was

towed astern. There was another tug, the Sun VIII, which was towing ahead. The tug coming late went towards the stern of the Highland Glen, which was lying in the sort of pocket that one knows in the London docks, with another ship on her port side and some barges. Somehow or other the tug came into contact with the stern or the propeller of the Highland Glen, and damaged. Thereupon the Port of London Authority, after a rather angry correspondence with those who owned the Highland Glen, or with the managers of the Highland Glen, issued a statement of claim, which claimed that the Port of London Authority had suffered damage by a collision between the tug Beverley and the Highland Glen, which had been solely caused by the negligent navigation of the Highland Glen by the defendants, their servants or agents. It is quite plain what that claim is. It is not a claim for damage caused by the negligent navigation of the Beverley; it is a claim for damage caused by the negligent navigation of the Highland Glen by the defendants, their servants or agents. that the defendants replied that the collision was not caused by the negligent navigation of the Highland Glen, but was solely caused by the negligent navigation of the Beverley. That was a denial to the claim which was based on the negligent navigation of the Highland Glen, and an assertion that the collision was caused by the negligent navigation of the Beverley. It was not followed up by a counterclaim for damage caused by the negligent navigation of the Beverley by the servants or agents of the plaintiffs, because the Highland Glen had suffered no damage. There had been a collision, with the result that the Highland Glen had received a scratch or two, but she had suffered no damage.

To

The result of that defence, if proved as it stood, and if the Judge had come to the conclusion that neither was right and that the damage was partly caused by the negligent navigation of the Beverley and partly by the negligent navigation of the Highland Glen, would have been that in Admiralty they would have been found both to blame, and the damage would have been halved. To that defence the plaintiffs replied that if the plaintiffs were guilty of the alleged negligence-that is, the negligent navigation of the Beverley-they would rely on the contract embodied in the towage, or on the conditions and terms endorsed thereon. They did not make it any more specific than that, and there are two things that that might mean. It might mean : "You say that we were negligent, but we are your servants, and consequently our negligence will not affect the matter." Or it may mean : "We are going to claim against you, not for the negligent navigation of the Highland Glen, but for the negligent navigation of the Beverley, because the contract makes the people navigating the Beverley your servants." In my view if they were going to say that second thing it was their business to

amend.

Their claim was negligent navigation of the Highland Glen. If they were going to say: "And we also mean the Beverley," they ought to amend, because there is a quite possible reasonable view which can be put forward in reply to any allegations of that sort. It is the duty of the County Court Judge to make any amendment that may be necessary for the purposes of justice. If the representatives of the Port of London Authority had applied for an amendment it would have been the duty of the Judge to make that amendment on proper terms as to costs-as to which he would have to consider what the proper terms as to costs were.

What happened was that at the end of the evidence Mr. Hayward, for the Highland Glen, referred to the reply, and proceeded to discuss (1) whether it applied at all because the tug arrived late, and (2) I think he suggested something about public policy, and called the attention of the Judge to a decision* of Hill, J., on the same contract which he proceeded to distinguish. But he also suggested: "This is not pleaded; you need not decide it; all you need decide is whether this collision was solely caused by the negligent navigation of the Highland Glen, because, if it was not, you need not do anything else that is the only claim that is made." Counsel appearing for the Port of London Authority having that staring him in the face argued for some little time on the construction of the contract, but he did not apply for any leave to amend; and at the end of his speech the learned Judge (without indicating exactly what he was going to do) said to Mr. Hayward-who proposed to argue submissions of law-" In the view I take of the case, it is not necessary," and when he gave his judgment he disbelieved the story as to negligence told by the tug and its representatives, and he wound up: "I therefore come to the conclusion that the claim fails inasmuch as negligence is not proved." The claim was for damages for negligence by those on board the Highland Glen in navigating the Highland Glen. It goes on to say: "It is unnecessary and I am not going into the question as to how far it was the Beverley's own fault. Now it is said that under the towage contract an indemnity is contained in the contract and I am asked to deal with the case under that. I absolutely decline to do so. If the Port of London Authority chooses to bring an action on the indemnity they can do so in this Court or elsewhere in that respect. Judgment for the defendants, with costs." On the pleadings as they stood, that judgment was right in my view.

