDONMENT OP VOTAOE, 
 
 At port of refuge, shipowner's rights and obligations, 302 — 309. 
 
 Effect on freight, 307, 547. 
 
 By abandoning ship at sea, 308. 
 
 Question of fact, 424. 
 
 Freighter may regard contract as at an end, 555. 
 
 No lien for freight where voyage abandoned, 664. 
 
 Jurisdiction of Admiralty Court over claim in respect of, 689. 
 
 ABANDONMENT TO UNDERWEITBKS, 
 
 Right of underwriters to freight, cargo on owner's account, 575, 600. 
 Whole freight goes to underwriters, if voyage completed by ship after, 600. 
 Not so if goods carried on ia another ship, 600. 
 Claims for loss of freight do not pass, 600. 
 
 " ABOUT," 142. 
 
 ACCIDENT, 
 
 In navigating, not an act of God, 8. 
 
 Exception of, does not cover negligent collision, 77. 
 
 An element in "perils of the sea," 87. 
 
 Snow, not an " accident," 257. 
 
 ACT OF GOD, 
 
 Carrier not liable for, 2, 74. 
 
 Meaning, 7. 
 
 Must be independent of human action, 8. And beyond control, 9. 
 
 What are natural causes ? 10. 
 
 Does not excuse performance of an absolute undertaking, 74. 
 
 Express exception, 81. 
 
 Distinction from perils of the sea, 84. 
 
 HarterAct, 103g. 
 
 "ACTUAL FAULT OR PRIVITY," 
 
 Absence of, condition of limited liability, 24, 26. 
 
 Of one part-owner, co-owners' right to limit liability not lost, 26. 
 
 ADMIRALTY COURT. [See In Rem.] 
 
 ADVANCED FREIGHT. \_See Febtoht.] 
 
 ADVANCES BY CHARTERER, 
 
 Distinction between freight and, S64. 
 
 Shipowner's option, 664. 
 
 Effect of " subject to insurance," 566. 
 
 Rights of charterer to deduct, from freight, as against mortgagee of ship, 
 
 593. 
 As against lender on bottomry, and assignee of freight, 598, 
 
 ADVERTISEMENT, 
 
 General ship, shipment under, 50, 56. 
 
 [The references are to the Sections.^ 
 
878 INDEX. 
 
 AGENTS. \_See Pactoes, FoBWAEDiira Aobnts.] 
 
 , Consigmnent of ship to charterers, 123, 124, 168, 173. 
 Right to collect freights, 124. 
 Power to compromise claims, 124. 
 Charter by, ratification, 126. 
 
 Charterer's agent may not not alter charter party, 126. 
 Undisclosed principal, 127. 
 Described as " owner," 127. 
 
 Contracting for principal not liable on contract, 128. 
 Unless no principal exists, 128. 
 
 Where agent's liability to cease when cargo shipped, 128. 
 Warranty of authority, 129. 
 Signature "by telegraphic authority," 129. 
 Contracting personally, 130. 
 
 Liability by custom, 131. Authority by custom, 184. 
 Principal not suable after judgment against, 132. 
 Deposit by, under Merchant Shipping Act, s. 495. ,476. 
 Mercantile, Factors Act, 604. 
 Authority to, to stop goods in transit, 629, 
 Eatificatiou after transit ended insufficient, 529. 
 Liability for freight, 605. 
 For demurrage, 639. 
 Lien as against charterers, 672. 
 
 "ALONGSIDE," 
 
 Cargo to be brought, meaning, 250. 
 Cost of lighterage, 250. 
 Cargo to be taken from, 463. 
 
 "ALWAYS AFLOAT," 
 
 Generally a condition of safety, 449. 
 Condition of obligation as to delivery, 455. 
 
 AMBIGUITY, 
 
 Parties not ad idem, 162. 
 
 Ambiguous guarantees, 141a. 
 
 In words, cansiinio^oiL contra proferentem, 172. 
 
 ANIMALS, 
 
 Inherent Tice, 10, 12. 
 
 Fitness of ship for, 20, 51. 
 
 Declaration of value under EaUway and Canal Traffic Act, 1854 , , 29. 
 
 Eestiveness through negligence, 77. 
 
 " Not accountable for mortality," 103. 
 
 Dying on voyage, no freight payable, 548. 
 
 Loss of value by entering prohibited port, 419. 
 
 ARBITRATION CLAUSE, 
 
 Not imported into biU of lading, from charter, by " other conditions," &c., 
 160. 
 
 ARREST. \_See Resteainis op PetnceS, &C.] 
 In rem, effect of, 700. 
 
 ARRIVAL, 
 
 Custom as to, when ship has arrived, 199. 
 
 Master not bound to notify, to consignees at port of discharge, 465, 
 
 But must not mislead consignees, 465. 
 
 " AS CUSTOMARY," 250, 614, 619a. 
 
 "AS FAST AS SHIP CAN DELIVER," 614a. 
 
 ASSIGNEE. {_See Bm. of Ladino, FBBiaHT.] 
 
 " ASSIGNS," 486. 
 
 [The references are to the SecMons.'] 
 
INDEX. 879 
 
 ASSORTMENT OP CARaO, 
 
 Where damaged, at destination, 293. 
 Shipments should be separated on delivery, 462. 
 Goods of different kinds shipped in one Tbulk, 462. 
 Expenses of, Merchant Shipping Act, s. 493 (4) . .476, 478. 
 
 "AT ALL TIMES OP TIDE," 4S5. 
 
 "AT SHIP'S RISK," 251a. 
 
 AUTHORITY, 
 
 Warranty of, by agent, 129. 
 
 AVERAG-E. [See Genbeai, Aveeaob.] 
 
 AVERAGE ACCUSTOMED, 
 Meaning of, 587. 
 
 AVERAGE BOND, 442. 
 
 BALES, 
 
 Meaning of, 169. 
 
 BALLAST, 
 
 Duty and right of shipowner to provide, 262. 
 
 May bear freight, 262. 
 
 Charterer's right to ship, instead of cargo, 265. 
 
 BAR-HARBOUR, 
 
 Charterer's duty to complete loading outside, 226. 
 Cargo discharged to cross bar, charterer not bound to load again, 260. 
 Ship loading inside, must cross on highest tides if necessary, 271. 
 When not safe, 449 et sej. 
 
 BARRATRY, 
 
 Meaning, 99, 100. 
 
 Distinction between polioies and contracts of carriage, 100. 
 
 BERTH. ISee DEMtJEKAaB.] 
 
 Who may determine, 249, 459, 460. 
 Control of port authority, ^eot, 254a. 
 Option of charterer, 624b, 628. 
 
 BERTH-NOTE, 
 
 Liability of maker, 130a. 
 
 BILL OF EXCHANGE, 
 
 Effect of buyer'ft on stoppage in transit, 527. 
 Payment of freight by, 584, 585. 
 Effect on lien, 665. 
 
 BILL OP LADING. \_See Indoeseb oi' Bill oe Lading ; Indobsbment op 
 
 Bill of Ladino.] 
 Nature of, 60, 59, 486. 
 
 Porm of, how to be determined, 53. Forms, 54. 
 Liverpool Conference, 1882, bill of lading, App. A. 
 Hamburg Conference, 1885, bill of lading, App. A. 
 Mediterranean, Black Sea and Baltic steamer bills of lading, for grain 
 
 cargoes and for general produce, App. A. 
 New York Produce Exchange biU of lading, App. A. 
 Stamp on, 55. 
 
 Drawn in sets, 55, 602, 503. 
 Does it conclusively show the contract ? 56. 
 
 Where incomplete, 67. 
 Relates back to what has been done, 58. 
 PaUure to give, 58, 59. 
 Signature by master, 59. 
 
 [The references are to the Sections.} 
 
880 INDEX. 
 
 BILL OP IjABING—contimted. 
 To wlioin to be given, 60. 
 Contract with shipper, under, 61. 
 Transfer of contract contained in, 62 et acq. 
 Statement of cargo in, not conclusive against shipowTier, 69, 681. 
 
 Although conclusive hy the law of the flag, 69, 206. 
 
 Statement of marks on cargo, not conclusive, 69a. 
 
 Agreement that statement in, shall be conclusive, 69b. 
 
 Conclusive against person signing, unless caused by fraud, 70. 
 Misstatement of date by master, owner not liable, 69a. 
 Misdescription of goods in, 72, 729. 
 Are common law exceptions implied in? 74. 
 Statutory exemptions are, 76. 
 Exceptions construed against shipowner, 77. 
 Greneral exceptions do not protect against negligence, 77. 
 Onus of proof as to loss apparently within exception, 78. 
 Exceptions do not generally alter liability for unseaworthiness, 79. 
 Exceptions do not affect liability to general average, 80, 103, 104. 
 Exceptions in, 81 «< seq. 
 LiabiKty for effects of stowage under, 95. 
 Dangerous goods, 97. 
 Limit of time for claiming under, 106. 
 Through bills of lading, 106, 108, 470. 
 For passenger's luggage, 110. 
 For goods shipped by charterer, 151. 
 
 Does not alter the charter party contract, 151, 587. 
 
 Charterer cannot alter destination after, 151, 268. 
 
 Effect of, after assignment by charterer, 152. 
 Shipments by strangers, for whom does master sign ? 153, 154, 155, 156. 
 
 Charter party terms not preserved by, unless so expressed, 160. 
 
 "Other conditions as per charter party," 160, 637, 669. 
 
 Master's authority to give, where charter party terms not preserved, 
 161, 161a. 
 Given by charterer, 158. 
 " Clean bills of lading," meaning, 161. 
 Change of consignee in, after signature, 485. 
 
 A symbol of the goods ; constructive transfer of possession by, 486. 
 " Assigns" in, means assigns of biU of lading, 486. 
 Essentials of negotiability of, 487. 
 "Order or assigns," 487. 
 Indorsement of, 487. 
 
 Special verdict in Liokbarrow i>. Mason, 487. 
 Shipping notes, 487, 634. 
 Conditional indorsement, 488. 
 Failure to accept accompanying drafts, 488. 
 Mere possession of, does not enable holder to convey, 489, 490. 
 Differs from bill of exchange, 489. 
 Shipper without title cannot negotiate, 491. 
 Shipment imder bill of lading to shipper's order, reservation of disposal of 
 
 the goods, 492—494. 
 Shipment by agent who has paid for goods, 495. 
 Indorsement obtained by fraud, 496. 
 Effect of transfer in passing the property, 497. 
 Transfer to bankers ; pledge or mortgage ? 498. 
 Intention the test, 499. 
 
 Effect of transfer of, after goods assigned, 500. 
 Continues in force as document of title untU delivery, 601. 
 Drawn in a set, delivery on one "part" without notice of other claims, 502. 
 Indorsement of one part to assignee sufficient, 503. 
 Purchaser cannot require more, 603. 
 Effect of Factors Acts on assignment by, 504, 536. 
 
 Effect of assignment of, in defeating the right to stop in transit, 532—539. 
 Assignment of goods without bill of lading, effect, 534. 
 Liability for demurrage under, 636 — 642. 
 Charter party liens, when preserved by, 668 et seq. 
 Exceptions in, protect shipowner against claims in tort, 705. 
 
 [The references are to the Sections.] 
 
INDEX* 88i 
 
 BILLS OF LADING ACT, 1855, 
 Clauses, 62. Inaoouraoy of, 500. 
 Position of shipper after indorsement under, 65. 
 What property must pass, to pass the contract, 66. 
 Effect of, as to statements of quantity in bill of lading, 70. 
 Application to through bill of lading, 107. 
 
 Terms implied by custom, how affected by indorsement under, 200. 
 Liability for freight under, 606. 
 LiabUiiy for demurrage under, 638, 639. 
 
 BLOCKADE, 
 
 At port of discharge, may excuse charterer, 82. 
 
 Breach of, maybe barratry, 99. 
 
 Eestraiut of princes, charter party terminated by subsequent blockade of 
 
 agreed port of discharge, 233. 
 Liability to capture by running, 244. 
 Contracts to run a foreign blockade not illegal, 244, 246. 
 Does not excuse non-performance where contract made with notice, 246. 
 
 BOATS, 
 
 Bisk of, 92. 
 
 BOND, 
 
 General average, obligation of shipowner, 442. 
 
 BOTTOMRY AND EfeSPGNDENTIA, 
 
 Power of master to hypothecate cargo for repairs, &o., 310. 
 
 He must resort first to ship and freight, 310. 
 
 Must he prudent in interests of cargo, 311. 
 
 Hypothecation must be conditioiial on arrival, 312. 
 
 The property in the goods does not pass, 312. 
 
 Where part of cargo charged not at risk, 313. 
 
 Hypothecation for necessaries, 314. 
 
 Cargo not chargeable before shipment, 315. 
 
 Master must first communicate if possible, 316. 
 
 Law of flag, Italian law, 211. 
 Enforcement of bottomry bonds in rem, 317 
 ■Order of priorities, competition with other liens, 317. 
 Cargo not resorted to till ship and freight exhausted, 318. 
 
 Though bond does not expressly include them, 318. 
 Prior charges on cargo, 319. 
 
 Shipowner's liability to indemnify cargo owner, 320. 
 Right to deduct advances from freight, as against, 698. 
 Right to sub-freights under, 599. 
 
 "BREAKAGE AND LEAKAGE," 
 
 Does not cover negUgenoe of crew, 77, 95. 
 
 Effect of exception, 98. 
 
 Does not cover leakage from other goods, 98. 
 
 BROKEN STOWAGE, 265. 
 
 BROKER, . 
 
 Employment to find cargo displaces master s authority, 42. 
 Commission, 121. 
 
 Not dependent on freight being earned, 121. 
 
 When earned, usage, 121. 
 
 Several brokers employed, 121. 
 
 Effect of clause in charter party, 122. 
 
 Payable to charterer, 122. 
 
 Jurisdiction of County Court in Admiralty, 122, 695. 
 Undertaking by, to procure a ship, 121. 
 Liability under bert£-note, 130a. 
 Cannot vary a charter party, 126. 
 Custom as to insurance, right of set off, 189. 
 Custom as to produce, selling own goods, 190. 
 Custom as to liability of, 196. 
 
 IThe references are to the Sections.} 
 
 C— C. 3 L 
 
882 INDEX. 
 
 BYE-LAW POWERS, 
 
 Harbours ClauBes Act, 1847 ; lumpers, 464. 
 
 CABINS, 
 
 Charterer not 'bound, or entitled, to put cargo in, 262. 
 Nor to require owner to carry passengers in, 262. 
 
 CANAL, 
 
 Liability of carriers by, 3. 
 
 CANCELLATION OP CHARTER PARTT, 
 
 For not sailing or arriving by agreed date, 149, 219 — 221. 
 
 Effect of exceptions, 149. 
 
 For not being " ready to load," 221. 
 
 Ship should proceed notwithstanding charterer's right, 222. 
 
 Where delay frustrates adventure, 231, 232, 233. 
 
 "In case of war," 236. 
 
 On "non-arrival" of another vessel, 236. 
 
 By performance becoming illegal, 237, 238. 
 
 Effect of war by nation to which one party belongs, 237 et seq. 
 
 Acts of foreign governments, 238, 247. 
 
 Voyage partly performed, 240. 
 
 Temporary restraint of voyage, 242. 
 
 CAPACITY, 
 
 Statement of ship's, when material, 141. 
 Guarantee of, fresh water draught, 141a. 
 Specified cargo, 141a. 
 " Say about 1,100 tons," meaning, 142. 
 
 CAPTURE, 
 
 For smuggling by master, 99. 
 
 Capture followed by re-capture or liberation does not necessarily terminate 
 
 contract, 242. 
 Salvage upon re-capture, 332. 
 Whole freight payable on captured goods, 656. 
 
 On goods imloaded after a re-capture, 656, 660. 
 
 CARGO. [See Deok-Caeso.] 
 
 Declaration of value, Merchant Shipping Act, 24. 
 
 Railway and Canal Traffic Act, 1854. .29. 
 Owner of, liability on contract, 61. 
 
 may sue for wrongful damage apart from contract, 67, 702. 
 
 may claim goods shipped in fraud of him, 67, 483, 652. 
 Statement of, in bill of lading, effect, 69, 70, 71, 152, 581. 
 Quality marks on, 69a. 
 
 Misdescription of goods in bill of lading, 72, 729. 
 When is charterer excused from loading, 136 et seq., 174, 177, 219, 221. 
 
 230, 232. 
 Full and complete cargo, custom, 169, 182, 196, 265, 266. 
 Delivery of outward cargo not a condition of loading return, 175. 
 Cargo must be ready at the loading place, 252, 257, 617. 
 Specific cargo, 141a, 254, 256. 
 Exceptions as to, 257b. 
 
 Charterer not generally excused by impossibility, 266. 
 Exceptions as to loading, 257 — 259. 
 
 Obligation to complete loading though part destroyed, 259. 
 Quantity to be loaded, 261, 262. 
 " Say about 1,100 tons," 261. 
 "Merchandize," "produce," 263, 264. 
 Measure of damages for short loading, 263, 711, 720, 721. 
 "FuU and complete cargo," broken stowage, 266, 266. 
 Frozen cargo, 266. 
 
 [^The referencei are to the SecHona.'] 
 
INDEX. 883 
 
 CAE60 — continued. 
 
 Customary modes of preparing, 266. 
 
 Cost of preparing, 267. 
 
 Eelanding after loading, 58, 268, 269. 
 
 SMp must take a full cargo, 271. 
 
 Short cargo through unskilful stowage, 271. 
 
 Unsafe goods, 277 et seq. 
 
 No contribution to jettison of dangerous goods improperly shipped, 366, 373b. 
 
 Statutes as to-dangerous goods, 280. Duty to declare, 280. 
 
 Stowage of cargo on deck, 281. 
 
 Statutes as to timber cargoes, 282. 
 
 Statutes as to grain in bulk, 283. 
 
 Duty to prevent damage to cargo from spreading, 291, 293. 
 
 Assortment of damaged cargo, 293. 
 
 Expenses of preserTing cargo, 295, 296. 
 
 Sale of damaged cargo by master, 297 et seq. 
 
 Improper sale of, by master, 300, 301. 
 
 Transhipment of, 304 — 306. 
 
 Hypothecation of, for repairs, &o., 310 et seq. 
 
 Shipowner's liability for proceeds of sale ; and to indemnify, 320. 
 
 liiability of cargo for life-salvage, 330. 
 
 Contribution by, to pilotage and towage in some oases, 341. 
 
 Contribution to salvage by, 350 — 364. 
 
 Liability of cargo to expenses of removing wreck, 359, 360. 
 
 Sacrifices of cargo. [See Geneeai, Aveeaqe.] 
 
 Expenses of discharging cargo at port of refuge, 408, 409, 411. 
 
 Expenses of reloading cargo at port of refuge, 410, 412. 
 
 Expenses of warehousing cargo at port of refuge, 413. 
 
 Valuation of cargo for purposes of contribution, 419. 
 
 "Where freight has been paid in advance, 440. 
 
 Assortment of goods shipped in bulk, 462. 
 
 Delivery of different portions of, similarly marked, 469. 
 
 Mixture of different portions of, loss of identity, 505. 
 
 Consignees tenants in common, 505. 
 What cargo must be delivered to entitle to lump freight? 550. 
 Liability of cargo to be arrested in action in rem against freight, 601. 
 Eemedy in rem against, under County Courts Act, 1869 . . 694. 
 Collision, both ships to blame ; claim for half the loss, 704. 
 Substituted, freight upon, reduces damage, 721. 
 Damages for delay in deUveriag, 724 — 727. 
 
 deterioration, 725. 
 
 deprivation, 728. 
 
 CAEEIER OF GOODS, 
 
 Liability at common law, 2 et seq. 
 
 Meaning of common carrier, 4. 
 
 Insurance of goods by, 105. 
 
 Liability after warehousing, 472 — 475. 
 
 When agent for buyer, to defeat stoppage in transit, 613. 
 
 CARRIEIIS ACT, 1830.. 29. 
 
 Application to bill of lading, 76. 
 
 CATTLE. \_See AmiiAxs.] 
 
 CAUSA CAUSANS; CAXTSA PSOXIMA, 88. 
 Rules of construction as to causes, 89. 
 Co-operating causes, onus of proof, 78. 
 
 CAUSES BEYOND CONTROL, 258a. 
 
 CESSER CLAUSE. [See Fbeight ; Dbmubeaob.] 
 In charter by agent, 128. 
 
 Where apparent agent is really principal, liability continues, 128. 
 Not incorporated in biU of lading by " other conditions, &c.," 160, 651. 
 Charterer may remain liable as biU of lading holder, 607, 651. 
 Liability for freight payable before cargo loaded, 607. 
 
 ITTie references are to the Sections.'} 
 3l2 
 
884 INDEX. 
 
 CESSER GIjAJJSE— continued. 
 
 Ambiguity of, 645 ; construed by reference to other remedies given, 645, 
 
 647. 
 Effect of clause as to demlirrage at port of loading, 646, 647, 649. 
 Effect of clause as to detention at port of lading, 648, 649. 
 Default of charterer at port of caU, 650, 
 
 CHARTER PARTY, 
 
 Liability of shipoTpner at common law, 5. 
 Objepts of the contract, 33. 
 Performance not specifically enforced, 39. 
 
 Owners must not use ship inconsistently with ; injunction, 39. 
 Sometimes not a contract of carriage, 112, 113. 
 ' Transfer of possession under, 114, 115, 116. 
 Government charters, 115. 
 Charter to master, 116. 
 
 Three classes of charter party, 117 ; forms of, 118 ; time charter, App. B. 
 Effect of seal, 119. 
 Stamp on, 120 
 
 Effected through shipbroker, 121. 
 Clause as to broker's commission, 122. 
 Consignment of ship under, 123. 
 Agency in making, 125. 
 Charterer's agent cannot alter, 126. 
 Made by agent for undisclosed principal, 127. 
 
 for a principal, 128. 
 Where agent's liability to cease on cargo being shipped, 128. 
 Warranty of authority to make, 129. 
 Personal Kability of agent, 130. i 
 
 By custom, failure to name principal in reasonable time, 131. 
 Representations in, 133 — 136. 
 
 Representation amounting to promise generally a condition precedent, 
 136. 
 
 Existence of ship — implied condition, 136. 
 
 Statement of nationality, 138. 
 
 Description, steamship, 139. 
 
 Statement of class — relates to time of chartering, 140. 
 of capacity, 141, 141a. 
 of vessel's position, 143. 
 " Tight, staunch and strong, &o.," 144. 
 Warranty of seaworthiness on sailing with cargo, 144. 
 Fitness for cargo, condition precedent, 145. 
 Time charter, when must ship be fit? 146. 
 Absolute character of contract in, 147. 
 When do exceptions apply? 148, 251a. 
 Right to cancel, for non-arrival by agreed date, 149, 221. 
 Do exceptions apply to charterer's undertakings ? 150. 
 Exceptions do not qualify freight clause, 150, 686a. 
 Bill of lading given for goods shipped under, 151, 152. 
 
 Effect when not authorized by shipowner, 152. 
 
 Master signing biUs of lading, HabUity of charterer, 153. 
 
 Liability of owner, 154, 155, 156, 157. 
 
 Charterer's right to freights under bOls of lading to shippers, 155, 158. 
 
 Effect of clause " master to sign bills of lading, &c.," 156, 161, 161a. 
 
 Terms of, not preserved in biUs of lading unless so expressed, 160. 
 
 "Without prejudice to the charter party," 156', 161. 
 Lidemnity by charterer, 161b, 
 Sub-charters, 161, 162. 
 
 Delivery of outward cargo, not a condition of loading, 175. 
 Time fixed for sailing to or arriving at loading port, condition precedent, 
 
 219, 221. 
 Meaning of "ready to load," 221. 
 Loading port to be named before saUing and without delay, 224. 
 
 "So near thereto as she can safely get," 196, 225, 226, 453 458, 628. 
 
 Does shipowner xmdertake to bring ship to loading port ? 227 228. 
 Joint inability to load, 229. ' 
 
 Delay in proceeding does not excuse loading, 230. 
 Unless adventure frustrated, 231, 232. 
 
 [The references are to the Sections.] 
 
INDEX. 885 
 
 CHARTER FAUTZ— continued. 
 
 Shipo-vmer disohaiged if performance impoBsible -within a reasonable time 
 
 owing to aooepted perils, 233. 
 Series of voyages, 234. 
 Express agreements for cancellation, 236. 
 Effect of (performance becoming illegal — war, 237 — 240. 
 Foreign law, 238, 247. 
 Loading under charter party, 249 et seq. 
 Charterer must have cargo ready, 252. 
 
 Usual storing places, 252. 
 
 Readiness in turn, 254a. 
 Exceptions excusing delay in loading, 257 — 258o. 
 
 Excusing delay in having cargo ready to load, 257a. 
 
 Charterer's particular cargo, 257b. 
 
 Erost; accidents, 257. Civil commotion, 258. 
 
 Political disturbances ; strikes ; detention by railways ; causes bevond 
 control, 258. ■ ^ 
 
 Right to have cargo rdanded, 268. 
 Time charters, hire imder, 570—673. Form of, App. B. 
 Transfers of charters, 607, 676. 
 Liens under. [&e Lien.] 
 
 CITY OF LONDON COURT, 
 Jurisdiction in rem, 692. 
 
 CIVIL COMMOTION, 
 
 Exception in charter of, onus of proof, 258. 
 
 CLASS, 
 
 Representation as to, material, 140. 
 Relates to time of contract, 140. 
 
 "CLEAN BILLS OF LADINa," 161. 
 
 CLEARANCE, 
 
 Shipowner's duty to effect, 284. 
 Meaning of, 284. 
 
 COAL, 
 
 Unseaworthiness by insufficiency of , 79, 384, 385. 
 Contribution for coal used in working off a, strand, 383, 386. 
 
 COCKROACHES, 
 
 Damage by, not a " peril of the sea," 86. 
 
 COLLATERAL AGREEMENT, 164. 
 
 COLLIERY, 
 
 Usages as to turn, 620. 
 
 COLLIERY GUARANTEE, 
 
 Relation to charter party, 258c, 627a, 648. 
 
 Exceptions under, 258o. 
 
 " CoUiery working days," 258c. 
 
 Usual form at Grimsby, 258c. 
 
 Commencement of lay days under, 627a. 
 
 COLLISION, 
 
 Not excepted by " accidents of the sea," when negligent, 77, 85, 87, 88. 
 
 Where both vessels belong to same owner, 77, 93, 101. 
 
 Exception of, 93 ; meaning of, 672, 692. 
 
 Effect of Harter Act on liability for, 103f. 
 
 Jurisdiction of County Courts, in cases of, 692. 
 
 Claim for, by assignees of bOl of lading, 702. 
 
 Claim on behalf of underwriters, 702. 
 
 [The references are to the Sections.} 
 
886 INDEX. 
 
 COLLISION— co^iiMMei?. 
 
 Accidental, incidence of loss, 703. 
 
