fied in reversing the sentence of the court below, and, therefore, I dismiss the appeal with costs.

I will give permission to appeal. It is very desirable that there should be a further hearing.

From this judgment the defendants, owners of the Swallow, in accordance with the permission granted, again appealed.

March 12.-Butt, Q.C.and Clarkson for appellants. -The tide was running down four knots, and the steamer was only coming up two or three knots an hour over the ground. She could not have come up more carefully; if she had gone slower she would not have been under command. She had a good look out, but was prevented from seeing the Rhine in consequence of another barge higher out of the water, behind and in a line with her. Under the circumstances it was the duty of the barge, for the safe navigation of the river by other vessels, to make her position known hy some means. It is true that it has been decided that the rules as to lights to be carried by ships do not apply to these dumb barges; but that does not relieve the barge from the duty of informing other vessels by some means or another of her position, e.g., by waving a light or otherwise. The first intimation we had of her position was a hail from her to port our helm, and immediately the order was given on board the Swallow "hard a port," but it was already too late to avoid a collision. The learned Judge of the City of London Court did not himself consider that any blame attached to the Swallow, but allowed himself to be guided by bis nautical assessors, and the learned Judge of the High Court of Admiralty based his judgment in part on a supposed concession that the barge was not to blame, but no such concession was made. It was argued that although the barge need not carry side lights, yet that she was bound to show a light of some sort under such circumstances. [JAMES, L.J.-The fact of a collision taking place does not necessarily involve negligence.] That is true; but here there was nothing to prevent the barge showing a light, and if she had done so no collision would have happened. [JAMES, L.J.—I do not know of any express statute that obliges a carriage using an ordinary highway at night to carry lights. No; but if a carriage not carrying lights came into collision with one having lights, it would be strong evidence of negligence on the part of the one without lights. At all events, there is no evidence of negligence on the part of the steamer, and if a barge chooses to navigate the river under such conditions without a light, she does so at her own risk.

Cohen, Q.C. (with him Hall and Hannen), for respondents. The law does not absolutely, and in all cases, require a steamer to get out of the way of other vessels, but when a collision takes place, the onus of proof is on her to show that she could not have avoided the collision, and she has not satisfied it. [MELLISH, L.J.-Do you contend that it is not necessary for the plaintiffs in such a case to prove negligence on the part of the defendant ?] The negligence is necessarily inferred from the facts. If there had been a proper lookout the barge would have been seen sooner. A witness on shore says he saw it 250 or 300 yards off. If the Swallow had exercised proper vigilance the collision would not have occurred: those on board her were well aware that the tide was running down four knots, and if they were only stemming it, as they say,

[CT. OF APP.

а

two knots, yet they knew that they must be approaching barges drifting at the rate of six knots, and that is a state of things requiring an amount of caution not exercised in this case. The nautical assessor in both courts below considered that the facts proved showed negligence, and the Court of Appeal will hesitate to reverse decision depending upon technical nautical knowledge. There is no duty or obligation on a barge to show a light, and by doing so she would be more likely to embarrass approaching vessels than by not doing so. Those on board the Rhine did every-thing that they ought to do; they hailed the steamer to get out of the way, and the fact of her not doing so establishes a prima facie case of negligence against her. [JAMES, L.J.-The learned judge of the High Court of Admiralty seems to think that there is some question of law in the case.] That is as to the duty of a barge to show a light under any circumstances, with reference to his own decision that they need not do so (The Owen Wallis, ante, vol. 1, p. 206; L. Rep. 4 Ad. & Ecc. 175; 30 L. T. Rep. N. S. 41.) [BAGGALLAY, J.A. It is proved that the look-outs were properly stationed on board the Swallow, aud in the absence of contradiction, it must be assumed that they did their duty.]

Clarkson, in reply, was stopped.

JAMES, L.J.-Do the applicants ask for costs? Clarkson.-The appeal has been prosecuted by the General Steam Navigation Company as a question of principle; if we succeed we are, I think, according to the practice of the Court, entitled to our costs, but I will not press the claim.

JAMES, L.J.-This case has come before us in a way which I think might deserve some reprehension. There is, no doubt, a question of principle in this case so far as the General Steam Navigation Company is concerned. It is desirable in cases of this kind, upon a question of fact, that the reasons for the decision of the County Court judge, as well as for that of the judge of the Admiralty Court, on coming to us should sufficiently appear. We cannot help saying that the decision of the County Court was not in accordance with the opinion of the judge who tried the case, because he thought himself obliged to decide it otherwise than he would have done if he had had to decide it in a court of common law as an ordinary case, under which circumstances he would have nonsuited the plaintiff. One does not know to what extent the nautical assessors gave their opinion to him about the collision, according to the materials furnished to us, but it is clear that the learned judge of the Court of Admiralty entertained considerable doubt about the matter, and we have got to deal with it in this way, not to overrule the decision of the Admiralty Court, but to review the decisions of each court.

