more than that. In order to found their attack upon the Spilsby, defendants called their pilot and chief officer, but I am quite unable to get any clear picture of what they deposed to because in my view they gave different accounts in many particulars. I cannot accept anything they say as a means of disproving that to which plaintiffs' witnesses have deposed.

There are three charges made against the Spilsby. The first thing, as pleaded, is as to the place of the collision that was based upon the assumption that the collision took place outside the anchorage ground; but it is now common ground that it was inside.

The next point is that the Spilsby was not ringing her bell. I have heard the bell, and I accept the evidence of the Spilsby's witnesses with regard to it. As to it not being heard, as defendants say, according to the pilot it was heard once just before the collision. The look-out of the Ormer has not been called. But the fact that a bell is not heard on board a ship which is approaching at 10 knots-even more-does not really prove that the bell was not being rung, especially if it be true, as the chief officer of the Ormer has said, that during four minutes preceding the collision he thrice sounded his whistle. I do not know what blasts they were; but if he did so it is reasonable to suppose that the bell on the anchored ship could not be heard. There is no evidence by the defendants on this matter that I can rely upon at all. I accept plaintiffs' evidence that they were ringing the bell; it is all the more likely that they were, because they were keeping sea-watches at the time.

Then defendants say that if the bell was rung it was not an efficient bell. That raises two questions, because to-day, and, in fact since April 9 at any rate, it was discovered that the bell has a crack-more than one crack, in fact. it has a heavy dent, and below it a long crack and above the dent a small crack. At some time or other it has received a heavy blow or a violent crash-something or other to cause that serious indent, thereby causing the cracks. The condition of the bell in respect of the long lower crack is worse to-day than in April. That is agreed. It has been made worse by the ringing of the bell for various tests, but, at any rate, there was a long substantial crack in April.

Two questions arise upon that. First of all: was that condition already in existence at the time of the collision or was it brought into existence after the collision; and, secondly, supposing it was already in existence at the time of the collision did it make the bell an inefficient one? Now I am deciding this case on the ground that I am satisfied from the evidence that the bell was not in that condition at the time of the collision, and that the damage, however it was set up, was set up subsequently. It makes it, therefore, unnecessary for me to consider the interesting points which have been raised as to what is the sound-carrying capacity of a ship's bell requisite to make it an

efficient bell within the rules. I do not desire, in a case where it is not necessary, to lay down a hard and fast rule; but it must be remembered that a ship's bell is provided for a ship to signal its presence in fog, and an anchored ship is entitled to assume that a ship navigating under way will proceed at a cautious speed.

Other circumstances, too, would have to be considered. It would also have to be considered whether, assuming this bell in its present condition could sound 500 yards, that is enough. Without deciding it, I should be inclined to think it was not enough. At the same time the distance that has been suggested by experts in church bells, called by Mr. Langton, that a ship's bell should be heard a mile or a mile and a half away, seems to me to be much farther than is necessary to meet the mischief which it is intended to provide against.

I am not going to decide the matter on that as it is not necessary. I conclude that the bell was in a sound condition at the time of the collision. In the first place, as I have already said, I accept the plaintiffs' evidence. I believe the master of the Spilsby was telling me the truth. I believe he was very careful to tell me the truth, because he volunteered a matter which nobody knew anything about. When I was trying to find out whether there was anything which could have damaged the bell a long time ago, there was an occasion, he said, when some bags of grain fell on to the awning. I think he was telling the truth; he tells me that the bell was sounding quite well up to the time of the collision, and that, when afterwards, in Hamburg, the windlass with the bell attached had been removed and brought back, he noticed a difference in the sound. That is one thing. I take it along with this defendants' witnesses say that the defects as they now are or as they knew them in June and July last were such that it must be obvious to anyone hearing the bell that it was defective. If so, it must have been obvious to the master. I have to suppose that while the bell was blatantly defective, pronouncing its defects in every clang, the master went on with it without asking the owners for a new one. As far as the condition of the crack goes, to my mind it is in favour of recent damage.

Defendants seemed to rely a great deal on the fact of the presence of verdigris; but, as is obvious on examination, in the neighbourhood of the crack the verdigris is no different from the verdigris in many parts on the surface of the bell. There is no certainty that the verdigris has anything to do with the crack. As far as the state of the crack is concerned, it goes rather to help the plaintiffs' case, because there is no dirt in it; one would have thought that if it was an old crack, being in the bell on the forecastle head, it must have accumulated some dirt.