The claim was for damages for the negligence of those on board the Highland Glen in navigating the Highland Glen, and the Judge found that there was no negligence in the servants of the defendants in navigating the Highland Glen, and the claim therefore failed. But no application was made to the Judge to amend. I think myself it would have been better if he had more pointedly called the attention of *The President Van Buren, 19 Ll.L.Rep. 185.

Counsel to the fact that he could only proceed on the claim and not on a claim which was not on the record and not on the pleadings. But Counsel did not apply -in the language of the order-and no application was made to the Judge to amend; he did not amend, but dealt with the claim on the pleadings.

The Divisional Court, as I understand, have taken this view: they said that they ought to treat the claim as amended. They have said-and I am disposed to agree with them (although I do not wish to express myself too positively in view of something which may happen elsewhere)-they have said-following Hill, J.'s decision in the President Van Buren, 19 LI.L.Rep. 185-that the towage contract does apply to a tug which is about to tow, and, if damage is caused to a tug which is about to tow by those on board of her, the contract makes those persons the servants of the shipowner whose ship the tug is about to tow. They have then seen that a point was being raised by Counsel appearing for the ship which required to be dealt with, because Hill, J., says (28 LI.L.Rep. at p. 170):

Mr. Dunlop seemed to suggest that there might be a question of fact as to whether the Beverley was about to tow the Highland Glen within the terms of the contract or not. The engagement was upon the well-known terms of the Port of London Authority towage contract. Before the action it was made quite clear in correspondence between the parties that the Port of London Authority were contending, firstly, that the collision was caused by the negligence of those in charge of the Highland Glen, and, secondly, that if it was caused by the negligence of those in charge of the Beverley the shipowners were nevertheless liable under the terms of the contract.

And once more (sup., at p. 171):

Refusal by the Judge to consider these questions could only put the parties to the expense of another action at a time when everything was ripe for the decision of all the points which it was necessary to determine. I say "all the points "because of one little matter indicated by Mr. Dunlop upon the evidence given on both sides, namely, the point whether the ship was a ship which was about to be towed by the tug. In my view the Judge ought to have decided those points. The question is, what are we to do?

Then the Divisional Court points out quite properly that it is a great misfortune to have to send a case involving this small sum of money back for a new trial, and Hill, J., says this:

I think that on the facts of this case there is no possibility of question but that the situation of the tug and the ship was such that at the time of the damage the contract applied.

And he thereupon decided in favour of the owners of the tug; and the Divisional Court proceeded to give judgment against the ship.

The sort of case that is suggested by the ship in arguing, or putting forward the contention, that the contract did not apply is this: "We ordered you at 12 30, and the contract would have applied if you had come at 12 30, while we were waiting to be towed, but you did not come until so late (130) that we started without you, and we were in motion, and you caused the damage yourself by butting in at a time too late for the contract to apply, because we were starting without you and did not want you. You say, or one of your witnesses says, and one of our witnesses says, that there was an order given to you to make fast. Other witnesses say that no order was given to make fast, but the true view is that you butted in without having any order to make fast." That is the sort of case that is put forward, and it is put forward on the lines which have been dealt with in many cases, that if a person who relics on exceptions is not in fact performing the thing that he had undertaken to perform, the exceptions do not apply.

In my

Now I do not wish to express any finding as to what will be the result of that contention except that I do not think very much of it myself on the facts as at present before me, but then I am not the person to decide that question of fact. view, the learned Judges in the Divisional Court went a little too far in their very praiseworthy attempt (with which I entirely sympathise) to avoid more costs in a small matter like this, when they took upon themselves to decide a question of mixed fact and law, when the facts were in dispute and should have been found by the County Court Judge.

For these reasons, I very much regret to have to interfere with the judgment of the Divisional Court, and I see no option but to send the case back for a new trial, with power to each party to amend so that the real questions may be on the record, and all these points which are now being discussed can be raised and decided. In view of the nature of the case, we have come to the conclusion that the order as to costs shall be that all costs, here and below, shall abide the result of the new trial.

I only wish to say this further, that, while I agree that in my experience all tugowners have clauses of this sort, I never saw such a bad one as the Port of London Authority's clause, and the sooner they go to somebody competent, who will express himself clearly in few words, and get that clause re-drafted, the better.

