To tow another vessel even in the course of the chartered voyage will constitute a breach of the implied contract; to communicate with a ship in distress will not, as the distress may involve danger to life (x). The shipowner will be liable to the charterer or cargo owner for any damage, which occurs on or results from an unnecessary deviation (y). Note.-Express stipulations limiting this implied contract are now usually introduced into charters and bills of lading, e.g. :"With liberty to call at any ports in any order, to sail without pilots, and to tow and assist vessels in distress, and to deviate for the purpose of saving life or property;" or "With liberty to call at any ports on the way for coaling or other necessary purposes, to sail without pilots, and to tow and assist vessels in distress, and to deviate for the purpose of saving life." And "liberty to tow and assist vessels in all situations." This latter clause will protect a ship in towing off a stranded vessel, though no life is in danger, and though the vessel towing is wrecked and her cargo lost: Stuart v. British and African Navigation Co. (z) All these clauses must be construed in the light of the commercial adventure undertaken by the shipowner. Thus a clause giving leave "to call at any ports," will only allow the shipowner to call at ports which will be passed in the ordinary course of the named voyage in their geographical order (a); the words" in any order," will allow the shipowner to depart from geographical order (b); but even when there are general words giving liberty to call at ports outside the geographical voyage, these will be cut down by the special description of the voyage undertaken, to ports on the curse of that voyage (b). She un Cise 1.-A ship was chartered to convey lime from X. to Z. necessarily deviated from the usual course, and during such deviation the (x) Scaramanga v. Stamp, v de supra. (y) Davis v. Garrett, vide supra; compare Newall v. Ro al Exchange S. Co (1885), 33 W. R. 342, 868. In Balian v. Joly Victoria (1890), 6 T. L R. 345, where a deviation took place both from the agreed ship and the agreed voyage, the C. A., in holding the shipowners not entitled to rely on a clause in the bill of lading limiting their liability to £5 per package, suggested that the deviation swept away all limitations in the shipowner's liability as a common carrier. is submitted that it also sweeps away his protection as a common carrier for acts of God and the Queen's enemies, for both in Davis v. Garrett and in Leduc v. Ward the cargo was lost by act of God, but the shipowner was held liable. (z) (1875), 32 L. T. 257. It (a) Leduc v. Ward (1888), 20 Q. B. D. 475; Margetson v. Glynn (1892), 1 Q. B. 337; (1893) A. C. (b) Margetson v. Glynn, v. s. lime suffered damage by rain. Held, that the charterer was entitled to recover such damage from the shipowner (c). Case 2.-A ship was chartered to proceed from X. to Z.; on her voyage she went to the assistance of a vessel in distress, and agreed to tow her to Y. (out of her course); while thus towing she was wrecked. The jury found the deviation not reasonably necessary to save life, but reasonably necessary to save property. Held, that such a deviation was unjustifiable, and that the cargo owners could recover against the shipowner (cc). Case 3.-Oranges were shipped at Malaga, under a bill of lading, stating shipment on board a steamer "now lying in the port of M., bound for Liverpool with liberty to proceed to and stay at any port or ports in any rotation in the Mediterranean, Levant, Black Sea, or Adriatic, or on the coasts of... Spain . . . for the purposes of delivering coal cargo or passengers, or any other purpose whatever." The steamer on leaving Malaga, proceeded to B., a port two days off in the opposite direction to L. where she loaded cargo, and then returned and proceeded to L. By reason of this delay, the o anges were rotten on arrival at L. Held, that general words must be limited by the specified voyage, and only allowed the ship to call at ports fairly and substantially in the ordinary course of the voyage, and that they did not justify the actual deviation (d). Article 100.