There is a further matter. The bell was passed by the Board of Trade at the last survey in October, 1923. It could not have been in that damaged, ill-sounding condition

at that time. If it had been so, it must have been obvious to the Board of Trade and it could not be supposed that they would have passed a bell that was cracked.

Some cause has got to be found for the damage to the bell between October, 1923, and March, 1925. The bell is on a standard which is bolted to the windlass; it stands well above the deck on the forecastle head, a short distance from the stem. The distance from the bell to the fore part of the nearest hatch is something like 20 to 30 ft. The master says that nothing happened on board to cause the dent, which must have been caused by a violent blow, or by considerable pressure or crush. Of course, he is not about the ship all the time, but it is difficult to see what could have happenedwhat kind of blow could have been inflicted upon this bell so situated upon the forecastle head of the ship. The suggestion, on the other hand-and it is only a suggestion -is that the blow was inflicted when the windlass, with the bell standard attached, was taken off at Hamburg and taken to the repairers and brought back again. Plaintiffs have not proved that. It seems to me very probable that it might have been done during the removal of the windlass rather than at any time while the bell was in position on the ship.

As the result, looking at the evidence as a whole, I find that the damage was done after the time of the collision. I am not quite sure that it is necessary to go as far as that. I am not deciding this case on the question of onus regarding proof of the condition of the bell, but, at any rate, if the onus is upon the plaintiffs, I think they have discharged it.

Therefore I find that the Ormer is alone to blame.

Judgment was entered accordingly.

KING'S BENCH DIVISION.

Thursday, Nov. 5, 1925.

SHELBOURNE & CO. v. BACK & MANSON.

Before Mr. Justice AcTON.

Contract-Erection of dolphins-Breach of contract to employ plaintiffs-Quantum meruit-Alleged repudiation by plaintiffs of their contractual obligations disproved-Oversight of work-Disputed responsibility of consulting engineers employed by defendants.

This was an action by Messrs. John Shelbourne & Co., of Mark Lane, against Messrs. Back & Manson, for £2135 as damages for alleged breach of a contract employing the plaintiffs to erect two fifteenpile dolphins in the Medway at Wells Marsh, Colemouth Creek, or alternatively on a quantum meruit. Defendants denied that there had been any breach of con

tract on their part, alleging breach of contract and negligence on the part of the plaintiffs, and counterclaimed for £1700 as money spent in order to make the dolphins strong enough to serve for mooring vessels of up to 10,000 tons while taking in oil.

Mr. G. P. Langton, K.C., and Mr. E. J. Rimmer (instructed by Messrs. Keene, Marsland, Bryden & Besant) appeared for the plaintiffs; Mr. A. T. Miller, K.C., and Mr. F. van den Berg (instructed by Messrs. Cosmo Cran & Co.) represented the defendants.

Mr. LANGTON said that by a contract made in May, 1923, plaintiffs were employed to construct two dolphins as part of a berth for oil vessels. The contractors erected one and partially erected another. Then the defendants requested plaintiffs to withdraw from the work, and alleged that the dolphins were not strong enough. At the time the Admiralty chart itself was wrong as to the depth of water at this spot. Defendants' engineers asked plaintiffs to take their own soundings. Plaintiffs agreed to do what they could without the elaborate instruments used in a survey by regular surveyors. Defendants' engineers supplied a working plan, and their resident engineers, plaintiffs contended, approved the work. There was a depth of 30 ft. at the rear of the dolphins, but the foreshore sank abruptly, and the depth at the front was greater. In fact, no depth was mentioned in the contract at all, but defendants said that in consequence of the depth the dolphins were not strong enough for the purpose for which they were needed, and they had erected considerable works at the rear which converted the dolphins into piers. As a matter of fact, when defendants complained about the piles in the first place plaintiffs expressed their willingness to do anything that was reasonable in the matter in order to meet defendants' wishes, but apparently the defendants had not then made up their minds as to what they wanted.

Friday, Nov. 6, 1925.

Mr. HUGH JOHN SHELBOURNE, senior partner in the plaintiff firm, said they were contractors for all kinds of waterside work. Their design submitted for this work was based on a design prepared with a tender for erecting dolphins for Messrs. Cory Bros., with the difference that in this case the piles were to be of hewn 14-in. blue gum, and there were to be four tiers of diagonal braces on each dolphin. In taking the soundings for the dolphins his men followed the instructions he gave by getting out lines. That was in accordance with their usual practice, which had always satisfied people for whom they had done similar work. As a result of this method certain soundings were obtained, but it was afterwards ascertained that they were wrong.

