deposited in Lloyds Bank should be released for his clients' account.

His LORDSHIP said the matter must be settled up between the parties as to the financial arrangements.

Mr. LE QUESNE suggested an order to release the proceeds to Lloyds Bank. His clients were entitled to deal with the money.

Mr. PORTER asked for a stay of execution; and his LORDSHIP said he would direct the release of the money without prejudice to the rights of the plaintiff if he succeeded in an appeal. He would not grant a stay, but Mr. Porter could go to the Court of Appeal if he liked.

There would be a stay as to costs and the fund in Court would be released to Lloyds Bank. An application* to the Court of Appeal might adjust the whole matter.

KING'S BENCH DIVISION.

Tuesday, June 26, 1923.

UNITED STATES SHIPPING BOARD v. DUFFELL & CO. AND ANOTHER.

Before Mr. Justice BAILHACHE.

-

Bill of Lading Demurrage payable pro rata Freights Goods transhipped Bills different in Terms from Terms of original Charter-Party B/L-Refusal by other Shippers to accept Terms Lay Days allowed to different B/L Holders on different Bases Whether Prevention of Performance.

These were actions brought by the United States Shipping Board against Messrs. Duffell & Co. and Messrs. R. Durell & Co., timber merchants, claiming demurrage with reference to the unloading of cargo from the steamship Bethelem Bridge in the London Docks in October and November, 1919. There had been a previous trial before his Lordship, who found (14 L1.L.Rep. 45) in favour of the defendants. The case was taken to the Court of Appeal, who came to a decision (15 LI.L.Rep. 105) different from that of his Lordship, but gave the parties an opportunity of calling further evidence. In these circumstances, the case again came before his Lordship.

Mr. R. A. Wright, K.C., and Mr. John Dickinson represented the plaintiffs (instructed by Messrs. Thomas Cooper & Co.), and for the defendants Mr. Stuart J. Bevan, K.C., and Mr. H. Claughton Scott, K.C. (instructed by Messrs. Trinder, Capron, Kekewich & Co.) appeared.

Mr. WRIGHT intimated that what happened when the case was previously before his Lordship was that there were four claims. One was dealt with separately, and the other three were taken the next day, and the point about the three was this. The ship had on board 150 consignments, including some timber, part of which was on deck. * See p. 174 ante.

The bills of lading contained a clause that the cargo was to be discharged at the rate of 450 tons, or 200 standards, per day, and time was to commence on arrival at Gravesend. That was the case as to the bills of lading, for the present purpose, with two exceptions. There was one of these bills of lading in which that part of the demurrage clause which said time was to commence when the ship arrived at Gravesend was struck out. That was the bill of lading relating to a consignment for Messrs. Eede Butts & Son.

That firm was receiving a quantity of timber which was on deck, and their bill of lading had that part struck out. In addition to that there was a parcel on deck consigned to Messrs. Bayne & Sherborne.

His Lordship held without any presumptive evidence in fact that the three consignees, Messrs. Duffell & Co., Messrs. Durell (both of whom were appearing that day) and Messrs. Eede Butts & Son, Ltd., were none of them liable for demurrage, because he held that the shipowner, by his own act, had prevented the performance of the contract entered into by the respective consignees, the difference in the bill of lading per se having amounted to prevention in fact. The Court of Appeal took a different view from his Lordship on this question of construction, and they said in effect that the difference in the form of the bill of lading would be immaterial within the case of Budgett & Binnington, [1891] 1 Q.B. 35, per se, and that the consignees, in order to exclude their liability for damages, would have to show there had been a prevention in fact within Budgett v. Binnington sup., and Alexander v. Hansa Co., [1920] A.C. 88 at p. 94. Then they said in allowing the appeal that the issue of fact would still be open to the defendants if they gave notice within ten days after judgment in the Court of Appeal that they intended to proceed in the matter, and that then his Lordship or some other judge would deal with that and decide accordingly.

They said if they did not give notice within ten days the decision would stand, and so far as the costs of the appeal and first trial were concerned, they would be the plaintiffs' in any event, and the costs of the issue of whether there was prevention in fact on the general part of the action was to be dealt with in accordance with the view the Judge might take of the matter. In these circumstances two of the defendants, Messrs. Duffell and Messrs. Durell, had decided to proceed, but Messrs. Eede Butts & Son were not doing so, and the issue now was whether the former could prove prevention in fact in accordance with Budgett v. Binnington and Alexander v. Hansa Co., sup. His Lordship was willing to hear the case, and the defendants had elected to stand by their original pleadings, and therefore the case was limited to the consignees who had bills of lading in different form from the others.

