« ForrigeFortsett »
principal and interest, though the ship perish, provided the goods are safe. But in all other respects the contract of bottomry and that of respondentia are upon the same footing; the rules and decisions applicable to one are applicable to both; and, therefore, in the course of our inquiries they shall be treated as one and the same thing, it being sufficient to have once marked the distinction between them.-Park.
JUDICIAL COMMITTEE OF PRIVY COUNCIL, JUNE 29, 1853. (Before Lord Justice Knight Bruce, Lord Justice TURNER, Sir John Dodson,
and Sir EDWARD Ryan.)
This was a cause of bottomry, originally promoted in the High Court of Admiralty by Messrs. Wilson, Sons, and Co., of Hull, to recover the value of a bond granted on the ship, freight, and cargo, amounting, with maritime interest at 15 per cent., to 4511. 13s. 4d., the validity of which was disputed by Messrs. Wilkinson and Co., of Hull, the owners of the principal part of the cargo, and which consisted of Swedish iron. The facts of the case were
iefly these :— The Bonaparte sailed from Gottenburg on the 13th of November, 1848, bound to Hull, and in the prosecution of her voyage experienced much bad weather, in consequence of which she became leaky, and on the 21st of the same month came to anchor in South Kaster-bay, in Sweden. The master went to the owners, distant about 60 iniles, to obtain the necessary funds to pay for the repairs, but tly informed bim that they had no ready cash; that he must get the repairs effected at Stromstad, and there borrow the money, which he did on the bond now in dispute. At the hearing in the Court below the learned Judge pronounced for the validity of the bond, against which an appeal was prosecuted to their Lordships, who remitted the cause for the reception of further evidence as to what communication had been made with the owners of the cargo prior to its hypothecation. That evidence having been adduced, Dr. Lushington adhered to his former opinion as to the validity of the bond, and against that decision the present appeal was instituted.
Dr. Addams and Mr. Willes having been heard for the appellants,
Lord Justice Knight Bruce delivered the judgment of their Lordships, without hearing counsel for the respondents. Their Lordships, he said, were of opinion that the case of the appellants failed before, except in one pointnamely, the sufficiency of the communication made to the owners of the iron before the bottomry bond was given. The additional evidence produced on that subject had revewed their Lordships' doubts, and they must therefore affirm the decree of the Court below, with costs.
BILL OF SALE.
COURT OF COMMON PLEAS, WESTMINSTER, JUNE 8, 1855.
Sittings in Banco.— Trinity Term.
REED AND ANOTHER V. FAIRBANKS AND OTHERS.
This was a special case. The action was in trover, brought to recover the ship Lavinia, built by one Alexander Russell, of Nova Scotia, for the plaintiffs, who are Glasgow merchants, and on which the plaintiff's had made advances amounting, in stores and money, to about 1.8001 To secure these advances, Russell gave the plaintiffs a bill of sale of the ship, assigning the ship and all her stores to the plaintiffs, “to have and to hold to their own use and behoof when the said ship shall be completed and finished.” The ship was also registered provisionally at Nova Scotia as the property of the plaintiffs. The plaintiffs refusing to make further advances, Russell got the defendants to make him advances on the ship, and in consideration of these advances the detendants got Russell to cancel the registration papers, and took possession of and completed the ship, which they freighted and sent to Liverpool. At
the trial before the Lord Chief Justice a verdict was found for the plaintiffs, subject to a special case.
Sir Fitzroy Kelly and Mr. Barstow appeared for the plaintiffs, and Mr. Bramwell, Q.C., for the defendants.
For the plaintiffs it was coutended that the ship, independently of the Registration Acts, was vested in the plaintiffs at the date of the original bill of sale, and that everything subsequently added to the ship by the defendants became the property of the plaintiffs, and also that the property in the ship (it having been built by Russell for the plaintiffs as their agent) was never out of the plaintiffs' possession, and that nothing done subsequently under the Registration Acts could defeat their title. It was not necessary that a ship should be registered to give title to her; registration only gave the ship the privileges of a British vessel, if she should be required for the purposes of trade (8th and 9th Victoria, chap. 89, sec. 2). But a certificate of registration had been given to the plaintiffs under the 17th section of the statute, and under its provisions complete title was in the plaintiffs to the ship, and Russell had no power to cancel the certificate. (“Gooch v. Russell,” 5 B. and Ald. 942.) The learned counsel contended that the plaintiffs were entitled to the balance of their account for which the ship was security, or to the value of the ship at any moment before action brought, and not simply at the date of its conversion.
