recovered from the defendant; but there is nothing to say that this 2960 dollars is damages at all. What really happened was that, rather than fight a hopeless action, they agreed with Hedstroms to buy the goods. There is no evidence that the money was in any way a loss which the plaintiffs suffered by the conversion of the goods. It may have been a good bargain or not; but the plaintiffs have not given evidence to show that the purchase by them of this paper has, in fact, caused them any damage at all.

Consequently, in my view, their claim, so far as it relates to the payment of that sum, is one on which they cannot recover. They have got the property, and they do not show that it is not at least as valuable as the money paid for it. I think however that it is perfectly plain that they have been put, in relation to the property, to a lot of unnecessary expense in warehousing and dealing with it in Canada by reason of the defendant's wrongful action; and in respect of that expense I think they are entitled to recover.

The result is that, in my view, the plaintiffs succeed in their action and are entitled, by way of damages for the wrongful detention of the bills of lading, to the various sums for freight, storage, insurance and so forth, and charges in connection with the handling and custody of the goods.

Have the bills of lading been handed over yet?

Mr. HINDE: No.

Mr. ROBERTSON said that one had; and that the defendant had given instructions for the others to be sent on.

His LORDSHIP: The plaintiffs are entitled to an order that they be handed over.

Mr. ROBERTSON: And let the plaintiffs sell the goods?

His LORDSHIP: Yes. They are entitled to sell, and also the warehousing charges until the bills of lading are handed over. There will be liberty to apply as to warehousing charges if facilities are not given for getting rid of the goods. If defendant does not do all he can to help you, then he will have to pay the warehousing expenses. The goods are in his name and he must transfer them to the plaintiffs; otherwise the next chapter will be that he will be sued for conversion of the goods and will have to pay damages.

There will be judgment for the plaintiffs for 1333 dollars in sterling.

In this case, which was a claim by the plaintiffs for commission on fire reinsurance business, the Court of Appeal had decided (22 Ll.L.Rep. 70) in favour of the plaintiffs' claim and directed the Official Referee to assess the amount due.

Mr. H. H. Joy, K.C., and Mr. L. J. Sturge (instructed by Messrs. Timbrell & Deighton) appeared for the plaintiffs; while Mr. J. B. Melville (instructed by Messrs. Lane & Cottier) represented the defendants.

Mr. Joy said that when the agreement under which the plaintiffs acted for the defendants terminated on Aug. 31, 1923, there were Я considerable number of treaties still running. Plaintiffs said they were entitled to remuneration in respect of them so long as they lasted, but the defendants said their liability to pay ceased with the termination of the agreement. The Court of Appeal upheld the plaintiffs' contention.

Sir EDWARD POLLOCK, after hearing arguments of Counsel, entered judgment against the Globe & Rutgers Company for £5404 14s. 6d. and against the Canada National Company for £1942 12s. 1d., and ordered accounts to be delivered bringing the amount of commission up to date.

MANCHESTER COUNTY

COURT.

Friday, November 6, 1925.

BRITISH OIL & CAKE MILLS CO. v. OWNERS OF THE " CITY OF CANTERBURY."

Before His Honour Judge LEIGH.

Bill of lading-Method of discharge of cargo-Custom of the port (Manchester) -Delivery overside into barges or on to quay.

(Continued from p. 40.)

JUDGMENT.

His Honour Judge LEIGH, in giving judgment, said: In this action the plaintiffs, as holders of a bill of lading and owners of 16,000 bags of cottonseed weighing 1000

tons or thereabouts, claim damages against the defendants for breach of the contract of carriage of the cottonseed by the steamship City of Canterbury from Karachi to Manchester. The amount claimed is £74 9s. 3d.; and this is the amount paid by the plaintiffs to the Manchester Ship Canal Co. (hereinafter called the Canal Company) in respect of the landing of the seed over and above what would have been Laid if the seed had been discharged direct from the vessel into barges. In fact, 5793 bags of the seed were so discharged and the remaining 10,207 bags were landed on to the quay and afterwards put into barges. The extra charge claimed as damages was made in respect of the 10,207 bags so landed on to the quay. If the defendants were expressly or impliedly under contract discharge the whole of the seed from the vessel into barges the plaintiffs are entitled to succeed; but if the defendants were not so bound the plaintiffs fail.

