SUBJECTS OF CASES. them within the meaning of sect. 1 of the Bills of Lading Act (18 & 19 Vict. c. 111), and consequently such an indorsee cannot be made liable in an action by the shipowner for freight. (H. of L. reversing Ct. of App.) Sewell v. Bendick page 79, 298, 376 2. Indorsement to repay advances-Passing of property-Liability for freight, &c.-Where bills of lading are indorsed for the purpose of enabling the indorsees to sell the goods named therein, and so recoup themselves for advances made by them to the indorsers, but with no intention of further passing the property, such indorsees do not incur any liability under the Bills of Lading Act (18 & 19 Vict. c. 111). (Cave, J.) Allen v. Coltart and Co.... See Carriage of Goods, No. 2. BLACKWALL POINT. BOARD OF TRADE. 104 See Collision, Nos. 15, 30-Wrecks and Casualties, Nos. 1, 4. BOND FOR SAFE RETURN. See Restraint. BOTTOMRY. 1. Bottomry bond-Essentials of─No maritime risk expressed-Advance for necessaries-Intention of parties. A written agreement, made between the managing owner of a ship and another party, by which it is agreed that, in consideration of an advance for necessaries supplied to and for the use of the vessel, the managing owner undertakes to return the amount advanced "on the return of the said barque from her present voyage," and authorises the lender to cover the amount advanced by insurance on the barque, but which is silent as to maritime interest, is not a contract of bottomry, there being no words in the contract purporting to pledge the ship as security for the loan, and it not appearing that the parties ever had any intention of creating a bottomry bond (Ct. of App.) The Heinrich Bjorn page 391 2. Extent of master's authority-cargo ownersAmount of loan-Necessity.-The authority of a master to raise money on bottomry is limited as against the owners of cargo to such an amount as is necessary to enable the ship to complete her voyage with safety, and even where the money is advanced by a person who is not the ship's agent and has no interest in the repairs effected on the ship, and honestly believes from inquiries made that the money is necessary, he cannot recover as against the cargo owner anything in respect of items other than those which are in fact necessary. (Ct. of App., affirming Adm. Div.) The Pontida 284, 330 3. Practice Default action-Affidavit of serviceWrit-Order XIII. r. 2.-A plaintiff in an undefended bottomry action must, before he can obtain judgment by default, in addition to filing an affidavit of service in the Registry, as provided by Order XIII., r. 2, annex thereto the original writ. (Adm.) The Eppos 4. Registrar and merchants-Amount of claim-Reduction in-Commissions and premium-The registrar and merchants have a discretionary power to reduce items claimed for commissions and premium under a bottomry bond, should they deem them unnecessary or exorbitant, and the court will not interfere with this discretion, 180 unless it be shown that the registrar and merchants have exercised it on an erroneous principle. (Ct. of App., affirming Adm. Div.) The Pontida ..page 284, 330 BRITISH SHIP. See Chains, Cables, and Anchors Act 1874-Collision, No. 36-Necessaries, No. 3-Shipowners, No. 1. BROKER. See Charter-party, Nos. 2, 4. CANCELLATION CLAUSE. See Charter-party, No. 5; Marine Insurance, Nos. 8, 10. CARDIFF DRAIN. See Collision, No. 74. CARGO. See Bottomry, No 2-Collision, Nos. 11, 16, 17, 49General Average, Nos. 3,4-Salvage, Nos. 11 to 14 -Wages, No. 1. CARRIAGE OF GOODS. 1. Bill of lading-Holder's liability for freight, demurrage, &c.-Presentation.-Where the holder of a bill of lading, under which he is entitled to the delivery of goods on certain terms as to freight, demurrage, and taking delivery, presents that bill of lading and demands delivery of the goods, he thereby primâ facie offers to perform those terms of the bill of lading on which alone the goods are deliverable to him. (Cave, J.) Allen v. Coltart and Co. page 104 2. Bill of lading-Signature by agent for master— Short delivery-Estoppel-Bills of Lading Act.The signature of a master's agent to a bill of lading does not estop the shipowner, and hence where a master's agent signs a bill of lading for more goods than had actually been put on board the ship, the shipowner is not liable to the assignees of the bill of lading, for not delivering all the goods named in the bill of lading, although all the goods had been floated alongside the ship, and mate's receipts given for them, but some were lost before they were shipped. (Ct. of App.) Thorman v. Burt, Boulton and Co. 3. Damage to cargo-General ship-Stranding- 563 259 SUBJECTS OF CASES. page 259 strained, and she was then found to be