Mr. WRIGHT referred to the details of the case, and evidence was given on both sides.

JUDGMENT.

Mr. Justice BAILHACHE, in giving judgment in favour of the defendants, said: These two cases come back to me again from the Court of Appeal, and they come back to me, as I understand, for the reason that the Court of Appeal did not understand the principles on which I acted in my judgment. I find it very difficult to see why they did not understand these, but I have no doubt it was due to som.e imperfect expression of mine upon the principle on which I proceeded. When the cases came before me I was very greatly interested in them, as they seemed to me to raise new points upon bill of lading law which had not been decided previously, and in order that there may be no difficulty or mistake upon the principles on which I have decided this case, I have taken the trouble to write out the principles and view on which I intend to act. These are that where a shipowner contracts with holders of bills of lading to discharge his ship in fixed lay days, but stipulates for a different number of days for different bill of lading holders, as, for example, ten days in some cases and 20 days in others, then (1) if the 20-day bill of lading holders take a time exceeding ten days, the liability of the ten-day bill of lading holders ceases to be a liability to discharge in ten days, and becomes a liability to discharge in a reasonable time under all the prevailing circumstances; (2) The position of the 20-day bill of lading holders differs according to the circumstances. (a) If a reasonable time under all the prevailing circumstances is less than 20 days their liability remains fixed; (b) if the contrary is the case they too are discharged from this fixed contractual liability and their liability then becomes the same as the tenday bill of lading holders, and becomes a liability to discharge within a reasonable time under all the prevailing circumstances. Next, when the days in all the bills of lading are the same, say, 10 days, but they either do or may begin to run from different dates, as, for example, some from arrival in port and others in getting into berth, then: (a) If both events synchronise, if the ship goes straight into a discharging berth, both sets of bills of lading stand. (b) If the ship is delayed in getting into a berth after arrival in port, the obligation of those bill of lading holders whose bill of lading time dates from arrival in port becomes an obligation to discharge in a reasonable time under the prevailing circumstances, and if it is not reasonable or practicable to begin to discharge before the ship is in berth, the reasonable time does not begin to run until the ship is in berth. (c) In the same case, if the reasonable time. so calculated exceeds ten days, the liability of the bill of lading holders whose time does not begin to run until the ship is in berth also ceases to be a fixed liability, and also becomes a liability to discharge in a reasonable time.

The underlying reason for all these results is the same, that is to say, the shipowner in the events which have actually happened has by his inconsistent contracts

prevented the performance of the bill of lading contracts according to their tenure.

Proceeding on these principles, I was at the first hearing, and here again, confronted with these dates. First of all, I ought to say in the case of Duffell and Durell their liability was to discharge in a fixed number of lay days, which excluded Sundays, and which I may call ten days. Their liability was on arrival of the vessel in port as distinguished from the liability of Messrs. Eede, Butts & Son, whose lay days were the same but did not begin to run until the vessel arrived in berth.

The Bethlehem Bridge did not arrive in berth until Oct. 23, so that nine out of the ten days allowed to Duffell and Durell had already expired before she arrived in berth. She began to discharge on the 24th, and it actually finished on Nov. 26. Now, it is to be observed that the whole ten days allowed to Duffell and Durell expired on the 24th. That is one day after she arrived in berth. Messrs. Eede, Butts & Son's cargo-which was discharged, I will deem it, without any undue delay-began to be discharged on the 24th and was finished on Nov. 31. Therefore, Messrs. Eede, Butts & Son had-as they had the right under their contract with the owner-their cargo on board, which was not discharged until the lay days allowed to Duffell and Durell had expired. I did not require any evidence on the first occasion because the lay days having been so very nearly exhausted by the time the Bethlehem Bridge spent in waiting for her berth, it did not seem necessary to inquire further.