Now, our assessors think that, under the circumstances, having regard to the condition of the night and the position of the vessel, it really was a case of inevitable accident. In these cases the burthen of proof is on the person who alleges the negligence on the part of that person of the result of whose acts he complains. And upon the evidence here, and with the assistance of our assessors, we are of opinion that the plaintiff has not discharged the onus of proof on him—that is, of proving negligence on the part of the defen. dants; and there is very strong evidence given by

those on board the Swallow, that they were using reasonable caution, going at a moderate speed, making little way, and having a proper look out; and they gave further evidence that this particular barge was not seen, while another barge that was further off was seen by those on board the Swallow. We cannot help coming to the conclusion that the defendants have exonerated themselves, and that they ought to have had the judgment of the County Court.

With regard to the costs of the hearing of the two appeals, the latter one of which has been successful here-as it really has been a matter of favour to the General Steam Navigation Company to allow them a second appeal at all—we think that the justice of the case will be met by allowing them no costs, while relieving the barge from any costs. The order for payment of costs will be discharged.

MELLISH, L.J. and BAGGALLAY, J.A. concurred. Solicitors for appellants, Batham and Co. Solicitors for respondents, Farnfield.

HIGH COURT OF JUSTICE.

QUEEN'S BENCH DIVISION. Reported by J. M. LELY, Esq., and M. W. MCKELLAR, Esq., Barristers-at-Law.

Friday, Jan. 19, 1877.

SCRUTTON v. CHILDS.

Charter-party-Custom-Whether excluded by terms of charter-party-West India ports-Payment of lighterage, whether by shipowner or charterer. The plaintiffs agreed with the defendant by charter. party that the defendant's ship should load at Barbadoes, St. Kitts, or Trinidad, a full cargo of West India produce, " to be brought to and taken from alongside at merchant's risk and expense." These words, with others, were in print. The charter-party also contained the words " at Trinidad as customary." These words, with others, were in writing. The custom at Trinidad is, that the ship pays for the lighterage, and the shipowner allows the charterer the reasonable expense thereof. The defendant's ship loaded at Trinidad in the customary manner, but the captain refused to pay the lighterage, whereupon the plaintiffs had to bear the expense of it:

66

cargo

Held, that the stipulation, cargo at Trinidad as customary," worked an exception to the stipulation as to loading at merchant's risk, and that the plaintiffs were entitled to recover the lighterage from the d-fendant.

Tis was a special case stated after joinder of issue. under the Judicature Act 1875, Order XXXIV., rule 2, pursuant to the order of Lindley, J.

1. On or about the 26th Feb. 1875, a charterparty was entered into between the plaintiff and the defendant, being a document partly in writing and partly in print, and, save as mentioned in the second paragraph of the case, as follows:

[The written part is printed in italics.]
Memorandum of charter.

London, 26th Feb. 1875. It is this day mutually agreed between G. Childs, Esq., of the good ship or vessel called the Elizabeth Childs, A. 1, of the measurement of 390 tons or thereabouts, now lying in the port of Greenock, and Messrs. Scrutten, Sons,

[Q.B. DIV.

and Co., of London, merchants, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed proceed to Barbadoes direct, for owners' benefit, to load there or at St. Kitts or Trinidad. Orders to be given at Barbadoes on arrival. Time occupied in shifting ports not to count as lay days, or so near thereunto as she may safely get, and shall then and there load from the factors of the said merchants, at the customary places, a full and complete cargo of West India produce, to be brought to and taken from alongside at merchants' risk and expense, with 150 barrels, or equal thereto, for small stowage in tierces barrels. Small stowage shipped in excess of the stipulated quantity, at masters written request, to be at current rate, unless exceeding rate per charter-party.

ur

Charterers have liberty to ship up 500 bags sugar at 30s. per ton, which said merchants hereby bind themselves to ship not exceeding what she can reasonably stow and carry as aforesaid, and being so loaded shall therewith proceed to Queenstown, or any convenient port of call, for orders to discharge at one safe port in United Kingdom. Three clear days to be allowed for transmission of orders, or lay days to count, and discharge in such docks as charterers may appoint, or so near thereto as she may safely get, and deliver the same on being paid freight. If loaded at Barbadoes, 42s. 6d. per ton of 20cwt. net delivery for sugar or molasses, if ordered direct on signing bill of lading. 458. if calling for orders. Other goods in proportion. Five guineas gratuity.

