that the words of the policy here are in trust, or on commission, or for which the assured is/are held to be responsible." The disjunctive or" is important. In my view, the plaintiff was responsible " for the necklets to the respective owners, Messrs. Wingrove & Co., Ltd., and Messrs. Byworth & Co. The terms of the appro. notes under which the plaintiff obtained the necklets are these. The appro. note of Messrs. Wingrove & Co. said "The on appro." goods specified below are sent by W. W. & Co., Ltd., on approbation, and being covered by insurance whilst in transit, they remain the property of W. W. & Co., Ltd., and are to be returned in good condition and on request." The appro. note of Messrs. Byworth & Co. said "These on appro.' goods remain the property of H. H. Byworth & Co. until invoiced by them. You in the meantime responsible for loss or damage." For the purposes of the present case I see no substantial distinction between the two notes.

To determine whether the plaintiff was "responsible I think that I must consider, inter alia, Sect. 18, Rule 4, of the Sale of Goods Act, 1893. I need not set out that section with respect to goods sold on sale or return," i.e., on appro. Where there are appro. notes such as the present (and certainly in the case of the appro, note of Byworth & Co.) the owner appears to expressly reserve his right to pass the property. (See Kempler v. Bravingtons, Ltd., 133 L.T. 680.) I do not propose to discuss the many decisions on Sect. 18 of the Sale of Goods Act. If goods are delivered to a man "sale or return," prima facie he must return the goods or become liable for their price. If there be a fixed period for the return, that period must be observed. If there be no fixed period, the law itself fixes a reasonable time.

on

In the present case I am of opinion that the wording of the appro. notes threw upon the plaintiff the responsibility of actually returning the goods or of becoming liable for the price. Here, he could not return the goods; and thus he became, I think, liable to Messrs. Wingrove & Co. and to Messrs. Byworth & Co. The plaintiff has in fact paid these firms for the necklets. He had given, I may say, no notice of rejection. It may be too that upon the principle of Genn v. Winkel, 107 L.T. 434, the plaintiff, by handing the necklets to Esme Ellison under the special circumstances of the present case, must be treated as having caused the loss of them by his own default and, therefore, must be treated as having adopted the transaction within Sect. 18. In Ray v. Barker, 4 Ex.D. 279, the Court of Appeal seemed to be somewhat strongly of the opinion that the person who received the goods "on sale or return" would be liable if he was unable to return the goods through the fraudulent act of a third person to whom he had delivered them. The facts there are strikingly like the facts now before me.

There is a useful discussion on cognate points in Benjamin on Sale, 6th ed., pp. 369 to 374. The principle of such decisions

as Humphries v. Carvalho, (1812), 16 East 45, and Moss v. Sweet, (1851), 16 Q.B. 495, is not irrelevant. The case of Elphick v. Barnes, 5 C.P.D. 321, is to be distinguished. There the buyer of a horse on sale or return had eight days in which to return it, and it died within the period without his default. The defendant was held not liable by Denman, J. But there the subjectmatter perished entirely. In the case now before me the necklets did not perish; they merely passed to other hands.

It follows from what I have already said in this judgment that the defendant is liable unless he is saved by some exception in the policy.

I therefore pass to the final main point. It arose upon one of the exceptions in the policy. I set out the words again. They are these: "Loss by theft or dishonesty committed by any servant, or traveller, or manager in the exclusive employment of the assured (except when conveying goods to the post) or by any customer or broker or broker's customer in respect of goods entrusted to them by the assured, his or their servants or agents unless such goods are deposited for safe custody by the assured his or their servants or agents with such broker or customer or broker's customer." A like exception was mentioned but not discussed by the House of Lords in Moore v. Evans, [1918] A.C. 185.

The

The able argument for the defendant may be put into a few words as follows. If there was a loss by theft, then (a) Esme Ellison was a customer, (b) the necklets were entrusted to her, (c) she stole them, and (d) hence the exception applies to save the defendant from liability. But the matter is not, I think, so simple as that. exception contemplates inter alia, (a) that a theft by a messenger not in the exclusive employ of the assured may not fall within the exception, and (b) that goods received by a customer for safe custody and then stolen will not fall within the exception. The exception as a whole is obscure and the word entrust is ambiguous in view of the context. Did the parties intend that such a set of facts as those in the present case should fall within the exception? To illustrate the doctrine of alio intuitu I need only refer to three decisions, namely, A. L. Smith, L.J., in Bates v. Donaldson, [1896] 2 Q.B. 241, at p. 247; Barnett v. Javeri, [1916] 2 K.B. 390, per Bailhache, J.; and Radcliffe v. Cie. Gen. Transatlantique, 24 Com. Cas. 40, at p. 44, per Bankes, L.J.

