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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. 68. 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 plaintiffs 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 which, 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 Gompertz, 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. BRAMWELL tendered a bill of exceptions 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. Bran well, 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 he hoped was always the rule of conduct in that place.
Verdict 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.
COURT OF COMMON PLEAS, WESTMINSTER, Nov. 4, 1853. (Sittings 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 Talfourd, when a verdict was found for the plvintiff for 51 2s. 6d. Mr. Karslake now moved, pursuant to leave reserved, to enter the verdict for the defendant. The plaintiff, it appeared, was 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 in 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. T'he 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 without 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 already 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 on 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 defendants refused to procure freight for the same, except at an increased price per ton, 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.
The defence was that the drawing had not been made on paper, as alleged by Mr. Rogers, but on the back of a ship’s card, and that it did not contain the description of any flange, but only of a screw point like that of a gimlet. The presence or absence of the flange in the screw piles made all the difference as to the rate of freight. In the first case, as they would pack quite close, they could be carried as dead weight; whereas with the flange they would be charged for by measurement, at a much higher rate.
Lord CAMPBELL left it to the jury to say, upon the evidence, whether the drawing submitted to the defendants was such as had been described by the plaintiffs or witnesses, or as it had been described by those who had been examined for the defendants.
The jury, without a moment's hesitation, gave a verdict for the plaintiffs.
The merchant usually covenants to load and unload the ship, within a limited number of days after she shall be ready to receive the cargo and after arrival at the destined port, and to pay the freight in the manner appointed. Frequently also it is stipulated that the ship shall, if required, wait a further time to load and unload, or to sail with convoy, fur which the merchant covenants to pay a daily sum. This delay, and the payment to be made for it, are both called Demurrage. - Abbott.
BILL OF LADING.
ROLLS COURT, CHANCERY LANE, DECEMBER 8, 1853.
(Before the MASTER of the Rolls.)
DRIVER V. NEILSON AND ANOTHER.
Mr. ROUNDELL PALMER (with whom was Mr. Goren) moved ex parte for an injunction to restrain the defendants in this case from parting with, or dealing in any way with, a cargo of timber lately brought from Sweden in a vessel of which the defendant Neilson was the captain. It appeared from the statement made in support of the injunction, that the plaintiffs, Messrs. Driver and Sheppard, of Littlehampton, timber-merchants, had bought the timber in question of Messrs. Hoare and Buxton, of London, and a bill of lading relative to the same was endorsed to the plaintiffs, by which it was undertaken that the cargo should be unloaded and delivered at Littlehampton. Instead of this, however, the defendant Neilson had taken the vessel to Shoreham, and had there been unloading and delivering the timber to some other parties other than the plaintiffs. Upon discovering this, the plaintiffs gave Neilson notice of their claim on the cargo, which he, however, had refused to attend to, and had persisted in the unloading and delivery of the timber. In consequence of such refusal, the plaintiffs had instituted proceedings at law against Neilson, and had him arrested under an order of Baron Alderson, On the 6th of the month the plaintiffs had at length discovered that the cargo of timber from Sweden which they claimed had been bonded in the name of the defendant Henry Dresser, and was being delivered to him. The object of the present application was to prevent such delivery and any further dealing with, or unloading of, the timber on the part of the defendants.
His Honocr granted the injunction as prayed, upon the usual terms—namely, upon the plaintiffs undertaking to indemnify the defendants for any loss they might sustain from the present application being improperly made.
ADMIRALTY COURT, FRIDAY, JANUARY 20, 1854.
(Before Dr. LUSHINGTON.)
This was an action brought by the brig Maria, of the burden of 210 tons, against the steamer Clarence, belonging to the General Steam Navigation Company, to recover the loss arising from a collision between them, about halfpast 10 p.m., on the 6th of March last, three miles north of Hasborough Lights. The brig was proceeding from the south to Newcastle in ballast, close hauled on the larboard tack. According to her account, there was a light airy breeze from the west, the night being so clear that vessels could be seen at a distance of two miles. She carried a brilliant light, descried the steamer one point on her starboard bow, proceeding at the rate of about 10 knots an hour, and kept her “luff" until she saw that a collision was inevitable, when she ported her helm to ease the blow. While she was watching the steamer the red light disappeared, from which she inferred that the Clarence intended to pass to starboard, but when she had arrived within a quarter of a mile she ported, ran athwart hawse of the brig, and did her considerable damage. The steamer, of the burden of 426 tons, with two engines of 120-horse power each, was bound from Granton Pier to London, and, in her defence, alleged that the weather was hazy, and the wind fresh from the south-south-west. She denied that the brig had a light, and stated that from its absence she could not perceive her until she had arrived within six ships' length. The helm was instantly put hard a-port and the engines eased, but, the brig continuing to bear directly down upon her, they were again put in motion to run away from her; the brig, nevertheless, struck her stern on abreast of the mainmast. She attributed the accident to the brig not having shown a light or ported her helm.
Dr. Haggard and Dr. Twiss were heard for the Maria; Dr. Addams and Dr. Robinson for the Clarence.
The learned JUDGE, after stating the facts of the case to the Elder Brethren by whom he was assisted, left it to them to decide which vessel was to blame.
The Elder Brethren were of opinion that the Maria was close hauled, and, consequently, it was the duty of the Clarence to give way.
The Court pronounced against the Clarence.
ADMIRALTY COURT, TUESDAY, JANUARY 31, 1854.
This was an action brought by the brig Adam Clarke, of the burden of 129 tons, against the brig Borcas, of the burden of 224 tons, to obtain compensation for the loss sustained by reason of a collision between them at 11 45 p.m. on the 9th of May last, about six miles from Flamborough-head. Both brigs were in ballast, and proceeding to Sunderland for coals, the wind, as agreed, being E.N.E. According to the statement of the Adam Clarke, she was close hauled on the larboard tack, heading S.E., and on descrying the Boreas, distant a quarter of a mile, immediately ported her helm, squared her mainyard, and backed her trysail to enable her to wear away, but the Boreas starboarded her helm and ran stem on into her port side. The Boreas represented that she was close hauled on the starboard tack, heading N.; seeing the Adam Clarke approaching her with the wind free, heading W., apparently endeavouring to cross her hawse, she kept steadily on her course until 2 collision became inevitable when she put her helm hard down in the lee becket to ease the blow. She attributed the collision to the Adam Clarke attempting to cross her bows, instead of keeping her course. A cross action was ertered by the Boreas.
Dr. Addams and Dr. Twiss were heard for the Adam Clarke ; the Queen's Advocate and Dr. Bayford for the Boreas.
The learned JUDGE inquired of the Elder Brethren, by whom hew as assisted, which of the vessels was to blame.
The Elder Brethren imputed the fault solely to the Boreas, and