Lord Justice ATKIN: I agree. No doubt the result is an unfortunate result, but it not infrequently happens that circumstances such as these come into existence owing to the restricted power of the High Court in dealing with appeals from the County Court. I am not complaining of that restricted power. I think it quite right

that the power should be limited to appeals on a question of law, but it is perfectly obvious that many cases must come up to the High Court when the Court can see that something has gone wrong in the decision of the question of fact which the Court are powerless to remedy, because their sole jurisdiction is confined to appeals on points of law. I agree that in this case the Divisional Court-with the very praiseworthy object of saving expense-have taken a short cut which really was not open to them.

It appears from the pleadings quite plain that the only issue raised by the plaintiffs in their statement of claim was the issue as to whether or not the defendants were liable to them because of the negligent management of the Highland Glen. I think it quite plain to my mind that they could not properly amplify that claim by putting in a reference to a different claim in the reply, even if (which I rather doubt) the reply was intended to raise a different claim. Therefore I think the learned Judge was quite right in the view that he came to of the pleading, and my view, after reading the report of what took place, is that the learned Judge made it plain at the end of Mr. Hayward's argument that he did not propose to consider the terms of the contract, because it was not raised in the pleadings, and stopped Mr. Hayward from further discussion of questions of the contract. Now that I think did amount to an intimation of his view of the contract. However, the plaintiffs argued the question of the contractso far as it was open on the reply-and did not ask for an amendment. The result is that there is nothing that the learned Judge has done which is wrong in point of law. He was not wrong in his construction of the pleadings and he was not asked to amend, so we cannot say that he was wrong in law in refusing to amend.

Now the case has come up in these circumstances, that, from the whole of the evidence so far as it has come before the Court, it seems to me certainly plain that the issue on the question raised on the contract has really not been properly discussed, so far as we can see. As far as the evidence is concerned, there has been no determination of it by the learned Judge, and on the evidence as it was given it appears to me that the final determination of it must be a question of fact, and I do not think it open to us-as I do not think it was open to the Divisional Court-to come to a determination on that question of fact. I think there is evidence both ways; it is quite unnecessary to say on the evidence as at present given which case is the stronger case, because we are not the judges of fact. Indeed, I think it is quite possible that supplementary evidence may be given on that question of fact possibly on both sides. The result is that that question of fact must be determined.

Now, how is it to be determined? Is it to be determined in this action, or is it to be determined in another action? Plainly

we have authority to see that steps are taken for the proper determination of the question raised between the parties, and to crder a new trial, and I think that that is the course that ought to have been ordered in the proceedings between the parties, and in which it could have been properly decided if an amendment had been asked for. Therefore, I think this case ought to go back. But I agree, in view of the circumstances of the case, and on the evidence as far as it stands, that it might amount to a very serious miscarriage of justice if on a point which may prove to be a purely technical point on the pleadings the defendants had to be given the whole of the costs of these appeals. It may turn out that they had no business to dispute the liability because the liability ought to be imposed upon them.

For these reasons I think I agree with the order which has been proposed by my Lord. There must be a new trial, and I agree that the costs of that new trial and of this appeal must abide by the result. I think probably we ought to direct the parties down below by saying that the Judge below would have the power to deal separately with the different issues which were raised in the former trial as to negligence, and so on. They ought not so fully to follow the result that he ought not to have discretion as to the issues raised in the former trial.

Mr. Justice EVE: I agree. I cannot but regard the reply to these defences as the introduction of a new claim inconsistent with the facts on which the original claim was founded, and, in the absence of any amendment, in my opinion the learned Judge at the trial was justified in taking the view that he did, that it was not open to him to consider the new cause of action assigned in the reply.

With all respect, where I differ from the judgment of the Divisional Court is in that part which has taken the pleadings as they stood, and in holding that the Judge was wrong in declining to consider these questions. The question arises whether or no the evidence which was given, and the facts which were before the learned Judge, enable us to decide the two questions which were left undecided at the trial. (1) As to whether there was any negligence on the part of the tug, and (2) as to whether, in the events which happened, the plaintiffs were liable for the consequences of that negligence.

Again, I venture, with all respect, to differ from the finding of the Divisional Court where the learned Judges laid it down that nobody could have been taken by surprise, and that no further evidence could have been required for the purpose of determining these points. I cannot take the same view. There may be matters which can be raised by way of defence to the claim under the contract of which, at present, we know nothing, and which the plaintiffs, in my opinion, are entitled to have considered and determined.

