there may be loose silt, through which a vessel can come with comparative ease. At the same time if you measure the height of the water strictly, if you measure it from the surface of that silt, you may show a depth outside the dock not quite the full depth of the water measured on the sill, and therefore to say there was an absolute warranty that the water outside the dock would be exactly the same depth as the water on the dock sill might be to put it too high, and that the real warranty was a warranty of accessibility which could be fulfilled, even if there were a less depth outside, provided it was caused only by such obstruction as silt, which would not really interfere with the accessibility, although technically you meant to say there was a little less outside than in. That is why the word "approximating" is brought in there. The explanation is that what it is dealing with is not the exact corresponding measurement of depth outside and in, but the possibility of accessibility-that is the point of the case. A statement made for people to act upon as to depth of water on the sill carries with it an implication that it is accessible for vessels loaded up to the standard indicated, and it is only by treating that as the precise depth that you get the difficulty raised by the fact that they had only 6in. less at the bar. I have pointed out that 6in. less at the bar is not in any sense an approximation to the full 22ft. on the sill, because where you have the water agitated you have a totally different proposition. You have to get your minimum assured depth at the bar up to the level of the sill. You do not get that where you have fluctuating water which is either 6in. more or 6in. less-you do not get your irreducible minimum at the bar up to the minimum on the dock sill.

Now, to imply a warranty from all the circumstances of the case, as shown by the passage read from the judgment of Lord Bowen, you have to ascertain what was present to the minds of the parties when they entered into the transaction. It is easy in the one case to infer an absolute warranty when a person is undertaking that which is entirely within his means of observation and means of control. It is more difficult to import an absolute contractual obligation where you are dealing with something as to which he has not every moment of the day absolute means of knowledge or certainty of control, and where the conditions at the entrance of a harbour are such that at some states of the weather it is not possible physically to inform himself of the exact condition of things you would not infer such a warranty as that.

But whatever standard of warranty is taken in this case, I wish to point out that the evidence is abundant that there was a failure on the part of the defendants to perform their obligation. The particular spot where the difficulty arose here is not, as suggested by Mr. Tindal Atkinson, outside the harbour; it is just inside these walls, and it seems to me very probable-I believe there is no express evidence about it in the case-that the condition of this so-called bar, which certainly was not a bar of a river, was brought about by the shifting currents and winds, brought about by the introduction of those artificial elements into the condition which obtained in the space bounded by these two walls running out to sea and inclosing the harbour. It was not a bar in the proper

sense. It was the shifting sand and silt inside brought about by the action of the tide and the currents, and inside the harbour unquestionably it was within the sphere of their statutory obligation, and it is not denied that they had the means of dealing with it. Assuming the obligation of dealing with it in the circumstances of this case, they did not perform their obligation up to a reasonable standard according to the findings of the learned judge, and therefore in this case there has been a falling off on the part of the defendants to which the detention of this vessel was attributable. Therefore it seems to me the judgment of the learned judge was absolutely right.

COZENS-HARDY, L.J.-I am of the same opinion. The Master of the Rolls has said, and anything to the judgment of Jelf, J. I entirely agree, that it was difficult to add If that was difficult, I find it impossible to add anything to the judgment of the Master of the Rolls. I had intended to state in my own words the reasons which influenced me in hold. ing that this appeal should be dismissed, but I now think I should be best doing my duty by saying that for the reasons assigned by the Master of the Rolls I think the appeal fails.