making five inches of water per hour; but the master did not examine her or cause any repairs or caulking to be done, but proceeded on the voyage and encountered very severe weather. On arrival in London the flour of the plaintiff, which was immediately beneath the deck, was found to have been damaged by the sea water making its way through the deck, the grain at the bottom of the ship being uninjured. Held, that the master was negligent in not repairing; that is, in not caulking the deck before he proceeded on his voyage, that the ship was more liable thereby to sustain damage and to injure the cargo, and that the defendants were liable for the damage occasioned thereby. (Adm. Div.) The Rona............. 5. Damage to cargo-Measure of damages-DelayDischarge of cargo-Right to reship and carry on -Lien of shipowner-Freight.-The steamshipK., having just started on a voyage from C. to B. with a cargo of coals, carried under charter for the plaintiffs, came into collision with the B. at the port of loading. The K. put back and discharged her cargo for the purpose of repairs. The coal was found to be damaged, and its owners (the plaintiffs) were advised that it was unfit for reshipment, and that, for the good of all parties interested, it should be sold at C., and not carried on to B. The owners of the K. refused to part with the cargo or to take any other cargo except upon fresh terms as to freight The plaintiffs made no inquiry as to these terms, and the coals were reshipped and carried on to B., where, being useless for the purposes of the plaintiffs' locomotives, for which they had been originally intended, they were used in the plaintiffs' smithies. The owners of the B. having admitted liability, and the damages being referred to the registrar, he reported that in his opinion the shipowner was not entitled to insist upon reshipment of the damaged cargo, and that the plaintiffs' damages were the loss they would have sustained if the coals had been sold at the port of lading. Held, on objection to the report, that the cargo, though damaged, was capable of being carried on, and that, therefore, the shipowner having a lien upon it for freight to be earned, was entitled to insist upon carrying it on, or to exact fresh terms as to freight for another cargo, and that the damages were the loss to the plaintiffs at B., and not at C.; but that it was the duty of the cargo owner to have inquired what the fresh terms as to freight were, so as to diminish the loss as far as possible, and that in ascertaining this loss the saving which could have been effected by shipping a fresh cargo on new terms must be taken into consideration by the registrar, and that the report must go back to the registrar to ascertain the damages upon this basis. Held, also, that the fact that the coal was used in the plaintiffs' smithies at B. did not necessarily show that the difference between the value of locomotive and smithy coals was the measure of the plaintiffs' loss, but the actual reduction in its value occasioned by the collision must be ascertained. (Adm. Div.) The Blenheim 6. Damage to cargo-Ship stranded-Salvage expenses-Liability of shipowners.-Where, owing to negligent navigation, a ship is cast ashore and her cargo thereby suffers damage and loss, money paid by the underwriters of the cargo to a salvage association, who are employed with the assent of the shipowners, for saving a portion of the cargo, is not a voluntary payment, and is recoverable by the cargo owners from the shipowners, being 522 money paid on behalf of the cargo owners to avert a loss which would have fallen on the shipowners if the portion of the cargo had not been salved and sent on to its destination. (Ct. of App., affirming Huddleston, B.) Scaramanga and others v. Martin, Marquand, and Co. ...page 410, 506 7. Delivery of cargo-Bill of lading-To discharge in dock always afloat-Duty and right of shipowner. Where a bill of lading incorporates a clause in the charter-party to the effect that "the ship shall proceed to a port to discharge in a dock as ordered on arriving, if sufficient water, or so near thereunto as she may safely get, always afloat," such clause is introduced in the interest of the shipowner, and restricts the generality of the power to name a dock; and while the obligation of the shipowner is to proceed to the dock named, if there is sufficient water to enter the dock when the order is given, on the other hand, if there is not then sufficient water, the ship is not bound to discharge in the dock named. (Cave, J.) Allen v. Coltart and Co. ... 104 8. Delivery of cargo-Landing-Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), s. 67-Notice of readiness to deliver.