 Both ships to blame ; claim in respect of cargo ; half damages, 704. 
 
 Efieot of limitation of Hahility, 704. Adjustment between ships, 704. 
 Claim against carrier not affected by right against other ship, 705. 
 Exceptions protect carrier against claims in tort, 706. 
 Cargo owners have a maritime lien on colliding ship, 706 
 Proceedings in rem, 706. 
 
 Must owner be personally liable, 707. 
 Foreign ship, jurisdiction over, 708. 
 
 Liability, how determined, 709. 
 In British waters, foreign ship must observe the regulations for preventing 
 
 collisions; M. S. Act, 1862, s. 57.. 709. 
 In foreign jurisdiction, rule as to liability, 710. 
 Damages for loss of charter party ; loss of market by delay, 728. 
 
 COMMISSION, 
 
 Shipbroker's,.121 ; several brokers, 121. 
 
 Clause in charter party, 122 ; who may enforce, 122. 
 
 When ship lost, 122. 
 
 CONDITION, 
 
 Representation when a, 136, 144, 145. 
 
 Interdependence of contract terms, 1 74 et seq. 
 
 Waiver of, 177 ; failure of, attributable to party relying on, 178. 
 
 CONELICT OF LAW. [/See Eoeeiqn Law.] 
 
 CONSIGNEE. \_See Indoesee op Bill oe Lading.] 
 When a party to the contract, 61. 
 Bills of Lading Act, 1855 . . 62. 
 Liability for general average, 444. 
 Not entitled to notice of arrival, 465. 
 Default of, in receiving cargo, 466, 474. 
 Liability for landing expenses, 466. 
 Eefusal of goods by, 473. 
 Effect of M. S. Act, 476—482. 
 Change of, 485. 
 
 Advances by, to shipper. Factors Act, 1824, .604. 
 LiabUity for freight, 603—606. 
 Liability for demurrage, 636 — 639. 
 Forcible taking by, trespass, 652. 
 Effect of charter liens, as against, 668 — 676. 
 Action in rem by, A. 0. Act, 1861. .690, 
 
 CONSIGNMENT OF SHIP, 
 
 Charterer may sue on agreement for, 123. 
 Bight to procure homeward freight, 123. 
 Custom as to procuring freight, 123, 195. 
 Collection of freight, 124. 
 
 Failure to consign ship to charterer's agents, charterer not liable for conse- 
 quent demurrage, 612. 
 
 CONSIGNOR. {See Shippeb ; Foewaeiiing Agent.] 
 
 CONSTRUCTION OF THE CONTRACT, 
 Effect of representations in, 133 — 137. 
 Intention to be arrived at, 164. 
 Document not to be altered by parol, 164. 
 
 Ambiguous or indefinite words, probable meaning, 165 ; ejusdem generis, 165. 
 Construction is for the Court, 166. 
 Technical expressions for jury, 166, 168. 
 Evidence where terms ambiguous or indefinite, 167. 
 Previous course of business, 167. 
 Ordinary meanings of words taken, 168. 
 Special trade meanings, 169. 
 Geographical terms, 169. 
 
 {The references are to the Seciiona.^ 
 
INDEX. 887 
 
 CONSTRUCTION 0¥ THE COWVRA.Cn:— continued. 
 Presumption in favour of special meaning;, 170. 
 Opinions as to meaning irrelevant, 171, 188. 
 Contra proferentem, 172. 
 
 Effect to te given to the wliole document, 173. 
 Inapplicable printed clauses, 173. 
 Greater effect of written clauses, 173. 
 Conditions precedent, 174 — ^176. 
 Not available after part performance, 177. 
 Nor if failure due to party relying on the condition, 178. 
 Implied terms, 179 — 182. Overridden by custom, 183. 
 Meaning of " reasonable time," 180. 
 Trade practices, effect of, 181. 
 Trade customs, 183 et seq. 
 
 Opinions of business men, wben relevant, 188, 193, 194. 
 Application of foreign law, 202 et seq. 
 
 CONTRABAND, 
 
 Fear of seizure, restraint of princes, 82. 
 Discharging short of destination, 82, 293. 
 Meaning of, 244. 
 
 Contract to carry, in foreign war, not illegal, 245. 
 Freight not allowed on, 556. 
 
 CONVOY, 
 
 Sailing with convoy, 284. 
 Demurrage waiting for convoy, 635. 
 
 CO-OWNERS. [_See Paet Ottoebs.] 
 
 COSTS, 
 
 Added to shipowner's statutory liability, 27. 
 
 In actions by third persons, when recoverable as damages, 731. 
 
 Extra costs of defence, as between solicitor and client, 731. 
 
 OOtTNTT COURTS, 
 
 Admiralty jurisdiction over contracts of carriage, &c., 692 et seq. 
 {See In Reh.] 
 
 COURSE OF BUSINESS, 
 Evidence of, 167. 
 
 CREW, 
 
 Competent, condition of seaworthiness, 18. 
 
 Thefts by, 77, 94. 
 
 Their effects do not contribute in general average, 420. 
 
 CUSTOM-HOUSE, 
 
 Contract is with reference to regulations of, 207._ 
 
 Effect of contract contrary to regulations of foreign, 216. 
 
 Clearance at, 284. 
 
 Entry at, by shipowner, 475. 
 
 Goods in transit while in, 517. 
 
 Delays at, 612, 630. 
 
 CUSTOM OF TRADE, 
 
 Customary meanings of words, &c., 169 — 171. 
 Distinction of trade practices, 181, 182, 186. 
 Custom may add a term to contract, 183. 
 
 Overriding term implied by law, 183. 
 
 Practice of single merchant insufficient, 183. 
 
 May bind persons ignorant of it, 184. 
 
 Employment of agent in a general market, 184. 
 
 Must be known outside trade to bind persons ignorant, 185. 
 To annex term, must be definite and uniform, 186. 
 
 Unless some implied term is necessary, 187. 
 
 Opinions of business men, 188, 193, 194. 
 Must be reasonable, 189, 190. 
 
 [The references are to the Sedimu.'] 
 
888 JNDEX. 
 
 CUSTOM OP TRAD^— continued. 
 
 As to broker's commission, 121, 123. 
 
 Meaning of, " by telegraphic authority," 129. 
 
 As to disclosure of principal, 131, 196. 
 
 Uniyersal custom, invalid if in conflict ■withla'W, 191, 586. 
 
 Establishing lien, 192. 
 
 Judicial recognition of, 192. 
 
 Deductions new for old, 192, 423. 
 
 Must relate to the subject of the contract, 195. 
 
 Must be consistent with contract, 196, 458, 463, 466. 
 
 As to place of discharge, 196, 458, 460, 463. 
 
 payment of freight, 196, 684. 
 
 stowage on deck, 281. 
 
 negotiability of documents, 194, 487. 
 Custom at Grlouoester as to discharge, 196, 628. 
 
 London (Victoria Docks), 461, 468 ; (lighters), 462. 
 Local customs, effect on outside contracts, 197 ot seq., 462. 
 Local customs, effect on transferees, 200. 
 Foreign usage, 207. 
 
 Custom of whalers to render assistance without salvage, 335. 
 Kxcosiug personal delivery, 468. 
 Measurement of cargo for freight, 579. 
 
 DAMAGES, MEASURE OP, 
 
 Eor improperly breaking up voyage, 561. 
 
 For detention beyond demurrage days, 609. 
 
 On failure to ship goods, 711. 
 
 General principles, 712. 
 
 Hadley v. Baxendale, 713. 
 
 " In the usual course of things ; " illustrations, 714. 
 
 Loss of profits through delay in delivery by carrier ; and by vendor, 714. 
 
 Notice of special circumstances ; illustrations, 715. 
 
 Loss of profits, &c. by vendee, 715. 
 
 Mere knowledge of special circumstances not always sufficient, 716. 
 
 Home V. Midland Eail. Co., 716. 
 
 Does the rule in Hadley v. Baxendale express the whole limitation as to 
 
 remoteness? 717. 
 The plaintiff must not aggravate the loss, 718. 
 Unnecessary detention of ship by shipowner, 718. 
 Substitution of another ship by freighter must be prudent, 718. 
 The plaintiff must mitigate the loss where he can, 719. Expenses of, 719. 
 Goods left behind at port of loading, 719. 
 
 Shipowner must seek other cargo on charterer's failure to load, 720. 
 Freight earned on substituted cargo to be taken into account, 721. 
 Not so collateral benefits to shipowner, 721. 
 Penalty clause in charter, 722. 
 On failure to supply ship, or to take in goods ; extra cost of shipping, 723. 
 
 Extra cost of procuring cargo owing to delay, 723. 
 
 Where charterer engages a larger ship in substitution, 129, 723. 
 
 Where no other ship available, 723. 
 For delay in carrying and delivering, 724. 
 
 Loss of the use of the goods ; special use, 724. Samples, 724. 
 
 Deterioration and wasting of the goods by delay, 726. 
 
 Loss of market value by delay, 726, 728. 
 Failure to deliver ; value estimated at destination, 727. 
 
 Where no market at the destination, 727. Deduction of freight, 666, 
 727. 
 
 Wrongful sale at port of refuge, 727. 
 Wrongful deprivation ; special value, 728. 
 
 Losses by collision, 728. Liability to general average contribution, 728. 
 Effect of misdescription of goods in bill of lading, 729. 
 Effect of rights against third persons, 730. Insurances, 730. 
 Liability for goods entitles plaintiff to sue, 730. 
 posts incurred in actions by strangers consequent upon breach, 731. 
 as between solicitor and client, 731. 
 
 ^The references are to the Sections.} 
 
INDEX. 889 
 
 DANGEROUS GOODS. [&e Oaeqo.] 
 
 "DAJSTGERS AND ACCIDENTS OF THE SEAS, &o." 
 Humidity of ship, 13. 
 Effect of exception, 84. 
 The sources of danger, 85. 
 Dangers not peculiar to the sea, 86. 
 
 Arrest of goods as contraband or under bottomry bond, not, 86. 
 Must be beyond human foresight and resistance, 87.- 
 Co-operation of causes not sea perils, 88. 
 Distinction from insurance cases, 89. 
 Spread of sea-damage in cargo, 90. 
 Ship iu dock, 91. 
 
 " During the navigation," 91, 101. 
 "Save risk of boats," 92. 
 Under Harter Act, 103g. 
 Temporary impediment, does not excuse performance, 226. 
 
 DATS, 
 
 " "Working days," 197, 613. 
 
 " Colliery working days," 258o. 
 
 Part of a day reckoned as a whole, 671a, 631. 
 
 Meaning of, 613. 
 
 "Running days," 613, 629. 
 
 "Weather working days," 613, 631. 
 
 " Working day of 24 hours," 631. 
 
 DEAD FREIGHT, 
 
 Calculation of, 263. 
 
 No lien for, at common law, 658. 
 
 Meaning of ; express lien for, 666. 
 
 When binding on assignees of bill of lading, 671. 
 
 " DEAD WEIGHT CAPACITY," 141a, 583a. 
 
 DECK-CARGO, 
 
 Responsibility for cargo improperly on deck, 16. 
 
 WaiTanty of seaworthiness in relation to, 19. 
 
 Implied term in bill of lading to carry below deck, 66. 
 
 "At merchant's risk," general average contribution, 80. 
 
 Usage as to, 182. 
 
 Charterer not entitled to carry goods on deck, 262. 
 
 Stowage on deck, when allowable, 281. Deck-houses, 281. 
 
 Statute as to timber cargoes, 282. 
 
 Jettison of, when a general average sacrifice, 370, 379 — 381. 
 
 York- Antwerp Rules as to, 379, App. C. 
 
 Contributes to general average, 420. 
 
 "DEFAULT," 
 
 does not cover crime, 94, 101. 
 
 DEFECTS IN MACHINERY, 79. 
 
 DELAY. [See Deviation ; DBkuBEAaE.] 
 To avoid enemies, 1 1 . 
 Deterioration of goods by, 13, 16, 89, 726. 
 In reaching port of loading, 144—149, 218 et seq. 
 In being ready at port of loading, 145, 146, 221. 
 Frustration of adventure by, 231 — 233. 
 In having cargo ready, 262. 
 Knovra sources of, 264. 
 In proceeding on voyage, 284, &o. 
 Justifiable to avoid danger, 289. 
 At port of call to preserve cargo, 291, 293. 
 Master may delay reasonably before abandoning voyage, 309. 
 In taking delivery, expenses, 466. 
 Damages for, 724—726. 
 Loss of market value not allowed, 726. 
 
 [The references are to the Sections.'] 
 
890 INDEX. 
 
 DELIVERT BY SHIPOWNER. [See DisoHlEaE OS CAEftO.] 
 Where goods wrongfully shipped, 67, 483. 
 Effect of, at port of refuge, 307, 567—661. 
 Manner of, 461. " Prom the ship's tackles," 461. 
 Generally delivery at ship's side sufficient, 462. Into lighters, Uability of 
 
 shipowner, 462. 
 "Alongside," 463. 
 
 Obligation to take "immediately," "directly," &o., 466, 479. 
 Where consignee faOs to appear, expenses, 466. 
 Generally there must be personal delivery to consignee, 467. 
 Usage as to delivery, Victoria Docks, London, 468. 
 Delivery to harbour porters, Dundee, 468 ; to master porter, Liverpool, 
 
 468. 
 Delivery must be to the right claimant, 469. And of the right goods, 469. 
 Delivery to named consignee, without biLl of lading, 469, 485. 
 Delivery to holder of bill of lading without notice of other claims, 469, 502. 
 Delivery to another carrier ; duty to forward, 470. 
 
 Liability of shipowners when consignee fails to take delivery, 471, 473, 474. 
 Distinction between hability for saifety and for right delivery, 471. 
 Liability after warehousing, 472, 480, 481. 
 Where consignee refuses or fails to take delivery, 473. 
 Power to land and warehouse: Merchant Shipping Act, 1862," s. 67.. 
 
 476—479. 
 Position of warehouseman as to delivery, 482. 
 Delivery under contract, subject to superior claims, 483. 
 To vendor who stops goods in transit, 483. 
 Eight of unpaid vendor to, 483, 506. 
 Where no bUl of ladiug ; shipper's directions, 484. 
 Instructions of consignee, 484. 
 Shipper may alter instructions, 485. 
 
 Unless bill of lading taken and transferred, 486. 
 Effect on stoppage in transitu, 614 et seq. 
 Freight due upon, 544 — 546, 651. 
 Implied contract arising from, 603 — 605. 
 Joint operation, 616. 
 Damages for failure to deliver, 727 — 729. 
 
 DELIVERY ORDER. 
 
 Symbol of the goods, 601. 
 
 A document of title imder Factors Act, 604. 
 
 Effect of order to buyer upon right to stop, 510, 517. 
 
 by buyer in defeating right to stop, 634. 
 
 DELIVERT TO SHIPOWNER. \_See Loadwq.] 
 What is sufficient, 68, 251. 
 
 DEMURRAGE. 
 
 Principle of joint inability, 228, 229, 616. 
 
 " Colliery working days," 268c. 
 
 The undertaking as to time of loading or discharge is by the freighter, 608 
 
 Meaning of " demurrage," 609, 648. 
 
 Damages for detention beyond demurrage days, how calculated, 609. 
 
 Where time for loading or unloading is fixed, charterer's obligation is 
 
 absolute, 611. 
 Immaterial that shipowner cannot put cargo out, unless he is in default 611. 
 Defaults of shipowner ; refusal to deliver properly ; failure to address the 
 
 charterer's agents, 612, 644. 
 Insufficient men ; overtime, 612. 
 Delay in getting papers, 612, 630. Quarantine, 612. 
 Shipowner must take all reasonable steps to get work done, 612a. 
 Strike of shipovmer's labourers, 612a. 
 Meaning of "days," "running days," "working days," " holidavs " 
 
 "per day," "per hour," 613, 629, 631. """ays, 
 
 " Weather working days," 613. 
 
 " Usual despatch," " usual and customary time," 614, 
 " Usual and customary manner," " as fast as ship can deliver," 614a. 
 Where no time fixed ; meaning of reasonable time, 615. 
 
 [The references are to the Sediom.} 
 
INDEX. 891 
 
 DEMURRAGE— coMiJMtMf?. 
 
 Notice to charterer of arrival at port of loading required ; not so at port of 
 
 discharge, 249, 465, 621. 
 Cargo must be ready at the loading place, 252 — 254a, 617. 
 
 Exceptions, 257 — 258a. 
 
 Do not generally apply to time on demurrage, 258b. 
 Ship should wait for cargo throughout demurrage days, 270, 720. 
 No claim for subsequent delay after failure to load, 270, 718. 
 Part day counted, 571a, 631. 
 Appliances for taking cargo to or from alongside, must generally be ready, 
 
 618, 619. 
 Where controlled by port authority, 619a. Railway trucks, 619a. 
 " In regular turn " — usage, 620. 
 
 If ship not ready for her turn charterer not liable, 620. 
 Loss of turn by charterer's fault, subsequent detention by weather, 620. 
 When do the lay days commence ? 621 — 629. 
 
 Where must the ship be lying ? 623. 
 
 Where dock named, 624. 
 
 Where place of wide extent named, 624a. 
 
 Effect of right to select berth or dock, 624b, 628. 
 
 Charterer does not generally undertake that ship shall get to the 
 agreed place without delay, 625. 
 
 Agreement for "ready quay berth," 625. 
 
 Delay in getting to usual place due to charterer's business, 626, 628. 
 
 Where lay days not fixed, ship must be in agreed, or in a usual berth, 
 628. 
 
 Is freighter liable for delay caused by his choice of berth or dock ? 628. 
 
 Effect of " so near thereto, &o.," in determining the commencement of 
 lay days, 629. 
 Where ship is lightened ; do lay days run continuously ?— custom, 629. 
 Detention after loading completed, charterer not liable, 630. 
 Delay in obtaining clearances, 630. 
 
 Detention for dues payable by charterer ; not demurrage, 630, 718. 
 Ship frozen up owing to charterer's delay, 630. 
 Loading and discharging at fixed rate ; separate operations, 632. 
 Liberty to average time, 632. 
 
 Despatch money "per hour," how calculated, 633. 
 Construction of demurrage clauses, 634, 635. 
 Waiting for convoy, 635. 
 Liability for, under bills of lading, 636 — 642. 
 
 When are charter terms as to, incorporated in bill of lading ? 637. 
 When is biU of lading holder liable for demurrage at port of loading ? 637. 
 Shipper primarily liable : quaere, not after assignment of bill of lading, 638. 
 Liability of consignees or indorsees, 639. Agents, 639. 
 Delivery of cargo sufficient to bind promise to pay, 639. 
 Where several bills of lading, each with demurrage clause, 640. 
 
 Detention through non-removal of goods lying above, 640. 
 
 Distinction between shipments in a general diip, and under a charter, 
 641, 642. 
 
 Is each biU of lading holder liable though demurrage paid by others ? 
 642. 
 Master's right to sue for, 643. 
 
 Charterer responsible for demurrage under charter party, 644. 
 Though delivery to him, without bill of lading, refused, 644. 
 Cesser clauses, 645 — 651. 
 
 " Loading excepted," charterer liable for delay in loading, 646. 
 
 Cesser clause explained by lien clause, 647. 
 
 Delay in supply of stiffening, 648. 
 
 Does " demurrage " include detention in the lien clause? 648, 667. 
 
 Where no Uen given charterer continues liable for demurrage, &c. at 
 port of loading, 649. 
 
 But not for breaches after cargo loaded, 650. 
 Failure to give orders at port of call, 650. 
 
 Charterer may still be liable as holder of biU of lading, 651. 
 No lien for, at common law, 658. 
 Express lien for, 659, 667, 671. 
 Delay in discharging, to preserve lien, 683. 
 
 [The references are to the Sections.'] 
 
892 INDEX. 
 
 DEPOSIT, 
 
 Of money under M. S. Act, 1894, s. 495. .475. 
 Of till of lading witli banker, efleot, 498. 
 
 DERELICT, 
 
 Effect of abandoning ship on freight oontraot, 308, 556. 
 Salyage in case of, 344. 
 Ownership of, 36S. 
 
 DESCRIPTION OE GOODS, 
 
 Effect of, in bUl of lading, 69, 729. 
 
 DESPATCH MOKEY, 633. 
 
 DETENTION, 
 
 Damages for, distinguished from demurrage, 609. 
 
 Calculation of, 631. 
 
 When covered by lien clause, 648. 
 
 At port of call, 660. 
 
 "DETENTION BY RAILWAYS," 258. 
 
 DEVIATION, 
 
 To avoid enemies, 11, 82. 
 
 Exceptions do not apply after improper, 16, 287. 
 
 Duty to deviate -where necessary for safety, 82, 289. 
 
 Temporary obstacle, 290. 
 
 Danger to ship, or to cargo, only, 291. 
 
 Cargo owners need not be consulted, 291. 
 May be barratry, 99. 
 
 Liberty to deviate under Harter Act, 103g. 
 In proceeding to port of loading, effect, 230, 231. 
 Order of ports, 285. Liberty to call at ports, 286. 
 Loss during, 287. Loss after, 288. 
 To save life justified, 292. 
 " Liberty to tow and assist," 292a. 
 Delay to dry cargo, 293. 
 To port of refuge, when a general average act, 402, 403. 
 
 "DIRECTLY," 466. 
 
 DISCHARGE OF CARGO. [See Poet op DisoHAEaB ; DEUCEBiaB.] 
 Customs as to, 182, 461. 
 Custom as to place of, 199, 458, 459. 
 Expenses of, at port of refuge, 408, 409, 411. 
 
 From sunk or stranded ship, 397 — 401. 
 Must owner discharge cargo, to lighten ship, in order to reach port, 457. 
 
 Cost of lightening, 457, 458. 
 Option as to place of, 460. 
 
 Custom to discharge at more than one place, 460. 
 Mode of, follows practice of port, 461. 
 
 Where consignee requires delivery into lighters, wharfage rates, 461. 
 Shipowner's duty in putting goods out of ship, 462, 608. 
 Separation of cargo, 462. 
 
 Charterer's duty to provide men and appliances for receiving, 462, 618, 619 
 Responsibility for lighters used, 462. 
 Effect of customs as to, 462, 463, 468. 
 " Alongside," 463. 
 By-laws ; lumpers ; validity, 464. 
 Where consignee fails to appear, landing expenses, 466. 
 Loss of cargo after discharge, 467, 468. 
 
 Liability of shipowner where consignee fails to appear, 471 — 474. 
 Power to land and warehouse ; M. S. Act, 1894. .475. 
 Landing for assortment ; consignee ready ; expenses, 476, 477. 
 Landing after entry by consignee ; twenty-four hours' notice, 475. 
 Power to land though consignee not to blame, 476. 
 
 [The references are to the Sections.'} 
 
INDEX. 898 
 
 DISCHARGE OP GXRGcO—continueil. 
 Power must he used with fairness, 476.' 
 ■Wtere consignee ready to take part of cargo, 477. 
 Consignee cannot claim delivery contrary to custom, 477. 
 Delivery must be taken in reasonable time though notice not given, 478. 
 Shipowner may contract himself out of the statute, 479. 
 
 DISEASE, 
 
 Loss by, when an act of God, 10. 
 
 Inherent defect, 12. 
 
 Unfitness of ship, iufeotion, 20, 79. 
 
 DOCK, 
 
 Delivery to dock company, when suflcient, 468. 
 
 Dock warrant, 501, 504. 
 
 Effect of regulations of, 614, 619a, 623. 
 
 Effect of naming, 624, 627. 
 
 Selection of, by charterer, 624b, 627, 628. 
 
 DOCUMENT OP TITLE, 
 
 Definition in Factors Act, 504. 
 
 Transfer of, effect on right to stop, 532, 535. 
 
 "DEOUGHT," 257. 
 
 « DUE DILIGENCE," 
 
 Harter Act, 1893, s. 3. .103a. 
 Meaning, 103d. 
 
 DUNNAGE, 
 
 Duty of shipowner to provide, 273. 
 
 EMBARGO, 
 
 Pear of, shipowner not excused from taking cargo, 82, 271. 
 
 Is a restraint of princes, 82. 
 
 Temporary embargo does not dissolve charter party, 242, 255. 
 
 ENEMY, 
 
 Carrier not liable for acts of, 11, 22. 
 
 Harter Act, 103g. 
 
 Effect of war on trade with, 243. 
 
 EXCEPTIONS. [See Bell op Lading ; Chabtee Pabtt.] 
 At common law, 7, 11, 12, 22. 
 
 Do not excuse when carrier is niegligent, or deviates improperly, 16, 22. 
 
 Or if ship unseaworthy, 17, 22. 
 In bill of lading, relate to the stowage, &c., 58. 
 Express exceptions construed against shipowner, 77. 
 General exceptions construed not to excuse negligence, 77. 
 Onus of proof, 78. 
 In charter party, when do they apply, 148, 149, 251a, 686a. 
 
 Do not affect right to cancel for not arriving by agreed date, 149. 
 
 Do they apply to charterer's undertakings ? 150. 
 In charter party, do not quaUfy freight clause, 150, 586a. 
 
 As to delay in loading, 257 — 258c. 
 In charter party, not incorporated in bill of lading by " other conditions as 
 
 per charter party," 160. 
 Effect of, after goods warehoused, 474. 
 Protect shipowner against claims in tort, 705. 
 
 "EXPECTED TO BE AT," &c., 143. 
 
 EXPLOSIVES, 280. 
 
 [TAe references are to the Sections,'] 
 
894 INDEX. 
 
 FACTORS, 
 
 Consignment to, stoppage before delivery, 528. 
 
 Effect of transfer of bill of lading to, in defeating'riglit to stop in transit, 
 
 637. 
 Liens valid against charterer's factor, 672. 
 
 EACTOES ACTS, 504. 
 
 Position at common law apart from, 489, 490. 
 
 EEERTMAN', 
 Liability of, 3. 
 Obligation to land, practice, 187. 
 
 "EINAL SAILING," 220, 567. 
 
 EIRE, 
 
 Not generally an act of Grod, 8. Not a "peril of the sea," 86. 
 Statutory exemption, 24. 
 Exception in bill of lading, 77, 83. 
 
 General average not affected by, 80. 
 Damage done in extinguishing, general average, 390. 
 
 where done by port authority, 374a. 
 Loss by, after discharge on to wharf, 467. 
 
 before completion of loading, 259, 562. 
 
 EITNESS EOR CARGO. [See Seawoethinebs.] 
 
 ELOTSAM, 355. 
 
 FLUIDS, 
 
 Wasting, 12. 
 
 FOREIGN GOVERNMENT, 
 
 Prevention of performance by, 23, 247, 255. 
 Foreign revenue laws not recognized, 247. 
 
 FOREIGN JUDGMENTS, 697. 
 Sale of ship under, in rem, 697. 
 
 FOREIGN LAW, 
 
 Law of the flag determines master's authority to contract, 42, 204. 
 
 Also the shipowner's total liability, 206. 
 