to

The plaintiffs at the trial put their case in three ways. They said: (1) the defendants were bound to land the seed in the manner prescribed by the custom of the port, which at Manchester is that cargoes of seed must be discharged from the vessel directly into barges; (2) alternatively, if there was no custom of the port in relation to seed cargoes, it was the duty of the defendants to land according to the more suitable and convenient of the two methods mentioned above, which was the method involving the least expense to the plaintiffs; (3) the defendants had been guilty of a deviation wherefor the contract was not governed by the bill of lading and the defendants as common carriers could claim no more than the bare freight and must reimburse to the plaintiffs the extra expense to which they were put through the action of the defendants' agents, the Canal Company, who adopted an unnecessarily expensive method of landing the seed.

The defendants sought to answer the plaintiffs' case as follows: (1) the custom of the port, they said, was to land all cargoes on to the quay, although when importers requested discharge into barges such request was granted if it suited the shipowners and the Canal Company to do so; (2) alternatively, if it were held that there was no custom they contended that it was at the option of the shipowners to discharge in any manner that was suitable and convenient to themselves; (3) as to deviation, they said that at most this could only apply to 133 bags of seed, because the voyage had terminated as to the rest of the shipment before any deviation could be said to have taken place. Moreover, they contended that the effect of deviation was only to release the importers from the exceptions in the bill of lading, and that it did not impose upon the shipowners any liability to pay the extra charges for landing on the quay.

The plaintiffs objected that the custom alleged by the defendants could not be given in evidence because it contradicted the express terms of the contract between the parties. They said that there was an

express obligation in the contract, because the bill of lading contained the following words:

.... to be delivered subject to the exceptions and conditions hereinafter mentioned in the like good order and condition from the ship's tackles (where the ship's responsibility shall cease) at the aforesaid port of Manchester or as near thereto as she may safely get;

and it was proved in evidence that the derricks with which the vessel was equipped were employed for the purpose of discharging direct into barges, whereas shore cranes were employed for landing on the quay.

The defendants' answer to this objection was to the effect that the term from the bill of lading quoted above was not a term imposing an obligation on the shipowners to land the cargo in any particular manner, but was a term limiting the period of the shipowner's liability. Further, they said that the expression "ship's tackles " included all tackle available for the use of the ship at the time of landing whether such tackle was on board or on shore.

The material facts proved or admitted at the hearing may be stated shortly as follows. The plaintiffs were at all material times holders of a bill of lading and owners of the merchandise referred to therein, 16,000 bags of cottonseed shipped from Karachi by the steamship City of Canterbury, a vessel owned or managed by the defendants. The only clauses in the bill of lading having reference to the mode of discharge to which I need draw attention are the clause set out above and also the following:

The goods are to be discharged from the ship as soon as she is ready to unload; and if not thereupon removed without delay by the consignees the master or agent is to be at liberty to land the same and if necessary to discharge into hulk, lazaretto or hired lighters at the risk and expense of the owner of the goods.

I find, however, that no circumstances existed entitling the defendants to take advantage of this last-mentioned clause.

At the port of Manchester the Canal Company have a statutory monopoly as regards the discharge of cargoes from vessels arriving there. No other person, firm or company can act as stevedores. The plaintiffs were provided with a supply of printed forms of request addressed to the Canal Company; and they invariably filled up one of these forms and sent it to the Canal Company a few days before the arrival of every vessel containing cargo belonging to the plaintiffs. In accordance with the practice they sent in to the Canal Company a request dated Nov. 19, 1924, relating to the whole of the cottonseed in question in this action. This request contained the following words :

Please weigh on ship's deck and ship in bulk into lighters barging to Cur wharf. . .

When shipowners are willing to permit delivery of goods overside, such delivery can only be made if found practicable, and without incurring any extra expense or delay to the ship. Quay and other services rendered must be paid for upon any portion not delivered overside.