For the defendants it was contended that the plaintiffs had no property in the ship under the Registration Acts, as the property did not vest on the granting of a colonial certificate until the ship was completely registered in this country; and, secondly, that mere words of present sale of the incomplete ship would not pass the ship at a future time when completed. (“Laidler v. Burlington," 2 M. and W, 602; “ Mucklow v. Mangles," 2 Stark., 318; “Ack. raman v. Maconie,” 19 L T.C.P., 57 ; “Clark v. Spence,” 4 Ad. and Ell., 448.) The proper measure of the damages, if the Court should be against the defendants, was the value of the ship at the time of the conversion, and not at any subsequent period the plaintiffs might elect.
The Court were of opinion that the plaintiffs were entitled to recover. The object of the bill of sale was to give security for the advances which had been made, and the Court were of opinion that it operated as a present sale of the ship. Russell, having once parted with his property in the ship, had no right afterwards to sell it. The effect of the subsequent registration of the ship, therefore, became immaterial. The measure of damages must be the value of the ship on the 29th of March, when the conversion took place, and of all the stores supplied for the ship.
JUDGMENT. The House met this morning and proceeded with the appeals. The Peers in attendance were--the Lord Chancellor, Lord Brougham, Lord Campbell, and Lord St. Leonard's.
GIBSON V. SMALL AND ANOTHER. Lord St. LEONARD's moved the judgment of their Lordships in this case. The question was whether in a time policy of assurance upou a ship it was implied that the vessel was seaworthy, as was the case in all insurances ettected upon a voyage policy. The noble and learned Lord, after going through the circumstances of the case, gave it as his opinion that a time policy did not imply seaworthiness, and moved judgment accordingly.
Lord CAMPBELL fully concurred. ---Judgment accordingly.
The appeal, which was from a judgment of the Court of Exchequer Chamber, was thereupon ordered to be dismissed with costs, and the judgment of that Court to be affirmed.
LIABILITY OF OWNERS.
COURT OF EXCHEQUER, SATURDAY, DECEMBER 17, 1853. (Sittings at Nisi Prius, before Mr. Baron Martin and Special Juries, at
ATKINSON AND OTHERS V. STEPHENS AND OTHERS.
Sir F. Thesiger and Mr. J. Wilde were counsel for the plaintiffs ; Sir F. Kelly, Mr. Willes, and Mr. Bullar appeared for the defendants.
This was an action to recover nearly 7,0001, the value of certain goods shipped at Buenos Ayres by the plaintiffs on board the Harriet, a vessel belonging to the defendants
, who pleaded several pleas denying their liability on various grounds-among others, that the goods had been sold by the captain without authority, in order to repair the vessel, which had subsequently been lost, and that they were not, at all events, responsible to a greater amount than the value of the ship and freights. Upon some of the points raised by these pleas the learned Baron expressed an opinion favourable to the plaintiffs; and, in the course of the morning, while the documentary evidence was being read, the parties came to an agreement to enter a verdict for 3,0001, to be distributed among the different owners of goods shipped on board the vessel in question.
A verdict was thereupon entered for the plaintiffs —3,0001. damages accordingly.
COURT OF QUEEN'S BENCH, GUILDHALL, DECEMBER 17, 1853.
(Sittings at Nisi Prius, before Lord CAMPBELL and a Special Jury.)
MITCHENER AND OTHERS V. OLIVER,
Mr. Serjeant Shee and Mr. Bovill appeared for the plaintiffs, and Mr. Bramwell, Q.C., and Mr. Barstow for the defendants.
