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would give a cause of action against an individual. He cites Sir William Erle in support of his proposition, who clearly is speaking of acts wheh would be actionable in an individual, and there is no such act here. The master of the rolls says the lowering of the freight far beyond a lowering for any purpose of trade was not an act done in the exercise of their own free right of trade, but for the purpose of interfering with the plaintiffs' right to a free course of trade; therefore a wrongful act as against the plaintiffs' right; and as injury to the plaintiff's followed, they had a right of action. I can not agree. If there were two shopkeepers in a village and one sold an article at cost price, rot for profit therefore, but to attract customers or cause his rival to leave off selling the article only, it could not be said he was liable to an action. I can not think that the defendants did more than they had a legal right to do. i adopt the vigorous language and opinion of Fry, L. J.: To draw a line between fair and unfair competition, between what is reasonable and unreasonable. passes the power of the courts.'' It is a strong thing for the plaintiffs to complain of the very practices they wished to share in, and once did. "I am of opinion that the judgment should be affirmed."
Lord MacNaghten: “My lords, for myself I agree entirely in the motion which had been proposed, and in the reasons assigned for it in the judgments which have been delivered, and in those which are yet to be delivered ; and I do not think I can usefully add anything of my own."
Lord Morris : “ My lords, the facts of this case demonstrate that the defendants had no other or further object than to appropriate the trade of the plaintiffs. The means used were: Firstly, a rebate to those who dealt exclusively with them; secondly, the sending of ships to compete with the plaintiffs' ships; thirdly, the lowering of the freights; fourthly, the indemnifying other vessels that would compete with the plaintiffs'; fifthly, the dismissal of agents who were acting for them and the plaintiffs.
“ The object was a lawful one. It is not illegal for a trader to aim at drir. ing a competitor out of trade provided the motive be his own gain by appropriation of the trade and the means he uses be lawful weapons. Of the first four of the means used by the defendants, the rebate to customers and the lowering of the freights are the same in principle, being a bonus by the de. fendants to customers to come and deal exclusively with them. The sending of ships to compete and the indemnifying other ships was the competition 'elltered on by the defendants with the plaintiffs. The fifth means used, viz. the dismissal of agents, might be questionable according to the circumstances; but in the present case the agents filled an irreconcilable position in being agents for the two rivals, the plaintiffs and the defendants. Dismissal under such circumstances became, perhaps, a necessary incident of the warfare in trade.
"All the acts done and the means used by the defendants were acts of competition for the trade. There was nothing in the defendants' acts to disturb any existing contract of the plaintiffs or to induce anyone to break such. Their action was aimed at making it unlikely that anyone would enter into contracts with the plaintiff's, the defendants offering such competitive induce ments as would probably prevent them. The use of rhetorical phrases in the correspondence can not affect the real substance and meaning of it.
"Again, what one trader may do in respect of competition a body or set of traders can lawfully do; otherwise a large capitalist could do what a number of small capitalists, combining together, could not do. And thus a blow would be struck at the very principle of cooperation and joint-stock enterprise. I entertain no doubt that a body of traders whose motive object is to promote their own trade can combine to acquire, and thereby in so far to injure the trade of competitors, provided they do no more than is incident to such motive object, and use no unlawful means. And the defendants' case clearly comes within the principle I have stated.
* Now, as to the contention that the combination was in restraint of trade and therefore illegal. In the first place, was it in restraint of trade? It was a voluntary combination. It was not to continue for any fixed period, nor was there any penalty attached to a breach of the engagement. The operation of attempting to exclude others from the trade might be, and was, in fact, bene
: 23 Q. B. D., 625, 626.
ficial to freighters. Whenever a monopoly was likely to arise, with a consequent rise of rates, competition would naturally arise.
"I can not see why judges should be considered specially gifted with prescience of what may hamper or what may increase trade, or of what is to be the test of adequate remuneration. In these days of instant communication with almost all parts of the world, competition is the life of trade, and I am not aware of any stage of competition called 'fair' intermediate between lawful and unlawful. The question of "fairness' would be relegated to the idiosyncrasies of individual judges. I can see no limit to competition, except that you shall not invade the rights of another.
But suppose the combination in this case was such as might be held to be in restraint of trade, what follows? It could not be enforced. None of the parties to it could sue each other. It might be held void because its tendency might be held to be against the public interests. Does that make, per se, the combination illegal? What a fallacy would it be that what is void and not enforce:ble becomes a crime; and cases abound of agreements which the law would not enforce, but which are not illegal; which you may enter into, if you like, but which you will not get any assistance to enforce.