The City of Canterbury arrived at Manchester on Nov. 27, 1924. She was late having regard to the date when she was due to begin her next voyage. Moreover, certain repairs had to be effected for which purpose it was necessary that she should go into dry dock. Furthermore, she had to be surveyed for the purpose of obtaining a certificate for the carriage of passengers. For all these reasons it was important from the defendants' point of view that she should be discharged with the utmost dispatch. The plaintiffs caused a number of barges to be in attendance on the vessel for the purpose of having the cottonseed discharged into them over the ship's side; and it was admitted by the defendants that there was a sufficiency of barges to enable the whole of the cottonseed to have been discharged into them over the ship's side. This method, however, would have taken 53 hours longer than the method which was in fact employed. Simultaneously with the discharge into the barges by means of the derricks which formed part of the ship's regular equipment, the Canal Company were unloading by means of shore cranes on to the quay. In this manner approximately 5793 bags were discharged over the ship's side, while 10,207 bags (including the 133 bags before mentioned) were discharged on to the quay. As the result of what was apparently an oversight, 133 bags were left in one of the holds and were landed on to the quay after the vessel had been in dry dock. The discharge by means of the shore cranes was more rapid than the other method, partly because the shore cranes were capable of lifting greater quantities at once, partly because the weighing was in this case performed on the quav, and partly because for the purpose of discharging overside the bags had to be weighed, opened and emptied on the deck.

The Canal Company have two scales of charges for services rendered to the plaintiffs, who have a wharf on the canal bank and desire to have their cottonseed conveyed to them by water. If the services include landing on quay and afterwards putting into barges and conveying to plaintiffs' factory, the charges are greater by about 2s. 4d. a ton than they are when the Canal Company discharge the cargo overside into barges. The Canal Company accordingly debited the plaintiffs with the sum of £74 9s. 3d. with respect to the quantity of cottonseed landed on to the quay out of the City of Canterbury. This sum was paid by the plaintiffs under protest; and they seek to recover it in this action.

The port of Manchester has been in existence some 30 years; and the Canal Company have, for the reason indicated above,

had in their hands the landing of all cargoes received at the port. Their traffic superintendent throughout the whole of this period has been Mr. William Browning, who gave evidence before me; and this evidence I accept. He stated that the normal method of discharging is discharging on to the quay, and that this applies to all cargoes without distinction. In the absence of any request to the contrary, this practice would always be followed out. If the importers of goods made a request to have the goods delivered overside into barges, such request would be complied with unless it involved expense or delay to the ship, or happened not to suit the convenience of the Canal Company; in either of which events the request would be refused. All landing charges would be debited to the importers whether there was discharge overside into barges or landing on the quay first; and, if the importers had paid in advance on the basis of a direct discharge into barges, the extra expense of landing on the quay first would be debited to the importers' account. Many importers have wharves or warehouses on the canal banks; and to such importers it is a matter of economy if they can have their cargoes delivered without extra handling on the quay. This applies inter alia to importers of cottonseed like the plaintiffs; and Mr. Browning stated that about 90 per cent. of this class of merchandise was in fact, pursuant to request, discharged overside into barges.

Mr. Browning's evidence was corroborated by many witnesses of experience as to the general practice prevailing at the port, although it is fair to say that some of them had had little or nothing to do with the importation or landing of seed cargoes.

The evidence called by the plaintiffs was intended to support a distinction between the practice in relation to seed cargoes and the practice in relation to other classes of merchandise, but I think that even in regard to seed cargoes the plaintiffs failed to establish a practice to discharge overside.

For the purpose of the action I thought it right to pay small attention to the manner in which ships were unloaded during the war period, as it seems to me unsafe to lay stress on the incidents of such an exceptional time as tending either to prove or to disprove the existence of any particular custom. From the year 1919 to the date of the trial it appeared from the plaintiffs' evidence that approximately 95 per cent. of the seed cargoes imported by them had been discharged overside; and they were able to account for some of the rest as consisting of samples or of damaged goods which would have to be delivered on to the quay. They could not, however, deny that in every instance they had made request on the usual printed form for delivery overside, a form containing the words already quoted; and there remained some substantial quantities which could not be accounted for in which the Canal Company and/or the shipowners had refused to comply with their request.