 And the general effect of contract, 206. 
 
 But not its effect as evidence, 206. 
 
 Express agreement to adopt negligence clause, 103a. 
 Conflict of laws, 201. 
 Law of place of contracting, 202. 
 Law of place of performance, 203, 207, 208. 
 Intention governs, 203. 
 Law of place of delivery, 209. 
 Intention not to adopt the law of the flag, 210. 
 Law of flag determines master's authority on voyage, 211, 301. 
 Through carriage, 212. 
 Validity of conteact in form, 213. 
 
 Stamps, 213. 
 Legality of contract, how determined, 214, 215, 216. 
 Effect of stipulations void by foreign law, 217. Illegal, 247. 
 The remedy and procedure determined by the lex fori, 697. 
 Collisions on high seas, 709. In foreign jurisdiction, 710. 
 
 FOREIGN SHIP, 
 
 Meaning of Queen's enemies, 11. 
 Effect of acts of ship's government, 23. 
 Authority of master of, 42. 
 Effect of war by nation of, 238. 
 Lavf of the flag. [See Foebion Lav.] 
 
 {The refermcei are to the Sections.} 
 
INDEX. 895 
 
 FOREIGN snip— cmtinued. 
 Wreck of, 358. 
 
 Jurisdiction, im rem over, 68S, 697, 708. 
 liiability of, for ooUision, how determined, 709. 
 . Must conform to the regulations for preventing collisions when in. British 
 waters, 709. 
 
 "FORTHWITH," 218, 466. 
 
 FORWARDIN-Q- AGENT, 
 
 Contracts for shipment by, 51. 
 
 Power to sue, 61. 
 
 Delivery by vendor to, when does it end the transit? 520—522. 
 
 liiability for demurrage, 639. 
 
 FRAUD, 
 
 Goods shipped in fraud of owner, 67, 483, 662. 
 
 BiU. of lading obtained twice over by, 69. 
 
 In describing gopds in biU of lading, no damages for a loss, 69b, 72, 729. 
 
 Defence under s. 3, Bill of Lading Act, 70. 
 
 Avoidance of charter party on account of, 133. 
 
 Of master, liability of owner, 300. 
 
 Title of assignee where biU of lading obtained by, 496. 
 
 Effect on stoppage in transitu, 536. 
 
 "FREE OF COMMISSION," 
 
 Consignment of ship to charterer's agent, 123. 
 
 FREIGHT, 
 
 Shipper's liability for, preserved by Bills of Lading Act, 1855 , . 62. 
 
 Collection of, by consignees of ship, 124. 
 
 Charterer's right to freights under biUs of lading, 155, 158, 599. 
 
 Shipowner's right to sue for those freights, 156. 
 
 Payable " as per charter party," ambiguity of charter party, 162. 
 
 No right to set off damages against, by general custom, 191. 
 
 Deduction of discount from, by custom, 196, 584. 
 
 Shipowner's right to freight on cattle carried on deek, ship chartered for 
 
 lump sum, 262. 
 Loss of, failure to ship cargo of "merchandise," 262, 264. 
 
 Cannot be made good by shipping passengers, 264. 
 Must be paid on goods demanded back by shipper, 268, 269. 
 Freight earned by transhipment, 304, 547. 
 Liability of cargo owner for, on transhipment, 306. 
 Efieot of abandoning voyage, 307, 308. 
 Hypothecation of, 310, 317. 
 
 Must be exhausted before cargo applied in payment of bottomry bond, 318. 
 On transhipment, priority to bottomry bond, 319. 
 Lien on, for salvage, 324. 
 Contribution to salvage in respect of, 351. 
 
 Though not yet completely earned, 351. 
 Contribution to general average by, 410, 433 et aeq. 
 
 Advanced freight should not contribute to reloading at port of refuge, 410, 
 Contribution to general average loss of, 433 et aeq. 
 Contribution by, to general average, 433 et aeq. 
 Deductions from, for general average, 436. 
 
 Contribution by charter freight payable on completion of return voyage, 438. 
 Contribution by freight to be subsequently earned, 439. 
 Contribution by cargo-owner where freight paid in advance, 440. 
 Advances under charter for round voyage, 441. 
 
 Eight to hold cargo for, when ship unable to go to port of discharge, 451. 
 Stop for, on goods in warehouse, 475. 
 Position of agent making deposit, 475. 
 When payaih, 542 — 573. 
 
 Meanings of "freight," 542, 663. 
 
 Generally payable on delivery, 543. 
 
 Readiness to deliver entitles sldpowner to, 543. 
 
 Failure to reach usual discharging place, 643. 
 
 {The references are to the Sections.'] 
 
896 INDEX. 
 
 PEEIGHT— c, 
 
 When payable — continued. 
 
 Illegal voyage, deliTery does not entitle to, 644. 
 
 How long must owner remain ready to deliver, 545. 
 
 Consignee should pay oonourrently with delivery, 546. 
 
 Need of tender may be waived hy inconsistent claim, 546. 
 
 No freight earned if completion of voyage prevented, 547. 
 
 Nor if goods sold or left at port of refuge, 647, 661. 
 
 Loss of part does not affect right to freight on remainder, 547. 
 
 Completion by transhipment, 647. 
 
 Failure to complete voyage owing to inherent infirmity, 548. 
 
 Animals dying on voyage, 548. 
 
 !Preight payable though goods damaged, 549. 
 
 If they have not lost their identity ; test as to this, 549. 
 
 Cement solidified ; bricks crushed, 549. 
 
 Hides, damaged outside skins, 649. 
 
 Lump freight payable on delivery of cargo ; what cargo must be 
 
 delivered? 660. 
 Payable though shipowner makes default in delivery, 660. 
 Delivery of part cargo by another ship, 651. 
 Lump sum payable on default of return cargo ; no deduction of freight 
 
 earned from other shippers, 552. 
 Lump freight payable on complete delivery, 553, 681. 
 Prevention of voyage by freighters, full freights payable, 654. 
 
 Failure of freighter to appear in legal proceedings, 664. 
 Abandonment of ship at sea, freighter may treat contract as ended, 665. 
 Whole freight payable on captured goods, 656. 
 On goods unloaded after re-capture, 556, 560. 
 Fro raid freight, 567, 659. 
 
 Full freight upon part delivered, 658. 
 
 The shipowner must have been able to carry the goods on, 660. 
 
 Acceptance of proceeds of sale under order of Court, 561. 
 
 Sale of perishing cargo ; sale for repairs, 561. 
 Freight payable in advance ; not recoverable though ship lost, 662. 
 
 To be advanced " if required," ship lost before requirement, 662. 
 
 Cargo destroyed at port of loading, 562. 
 
 Construction of contracts as to payment in advance, 563, 564, 565. 
 
 Payable " on signing bill of lading," voyage given up after cargo 
 shipped, 663. 
 
 Distinction between freight and advances, 564. 
 Effect of " subject to insurance," 664, 566. 
 
 Where deficiency of bill of lading freight to be paid in cash, 665. 
 Guarantee of freight, 565. 
 Payable on "sailing," or "final sailing," 667. 
 
 Not payable if ship lost, unless she sailed seaworthy, 568. 
 Payment of freight on cargo in advance ; loss of part of cargo ; advance 
 
 to be deducted on settlement, 569. 
 Time freights, when payable, 570. App. B. 
 
 When dependent on arrival, 570. 
 
 " Monthly in advance," 670. 
 
 Outward and homeward voyage, 671. 
 
 Where payable on " final discharge," 671. 
 Kefusal by charterer to give instructions for voyage, freight not pay- 
 able, 671. 
 Time occupied in repairs not generally deducted, 672. 
 
 " Collision," " breakdown of machinery," 572. 
 Government charters : " inability to execute or proceed," 673. 
 How calculated and paid, 674 — 587. 
 
 Ambiguous reference to charter, 162. 
 
 Calculation of, where no rate stated, 574. 
 
 Shipment by shipowner " freight free," 676. 
 
 Mortgagee cannot claim more than is reserved, 675, 692. 
 
 Transfer of ship before shipment ; authority of master to take goods 
 
 " free," 575. 
 Unpaid vendor stopping goods not liable for, where free on owner's 
 account, 576. 
 
 {The references are to the Sediom.l 
 
INDEX. 897 
 
 FKEIGBT— continued. 
 
 How calculated and paid — oontimied. 
 
 Express clause as to deductions, not qualified by exceptions in charter 
 
 party, 150, 586a. 
 Custom at port of discharge to allow discount, 196, 684 
 Measurement of goods for ; lowest to be taken, 576. 
 
 Absorption of water by wheat ; expansion of cotton, 576. 
 Agreements as to, "nett weight delivered," "invoiced quantity," 577. 
 
 Intake measure of quantity delivered," 578. 
 Usages as to measurement, 579. 
 Ambiguity as to mode of measurement, 580, 581. 
 Bai of lading quantity not generally conclusive, 581. 
 Expenses of measuring, 582. Grain trade, 582. 
 Scales of freight for different goods, 583. 
 Payment by bills, how made, 584. 
 Lien for, where consignee elects to pay in cash, 584. 
 Bin while running suspends claim for freight, 585. 
 Master has authority to take biU, 585. 
 _ Effect of taking bill on liability of shippers, 585, 602. 
 Claims for damage cannot be deducted from, 586. 
 Universal custom to deduct invalid, 586. 
 Eight to counter-claim for damage, 686. 
 To whom payable, 588 — 601. 
 
 Master's authority to collect, and sue for, 589, 590. 
 Master cannot claim possession of, as against owner, 689. 
 Several part-owners ; expenses to be deducted from, 590. 
 Managing owner ; cannot assign freight, 590. 
 Mortgagee of shares and ship, subject to expenses, 590. 
 Bight to, passes to purchaser ; not to legatee, 591. 
 
 Contract to pay does not pass to purchaser, 591. 
 Payment to person beneficially entitled sufficient, 591. 
 Mortgagee only acquires right to, on taking possession, 592. 
 Succeeds to lien for freight accrued, 592. 
 
 Charterer's right to deduct advances as against mortgagee, 593. 
 Where several mortgagees, 594. 
 
 What is sufficient possession to entitle mortgagee to ? 595. 
 Assignees of freight ; priorities, 596. Euture freights, 596. 
 Effect of notice of assignment, 696, 697, 598. 
 Assignee of mortgagor, 41, 597. 
 
 Priorities as between assignees of freight and assignees of ship, 597. 
 Eight of freighter to set off against assignee of freight, 598. 
 Effect of stop by assignee of freight, 598. 
 
 Charterer's right to deduct advances, as against as.signee of freight, 
 698. 
 Is owner or charterer entitled to bill of lading freights ? 599. 
 
 Owner may retain them to satisfy his lien, 599. 
 Underwriters entitled to whole freight if ship completes voyage after 
 abandonment to them, 576, 600. 
 Not if cargo carried on in another ship, 600. 
 Claims for loss of, do not pass to underwriters, 600. 
 Proceedings in rem against ; cargo may be arrested, 601. 
 Maritime lien upon, attaches to sub-freights due to charterer, 601. 
 By whom payaile, 602 — 607. 
 
 Primarily by shipper when no charter party, 602. 
 Right to claim from shipper after delivery to consignee, 602. 
 Liability of one who receives, under bill of lading, 603. 
 Liability by course of business, 604. 
 Effect of notice that receiver is agent only, 605. 
 Effect of BOls of Lading Act, 606. 
 Is consignee liable for freight payable in advance? 606. 
 Not where bill of lading represents that freight has been paid, 606. 
 Liability for charter-party freight, 607. 
 Transfers of charters, 607. 
 Effect of cesser clauses, 607, 645—650. 
 
 Charterer may be liable as bill of lading holder, notwithstanding cesser 
 clause, 607, 651. 
 
 [The references are to the Sections.} 
 
 C. C. 3 M 
 
898 INDEX. 
 
 inXElGrH-T— continued. 
 
 Zien for freight, 653—682. 
 
 ShipowBer's lien for, at common law, 653. 
 Not lost by making express contract, 654. 
 Lien is confined to freight on the particular shipment, eflect ofTisage^ 
 
 654. 
 Extends to charter freights, 665. 
 
 QucBre, where charterer may use the ship as a general ship, 656. 
 No lien for difference between charter and bill of lading freights, made 
 
 payable in advance, 656. 
 On what goods may the lien be enforced ? several bills of lading, 657. 
 Lien clause in charter covers freight on outward cargo, 660. 
 Where payment to be after delivery, inconsistent with lien, though 
 
 freighter insolvent, 661. 
 Charter giving possession to charterer, inconsistent with lien, unless 
 
 express, 662. 
 Is there a Uen for freight payable in advance ? 663. 
 Not if voyage given up, or ship abandoned, 664. 
 Nor if acceptance in advance running, 665. 
 Lien for charter freight, when preserved against holder of bill of 
 lading, 668, 669. 
 Shipper put on enquiry, 673. 
 Collusion between shipper and charterer, 674. 
 Where goods shipped under agreement with charterer, without bill 
 of lading from ship, 676. 
 Lien for, lost by taking bills, 679. 
 When is tender of freight waived? 680. 
 Lien for charter freight attaoh,es to bill of lading freights collected by 
 
 shipowner, 681. 
 Lien for, when performance of charter impossible, 682. 
 
 FREIGHT NOTE, 66. 
 ■ Railway, 109. 
 
 FROST, 
 
 Effect of, may be by act of Ood, 9. 
 
 Delaying cargo, 262, 253. 
 
 Exception of detention by, 257. 
 
 Frozen cargo, preventing full loading, 265. 
 
 Delaying loading or discharge, charterer liable if time fixed, 611 . 
 
 FRUSTRATION OF ADVENTURE, 
 By delay, 231—233. 
 
 " FULL AND COMPLETE CARGO," 265, 266. 
 
 GENERAL AVERAGE, 
 
 Exceptions in bUl of lading do not affect contribution to, 80, 103, 104, 373b. 
 
 Unseaworthiness of ship does not excuse cargo from contribution, 177. 
 
 Customary practices of adjusters, effect, 191. 
 
 Customs limiting the liability of underwriters for, 196. 
 
 Law of the place of adjustment governs, 207, 427. 
 
 Lien for, priority to bottomry bond, 319. 
 
 Meaning of general average sacrifice, 361, 366. 
 
 expenditure, 362, 391. 
 Origin of the rule, 363. 
 
 Does the contribution depend on contract P 364. 
 Stipulations as to general average rules in bills of lading, 364. 
 York- Antwerp Rules, 364, App. B. 
 Meanings of " general average," 366. 
 Derivations, 365. 
 General average sacrifices, 366 et seq. 
 
 Definition, 366. 
 
 Consequences of act, tests, 366. 
 
 [Tlie references are to the Sections,'] 
 
INDEX. 899 
 
 GENERAL XTERAGr'E—conHmecl 
 General average sacrifices — continued 
 
 The danger must be to whole adventure still at risk, 367. 
 Fire on board after cargo partly discharged, 367. 
 The danger must be imminent, 368. 
 Burning spare spars in order to pump, 368, 384, 385. 
 Precautionary jettison of deck cargo, 368. 
 Damage to cargo during repairs, 368, 378, 413. 
 No saoriece where thing abandoned was already in effect lost, 369 
 Cutting away hopeless wreck, 369, 370. 
 SUpping fouled anchor, 369. 
 Scuttling vessel with lime on fire, 369, 390. 
 Jettison of goods on fire, 369. 
 Abandonment of impossible voyage, 369. 
 Sacrifice of things in peculiar peril, 370, 371. 
 Cargo adrift on deck, 370. 
 Spaia, sails, &c. on mast virtually lost, 370. 
 Sacrifice without alternative, 371. 
 Success of sacrifice not necessary, 372. 
 Mistaken sacrifice by master, 372. 
 Goods saved from wreck, 372. 
 Benefit to property meant to be sacrificed, 373. 
 
 Goods put into lighters, 373. 
 Exception, fault of person claiming contribution, 373a. 
 Innocent claimants not affected, 373a. 
 Not founded on circuity of action, 373b. 
 Is it dependent on terms of contract of carriage ? 373b. 
 Effect of negUgenoe clause in bill of lading, 373b, 373o. 
 Effect of Harter Act, 373o. 
 Sacrifice shoidd generally be by person in command, 374. 
 Must be made prudently, 374. 
 Sacrifice by port authority, 374a. 
 Extinguishing fire on board, 374a, 390. 
 Common maritime adventure, separate ships, 374b. 
 Jettison to save lives from another ship, 374b. 
 Separation of interests a condition of general average, 374o. 
 Jettison of cargo, 375. 
 
 Putting out cargo on rafts, &c., damage by exposure, 376. 
 Distinction between acts for the general safety and acts for benefit 
 
 of cargo, 376. 
 Exposure of other cargo in making jettison, 377. 
 Derangement of stowage, 377. 
 Loss of marks, mixture of goods, 377, 505. 
 Bulk cargo pumped or baled out, 378. 
 Damage to cargo at port of refuge, 378, 413a. 
 Jettison of deck cargo not generally contributed to, 379, 381. 
 Exception where carried according to custom, 379. 
 And where stowed on deck under charter party, 380. 
 " General contribution" by shipowner & owners of deck load, 381. 
 Sacrifices of ship's material, 382. 
 
 PoKcy of requiring contribution by cargo, 382. 
 . Exposure to extraordinary risk, 383. 
 Unusual press of canvas, not a sacrifice, 383. 
 Expenditure of gunpowder, &o. in fight, 383. 
 Working engines on strand, consumption of coal, 383. 
 The use must have been one not intended, 383, 384. 
 Auxiliary steam, extraordinary expenditure on coal, 384. 
 Stores must have been reasonably sufficient at starting, 385. 
 Rules of average adjusters, jury rig, stranded ship, 386. 
 Losses by voluntary stranding, 387, 388, 434. 
 
 Rule in the United States, 389. 
 Extinguishing fire on board, 390, 374a. 
 Burden of distinguishing sacrifice from accident, 390. 
 
 [^The references are to the Sections,'] 
 3m2 
 
900 INDEX. 
 
 GENERAL AyEBAGrS— continued. 
 
 General average expenditure, 391 et seq. 
 
 Mast be under oiroumstanoes of common peril, 391, 392. 
 Salvage not generally a general average expenditure, 393, 394. 
 Although whole salvage paid by shipowner to liberate ship and cargo, 
 
 395. 
 A ransom may be a general average payment, 395. 
 Payment of employed salvors may be a general average expenditure, 
 
 396. 
 Expenditure must have been reasonably necessary, 396. 
 Expenses of saving stranded ship and cargo, 397. 
 
 When does ship contribute to discharge of cargo ? 398. 
 
 When does cargo contribute to getting ship ofi? 399. 
 
 The two operations should be treated distinctly, or else as one 
 
 whole, 400. 
 Can the shipowner charge for his services ? 401. 
 Deviation to port of refuge owing to defects at starting, 402. 
 Deviation in distress, or to avoid danger, a general average act, 403. 
 Expenses of going in and coming out, 404. 
 Wages and maintenance of crew at port of refuge, 405. 
 
 cattlemen, 405. 
 Putting in to repair, 406. 
 Cost of repairs when damage accidental, 407. 
 Common benefit not sufficient to make the cost a general average 
 
 expenditure, 407. 
 Expenses of discharging cargo, 408 — 411. Practice, 409. 
 Where motives for discharging mixed, 409. 
 Expenses of reloading, 410 — 412. 
 
 Liability of freight to contribute, 410. 
 
 Advanced freight should not contribute to reloading unless as a 
 general average expense, 410. 
 Expense of warehousing cargo, 412, 413. 
 Cattle fodder at port of refuge, 413. 
 Resolutions as to port of refuge expenses of Average Adjustment 
 
 Association, App. C. 
 Expenses substituted for general average expenditure, 414. 
 Rules of Average Adjustment Association, 414. 
 Contributions, 415 et seq. 
 
 Principle of general average contributions, 415, 417. 
 
 Sacrifices and contributing values adjusted on completion of voyage, 
 
 416, 418, 419. 
 Goods sold or left at intermediate port contribute, 416. 
 Valuation of goods, 419. 
 
 Loss of value by entering port of refuge, 419. 
 Ereight and expenses at destination deducted, 419. 
 No contribution for lives saved, 420. 
 
 Nor for provisions, wearing apparel, &c., 420. 
 Valuation of sacrifice of ship's material, 421. 
 Where ship condemned, 421. 
 Deductions for new work, 422. 
 No deductions on first voyage, 422. 
 Valuation of ship for contribution, 423. 
 
 Valuation of general average damage repaired on voyage, 423. 
 Adjustment when voyage broken up at intermediate port, 424. 
 When the voyage is to several destinations, 425, 426. 
 Law of place governs adjustment, 427. 
 Voyage must not be broken up unnecessarily, 427. 
 Preparation of average statement, 427, 442. 
 
 Supposed distinction as to adjustment of general average expenditure, 
 428. 
 Repayment should not be dependent upon arrival, 428, 429. 
 General average expenditure not analogous to salvage, 430. 
 Should the expense of repairing general average damage to ship 
 
 be repaid in any event? 431. 
 Expense of raising money, 432. 
 Contribution to goods sold to pay general average expenses, 432. 
 
 l_The references are to the Sections."] 
 
INDEX. 901 
 
 GENERAL AY'ERA.Gr'E—contmuea. 
 Freight contributions, 433 et seq. 
 
 Contribution to loss of freight, 433, 434, 437. 
 
 Contribution by freight of goods saved, 433. 
 
 Where bill of lading freight differs from charter party, 435. 
 
 Deductions in valuing freight, 436. 
 
 Freight payable on arrival of ship, 437. 
 
 Contribution by freight payable on completion of homeward voyage, 
 
 to sacrifice on outward voyage, 438. 
 Contribution by freights to be earned on subsequent voyages, 439. 
 Contribution by owner of goods where freight paid in advance, 440. 
 Advances under charter for round voyage, 441. 
 Remedies, 442 — 445. 
 
 Specimen of average adjustment, 423 — 425. 
 
 Shipowner has a Hen for general average contributions, 442. 
 
 He must exercise it for the cargo owner, 442. 
 Average bond, 442. 
 
 Eemedy personal only, not in rem, 442, 445. 
 Who may be sued for contribution where cargo has changed hands ? 
 
 443. 
 Liability of consignee, 444. 
 Owner of goods may sue for contribution, 445. 
 Counter-claim for, in Admiralty Court, 445. 
 
 GEOGRAPHICAL TERMS, 
 Construction of, 169. 
 
 " GOOD ORDER AJSTD CONDITION," 
 Meaning, 73 — 75. 
 Inherent defects, 75. 
 
 GOVERNMENT, 
 
 Prohibitions by, 23, 150. 
 Acts of, "restraints," 82. 
 Preventing loading, 236, 237, 247, 255. 
 Preventing discharge, 241, 611. 
 Effect on demurrage, 611. 
 
 GOVERNMENT CHARTERS, 114, 573. 
 
 GRAIN CARGO, 
 
 Statute as to loading, 283. 
 
 Board of Trade notices as to, 283. 
 
 Custom as to expenses of weighing and measuring, 582. 
 
 HARBOUR PORTERS (DUNDEE), 
 Effect of delivery to, 468. 
 
 HARTER ACT, U.S., 1893.. 17, 103a— 103f, 373b, 704. 
 "HINDRANCES," 258a. 
 
 HIRE, 
 
 Liability of hirer of chattel, 112. 
 
 Charter parties amounting to contracts of, 114 — 116. 
 
 HOLIDATS, 613. 
 
 HOYMAN, 
 
 Liability of, at law, 3. 
 
 HYPOTHECATION. {_See Bottomey.] 
 Powers of master, 2U, 310, 320. 
 
 [The references are to iJie SecUons,] 
 
902 INDEX. 
 
 ILLEaALITY 
 
 Of contract, or of performance, effect, 23,' 237. 
 
 Acts of foreign governments, 23. 
 
 By what law is legality determined ? 214 et seq. 
 
 Where legal at place of performance, 214, 217. 
 
 Contracts illegal abroad, 216. 
 Effect of war with country of loading, 238. 
 War of the country to wluch the ship belongs, 239. 
 Where carriage partly performed, 240, 241. 
 Temporary restraint of voyage, 242. 
 Policy on cargo illegally stowed, when void, 282. 
 Freight not recoverable when voyage illegal, 544. 
 
 "IMMEDIATELY," 466. 
 
 IMPOSSIBILITY 
 
 Does not excuse if contract absolute, 23, 74, 255, 612. 
 
 INDOESEE OE BILL OE LADING, 
 Transfer of contract to, 62. 
 May sue for breaches prior to indorsement, 62. 
 Liability for prior breaches, 62. 
 Holds free of shipper's collateral engagements, 63. 
 Claim for bad stowage by, where shipper estopped, 63, 275. 
 Claim of, confined to goods actually put on board, 63a. 
 Effect of re-indorsement by, 64. 
 Effect of sale without indorsement, 64, 66a. 
 What property must pass in order to transfer contract, 66. 
 Where property belonging to indorsee before shipment, no transfer, 66a. 
 Holding by indorsement from charterer, 152. 
 Where bill of lading given wrongfully by master, 152. 
 How affected by implied customary terms, 200. 
 Possession of goods constructively transferred to, 486. 
 Conditional indorsement, 488. 
 Title of, depends on that of iudorser, 489, 490. 
 Liability of, for freight, 606. 
 Is he liable for freight payable in advance ? 606, 
 Liability of, for demurrage, 636 — 639. 
 Charter party liens not preserved against, unless incorporated in bill of 
 
 lading, 668. 
 When is Ken for charter freight incorporated P 669 — 676. 
 Notice of charter party not sufficient, 670. 
 Liens for dead freight and demurrage, 671. 
 Action in rem hj, Admiralty Court Act, 1861 . . 690. 
 
 INDORSEMENT OE BILL OF LADINa, 
 
 Effect of, on contract, 62 et seq. 
 
 Constructive transfer of possession of, 486. 
 
 Manner of, 487. 
 
 Special verdict in Lickbarrow v. Mason as to, 487. 
 
 Essentials of negotiability of bill of lading, 487, 489. 
 
 When conditional, 488. 
 
 Subject to acceptance of draft, 488. 
 
 Possesion of bill of lading, vrithout title, does not enable holder to indorse 
 
 vaUdly, 489—491. 
 Where owner of goods has obtained bill of lading by fraud, 496. 
 Effect of, on property in the goods, 497. 
 To banliers ; pledge or mortgage ? 498. 
 Intention the test, 499. 
 Effect of, after goods assigned, 500. 
 BiU of lading in force imtU goods delivered under, 501. 
 Indorsement of one "part " to assignee sufficient, 503. 
 
 Purchaser cannot require more, 503. 
 Effect of Factors Acts on validity of, 604. 
 Effect of, in defeating right to stop in transit, 632, 633. 
 
 [The references are to the Sections.'} 
 
INDEX. 903 
 
 INHEEENT DEFECTS, 
 
 Damage arising from, liability for, 10, 12 — 14, 75, 97.. 
 