--The 7th subsection of the Merchant Shipping Act Amendment Act 1862, s. 67, entitling the owner of goods to twenty-four hours' notice in writing of the shipowner's readiness to deliver the goods does not apply where the goods are landed under subsect. 6 of the same section for the purpose of convenience in assorting the same. (Adm.) The Clan Macdonald... 9. Delivery of cargo-Landing-Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), s. 67,-Notice of readiness to deliver-Duty of consignee-Liability for charges. It is the duty of the owner of goods who receives notice that his goods are landed under the provisions of sect. 67, sub-sect. 6, of the Merchant Shipping Act Amendment Act 1862, and are ready for delivery, to take them within a reasonable time after the notice, and if he fails to do so, he will be liable for the charges occasioned by his delay. (Adm.) The Clan Macdonald ..... 10. Delivery of cargo Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), s. 67— Notice of readiness to deliver.-The notice required by sect. 67 of the Merchant Shipping Act Amendment Act 1862 is sufficiently given to the owner of the goods if given to a lighterman employed by him to take delivery of the goods. (Adm.) The Clan Macdonald 11. Delivery of goods from ship's tackles-Discharge on to quay-Customs of port of London-Bill of lading.-Goods were shipped under a bill of lading at Calcutta to be delivered in like good order and condition from the ship's tackles (where the ship's responsibility shall cease) at the port of London, &c. On arrival in the port of London the consignee demanded overside delivery into lighters immediately from the ship's tackles. The shipowner landed them on the dock wharf, and was ready to deliver them thence into the consignee's lighters, but the consignee carted them away, thereby becoming liable to and paying certain dock charges. In an action by the consignee against the shipowner to recover the amount so paid, the jury found that there was a custom for steamships with a general cargo (the defendants' ships being such) coming into the port of London, and using the docks, to discharge the goods on to the quay and thence into lighters. Held, that the custom found was not inconsistent with the terms of the bill of lading, and that the shipowner was entitled to discharge 148 148 148 SUBJECTS OF CASES. page 166 the goods on to the quay, and was not liable for the charges sought to be recovered. (Ct. of App.) Marzetti v. Smith and Son 12. Demurrage-Charter-party-Prevention by frost -Goods not in dock or ready.-Where it is agreed by charter-party that a ship shall proceed to a certain dock and there load in the customary manner, an exception that the charterer is not to be liable for demurrage if the loading is prevented by frost is confined to such frost as prevents the actual loading on board of the goods which are in the dock ready to be loaded, and does not cover frost which prevents the shipper getting his goods to the dock. (H. of L., affirming Ct. of App.) Grant v. Coverdale and others.... 74, 353 13. Demurrage-Charter-party-" Prompt despatch in loading"-Cargo not produced fast enough.Charterers are liable for delay under a charterparty providing that the ship shall receive prompt despatch in loading where the facilities of the port are greater than the production of the cargo from the mines, and in consequence of want of facilities in getting the cargo from the mines the ship is delayed in loading. (P. C.) Elliot v. Lord 63 14. Demurrage-Charter-party-Running days. Lay days-Custom of port-Removal of ship.Running days" in a charter-party, in the absence of custom, are consecutive days, but a custom of a port by which days occupied in moving the ship from one part of the port to another, are not counted as lay days is consistent with a charter-party providing for so many running days as lay days, and it is a reasonable custom. (Ct. of App.) Nielsen and Co. v. Wait, James, and Co. 66 15. Demurrage-Charter-party-Ship to discharge always afloat-Custom of port of GloucesterPartial discharge at Sharpness-Time occupied going to and from Gloucester basin.