Article 90.-Jettison.

This exception will cover all claims made under the bill of lading and arising from the improper jettison of goods properly stowed; but will not cover claims arising out of the jettison of goods improperly stowed (t).

Submitted, that it will not cover any claims for a general average contribution arising from proper jettisons of goods (u).

Article 91.-Operation of Exceptions.

Exceptions in the contract of affreightment, unless otherwise clearly worded, limit the shipowner's liability during the whole time he is in possession of the goods as carrier, and therefore apply during the loading and discharging of the goods (v).

The arrival of the ship (w), coupled with failure to deliver the goods, is primâ facie evidence of negligence in the shipowner (x). The shipowner must shew that the real cause of the loss was one of the exceptions in the bill of lading, in order to free himself (x).

If he makes a primâ facie case to this effect, the shipper must then disprove it by shewing that the real cause of the loss was something not covered by the exceptions; and unless he can prove this clearly, the shipowner will be protected (y).

(t) Royal Exchange S. Co. v. Dixon (1886), 12 App. C. 11; Newall v. Royal Exchange Co. (1885), 33 W. R. 342, 868. See also Article 110.

(u) On authority of Schmidt v. Royal Mail Co. (1876), 45 L. J. Q. B. 646; Crooks v. Allan (1879), 5 Q. B. D. 38.

(v) Norman v. Binnington (1890), 25 Q. B. D. 475; The Carron Park (1890), 15 P. D. 203: per Wright, J. in De Clermont v. Gen. Steam Nav. Co. (1891), 7 T. L. R. 187; and see Note 2 to Article 89, p. 187, ante.

(w) The non-arrival of the ship is not evidence of negligence at all. Boyson v. Wilson (1816), 1 Stark. 236.

(x) The Xantho (1886), 2 Times L. R. 704. Cf. per Lord Herschell, 12 App. C., at p. 512. The law as to the onus probandi was not altered by the reversal of this decision in the House of Lords, and it is therefore cited as an illustration. Where goods are delivered damaged, see as to the burden of proof, Article 52.

(4) The Norway (1865), 3 Moore, P. C., N.S. 245; Muddle v. Stride (1840), 9 C. & P. 380. Czech v. General Steam Co. (1867), L. R. 3 C. P. 14. See also Williams v. Dobbie (1884), 11 Sc. Sess. Cases, 4th Series, 982; Cunningham v. Colvils (1888), 16 Sc. Sess. Cases, 4th Ser. 295.

Exceptions in the bill of lading will not affect the rights and liabilities of shipper and shipowner as to general average contributions (z), unless they are clearly intended to do so (a).

Case 1.-Goods shipped under a bill of lading, excepting "perils of the sea," were lost on the voyage. The shippers proved non-delivery, and it was admitted that the goods were lost by collision. Held, that as collision was then not a peril of the sea, but only collision without negligence of either ship, the shipowners had not made even a prima facie case of cause of loss within the exceptions, and were therefore liable (b).

Case 2.-Goods were shipped," to be free from leakage or damage." On discharge the goods were found damaged by oil. There was no oil in the cargo, but oil was used in the donkey engine in an adjacent part of the ship. Held, that the exception did not relieve the owner from liability for the negligence of his servants, but threw the burden of proving such negligence on the shipper (c).

Article 92.-Who can sue for failure to carry goods safely.

I. In tort, there can sue:

All who have any proprietary interest in the goods, whether or not they are parties to the bill of lading. The consignee of goods will be deemed to have such a property unless the contrary appear (d).

The nominal shipper cannot sue in tort if he ships merely as agent for the real owner (e).

II. In contract, there can sue :—

(1.) The shipper, unless he acted merely as agent for another, in which case the principal can sue (f), the agent cannot (e).

(2.) Any person to whom by indorsement and delivery of the bill of lading, or by indorsement followed

(2) Schmidt v. Royal Mail S.S. Co. (1876), 45 L. J. Q. B. 646; Crooks v. Allan (1879), 5 Q. B. D. 38.

(a) E.g. "That the master, owner or agents of the vessel shall not be responsible either as carriers, or as contributors to general average, for any loss or injury to the said goods, occurring from any of the causes above-mentioned.”

(b) See note (x) ante, p. 181.

(c) Czech v. General Steam Co. (1867), L. R. 3 C. P. 14. Craig v. Delargy (1879), 6 Sc. Sess. Cases, 4th Ser. 1267.

(d) Coleman v. Lambert (1839), 5 M. & W. 502, at p. 505; Tronson v. Dent (1853), 8 Moore, P. C. 419.

(e) Moore v. Hoppers (1807), 2 B. & P. N. R. 411.

Anderson v. Clark (1824), 2 Bing. 20; Fragano v. Long (1825), 4 B. & C. 219.

by delivery of the goods, the absolute property in the goods has passed (g).

(3.) The consignee named in the bill of lading if the property has passed to him by such consignment (g).

Article 93. Who can be sued for negligent carriage of the Goods.

I. The owner.-1. In tort, if he is or was in possession of the goods by his agents, there being no charter amounting to a demise (h); 2, in contract, by any person with whom he has contracted, or by the assignees of such person.

II. The charterer.-1. In tort, if he is or was in possession of the goods, his charter amounting to a demise (h); 2, in contract, by any person with whom he has contracted, or the assignees of such person.

III. The master.-1. In tort, if he is or was in possession of the goods; 2, in contract, by any person to whom he has made himself personally liable on a contract.

The shipper or person entitled to sue can sue either the master or the owner or charterer, but not both. If he has obtained judgment against the master, he cannot further sue the owner or charterer for the same cause (i).