The plaintiffs in this action, Messrs. Mitchener and Co., anchor and ship smiths at Millwall, sued the defendant, Mr. Oliver, a shipowner at Liverpool, to recover the sum of 2271. 6s. 2}d, for work done and stores supplied to a vessel named the Progress, at the latter end of the year 1852. The defendant denied his liability upon the ground that, although he was in fact the owner of the vessel, he had not authorized the outlay. It was proved, on the part of the plaintiffs, that in the month of October, 1852, the Progress was lying in the outward-bound East India Dock, where it was undergoing certain alterations, with a view to its being fitted up as a passenger-vessel for the convey. ance of emigrants under the sanction of Government.
A person named Thompson was at the time acting as the master of the ship, and it was upon his orders that the work was done and the goods supplied for which the plaintiff's now sought to recover. The goods supplied consisted of runningrigging, chain cables, &c., and the work done comprised a top-gallant, forecastle roundhouse, &c., all of wbich, it was stated, were necessary for the ship in the state in which it then was. It was admitted that the prices charged were fair and reasonable ; and the only question was, whether the defendant could be made answerable. He had himself given no express orders on the subject. He had, in fact, previously entered into a contract for the sale of the ship to a person named Gompertz; and had consented, after entering into this contract with Gompert7, to the appointment of Thompson as master, and continued as the sole registered owner for the whole period during which the goods were supplied and the work done. Having reason, after some time, to doubt Gompertz's ability to pay for the ship according to his contract, the defendant treated the vessel as still in his own possession, and subsequently sent it to sea as a passenger-vessel. The ship was greatly improved in value by the alterations which it had undergone, and the additions which had been made to its fittings and furniture, but the defendant now contended that many of the additions which had been made were not fit and necessary for the ship, and that, as the master had no authority to pledge his (the defendant's) credit to the plaintiffs, the defendant was not answerable.
Lord CAMPBELL, in summing up the case to the jury, said a shipowner was not liable, as such, for orders given by the master; but, on the other hand, if they thought the defendant continued in possession of the ship, and that Thompson had been appointed master with his privity and consent, and that the goods, &c., ordered by Thompson were fit and proper for the ship, under the circumstances the defendant would be liable.
Mr. BRAUWELL tendered a bill of exceptious to his Lordship's direction.
Lord CAMPBELL then took the opinion of the jury upon the several points of the case, as suggested by Mr. Branwell, all of which the jury, without hesitation, found in favour of the plaintiffs.
Mr. BRAMWELL, in the course of his address to the jury, had made some strong observations to the effect that they could not possibly find their verdict for the plaintiffs without violating both law and justice. At the close of the trial,
Lord CAMPBELL, apparently in reference to these remarks, observed that he thought the verdict was a just one, and according to the law of England, which be hoped was always the rule of conduct in that place.
Verdiet for the plaintiffs for the amount claimed.
COURT OF EXCHEQUER, MONDAY, APRIL 24, 1854.
(Sittings in Banco.)
RODRIGUEZ V. MELHUISH AND JONES.
The plaintiff is the owner of a craft used in the river Mersey for raising anchors which have been lost by the shipping frequenting Liverpool, and this was an action against the owner and the pilot of the ship Matilda Wattenbach for so negligently managing that vessel, while in their joint possession and control, as to sink his craft. At the trial before Mr. Baron Platt at Liverpool it appeared that the Matilda Wattenbach, having taken the defendant Jones on board in the dock as pilot, went into the river, where she lost her starboard anchor, on which the plaintiff's boat was engaged to raise it. While so engaged, and just as the plaintiff's men were in the act of getting the anchor to the surface, the ship sheered against the boat, and caused such a derangement of the tackle that the anchor slipped down and dragged the boat to the bottom with it. The jury found that the accident was caused by the mismanagement of the ship, and then arose the question whether the owner or the pilot, or both together, were to be made responsible for the loss. The owner, Melhuish, contended that the pilot alone was answerable, as the local act compelled the owner to take him on board ; and the pilot, on the other hand, contended that the allegation of the ship being in the joint possession of the owner and pilot was not sustained, and that he was only the servant of the owner, and ought not, therefore, to be made responsible. The jury found for the plaintiff generally; and now
Mr. KNOWLES moved, on behalf of the owner, for a new trial, on the ground taken at the trial; while
Mr. Cowling, for the pilot, also moved, on his behalf, for a new trial.