-By charterparty it was agreed that the plaintiffs' steamship, having loaded a grain cargo, should therewith proceed to a port in the Bristol Channel as ordered, or so near thereto as she may safely get at all times of tide and always afloat, eight running days, Sundays excepted, to be allowed the merchants if the ship be not sooner despatched for loading and discharging." The ship was ordered to discharge at Gloucester, and having arrived at Sharpness dock, which is within the port of Gloucester, but some miles from the basin where grain cargoes are discharged if the ship's burthen will admit, partial delivery was there made owing to the ship not being able to get to the basin till part of her cargo was discharged. The consignees then required the ship to be taken to the basin where the discharge was completed, when the vessel returned to Sharpness. In an action for demurrage, the following custom of the port of Gloucester was proved, viz., that the customary place for discharging grain cargoes was at the basin; that when vessels laden therewith were of too heavy a burthen to get there, they were lightened at Sharpness; that during the discharge at Sharpness the lay days counted, but that the time occupied in going up to the basin and returning to Sharpness was not counted. Held, that the custom was reasonable, and that it was not inconsistent with the express terms of the charter as to "running days," and that therefore the time occupied by the ship in going from Sharpness to the basin and in returning, ought to be excluded from the lay days. (Ct. of App.) Nielsen and Co. v. Wait, James, and Co. 16. Demurrage-Charter-party-Ship to proceed to and deliver at a port or as near as she can safely get at all times of tide and always afloat-End of 553 553 voyage Commencement of running days. Where a ship, in pursuance of a charter-party providing that she shall load a cargo and being so loaded proceed to a port named. "or so near thereto as she may safely get at all times of the tide and always afloat," proceeds as near thereto as she can get in the then state of the tide with her full cargo always afloat, and then is ready and offers to deliver sufficient to enable her to get to the port named, the shipowner is entitled from the date of his readiness to deliver to demurrage as the words "at all times of the tide" relieve him from any liability to wait a reasonable time for the tide, and the voyage is therefore terminated on the ship's arrival at the nearest place to the port named, which she could reach with a full cargo in the state of the tides then prevailing. (North, J.) Horsley v. Price and Co. ...Page 106 17. Demurrage-Charter-party-To discharge alongside wharf or into lighter-End of voyage-Commencement of running days.-Where by the terms of a charter-party a ship was to load a cargo " and therewith proceed to D. and deliver the same alongside consignee's or railway wharf, or into lighters or any vessel or wharf where she may safely deliver, as ordered;" and upon her arrival at D. she was ordered to discharge at the railway wharf, but, owing to all the discharging berths being occupied, she was not berthed till twenty-four hours after her arrival in dock, the Court, in an action for demurrage, held that the voyage was not completed until the ship was berthed at the railway wharf, and therefore the defendants were not liable for demurrage for the period between the ship's arrival in dock at D. and her being berthed at the railway wharf. (Q. B. Div.) Murphy v. Coffin and Co. .........531 n. 18. Demurrage-Charter-party-To discharge at such "ready quay berth as ordered "-End of voyage-Commencement of discharging days.Where by a charter-party it was agreed that the plaintiffs' vessel, after loading a cargo, should proceed" to London or Tyne Dock to such ready quay berth as ordered by the charterers," demurrage at an agreed rate per day, and the captain or owners to have an absolute lien on the cargo for all freight, dead freight, and demurrage, and the vessel was ordered by the charterers to a London dock, but upon her arrival there there was no quay berth ready for her reception, and a delay of one day was thereby caused in discharging her cargo, the court held, in an action by the shipowner claiming a lien upon the cargo for demurrage, that, on the true construction of the charter-party, the charterers were bound to name and provide a ready quay berth, and that for a delay caused by their neglecting to do so the plaintiffs were entitled to a lien on the cargo for demurrage, the damages being sufficiently in the nature of demurrage to come within the demurrage clause in the charter-party. (Ct. of App.) Harris and Dixon v. Marcus, Jacobs, and Co. 19. Excepted perils-Bill of lading CollisionNegligence Perils of the sea. -- A collision between two ships caused by the negligence of either, without the elements contributing to the accident, is not a peril of the seas within the meaning of those words in a bill of lading. (Ct. of App., reversing Hawkins, J.)-Woodley and Co. v. Michell and Co. 20. Excepted perils-Bill of lading-CollisionNegligence-Perils of the sea. The plaintiffs were the owners of a cargo of barley, shipped at Caen on board the defendants' schooner Kate for delivery in London. The bill of lading was in 530 71 |