“My lords, I have merely summarized my views, because I adopt entirely the principles laid down by Lord Justice Bowen in his judgment with such felicitous illustrations, and I concur in the opinion already announced by your lordships, that the judgment of the court of appeal should be affirmed."
Lord Field: “My lords, I think that this appeal made be decided upon the principles laid down by Holt, C. J., as far back as the case of Keeble v. Hickeringill, cited for the appellants. In that case the plaintiff complained of the disturbance of his 'decoy' by the defendant having discharged guns near to it and so driven away the wild fowl, with the intention and effect of the consequent injury to his trade. Upon the trial a verdict passed for the plaintiff, but in arrest of judgment it was alleged that the declaration did not disclose any cause for action. Holt, C. J., however, held that the action, although new in instance, was not new in reason or principle, and well lay, for he said that the use of a 'decoy' was a lawful trade, and that he who hinders another in his trade or livelihood is liable to an action if the injury is caused by 'a violent or malicious act'; sppose, ‘for instance,' he said, the defendant had shot in his own ground, if he had occasion to shoot it rould have been one thing, but to shoot on purpose to damage the plaintiff is another thing and a wrong. But, he added, if the defendant, using the same employment as the plaintiff,' had set up another decoy so near as to spoil the plaintiff's custom, no action would lie, because the defendant bad 'as much liberty to make and use a decoy' as the plaintiff In support of this view he referred to earlier authorities. In one of them it had been held that for the setting up of a new school to the damage of an ancient one by alluring the scholars no action would lie, although it would have been otherwise if the scholars had been driven away by violence or threats.
“ It follows. therefore, from this authority, and is undoubted law, not only that it is not every act causing damage to another in his trade, nor even every intentional act of such damage, which is actionable, but also that acts done by a trader in the lawful way of his business, although by the necessary results of effective competition interfering injuriously with the trade of another, are not the subject of any action.
“ Of course it is otherwise, as pointed out by Lord Holt, if the acts complained of, although done in the way and under the guise of competition or other lawful right, are in themselves violent or purely malicious, or have for their ultimate object injury to another froin ill will to him and not the pursuit of lawful rights. No doubt, also, there have been cases in which agreements to do acts injurious to others have been held to be indictable as amounting to conspiracy, the ultimate object or the means being unlawful, although if done by an individual no such consequence would have followed, but I think that in all such cases it will be found that there existeil either an alternate object of malice, or wroug, or wrongful means of execution, involving elements of injury to the public, or, at least, negativing the pursuit of a lawful object.
“Now, applying these principles to the case before your lordships, it appears upon the evidence that the appellants and respondents are shipowners and
111 Mod., 74, 134, and note to Carrington v. Taylor, 11 East., 574.
have for many years been engaged, sometimes in alliance and other times in competition, in the carrying trade of the eastern seas to and from Europe and elsewhere. A very important portion of this trade consists of a large amount of freight to be earned at the ports of Haukow and Shanghai during the seas by carrying to Europe the teas brought there for shipment, and it was of the respondents' action in that business during the season of ISSJ that the appellants complained. They do not allege that the respondents have been guilty of any act of fraud or violence or of any physical obstructiou to the appellants' business, or have acted from any personal malice or ill will, but they say that the respondents acted with the calculated intention and purpose of driving the appellants out of the Hankow season carrying trade by a course of coudret which, although not amounting to violence, was equally effective, and so. being in fact productive of injury to them, was wrongful and presumably malicious
“ It appea red upon the evidence that both parties have been for some years trading in competition at Hankow for tea freights, which amounted to a very considerable sum, and the earning of which was spread over a short annual season. The trade was carried on by a large number of independent slipowners, and the tonnage which was employed may be roughly divided into two classes: First, tonnage engaged in regular lines to and from ports in the China and Japan Seas all the year through, loading both outward and inward; and. secondly, tonnage. loading generally outward to ports in Australia or elsea where, and only seeking freights and taking up homeward' bertlis at Hankut during the short period when freights are abundant there and scarce elsewhere. The several respondents and the Messageries Maritimes of France represent substantially the first class of shipowners. The appellants and other shipowners, who are not parties to this record, but some of whom were in alliauce with the appellants in the same interest, forming a very influential class of traders, may be taken to represent the second.
" The two ports of Hankow and Shanghai are the centers of these competing interests, and it is hardly necessary to add that the competition was very severe, and the accumulation of tonnage for ‘homeward' freight produced by the circulation of an excessive number of ships rendered rates so unremunerative that in each of the years 1879, 18S3, and 1855, a combination of shipowners, known as a 'conference,' was formed, consisting, in the main, of the first class of owners, with the object of limiting the amount of tonnage to be sent up the river, and thus securing enhancement and regularity of rates.