On June 25 he heard that some doubt

was being raised as to the strength of the dolphins, and he pointed out that they could be strengthened if desired. On Sept. 24 there was a meeting at which Mr. Hatfield declared that the dolphins were not nearly strong enough to take the ships of Tankers, Ltd. Witness told him that similar dolphins at Shellhaven were taking ships without damage, and a few days later he took a party to Shell Haven and Thames Haven to show them what the other oil companies had done.

of the

Dealing with complaints which were 10ceived, WITNESS said it was suggested that the dolphins would have to be moved back in order to get them in 30 ft. of water. But to get the dolphins in line and in 30 ft. of water it would have been necessary to dredge over the site of the upper dolphin and to shorten the pier. Another complaint was that the "batter' lower dolphin was wrong. Witness found this complaint well-founded, and immediately offered to remedy the defect by drawing and redriving the piles. With. regard to complaints of bad workmanship, witness said he found some details which required attention and his firm were quite prepared to do what was necessary.

Tuesday, Nov. 10, 1925.

Mr. ALFRED ALLEN, plaintiffs' works manager, said that on one occasion he met Mr. Vickers, representing the defendants, at the jetty, and Mr. Vickers, who had been using instruments, expressed surprise at the accuracy of the position of the dolphins. Witness did not agree that plaintiffs' soundings were wrong when they were made, and he thought the difference in depth encountered when the piles were driven might be explained by erosion. Their method of taking soundings by running out lines he considered a good method.

Mr. WILLIAM WEBB, plaintiffs' foreman, said that when the upper dolphin was completed it was approved by defendants' representative. On commencing to drive the piles for the lower dolphin he found the water was much deeper than was anticipated, and reported this. The lines were checked by the engineers and a guiding pile was then driven at a spot indicated by Mr. Day, who, witness understood, was acting as engineer in charge. Owing to the depth of water, it was not possible to give the dolphin the proper rake.

dolphins and they were correct. He thought the difference in depth found when the lower dolphin piles were driven could be accounted for by increased activity at the wharf. A number of barges came to lie up there, and possibly they crushed the soft and unstable bank.

Sir CYRIL KIRKPATRICK, civil engineer, said that investigations he had made showed that considerabie erosion had been going on for some years where the dolphins were constructed. He doubted whether there was any error in plaintiffs' soundings. It was conceivable that there was erosion after the soundings were taken, and that that led to the difference in the depth of water afterwards found.

Mr. MILLER, for the defence, said it was agreed that a good deal had been done to the dolphins, which made them stronger than the contract design. Apart from that there were serious questions of fact in dispute, and also questions of construction and law. He submitted that even if many if not all the questions of fact in dispute were to be answered in plaintiffs' favour, nevertheless there had been a breach by the contractors of their contract obligations that entitled the defendants to succeed.

There was a complete obligation on the contractor to build and hand over when complete the dolphins according to contract. The contract also contained terms which enabled the employer, if so minded, from time to time to reject material or workmanship. But there must not be deduced from these permissive clauses, and the absence of some specific condemnation while the work proceeded, any approval by the employer of the material or workmanship. There was no obligation on the employers' consulting engineer or any other employee to protect the contractor from the results of his breach of contract.

That a breach of contract had been committed by plaintiffs was admitted, because it was agreed that the most material piles in the dolphins had not the rake provided for in the contract. Defendants put themselves in the hands of competent people, and they were entitled to have the contract carried out satisfactorily. Whatever Mr. Vickers or Mr. Bramley or Mr. Day did, it could not affect the contract and the legal position. With regard to the depth of water found, he suggested that the plaintiffs made a mistake over their soundings, and that they were liable for any damage which resulted from the lack of reasonable care and skill on their part.

Mr. CHARLES FRANCIS DE GANAHL, chairman of the Medway Oil & Storage Company, said he believed plaintiffs' soundings were wrong because their charting was wrong.

Wednesday, Nov. 11, 1925.

Mr. ALFRED THOMAS RICKETTS, draughtsman and surveyor, employed by the plaintiffs, said he took the soundings for the

Thursday, Nov. 12, 1925.