FARWELL, L.J.-I am of the same opinion. Perhaps, after what my brother, Cozens-Hardy, L.J., has said, it is really rash for me to add anything; but as I have attempted to formulate two propositions of law in this case, I will venture to state them. It is admitted that the docks and the access thereto are part of the undertaking of the commissioners in respect of which they had statutory duties. Now, a corporation authorised by statute to maintain and keep open a dock and to charge a toll for its use is under an obligation at common law to take reasonable care to keep the access thereto so far as such access is vested in them or under their control free from obstacle, so that the public may use it without danger, whether such tolls are taken for the private benefit of the corporation or in performing a public duty bringing in a profit to the corporation. The authorities for that proposition are Mersey Docks and Harbour Board Trustees v. Gibbs, already referred to by the Master of the Rolls, and The Bearn (10 Asp. Mar. Law Cas. 208; 94 L. T. Rep. 265; (1906) P. 48). principle has also been extended to the executive government in New Zealand in Reg. v. Williams (51 L. T. Rep. 546; (1884) 9 App. Cas. 418), and the case is stronger when, as in the Act of 1830, the commissioners are not merely empowered, but, as in the case of Parnaby v. Lancaster Canal Company (11 A. & E. 223), are required, amongst other things, to remove all obstructions that may in any way impede naviga. tion or use of the port or haven, nor is it any answer to say, as has been argued here, that the defendants were not idle, but were employing their resources in other parts of the undertaking. Blackburn, J. dealt with that argument in Mersey Docks and Harbour Board Trustees v. Gibbs (ubi sup.). At 14 L. T. Rep. 679; L. Rep. 1 H. L. 107 he said: "It is obvious that a shipowner who pays dock rates for the use of the dock, or the owner of goods who pays warehouse rates for the use of a warehouse and the services of the warehouse

The

CT. OF APP.]

men, is, as far as he is concerned, exactly in the same position, however the rates may be appropriated. He pays the rates for the dock accommodation, or for warehouse accommodation and services, and he is entitled to expect that reasonable care should be taken that he shall not be exposed to danger in using the accommodation for which he has paid."

Whatever may be the difficulty of formulating any rule as to the depth of water that may be required by ships desiring to enter a dock, I think it follows, as a necessary corollary to the rule stated above, there is a further obligation to take reasonable care to keep the approaches to the dock clear to a depth sufficient to allow every vessel received into the dock to leave again with a full load under normal conditions of wind and weather. It is necessary for this purpose to dredge a channel through the so-called bar at the pier heads and to keep the channel clear. That is a finding of fact of the learned judge in the present case with which I entirely agree. In the present case Jelf, J. has found as a fact that such reasonable care was not taken. The Master of the Rolls has shown why he agrees, and I can only say I entirely agree with his conclusions and those of the learned judge. So much for the first cause of action.

The second cause of action on warranty arose in this way. The warranty originally pleaded was contained in a book of 1896. The pleadings are to be taken as amended by pleading the warranty contained in the advertisement of 1904, and the learned judge accepted the evidence of the plaintiffs that they contracted on the faith of that statement. If a dockowner for his own profit invites shipowners to bring their ships into docks on a statement that there is a minimum depth of water on the sill in the dock he thereby impliedly warrants that there is access in normal conditions of weather to and from his dock to the open sea for ships loaded as full as is reasonably proper, having regard to the depth of the water alleged by the defendants to exist in such docks. The depth of the channel by which such access is gained must vary according to circumstances. The case of Williams V. Swansea Harbour Trustees (ubi sup.), to which the Master of the Rolls has referred, turned, of course, on the declaration alleged in that case of a specified depth of 26ft. and 23ft. at the highest spring tides and 15ft. at the lowest neaps. But, in my opinion, the court there evidently intended to form the sensible proposition that what was warranted was access, not a particular depth, which might vary more or less, varying to the lowest so as not to give access, which would be an absurdity. There is one passage in the report of the judgment of Erle, C.J. which looks at first sight as though he was referring to the specific depth mentioned there, and I venture to suggest that two or three words have dropped out of that sentence. The passage is this: "That I construe to amount to a warranty that ships wishing to use the dock would find an accessible entrance thereto of that depth, and that their contract was broken if that was not so." I should prefer to read: "Would find an accessible entrance thereto for ships requiring dock accommodation of that depth," which would make that proposition, in my opinion, perfectly intelligible. The gist of