I may now conveniently proceed to deal with the contentions of the parties. (1) The plaintiffs did not go so far as to contend that the custom they sought to establish applied to cargoes other than seed, grain and like commodities, but even in this limited sense they failed by their own evidence to establish a custom to land into barges overside; and such a custom was completely negatived by the evidence as a whole, whether regard be paid to the testimony of the experts or to the proved figures as to cargoes landed at Manchester.

(2) If the right conclusion from the whole of the evidence should be that there is no custom of the port, the question is whether the defendants through their agents, the Canal Company, owed a duty to the plaintiffs to discharge the cargo in the cheapest manner. On this point my attention was directed by the plaintiffs' Counsel to Carver on Carriage by Sea, 7th Ed., Arts. 461 and 462, and especially to the following passage at p. 632 which deals with the position where there is no custom of the port to regulate the mode of delivery ::

But if one mode of discharge involves charges upon the consignee which another suitable and convenient mode avoids, the shipowner cannot, contrary to the consignee's demand, insist upon adopting the former. Thus, if the consignee requires, and is ready to take delivery into lighters without the goods first being landed on the wharf at which the vessel is lying, the shipowner will be answerable if he lands them on to the wharf and so makes them liable to wharfage charges. Nor can the master, where delivery into lighters is properly demanded, require a contribution from the consignee to the wharfage rates incurred by the ship.

I find on the evidence that the method adopted by the Canal Company of unloading simultaneously overside and on to quay was suitable and convenient, and therefore that even if there were no custom of the port to unload on to the quay the plaintiffs would not be entitled to recover in the present action. Moreover, I think that they precluded themselves from recovering the amount claimed by reason of the language of the document dated Nov. 19, 1924, to which reference has already been made.

I must now deal with the custom of the port suggested by the defendants. I bear in mind the statement of Lord Blackburn in Postlethwaite v. Freeland, 5 App. Cas. 599, at p. 616, to the effect that custom in a charter-party does not mean custom in the sense in which the word is sometimes used by lawyers, but means a settled and established practice of the port. In this sense I am of opinion that the evidence given in this action has established that there is a custom of the port of Manchester in respect of the unloading, and that this custom is applicable to all sorts of merchandise including cottonseed. I find the practice to be to unload

on the quay. This practice is often departed from at the request of the consignees, but the shipowners retain the customary right to unload on to the quay whenever compliance with a request to unload overside would entail expense or delay to the ship.

Is this custom inconsistent with the terms of the bill of lading as to delivery from ship's tackles? In my opinion the words from the bill of lading as to delivery from the ship's tackles do not amount to a promise on the part of the defendants that the cargo should be discharged in any particular manner. If I am wrong on this, I think that on the true construction of the bill of lading goods discharged by means of shore cranes hired or provided by the shipowners or their agents are delivered from the ship's tackles. I think it would be impossible to say that if the derricks permanently on board were out of action the shipowners or stevedores could not erect a temporary crane on deck and so unload without a breach of contract; and if that be so I do not see where a line can be drawn.

Moreover, by the statement of claim the plaintiffs do not found their action upon the omission to unload by means of the ship's tackles; and Mr. Laski pointed out that the question as to ship's tackles was put in issue by reason of par. 4 of the defence and par. 1 of the reply. If, therefore, I came to the conclusion that to unload in accordance with a custom to unload on to the quay was inconsistent with this express term of the contract, it would be my duty to exclude evidence of such a custom (See Palgrave, Brown & Son, Ltd. v. s.s. I'urid, [1922] 1 A.C. 397; 10 LI.L.Rep. 375).

I find, however, for the reasons indicated above, that if the custom contended for by the defendants were read into this bill of lading there would be no insensibility or repugnancy. I am strengthened in this view by the case of Marzetti v. Smith, 49 L.T. 580, where, although the bill of lading contained similar language as to the ship's tackles, evidence of a custom to discharge on to the quay was admitted.