 Carrier liable for, when he has been negligent, 13, 77. 
 
 Harter Act, 103g. 
 
 Sacrifice owing to, no contribution, 366. 
 
 Failure to complete voyage owing to, no freight payable, 548. 
 
 Damages for deterioration by delay, 726. 
 
 "IN EEGULAB TURN," 620. 
 
 IN REM, REMEDY, 
 
 For broker's commission on charter, 122, 695. 
 
 Against ship and freight ; bottomry holders, 317. 
 
 Damage to the cargo not essential ; improper abandonment, 35i, 689. 
 
 Cargo may be arrested to secure freight, 601. 
 
 Not unless freight has been earned, 601. 
 
 Collision on outward voyage, arrest of return cargo, 601. 
 
 The part arrested may be retained for the whole freight, 601. 
 
 Jurisdiction over, 684. 
 
 Remedies in rem, and in personam, cumulative, 684. 
 For defaults in carriage of goods, 685. 
 Admiralty Court Act, 1861, s. 6. .685. 
 
 The goods must have been brought into an English port by the ship, 
 685, 686. 
 
 No jurisdiction where goods have been properly transhipped, 686. 
 
 Non-delivery, jurisdiction if ship puts into English port, 686. 
 
 The port in England may be a port of call only, 687. 
 
 If the jurisdiction once attaches it continues, 687. 
 
 Where the voyage has ended at a port of refuge in England, 687. 
 The breach must relate to goods which were or should have been carried 
 
 into the port, 688. 
 Claim against ship for not loading at the agreed place ; no jurisdic- 
 tion, 688. 
 For refusal to deliver to vendor claiming to stop goods, 689. 
 " Consignee or assignee of any bfll of lading," claims on contract, 690. 
 Any person beneficially interested may sue in rem for torts for which the 
 
 diipowner is answerable, 691. 
 Jurisdiction of County Courts, &o., in rem, 692. 
 
 Ordinary jurisdictions not interfered with, 692. 
 
 County Courts Admiralty Jurisdiction Act, 1868, confined to cases 
 within the powers of the Admiralty Court, 693. 
 
 Not so the County Courts Admiralty Jurisdiction Act, 1869 . . 693, 694. 
 
 Remedy given by the Act of 1869, though goods not carried into an 
 English port, and though owners domiciled in England, 694. 
 
 Remedy in rem against cargo given to shipowner, 694. 
 
 Effect of sect. 2 of County Courts Act, 1869 . . 695. 
 
 Passenger's luggage not " goods " within the section, 695. 
 Queere, as to a claim for the shipbroker's commission, 696. 
 Qutere, as to claims against the ship where the owners are not liable, 696, 
 
 . 701, 707. 
 
 Where charterer in possession is liable, 696, 707. 
 
 Where one part owner is liable, 696. 
 Jurisdiction exercised over foreign ships, 697, 708. 
 Foreign judgments against the ship enforced, 697. 
 Originally based on a maritime lien, 698. 
 
 Statutory remedy does not generally confer a maritime Uen, 699. 
 Distinction from maritime lien, 700. 
 
 Charge given by, is, subject to charges existing at time of arrest, 700. 
 Remedy only available so far as property continues to belong to the person 
 
 liable, 701. 
 Cargo owners may proceed in rem against colliding ship, 706. 
 
 Provided that the ovraers or those ia control of her are personally 
 responsible, 707. 
 
 Foreign ship, 708, 709. 
 
 Where collision within foreign jurisdiction, 710. 
 
 IThe references are to the Sections.] 
 
904 INDEX, 
 
 INSUEANCE, 
 
 Exception of "-loBS capable of being coTcred by," 80, 105. 
 
 Rule as to proximate cause, 88, 89. 
 
 Carrier not relieved by insurance for shipper, 105. 
 
 " Insurance risks," 105. 
 
 Advances of freight " subject to inaiirance," effect, 664, 566. 
 
 Claims on behalf of underwriters, 702. 
 
 Not a ground for diminiBhing damages, 730. 
 
 INTERPLEADER, 
 
 By master, conflicting claims to cargo, 469, 502. 
 By consignee, as to freight, 588. 
 
 "IN TURN," 620. 
 
 Duty of charterer to have cargo ready, 254a. 
 But not for a mere chance opportunity, 254a. 
 
 JETTISON. [See aKNEBAi Atebage.]- 
 
 Shipowner not liable for, when done for safety, 15. 
 Meaning of " jettison " in bill of lading, 77. 
 
 Does not affect ship's liability to contribute, 373b. 
 Dangerous goods, 366. 
 Jettison of deck cargo, 370, 379—381. 
 Uncertainty as to which goods jettisoned, proportional distribution, 505. 
 
 JEWELLERY, 
 
 Declaration as to, 24. 
 
 JOINT INABILITY, 
 Loading, 228. 
 
 Difficulty as to the principle, 229, 616. 
 Discharging, 616. 
 
 JURISDICTION, 
 
 Admiralty. [See In Rem ; Remedy.] 
 
 Collision within foreign, remedy in England, 710. 
 
 jm DISPOKENBI, 
 
 Reservation of, by shipper, 492 — 495. 
 
 LANDING CARGO. {See Disohaegb op Caeqo.J 
 
 LATENT DEFECTS, 
 
 Shipowner liable for, in ship, 17. 
 Exception of, 79, 102a. 
 
 LAY DAYS. ISee Demtoeaue.] 
 
 LEAKAGE, 
 
 Carrier's liability for, 12. 
 Exception of, 77, 95, 98. 
 Result of ignorant stowage, 96, 97. 
 Exception covers excessive leakage, 98. 
 But not leakage from other goods, 98. 
 
 "LIBERTY TO CALL AT PORTS IN ANY ORDER," 286. 
 
 "LIBERTY TO TOW AND ASSIST," 292a. 
 Under Harter Act, 103g. 
 
 [The references are to the Sections,'] 
 
INDEX. 905 
 
 LIEN FOR EEEIGHT, &o., 
 
 Charter liens not preserved against bill of lading holder, unless expressly 
 incorporated, 160, 161, 668, 
 
 When is lien for charter freight incorporated P 669. 
 
 Notice of charter party not suflSoient, 670. 
 
 Liens for dead freight and demurrage, when incorporated, 671. 
 
 Liens valid against charterer's factor, 072. 
 
 Against shipper where bill of lading not authorized, and shipper put 
 on inquiry, 673. 
 
 Collusion by shipper with charterer, 674. 
 Is there a lien for freight payable in advance ? 200, 663. 
 
 No lien if the voyage is abandoned, 664. 
 
 No lien if acceptance in advance running, 665. 
 Where completion of voyage prevented, 240, 682. 
 Upon cargo, for expenses of preserving it, 295. 
 
 for general average contributions, 319, 442. 
 Freight on transhipment, priority over bottomry, 319. 
 Lieu for general, average contributions ; particular charges, 442, 658. 
 
 Obligation to exercise, 442, 445. 
 Eespousibility of owner while exercising, 473. 
 Eetention of, by stop under M. S. Act, 475. 
 Where carrier becomes warehouseman, 513. 
 
 For freight where consignee elects to pay cash instead of in bills, 584. 
 Mortgagee taking possession succeeds to lien for freight accrued, 592. 
 Assignee of freight placing stop on cargo, obtains lien, 698. 
 
 not defeated by set-off, 598. 
 Ovmer with hen for charter freight may retain the bill of lading freights, 
 
 599. 
 Lien for " demurrage " includes detention at port of loading, where charter 
 
 contains cesser clause, 648, 667. 
 Lien for demurrage ; does it cover detention ? 648, 667. 
 Nature of Ken for freight, &o., 652. 
 Not enforceable on goods wrongfully shipped, 652. 
 Lien for freight at common law, 653. 
 Not lost by making express contract, 654. 
 
 Is confined to freight on the particular shipment ; effect of usage, 654; 
 Extends to charter freights, 655. 
 
 Qutere, where charterer may use the ship as a general ship, 656. 
 How enforced, 657, 677. 
 
 No lien for dead freight ; or demurrage ; or charges ; at common law, 658. 
 Early form of lien clause, inoperative, 659. 
 Modern form ; attaches to outward cargo, 660. 
 Inconsistent terms ; payment to be after delivery, 661. 
 Payment by bills, not inconsistent, 661. 
 Charter giving possession to charterer inconsistent, unless lien express, 
 
 116. 662. 
 Lien for dead freight, 666, 671. 
 
 Validity of charter party liens against goods under agreement with char- 
 terer, without bill of lading from ship, 676. 
 
 Where cargo received under sub-charter, 676. 
 Shipowner must keep possession of goods, 677. 
 
 When required to warehouse in particular place, lien preserved, 677. 
 
 Lien will revive, on re-taking possession after warehousing ; on dis- 
 honour of bill, 678, 679. 
 May be lost by inconsistent conduct ; taking bills, 679. 
 When is tender of freight waived ? 680. 
 
 Lien for charter freight attaches to bill of lading freights collected by ship- 
 owner, 681. 
 Expenses of preserving, not recoverable ; except as damages, 683. 
 Shipowner cannot claim for detention of ship to preserve, when goods 
 might be landed, 683, 718. 
 
 LIFE SALVAGE, 
 
 Deviation for, justifiable, 292. 
 Under Harter Act, 103g. 
 M.S. Act, 1894.. 329— 331. 
 
 IThe references are to the Sections.'] 
 
906 INDEX. 
 
 LIGHTENING SHIP, 
 
 Port not a " safe port " if ship must be lightened, 449. 
 
 Do lay days run where ship lightened ? 457, 629. 
 
 "So near thereto, &c.," obligation to lighten and proceed, 457. 
 
 Custom at Gloucester, 629. 
 
 LIGHTER, 
 
 Liabilily of carrier by, 5. 
 Eire on, not excepted by statute, 24, 83. 
 Cost of lighterage, loading, 250. 
 DeUvery into, wharfage rates, 461. 
 Seaworthiness of, responsibility, 462. 
 Delay through scarcity of, 618, 619. 
 
 LIMITATION OP LIABILITY, 
 Eormer acts, 25. 
 
 Merchant Shipping Act, 1894. .26. 
 Waiver of, by contract, 26. 
 Procedure for, 27. 
 Losses on distinct occasions, 27. 
 
 EflEect of, where both ships to blame for a coUision, 27, 704. 
 Extension to railway companies, 28, 29, 108. 
 Contract with foreign ship, law of the flag, 205. 
 
 LOADING. [&eCAEOo; Poet oe Loabino.] 
 Expenses of, 68, 250, 251. 
 Customary methods of, 182, 265—267. 
 Series of voyages, failure to load as agreed, 235. 
 Notice of readiness for, 249, 621. 
 "As customary," 250, 614, 619a. 
 Manner of loading, alongside, 250, 608. 
 Cargo how delivered to shipowner, 251. 
 
 Agreement to bring cargo alongside by ship's boats, " at ship's risk," 261a. 
 Cargo to be in readiness, 252, 257, 617. 
 Cargo from agreed place, known sources of delay, 254. 
 Readiness " in turn," 254a, 620. 
 Loading not excused by impossibility, 255. 
 Specific cargoes, 256. 
 
 Exceptions protecting charterer, 257 — 258. 
 Proof of civil commotion, 258. 
 Causes beyond control, 268a. 
 Colliery guarantees, 268c. 
 
 When loading interrupted, charterer must complete, 259. 
 Charterer discharged when loading once completed, 260. 
 Whole carrying space to be loaded, 261. 
 Not decks, nor ballast, 262. 
 
 Description of cargoes, "merchandise," "produce," 263, 264. 
 Broken stowage ; usage, 265. 
 Customary modes of preparing goods for, 266. 
 Shipper's right to have goods landed, after, 268, 269. 
 Ship should wait for cargo the whole agreed time, 270, 720. 
 Ship must take a full cargo, 271. 
 Obligation to be ready with applianoes for, 618, 619. 
 
 Where controlled by port authority, 619a. 
 " In regular turn," 620. 
 Damages for not taking cargo, 723. 
 
 LONDON, 
 
 Victoria Docks, custom as to delivering, 461, 468. 
 
 LONDON CLAUSE, 
 
 Discharging, 466, 479. 
 
 LONDON CONFERENCE, 
 
 Rules of AfEreightment, 1893, App. A. 
 
 MACHINERY, 
 Defects in, 79. 
 
 IThe refermces are to the Sections.] 
 
INDEX. 907 
 
 " MANAGEMENT," 101, 103e. 
 
 MANAGING OWNER, 
 
 Appalntment and authority, 36. 
 
 Effect of registration, 37. 
 
 Can generally give discharge for freight, 590. 
 
 MARITIME LIEN, 
 
 Eor bottomry claims, competition of Hens, 312, 317, 318. 
 
 Per salvage, 324. 
 
 On freight, 601. 
 
 Nature of, 698, 700. 
 
 Only enforceable by process, 698. 
 
 Not generally conferred by statutes giving a remedy in rem, 699. 
 
 Admiralty Court Act, 1840, a. 6 ; necessaries to foreign ship; no lien, 699 
 
 Admiralty Court Act, 1861, o. 6 ; County Courts Acts, 699. 
 
 Distinction from remedy in rem, 700. 
 
 For damage to cargo by collision, 706. 
 
 MARKS ON GOODS, 
 
 Quality marks in biU of lading do not bind shipowners, 69a. 
 
 Express clause as to quality marts, 69a. 
 
 Destination mark in bill of lading, shipowner estopped, 69a. 
 
 Incorrect, but immaterial marks, 70, 71. 
 
 Delivery of different portions of goods similarly marked, 469. 
 
 Obliteration of, mixture of goods, consignees tenants in common, 505. 
 
 MARSHALLING, 
 
 Bottomry claims, 318. 
 
 MASTER, 
 
 Duty when ship in charge of a pUot, 32. 
 Authority to contract, 42, 43. 
 
 Law of the flag, 42, 204. 
 Mate succeeds, on death of, 42. 
 No authority to alter charter party, 44, 
 
 Authority at foreign port where charter party broken, 44, 720. 
 Authority to settle claim for detention, 44. 
 Effect of change of ownership, 46, 575. 
 Liability on contracts, 47. 
 Liability for torts, 48, 707. 
 
 Working vessel for joint benefit of himself and owner, 49. 
 Goods delivered on board under private arrangements with, 68. 
 No authority to sign bUl of lading for goods not shipped, 69. 
 
 Nor to bind owners by description of quality, 69a. 
 
 Nor to misdate the bill of lading, 69a. 
 Statement of quantity in bill of lading conclusive against master siguipg 
 it, 70. 
 
 Unless caused by fraud of shipper, &c., 70. 
 Incompetent, owner's responsibility, 102. 
 Negligence of, when part owner, 102. 
 Charter to master, 116. 
 
 Chartered ship, for whom does master sign bill of lading f 153 — 156. 
 Authority as to signing bills of lading under charter, 161. 
 Has he authority to give bill of lading not preserving charter party terms ? 
 
 161, 673, 674. 
 "Clean bills of lading," 161a. 
 Indemnity by charterer, 161b. 
 Authority of, determined by law of flag, 204, 211. 
 Custom to ship goods on own account, 262. 
 Must be competent stevedore, 272. 
 Duty as to stowage, 274, 276. 
 No authority to stow cargo illegally, 282. 
 Misconduct of, outside his duty, 287, 707. 
 Duty to check deterioration of cargo after damage, 293. 
 To save goods of high value, 293. 
 
 [rSe ref fences are to the Sections.'] 
 
908 INDEX. 
 
 MASTER— c, 
 
 Eepresents cargo owner in case of need, 294, 305, 661. 
 
 Liability of shipowner for improper sale by, 294, 300. 
 
 Power to incur expenses in preserving cargo, 295. 
 
 Power to sell perishing goods, 297. 
 
 Duty to salve, 298. 
 
 Duty to communicate, 299, 306. 
 
 Improper sale by, does not pass property, 301. 
 Unless valid by the law of the place, 301. 
 
 Duty at port of refuge, 302. 
 Duty to tranship, 304. 
 After voyage abandoned by shipowner, 305, 306. 
 
 Power to hypothecate or sell cargo for repairs, &o., 310 — 316. 
 
 Duty to communicate first if possible, 316. 
 
 Competition of wages with bottomry bond, 317. 
 
 Salvage agreement by master of salving vessel binds crew, 348. 
 
 Power of master to bind owners of salved ship and cargo by salvage agree- 
 ment, 349, 396. 
 
 Notice to stop cargo in transit must generally reach master, 530. 
 
 Quare, whether shipowner must forward notice to him, 630. 
 
 Liable for delivering contrary to valid notice to stop, 531. 
 
 May not withhold goods from vendor, 531. 
 
 Authority to take goods "free on owner's account," efEect of change of 
 ownership before shipment, 575. 
 
 Has authority to take bill for freight, 585. 
 
 Eights to primage, how defeated, 587. 
 
 Authority to collect freight, 689, 590. 
 
 No right to possession of freight as against owner, 589. 
 
 Power to sue for freight on contracts made with himself, 589. 
 
 Defendant could not set off debt due from shipowner, 589. 
 
 Right to collect freight, 590. 
 
 Power to sue for demurrage expressly reserved in bill of lading, 643. 
 
 MASTER PORTER (LIVERPOOL), 
 EfEect of delivery to, 468. 
 
 MATE'S RECEIPT, 
 How given, 50. 
 Effect of possession of, 60. 
 Custom as to, 60, 185. 
 Statement of (Quantity in, 69. 
 
 MATS, 
 
 Duty of shipowner to provide, for dunnage, 273. 
 
 MEANINGS OF WORDS, 
 
 Evidence as to technical words, 169. 
 Evidence of customary meanings, 169. 
 Geographical terms, 169. 
 
 MEASUREMENT OP GOODS, 576—582. \_See Fbeiqht.] 
 Expense of measuring, 582. Grain trade, 582. 
 
 "MERCHANDISE," 
 Meaning, 263, 264. 
 
 "MERCHANT'S RISK," 
 
 Does not relate to general average contributions, 80, 103, 380. 
 Shipowner must perform his contract, 103. 
 
 MISDESCRIPTION OF GOODS. [&e Bili, of Labinq ; Caeqo.] 
 
 MONTH, 
 
 Usually means calendar month, 571a. 
 Calendar month, how computed, 671a. 
 
 " MORTALITY," 103. 
 
 [The references are to thi Sections.] 
 
INDEX. 909 
 
 MORTG-AGEE OF SHIP, 
 
 Mortgagee of shares not in possession cannot bring action of restraint, 38. 
 
 Cannot generally interfere witli voyage, 39, 40. 
 
 Not deemed owner except as to security, 40. 
 
 Not personally liable on charter party, 40. 
 
 Charter party by mortgagor in possession should be consistent with the 
 
 security, 40, 41. 
 Position of second mortgagee, 41a, 597. 
 Barratry against, 100. 
 
 Cannot claim more freight than reserved by bill of lading, 575, 592. 
 Shipowner in possession may carry "freight free," 575, 592. 
 Mortgagee of shares takes freight subject to deduction of expenses, 590. 
 Only acquires right to freight on taking possession, 592. 
 Succeeds to lien for freight accrued, 592. 
 
 Charterer cannot deduct advances outside charter party, as against, 593. 
 Eight of second mortgagee to freight, 594, 697. 
 What is sufficient possession to entitle to freight ? 595. 
 Entitled to freight on taking possession as against assignee of freight, 596. 
 Unless assignment prior to mortgage, and notice given, 596. 
 
 NATIONALITY, 
 
 Eepresentation of, when material, 135, 138. 
 Effect of, on contracts, 204—210. 
 
 on master's authority, 204, 211. 
 
 " NAVIGATION, " 
 
 Meaning of " improper navigation," 26, 101. 
 Ship in discharging dock, 91. 
 Landing goods in boats, 92. 
 .Negligent navigation not barratry, 99. 
 Stowage not an act of, 101. 
 Bnder Harter Act, 103d. 
 
 NECESSARIES, 
 
 Bottomry for, 314. 
 
 Unsecured claims for, priority, 317. 
 
 "NECESSITY," 
 Meaning of, 297. 
 
 "NEGLECT OR DEFAULT," 
 Does not cover theft, 94. 
 
 NEGLIGENCE, 
 
 Common law exceptions do not excuse, 10, 11, 13, 16. 
 
 Nor do express exceptions, unless it is clearly stated, 77. 
 Otherwise as to negligence of servants not engaged in performing the 
 
 contract, 77. 
 Onus of proof, 78. 
 
 Effect on operation of excepted peril, 87, 95. 
 Effect of ignorance, 96, 97. . 
 
 Exception of negligence of servants, 101. In " navigating, 101. 
 
 Effect on warranty of seaworthiness, 79. 
 
 Does not relate to servants of shipowner on another ship, 101, 705. 
 
 Validity abroad, 101. 
 
 Shipowner's personal negligence, 77, 102. 
 
 Negligence of master part owner, 102. 
 
 Exception generally relates to acts after shipment, 102. 
 
 Effect on shipowner's right to claim salvage, 342. 
 
 Effect on his right to general average, 366, 373b, 373c. 
 Effect of Harter Act, 103a, 103f. 
 Railway company cannot generally except, 108, 110. 
 
 NEGOTIABLE INSTRUMENTS, 194. 
 Negotiability of biU of lading, 487—491. 
 
 IThe references are to the Sections.'] 
 
910 INDEX. 
 
 NEUTEAIiITT, 
 
 Effect of, upon contracts, 244 — 246. 
 
 OBLITERATION OP MAEKS, 505. 
 
 ONUS OP PROOF, 
 
 As to bill of lading statements of quantity, 69. 
 
 Condition of goods, " quality unknown," 73. 
 
 Tliat a loss is within an exception, 78. 
 
 As to absence of notice of dangerous character of goods, 279. 
 
 OPTION, 
 
 Charterer's option as to discharging place, 460. 
 Delay due to charterer's exercise of option, 624b, 628. 
 
 " OR OTHERWISE," 101, 102b. 
 
 " OTHER CONDITIONS AS PER CHARTER PARTY," 160, 637, 669. 
 
 OVERSIDE, 
 
 Custom in London as to delivery, 466. 
 
 Presentation of overside order, subsequent notice to stop, 614. 
 
 " OWNER'S RISK." {See Meeohabt'b Risk.] 
 
 PACKAGES, 
 
 Loss from defective, 14. 
 Duty to remedy defects in, 14. 
 Usages as to modes of packing, 182. 
 Dangerous goods, 278. 
 
 PAPERS, 
 
 Shipowner to provide, for safe prosecution of voyage, 284. 
 Production of, for calculation of freight, 680. 
 
 PAHT-DATS, 631. 
 
 PART OWNERS IN SHIP, 
 
 Tenants in common ; not generally partners, 34, 590. 
 
 Power to settle claims, 34. 
 
 Bound by contracts of managing owner, 36. 
 
 Liability to be sued, 35. Joinder of, 35. 
 
 Effect of judgment against one, 35. 
 
 Right to sue, 35. 
 
 Rights of majority, 38. 
 
 Power of minority to restrain ship, 38. 
 
 Barratry against, 100. 
 
 Jointly entitled to freight, 590. 
 
 Position of mortgagee or assignee of freight, from a part owner, 590, 596. 
 
 Remedy in rem against ship where only one part owner liable, 696. 
 
 PAUT PERFORMANCE, 
 
 Effect upon conditions of contract, 177. 
 Illegality supervening upon, 237 — 239. 
 Rights when completion prevented, 240, 241. 
 
 PASSAGE COURT, LIVERPOOL, 
 Jurisdiction in rem, 692. 
 
 ITJie references are to the Sections.^ 
 
INDEX. 911 
 
 PASSENGERS, 
 
 liability of carrier by land, 17. 
 DistresBed seamen not, 30. 
 Harter Act not applicable to, 103f . 
 Forms of contract prescribed. 111. 
 Right of charterer to ship, 262. 
 "Freight " does not relate to, 264. 
 Claim for salvage by, 336. 
 
 PASSENGER'S LUGGAGE, 
 Carrier's liability for, 6, 111. 
 Harter Act not applicable, 103f. 
 Conditions on passage ticket, 111. 
 M. S. Act, 1894.. 111. 
 Salvage contribution by, 350. 
 General contribution by, and to, 420. 
 
 Not "goods " -within County Courts Admiralty Jur. Act, 1869 . , 695. 
 No damages recoverable for merchandise fraudulently carried as, 729. 
 
 PENALTY CLAUSES, 
 
 In charter parties, 659, 722. 
 
 PERILS OF THE SEA. [See Danaeeb of the Seas, &c.] 
 
 PERISHABLE GOODS, 
 
 Carrier not liable for ordinary -wasting or decay, 12. 
 
 Otherwise where loss caused by him, 13. 
 Effect of absence of notice of nature, 13. 
 Law of flag, German la-w, 211. 
 Master's authority to seU, in case of need, 297 — 301. 
 Transhipment of, 305, 309. 
 
 No freight payable on perishing goods sold at port of refuge, 547, 561. 
 Damages for deterioration by delay, 725. 
 Damages for wrongful sale of, 727. 
 
 PILOT, 
 
 Ship may be unsea-worthy -without, 18, 284. 
 
 Responsibility -where pilotage compulsory, 30 — 32, 707. 
 
 Foreign ports, 31. 
 
 Duties of, 32.. 
 
 Duty to employ, 284. 
 
 Claims for pilotage, paid in priority to bottomry bond, 317. 
 
 Claims for salvage by, 337, 338. 
 
 Liability of cargo to contribute to pilotage, 341. 
 
 No Hen for pilotage payable by charterer, 658. 
 
 PIRATES, 
 
 Meaning, 11, 94. 
 
 Included in " dangers of the sea," 86. 
 
 Exception of, 94. 
 
 Ransom paid to, general average, 392. 
 
 PLEDGE, 
 
 Rights and liabilities of pledgee, 66. 
 Power of master to pledge ship, 312. 
 By deposit of bm of lading, 498, 499. 
 Effect of Factors Act, 504. 
 
 "POLITICAL DISTURBANCES," 262. 
 
 PORT, 
 
 Meaning of, 448. Extent of, 448, 567. 
 "Safe loading place," 449. 
 Admiralty Court Act, 1861 . . 687. 
 
 PORT-CHARGES, 
 
 Liability of charterer, time charter. App. B. 
 Usually payable by shipowner, 284. 
 When general average, 404. 
 No lien for, -where payable by charterer, 658. 
 
 IThe references are to the Bectiona.'] 
 
912 INDEX, 
 
 POET-HOLE, 
 
 Damage to cargo by insecure, 18, 103d. 
 
 PORT OF CALL, 
 
 Orders at, for port of discharge, to Ibe given in reasonable time, 447. 
 Where no orders given at, 447. 
 
 Charterer's liability for not giving orders at ; cesser clause, 650. 
 Charterer may be liable as bill of lading holder, 651. 
 Jurisdiction of Admiralty Court, ship at English port of call, 687. 
 