"

casc

cus

In my view the exception here, so far as relevant, was meant to apply to a where jewellery was delivered to a tomer qua customer, and for the purposes of that customer as such, with respect, for example, to the purchase by that customer of goods delivered on sale or return to him or her. A customer may be a customer with respect to one transaction and a mere agent, or messenger, or carrier with respect to another proposed transaction.

In the present case I hold that the necklets were not entrusted to Esme Ellison as a customer within the meaning of the exception. She received them as a mere agent

or messenger for the purpose of showing them to others who might or might not become customers. I therefore hold that the exception here does not apply.

I may add that in any event the exception is most doubtful in meaning. Unless it be clear in its effect the defendant cannot rely upon it. It suffices to refer to the words of Lord Macnaghten in Elderslie's case, [1905] A.C. 93, at p. 96, when he said: "An ambiguous document is no protection"; to Nelson's case, [1908] A.C. 16; and to Wallis v. Pratt, [1911] A.C. 394.

In spite, therefore, of the able argument of Mr. Bevan and Mr. Van den Berg, I think that the defence fails; and for the reasons given there must be judgment for the plaintiff for £1450 with costs.

A stay of execution was granted on the usual terms.

CHANCERY DIVISION.

Tuesday, Dec. 1, 1925.

IN RE BRITISH STEAMSHIP
INVESTMENT TRUST, LTD.

Before Mr. Justice ROMER.
Company-Alteration of objects.

This was a petition to sanction an alteration of the objects of the company.

Mr. A. C. CLAUSON, K.C., with whom was Mr. A. C. Nesbitt (instructed by Messrs. Markby,Stewart & Wadesons), said the company was formed for the purpose of acting as a trust investment company to take up large holdings of shares in shipping companies and ships. The company had carried on business with great success, but shipping investments were not quite so gilt-edged as they used to be, and it had been found necessary to take up other investments. The question raised was whether the company was entitled to do so except as temporary

Patent

Before Mr. Justice TOMLIN.

Maritime signalling apparatus – Petition for prolongation-Period of five years granted.

This was a petition by Mr. John Moyes, of Bogton Avenue, Cathcart, Glasgow, and Mr. Chas. Alexander Stevenson, of Douglas Crescent, Edinburgh, for the prolongation of two patents relating to signalling apparatus for use at sea.

Mr. W. ERIC BOUSFIELD (instructed by Messrs. Janson, Cobb, Pearson & Co.), for the petitioners, said the apparatus was installed in a buoy or at a lighthouse, and by means of it a lamp was lit and an explosion caused which worked a fog-horn. The apparatus could be controlled by wireless or a cable. Wireless, in fact, was now being used successfully. Before the war it was installed at several points round our coasts and at Portland, Oregon, but when the war broke out it had to be dismantled everywhere, and the patentees lost the entire benefit of the patents during that period.

Mr. DIGHTON POLLOCK, for the Board of Trade, said the invention was of considerable importance, and he left it to the Judge to decide the period of prolongation.

Mr. Justice TOMLIN: Five years.

Their Lordships to-day heard the appeal of the United States Shipping Board from an order (20 Ll.L.Rep. 97) of the Court of Appeal affirming a judgment (18 LI.L.Rep. 422) of the late Mr. Justice Bailhache which set aside an award in favour of the appellants in an arbitration between them and Bunge y Born.

By a charter-party between the appellants, the owners of the steamship Alamosa, and the respondents, the vessel was to carry a cargo of maize from the River Plate to a port on the Continent, between Marseilles and Hamburg. It was subsequently agreed that the charterers might, as they in fact did, load a cargo for discharge partly at Malaga and partly at Seville, and that Malaga should be the first port of discharge. The charter-party provided for the payment of demurrage by the charterers in the event of the stipulated discharging days being exceeded.