[CT. OF APP.

the warranty is, to my mind, the possibility of access, not any specified depth. It may be approximating, but only so far as the smaller depth is concerned with the possibility of ingress or egress. We were pressed with the argument of hardship on the owner, but in a case of implied contract, as Lord Bowen said in the case of The Moorcock (6 Asp. Mar. Law Cas. 357, 373 (1889); 60 L. T. Rep. 654; 14 P. Div. 64) : "In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended, at all events, by both parties, who are business men." You have on the one side the dockowner, who can, if he pleases to do so, limit his liability by stating, "I will not warrant this depth; I will only say this is the depth on the sill, and I will make no warranty as to your being able to get in "-he can protect himself if he desires. On the other hand, you have the shipowner who, seeing the statement without any qualification, comes to the harbour, and is it to be expected if he gets in that he would stay there indefinitely, or until they clear the channel for him, or, if he is outside, that he would stand off, or possibly anchor his vessel off the shore, until he can get in? Treating Lord Bowen's view as the test, it appears to me the warranty is what would reasonably be expected, and one which the dockowners would not, I venture to think, withdraw, because it would possibly injure the use of their port. So far as regards the particular case, I think it is material, as Mr. Hamilton has pointed out, that there never has been a sudden silting up which would render it unreasonable for the dockowners to warrant this at all times and in all circumstances; there has never been any time until within the last twelve months, so far as the evidence goes during the fifty years or so that the dock has been opened, in keeping this dock open in the way in which it should be kept open. I therefore agree that this appeal should be dismissed with

serve

on com

Seaman Wages Contract to mercial voyage-Ship carrying contraband of war-Ultimate destination communicated to seamen in course of voyage-Refusal of seamen to proceed with voyage-Conviction-EstoppelClaim for wages and maintenance-Merchant Shipping Act 1894 (57 & 58 Vict. c. 60), s. 134. Seamen who knew that war had been declared between Russia and Japan signed on for a voyage not exceeding three years in the defen dants' ship to Hong Kong and (or) any ports (a) Reported by E. MANLEY SMITH, Esq., Barrister-at-La

seamen.

The seamen sued the shipowners for wages from the time they were put ashore at Hong Kong and for damages.

Held, that, the agreement being only to serve on a commercial or mercantile voyage, involving the risks incident to such a voyage, the seamen were justified in refusing to run the further risks which would have been entailed by their proceeding with the ship to the Japanese port, and that, under sect. 134 of the Merchant Shipping Act 1894, they were entitled to wages up to the date of the judgment of this court.

Held, also, that the seamen were not estopped by their conviction at Hong Kong from contending, as against the defendants, that their conduct at Hong Kong was lawful.

Held, also, that the seamen could not, in the circumstances, recover general damages. APPEAL by the defendants and cross-appeal by the plaintiffs from the judgment of Lawrence, J. at the trial of the action without a jury.

The plaintiffs had served on board the defendants' steamship Franklyn, and brought this action to recover wages and damages under the following circumstances:

In 1904 war was declared between Russia and Japan, and in March of that year notices were published in the London Gazette that the Russian Government had declared neutral vessels liable to confiscation if carrying contraband of war to a Japanese port, and had declared coal to be contraband of war.

On the 5th Dec. 1904 the plaintiffs agreed at Cardiff to serve as seamen on the Franklyn on a voyage, not exceeding three years in duration, to any ports within the limits of 75 degrees north and 60 degrees south latitude, commencing at Glasgow, proceeding thence via Barry to Hong Kong, and (or) any other ports within the above limits, trading in any rotation, and to end at such port in the United Kingdom or Continent of Europe, within home trade limits, as might be required by the master.

The ship was loaded with a cargo of coal and then proceeded to Hong Kong.