The result is that I agree with the conclusions at which my learned Brethren have arrived, but with all respect to them I am not so impressed, as they appear to be, that this is a small matter, and that money has been wasted in securing a determination of the points at issue. The parties desired these questions to be determined and it is their concern-not ours-as to whether or not it involves an expense which some people might consider excessive.

Mr. RAEBURN: There is one point I would like to mention, and that is as to the learned Judge before whom the new trial should take place. I respectfully submit that, in order to save expense in this case, the new trial ought to take place in the Admiralty Court, and not in the City of London Court. My reason for that is this, that it is perfectly obvious, from the attitude of our opponents here, that if his Honour Judge Cooper decides in our favour on this contract, they will not stop there-they will go to the Divisional Court again. Their attitude is perfectly plain, and the result is that we will then find ourselves, after the expense of a new trial in the County Court, again in the Admiralty Divisional Court. They got leave to appeal to your Lordships in this case on the plea that the point they wanted to raise was an important point upon a towage contract --a point which was of importance to all shipowners. That is how they came here. That being their attitude, what will happen will be this. We will go back to the learned Judge, and then one side or the other, your Lordships may be almost perfectly certain, will appeal, and then we will find the process starting over again, and there may come a time when even Mr. Justice Eve will be horrified at the amount of costs which will be incurred over this small matter. It is not at all uncommon in appeals from County Courts to the Divisional Court for the Divisional Court tc "Well, we think, having regard to say: the importance of the question, and the fact that what happened below was not satisfactory-we think it better that this case should be heard in this Division." Of course, this case would not be heard by Mr. Justice Hill or Mr. Justice Bateson; they have already sat as an Appellate Court upon it. It would be heard by the learned President in the Term when he is taking Admiralty. That course, in my submission, would be likely to result in a saving of expense to both parties.

Lord Justice SCRUTTON: We think it must go back to the Judge of the County Court.

COURT OF APPEAL.

Thursday, Dec. 8, 1927.

THE" W. H. RANDALL." Before Lord Justice SCRUTTON, Lord Justice ATKIN and Mr. Justice EVE. Practice--Collision-Joinder of partiesWrit issued against barge-ownersBarge-owners' allegation of blame against another vessel-Subsequent admission of liability of other vessel-Application to add owners of other vessel as defendants granted by learned Registrar but refused on appeal by learned Judge-Discretion of CourtRegistrar's decision upheld-R.S.C., Order XVI, r. 11.

This was an appeal by Messrs. Chas. Hay & Son, Ltd., barge-owners, from an order of Mr. Justice Hill reversing an order of the Assistant Registrar, who gave liberty to the appellants to add the owners of the French steamship Anjou as defendants in a collision action against the owners of the sailing barge W. H. Randall. The W. H. Randall collided with the appellants' barge in the Thames on May 11, 1927. The owners of the W. H. Randall said they were not responsible, because the collision between the two barges was the result of a collision between the W. H. Randall and the steamship Anjou, for which the Anjou was alone to blame. The Anjou said the W. H. Randall was alone to blame. Appellants accordingly issued a writ against the barge which ran into them. Subsequently the owners of the Anjou admitted liability for the collision. Under these circumstances the appellants had to pay the costs of the W. H. Randall in the action arising out of the collision between the two barges. Without getting the owners of the Anjou added as parties to the collision action they could not get the liability of the Anjou for these costs determined.

Mr. C. R. Dunlop, K.C., and Mr. R. F. Hayward (instructed by Messrs. Keene, Marsland, Bryden & Besant) appeared for appellants; Mr. G. St. Clair Pilcher (instructed by Messrs. W. A. Crump & Son) appeared for the owners of the steamship Anjou. The owners of the W. H. Randall were not represented.

Mr. DUNLOP said this case raised an important question of practice. Appellants, in accordance with the invariable Admiralty practice, sued the owners of the vessel which ran into them. If the action had got as far as pleadings the owners of the W. H. Randall would, in the ordinary course, have blamed the Anjou. As a matter of course the appellants would then have been entitled to add the owners of the Anjou as defendants. The difficulty arose because after the writ, but before pleadings, the Anjou admitted liability for the collision. Now, therefore, appellants were bound to admit they had sued an

innocent party, and without the order asked for they would not be able to get determined the liability of the Anjou for the costs they would ordinarily have to

pay.