 PORT OF DISCHARGE, 
 
 How determined, 446 et seq. 
 
 Orders for port of, to be given in reasonable time, 447. 
 
 Where orders not given, 447. 
 
 Meaning of "port," 448. 
 
 Port must be physically safe for the loaded ship, 449. 
 
 She must generally be able to lie afloat, 449. 
 
 Shipowner must generally wait for favourable tide, 450. 
 Orders to a dock "if sufficient water," 450. 
 Port must be politically safe, 451. 
 
 Not unsafe because war will probably be declared, 451. 
 Effect of accepting orders, and signing bills of lading for unsafe port, 452. 
 " So near thereto," &c., 453 et seq. 
 
 Must owner lighten, if feasible, in order to reach ? 457. 
 Place for discharging, selection, 459, 460. 
 Mode of discharge, 461. 
 Notice to consignees of arrival at, not requisite, 465, 621. 
 
 POET OF LOADING, 
 
 Voyage to, is part of the ' ' voyage " in the charter party, 148. 
 Effect of delay in reaching, 175. 
 Customs of, 195, 198, 250, 265—267. 
 Duty to proceed to, with diHgenoe, 218. 
 Where time fixed for sailing to, 219. 
 
 arrival, 221. 
 Meaning of "ready to load," 221. 
 
 Duty to proceed to, notwithstanding charterer's option to cancel, 222. 
 Delay not excused by a limit of time being fixed, 223. 
 Port to be named before sailing, and without delay, 224. 
 Orders to more than one port, 224. 
 
 Expenses of moving from one place to another, 224, 249 . 
 " So near thereto as she can safely get," 225, 453, 454, 625, 629. 
 Relates to leaving as well as entering port, 226. 
 Does shipowner absolutely engage to bring ship to ? 227. 
 
 Arrival prevented by government of place, 228. 
 
 Joint inability to load, 229. 
 Loading not generally excused by delay in proceeding, 230. 
 
 Unless adventure frustrated, 231, 232. 
 Blockade of port of discharge, 233, 238. 
 Refusal of charterer to load at agreed place, 235. 
 Loading excused if it becomes illegal — war, 237 . 
 Several usual places of loading — charterer's option, 249. 
 Notice of readiness to load to be given, 249, 621. 
 Duty to procure cargo at, 252, 617. 
 Destruction of cargo at, 259, 662. 
 How long must ship wait for cargo ? 270, 720. 
 Meaning of port, 448—451. 
 " Safe loading place," 449. 
 Must be physically safe, 449, 450. 
 Must be politically safe, 451. 
 
 PORT OF REFUGE. [_See Eottomey ; Teanshipment ; Geiteeal Aveeage.] 
 Master's authority for cargo owner at, 294 et seq. 
 Expenses for preservation of cargo at, 295, 296. 
 Sale of perishing goods at, 297 — 301. 
 Obligation to repair at, 302, 303. 
 Abandonment of voyage at, 307, 309. 
 
 {The references are to the Sections.} 
 
INDEX. 913 
 
 PORT OP REFUGE— co«<iMMcd. 
 
 No freight payable on goods sold or left at, 547, 548, 661. 
 
 Fro raid freight, 55"! et seq. 
 
 Jurisdiction of Admiralty Court where voyage has ended at an English 
 
 port of refuge, 687. 
 Damages for wrongful sale of goods at, 727. 
 
 PRECIOUS ARTICLES, 
 
 Statute : declaration of value to be made, 24. 
 
 "PREVENTING" LOADING, 257. 
 
 PRIMAGE, 
 
 Originally a payment to the master, 587. 
 Master entitled to claim payment, 587. 
 
 Unless otherwise agreed with shipowner, 587. 
 EfBeot of contract with shipper, excluding, 587. 
 
 PRINTED CLAUSES, 
 Construction of, 173. 
 
 " PRODUCE," MEANING OF, 263. 
 
 " PROMPT DESPATCH," 614. 
 
 PROVISIONS, 
 
 Do not contribute to general average, 420. 
 
 PROXIMATE CAUSE, 
 
 Distinction from causa camans, 88. 
 Application of role, 88a, 89. 
 
 In measure of damages, 717. 
 
 QUALITY MARKS, 69a. 
 
 " QUANTITY AND QUALITT UNKNOWN," 71, 73. 
 Onus of proof, 69, 73. 
 Effect on freight, 577. 
 
 QUARANTINE, 
 
 Loading not excused by, 247, 255. 
 
 Detention during, charterer not liable for, 229, 612. 
 
 " QUEEN'S ENEMIES," 
 
 Carrier not liable for acts of, 2, 74. 
 
 Meaning of, 11. 
 
 Where ship foreign, 11, 81. 
 
 RAILWAY COMPANIES, 
 
 Limitations of liability when carrying by sea, .JS, /V). 
 Bill of lading given by, 76. 
 Through contracts by, 107, 212. 
 Restriction of powers to limit liability, 108. 
 Exceptions on freight-notes, 109. 
 
 What are reasonable conditions? 110. „„._, 
 
 Theft by company's servant maybe ezoepted, though contract unreason- 
 able, 110. 
 
 RANSOM, , „„„ ^„„ 
 
 may be a general average loss, 392, 420. 
 
 RATIPIOATION, 125, 529. 
 
 [The references are to the Seetions.y 
 
 •3 N 
 c. — c. 
 
914 INDEX. 
 
 RATS, 
 
 Liability for damage by, at commoa law^, 10. 
 Within exception of "vermin," 76, 104. 
 Damage by, eating cargo, not a " peril of the sea," 86. 
 Making holes in ship, 88. 
 
 " READY TO LOAD," "READY TO RECEIVE CARGO," 221. 
 
 REASONABLE DESPATCH : REASONABLE TIME, 
 Implied terms as to performance of contract, 179. 
 Ambiguity of " reasonable," 180, 615. 
 EfEect of trade practices, 181. 
 Disdiarge of vessel when time not fixed, 615. 
 
 RE-DELIVERY, 
 
 Claim for, by shipper at loading port, 68, 268, 269. 
 Where completion of voyage prevented, 240, 241. 
 
 REPRiaERATING- MACHINERY, 
 Warranty as to fitness, 19a. 
 
 REGISTER OE SHIP, 
 
 Registration of managing owner, eflfeot, 37- 
 Evidence of ownership, 45. 
 Mortgages rank in order of, 594. 
 
 REMOVAL OF GOODS, 
 
 Where claims to be made before, 105. 
 
 REPAIRS, 
 
 Damage to cargo, discharged for the purpose of, 90. 
 
 Duty to repair ship and carry goods on, 302 et aeq. 
 
 Master may delay reasonably before deciding whether to repair, 309. 
 
 Raising money for, 310 et seq. 
 
 Shipowner's liability to indemnify cargo owner, 320. 
 
 Owner of cargo sold for, has no lien on ship, 320. 
 Cost of, at port of refuge, damage accidental, not general average, 407. 
 
 Otherwise if necessary owiug to general average sacrifice, 411. 
 Time occupied in, not deducted in calculating time freight, 572. 
 
 REPRESENTATIONS, 
 
 In charter party, 133 et seq. 
 
 RESPONDENTIA, 312, 313. 
 
 RESTRAINT OF SHIP, 
 By part owners, 38. 
 
 "RESTRAINTS OF PRINCES," &c., 
 Meaning, 82. 
 Fear of embargo, 82, 271. 
 Blockade at port of discharge, oanoellation of charter party, 233. 
 
 ROBBERS, 
 
 Carrier liable for acts of, at common law, 3. 
 Not included in Queen's enemies, 11. 
 Statutory exemption as to precious articles, 24. 
 Exception of, 94. 
 
 "RUNNING DAYS," 
 
 Consistent with custom, not to count days lost in moving from one place of 
 
 discharge to another, 196, 629. 
 Meaning, 613. 
 
 \_The reftrenixa are to the Sections.'] 
 
INDEX. 915 
 
 SAPE POET. [See Poet ; Poet op Disohabqb.] 
 
 "SAILING." 
 
 Time fixed for, when a condition, 219. 
 
 Condition of sailing, when satisfied, 220. 
 
 Knal sailing, 220, 567. 
 
 Eceight payable upon "sailing," or " final sailing," when due? 567. 
 
 SALE OF GOODS ACT, 1893. {See Tablb of Statiites.] 
 
 SALVAGE, 
 
 Deviation to salve property not allowed, 292. 
 
 Claims fpr, paid in priority to bottomry bond, 317, 319. 
 
 Rule of reward and lien at common law, 322. 
 
 Must generally be by a stranger to ship, 323. 
 
 No corresponding rule for salvage on land, 323. 
 
 Nor as to goods washed out from a harbour, 323. 
 Does not generally give right of personal action, 324, 330. 
 Maritime lien for, 324, 698. 
 Depends on property being saved, 325. 
 Personal claim for employed services, 326, 334 
 Employment not generally implied, 327. 
 Statutes as to, 329. 
 Life salvage, 329 — 331. 
 
 There must have been impending danger, 332. 
 Different kinds of service, 332. 
 Claims of owners of property employed ; no claim in respect of risk to her 
 
 Majesty's ships, 332. 
 Service must have had a valuable effect, 333. 
 
 Unless it was employed, 334. 
 . Signals of distress, 334. 
 Crew cannot be salvors generally, 335. 
 
 Unless contract of service terminated, 335. 
 
 Or after capture, 335. 
 Consorts, South Seas whaling'fisheries, 336. 
 Passengers not generally salvors, 336. 
 Pilot not generally salvor,- 337. 
 
 May claim salvage on boarding a vessel in exceptional danger, 337. 
 
 Or if the character of the service changes, 338. 
 Towage by pilots, 338. 
 Towage by employed tug may become salvage, 339. 
 
 Not where the towage contract was for an extraordinary service, 339. 
 
 Nor if the danger was produced by fault of tug, 339. 
 Distinction between towage and, 340, 341. 
 
 Where salving and salved vessels belong to same owner no claim by owner 
 against ship, 342. 
 
 Claim by crew, 342. 
 
 Claim by owner against cargo, 342. 
 
 Where salving ship negligent, 342, 346. 
 Where one vessel is under charter to owner of the other, 343. 
 Charterer not entitled for services by ship, 344. 
 Considerations which govern the amount, 344. 
 
 Damage to salving ship, detention, 345. 
 
 Misconduct of salvors, taken into account, 346. 
 Penalty for not giving up wreck, in United Kingdom, 346. 
 Agreements as to amount of salvage, 347, 348. 
 
 Ignorance of material facts, 347. 
 
 Excessive demands, 347. 
 
 Agreement by master of salving vessel binds crew, 348. 
 
 Power of master to bind owners of ship, and of cargo, 349. 
 Contributions to ; in proportion to values, 350. 
 
 Exception of wearing apparel and personal effects, 350. 
 
 Freight contributes, though not completely earned, 361. 
 
 Ship and cargo liable separately, 362. 
 
 Valuation of cargo for, 362. 
 
 [_The references are to the Sections.'] 
 3n2 
 
916 INDEX. 
 
 SAL VAGrE — continued. 
 
 Shipowner has a Kea on cargo for its contribution, 353. 
 Unless salvage became due through his fault, 354. 
 Cargo owner may claim in rem against the ship for salvage incurred 
 
 through master's fault, 354, 689. 
 Distinct from generp,l average, 393 — 396, 430. 
 
 SAMPLES, 
 
 Delay in carriage of, damages, 724. 
 
 "SAT ABOUT," 261. 
 
 SEAWOETHINESS, 
 
 Absolute warranty of, -1 7. 
 Meaning of, 18. As to deck cargo, 19. 
 Special cargo, frozen meat, specie, 19a. 
 Eitness to receive cargo, 20, 79, 145. 
 Where voyage has several stages, 21 . 
 Warranty applies on sailing, 21, 568. 
 Effect of bill of lading exceptions, 79, 102a, 105. 
 As to coal supply, 79, 384, 385. 
 Stowage, 87. 
 Harter Act, 103a, 103o. 
 Warranty on voyage under charter, 144. 
 Effect of express warranty, "tight, staunch, &o.," 144. 
 Eitness for agreed cargo a condition precedent, 145. 
 Time charter, right to cancel, 146. 
 Sacrifice owing to want of, 336. 
 Deviation owing to unseaworthiness at starting, 402. 
 Lighters, 462. 
 
 Ereight in advance not payable, if ship lost, unless she sailed seaworthy, 
 668. 
 
 SET OF BILLS OE LADIN&, 65. 
 
 " One being accomplished, the others to stand void," 65, 502. 
 Delivery on one part without notice of other claims, 469, 502. 
 Indorsement of one part to assignee sufficient, 603. 
 Purchaser not entitled to more, 603. 
 
 SET OEE, 
 
 Custom to set off premiums against claims, 189. 
 Claim for short delivery against freight, 191, 686. 
 Owner's debt against claim of freight by master, 589. 
 Against claim by assignee of freight, 698. 
 Lien not defeated by, 598. 
 
 SHIP-BEOKEK, 
 
 Advertising line in own name, 61. 
 Remuneration of, 121. 
 
 When earned ? 121. 
 
 Indirect introductions by custom, 121, 190. 
 
 Several employed, 121. 
 Uudertaldng to procure ship, 121. 
 Clause for commission in charter party, 122. 
 Address commission, 124. 
 Quare, whether commission can he sued for in rem, 122, 695. 
 
 " SHIP-DAMAGE," 103. 
 
 " SHIP LOST OR NOT LOST," 662, 663. 
 
 SHIPOWNER- {.See Pabi Ownbbs.] 
 Liability at common law, 3 et seq. 
 Statutory exemptions, 24, 26. 
 " Actual fault or privity " of, 24 — 26. 
 Cwnpulflory pilotage, 30—32. 
 
 {^Thf references are to the Sections.'] 
 
INDEX. 917 
 
 SHIPOWNER— coMWwjwe?. 
 
 Must not act inconsistently with, charter party, 39. 
 
 Cannot be sued on contract after master sued to judgment, 47. 
 
 Liability where vessel worked by master for joint benefit, 48. 
 
 Not bound by statement of quantity in bill of lading not signed in his 
 
 name, 70. 
 Personal negligence of, not generally covered by exceptions, 102. 
 Where charter party gives possession to charterer, not a carrier, 112, 113. 
 
 Not liable to shippers, 116. 
 
 Has no lien on goods, 116. 
 Liability where charter party does not give possession, 114, 115, 153 — 167. 
 Not entitled to charge for services in'saving cargo, 401. 
 Eights of, where consignee not ready to receive cargo, 466, 475. 
 Obligations of, where consignee in default, 471 — 474. 
 
 After warehousing under M. S. Act, 1862. .480, 481. 
 
 SHIPPER. [See Caebc] 
 
 Implied duty to ship with care, 14. 
 
 Agreement for shipment, 50. 
 
 When entitled to re-delivery after shipment, 58, 268, 269. 
 
 Entitled to have bill of lading, 69. 
 
 Contract generally with him, 61. 
 
 Carrier's position when shipper not interested, 61. 
 
 Liability after indorsement of bill of lading, 65. 
 
 In chartered ship, with whom does he contract ? 153, 154, 155, 156, 167. 
 
 Is notice of charter party material ? 157, 670. 
 
 Contract with charterer directly, 158, 169, 676. 
 
 Obligations in loading, 250. 
 
 Shipping dangerous goods, liabiKty, 278, 279. 
 
 Reservation of disposal of goods by, 492, 494. 
 
 Advances by consignee to, Factors Act, 1824. .504. 
 
 Effect of taking bill for freight on liability of, 585, 602. 
 
 Liability of, for freight, 602. 
 
 Liability of, for demurrage, 638. 
 
 Charter party liens as against, when preserved ? 668 — 671. 
 
 Where bill of lading not authorized and shipper put on inquiry, 672. 
 Collusion by, with charterer, 673. 
 Shipment under agreement with charterer, effect of liens, 676. 
 
 SHIP'S HUSBAND, 
 Authority of, 36. 
 
 No authority to cancel charter party, 36. 
 Managing owner must be registered, 37. 
 Effect of registration, 37. 
 
 "SHIP'S RISK," 
 
 Meaning of, in relation to loading, 251a. 
 
 SHORT DELIVERY, 
 
 Remedy for, 191, 688, 689. 
 Measure of damages, 727. 
 
 SLAVES, 216. 
 
 SMUGGLING, 
 
 May be barratry of master, 99. 
 Contracts involving, illegality, 216. 
 
 "SO NEAR THERETO AS SHE CAN SAFELY GET," 
 Custom of port of discharge, 196. 
 Delay from want of water, 226, 453. 
 
 Obstacle need not be physical, nor absolutely permanent, 225, 464. 
 Relates to safety in coming out, loaded, as well as going in, 226.' 
 Temporary obstacles at discharging port, 463. 
 Delay by ice, 463. 
 Delay owing to crowded dock, 454. 
 Relates to safety of ship, not cargo, 454a. 
 
 \_T7te references are to the Secticne.'] 
 
 3n3 
 
918 INDEX. 
 
 "SO NEAE THERETO AS SHE CAN SAFELY OiET "—coniimecl. 
 "At all times of tide," 455, 456. 
 Must ship proceed -when obstacle removed ? 456. 
 Must o'WBer lighten if feasible? 457. 
 When do lay days begin to run ? 629. 
 
 SOETING CARGO. [&« Absoetment of Caeso.] 
 
 SPECIE, 
 
 Warranty as to strong-room, 19a. 
 Declaration required as to, 24. 
 
 SPECIFIC PERFORMANCE 
 
 Of charter party not ordered by Court, 39. 
 
 STAMPS 
 
 On bill of lading, 55. 
 
 On charter party, 120. 
 
 Foreign law, effect on foreign contract, 213. 
 
 STEAMSHIP, 
 
 Ship described as, in charter farty, meaning, 139. 
 
 STEVEDORE, 
 
 Theft by men of stevedore, 94. 
 Negligence of, 101. 
 Master should be competent, 272, 276. 
 Appointment by charterer, effect, 272, 274. 
 
 STIFFENING-, 
 cargo for, 648. 
 
 STOP FOR FREIGHT OR CHARGES, 
 
 Merchant Shipping Act, 1894, s. 494. .476. 
 
 How discharged, sect. 495. .476. 
 
 Deposit with warehouse owner to discharge, sect. 496. .475. 
 
 Notice to retain deposit, 475. 
 
 Payment over of deposit in default of notice, and proceedings, 475. 
 
 Sale in default of deposit, sect. 497. .476. 
 
 Notice of sale, 475. 
 
 Application of proceeds, sect. 498. .475. 
 
 Claims and powers of warehouse owner, sect. 499. .476. 
 
 Liability of warehouse owner, sect. 600 . .476. 
 
 Definition of "warehouse," &c., sect. 492.. 476. 
 
 Effect of stop for excessive amount, 476. 
 
 Effect of stop by assignees of freight, 598. 
 
 STOPPAGE JJV TRANSITU, 
 
 Saving as to, in Bills of Lading Act, 62, 65. 
 
 Not defeated by customary general Uen of carriers, 191. 
 
 Lien of unpaid vendor, 494, 495, 506. 
 
 Nature of the right, 506, 541. 
 
 Sale not cancelled by, 507. 
 
 The right is subject to possessory liens, not to general liens, 607. 
 
 Custom to contrary invalid, 507, 654. 
 Not subject to attachment by creditor of buyer, 607, 523. 
 Does not entitle to insurance moneys, 507. 
 Buyer must be insolvent, 508. 
 Duration of transit, 509 et seq. 
 Meaning of transit, 609. 
 
 Delivery order to buyer does not end transit, 610. 
 Delivery to carrier does not end transit ; general ship ; chartered ship, 
 611. 
 Otherwise where delivery is on buyer's own ship, 512. 
 Unless perhaps where buyer has no notice, 512. 
 
 \_The references are to the Sections.'] 
 
INDEX. 919 
 
 STOPPAGE IN TRANSITU— continmd. 
 Dteration of 2Va«sii-^oontmuecl. 
 
 Carrier may become buyer's agent, 513, 533. 
 
 Railway company's notice, S13. 
 
 By course of business, 513. 
 
 Notwithstanding carrier's lien, 613. 
 
 Cases as to constructive possession, 613, 614. 
 Delivery of part does not generally end the transit of the rest, 515. 
 Delivery to another carrier to forward, 516. 
 Delivery to wharfinger or warehouseman, 517. 
 
 May be received as buyer's agent ; course of business, 517. 
 Delivery to buyer's packers, 517. 
 
 Buyer must intend to take delivery, in order to end transit, 518. 
 Intention not to take need not have been communicated to agent, 518. 
 Carrier must mean to part with goods, 519. 
 Carrier cannot prolong transit by improper detention, 519. 
 Delivery to buyer!s agent to forward ; notice of destination to seller ; 
 
 transit continues, 520. 
 "Where no notification of further destination to seller, transit ends, 521. 
 Where notice to seller indefinite, and agent requires further instruc- 
 tions, 522. 
 Right of buyer to intercept goods, and end transit, 623. 
 Eelanding and repacking by buyer, 523. 
 Attachment by creditor of buyer, 523. 
 Sow exercised, 524 et seq. 
 
 The right is in the vendor, or sub- vendor, 624. 
 
 Agents who have bought with their own money or credit have the 
 
 right, 625. 
 Position of a surety for the price, 525. 
 Lien of shipper does not give the right, 526. 
 
 The right not defeated by part payment, or by bills being current for 
 the price, 527. 
 
 Where state of account imcertain, 527. 
 Consignment to factors, stoppage, 628.- 
 Notice to stop, must be by vendor or authorized agent, 529. 
 
 Ratification after transit ended insufficient, 529. 
 Notice to be given to those who have custody of goods, 530. 
 Generally must reach master, 530. 
 
 Quare, whether shipowner must forward notice to master, 630. 
 Master and shipowner liable for delivery contrary to notice, 531, 689. 
 
 May not withhold goods from vendor, 531. 
 Vendor may foUow and claim goods in hands of buyer or his repre- 
 sentatives, 531. 
 Qucere, whether he can in hands of assignees for value, 631. 
 Mow defeated, 532 et seq. 
 
 Right defeated by transfer of bill of lading for value, 532. 
 
 Dickbarrow v. Mason, 632. 
 
 Grounds of the rule, 533. 
 
 Effect of assignment of goods without transfer of bill of lading, 634. 
 
 Does not defeat the right if assignor had not the bill of lading, 634. 
 
 Transfer of shipping note not enougb, 534. 
 
 Transfer of other documents of title, 635. 
 BiU of lading must have been validly indorsed, 536. 
 Transfer of bill of lading to factors, 537. 
 Transfer must be for value ;• past debt enough, 538. 
 
 And in good faith, without notice of insolvency, 538. 
 Insolvency puts transferee on enquiry, 538. 
 Effect of knowledge that goods are unpaid for, 538. 
 Conditional indorsement, 638. 
 
 Qu(Bre, effect of transfer after notice to stop given, 639. 
 Right of vendor when pledge or mortgage discharged ; surplus pro- 
 ceeds, 540. 
 Vendor may require mortgagee to resort to other goods of buyer, 640. 
 Right of vendor against price payable % sub-purchaser, 641. 
 Shipment "freight free on owner's acooimt," vendor not liable for 
 freight on stopping goods, 576. 
 Admiralty Court, jurisdiction in rem, claim by vendor for refusal to deliver 
 to him, 689. 
 
 \_The references are io the BecUons.'] 
 
920 INDEX. 
 
 STOWAGE, 
 
 Perishable goods," 13, 95. 
 Producing unseaTforthiness, 18, 87. 
 Master's liability for, 48. 
 Exceptions in bill of lading may relate to, 58. 
 May be wrongful apart from contract, 67. 
 Damage by fumes from other gmods, 86. 
 Kisks of contact Tvith other goods, 95. 
 Liability for ignorance, 96, 97. 
 Dangerous goods, 97, 277 — 280. 
 Effect of negligence clauses, in relation to, 101. 
 Not "navigation" ; nor " management," 101. 
 Effect of Harter Act, 103a, 103d. 
 Broken stowage, 265. 
 
 Short cargo through unskilful stowage,. 272. 
 Liability for bad stowage, 273. 
 Duty of master as to, 273, 274, 276. 
 Where charterer appoints stevedore, 274. 
 Ignorance of consequences, when excused, 276, 279. 
 Where charterer ships unsafe cargo, 277. 
 Charterer's duty to give notice, 278. 
 Statutes as to dangerous goods, 280. 
 Stowage on deck, 281. 
 ^ Statute, timber cargoes, 282. 
 Statute, grain in bulk, 283. 
 EaUure to stow as agreed, effect of exceptions, 287. 
 
 STRANDING, 
 
 When a "perU of the sea," 85, 87. 
 
 Voluntary stranding, when general average, 387 — 389. 
 
 Expenses of getting ship off a strand, 397 — 400. 
 
 STRIKES, 
 
 Meaning of "strikes," 257, 258. 
 
 Exceptions of, 257— 258o. 
 
 Discharge delayed by, 611, 612a. 
 
 When no time fixed, 615. 
 
 Affecting berth selected under charterer's option, 624b. 
 
 STRONG ROOM, 
 
 Warranty of fitness, 19a. 
 
 SUB- SALE, 
 
 Effect on stoppage in transitu, S34 — 536. 
 
 SWEATING, 
 
 Damage by, not generally a " peril of the sea," 86. 
 
 TECHNICAL WORDS, 168. 
 
 "TELEGRAPHIC AtTTHOElTY," 129, 169. 
 
 THIEVES, 
 
 Liability of carrier at law, 2. 
 
 Exception does not cover thefts by persons onboard, 77, 94. 
 
 Nor by servant of stevedore, 274. 
 Theft by railway company's servants, 110. 
 
 "THIEVES WHETHER ON BOARD OR NOT," 
 Does not cover thefts by crew, &o., 94. 
 
 THROUGH BILL OP LADING, 
 Who liable upon, 106. 
 Liabilities of railway companies, 107, 108. 
 By what law governed ? 212. 
 Duty to forward, 470. 
 
 IThe references are to the Sections.^ 
 
INDEX. 921 
 
 "TIGHT, STAUNCH AND STRONa, &o.," 
 To what time does this relate ? 144. 
 Not a oondition precedent except at loading port, 144. • 
 
 TIMBER, 
 
 Statutes as to deck timber cargoes, 282. 
 Measurement of : " intake measure," 578. 
 
 TIME-CHAETERS. \_See Chabtbe Paett.] 
 
 Control of ship under, 115, 116 ; form of, App. B. 
 
 Ship must be ready in time, 146. 
 
 Warranty of seaworthiness in, 146. 
 
 Liability of owner to sub-charterer, 154. 
 
 Freight on, how calculated, 570 — 571. Meaning of " month," 671a. 
 
 Deductions from freight, 672. Grovernment charters, 573. 
 
 Expenses at port of refuge, 572. 
 
 TONNAGE, 
 
 Measurement of ship's, 26. 
 
 Statements as to, in charter party, 141, 261. 
 