It was also provided that the ship should have the liberty to call at any port or ports for the purpose of taking bunker coal or otherwise. While proceeding on her voyage, the Alamosa, which was an oil-burning ship, put into Rio Janeiro for fuel oil. Thence she proceeded to Malaga,

[BY SUBSCRIPTION

where she discharged the part of her cargo within the stipulated discharging days. She then had remaining sufficient oil fuel to enable her to reach Seville and to discharge there, but not sufficient to enable her afterwards to leave Seville. From Malaga she proceeded to Gibraltar, where she waited for two days for the expected arrival of an oil tanker, but the tanker not arriving she proceeded to Lisbon, the nearest place where oil fuel could be obtained. Next she proceeded to Seville, where the discharge of the cargo exceeded the stipulated discharging days by 1 day 9 hours.

In a claim for demurrage the charterers contended that by proceeding to Lisbon the Alamosa had deviated from the charterparty voyage, and that so far from having to pay demurrage the charterers were entitled to damages for deviation. The arbitrator awarded the owners demurrage and disallowed the claim for damages for deviation. Mr. Justice Bailhache held that the arbitrator was wrong in law, that demurrage was not recoverable, and that damages for deviation were payable. This decision was affirmed by the Court of Appeal.

Sir Leslie Scott, K.C., Mr. C. R. Dunlop, K.C., and Mr. B. B. Stenham (instructed by Messrs. Thos. Cooper & Co.) appeared for the appellants. Respondents were represented by Mr. A. R. Kennedy, K.C., Mr. A. T. Miller, K.C., and Mr. W. Van Breda (instructed by Messrs. Richards & Butler). Counsel for the respondents were not called upon.

JUDGMENT.

Lord BUCKMASTER, in moving that the appeal should be dismissed, said: My Lords, this appeal comes before the House in the following circumstances. The appellants are the owners of a vessel known as the Alamosa. On Oct. 23, 1920, they chartered that vessel to the respondents for the purpose of carrying a cargo of maize. The voyage was from the River Plate to a port between Marseilles and Hamburg; and

ultimately the actual ports of discharge were fixed at Malaga and Seville. The charter-party contained a clause which provided that the ship should have

the liberty to call at any port or ports in any order, for the purpose of taking bunker coal or other supplies, to sail without pilots, to tow and be towed, to assist vessels in distress and to deviate for the purpose of saving life or property.

It is only necessary in passing to comment on that clause by saying that a series of decisions with which this House agrees have decided that the liberty which is there conferred is a liberty to call at any port or ports upon the line of route between the port of loading and the port of discharge.

What happened to the vessel was this. She took in oil at Rio Janeiro, but the oil that she took was not adequate to take her to both the ports of discharge and at the same time to clear her from the final port. What resulted was this. She went first to Malaga and I suppose that, then finding that she had not enough oil to take her from the port of Seville, though she had enough to take her there, arrangements were made that a tank steamer should meet her at Gibraltar where she was to take in further oil. The tank steamer failed to keep the appointment, and in the result the master took the vessel to Lisbon some distance off the route for the purpose of getting the necessary oil supplies. That that was a deviation is not in dispute, but it is said that it was a deviation which is justified either in the terms that are expressed or the terms that are implicit in the charter-party. The actual dispute arose because in the course of discharge the charterers exceeded the stipulated time by 1 day 9 hours, with the result that the owners claimed demurrage; the answer to which was that as there had been a deviation the claim as to demurrage could not be maintained, and further that the owners were themselves liable for damages to the charterers by reason of the fact that the deviation had taken place.

Now, my Lords, upon these facts it appears to me that once deviation has been established, as it clearly has been in the present case, it becomes incumbent upon

the owners to show that the deviation was one which in all the circumstances of the case was justified. To my mind it cannot be argued that the deviation was one that can be found within the express provisions of Clause 29 to which I have referred. It must therefore be supported, if it can be supported at all, by the doctrine to which Sir Leslie Scott referred, that if the deviation was reasonably necessary in the business sense then she was on the course that the charter prescribed. If that were to be established, it appears to be necessary for the owners to show that all necessary steps had been taken to supply her with adequate oil at the commencement of the voyage. Of that there is no evidence at

all; and in my opinion, for that reason alone, their argument fails.

Further, I desire to say that I am far from being convinced that a shipowner has any right to deviate from his prescribed routes for the purpose of obtaining the fuel that would be necessary not to take him to the port of final discharge but to take him out of that port after the discharge had been completed.

For these reasons I think the judgment of the Court of Appeal should be affirmed; and I move your Lordships accordingly.

Lord ATKINSON: I concur.