" That the parties to these agreements did not suppose that they were doing anything violent or malicious, or were parties to a conspiracy, rendering themselves liable to action or indictment, is clear from the fact that in 1879 Jessrs. Gellatly & Co., who then owned the ships of which the appellants are now the owners, and in 1957 the appellants (whose managers Messrs. Gellitly were and are) were parties to them, and in 1885 desired to become so, and only brought their present action, because the other parties to the conference of that year refused to extend its provisions to them and others in the same cila mercial position.
* The grounds upon which this refusal was based by the respondents were purely of a commercial and in no way of a personal character. They said that in forming what they considered as the regular China and Japan trade out and home they supplied the trade with tonnage in season and out of season, and that it was hard upon them that at times when cargo necessary for their require ments, in order to fill the space required for outward shipments and to make their adventure remunerative, was to be obtained. that cargo should be absorbed by vessels that only entered the trade when trade homewards was slack eisewhere.
" It is absolutely unnecessary to consider whether these grounds were morally or commercialiy justitiable. They were not unlawful, and they were of a nature legitimately, if not necessarily, to be taken into account in carrying on the respondents' business with profit. Indeed, the question between the parties at that time was not whether such combination should exist or not, but where the line should be drawn. It was in this state of things that the season of 1885 opened.
- Under the conference agreement of 1884 it had been agreed between the conference owners and the appellants that the latter should load homewards from Hankow for that season two of their Australian outward-going ships ujon conference terms and rates; and when in the latter part of 1884 negotiations were set on foot for the establishment of a conference in 1885, the appellants were desirous of at least retaining the same position in future. They therefore requested Mr. Holt, one of the respondents, an influential member of the conference and personal friend of Mr. Gellatly, to bring the matter before them. In the meanwhile the effect of unrestricted competition had been such as to produce what was termed a collapse of freights,' with the result that negotiations for a new conference ended in an agreement to that effect, bearing date the 7th of April, the terms of which were in most, if not in all, important respects similar to the agreement of 1884.
“ The first object of the parties to this agreement was to limit as between themselves the number of ships, and it therefore provided that if no other ships than those of the conference owners went no more than six conference ships should go up the river to Hankow; but, then, in order to meet the present competition of the appellants and others, it was provided that, if 'outsiders' started, additional steamers should meet them, such conference steamers to be limited in number 'as much as was consistent with effective opposition. Principles were also laid down for rates of freight and distribution of cargo and freights among conference owners, and in order to induce shippers to ship with them exclusively it was provided that returns should be made upon the same terms as previously arranged by the agreement of 1884 (to which the appellants had been parties) to all exporters who should confine their shipments to conference ships.
“ Whilst the negotiations for this agreement were pending, Mr. Gellatly, a large shareholder in the appellant company, in company with Mr. Thompson, a shipowner with large tonnage at command, who was also desirous of becoming a member of the conference, had both correspondence and interviews with sereral of the conference owners, in which they claimed to be admitted to the terms of it, but the latter persistently objected upon the ground that I have before stated, and in the result Mr. Gellatly and Mr. Thompson declared that their vessels should certainly go up to Hankow the ensuing season, as, no matter what the rates were, they thought (as, indeed, appears to have been the result) that the loss to the conference would be greater than to them.
“No agreement could therefore be come to between the two parties, and in the result the appellants and Mr. Thompson placed ships of very considerable tonnage, which had made their outward voyage to Australian ports, upon the Hankow berth, and the respondents sent up the additional ships provided for by the conference agreement, not only to compete with the appellants' and Mr. Thompson's ships, but also to deter others from following.
“ On the 11th of May the respondents also sent out a circular to shippers, referring to a similar circular issued under the conference agreement of 1884, by which they reminded those to whom it was sent that shipments from London by the steamships Pathan and Afghan (two of the appellants' ships) and the Aberdeen (Mr. Thompson's), or by other nonconference steamers, at any of the ports in China or at Hongkong would exclude those making such shipments from participation in the returns to shippers.
“ The competition thus created was persisted in during the whole first tea season, each party procuring, or endeavoring to procure, freights, and circulating their ships at reduced rates, with the result that the three opposing ships of the appellants and Mr. Thompson, the Pathan, the Afghan, and the Aberdeen, loaded full cargoes home at very low rates, and many of the conference ships had to go away empty.