At Hong Kong the plaintiffs were informed that the ship would proceed to Sasebo, a naval base in Japan, and a port within the abovementioned limits. Thereupon they refused to proceed further in the ship. The master put them ashore, and they were convicted by the magistrate under sect. 225 of the Merchant Shipping Act 1894 of having conspired to impede

the progress of the voyage, and were sentenced to seventy days' imprisonment. The magistrates also put a "D" on their discharge papers.

On the 1st May 1905 they were released from prison, and were afterwards sent back to England as distressed seamen.

At the trial of the action without a jury Lawrance, J. held that the plaintiffs were entitled to recover wages and maintenance from their conviction at Hong Kong down to the time of their arrival in England.

The defendants appealed, and there was also a cross-appeal by the plaintiffs on the ground that they were entitled to wages and maintenance down to the time that the court gave judgment in their favour, and to damages for what had occurred in the matter of their conviction at Hong Kong.

The Merchant Shipping Act 1894 (57 & 58 Vict. c. 60) provides :

Sect. 134. In the case of foreign-going ships (other than ships employed on voyages for which seamen by the terms of their agreement are wholly compensated by a share in the profits of the adventure) (c) In the event of the seaman's wages or any part thereof not being paid or settled as in this section mentioned, then, unless the delay is due to the act or default of the seaman, or to any reasonable dispute as to liability, or to any other cause not being the wrongful act or default of the owner or master, the seaman's wages shall continue to run and be payable until the time of the final settlement thereof.

Dec. 14 and 15.-J. A. Hamilton, K.C. and Dawson Miller for the defendants.-The agreement made by the plaintiffs to serve on this voyage was in accordance with the requirements of sect. 114 of the Merchant Shipping Act 1894. There is nothing in the articles which justified their refusal to proceed from Hong Kong to Sasebo. They knew that the ship was to carry contraband of war before they signed on. They could not refuse to go to a port within the region of war which was within the geographical limits within which they had contracted to go. This is not a case where the seamen were required to do something illegal by the law of England, such as to commit a breach of the Foreign Enlistment Act:

Burton v. Pinkerton, 2 Mar. Law Cas. O. S. 494, 547 (1867); 17 L. T. Rep. 15; L. Rep. 2 Ex. 340; O'Neill v. Armstrong, Mitchell, and Co., 8 Asp. Mar. Law Cas. 8, 63 (1895); 73 L. T. Rep. 178; (1895) 2 Q. B. 418.

Such cases as those are distinguishable. According to English law it is a perfectly lawful adventure to carry contraband goods to a belligerent:

Ex parte Chavasse; Re Grazebrook, 2 Mar. Law Cas. O. S. 197 (1865); 12 L. T. Rep. 249; 4 De G. J. & S. 655; 11 Jur. N. S. 400. The seamen contracted to run what risk there was in such an adventure :

The Neutralitet, 3 Chr. Rob. 294. There is no evidence here of any exceptional peril that was not known to exist when the articles were signed, except that the plaintiffs did not know that Sasebo was the port to which the ship was to go. There is no evidence that there was at any time any danger from the Russian fleet. There is nothing but the plaintiffs' own apprehensions. Seamen engaging for a commercial

CT. OF APP.]

less than the danger of running a blockade, it seems to me that the same priniciple applies. The voyage from Hong Kong ceased to be an ordinary commercial voyage, such as alone was contemplated by the agreement. The sailors ought to have been told what was the destination of the cargo, which was an ordinary commercial cargo, before they signed on. They might and probably would have demanded and obtained higher wages for the increased risk. In my opinion they were acting within their rights in refusing to proceed beyond Hong Kong. This is the view taken by the Divisional Court in Sibery v. Connelly (ubi sup.)—a case which cannot be distinguished from the present case. It was argued that the proceedings at Hong Kong, which resulted in a sentence of imprisonment for ten weeks, operated as an estoppel and precluded the sailors from now contending that their conduct at Hong Kong was lawful. But it was pointed out that there could be no estoppel, the criminal proceedings at Hong Kong not being between the same parties as the present civil proceedings in this country, and the contention was abandoned by Mr. Hamilton in his reply. It follows that, in my opinion, Lawrance, J. was right in holding that the sailors were entitled to wages, in which term I include an allowance for maintenance. He gave wages only down to the date when the sailors arrived in England. The cross-appeal claims wages to a later date, and I think the sailors are entitled to wages up to the date of the order of this court. There has not been any such "final settlement as is required by sect. 134 of the Merchant Shipping Act 1894, and I can see no sufficient reason for stopping at any date short of the judgment of this court.