Mr. DE GANAHL, in further evidence, said plaintiffs were employed to take the sound

ings entirely on their own responsibility. They were selected as experts to do that job.

Mr. W. R. PETTIT, of Messrs. Heron Rogers & Pettit, said his firm were the engineers to the Medway Oil Company, who were really the defendants in this action in connection with the erection of plant at Colemouth Creek. The instructions to plaintiffs were that they were to take their own soundings for the dolphins. Had the dolphins been constructed as contracted for they would have been strong enough to take the vessels which it was contemplated would lie against them.

hold a line when plaintiffs were preparing to drive the lower dolphin piles, but he had no responsibility in the work. He never approved of the lower dolphin being put where it was.

Mr. DAY, an assistant engineer at the Oil Company's premises, said he was on the barge when the first pile of the lower dolphin was dropped, but he merely went there as a friend of Mr. Ricketts, at his request, to hold a line, and he had no responsibility in the work, and did not supervise in any way.

Monday, Nov. 16, 1925.

Friday, Nov. 13, 1925.

Mr. PETTIT, in further evidence, stated that the dolphins were not according to contract requirements in respect of rake and depth of water These were two vital matters, and an engineer who blundered in respect of them could not blunder on more vital points. The schemes which came into existence at a later stage for strengthening the dolphins were schemes for making the dolphins stronger than had originally been intended. As originally ordered, the dolphins would have been strong enough to take steamers of up to 5000 tons, but later on it was suggested that steamers of up to 10,000 tons would require to be against them, and accordingly the strengthening work ordered was with the object of making them fit to accommodate vessels of that size. Witness said he understood plaintiffs were engineers of considerable experience in the work. They were, in fact, the engineers employed in connection with the pile-driving for the new Waterloo Bridge.

Evidence given on commission by Mr. Vickers, who was resident engineer in charge of the erection of the Medway Oil & Storage Company's plant at Colemouth Creek, was read. Witness said he had nothing to do with taking the soundings for the dolphins. He received no instructions to supervise the locating or construction of the dolphins, and he did not supervise the work. He did not take the depth of water in which the dolphins were located, and he never checked the location of the dolphins, nor did he have any conversation with the plaintiffs' surveyors with regard to the location of the dolphins.

Sir C. KIRKPATRICK, who was recalled, said he had just received some information which led him to withdraw his theory as to erosion.

Mr. F. B. BRAMLEY, who was engineer on the foreshore at the Medway Oil & Storage Company's premises, said he had no instructions to supervise the erection of the dolphins, unless there was something vital to report. He was not authorised to agree to any variation of the original plans. No one but plaintiffs themselves was responsible for the proper erection or locating of the dolphins. All he ever did was to

Mr. DAY, an assistant engineer at the oil company's premises, was further examined by Mr. Miller and gave further details with regard to the fixing of the piles. He said that during the time he was engaged on the work, he did not know there had been any difficulty with regard to the depth of water.

This concluded the evidence and COUNSEL addressed the Court.

JUDGMENT.

Mr. Justice ACTON, in giving judgment, said: In this case the substantial question is whether there has been a repudiation by the plaintiffs of a contract entered into by them on May 10, 1923, for the providing and erecting at Wells Marsh, Colemouth Creek, in the River Medway, of two dolphins, or of a contract subsequently entered into on July 17, 1923, in respect of work already performed for taking certain soundings off the foreshore at the same part of the River Medway. The defendants say that there was such a repudiation by the plaintiffs of either one or both of these contracts as entitled them to call on the plaintiffs to withdraw from the work, they having repudiated altogether that which they had undertaken, and to entitle them (defendants) to carry out the work which ought to have been carried out under the contract, with the consequence that the defendants would become entitled to damages in respect of that repudiation. The case for the plaintiffs is in substance that with certain comparatively unimportant exceptions they carried out the work which they were obliged under their contracts to perform and that they are entitled to recover upon a quantum meruit the value of the work which they had done at the time when they were dismissed from the work and told to discontinue any further performance of it. They have also contended that they would in these circumstances be entitled not merely to recover a sum upon a quantum meruit in respect of the work then already done, but damages in respect of the profit that would have accrued to them if they had been suffered, as they were entitled, to continue and complete the work they had under

un

taken; but having regard to the important sum to which that would lead, they no longer press that claim but express themselves as being content if they recover in this action upon a quantum meruit for the work which they have actually done.