In fall of primage or pierage, and all port charges and pilotage the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigations, of whatever nature and kind soever during the said voyage always excepted. The freight to be paid on unloading and right delivery of the cargo at two months date from report.

Thirty running days (Sundays excepted) to be allowed the said merchants for loading at loading port and receiving orders at port of call homewards, to date from 25th May 75, if reacy and required, days on demurrage (Sundays excepted) over and above the said laying days, at fourpence per register ton per day.

If not arrived at loading port and ready to load on or before the 25th July 75, charterers' agents have liberty to cancel this charter.

Sufficient money to be advanced the master for ordinary disbursements at loading port, at the current rate of exchange and free of commission, but subject to insurance, to be deducted from the ship's fre ght on settlement.

The master to give notice to charterers' agents of the vessel being ready to receive cargo, and to sign bills of lading at any rate of freight required, without prejudice to this charter.

The charterers' responsibility on this charter-party to cease as soon as the cargo is on board, except for such differences as may exist between the freight payable by bills of lading at the port of discharge and the freight due to the vessel by virtue of this charter-party. Penalty for non-performance of this agreement, estimated freight. The ship to be adressed to and reported at the custom house by C. J. Brightman and Co., London, or to their agents at the port of discharge, who are to receive a commission of five per cent. on this charter, which is due on signing this agreement, also on dead freight and demurrage, if any, with 241. per cent. for transacting ship's business at loading port, and 21. 28. for reporting inwards at port of discharge.

The vessel to be consigned to charterers' agents, free of commission. Should the vessel return without a full cargo, the charterers are to have the benefit of any reduction in the ordinary dock dues.

Should vessel load at St. Kitts, freight in that case to be 43/9, if ordered direct, on signing bill of lading; 2/6 extra if calling for orders, and if vessel loads at Trinidad freight to be 47/6, if to United Kingdom orders or direct, 10 per cent. extra, if to Continent between Havre and Hamburgh, and a further 2/6 per ton if to St. Nazaire. Cargo to be loaded at Trinidad as customary.

Sg. Scrutton, Sons, and Co. By authority. 27/2/75, per pro, C. J. Brightman and Co. sd. Charles E. Brightman.

Witness

Sg. Charles E. Brightman.

2. The parties are not agreed as to whether the words "to be loaded,” in the last clause, were or were not part of the charter-party, and that question is one of those to be tried after the decision of the special case.

3. The plaintiffs allege that the custom at the port of Trinidad, referred to in the last paragraph of the charter-party, whether the words "to be loaded were in or not, is a custom that the ship pays for the lighterage of the cargo from the shore to the ship, and that the shipowner pays or allows to the charterers the reasonable expenses of all such lighterage, and that if the charterer first pays the same, the shipowner repays to the charterer the amount so disbursed, and the cost and expenses of insuring the same, or to the like purport, and effect, and that in consequence of such custom the rate of freight between Trinidad and England is higher than between England and other West India Islands, where, but for such custom, it would be the same. The defendant denies the existence of any such custom, and he also denies that such custom, even if it existed, was meant to be referred to by the charter-party, and the existence of such custom is a question of fact to be tried, but for the purposes only of this special case it is to be taken that the said custom, or a custom to the like effect, existed.

4. The said ship sailed for Barbadoes, in accordance with the said charter-party, and loaded the agreed cargo at Trinidad, and delivered the same at Bristol.

5. The said cargo was brought to the ship at Trinidad in flats or lights, and was loaded therefrom in the customary manner; and if the alleged custom existed, it is submitted that what was done was in accordance therewith.

6. The plaintiffs were put to expenses for such lighterage amounting to 691. 18.

7. The agents of the plaintiffs at Trinidad applied to the captain of the said ship for payment of the said sum of 691. 18.

8. The captain of the said ship refused to pay the said sum or any part thereof, and thereupon the agents of the plaintiffs paid the said sum of 691. 18., and insured the ship's disbursements, including the said sum of 691. 18. at a cost of 21. 2s.