-Master's authority to delay and deviate in cases of necessity. If a master receives credible information that if he continues in the direct course of his voyage his ship or its cargo will be exposed to some imminent peril, as by hostile capture, pirates, icebergs, or other dangers of navigation, or where ship or cargo have been damaged and repairs or reconditioning are necessary (dd), he will be justified in reasonable delay to ascertain the nature of the danger, and reasonable delay or deviation to avoid or repair (dd) it, or to consult his owners, if communication with them is possible (e). It is not necessary that the danger should (c) Davis v. Garrett (1830), 6 Bing. 716. Cf. Leduc v. Ward, (1888) 20 Q. B. D. 475, and Balian v. Joly Victoria (1890), 6 T. L. R. 345, (cc) Scaramanga v. Stamp (1880), 5 C. P. D. 295. (d) Margetson v. Glynn (1892), 1 Q. B. 337; (1893) A. C. (d) Cf. Phelps, James & Co. v. Hill (1891), 1 Q. B. 605. It would seem from this case, that where the ship is a general ship, and therefore there are many owners of cargo, it will rarely, if ever, be necessary to communicate with them for authority to delay or deviate, even if one of the objects of such action is reconditioning of cargo; sed quære; and see Article 98, ante. (e) The Teutonia (1872), L. R. 4 P. C. 171, at p. 179; The San Roman (1873), L. R. 5 P. C. 301; The Wilhelm Schmidt (1871), 25 L. T. 34; The Express (1872), L. R. 3 A. & E. 597; The Heinrich (1871), L. R. 3 A. & E. 424; Pole v. Cetcovitch (1860), 9 C. B., N. S. 430. Where the danger was foreseen by the shipowner, who after consideration gave his master orders to pursue a certain course, the be common to ship and cargo: it will be sufficient if it affects either of them (f). If the master delays or deviates unreasonably, or to a greater extent than a prudent man under the circumstances would adopt, the cargo owner's position depends on whether the delay is so unreasonable as to put an end to the contract from a commercial point of view. If it is, he will be justified in requiring his goods at the port of delay without payment of any freight (g); if it is unreasonable, but not so much so as from a commercial point of view to put an end to the contract, his remedy will be an action for damages (h). If the delay or deviation is reasonable, the charterer cannot require the goods short of the port of destination, without the payment of full freight (i). Case 1.-A Prussian ship with a contraband cargo was chartered from X. to an English port for orders; thence to any safe port in En land or the continent between Havre and Hamburg; she received orders to proceed to Dunkirk, and had arrived off that port on June 16, when she was informed that war had broken out between France and Prussia. The captain sailed to the downs to inquire, and anchored there on June 17 (Sunday): on the 18th, the shipowner ordered him not to go into Dunkirk ; on the 19th he put into Dover, and there was informed that war between France and Prussia, imminent from the 10th of June, had been declared on the 19th. Held, that putting back to the Downs to obtain information and the delay till the 19th were justifiable, and that the goods owners could not obtain their goods at Dover, without payment of full freight (j). Case 2.-Coffee was shipped on a German ship, under a bill of lading, containing only an exception of perils of the seas, from America to Hamburg. Near Falmouth the master was informed that war had broken out between France and Germany, and he accordingly put in to F. master has no power to deviate from that course in consequence of that danger: The Roebuck (1874), 31 L. T. 274. (f) The Teutonia, vide supra. See, however, The Patria (1871), L. R. 3 A. & E. 436, at p. 464, on which see note (1), post: per contra, see Castel v. Trechmann (1884), 1 C. & E. 276. (h) See Articles 28, 30. (i) The Teutonia, vide sub. (j) The Teutonia (1872), L. R. 4 P. C. 171. The San Roman, The Heinrich, The Express, and The Wilhelm Schmidt, note (e) p. 200, all arose out of similar circumstances, and in effect decide that reasonable apprehension of capture justifies delay or deviation. The latter part of the decision in The Teutonia can be supported either on the ground in the judgment, that the master was entitled to delay for a reasonable time by fear of capture, and could not be required to abandon his voyage without the payment of full freight; or on the ground that as the charterers had not named a port which could safely be entered, the fulfilment of the voyage was prevented by their failure to name a "safe port," and therefore the master was entitled to full freight. See post, Article 139. on August 23. Hamburg was then blockaded by the French Fleet, and remained blockaded till September 18. During all that time and until November 7, the English Channel and North Sea were rendered unsafe by French cruisers. On September 18, when the blockade was raised, the goods owner offered full freight for the goods delivered either at F. or at Hamburg. The master refused to proceed to Hamburg, on the ground of the danger of capture, and refused to deliver the cargo. Held, that the master's delay (of fifty days, September 18 to November 7), was unreasonable, and his retusal to either proceed to H. or deliver the cargo, a breach of the contract (k); and that the goods owners were therefore entitled to the cargo. Case 3.