 TORT, 
 
 Liability of master for, 48. 
 
 Claim by owner of goods for, 67. 
 
 EfEect of exception of negligence, 67, 705. 
 
 Misdelivery, 67. 
 
 Jurisdiction of County Court, 692. 
 
 Measure of damages for, 717, 728. 
 
 TOWAGE, 
 
 Warranty of fitness of tug, 112. 
 
 "Liberty to tow," 292a. 
 
 Claims for, paid iu priority to bottomry bond, 317. 
 
 By pilots, may be salvage, 338. 
 
 May become salvage, 339. 
 
 Distinctions between salvage and, 340, 341. 
 
 Jurisdiction of County Court, 692. 
 
 TEA:srSHIPMENT, 
 
 " At ship's expense but shipper's risk," 103. 
 
 Expenses of, 294. 
 
 Master's authority to act for cargo owner, 294, 305. 
 
 Duty to tranship and forward, 304. 
 
 At shipowner's risk, when for his behalf, 304. 
 
 Liability of cargo owner for freight on, 306. 
 
 Freight on, priority to bottomry bond, 319. 
 
 Freight earned by, 547. 
 
 Lump freight, 561. 
 
 Lien for freight, after, 682. 
 
 Jurisdiction of Admiralty Court over ship, after, 686. 
 
 TUG, 
 
 Implied warranty of fitness of, 112. 
 
 Salvage claims by, 339. 
 
 Abandonment of tow, no contribution by, 374b. 
 
 "UNAVOIDABLE HINDRANCES," 258a. 
 "UNFORESEEN CIRCUMSTANCES," 148. 
 UNSEAWORTHINESS. \_See Seawobthinbss.] 
 "USUAL DESPATCH," 614. 
 
 [The references are to the 8eetwns.'] 
 
922 INDEX. 
 
 "USUAL AND CUSTOMARY MANNER," 614. 
 "USUAL AND CUSTOMARY TIME," 614. 
 
 VALVE, 
 
 Damage to cargo by open, lOl, 103e. 
 
 VENTILATION, 
 
 Damage to cargo by defective, 84, 86. 
 Use of dunnage for, 273. 
 Master's duty as to, 293. 
 
 VERMIN, 10, 79, 86, 88, 104, 
 
 VOYAGE, 
 
 Commencement of, 21, 284. 
 
 In charter party, includes voyage to port of loading, 148 
 
 Change of berth to port of loading, 148. 
 
 Series of voyages, 234, 570. 
 
 Delay in oommenoement of, 284. 
 
 To be prosecuted without delay or deviation, 285. 
 
 Order of ports of call, 285. 
 
 Liberty to call at ports, 286. 
 Duty to complete, after ship disabled, 302, 
 Abandonment of, effect on freight, 307, 308, 647. 
 
 At port of refuge, 302—309. 
 
 Before commenced, 664. 
 Adjustment of general average, 424. 
 Termination of voyage, 453 — 458. 
 !Freight on outward and homeward voyages, 571. 
 
 WAGES, 
 
 And maintenance of crew at port of refuge, 405, 406. 
 Of cattlemen, 405. 
 
 WAIVER OP CONDITIONS, 177. 
 
 WAR, 
 
 Provision for cancellation of charter party in case of, 236. 
 
 Effect of declaration of, 237—239. 
 
 Trade with enemy illegal, 237. 
 
 Where contract partly performed, 240, 242. 
 
 Effect of war on trade with enemy, 243. 
 
 foreign war on British neutrals, 244. 
 Contracts for trade in contraband, 245. 
 
 to run blockades, 246. 
 Port of discharge not unsafe because war will proia hly be declared, 461. 
 
 WAREHOUSEMAN, 
 
 Customary lien of, 190. 
 
 Carrier holding as, liability, 472 — 474. 
 
 Effect of exceptions, 474. 
 
 Effect on stoppage in transitu, 513. 
 Powers and claims of, under M. S. Act, 475, 677. 
 No obligation to see to validity of lien claimed by shipowner, 475, 
 Obligations of shipowner after delivery to, 480, 481. 
 Obligation of, to deliver to right person, 482. 
 Certfficate of, effect, 501. 
 Delivery by carrier to, when does it end the transit? 517. 
 
 [The references are to the Seciions.2 
 
INDEX. 923 
 
 ■WAREHOUSING CARGO, 
 
 Expenses of, at port of refuge, 413. 
 
 Efleot of, on carrier's liability, 472, 480, 481. 
 
 Where consignee fails to take delivery, 473, 474. 
 Mercliaut Shipping Act ; power to warehouse, 476. 
 
 Stop for freight or charges, 475. 
 
 Sale by warehouse owner, 475. 
 
 Claims, &o. of warehouse owner, 475. 
 
 Definition of "warehouse," &c., 475. 
 No claim for detention of ship, where cargo may be warehoused, 683, 718. 
 
 ■WARRANTY, 
 
 Of seaworthiness, implied, 17 — 21 ; expressed, 144. 
 Of fitness for cargo, 19a, 20, 21, 145. 
 
 Effect of exceptions upon, 79. 
 Representation in charter party, when a, 133, 135 et seq., 177. 
 Of agent's authority, 62, 129. 
 
 " "WEATHER PERMITTING," 
 Loading, 257. 
 
 "■WEATHER -WORKING DATS," 196, 613, 631. 
 
 ■WEIGHING CARGO, 576 et seq. 
 "CTsages as to measurement, 579. 
 Expense of, 582. 
 
 "■WEIGHT, CONTENTS AND VALUE UNKNO"WN," 
 Effect where weight stated, 69, 71. 
 Shipper may rely on the clause, 72. 
 Effect of, in qualifying " good order, &o.," 73. 
 
 WHARFAGE RATES, 
 
 Liability of shipowner to indemnify consignee for, where he was ready to 
 
 take delivery in lighters, 461. 
 Consignee not liable to contribute to ship's, 461. 
 Custom as to, 461. 
 Liability of consignee who delays taking delivery, 466. 
 
 ■WHARFINGER, 
 
 Customary lien of, 192. 
 
 Certificate of, effect, 601. 
 
 Delivery by carrier to, when does it end the transit? 517 — 519. 
 
 "WITHIN" DATES, 571a. 
 
 "WORKING DATS," 197, 613. 
 "Of 24 hours," 631. 
 
 WRECK, 
 
 Rights of the Crown to, 355, 366. 
 
 And to derelict, jetsam, lagan, flotsam, 355. 
 Statutes relating to, 356. 
 
 Duty to deliver to receiver of wreck, in United Kingdom, 356. 
 Powers of receivers of wreck, 356. 
 Remedy for damage by wreckers, 357. 
 Owner of foreign ship represented by consul-general, 358. 
 Removal of wrecks ; liability of ship and cargo for expenses; 359, 360. 
 
 YORK-ANTWERP RULES, App. C. 
 
 [The references are to the Sections.'] 
 
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 by R. S, Weioht, Esq., Barrister-at-Law. 8vo. 1888. 8s. 6d. 
 
 Shirley. — Vide "Leading Cases." 
 Smith's Manual of Common Law. — For Practitioners and Students. 
 
 Comprising the Fundamental Principles, with useful Practical Rules 
 
 and Decisions. By Joslah "W. Smith, B.C.L., Q.C. Eleventh Edit. 
 
 By C. SpufiUNa, Esq., Barrister-at-Law. Demy 8vo. 1898. 16s. 
 " The arrangement is clear and methodical, and will increase the usefulness 
 
 of the work, not only for elementary study, but as a handy book of reference."— 
 
 Law Quarterly/ Review. 
 
 %• All standard Law Works are kept in Stock, vn law calf and other Hndings.' 
 
119 & 120, CHANCERY LAIO:, LONDON, W.O. 6 
 
 COMPANY LAW.— Hamilton's Manual of Company Law. By 
 WrLLiAM Febdeeick Hamhton, LL.D. (Lond.), assisted by K. G. 
 METCAiPHi,M.A.,EBqrs.,Barrister8-at-La-w. DemySvo. 1891. 12s.6ii. 
 Palmer's Company Law,— A Practical Handbook for Lawyers and 
 Business Men. Based on Lectures delivered in the Inner Temple 
 Hall at the Request of the Council of Legal Education. With an 
 Appendix containing the Companies Acts, 1862 to 189S, and Rules. 
 Second Edit. By Eeanois Beatifoet Paimee, Esq . , JBarrister-at-Law, 
 Author of "Company Precedents," &o. Royal 8vo. 1898. 12s. ed. 
 
 " The work is a marvel— for oleamess, fiJness, and accuracy,'iiotlung could 
 be better."— iaw Notes. 
 
 ** Of especial use to students and business men wbo need a clear exposition by 
 a master hand." — Law Journal. 
 
 " The subject is dealt Trith in a clear and comprehensive manner, and in auch 
 a way as to be intelli^ble not only to lawyers but to others to whom a knowledge 
 of Company Law may be essential." — Law Students' Journal. 
 
 " All the principal topics of company are dealt with in a substantial manner, 
 the arrangement and typography are excellent, and the whole of the Statute 
 Law— an indispensable adjunct— is collected in an appendix, Perhaps what 
 practising lawyers and business men will value most is the precious 
 
 quality of practicality." — Law Quarterly Review. 
 
 " Popular in style, also accurate, with sufficient references to authorities to 
 make the book useful to the practitioner." — The Times. 
 
 Palmer's Private Companies and Syndicates, their Formation and 
 Advantages ; being a Concise Popular Statement of the Mode of Con- 
 verting a Business into a Private Company, and of establishing and 
 working Private Companies and Syndicates for Miscellaneous Pur- 
 
 EDses. Fifteenth Edition. By F. B. Faimeu, Esq., Barrister-at- 
 aw. 12mo. 1899. Mt, Is. 
 
 Palmer's Shareholders, Directors, and Voluntary Liquidators' 
 Legal Companion. — A Manual of Every-day Law and Practice for 
 Promoters, Shareholders, Directors, Secretaries, Creditors, Solicitors, 
 and Voluntary Liquidators of Companies under the Companies Acts, 
 1862 to 1890, with Appendix of useful Foritns. Nineteenth Edit. By 
 F. B. Pat.web, Esq., Barrister-at-Law. 12mo. 1900. Mi, 2s. 6d. 
 
 See also "Conveyancing" and "Winding-up." 
 
 COMPENSATION.— Cripps' Treatise on the Principles of the 
 Law of Compensation, Fourth Edition. By 0. A. Cbtpps, Esq., 
 Q.C. Royal 8vo. 1900. {Nearh/ ready.) 
 
 " An accurate exposition of the law." — Law Journal. 
 
 COMPOSITION DEEDS.— Lawrance,— rj<?« "Bankruptcy." 
 
 CONDITIONS OF SALE.— Webster.— Fiffe "Vendors and Pur- 
 chasers." 
 
 CONFLICT OF LAWS.— Campbell's Ruling Cases. VoL Y.— Vide 
 
 "Digests," p. 10. 
 
 Dicey's Digest of the Law of England with reference to the 
 
 Conflict of Laws.— ByA.V.DiOET,Esq., Q.C, B.C.L. WithNotes 
 
 of American Cases, by Professor Mooee. Royal 8vo. 189^. 11. 10s. 
 
 " One of the most valuable books on English law which has appeared for 
 some time. Thorough and minute in the treatment of the subject, cautious and 
 judicial in spirit, this work is obviously the result of protracted labour." — The 
 Times. 
 
 CONSTITUTION.— Anson's Law and Custom of the Constitution, 
 By Sir William: R. Anson, Bart., Barrister-at-Law. Demy 8vo. 
 Parti. Parliament. Third Edition. 1897. 12s. 6cl. 
 
 Part II. The Crown. Second Edition. 1896. 14s. 
 
 CONTRACT OF SALE.-^BIackburn.— F»(?e "Sales." 
 Moyle's Contract of Sale in the Civil Law. — By J. B. Motlb, 
 Esq., Barrister-at-Law. 8vo. 1892. 10s. 6d. 
 
 *,* All atcmdard Law Works a/re kept in Stock, in law calf and other bindings. 
 
STEVENS AND SONS, LIMITED, 
 
 CONTRACTS,— Addison on Contracts,— A Treatise on the Law of 
 Contracts. 9th Edit. By Hoeaob Smith, Esq., Bencher of the Inner 
 Temple, Metropolitan Magistrate, assisted by A. P. Pbeoevai K!bep, 
 Esq., Barrister-at-La-w. Eoyal 8vo. 1892. 11. 10«. 
 
 " This and the companion treatise on the law of torts are the most complete 
 works on these Bubjects, and form an almost indispensable part of every lawyer's 
 library." — Law Jowmal, 
 
 Anson's Principles of the English Law of Contract.- By Sir 
 W. R. Anson, Bart., Baorrister-at-Law. Ninth Edit. 1899. 10». 6d. 
 
 Campbell's Ruling Cases, Vol. Yl.—Vide " Digests." 
 
 Finch's Selection of Cases on the English Law of Contract.— 
 
 Second Edition. Eoy. 8vo. 1896. 28». 
 
 Fry, — YiAe "Specific Performance." 
 
 Leake's Law of Contracts. — A Digest of Principles of the Law of 
 Contracts. Third Edition. By Stephen Maetin Lbaxe, Esq., 
 Barrister-at-Law. Demy 8vo. 1892. 32». 
 
 " Complete, accurate, and easy of reference." — Solicitors^ Joumai. 
 " Clear, concise, accurate, and exhaustive." — Law Times. 
 
 Pollock's Principles of Contract, — Being a Treatise on the G-eneral 
 Principles relating to the Validity of Agreements in the Law of 
 England. Sixth Edition. By Sir Ebedeeiok Pollock, Bart., Bar- 
 rister-at-Law, Author of "The Law of Torts," "Digest of the 
 Law of Partnership," &o. Demy 8vo. 1894. 28s. 
 
 "A work which, in our opinion, shows great ability, a discerning intellect, a 
 comprehensive mind, and painstaking industry." — Law Journal. 
 
 CONVEYANCING.— Brickdale & Sheldon,— Kif^e "Land Transfer." 
 Dart, — Vide " Vendors and Purchasers." 
 
 Dickins' Precedents of General Requisitions on Title, with Ex- 
 planatory Notes and Observations. Second Edition. By Heebbet 
 A. Dickins, Esq., Solicitor. Royal 12mo. 1898. 5«. 
 
 " We cannot do better than advise eveiy lawyer with a conveyancing practice 
 to purchase the little book and place it on his shelves forthwith." — Law ^otes. 
 
 Greenwood's Manual of the Practice of Conveyancing, showing 
 the present Practice relating to the daily routine of Conveyancing in 
 Solicitors' Offices. To which are added Concise Common Eorms iu 
 Conveyancing. — Ninth Edit. Edited by Habet Gebbnwood, M.A., 
 LL.D., Esq., Barrister-^t-Law. Eoy. 8vo. 1897. 20s. 
 
 " The ninth edition wiU maintain the reputation which the work has long ago 
 acquired of being one of the best expositions which the English lawyer possesbes 
 of the present practice relating to the daily routine of conveyancing in solicitors* 
 offices. We have tested it at various points of a somewhat critical character, and 
 have no hesitation in pronouncing it up to date and in every way reliable as a 
 guide to modem conveyancing practice." — Literature. 
 
 " We should like to see it placed by his principal in the hands of every articled 
 clerk. One of the most useful practical works we have ever seen.*' — Law Stu. Jo. 
 
 Hood and Challis' Conveyancing and Settled Land Acts, and 
 some other recent Acts afleoting Conveyancing. With Commentaries. 
 By H. J. Hood and H. "W. Challis. Eifth Edition. By H. W. 
 Challis, assisted by J. I. SnELma, Esqrs., Barristers-at-Law. 
 Eoyal 8vo. 1898. 18s. 
 
 '* That learned, excellent and useful work." — Law Times. 
 
 "This is the best collection of conveyancing statutes with which we axe 
 acquainted. . ' . . The excellence of the commentaries which form part of this 
 book is so well known that it needs no recommendation from us." — Law Journal. 
 
 Jackson and Gosset's Precedents of Purchase and Mortgage 
 Deeds, — By W. Howland Jackson and Thoeold G-ossbt, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1899. 7s. &d. 
 
 " Not the least merit of the collection is that each Precedent is complete in 
 itself, so that no dipping about and adaptation from other parts of the book are 
 necessary." — Law Journal^ Deo. 30, 1899. 
 
 *„,* This forms a companion volume to " Investigation of Title" by 
 
 the same Authors, vide p. 17. 
 Morris, — Vide "Patents." 
 *^* All standard Law WorJcs are kept i« Stoclc, in law calf and other bindings. 
 
119 & 120, OHAITOERY LAIIE, LONDON, "W.O. 7 
 
 CO N V EYA N C I N G— continued. 
 Palmer's Company Precedents. — ^For use in relation to Companies 
 subject to the Companies Acts. 
 
 Part I. COMPANY FOEMS, Arranged as follows:— Promoters, 
 Prospectuses, Underwriting, Agreements, Memoranda and Articles 
 of Association, Private Companies, Employes' Benefits, Resolutions, 
 Notices, Certificates, Powers of Attorney, Debentures and Debenture 
 Stock, Banking and Advance Securities, Petitions, Writs, Pleadings, 
 Judgments and Orders, Beoonstruotion, Amalgamation, Special Acts. 
 With Copious Notes and an Appendix containing the Acts and Bules. 
 Seventh Edition. By Ekahois Bbaufobt Paimbe, Esq., Barrister-at- 
 Law, assisted by the Hon. Chaelks Maonaohten, Q.O., and Abthub 
 John Chittt, Esq., Barrister-at- Law. Royal 8vo. 1898. 36«. 
 
 " No company lawyer can afford to be ■without it." — Law Journal, 
 
 Part II. WINDING-TIP FORMS AND PEAOTICE. Arranged as 
 follows: — Compulsory Winding-Up, Voluntary Winding-TJp,Wind- 
 ing-Up under Supervision, Arrangements and Compromises, with 
 Copious Notes, and an Appendix of Acts and Rules. Eighth Edition. 
 By Feastois Beaitfoet Palhee, assisted by IFeauz Evans, Esqrs., 
 Barristers-at-Law. Royal 8vo. 1900. 32s. 
 
 " Palmer's * Company Precedents ' is tlie book par excellence for practitioners. 
 There is nothing we can think of whidi should be within the covers which we do 
 not find." — Law Journal, 
 
 Part III. DEBENTTJEES AND DEBENTTIEE STOCK, including 
 Debentures, Trust Deeds, Stock Certificates, Resolutions, Prospectuses, 
 Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- 
 cellaneous. With Copious Notes. Eighth Edition. By Fbanois 
 Beaupoet Paimee, Esq., Barrister-at-Law. Royal Svo. 1900. 21s. 
 
 " The result of much careful study Simply invaluable to debenture- 
 holders and to the legal advisers of such investors." — Financial News, March 15, 
 1900. 
 
 "Embraces practically the whole law relating to debentures and debenture 
 
 stock Must take front rank among the works on the subject." — Law 
 
 Times, March 24, 1900. 
 Prideaux's Precedents in Conveyancing — With Dissertations on 
 its Law and Practice. 18th Edit. By John Whitoombb, assisted by 
 Benjamin Lennaed Cheebt, Esqrs., Barristers-at-Law. 2 vols. 
 Royal Svo. {In the press.) 
 
 " * Prideaux * is the best work on Conveyancing." — Law Journal. 
 
 " Accurate, concise, clear, and comprehensive in scope, and we know of no 
 treatise upon Conveyancing which is so generally useful to the practitioner." — 
 Law Times. 
 
 "Eecent legislation has compelled the Editor to re-write some of the pre- 
 liminary dissertations. He has evidently taken great pains to incorporate the 
 effect of the Land Transfer Act of iSS7."—The Times. 
 CORONERS.^ervis on Coroners, — The Coroners Acts, 1887 and 
 1892. With Forms and Precedents. Sixth Edition. By B. E. 
 Melsheimbe, Esq., Barrister-at-Law. Post 8vo. 1898. 10s. 6d. 
 
 "In all respects adequate and exhaustive." — Law Times. 
 COSTS. — Johnson's Bills of Costs in the High Court of Justice 
 and Court of Appeal, in the House of Lords and the Privy Council ; 
 ■with the Scales of Costs and Tables of Fees in use in the Houses of 
 Lords and Commons, relative to Private BiLs ; Election Petitions, 
 Parliamentary and Mvmicipal. Inquiries and Arbitrations under the 
 Lands Cla'oses Consolidation Act and other Arbitrations. Proceed- 
 ings in the Court of the Railway and Canal Commission, in the 
 County Court and the Mayor's Courts. The Scales of Costs and 
 Tables of Fees in use in the Court of Passage, Liverpool, and Oon- 
 veyanoing Costs ; vrith Orders and Rules as to Costs and Court Fees, 
 and Notes and Decisions relating thereto. By Horace Max^well 
 Johnson, Esq., Barrister-at-Law. Royal 8vo. 1897. 11. 12s. 
 
 "It is difficult to conceive how any costs derk or solicitor can go wrong with 
 a work of this kind to guide him." — Law Times. 
 
 ** We consider the book marvellously accurate, and we are able to commend 
 it in all confidence. On the law of bills of costs the practitioner, let his busineiis! 
 be as ■wide as it may, wants nothing but such a work as the one before us."— 
 Law Notes. 
 
 *,* AU stmdardZaui Workiare kept in Slock, m law calf and other Hndkiffs. 
 
STEVENS XKD SONS, LOirrED, 
 
 COSTS — continued. r /^ » 
 
 Summerhays and Toogood's Precedents of Bills of Costs. 
 Seventh Edition. By Thoenton Toobood, Thomas Chaeles Stjmmbe- 
 HATS, and 0. Gilbbet Baebee, Solicitors. Eoyal 8vo. 1896. U. 10«. 
 Webster's Parliamentary Costs.-Private Bills, Election Petitions, 
 Appeals, House of Lords. Eourth Edition. By 0. CAVAiTAaH, Esq., 
 Barrister-at-La-w. Post 8vo. 1881. 20s. 
 
 COUNTY COURT APPEALS.— Chamier's Law and Practice re- 
 lating to County Court Appeals; Mandamus, ProhibitioB, and 
 Certiorari. By Daotel Chamiee, ;Esq. Demy 8to. 1896. 10«. 
 
 COUNTY COURTS. — The Annual County Court Practice, 
 1900.— By His Honour Judge Smtlt, Q.C. 2 vols. 8vo. U. 5s. 
 " Invaluable to the County Court practitioner."— iaw Journal. 
 
 COVENANTS.— Hamilton's Concise Treatise on the Law of 
 Covenants.— By G-. Bald-win Hamilton, Esq., Barrister-at-Law. 
 Demy 8vo. 1888. 7s. 6d. 
 
 CRIMINAL LAW.— Arch hold's Pleading, Evidence and Practice in 
 Criminal Cases. — ^With the Statutes, Precedents of Indictments, &c. 
 Twenty-second Edition. By "Willlam: F. Ceaies and Gut Stephen- 
 son, Esqrs., Barristers-at-La-w. Demy 8vo. 1900. 11. lis. 6d. 
 " Archbold ' is the one indispensable book for every barrister or solicitor who 
 practises regularly in the criminal Covits."—Solicitors' Journal, March 3, 1900. 
 
 Chitty's Collection of Statutes relating to Criminal Law,— (Re- 
 printed from ' ' Chitty ' s Statutes. ' ' ) With an Introduction and Index. 
 By W. F. Ceaies, Esq., Barrister-at-Law. Koyal 8vo. 1894. 10s. 
 
 Disney and Gundry's Criminal Law. — A Sketch of its Principles 
 and Practice. By Henet "W. Dishet and Haeold Gtostdet, Esqrs., 
 Barristers-at-Law. Demy 8vo. 1893. 7s. 6d. 
 
 "We think we have here just what students want. The work is based upon a 
 perfect knowledge of the statute law, and is compiled from the best and most 
 recent authorities." — Law Times. 
 
 Kershaw's Brief Aids to Criminal Law.— With Notes on the Pro- 
 cedure and Evidence. By Hilton Ejeesha-w, Esq., Barrister-at- 
 Law. Koyal 12mo. 1897. 3s. 
 
 Mews.— Vide "Digest." 
 
 Rosooe's Digest of the Law of Evidence in Criminal Cases, — 
 Twelfth Edition. By A. P. Peeoevai Keep, Esq., Barrister-at- 
 Law. Demy8vo. 1898. 11. lis. 6d. 
 *'To the criminal lawyer it is his guide, philosopher and friend. What 
 Boscoe says most judges w^ accept without question.'* — Law Times. 
 
 Russell's Treatise on Crimes and Misdemeanors, — Sixth Edit. 
 
 By HoEAOE Smith, Esq., Metropolitan Police Magistrate, and A. P. 
 
 Peeoevai. Keep, Esq. 3 vols. Koy. 8vo. 1896. 61. 15s. 6d. 
 
 " No library can be said to be complete without the new edition of Kussell on 
 
 Crimes." — Law Times. 
 
 " Indispensable in every Court of criminal justice here and in our Colonies.*' 
 —The Times. 
 
 Shirley's Sketch of the Criminal Law. — Second Edition. ByCnAELES 
 Stephen Huntbe, Esq., Barrister-at-Law. Demy 8vo. 1889. 7s. 6d. 
 
 Warburton, — Vide " Leading Cases." Thring, — Vide "Navy." 
 DEATH DUTIES,— Freeth's Acts relating to the New Death Duty, 
 with an Introduction, A Digest, Copious Notes, and an Appendix 
 containing the Estate Duty Forms, and the Rules. Second Edition. 
 By Evelyn Feeeth, Esq., Deputy-Controller of Legacy and Succes- 
 sion Duties. Demy 8vo. 1897 12s. 6d. 
 " The official position of the Author renders his opinion on questions of proce- 
 dure of great value, and we think that this book will be found very useful to 
 solicitors who have to prepare accoimts for d-aty.*' —Solicitors' Journal. 
 
 Harman's Finance Act, 1 894, so far as it relates to the Death Duties. 
 
 With an Introduction and Notes, and an Appendix of Forms. By 
 
 J. E. Haeman, Esq., Barrister-at-Law. Royal 12mo. 1894. 5s. 
 
 %• All standard Law Works are kept in Stock, in lawealf and other bindings. 
 
119 & 120, OHAJSrCERT LANE, LONDON, W.O. 9 
 
 DEBENTURES AND DEBENTURE STOCK.— Palmer.— r«« 
 " Conveyancing." 
 
 DECISIONS OF SIR GEORGE J ESS EL— Peter's Analysis and 
 Digest of the Decisions of Sir George Jessel ; with Notes, &o. 
 By APSI.BT Petee Peteb, SoUoitor. Demy 8to. 1883. 16j. 
 