Mr. PILCHER submitted that the appellants ought to have secured an undertaking, both from the owners of the Anjou and the owners of the W. H. Randall, to pay if they were found to blame.

JUDGMENT.

Lord Justice SCRUTTON, in giving judgment, said: I myself should dismiss this appeal, because I think the matter of joinder of parties or joinder of causes of action is a matter within the discretion of the Judge and I can see no principle of law which is violated by the Judge making the order which he has. I myself have always been prepared to follow the rule which I understand was laid down by this Court in 1917 after the alteration of Order XVI. Order XVI was originally very limited as to plaintiffs and defendants and causes of action. It was altered in very wide terms before 1917, and in 1917 in Thomas v. Moore, [1918] 1 K.B. 555, Pickford, L.J., giving the first judgment of the Court of Appeal, said (at p. 565) :—

Whatever the law may have been at the time when Smurthwaite v. Hannay, [1894] A.C. 494, was decided, joinder of parties and joinder of causes of action are discretionary in this sense, that, if they are joined, there is no absolute right to have them struck out,

-and the same remark appears to me to apply if there is no absolute right to have them joined

but it is discretionary in the Court to do so if it thinks right.

It seems to me that this matter was entirely within the discretion of the Judge, and I should myself not interfere on that ground. Mr. Dunlop apparently thought that unless he could raise some matter of principle this was rather a question of discretion, and so he asked for guidance. If I could give the Admiralty Court any guidance I should say they had better follow the practice of the King's Bench Division, which is that when of two proposed defendants each says: "I am not liable; the other is," you may then issue a writ In this case the at once joining both. plaintiffs were told by letter months before they applied to join that each of the two "I am not proposed defendants said: liable; the other party is." They should in my opinion have issued a writ joining the two defendants. That would have avoided the difficulty in this case and would also have avoided the danger of not getting bail against the foreign ship which they might easily run by the practice of the Admiralty Court.

But my brothers think that they can alter the order of the Judge without interfering

with the discretion of the Judge, and they will indicate how that is to be done.

Lord Justice ATKIN: I am sorry to differ from my Lord on this matter which involves quite a small sum of money. At the same time I think it does affect quite important rights of the plaintiffs which it appears to me they are entitled to assert. The position seems to be that the plaintiffs, being owners of barges which were moored in tier, suffered damage by reason of a collision of their barges with the barge W. H. Kandall. The barge W. H. Randall collided with them, as it says, owing to a collision with the French steamship Anjou, and the plaintiffs communicated with both parties before they issued their writ. It appears that the W. H. Randall had issued a writ against the Anjou, but of course that did not determine any of the rights of the plaintiffs or give them any relief of any sort or kind; and they communicated with both the owners of the W. H. Randall and the owners of the Anjou. The owners of the W. H. Randall said that they were not to blame and the owners of the Anjou wrote a letter on May 17 in which they said: 'According to the information before us there appears to be no question of the liability of the W. H. Randall for the collision and in the circumstances we cannot advise our clients to admit liability."

Thereupon the plaintiffs issued their writ against the owners of the W. H. Randall, which certainly the owners of the Anjou cannot complain of, plaintiffs having read that letter before doing so. If they had done that which seems to me to be the ordinary practice on the common law side they would have joined the W. H. Randall and the Anjou as defendants and the Anjou would have incurred costs at once by reason of the issue of the writ and by having to give bail and so forth.

Proceedings go on to a stage at which the Anjou admits liability, and thereupon the plaintiffs seek to have the Anjou pay their costs. They have admitted liability both to the owners of the W. H. Randall and to the present plaintiffs. But the owners of the Anjou say "No," and the attitude they take up is this: "It is quite true that if you had sued us in June and done so by the original writ and made us parties from the beginning we should have had no answer to a claim that we should have to pay to you the costs of the action against the W. H. Randall and that you should add to these costs the costs you have paid to the W. H. Randall, but " (they say) "because you did not make us a party until October when you might have made us a party in June we escape that liability."

I have no doubt at all that the proper order if the action had been properly constituted would have been an order which would have protected the plaintiffs in respect of the action they quite reasonably brought against the W. H. Randall. appears to me quite impossible to suggest that the plaintiffs are bound to stand by while third parties discuss the question of

It