Lord SUMNER: I agree. The decision of this House in Glyn v. Margetson, [1893] A.C. 351, and all the other cases both before and since that case, have invested clauses of this type with a meaning which it is now quite impossible to shift. It is quite clear from the present facts that calling at Lisbon for that purpose was not within the permission which the charter-party gives. In the circumstances it appears to me to be in conflict with the express words and therefore not to be capable of being implied. It appears to me not to be such a clause as is necessary to give business effect to the contract under consideration. It appears to me to be a term that reasonable business men would not have agreed to if it had been brought before them; and I think the contention really proceeds upon the familiar doctrine that it would be a convenient thing to secure an advantage for oneself and make somebody else pay for it. Lord WRENBURY: I concur.

Lord CARSON: I also concur.

The appeal was dismissed with costs.

The Lord Chancellor (Viscount CAVE), in moving that the appeal should be dismissed, said: This appeal is concerned with the third stage in a prolonged litigation which has arisen out of a collision between the steamship Warilda (acting as an ambulance transport) and the steamship Petingaudet (a merchant vessel) which occurred in the early morning of Mar. 24, 1918.

In the first stage of the contest, a collision action which was carried to this House, it was determined (2 L1.L. Rep. 187) that the collision was due to the negligence of the master of the Warilda; and the Warilda was held liable to the Petingaudet for damages.

In the second stage, which also reached this House, it was determined (14 LI.L. Rep. 549) that the collision was a consequence of a warlike operation in which the Warilda was engaged, and accordingly that under Clause 19 of the charter-party under which the vessel was being employed (T. 99) the Warilda was entitled to recover from his Majesty damages for the collision.

The third stage, in which this appeal arises, is concerned with the measure of these damages; and the questions litigated are whether the Warilda can recover from the Crown as part of such damages: (1) three-fourths of the sum which the Warilda has been held liable to pay to the Petingaudet for the damage caused to that vessel, (2) three-fourths of the costs incurred by the Warilda in defending the collision action, and (3) hire money or compensation for loss of hire during the period when the Warilda was herself undergoing repair. Greer, J., and the Court of Appeal have held that none of these sums can be recovered; and the appeal is against that decision.

Upon the first point the arguments were well balanced, but upon the whole I have come to the conclusion that the decision of

the Court of Appeal is right. Clause 19 of charter-party T. 99 (which has the marginal note "War risks damage or loss of ship") is in the following terms:

The risks of war which are taken by the Admiralty are those risks which would be excluded from an ordinary English policy of marine insurance by the following, or similar, but not more extensive clause

Warranted free of capture, seizure, and detention, and the consequences thereof, or of any attempt thereat, piracy excepted, and also from all consequences of hostilities or warlike operations whether before or after declaration of

war.

It is common ground that an ordinary English policy of marine insurance would contain the Institute Time Clauses, including the first of those clauses, which is known as the collision or running-down clause and which provides (in effect) that, if the insured ship comes into collision with another ship and becomes liable to pay and pays damages in respect of such collision, the insurer will pay to the assured threefourths of the sum so paid and will also, if the liability of the insured ship has been contested with the consent in writing of the insurer, pay a like proportion of the costs which the assured thereby incurs or is compelled to pay. This being so, the question to be determined in this case is whether the liability undertaken by the collision clause is or is not a risk which would be excluded by the f. c. & s. clause set out in Clause 19 of the charter-party as being a consequence of warlike operations. If it would, then the Crown is clearly liable; but if not, the claim now under consideration must fail.

My Lords, I do not think that it would be so excluded. It was held in Ionides v. Universal Marine Insurance Co., (1863), 14 C.B. (N.S.) 259, and has not since been doubted, that in applying the exception created by the f. c. & s. clause the Court must look at the proximate and not at the remoter consequences of the warlike operation; and, while it has been decided by this House that the collision itself and the consequent damage to the Warilda were the direct result of the warlike operation in which the Warilda was engaged, it does not follow that the liability of the Warilda to the owner of the Petingaudet falls within the same category. That liability arose, not from the collision taken by itself, but from the negligence of the master of the Warilda which alone constituted the cause of action, and was, therefore, not a direct and proximate consequence of the warlike operation. This seems to me to follow from the decision in the case of De Vaux v. Salvador, (1836), 4 A. & E. 420, where it was held that the sum which a shipowner had to pay for damage to another ship caused partly by the negligence of his servants was too remote from the sea perils against which his ship was insured to be recovered by him under a marine policy. Lord Denman, in delivering the judgment of the Court in that case, said :—