 DIARY.— Lawyers' Companion (The) and Diary, and London and 
 Provincial Law Directory for 1900.— For the use of the Legal 
 Profession, Public Companies, Justices, Merchants, Estate Agents, 
 Auctioneers, &c., &o. Edited byEDWDr Layman, Esq., Ba,rrister-at- 
 Law.; and contains Tables of. Costs in the High Court of Judicature 
 and County Court, &c. ; Monthly Diary of County, Local Gbvemment, 
 and Parish Business ; Oaths in Supreme Court ; Summary of Sta- 
 tutes of 1899 ; Alphabetical Index to the Practical Statutes since 
 1820 ; Schedule of Stamp Duties ; Legal Time, Interest, Discount, 
 Income, Wages and other Tables ; the New Death Duties ; and a 
 variety of matters of practical utility : together with a complete List 
 gf the English Bar, and London and Country Solicitors, with date of 
 admission and appointments. Published AWoAiiT. Kfty-fourth 
 Issue. 1900. 
 
 Issued in the following forms, octavo size, strongly bound in cloth : — 
 
 1 . Two days on a page, plain ..."... 5s. Od. 
 
 2. The above, inteeleaved with plain paper or blotting paper . 7 
 
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 ITie Diary contains memoranda of Legal Business throughout the Tear, with 
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 1^ The Diary can be obtained interleaved with blotting 
 
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 " The amount of information packed within the covers of this well-known 
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 perhaps, detracting from the usefulness of the book. The publishers seem to 
 have made It their gJTn to include in the Companion every item of information 
 which the most exacting lawyer could reasonably expect to find in its pages, 
 and it may safely be said that no practising solicitor, who has experienced the 
 luxury of having it at his elbow, will ever be likely to try to do without it." — 
 Law Jovjmal. 
 
 DICTIONARY.— The Pocket Law Lexicon,— Explaining Technical 
 Words, Phrases and Maxims of the English, Scotch and Roman Law, 
 to which is added a complete List of Law Reports, with their Abbre- 
 viations. Third Edit. By Hbnet G. Rawson and James !F. Reudstant, 
 Esqrs., Barristers-at-Law. Foap. 8vo. 1893. 6«. 6<?. 
 
 " A wonderful little legal Dictionary."— iM(2erm«r'« Lam Student^ JourmiL. 
 Wharton's Law Lexicon. — Forming an Epitome of the Law of Eng- 
 land, and containing f uU Explanations of the Technical Terms and 
 Phrases thereof, both Ancient and Modem ; including the various 
 Legal Terms used in Commercial Business. 'Together with a Trans- 
 lation of the Latin Law Maxims and selected Titles from the Civil, 
 Scotch and Indian Law. Ninth Edition. By J. M. Lelt, Esq., 
 Barrister-at-Law. Super-royal 8vo. 1892. IZ. 18«. 
 
 " On almost every point both student and practitioner can gather information 
 • from this invaluable book, which ought to be in every lawyer's office."— £(w Sotes. 
 
 " One of the first books which every articled clerk and bar student should pro- 
 cure."— iow Stwimts' Jowmal, 
 
 *.* All itmdardZaw Worhi are hept in Stock, vn law calf and other birdingt. 
 
10 STEVENS AND SONS, LIMITED, 
 
 DIGESTS,— Campbell's Ruling Cases.— Arranged, Annotated, and 
 Edited by KoBEBT Campbell, of Lincoln's Inn, Esq., BarriBter-at- 
 Law, Advocate of tlie Scotch Bar, assisted by other Members of the 
 Bar. With American Notes by Ibtoiq Beowne, formerly Editor ot 
 the American Reports, and the Hon. Leonaed A. Joniss. Royal 8to. 
 1894-1899. Malf vellum, gilt top, net, each 2,bs. 
 
 The following Volumes have been published :■ 
 
 X.— Easement— Estate. 
 
 XI.— Estoppel— Execution. 
 
 XII.— Executor— indemnity. 
 XIII.— Infant— Insurance. 
 XIV.— Insurance— Interpretation. 
 
 XV.— Judge— Landlord and Tenant. 
 XVI.— Larceny— Mandate. 
 XVII.— Manorial Right— Mistake. 
 XVIII.— Mortgage— Negligence. 
 XIX.— Negligence- Partnership. 
 
 XX.— Patent. 
 
 I. — Abandonment— Action. 
 II.— Action— Amendment. 
 111.— Ancient Light— Banker. 
 IV.- Bankruptcy— Bill of Lading, 
 v.— Bill of Sale— Conflict of Laws., 
 VI.— Contract. 
 VII.— Conversion— Counsel. 
 VIII.— Criminal Law— Deed. 
 IX.— Defamation — Dramatic and 
 Musical Copyright. 
 XXI.— Payment— Purchase for Value without Notice. [Kearh/ ready.) 
 XXII.— Quo Warranto— River. [In the press.) 
 
 %* The Volumes are sold separately. 
 An Addendmn, eontainmg, under the appropriate title and rule, NStes of 
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 Volumes up to date. Soyal %vo. 1897. Salf vellum, net, 20s. 
 V SPECIAL OFFEE TO NEW SUBSCRIBEES : 
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 Plan of the Woee. 
 All the useful authorities of English Case Law, from the earliest period 
 to the present time, on points of general appUoation, are collected and 
 arranged in alphabetical order of subjects. 
 
 The matter under each alphabetical heading is arranged in sections, in 
 an order indicated at the commencement of the heading. The more im- 
 portant and Ruling Oases are set forth at length, subject only to abridg- 
 ment where the original report is unnecessarily diffuse. The effect of 
 the less important or subordruate cases is stated briefly in the Notes. 
 
 The aim of the Work is to furnish the practitioner with English Case 
 Law in such a form that he wUl readily mid the information he requires 
 for ordinary purposes. The Ruling Case will inform him, or refresh his 
 memory, as to the principles ; and the Notes will show in detail how the 
 principles have been applied or modified in other cases. 
 The Work will be completed in 25 Volumes. 
 
 " One of the most ambitious, and ought to be, when it is complete, one of the 
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 " A parfeot storehouse of the principles established and illustrated by our 
 case lawandthatof the United States." — Law Times. 
 
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 tor the present, the high-water mark of the science of book-making." — Sat. Rev. 
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 concise ; but perhaps its chief merit is that it impresses on us what the practising 
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 ciples." — Thfi British Bevietu. 
 
 " The Series has been maintained at a high level of excellence." — TJie Times, 
 September 20tih, 1899. 
 Dale and Leiimann's Digest of Cases, Overruled, Not Followed, 
 Disapproved, Approved, Distinguished, Commented on and 
 specially considered in the English Courts. By Ohas. Wm. 
 MiTCAXFE Dale, and Rudolf Cbaubees Ti hItm-a wtj, assisted by Ceab. 
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 Royal 8vo. 1887. (Published at 21. 10s.) Seduced to net, 26«. 
 
 *»• A U standard Law Works are kept in Stock, in law calf and other bindings. 
 
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 DIG ESTS — eontimied. 
 
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 Mews' Digest of Cases relating to Criminal Law down to the 
 end of 1897,— By John Mews, Esq., Bairister-at-Law. Eoval 
 8vo. 1898. 25s. 
 
 MEWS' DIGEST OF ENGLISH CASE LAW.— Containing the Eeported 
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 Wsh Courts, to the end of 1897. Under the general Editorship of 
 John Mews, assisted by W. E. Baebt, E. E. H. Bieoh, A. H. 
 
 BiTTLESTON, B. A. COHEN, W. I. CoOK, E. W. HiNSELI,, J. S. 
 
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 E. Manson, B,. Gr. Maesden, H. J. Newbolt, A. E. Eandall, 
 J. EiTCHiE, J. Smith, J. F. Waiet, T. H. 'Walkee, and W. A. <3r. 
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 (Bound in half calf, gilt top, £3 net extra.) 
 
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 pensahle to lawyers." — The Times. * 
 
 %* Lists of Cases followed, overruled, questioned, &o., have been 
 omitted from this Digest, but the Publishers have in preparation a New 
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 *,5* This Digest is also issued quarterly, each part being cumulative. 
 Price to Subscribers, for the four T^axis payable in advance, net 17s. 
 
 Law Journal Quinquennial Digest, 1890-95. — An Analytical 
 Digest of Cases Published in the Law Journal Reports, and the Law 
 Reports, froni Michaelmas Sittings, 1890, to Trinity Sittings, 1895. 
 By GrEOEGE A. Steeeten, Esq., Barrister-at-Law. 1896. IZ. 10s. 
 
 *f* To Subscribers to the Law Journal Reports, net 6s. , postage 6d. 
 " Extremely well done, with abundance of headings and cross references . . . 
 could not be done better," — Law Times. 
 
 Talbot and Fort's Index of Cases Judicially noticed (1865 — 
 1890) ; being a List of aU Cases cited in Judgments reported from 
 Michaelmas Term, 1865 to the end of 1890, with the places where 
 they are so cited. — ^By Geoege John 'Talbot and Hugh Eoet, Esqrs., 
 Barristers-at-Law. Royal 8to. 1891. 25». 
 
 " This is an invaluable tool for the worker among cases." — Solicitors^ Journal, 
 
 DISCOVERY,- Sichel and Chance's Discovery. — The Law relating 
 to Interrogatories, Production, Inspection of Documents, and Dis- ■ 
 covery, as well in the Superior as in the Inferior Courts, together with 
 an Appendix of the Acts, Forms and Orders. By Waltee S. Siohel. 
 andWrLi.iAMCHANOE,Esqrs., Barristers-at-Law. DemyBvo. 1883. 12s. 
 
 DISTRESS,— Oldham and Foster on the Law of Distress,— A 
 'Treatise on the Law of Distress, with an Appendix of Forms, Table 
 of Statutes, &c. Second Edition. By Aethite Oldham and A. La 
 TeobeFostee, Esqrs., Barristers-at-Law. Demy8vo. 1889. 18«. 
 
 DISTRICT COUNCILS,— Chambers' Digest of the Law relating 
 
 to District Councils, so far as regards the Constitution, Powers 
 
 and Duties of such Councils (including Municipal Corporations) in 
 
 the matter of Public Health and Local Government. Ninth Edition. 
 
 ■ — By Geoeob F. Chambbbs, Esq., Barrister-at-Law. Royal 8vo. 
 
 1896. lO'- 
 
 • » A tt standard Law WotTsb aire ftepf in Steele, in law calf and other Hndingt. 
 
 * b2 
 
12 STEVENS AND SONS, LmTTED, 
 
 DIVORCE— Browne and Powles' Law and Practice in Divorce 
 
 and Matrimonial Causes. Sixth Edition. ByL. D.PoWMa, Esq., 
 
 Banister-at-Law. Demy 8to. 1897. 26s. 
 
 " The practitioner's standard work on divorce practice."— iaw Quar. Sea. 
 
 Kelly's French Lav/.— Vide "Marriage." 
 
 DOGS.— Lupton's Law relating to Dogs.— By Fbkdbbiok Ltjmon, 
 
 SoUoitor. Royal 12mo. 1888. 5»- 
 
 DOMESDAY BOOK AND BEYOND.— Three Essays in the Early 
 
 History of England. By Professor Maitlaot). 1897. 8vo. 15*. 
 
 EASEMENTS.— Campbell's RuIingCases. Vol. X.— Fi<fe"Dige8ts." 
 
 Goddard's Treatise on the Law of Easements.— Bt John Let- 
 BOUEN GrOBDAED, Esq., Barristsr-at-Law. Fifth Edition. Demy 
 8to. 1896. 1^- 5»- 
 
 " Has taken its place as a standard treatise by virtue of that best evidence 
 of merit, the favour of those for whom it was written."— jr. of British Architects. 
 
 "Nowhere has th9 subject been treated so exbaustiTely, and, we may add, 
 so scientifically, as by Mr. Goddard. We recommend it to fiiemost careful study 
 of the law student, as well as to the library of the practitioner."— iuMi Times. 
 
 Innes' Digest of the Law of Easements. Sixth Edition. By 
 
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 of Judicature, Madras. Royal 12mo. 1900. 7*. 6d. 
 
 " Constructed with considerable care and pains."— icn" Journal. 
 
 ""We have only the pleasing duty remaining of recommending the book to those 
 
 in search of a concise teeatise on the law of Easements." — Law Notes. 
 
 ECCLESIASTICAL LAW.— Phillimore's Ecclesiastical Law of the 
 Church of England. By the late Sir Robeet Phillimoee, Bart., 
 D.C.L. Second Edition, hy his son Sir Walteb Geoegh Feane 
 Phillimoee, Bart., D.C.L., assisted by 0. F. Jemmeit, B.C.L., 
 LL.M., Barrister-at-La-w. 2 vols. Royal 8vo. 1895. Zl. 3». 
 
 " The famous treatise of Sir Eobert Phillimore will continue to hold a foremost 
 place in our legal literature." — Law Times. 
 
 " The task of re-editing PhiUimore's * Ecclesiastical Law ' was not au easy one. 
 Sir Walter Phillimore haa executed it with brilliant success. He has brought to 
 the work all his father's subdued enthusiasm for the Church, he has omitted 
 nothing that lent value to the original treatise, he has expunged from it what 
 could be spared, and has added to it everything that the ecclesiastical lawyer 
 can possibly need to know." — Law Journal. 
 
 Whitehead's Church Law, — Being a Concise Dictionary of Statutes, 
 Canons, Regulations, and Decided Cases affecting the Clergy and 
 Laity. Second Edition. By Benjamin Whiteheai), Esq., Barrister- 
 at-Law. Demy 8vo. 1899. 10s. 6d. 
 
 " A perfect mine of learning on all topics ecclesiastical." — DaHy Telegraph. 
 
 •' This book stands for the moment at the head of the many works on 
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 " Mr. Whitehead has amassed a great deal of information which it would be 
 very difficult to find in any other book, and he has presented it in a dear and 
 concise form. It is a book which will be useful to lawyers ind laymen." — Law 
 Times. 
 
 ELECTIONS.— Day's Election Cases in 1892 and 1893.- Being a 
 Collection of the Points of Law and Practice, together with Reports 
 of the Judgments. By S. H. Day, Esq., Barrister-at-Law, Editor 
 of " Rogers on Elections." Royal 12mo. 1894. 7». 6rf. 
 
 Hedderwick's Parliamentary Election Manual ; A Practical 
 Handbook on the Law and Conduct of Parliamentary Elections 
 in Great Britain and L-eland, designed for the Instruction and 
 Guidance of Candidates, Agents, Canvassers, Volunteer Assistants, 
 &c. By T. C. H. Hbddeewiok, Esq., Barrister-at-Law. Demy 
 12mo. 1892. 7«. U. 
 
 " Clear and well arranged."— iuw Quarterly Xeuiem. 
 %* AU standard law Works are Tcept in Siook, in Ime calf and other bindinffs. 
 
119 & 120, CHA JTCERY LANE, LONDON, W.O. IS 
 
 ELECTIONS— eo««««e<?. 
 Rogers' Law and Practice of Elections. — 
 
 Vol. I. EEQiaTEATioN, iuoluding the Praotioe in Eegistratiou 
 Appeals; Parliamentary, Munioipal, and Local Qovemment; -with 
 Appendices of Statutes, Orders in Council, and Forma. Sixteenth 
 Edition. By Matjeiob Fowell, Esq., BarriBter-at-Law. Eoval 
 12mo. 1897. 11. U. 
 
 '* The practitioner will find within these covers eTerything which he can be 
 expected to know, well arranged and carefully stated." — Law Times. , 
 
 Vol. II. Paeliamentaet Eleotions and Petitions ; with Appen- 
 dices of Statutes, Rules and Forms. Seventeenth Edition. By 
 S. H. Day, Esq., Barrister-at-Law. Royal 12mo. 1895. U. U. 
 
 "The leading book on the difficult subjects of elections and election peti- 
 tions." — Law Times. 
 
 *' A very satisfactory treatise on election law." — Solicitor^ Jimmal. 
 
 Vol. III. MuKIOIPAIi AND OTHEK ELECTIONS AND PETITIONS, with 
 
 Appendices of Statutes, Rules, and Forms. Seventeenth Edit. By 
 Saitoel H. Dat, Esq., Barrister-at-Law. Royall2mo. 1894. II. Is. 
 
 This Volume treats of Elections to Municipal Councils (including the 
 City of London), Caimty Councils, Parish Councils, Rm-al and Vrian 
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 Metropolitan Vestries, School Boards. 
 EMPLOYERS' LIABILITY.— Mozley-Stark,— Ft* "Arbitration." 
 Robinson's Employers' Liability under the Workmen's Com- 
 pensation Act, 1897, and the Employers' Liability Act, 1880 1 
 with the RulesundertheWorkmen'sCompensation Act, 1897, 
 By Aethub Robinson, Esq., Barrister-at-Law Second Edition. 
 Including Precedents of Schemes of Compensation under the "Work- 
 men's Compensation Act, 1897, certified by the Registrar of Friendly 
 Societies. By the Author and J. D. Stuaet Sim, Esq., Barrister- 
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 " This book commences with a short but clear summary of the law of 
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 ENGLISH LAW.— Pollock and Maitland's History of English Law 
 before the time of Edward I. — By Sir Fkbdeeioe Pollock, Bart., 
 and Feed. "W. Maitland, Esq., Barristers-at-Law. Second Edition. 
 2 vols. roy. 8vo. 1898. 40s. 
 
 EQUITY, »«rf FJffe CHANCERY. 
 Mews' Digest. — Vide "Digests," p. 11. 
 
 Seton's Forms of Judgments and Orders in the High Court of 
 Justice and in the Court of Appeal, having especial reference to 
 the Chancery Division, with Practical Notes. Fifth Edition. By 
 Cecil C. M. Dale, Esq., Barrister-at-Law, and W. Clowes, Esq., 
 a Registrar of the Supreme Court. InSvols. RoyalSvo. 1891-3. 61, 
 "A moniiment of learned and laborious accuracy." — Law Quarterly Review. 
 Smith's Manual of Equity Jurisprudence, — A Manual of Equity 
 Jurisprudence for Practitioners and Students, founded on the Works 
 of Story and other writers, comprising the Fundamental Principles 
 and the points of Equity usually occurring in General Practice. 
 By JosiAH W. Smith, Q.C. Fifteenth Edition. By Sydney E. 
 Williams, Esq., Barrister-at-Law. 12mo. 1900. 12s. 6<f. 
 
 " "We can safely recommend ' Smith's Equity' in its new clothes to the atten- 
 tion of students reading for their Examinations."— Zaw Notes, April, 1900. 
 
 " Smith's Manuals of Common Law and Equity must be resorted to as the 
 open sesames to the learning requisite in the Final Examination of tbe Incor- 
 porated Law Society." — From Dr. Eollit's Lecture. 
 
 Smith's Practical Exposition of the Principles of Equity, illus- 
 trated hy the Leading Decisions thereon. For the use of Students 
 and Practitioners. Second Edition. By H. Abthub Smith, M.A., 
 LL.B., Esq., Barrister-at-Law. Demy 8vo. 1888. 2l5. 
 
 *,* All standard Law WorTcs are Tcept in Stock, in law calfandother bindings. 
 
14 STEVENS AND SONS, LIMITEP, 
 
 ESTOPPEL— Everest and Strode's Law of Estoppel. ByLANOixoT 
 
 FiELDiNQ Etbeest, and Editoni) Steode, Esqrs., Banisters-at-Law. 
 
 Demy 8vo. 1884. 18». 
 
 EVIDENCE.— Campbell's RulingCases. Vol.XL—Fi&" Digests." 
 
 Wills' Theory and Practice of the Law of Evidence.— By 
 
 Wm. Wills, Esq., Barrister-at-Law. Demy8vo. 1894. 10s. 6d. 
 
 "It contains a large amount of valuable information, very tersely ajid 
 
 accurately conveyed." — Law Timea. 
 
 " We consider that Mr. 'Wills has given the profession a useful book on a 
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 EVIDENCE ON COMMISSION.— Hume-Williams and Macklin's 
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 EXAMINATION GUIDES.— Bar Examination Guide. By H. D. 
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 lished after each Examination. ^et is. %d. 
 Bar Examination Guide— Vols. I. to V. (1895-1899). 
 
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 Bar Examination Guide — Lecture Supplement, 1896. Mt2s. 
 
 Shearwood's Guide for Candidates for the Professions . of 
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 Uttley's How to Become a Solicitor i or, Hints for Articled 
 Clerks. — By T. E. Uttlet, Solicitor. Royal 12mo. 1894. 5s. 
 
 EXECUTIONS,— Edwards' Law of Execution upon Judgments 
 and Orders of the Chancery and Queen's Bench Divisions. 
 By C. J. Edwaedb, Esq., Banister-at-Law. Demy 8vo. 1888. 16s. 
 
 EXECUTORS. — Macaskie's Treatise on the Law of Executors 
 and Administrators. By S. C. Maoaszib, Esq., Barrister-at-Law. 
 8to. 1881. 10s. 6d. 
 
 Williams' Law of Executors and Administrators. — Ninth Edition. 
 By the Hon. Sir Rolamb Vatjohau Williams, a Justice of the High 
 Court. 2 vols. Roy. 8vo. 1893. 31: 16s. 
 
 "We can conscientiouBly say that the present edition Tvill not only sustain, 
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 of a new edition h^ been distinctly felt for some time, and in this work, and in 
 this work only, will the practitioner now find the entire law relating to executors 
 and administrators treated in an exhaustive and authoritative fashion, and 
 thoroughly brought down to the present date."— Law Journal. 
 
 Williams' Law relating to Legal Representatives. — Real and 
 Personal. By Sydney E. Williahs, Esq., Author of "Law and 
 Practice relating to Petitions," &o. Demy 8vo. 1899. Cloth, 10s. 
 
 " We can commend to both branches of the profession, and more especially 
 to solicitors." — Law Times. 
 
 " An excellent law book, excellently got up, and though it deals with a subject 
 on which l^ere is an ample literature, its existence is justified by Its aim at being 
 'in as short a form as possible, a summary of the law of legal representatives as 
 modified by the Land Transfer Act, ISm.'"— Fall Matt Gazette. 
 
 FARM, LAW OF. — Dixon's Law of the Farm; including the Cases 
 
 and Statutes relating to the subject ; and the Agricultural Customs 
 
 of England and Wales. Fifth Edition. By Atjbeey J. Spbnoee, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1892. 26s. 
 
 " A complete modem compendium on agricultural matters." — Law Times. 
 
 Fl NANCE ACT.— F^s" Death Duties." 
 
 FIXTURES. — Amos and Ferard on the Law of Fixtures and other 
 Property partaking both of a Real and Personal Nature. Third 
 Edition. By C. A. Feeaed and W. Howland Eobeets, Esqrs., Bar- 
 risters-at-Law. Demy 8to. 1883. 18s. 
 
 %* All standard law Works are kept in Stock, m law calf and other bindings. 
 
119 & 120, OHANOBRT LANE, LONBON, W.O. 15 
 
 FORMS.— Archibald.— r«& " Chamber Practice." 
 
 Bullen and Leake.— Fiifo "Pleading." 
 
 Chitty's Forms of Practical Proceedings in tlie Queen's Bench 
 Division.— Thirteenth Edition. -By T. W. Chittt and Heebeet 
 Chittt, Esqrs., Barriaters-at-Law. {In preparation.) 
 
 Daniell's Forms and Precedents of Proceedings in the Chan- 
 cery Division of the High Court of Justice and on Appeal 
 therefrom.— Fourth Edition. By Chaeibb Btjbney, B. A. , a Chief 
 Clerk of the Hon. Mr. Justice Chitty. Eoyal 8vo, 1886. il. 10s. 
 " The standard work on Chancer? Prooednre."— Jjumi Quarterly Sevieu}. 
 
 Seton,— Vide " Equity." 
 
 FRAUD AND MISREPRESENTATION.— MonoreifPs Treatise 
 on the Law relating to Fraud and Misrepresentation.— By 
 the Hon. F. Monoeeiff, Barrister-at-La-wr. 8vo. 1891. 21s. 
 
 FRENCH CIVIL CODE.— Caohard's French Civil Code.— By 
 Hbnet Oaohaio), B.A., and Counsellor-at-La-w of the New Tork 
 Bar, Licencie en Droit de la Faoulte de Paris. DemySvo. 1895. 20s. 
 Code of Commerce. — Vide " Commercial Law." 
 
 FRENCH COMMERCIAL LAW. — Qoirand's Treatise upon 
 French Commercial Law and the Practice of all the Courts, 
 — With a Theoretical and Practical Commentary. The text of the 
 laws relating thereto, including the entire Code of Commerce, with 
 a Dictionary of French" Judicial Terms. Second Edition. By 
 Leopou) GrOiEAUD, Licencie en droit. Demy 8vo. 1898. 1?. 
 
 FRENCH LAW.— Sewell's Outline of French Law as affecting 
 British Subjects. By J. T. B. Sewell, M.A., LL.D., Solicitor. 
 Demy 8to. 1897. 10s. 6d. 
 
 GAME LAWS, — Warry's Game Laws of England. With an 
 
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 Esq., Barrister-at-Law. Eoyal 12mo. 1896. 10s. Gd. 
 
 ** The author has treated the suhject in a clear and luoid style.*' — Law Times. 
 
 GOLD COAST ORDINANCES,— Griffith's Ordinances of the 
 Gold Coast Colony. — By Sir WiLi.TAivr Beandjoed G-eiffith, 
 Chief Justice of the Gold Coast Colony. 2 vols. Eoy. 8vo. 1898. 3?. 
 
 GOODWILL,— Allan's Law relating to Goodwill,— By ChaeleSE. 
 AiiLAir,!!. A., LL.B., Esq., Barrister-at-Law. DemySvo. 1889. "is.Qd. 
 Sebastian, — Vide "Trade Marks." 
 
 HACKNEY CARRIAGES,— F«?« "Motor Cars." 
 
 HIGHWAYS, — Chambers' Lawrelatingto Highways and Bridges. 
 By Gboeoe F. Chameees, Esq., Barrister-at-Law. 1878. 7s. 6d. 
 
 HOUSE TAX.— Ellis' Guide to the House Tax Acts, for the use of 
 the Payer of Inhabited House Duty in England, — ByAETmra 
 M. Elms, LL.B. (Loud.), Solicitor, Author of " A Guide to the 
 Ineome Tax Acts." Eoyal 12mo. 1885. 6«. 
 
 " We have found the iofonnation accurate, complete and very clearly ex- 
 pressed." — Solicitors' Journal, 
 
 HUSBAND AND WIFE,— Lush's Law of Husband and Wife, 
 within the jurisdiction of the Queen's Bench and Chancery 
 Divisions. By C. Montaotib Lush, Esq., Barrister-at-Law. Second 
 Edition. By the Author and W. H. Geiffith, Esq., Barrister-at- 
 Law. Demy8vo. 1896. IZ. 6s. 
 **To the practising lawyer the work will be of the utmost importance." — Law Times, 
 " This hook will certainly be consulted when dif&culties arise relative to the position 
 of married women." — Law Journal, 
 
 INCOME TAX,— Ellis' Guide to the Income Tax Acts,— For the use 
 
 of the English Income Tax Payer. Third Edition. By Aethub 
 
 M. Ellis, LL.B. (Lond.), Solicitor. Eoyal 12mo. 189.3. 7s. 6rf. 
 
 " Contains in a convenient form the law bearing upon the Income Tax." — Law 
 
 Times. 
 