9. The plaintiffs in this action seek to recover the said sum of 691. 1s. and 21. 2s.

The question for the opinion of the court is, whether, upon the facts above stated, and assuming that the custom is as set out in paragraph 3, or to the like effect, the plaintiffs would be entitled to recover the said sums from the defendant? First, if the words "to be loaded" were included in the charter-party secondly, if the said words, were not so included? and, thirdly, if in either case the plaintiffs would be entitled to recover. The question of the existence of the custom, and what were the words of the charter-party (if there is a material difference between the two cases), are to be tried; if not, judgment is to be entered for the defendant for his costs.

Arbuthnot (WV. G. Harrison with him), for the plaintiffs, argued that the custom at the port of Trinidad did not necessarily contradict the terms of the charter-party, and that if it did, the written clause importing the custom ought to prevail. He referred to

Hutchinson v. Tatham, 29 L. T. Rep. N. S. 103; L. Rep. 8 C. P. 482; 42 L. J. 260, C. P. [He was stopped by the court.

[Q.B. Div.

A. L. Smith, for the defendant, argued that the custom mentioned in paragraph 3 of the charterparty was not necessarily incorporated in that document, and that if the charter party were read as had been suggested on behalf of the plaintiffs that would be equivalent to striking out the words "merchant's risk" altogether. Written words do not override printed words.

McGee v. Lavell, 30 L. T. Rep. N. S. 169; L. Rep. 9 C. P. 107; 43 L. J. 131, C.P. MELLOR, J.-The case of McGee v. Livell does not bear upon this point. In that case there was a falsa demonstratio. Here the parties appear to have forgotten to strike out the printed words which contradicted the written ones, and the question for us to decide is, which is to prevail of two contradictories? I am of opinion that our judgment ought to be for the plaintiffs.

LUSH, J., concurred.

Judgment for plaintiffs. Solicitors for the plaintiffs, Nash and Field. Solicitors for the defendants, Ingledew. Ince, and Greening.

Jan. 11, 18, and Feb. 9, 1877.

COHN v. DAVIDSON.

Charter-party-Implied warranty-Seaworthiness -Time at which it attaches-Commencement of voyage.

The warranty of seaworthiness implied in a charter party attaches at the time of the ship's sailing, and is not exhausted on the ship's proceeding in a seaworthy condition to her loading berth. By a charter-party, defendant's ship was to proceed to a good and safe place in the river or dock as ordered, and there take on board a cargo of cement for the plaintiff, and proceed therewith to port of discharge. She loaded according to plaintiff's orders at the usual wharf for such cargo, where, however, she of necessity grounded at low water. From the time of sailing she took in water, and although she proceeded on her voyage, the wind being fair, she foundered just before reaching her destination. The ship was seaworthy when she commenced taking in cargo, but not when she set sail, and she must therefore have received damage in the course of loading. The jury found the master innocent of negligence.

Held, that the implied warranty of seaworthiness was not exhausted on the ship's proceeding to the wharf under the agreement, but attached at the time of sailing, when the underwriters' risk commenced.

THIS was an action upon a charter-party, tried at Liverpool before Lush, J. Leave was reserved to the plaintiff to move for judgment on the findings of the jury. The facts are sufficiently stated in the written judgment of the court.

Jan. 11 and 18.-Herschell, Q.C. and Crompton, for the plaintiff, moved for judgment on the leave reserved, and also moved for a new trial on the ground that the verdict was against the evidence. Russell, Q.C. and Gully showed cause for the defendants against the motion and rule. The arguments on both sides are fully stated in the following judgment.

Cur. adv. vult. Feb. 9.-The judgment of the court (Mellor, Lush, and Field, JJ.) was delivered by

FIELD, J.-In this case there were two motions

on the part of the plaintiff, one for judgment under Order XL., r. 2, and the other for a new trial on the ground of misdirection.

The action was tried before Lush, J., at the Liverpool Winter Assize of 1875. It was brought to recover the sum of 500l., being the value of a cargo of cement shipped by the plaintiff on board the Iola, of which the defendants were the owners, and which foundered with the cargo on board in St. Andrew's Bay, on the 21st May 1875. The cement was shipped under a charterparty dated the 14th May 1875, and made beween the plaintiff and the master of the ship (which was then at the port of Sunderland), and by the terms of it the ship was to "proceed to a good and safe place or places in the river or south dock as ordered, and there take on board" the cargo in question and proceed therewith to Dundee to discharge.