The cross-appeal also claims general damages. In substance these damages are based upon what took place at Hong Kong. But it is not competent for us to hold that the imprisonment was unlawful, or that any case of malicious prosecu tion can be established. If I may say so, I regret that we cannot award damages for their sufferings at Hong Kong. It is said, however, that the letter "D." which was put upon their discharge papers at Hong Kong by the magistrate who thus recorded the master's report has seriously prejudiced them and rendered it difficult to procure fresh employment. But it was in the discretion of the master under sect. 240 (4) and sect. 129 of the Merchant Shipping Act 1894 either to give orto refuse to give what is equivalent to a character to a discharged seaman. By writing" D." he stated that he declined, and, in the absence of malice, I do not think any claim for damages can be based on the master's refusal to give a character. Our attention was directed to many sections of the Merchant Shipping Act 1894, in addition to the three to which I have referred. But I do not consider it necessary to allude to them, except to say that the statutory requirements contained in sects. 113 and 114 with respect to agreements with seamen (which I assume to have been observed in the present case) do not seem to me to have any bearing upon the true construction and effect of this agreement. In other words, they do not prevent the seamen from asserting that they contracted only for an ordinary mercantile voyage. The result is that, in my opinion, the appeal should be dismissed with costs, and the cross-appeal should be allowed with costs, but

[CT. OF APP.

only to the extent I have indicated. The figures were apparently agreed in the court below, and I presume there will be no difficulty in agreeing to

them now.

FARWELL, L.J. read the following judgment:— The defendants' appeal depends for its success or failure on the true construction of the contract of the 5th Dec. 1904 between the shipowners and the seamen, and, as that contract is in common form, the case is of considerable importance. At the date on which the contract was executed war between Russia and Japan had been raging for several months, and H.M. Secretary of State for Foreign Affairs had, in March 1904, given public notice in the Gazette-first, that the Emperor of Russia regarded coal as contraband of war; and, secondly, that ships carrying contraband of war to Japanese ports would be seized and condemned. Under these circumstances the seamen (whom I assume to have been aware that coal was contraband of war) signed on for a voyage of not exceeding three years' duration to any ports or places within 75 degrees north and 60 degrees south latitude, commencing at Glasgow, proceeding thence to Hong Kong, and (or) any other ports within the said degrees of latitude-which amount in effect to the whole Eastern hemisphere, and therefore include the whole seat of war and the ports there of the two belligerent Powersand to end at such port in the United Kingdom or the Continent of Europe (within home trade limits) as might be required by the master.

The question is whether on arriving at Hong Kong the men could lawfully refuse to proceed with their cargo of coal to Sasebo, a Japanese port. In my opinion this must depend upon the construction of the contract. No new circumstances had arisen which could justify them in refusing to carry out their bargain if they had in fact made it for example, if the port of destination had been stated in the contract to be Sasebo, I can see no ground on which the men could have refused to go there; for it is well settled that the carrying of contraband in time of war between two belligerents, both of whom are at peace with this country, is legitimate trading, although the trader runs the risk of capture and of the condemnation of the contraband stores, and in many (if not all) cases of his ship also. In Ex parte Chavasse; Re Grazebrook (ubi sup.) Lord Westbury, L.C. said: "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 belligerent 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 of 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.