SHIPS' PROVISIONS. COURT OF COMMON PLEAS, WESTMINSTER, Nov. 4, 1853. (Sütings in Banco, Michuelmas Term, before Lord Chief Justice Jervis, and
Justices Maule, WILLIAMS, and TalFOURD.)
EDWARDS V. HABBILL.
This was an action for money lent, money paid, and for work and labour, tried at Bristol last assizes, before Mr. Justice Tálfourd, when a verdict was found for the plaintiff for 5l. 2s. 6d. Mr. Karslake now moved, pursuant to leave reserved, to enter the verdict for the defendant. The plaintiff, it appeared, wis a broker at Newport, and the defendant was a mason at Exeter, who was the owner of a river-trading vessel called the Dart. The Dart was wind-boun i ia the river at Newport, and the master, Samuel Pearce, borrowed 5l. from the plaintiff to provision the vessel. At that time the course of post was one day to Exeter from Newport, and one day back, and the question was whether, under these circumstances, the master could by law pledge his owner's credit to provision his vessel. The learned counsel contended that the master, having the means of communicating with his owner, had no authority to pledge his credit, except for necessaries absolutely requisite for the ship, and for services requiring prompt payment, which he could not otherwise obtain. He referred to "Beldon v. Campbell," 6 Exch. Rep., 886; “Macintosh v. Mitcheson,” 4 Exch., 175; “Robinson v. Lyall,” 7 Price, 592. In the present case the plaintiff did not carry his case far enough; he had not proved that the provisions wanted could not have been obtained on credit and with. out cash being paid for them.
The Lord CHIEF JUSTICE said, the learned counsel had reduced the case to a very simple point. He admitted that it was the master's duty to keep the vessel in provisions if wind-bound, and the simple question was, whether he could have got those provisions on credit; and that matter was alrea ly disposed of. When the captain proved that he had spent 51. in small sums for provisions, and the counsel for the defendant did not cross-examine him whether he could have got them on credit, it was reasonable to suppose that the jury considered that he could not have got them on credit; and therefore it was reasonably necessary to borrow the money to obtain those provisions. There had, therefore, been no miscarriage, and there would be no rule.
The other judges concurring -Rule refused.
COURT OF QUEEN'S BENCH, Guildhall, Dec. 16, 1853.
MOREWOOD AND ANOTHER V. ARNOLD AND OTHERS.
Mr. O'Malley, Q.C., Mr. Grove, Q.C., and Mr. W. L. Jones appeared for the plaintiffs ; and Mr. James, Q.C., Mr. M. Smith, Q.C, and Mr. Cook Evans for the defendants.
The plaintiffs in this action, Messrs. Morewood and Rogers, were merchants and manufacturers of the patent galvanized tin iron, carrying ou their business in Steel-yard, Upper Thames-street. The defendants, Messrs E. and W. Arnold and Messrs. Bennett and Aspinwall, were two firms carrying on business in London as ship and insurance brokers. The action was brought to recover damages for the breach of a contract, into which the defendants had entered with the plaintiffs on the 31st of December, 1852, by which they agreed to procure freight room from London to certain ports in India for about 1,700 tons, consisting chiefly of screw piles for the electric telegraph, “as per drawing submitted to the defendants." The plaintiffs were to pay at the rate of 23s. per ton of 20 cwt. The goods were delivered from time to time, according to the contract, but the defe adauts refused to procure freight for the same, except at an increased price per tou, upon the ground that the screw piles were not made " as per drawing submitted to the defendants." The substantial issue now raised was whether or not the screw piles delivered were according to that drawing. According to the evidence given by Mr. Rogers, who made the contract, the defendants were furnished by him with a correct drawing of the screw pile containing the screw flange, with the dimensions. The drawing was on paper, and was taken away by Bennett, who, it was stated, was also shown one of the screw piles containing the screw flange.