It appeared at the trial, that at the time of the execution of the charter-party, the plaintiff ordered the ship to load at a wharf in the river (which was part of the port of Sunderland) at which wharf cement is often loaded, but where all vessels of necessity ground on the mud at every low tide. The ship having proceeded to the wharf in obedience to her orders, took the cement on board on the 19th and 20th May; in the afternoon of which latter day (the master having signed a bill of lading of that date in the usual form in pursuance of the ordinary clause in the charter-party requiring him so to do without prejudice to the charter) she was towed out to sea and set sail on her voyage.

Her pumps were sounded on starting, and she was found to have made about 18in. of water; she was then pumped out, but in about an hour she was found to have made 2ft. of water, and in consequence of this a consulta. tion was held between the master and the crew as to the proper course to be adopted, and it was agreed that it was better to proceed to her destination, as the wind was fair and voyage not very long, rather than return to port with a foul wind.

She accordingly proceeded on her voyage, the pumps being kept at work, and had reached St. Andrew's Bay, within six miles of her place of discharge, when the water having overpowered her pumps, she foundered about a mile and a half from the shore.

Under these circumstances it was contended at the trial on the part of the plaintiff that the loss of his cement was caused by the ship not being seaworthy, in breach of warranty on the part of the shipowner that she should be so, which the plaintiff alleged was necessarily to be implied from the charter.

It was clear that the ship was not in fact seaworthy at the time she set sail; and that as she was found to be seaworthy when she commenced taking in cargo, she must have received damage in the course of loading. The defendant contended that the implied warranty was thereupon satisfied, and that the whole duty of the shipowner thenceforth was to take due and reasonable care, and that under these circumstances of the case the master, who had no reasonable means of ascertaining the existence of the defect which rendered ber unseaworthy, was therefore not guilty of any want of care in setting sail in her then condition.

These propositions were denied by the plaintiff,

[Q.B. Div.

who further set up that, even if they were true, the master was further guilty of negligence in proceeding on his voyage instead of returning to port, after he had discovered the unseaworthiness of his ship.

Evidence was given at the trial on both sides support and contradiction of these propositions, and at the close of the evidence Lush, J. left the following questions to the jury:

1. Was the Iola seaworthy at the time she commenced taking in cargo?

2. Were the defendants guilty of negligence in sending her to sea in the condition in which she was?

3. Was the captain guilty of negliger.ce in not returning to port ?

In answer to these questions the jury found, First, that she was seaworthy at the time she commenced taking in the cargo;

Secondly, that the defendants were not guilty of negligence in sending her to sea in the condition in which she was;

Thirdly, that the captain was not guilty of negligence in not returning to port.

Upon these findings the learned judge gave the plaintiff leave to move to enter judgment for 500l. if such a warranty as was alleged was to be implied, and if it applied under the circumstances of the case, and the plaintiff's motion for judgment was made under this leave.

Upon the argument before us, Mr. Herschell, in support of it, relied upon the rule of law laid down by this Division in the case of Kopitoff v. Wilson (ante, p. 163; L. Rep. 1 Q. B. Div. 380; 34 L. T. Rep. N. S. 677), decided since the trial of this cause, "that in whatever way a contract for the conveyance of merchandize be made, where there is no agreement to the contrary, the shipowner is by the nature of the contract impliedly and necessarily held to warrant that the ship is good, and is in a condition to perform the voyage then about to be undertaken, or in ordinary language is seaworthy, that is, fit to meet and undergo the perils of the sea and other incidental risks to which she must of necessity be exposed in the course of the voyage;" and he contended that, although the jury had found that the Iola was seaworthy at the time of her proceeding to the wharf in question, her admitted unseaworthiness at the time of her sailing from the wharf was a breach of this warranty which entitled him to recover. He also contended that a similar warranty was to be implied from the bill of lading which was made on the 20th May, just before she sailed. Mr. Russel, on the part of the defendants, did not dispute the principle laid down in Kopitoff v. Wilson, but relying upon the finding of the jury that the ship was seaworthy for the voyage when she proceeded to the wharf, he said that warranty attached, and was exhausted at that time; the proceeding from the spot in the port of Sunderland at which she lay at the time of the execution of the charter to the loading berth being, he said, an act done under the charter which formed the commencement of the period at which the warranty attached; and he then argued in accordance with the English rule of law on that head, that if the warranty was thence once complied with, subsequent unseaworthiness, not caused by the negligence of the master, did not give the shipper any right of action. He was unable to

Q.B. Div.]

cite any authority directly applicable to the case of a contract of carriage for fixing the application of the warranty within the above rule at this particular stage; the cases he referred to in support of his contention being in truth (as was observed during the argument) cases in which the court, in construing a particular instrument, put a particular construction upon the meaning of the word "voyage," as used with regard to the excepted perils, under the particular circumstances of the case: (Barker v. McAndrew 18 C. B. N. S., 759; 2 Mar. Law Cas. O. S. 305; Bruce v. Nicolopulo, 11 Ex. 129); or decided that upon the construction of the instrument then under discussion, the warranty of class was limited to a warranty or representation at the time of using the words, viz., the execution of the charter-party, and did not continue throughout the voyage.