“ It was under these circumstances that the appellants brought the present action, in which they in substance complain, first, of the return of 5 per cent to the shippers who have not shipped with the appellants, and of the circular to that effect; secondly, of the placing upon the berths of extra ships, in order to meet the appellants' and other vessels; and thirdly, the reduction of freights to an unremunerative extent with the object of securing cargo. I fail, however, to see that any of those things are sufficient to support this action. Everything that was done by the respondents was done in the exercise of their rights to carry on their own trade, and was bona fide so done. There was not only no ma lice or indirect object in fact, but the existence of the right to exercise a lawful employment, in the pursuance of which the respondents acted, negatives the presumption of malice which arises when the purposed infliction of loss and injury upon another can not be attributed to any legitimate cause, and is therefore presumably due to nothing but its obvious object of harm. All the acts complained of were in themselves lawful, and if they caused loss to the appellants, that was one of the necessary results of competition.
“ It remains to consider the further contention of the appellants that these acts of the respondents, even if lawful in themselves, if done by an individual, are illegal and give rise to an action as having been done in the execution of the conference agreement, which is said to amount to a conspiracy, as being in restraint of trade, and so against public policy and illegal; but this contention, I think, also failed. I can not say upon the evidence that the agreement in question was calculated to have or had any such result, nor, even if it had. has any authority (except one, no doubt entitled to great weight. but which has not met with general approval) been cited to show that such an agreement, even if roid, is illegal, nor any that, even if it be so, any action lies by an individual.
* For these and the other reasons given by the learned lords, Justices Bowen and Frey, and which I need not recapitulate, I think that the appeal fails and ought to be dismissed."
Lord Hannen': "My lords, it is not necessary that I should recapitulate the facts of this case; they have been fully stated in the opinions which have been already delivered. The charge against the defendants is that they conspired together to prevent the plaintiffs from obtaining cargoes for their ships by bribing, coercing, and inducing shippers to forbear from shipping cargoes by the plaintiffs steamers and it is further complained that the defendants, with intent to injure the plaintiffs, agreed to refuse and refused to accept cargoes, except upon the terms that the shippers should not ship any cargoes by the plaintiffs' stea mers.
“The means by which these alleged objects were sought to be attained were: (1) Offering to shippers and their agents a rebate of 5 per cent on the agreed freights, to be made to those who, during a fixed period, shipped only by the defendants' steamers; (2) sending steamers to Hankow to compete with the steamers of persons not members of the defendants' conference or combination, so as to drive them from the trade of that place; (3) removing from the agency of defendants' steamers those persons who acted in the interests of nonconferenca steamers.
" It was contended that the agreement between the defendants to act in combination, which was proved to exist, was illegal, as being in restraint of trade. I think that it was so, in the sense that it was void, and could not have been enforced against any of the defendants who might have violated it. (Ililto:it. Behersleri'; But it does follow that the entering into stihi :n agnyment would, as contended, subject the persons doing so to an indictment for conspiracy, and I think that the opinion to that effect, expressed by Crompton, J., in Kelton 1. Eckersley'is erroneous.
" The question, however, raised for our consideration in this case is whether a person who has suffered loss in his business by the joint action of those who have entered into such an agreement car recover climages from them for the injury so sustained. In considering this question it is necessary to determine upon the evidence what was the object of the agreement between the defendants and what were the means by which they sought to attain their object. It appears to me that their object was to secure to themselves the benefits of the carrying trade from certain ports. It can not, I think, be reasonably suggested that this is unlawf; in any sense of the word. The object of every trail is tu procure for himself as large a share of the trade he is engaged in as he can. If, then, the object of the defendants was legitimate, were the means adopted by them open to objection? I can not see that they were. They sought to induce shippers to employ them rather than the plaintiff's by offering to such shippers as should, during a fixed period, deal exclusively with them the advantage of a rebate upon the freights they had paid. This is, in effect nothing more than the ordinary form of competition between traders by offering goods or services at a cheaper rate than their rivals.
“ With regard to the sending of ships to Hankow to compete with the plaintiffs' ships, that appears to have been done in order that the defendants es tomers might have the opportunity of sending their goods without forfeiting their right to a rebate. No obstruction was offered by these ships of nonconference owners, and by their presence at Hankow shippers were left simply to determine whether it was to their pecuniary interest to ship by the defendants' vessels or by others. The removing from the agency of the defendants' visseis those persons who acted in the interest of nopconference steamers ar pears to me a legitimate mode of securing agents whose exertions would be exclusively devoted to the furtherance of the defendants' trade.
16 E. & B., 47.