The first of the contracts with which accordingly we are concerned is the contract to which I have already referred of May 10, 1923; and one of the most imtant controversies in this case turns upon the relationship which was thereunder established as between plaintiffs, Messrs. John Shelbourne & Co., and Messrs. Heron Rogers & Pettit, the firm described in the contract as agents and engineers for the defendants, Messrs. Back & Manson. A great deal of evidence has been called and a great many arguments have been advanced with a view to showing that there was something unusual in the relationship between the plaintiffs as contractors and Messrs. Heron Rogers & Pettit as consulting engineers to the defendants in supervision of the work which was undertaken by Messrs. Shelbourne & Co. It is unnecessary, I think, that I should read the whole of the contract and conditions of May 10, 1923, but it is enough for the purposes of this decision for me to say that I am quite satisfied that the relations which existed between the plaintiffs and the engineers, Messrs. Heron Rogers & Pettit, were the relations which ordinarily subsist between a contractor undertaking to perform certain work and the engineers who are put in supervision and charge of the work.

The contract itself states that "the whole of the above work is to be carried out to our satisfaction and inspection." Nor is it I think controverted that that means that the work was to be carried out to the satisfaction and inspection of Messrs. Rogers & Co. That that is so is reinforced by the conditions appended to the contract, which are in quite usual form and provide, as is usual, for the engineers having full power to direct, control, approve or disapprove of the work and sanction such variations to that work as might during the progress of it seem good to them.

The contention for the plaintiffs is that in the circumstances the ordinary consequences both in law and in fact must flow from the existence of this relationship between themselves as contractors and Messrs. Rogers & Co. as engineers; and that that is so is, I think, made abundantly clear, not by any evidence given on behalf of plaintiffs or by any contention advanced on their behalf, but by the evidence given by Mr. Pettit, a partner in the firm of Messrs. Rogers, as to the terms upon which, and conditions under which, they undertook the duty of engineers. Mr. Pettit says: "My firm were supervising engineers for supervising these dolphins. It was our duty to supervise them. We were competent to do so. We did not carry out our duties completely or as we ought to have done. We failed by not giving the personal attention we should

have done. This is the only respect in which we failed. The contract is of an ordinary character. We undertook it with the ordinary obligations. At the time the contract was made there were no unusual circumstances in the relationship between engineers and contractors."

It is a somewhat striking feature of this case and, to my mind, not without significance, that, notwithstanding the terms of the contract itself and the admissions very frankly made by Mr. Pettit himself, there should have been advanced on behalf of the defendants an elaborate argument to the effect that Messrs. Rogers were not in this case to be regarded as engineers and supervisors of the work in the ordinary sense, but that there was some unusual relationship established between the contractors and the engineers.

That being the relationship between the engineers and contractors, it is perhaps convenient to see what in outline are the facts in this case. It is unnecessary that I should review all the facts of the case in detail and I do not propose to do so, but in the barest outline the facts are these. The contract for the provision and erection of these two dolphins having been made on May 10, 1923, there followed on July 17, 1923, a contract or order for certain soundings to be taken off the foreshore, which was in effect a confirmation of work which had already been done, as appears from letters of May 29 and 30. A great deal in this case turns upon the question of how these soundings were made; whether they were correct; whether they were taken with reasonable care; and how far in the absence of correctness or want of reasonable care it may affect the position in this case of the plaintiffs. The first pile of the first of the two dolphins, the up-stream dolphin, was pitched on Aug. 2; and that dolphin was substantially completed towards the end of August. With regard to that, there is no question that Mr. Vickers, who was resident engineer representing Messrs. Rogers, expressed his satisfaction. The second of the two dolphins, the downstream dolphin, began to be erected by the first pile being pitched on Aug. 21, and that pile having been pitched, the work on that dolphin proceeded thenceforward. On Sept. 24 Mr. Shelbourne, the principal if not the sole partner in the plaintiff firm, was called to a consultation with the defendants; and there was then a discussion about strengthening and improving the works which were required by the defendants at this place in the River Medway. The dolphins were intended for the purpose of mooring steamers which would come up the Medway to discharge cargoes of oil to be dealt with by the Medway Oil Co., a company formed for the purposes of receiving cargoes of oil in tank steamers and selling the oil after it had been landed at their works. On this occasion a number of schemes were mooted and discussed which