-Goods were shipped at Swansea on a general ship starting from Bristol, and calling at S., to New York. The ship put into Queenstown, with damage to ship and cargo through bad weather. The captain communicated with the shipowners at Bristol, who ordered him to return there. He did not communicate with the cargo owners. When in the Avon, the ship and cargo were lost by an excepted peril. Cargo owners sued the shipowner for loss on a deviation. It was proved that the ship but not the cargo could be repaired at Queenstown; that ship and cargo could be repaired, and cargo sold at Swansea, sixty miles short of Bristol; that ship could be advantageously repaired and cargo sold at Bristol, though there was no evidence as to whether the cargo could be reconditioned there. The jury found the master had acted reasonably and the deviation was justifiable. The C. A. refused to disturb their verdict, and held, that under the circumstances there was no necessity to communicate with the cargo owners and obtain their sanction (1). Article 101.-Master's Duty to take care of Goods. The master, as representing the shipowner, has the duty of taking reasonable care of the goods entrusted to him, in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, e.g., by ventila (k) The Patria (1871), L. R. 3 A. & E. 436. It is difficult to understand this case, as the same judge had held a longer delay from similar causes reasonable in other cases: (e.g., San Roman, 53 days; Express, 170 days). The absence of the exception, "restraint of princes," cannot make the difference, as, in Atkinson v. Kitchie (1809), 10 East, 530, that had been held to apply only to actual capture and not to apprehension of capture. It may be, though it is not so stated, that the delay put an end commercially to the contract; or the case may be rested on the ground that the goods owner was entitled to demand his goods on tender of full freight, which, however, would not prove that he was entitled to them without any payment of freight on the ground of unreasonable delay. Sir R. Phillimore suggested that on the refusal of the master to proceed to H. the goods owners were entitled to their goods on payment of a pro ratâ freight, but it seems clear that such a refusal if wrongful would entitle them to their goods without payment of any freight at all. Medeiros v. Hill (1832), 8 Bing. 231, shews that, if the parties knew of the blockade when the charter was entered into, the existence of the blockade would be no defence to an action for not proceeding towards the blockaded ports. (1) Phelps, James & Co. v. Hill (1891), 1 Q. B. 603. tion, pumping, or saving goods which accident has exposed to danger (m). He has also the duty of taking reasonable measures to prevent the loss or deterioration of the goods even by reason of accidents, for the necessary effects of which the shipowner is by reason of the bill of lading under no liability, and the shipowner will be liable (n) for any neglect of such duty by the master (m). The place, the season, the extent of the deterioration, the opportunities at hand, the interests of other persons in the adventure whom it might be unfair to delay for the sake of that part of the cargo in peril, all the circumstances affecting risk, trouble, delay, and inconvenience must be taken into account. The performance of the duty cannot be insisted on if it involves deviation, but reasonable delays in a port of call for purposes connected with the voyage, though not necessary to its completion, will not amount to deviation (m). As the master has to exercise a discretionary power, his owner will not be liable unless it is affirmatively proved that the master has been guilty of a breach of duty (m). Semble, the master will have a lien on the goods for any expenses incurred in the performance of such duty (p). Case.-F. shipped beans on the S. on a voyage to Z., the bill of lading giving leave to call at ports on the voyage. The vessel called at Y., and on her way out came into collision, whereby the beans were damaged by salt water; she put back to Y. The wet beans might have been warehoused and dried at Y., with material benefit to them, and without unreasonable delay to the adventure. The ship proceeded to L without drying them. Held, that the shipowners were liable to F. for the master's failure to dry the beans (9). (m) Notara v. Henderson (1872), L. R. 5 Q. B. 346; 7 Q. B. 225, per Willes, J., at p. 235; Tronson v. Dent (1853), 8 Moore P. C. 419; Australasian N wigation Co. v. Morse (1872), L. R. 4 P. C. 222. Ct. Giriock v. Walker (1873), 1 Sc. Sess. Cases, 4th Ser. 100; Adam v. Morris (1890), 18 Sc. Sess. Cases, 153; Phelps, James & Co. v. Hill (1891), 1 Q. B. 605. (n) This is not like the authority to tranship, a power for the benefit of the shipowner only, to secure his freight: De Cuadra v. Swann (1864), 16 C. B., N.S. 772. (p) Hingston v. Wendt (1876), 1 Q. B. D. 367. p. 373. See per Blackburn, J., at |