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16 STEVENS AND SONS, LIMITED, 
 
 INCOME TAX— continued. 
 
 Robinson's 'Law relating to Income Tax j with the Statutes, 
 
 rorms, and Decided Cases in the Courts of England, Scotland, and 
 
 Ireland. — By AETHtrB EoBDfSON, Esq., Barrister-atrLa-w. Royal 
 
 8vo. 1895. 21«. 
 
 '* The standard work on a complicated and difficult subject." — Law JoumoX. 
 
 INDIA.— Ilbert's Government of India,— Being a Digest _ of the 
 Statute Law relating thereto, with Historical Introduction and 
 lUustratiTe Documents. By Sie Coubibnay Ilbeet, K.C.S.I. 
 Demy 8vo. 1898. 21«. 
 
 INLAND REVENUE. — Highmore's Summary Proceedings 
 in Inland Revenue Cases in England and Wales. — Second 
 Edition. By N. J. Hiohmoee, Esq., Barrister-at-Law, and of the 
 Solicitors' Department, Inland Revenue. Roy. 12mo. 1887. Ts.Gd. 
 Highmore's Inland Revenue Regulation Act, 1 890, as amended 
 by the Public Accounts and Charges Act, 1891, and the Knance 
 Act, 1896, with other Acts ; with Notes, Table of Cases, &o. By 
 Nathaotel J. EidHjioEE, Esq., Barrister-at-Law, Assistant Solicitor 
 of Inland Revenue. Demy 8vo. 1896. 7s. 6d. 
 
 INSURANCE. — Arnouldonthe LawoflVlarine Insurance, — Seventh 
 Edition. By Edwaed Louis be Haet and Raxph Iliff Simby, 
 Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. {In preparation.) 
 
 Campbell's Ruling Cases, Vols.XIII. andXIV.— Kiffe "Digests." 
 
 McArthur on the Contract of Marine Insurance, — Third Edit. By 
 Charles MoAethtje, Average Adjuster. {In preparation.) 
 
 Marsden, — Vide "Shipping." 
 
 Tyser's Law relating to Losses under a Policy of Marine Insur- 
 ance, — By Chables Roleet Ttsee, Esq., Barrister-at-Law. Demy 
 8vo. 1894. 10«. 6d. 
 
 " A dear, correct, full, and yet concise statement of the law." — Law Times. 
 INTERNATIONAL LAW,— Baker's First Steps in International 
 Law. Prepared for the Use of Students. By Sir Sheeston Bakbe, 
 Bart., Barrister-at-Law. Demy 8vo. 1899. 12». 
 
 Dicey, — Vide " Conflict of Laws." 
 
 Hall's International Law. — FourthEdit. Demy 8vo. 1895. U.2s.6d. 
 
 Hall's Treatise on the Foreign Powers and Jurisdiction of the 
 British Crown, By W. E. Hall, Esq., Barrister-at-Law. Demy 
 8vo. 1894. 10s. 6d. 
 
 Holland's Studies in International Law, — By Thomas Eeskine 
 Holland, D.C.L., Barrister-at-Law. Demy 8vo. 1898. 10s. 6a!. 
 
 Kent's Commentary on International Law, — Editedby J.T. Abdt, 
 LL.D. Second Edition. Crown 8vo. 1878. ' 10s. 6d. 
 
 Nelson's Private International Law. — By Hobaob Nelson, Esq., 
 Barrister-at-Law. Roy. 8vo. 1889. 21s. 
 
 " The notes are full of matter, and avoid the vice of discursiveness, cases being 
 cited for practically every proposition." — Law Times. 
 
 Rattigan's Private International Law, — By Sir WiLLiiM Henby 
 Rattioan, LL.D., Barrister-at-Law, Vice-Chancellor of the Uni- 
 versity of the Punjab. Demy 8vo. 1895. 10s. 6d. 
 " Written with admirable deamess." — Law Journal. 
 
 Walker's Manual of Public International Law.— ByT. A. Walkee, 
 M.A., LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. 9s. 
 
 Walker's History of the Law of Nations,— Vol. I., from the Earliest 
 Times to the Peace of Westphalia, 1648. By T. A. Walkee, M.A., 
 LL.D., Esq., Barrister-at-Law. Demy 8vo. 1899. Mt 10s. 
 
 Westlake's International Law,— Chapters on the Principles of Inter- 
 national Law. ByJ.WESTLAiE, Q.C., LL.D. DemySvo. 1894. 10s. 
 
 Wheaton's Elements of International Law; Third English Edition. 
 
 Edited with Notes and Appendix of Statutes and Treaties. By 
 
 A. C. Boyd, Esq., Barrister-at-Law. Royal 8vo. 1889. U. 10s. 
 
 " Wheaton stands too high for criticism, whilst Mr. Boyd's merits aa an editor 
 
 are almost as well established."— ioui Times. 
 
 *»• -^11 Standard law Works are kept in Stock, in law calf and other bindingi. 
 
119 & 120, CHANCEEY LANE, LONDON, W.O. 17 
 
 INVESTIGATION OF TITLE,— Jackson and Gosset's Investiga- 
 tion of Title. — Being a Practical Treatise and AlpKabetical Digest 
 of the Law connected "with the Title to Land, "with Precedents of 
 Bequisitions. Second Edition. By W. Howlajsd Jacksok and 
 Thoeold Gosset, Barrieters-at-Law. Lemy 8to. 1899. 12s. 6rf. 
 , '* The new edition contains the following additional subjects— namely, boun- 
 daries, compromise, corporations, glebe lands, parcels, quit-rents and recitals ; 
 and the changes effected by the smtute law of 1899 are noticed in their proper 
 places. . . . Messrs. Jackson and Gosset's book is well worth haTing," — Law 
 Timet, Nov. 18, 1899. 
 
 "Will be of real help to the busy conveyancer."— Law Kotes* 
 *»* See " Conveyancing," p. 6, for companion volume, " Precedents 
 of Purchase and Mortgage Deeds," by the same Authors. 
 
 JOINT STOCKS.— Palmer,— F«e "Company Law," "Conveyanc- 
 ing," and "Winding-up." 
 
 JUDGMENTS AND ORDERS,— Seton,— Ft<f« "Equity." 
 
 JURISPRUDENCE,— Holland's Elements of Jurisprudence.- 
 
 Eighth Edition. ByT. E. Hollaitd, D.C.L. 8vo. 1896. 10s. 6rf. 
 
 Markby's Elements of Law, By Sir "WniTiftiff Maekbt, D.C.L. 
 
 Demy 8vo. 1896. 12«. 6<?. 
 
 JURY LAWS, — Huband's Practical Treatise on the Law relating 
 to the Grand Jury in Criminal Cases, the Coroner's Jury, 
 and the Petty Jury in Ireland. — By Wm. G. Htjeand, Esq., 
 Barrister-at-Law. Eoyal 8vo. 1896. Net 25s. 
 
 JUSTICE OF THE PEACE,— Magistrates Annual Practice for 
 1900, — Being a Compendium of the Law and Practice relating to 
 matters occupying the attention of Courts of Summary Jurisdiction, 
 with an Appendix of Statutes and Kules, List of Punishments, 
 Calendar for Magistrates, &c. By Chables Mllnbe Atkinson, Esq., 
 Stipendiary Magistrate for Leeds. Demy 8vo. 1900. 20s. 
 
 '"An excellent magisterial guide." — Law Journal. 
 
 " Cannot fail to be of great service in any court of summary jurisdiction." — 
 SolicUoTS^ Journal, 
 
 " We can commend the use of the volume to all magisterial benches." — The 
 Field. 
 
 Magistrates'Cases,! 893,1 894,1 895,1 896,1 897,1 898 &1 899,— 
 
 Cases relating to the Poor Law, the Criminal Law, Licensing, and other 
 
 subjects chiefly connected with the duties and office of Magistrates, 
 
 decided in the House of Lords, the Court of Appeal, the Queen's 
 
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 *,* These Reports, pubUshed as part of the Law Journal Reports, 
 
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 Shirley's Magisterial Law. — An Elementary Treatise on Magisterial 
 
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 ByLEONAEDH. "West, LL.D., Solicitor. Demy 8vo. 1896. 7s. 6<;. 
 
 Wigram's Justice's Note-Book, — Containing: a short account of the 
 
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 Seventh Edition . By Hbnbt Waebttbton and Leonabd "W. Keeshaw, 
 
 Esqrs., Barristers-at-Law. Royal 12mo. 1900. 10s. &d. 
 
 " The information given is complete and accurate." — Law Journal, Pebruary 
 
 10, 1900. 
 
 " Contains a great deal of valuable information in a small compass, which has 
 been brought well up to date."— iaw Times, March 3, 1900. 
 
 LAGOS,— Ordinances, and Orders and Rules thereunder, in Force 
 in theColony of Lagos on December 31st, 1893, — By Geoehr 
 Stailaed, Queen's Advocate, and E. H. Riohaeds, District Com- 
 missioner of Lagos. Eoyal 8vo. 1894. Half-calf, i2s. 
 
 LAND LAW,— Jenks' Modern Land Law, ByEDWAim Jenks, Esq., 
 
 Barrister-at-Law. Demy 8vo. 1899. . 16«. 
 
 *»* All standard Law Works are hept in Stocky in law calf and other bindings. 
 
18 STEVENS AUP SONS, LIMITED, 
 
 LAN D TAX,— Bourdin's Land Tax,— An Exposition of the Land Tax. 
 Including the Latest Judicial Decisions, and the Changes in the Law 
 effected by the Taxes Management Act, &o. Fourth Edition. By 
 the late Feedeeiok Humpheets, Deputy Registrar of Land Tax ; and 
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 " Contains not only lengthy and valuable notes and annotations on the Land 
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 LANDLORD and TENANT.— Campbell's Ruling Cases, Vol.XV. 
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 Redman and Lyon's Law of Landlord and Tenant, — Including 
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 " It stands pre-eminent as the chief authority amongst law books on the 
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 Law Notes, June, 1 8 
 
 LANDS CLAUSES ACTS,— Jepson's Lands Clauses Consolida- 
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 Chambers. — Vide "District Councils." 
 
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 LONDON LOCAL GOVERNMENT. — Hunt's London Local 
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 " This very comprehensive and well-arranged code of London Local Govern- 
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 " We heartily recommend Mr. Hunt's work." — County Council Times. 
 
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 " Shows an intimate acquaintance 'with London Government, it is well printed, 
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 " Mr. Hunt deals systematically with all the sections of the Act, and the 
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 LUNACY. — Heywood and Massey's Lunacy Practice. — ByAitTH-DE 
 Hetwood and Aenold Masset, Solicitors. DemySvo. 1900. 7s. 6d. 
 
 " A very useful little handbook, ■which contains a deax account of the practice 
 in lunacy." — Law Journal. 
 
 " An exceedingly useful handbook on lunacy practice." — Law Kntts. 
 
 "A clear and able handbook. . . . A feature of the work are the precedents 
 given, which have nearly all stood the test of actual practice." — Law Times. 
 
 MAGISTRATES' PRACTICE and MAGISTERIAL LMi.— Vide 
 "Justice of the Peace." 
 
 MARINE INSURANCE.— rj<f« "Insurance." 
 
 MARITIME DECISIONS.— Douglas' Maritime Law Decisions.— 
 Compiled by Eobt.E.Douolas. Demy8T0. 1888. Ts.Qd. 
 
 MARRIAGE.— Kelly's French Law of Marriage, Marriage Con- 
 tracts, and Divorce, and the Conflict of Laws arising there- 
 from. Second Edition. By OLrvEEE.BoDiNGTON, Esq., Barrister-at- 
 Law, Licencie en Droit de la Eaculte de Paris. Eoy. 8vo. 1895. 21s. 
 
 MARRIED WOMEN'S PROPERTY.— Lush's Married Women's 
 Rights and Liabilities in relation to Contracts, Torts, and 
 Trusts. By Montague Lush, Esq., Barrister-at-Law, Author of 
 " The Law of Husband and Wife." Eoyal 12mo. 1887. 6s. 
 
 MASTER AND SERVANT.— Macdonell's Law of Master and 
 Servant. Second Edition. By John Maodonell, LL.D., M.A., 
 C.B., Esq., a Master of the Supreme Court. {In preparation.) 
 
 MEDICAL PARTNERSHIPS.-Barnard and Stocker's Medical 
 Partnerships, Transfers, and Assistantships.— By William 
 Baenaed, Esq., Barrister-at-Law, and G. Beeteam Stockee, Esq., 
 Managing Director of the Scholastic, Clerical and Medical Associa- 
 tion (Limited). Demy 8vo. 1896. lOj. 6d. 
 
 *#* A U standard Law Work's are kept in Stock, in law calf and other bindings. 
 
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 MERCANTILE LAW.— Smith's Compendium of IVIeroantile Law, 
 
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 the Supreme Court of Judicature, assisted by Geo. Humpheeys, Esq., 
 
 Barrister- at-Law. 2 vols. Eoyal 8vo. 1890. 11. Is. 
 
 *' Of the greatest value to the mercantile lawyer." — Law Times. 
 
 *' One of the most scientific treatises extant on mercantile law." — Sol. Jl. 
 
 Tudor's Selection of Leading Cases on Mercantile and Maritime 
 Law,— With Notes. By 0. D. Todob, Esq., Barrister-at-Law. 
 Third Edition. Royal 8vo. 1884. 21. 2s. 
 
 Wilson's Mercantile Handbook of the Liabilities of Merchant, 
 Shipowner, and Underwriter on Shipments by General Ves- 
 sels. — By A. Wilson, Solicitor and Notary. Eoyal 12mo. 1883. 6s. 
 
 MERCHANDISE MARKS ACT.— Payn's Merchandise Marks 
 Act,! 887,— By H. Patn, Barrister-at-Law. RoyaU2mo. 1888. 3s. 6d. 
 " A safe gmie to all who are interested in the Act."— £a» Timea. 
 
 METROPOLIS BUILDING ACTS.-Craies' London Building Act, 
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 Craies' London Building Act,1894! with Introduction, Notes, and 
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 MORTGAGE, — Beddoes' Concise Treatise on the Law of Mort- 
 gage. — ByW.E. Beddoes, Esq., Barrister-at-Law. 8vo. 1893. 10s. 
 " Compiled carefully and with discretion," — Law Times. 
 
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 Hypothecations. — By L. G. Gobdon Robbins, Assisted by P. T. 
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 Mortgage." 2 vols. Royal 8vo. 1897. SI. 
 
 "It is not a patched-up edition of an old work ; it is a new book, containing 
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 accurate, comprehensive, and in every way a welcome addition to the standard 
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 "The book is full of useful iof ormation, and will undoubtedly prove of service 
 
 to those who require advice on this subject." — Law Times. 
 
 MUNICIPAL CORPORATIONS,— Bazalgette and Humphreys,— 
 Vide " Local and Municipal Grovemment." 
 Leiy's Law of Municipal Corporations, — By J. M. Lblt, Esq., 
 Barrister-at-Law. Demy 8to. 1882. 15«. 
 
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 DOEE Tbceino, Esq., and C. E. Gnroiir, Esq., Assistant-Paymaster, 
 Eoyal Navy. 12mo. 1377. 12s. 6d. 
 
 NEGLIGENCE, — Smith's Treatise on the Law of Negligence. 
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 NISI PRIUS,— Roscoe's Digest of the Law of Evidence on the 
 
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 Powell, Esq., Barrister-at-Law. 2 vols. Demy 8to. 1891. 2^. 10». 
 
 " Continues to be a vast and closely packed storehouse of information on 
 
 practice at Nisi Prius." — Law Journal. 
 
 NOTARY.— Brooke's Treatise on the Office and Practice of a 
 Notary of England.— WithafuUcoUeotion of Precedents. PifthEd. 
 ByG-.E. Chambees, EBq.,Barrister-at-La-w. DemySvo. 1890. U.U. 
 
 OATHS.— Stringer's Oaths and Affirmations in Great Britain and 
 Ireland; being a Collection of Statutes, Cases, and Forms, with 
 Notes and Practical Directions for the use of Commissioners for Oaths, 
 and of all Courts of Civil Procedure and Offices attached thereto. By 
 Feahcis a. Steinoee, of the Central Office, Royal Courts of Justice, 
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 Crown 8vo. 1893. 4*. 
 
 ** lndi£fpensable to all commiasioners." — Solicitor^ Journal. 
 
 OTTOMAN CIVIL LAW.— Grigsby's IVIedjelle, or Ottoman Civil 
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 Barrister-at-Law. Demy 8to. 1895. 21«. 
 
 PARISH LAW,— Humphreys' Parish Councils, — The Law relating 
 to Parish Councils, being the Local Government Act, 1894 ; with 
 an Appendix of Statutes, together with an Introduction, Notes, and 
 a Copious Index. Second Edition. By Geoehe Humpheets, Esq., 
 Barrister-at-Law, Author of ' ' The Lawrelating to County Councils," 
 &c. Eoyal8vo. 1895. 10». 
 
 Steer's Parish Law. Being a Digest of the Law relating to the 
 Civil and Ecclesiastical Government of Parishes and the Relief of the 
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 Master of the Supreme Court, Registrar of the Court constituted 
 under the Benefices Act, 1898. Demy 8vo. 1899. 20s. 
 
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 " A most useful book of reference on all matters connected with the pariah, 
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 *' Kept in touch "with every recent change." — Law Times. 
 
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 incorporating the Partnership Act, 1890. Sixth Edition. By Sir 
 
 Feedebick Folloce, Bart., Barrister-at-Law. Author of "Principles 
 
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 Gordon's Compulsory Licences under the Patents Acts. By 
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 Patent." DemySvo. 1899. 15s. 
 
 Johnson's Patentees' Manual, — A Treatise on the Law and 
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 eon, Esq., Barrister-at-Law ; and J. Henet Johnson, Solicitor and 
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 PAT EHTS— continued. 
 
 Morris's Patents Conveyancing.— Being a Collection of Precedents 
 m Conveyancing in relation to Letters Patent for Liventions. 
 With Dissertations and Copious Notes on the Law and Practice. By 
 EoBEET MoEBis, Esq., Barrister-at-Law. Royal 8vo. 1887. 11. 5s. 
 
 Thompson's Handbool< of Patent Law of all Countries.— By 
 Wm. p. Thompson. Tenth Edition, with Addendum. 12mo. 1899. 
 
 Mt, 2s. 6d. 
 
 Thompson's Handbook of British Patent Law. Eleventh Edition. 
 12mo. 1899. jfet, 6d. 
 
 PAWNBROKING.— Attenborough's Law of Pawn broking, with 
 the Pawnbrokers Act, 1872, and the Factors Act, 1889, and 
 Notes thereon. By Chaeles L. Attenhoeotjoh, Esq., Barrister- 
 at-Law. Post 8vo. 1897. 3». 
 
 PERSONAL PROPERTY.— Smith,— Kwfe " Eeal Property." 
 
 PLEADING. — Bullen and Leake's Precedents of Pleadings, with 
 Notes and Rules relating to Pleading. Fifth Edition. Revised and 
 Adapted to the Present Practice in the Queen's Bench Division of 
 tlje High Court of Justice. By Thomas J. Bullen, Esq., Barrister- 
 at-Law, Cteil Dodd, Esq., Q.C., and 0. W. Olifmed, Esq., Bar- 
 rister-at-Law. Demy8vo. 1897. 38s. 
 
 " The standard -work on modem pleading." — Law Journal. 
 Odgers' Principles of Pleading, Practice and Procedure in Civil 
 Actions in the High Court of Justice.— Pourth Edition. By W. 
 Blaze OnaEES, LL.D., Q.C., Recorder of 'Winchester, Author of " A 
 Digest of the Law of Libel and Slander." Demy 8vo. {In the press.) 
 
 " The student or practitioner who desires instruction and practical guidance 
 in our modem system of pleading cannot do better than possess himself of 
 Mr. Odgers* book." — Law Jowmal. 
 
 " Incliides a careful outline of the procedure in an ordinary action at law. 
 This sketch -will be of the utmost value to students, and ought to win the ap- 
 proval also of examining bodies, as it is remarkably free from any adaptability to 
 the purposes of the mere crammer. New chapters dealing respectively with par- 
 ties, joinder of causes of action, jurisdiction, trial, appeak, execution, and costs, 
 and an appendix with 120 precedents have been added."— Ziteratere, Nov. 13, 1897. 
 
 POISONS. — Reports of Trials for Murder by Poisoning. — With 
 Chemical Introductions and Notes. By Gr. Latham Beownb, Esq., 
 Barrister-at-Law, and C. Gr. Siewaei, Senior Assistant in the Labo- 
 ratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12s. 6d. 
 
 POWERS, — Farwell on Powers, — A Concise Treatise on Powers. 
 
 Second Edition. By GtEoeoe Faewell, Esq., Q.C., assisted by 
 
 W. R. Sheldon, Esq., Barrister-at-Law. Royal 8vo. 1893. 11. bs. 
 
 " The practitioner and the judge will find it comprehensive and complete." — 
 
 Law Times. 
 
 PRINCIPAL AND AGENT,—Wright's Law of Principal and Agent. 
 By E. B. Weioht, Esq., Barrister-at-Law. Demy 8vo. 1894. 18». 
 
 " Clearly arranged and dearly written." — Law Times. 
 
 " May with confidence be recommended to all legal practitioners as an accu- 
 rate and handy text book on the subjects comprised in it." — Solicitors^ Journal. 
 
 PRIVY COUNCIL LAW.— Wheeler's Privy Council Lawi ASynop- 
 sis of all the Appeals decided by the Judicial Committee (including 
 Indian Appeals) from 1876 to 1891. Together with a precis of the 
 Cases from the Supreme Court of Canada. By Geoeoe Wheelee, 
 Esq., Barrister-at-Law, and of the Judicial Department of the Privy 
 Council. Royal 8vo. 1893. 31s. 6d. 
 
 PROBATE, — Powles and Oakley's Law and Practice relating to 
 Probate and Administration. By L. D. Powleb, Barrister-at- 
 Law, and T. W. H. Oaklet, of the Probate Registry. (Being a 
 Third Edition of " Browne on Probate.") DemySvo. 1892. li. 10«. 
 " Its completeness and accuracy are above all praise." — Law Gazette. 
 
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 PRO PE RTY.— 5ee aUo " Real Property." 
 Raleigh's Outline ofthe Law of Property.— DemySvo. 1890. 7s.6rf. 
 
 Strahan's General View of the Law of Property. — Second Edit. 
 By J. A. Steahan, assisted by J. SiNOiiiiE Baxtke, Esqrs., Barris- 
 tera-at-Law. Demy 8vo. 1897. 12s. 6d. 
 
 " The student ■will not easily find a better general view of the law of property 
 than that which is contained in this book." — Solicitors* Journal^ Dee. 11, 1897. 
 
 *' We know of no better book for the class-room and the student who desires 
 a concise and scientific exposition of our law." — Law Timesy Dec. 11, 1897. 
 
 PUBLIC HEALTH.— Bazalgette and Humphreys.— F»<fe "Local 
 and Mimioipal Government." 
 Hunt. — Vide " London Local Government." 
 
 PUBLIC MEETINGS.— Chambers' Handbook for Public Meet- 
 ings, including Hints as to the Summoning and Management of 
 them. Second Edition. By Geoboe E. Ceaubebs, Esq., Banister- 
 at-Law. Demy Svo. 1886. Mt, 2«. 6rf. 
 
 QUARTER SESSIONS.— &e « Criminal Law." 
 
 RAILWAY RATES.— Darlington's Railway Rates and the Carriage 
 of Merchandise by Railway; including the Provisional Orders of 
 the Board of Trade as sanctioned by Parliament, containing the 
 Classification of TrafSo and Schedule of Maximum Rates and Charges 
 applicable to the Railways of Great Britain and Ireland. By H. R. 
 Dablinqton, Esq., Barrister-at-Law. Demy Svo. 1893. 1?. 6s. 
 
 RAILWAYS.— Browne and Theobald's Law of Railway Com- 
 panies. — Being a Collection of the Acts and Orders relating to 
 Railway Companies in Great Britain and Ireland, with Notes of all 
 the Cases decided thereon. Third Edition. By J. H. Bauoub 
 Beowme, Esq., one of Her Majesty's Counsel, and Fbank BAiiPOUE 
 Beowne, Esq., Barrister-at-Law. Royal Svo. 1899. 21. 2s. 
 
 " Contains in a very concise form the whole law of railways."— !rae Times. 
 
 *'It is difficult to find in this work any subject in connection with railways 
 ■which ia not dealt with." — Law Times, Nov. 18, 1899. 
 
 " Practitioners who require a comprehensive treatise on railway law will find it 
 indispensable." — Law Joumalf Nov. 18, 1899. 
 
 RATES AND RATING.— Castle's Law and Practice of Rating.— 
 Third Edition. By Edwaed James CASiiai, Esq., one of Her 
 Majesty's Counsel. Demy 8vo. 1896. 25s. 
 
 " A sure and safe guide, avoiding all speculation as to what the law might 
 be." — Caw Magazine. 
 
 " Mr. Castle's book has hitherto held a very high place, and the success that 
 has attended it seems assiu'ed to the new edition." — Law Journal. 
 
 " A compendious treatise, which has earned the goodwill of the Profession on 
 account of its conciseness, its lucidity, and its accuracy." — Law Times. 
 
 Chambers' Law relating to Local Rates; with especial reference 
 to the Powers and Duties of Rate-levying Local Authorities, and 
 their Officers ; comprising the Statutes in fuU and a Digest of 718 
 Cases. Second Edition. By G. F. Chambeeb, Esq., Barrister-at- 
 Law. Royal 8vo. 1889. 10s. 6d. 
 
 REAL PROPERTY.— Digby's History of the Law of Real Pro- 
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 Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1888. 3/. 15s. 
 
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 we humbly concur in iiiat opinion." — Law Quarterly Review. 
 
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 Mortgages of Land,— Second Edition. By "W. L. Haoon, Esq., 
 
 Barrister-at-Law. Demy8vo. 1893. 10s. 6rf. 
 
 " The most skilled in practical conveyancing would gain many useful hints 
 
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 VENDORS AND PURCHASERS— continued. 
 
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 rister-at-Law. Demy 8vo. 1898. iv«< 2». 
 
 WILLS. — Theobald's Concise Treatise on the Law of Wills, — 
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 " Comprehensive though easy to use, and we advise all conveyancers to get a 
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 the study of the subject with which it deals." — Law Student's Journal. 
 
 Weaver's Precedents of Wills, — ^A Collection of Concise Freoedenta 
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 By CHAEuaa Wbatee, B.A. Post 8to. 1882. 6». 
 
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