(g) 18 & 19 Vict. c. 111 s. 3, and Article 75. For cases before the Act on the ability of consignees to sue in contract: see Tronson v. Dent (1853), 8 Moore, P. C. 419; Sargent v. Morris (1820), 3 B. & A. 277.

(h) See Article 2; and cf. Baumroll v. Gilchrest (1892), 1 Q. B. 253.

(i) Priestley v. Fernie, 3 H. & C. 977 (1865); Leslie v. Wilson, 6 Moore, Ex. 415 (1821).

SECTION VII.

THE PERFORMANCE OF THE CONTRACT.-The Voyage.

Article 94.-" Final Sailing" (a).

A VESSEL has finally sailed when she has left her port of loading (or her last port of call in the United Kingdom) (b), ready for her voyage, and with the purpose of proceeding on her voyage without any intention of coming back (c).

The fact that she is towed and has no sail set, or that she is driven back into port by a storm, will not prevent her having "finally sailed" (c). But if her clearances are not on board, or she is not ready for sea, the fact that she has left the port will not constitute final sailing (d),

The term "port" is to be taken in its business, popular, and commercial sense (c), and not in its legal definition for revenue or pilotage purposes (e).

Case 1.-A ship was chartered, the owners to receive one-third of the freight within eight days "from final sailing from her last port in the

(a) Whether a vessel has "finally sailed" may be of importance as to the payment of "advanced freight."

(b) "Sailing" in insurance cases, where there is a warranty to sail before a particular day, has been held to be "breaking ground," i.e., leaving her moorings ready for sea, though not leaving port; see Parke, B., in Roelandts v. Harrison (1854), 9 Ex., at p. 456, Arnould, 6th ed. pp. 608-620.

(c) Price v. Livingstone (1882), 9 Q B. D. 679; Roelandts v. Harrison (1854), 9 Ex. 444; S. S. Garston v. Hickie (1885), 15 Q. B. D. 580; approved by Lord Watson in Hunter v. Northern Ins. Co. (1888) 13 App. C., at p. 733.

(d) Thompson v. Gillespy (1855), 5 E. & B. 209; Hudson v. Bilton (1856),

6 E. & B. 565.

(e) On the other hand, in Caffarini v. Walker (1876), 10 Ir. L. R. C. L. 250, and McIntosh v. Sinclair (1877), 11 Ir. Rep. C. L. 456, the "port of Newry was taken in its legal and fiscal sense, and not as a geographical expression on the distinction. See also Nicholson v. Williams (1871), L. R. 6 Q. B. 632. In Nielsen v. Wait (1885), 14 Q. B. D. 516, the "port of Gloucester seems to be taken as the legal or fiscal port. In S. S. Garston v. Hickie, vide supra, Brett, M.R., says, "the port may extend beyond the place of loading and unloading; if the port authorities are exercising authority over ships within a certain space of water, and shipowners are submitting to that jurisdiction, that is the strongest evidence that that space of water is accepted as the commercial port."

CAPTAIN'S AUTHORITY ON THE VOYAGE.

193

United Kingdom." She was loaded at Penarth, and towed out eight miles, bringing her three miles into the Bristol Channel, outside the commercial but inside the fiscal port of Cardiff. She then cast anchor, owing to threatening weather. A storm arose, which drove her ashore within the commercial port of Cardiff. Held, that she had finally sailed from her last port, so as to entitle the owners to an advance of one-third of the freight (f).

Case 2.-A ship being loaded and cleared, came into the roads and cast anchor three miles from X. harbour, not intending to return. The shrouds and cables were not ready for sailing, bills of lading were not sigued, and the mate was not on board. She was lost the same day, before the deficiencies were supplied. Held, she had not finally sailed (g).

Article 95.-Master's Authority on the Voyage.

The master on the voyage occupies a double position; he has the duty on behalf of the shipowners, of doing what is necessary to carry out the contract (h), and of taking reasonable care of the goods entrusted to him, his first duty to the goods owner being to carry on the cargo safely in the same bottom (), and he has also, if extraordinary steps are necessary, such as sale (k), borrowing money on bottomry (1), salvage agreements (m), transhipment (n), jettison (o), deviation or delay (p), the power to bind his owners, if such steps are shewn to be necessary, and if there was no possibility of communication with his

owners.

He can also bind the charterer by his actions in doing

(f) Price v. Livingstone (1882), 9 Q. B. D. 679. In Roelandts v. Harrison, v.8., and S. S. Garston v. Hickie, v.s., the port was also the port of Cardiff, the ship in each case was ready to sail, and in her way to sea, but had not got outside the commercial port.

(1) Thompson v. Gillespy (1855), 5 E. & B. 209; see also Hudson v. Bilton (1856), 6 E. & B. 565.

(h) The Turgot (1886), 11 P. D. 21; The Beeswing (1885), 53 L. T. 554.

() The Hamburg (1864), B. & L. 253, see p. 272; The Grutitudine (1801), 3 C. Rob. 240; Notara v. Henderson (1872), L. R. 7 Q. B. 225; Assicurazioni v. Bessie Morris S.S. Co. (1892), 2 Q. B. 652; (C.A.), et post, Article 101.

(k) See Australasian S. Nav. Co. v. Morse (1872), L. R. 4 P. C. 222; and Articles 102, 104.

(1) See The Karnak (1869), L. R. 2 P. C. 505, and Articles 105, 106, post.

(m) The Kenpor (1883), 8 P. D. 115, and Article 121.

(n) The Soblomsten (1866), L. R. 1 A. & E. 293, and Article 103.

(0) Burton v. English (1883), 12 Q. B. D. 218, and Article 107. (2) See Articles 99, 100.