I find that the deviation took place after completion of the voyage except as to 133 bags. I should therefore in any event refuse to give the plaintiffs damages on the ground of deviation except as to the 133 bags. Even as to these, in view of my findings as to custom, the plaintiffs cannot succeed. If for any reason the plaintiffs were held to be entitled to recover damages on the 133 bags under this head, I should assess such damages at the sum of £1, but in my view the plaintiffs are entitled to nothing.

For these reasons I give judgment for the defendants with costs and all necessary certificates, such costs to include the shorthand note and transcript, Counsel having agreed that such note and transcript should be regarded as forming part of the Judge's note and that the expense thereof should be costs in the action.

Notice of appeal was given and a stay of execution granted.

VOL. 23. No. 4.]

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

July 17, 20 and 21, 1925.

THE CITY OF MONTREAL v. THE HARBOUR COMMISSIONERS OF MONTREAL; THE ATTORNEYGENERAL OF QUEBEC v. THE ATTORNEY-GENERAL OF CANADA (INTERVENANTS), AND CONNECTED APPEAL.

Before the Lord Chancellor (Viscount CAVE), Viscount HALDANE, Lord SHAW, Lord CARSON, and Mr. Justice DUFF, of the Supreme Court of Canada.

Ownership of Montreal Harbour-Canadian statutes extending area of harbour: whether ultra vires-British North America Act, 1867-Effect of right given therein to Dominion Government to legislate as to control of harbours and navigation-Riparian rights of private owner of river bank.

The hearing of this appeal was continued. It raised the question of the right of the City of Montreal to recover from the Harbour Commissioners the cost of changing the outlet of a sewer into the St. Lawrence River, made necessary by the action of the respondents in erecting various works on the bank of the river. The appeal also raised the question whether the Dominion Government had acted within its powers in extending the limits of the harbour so as to appropriate to the Dominion the land on which the works had been erected.

Previous proceedings in this appeal were reported at 22 Ll.L.Rep. 354.

The appellant was represented by Sir John Simon, K.C., Mr. A. W. Atwater, K.C. (Canadian Bar), and the Hon. Geoffrey Lawrence, K.C.; and the Attorney-General of Quebec by Sir John Simon, K.C., Mr. Charles Lanctot, K.C. (Canadian Bar), the

Hon. Geoffrey Lawrence, K.C., and Mr. Maurice Alexander (Messrs. Blake & Redden instructing in both cases). Mr. Aime Geoffrion, K.C., and Mr. F. E. Meredith, K.C. (Canadian Bar) (instructed by Messrs. Lawrence Jones & Co.) were counsel for respondents; while the Attorney-General of Canada was represented by Mr. E. Lafleur, K.C. (Canadian Bar) (instructed by Messrs. Charles Russell & Co.).

The appellant in the connected appeal, an adjoining riparian owner, was represented by Mr. Paul St. Germain, K.C. (Canadian Bar), and the Hon. Geoffrey Lawrence, K.C. (instructed by Messrs. Blake & Redden). The other parties in the case, with Counsel and solicitors, were the same as in the first appeal.

Their LORDSHIPS reserved judgment.

Tuesday, November 10, 1925.

JUDGMENT.

The judgment of their Lordships was delivered by Lord HALDANE as follows: These appeals were heard together. There are questions of law which are common to both, as well as issues of fact which present some analogies. It will be convenient to deal with the appeal of the city of Montreal in the first place, in a judgment which will extend to both appeals, but which will be based on certain considerations which are materially different in the two cases.

The appeal of the city of Montreal is brought from a judgment of the Court of King's Bench of the Province of Quebec, which dismissed an appeal by the city from a judgment of the Superior Court, refusing its claim for a sum of 110,086.50 dols. with interest and costs. The question disposed of related to the right of the city to recover from the harbour commissioners the expense it had incurred in changing the outlet of a sewer into the River St. Lawrence, an expense said to have been caused by the unlawful action of the com