He contended, however, upon principle, that the warranty should be held to attach at that period, because the proceeding from where the ship lay at the time of the execution of the charter-party to the loading berth as ordered was the first act done under the charter, and was equivalent to the commencement of the risk which in cases where an analogous warranty is implied between the underwriter and the assured is the point of time at which the warranty is to be complied with.

But we think a reference to the principles laid down in those cases, and regarding mercantile convenience, which in construing mercantile matters is a thing always to be regarded, that this contention cannot be supported.

Let us first consider what is the nature and object of the warranty of seaworthiness, and under what circumstances it is implied.

The merchant has goods which he considers he can dispose of at a profit at a distant port, and having selected his home port from which to despatch them, he engages or delivers his goods to a ship upon which he may with reasonable safety effect their transport to their place of destination.

Having made his contract of carriage, and the law having implied for him the warranty of the shipowner that the ship is fit to meet the ordinary perils of the voyage, the merchant then insures himself against those perils by the ordinary marine policy.

Now nothing can be clearer than that upon such a policy the warranty of seaworthiness for the voyage, which he, as the assured, comes under in like manner by implication to the underwriter, is a warranty that the ship is or shall be seaworthy at the time of sailing on it. That is the point at which the risk commences, and at which the warranty attaches, and is by the law of England exhausted. No degree of seaworthiness for the voyage at any time anterior to the commencement of the risk will be of any avail to the assured, unless that seaworthiness existed at the time of sailing from the home port of loading. As therefore the merchant in a case like the present would not be entitled to recover against his underwriter, by reason of the breach of warranty in sailing in an unseaworthy ship, it would follow that if the warranty to be implied on the part of the shipowner is to be exhausted by his having the ship seaworthy at an anterior period, the merchant would lose that complete indemnity by means of the two contracts taken together, which it is the

[C.

universal habit and practice of mercantil endeavour to secure. Seaworthinesa is we stood to mean that measure of fitness particular voyage or particular stage of th requires. A vessel, seaworthy for port for loading in port, may be, without any warranty whilst in port, unseaworthy voyage (Annen v. Woodman, 3 Taunt. 2 if she put to sea in that state the wa broken.

Now the degree of seaworthiness w merchant requires is seaworthiness for th and surely the most natural period at w warranty is to attach is that at which t are to be encountered which the ship worthy to meet.

The ship is during her stay in port, a loading, and when she sets sail on her v the custody and possession and under th of the master and crew, and it is most re and convenient to impose upon those w the best means of knowing the duty of a ing her condition, at that critical time is about to meet the perils which it is t of all parties that she should be pre meet.

This being our view of the case, it is eary for us to express any opinion upon sidiary questions raised by Mr. Hersch with reference to the motion made by h new trial on the ground of misdirection to the question of the alleged negligen master in not returning to port on the dis the vessel leaking, we think it right to we have read carefully the evidence, the s up of the learned judge, and the com counsel by which the evidence was poi shaped, and we see no reason whatever. at the conduct and course of the trial, that the learned judge quite sufficiently e to the jury, and that the jury fully und what was the question they had to deci result therefore will be that under Mr. H motion we enter judgment for the plaintif sum of 5001., and discharge his rule for a

Judgment for pl

Solicitors for plaintiff, Maples, Teesdale Solicitor for defendant, J. W. Hickin.

COMMON PLEAS DIVISION Reported by S. HARE, Esq., Barrister-at-L

Jan. 31 and Feb. 14, 1877. BARWICK v. BURNYEAT, BROWN, AND CO Shipping-Charter-party-Bill of ladin struction-Cesser of charterer's liability ing-Freight.

A charter-party provided for the cesser of of B. and Co., the charterers of a ship, on and payment of advance freight at port ment. B. and Co. were consignees of th and the bills of lading made the cargo able "unto order or assigns, he or they freight and other conditions as per chart The cargo was duly loaded and the advan In an action for balance of freight agains Co.

Held, that they were not liable, their

on the charter-party ceasing on the comp