There was only one day left, and nobody suggests that Messrs. Eede, Butts & Sons' cargo had been taken out on the 24th. When you get beyond the 24th, then my principles are right, and there has been, in effect, prevention by the shipowner of the performance by Duffell and Durell of their contract. According to the further evidence given to me, Messrs. Eede, Butts & Sons' cargo was not out until Oct. 31, and that more than exhausts the ten days allowed to Duffell and Durell.

Mr. Claughton Scott never did believe in this principle of mine, and I do not think he does so now. Therefore he is trying to make out a totally different case of prevention by virtue of some cargo belonging to some people named Bayne & Sherborne.

Now, it appears that the history of that cargo is this. They had some cargo that was intended to be shipped by the steamship Kaskaskia, but, unfortunately, without their knowledge, part of that cargo in the Kaskaskia fell overboard as she started. That cargo was recovered and was by the owners of the Kaskaskia, which are the same as the Bethlehem Bridge, the plaintiffs in this case, loaded on board the Bethlehem Bridge. A cable was sent to Messrs. Bayne & Sherborne, whose business had become amalgamated with Messrs. Gabriel & Co., to the effect that the cargo had been loaded in the Bethlehem Bridge. Bayne & Sherborne affected a

very touching ignorance about the whole business. They did not know the person whose name was at the foot of the cable, but they knew perfeel well that they had cargo on the Kaskaskia, and they must have known, whoever the person was who sent it, the cable referred to their cargo.

However, they contented themselves with looking round the office and saying, "This is a very extraordinary thing, we cannot make head nor tail of it," and there they left it.

They were informed later that this cargo had arrived, but they treated this as a matter of no importance, and said they were not interested. They were asked to send lighters to receive the cargo. They said they had done their best to get lighters but could not get them. Why they said they had done their best to get lighters for a parcel in which they were not concerned is past my comprehension until I heard it explained in the witness-box that the statement that they were getting lighters was perfectly untrue. They took no trouble about this cargo at all. Their cargo did delay the discharge very considerably, but that was not the fault of the owners, who put the cargo on board, but of Bayne & Sherborne, who had declined to take the ordinary business steps, which a business man ought to have taken, to get their cargo discharged.

So far as that delay is relied upon, I decide against the defendants. But, in my opinion, the other case is abundantly made out. It was made out to my satisfaction for the reasons I gave on the first occasion, and I much regret that owing to some in.perfect way in which I expressed myself, the Court of Appeal seemed to come to the conclusion that I was deciding not upon the form of the contract plus the facts, but upon the form of contract without the facts. That was not really the case, and I am sorry the parties have been put to the expense of this new trial. So far as the fault was mine, I express regret for it.

His Lordship found in favour of the defendants, and judgment was entered accordingly

KING'S BENCH DIVISION.

Tuesday, June 26, 1923.

COMPAGNIE GENERALE DE L'AFRIQUE FRANCAISE v. ROBERT 0. WIENER & CO., LTD.

Before Mr. Justice BAILRACHE.

Sale of Goods (Tallow)-Substituted Contract-Payment by Bills of Exchange

Sellers' power to cancel Part or Whole Contract if Bills not paid on Maturity: whether waived.

This matter came before the Court upon a case stated by an umpire in a reference upon a dispute between the Compagnie Général de l'Afrique Française, the buyers, and Messrs. Robert O. Wiener & Co., Ltd., in relation to contracts entered into between the parties for the sale and purchase of large quantities of tallow, Messrs. Wiener & Co. being the sellers.

The matter has already been before the Divisional Court, who remitted the award to the umpire to find certain facts, intimating that he might give his award in the form of a special case.

Previous proceedings in this case were reported in 14 Ll. L. Rep. 416.

Mr. W. A. Jowitt, K.C., and Mr. F. van den Berg (instructed by Messrs. Cosmo Cran & Co.) appeared for the sellers, and the buyers were represented by Mr. C. T. Le Quesne (instructed by Messrs. W. A. Crump & Son).

Upon the question of the sellers having tendered two shipments by the Michigan and the Mississippi, respectively, after their right to cancel had accrued, the umpire now found that they had waived their right to cancel any part of the contract then remaining. He found that the buyers did obtain delivery of 65 tons of tallow shipped by the Michigan, but the sellers, after having tendered the 100 tons shipped by the Mississippi, did not present the documents to the buyers, who consequently did not obtain delivery of these goods.

Subject to the opinion of the Court, he awarded that the sellers had waived their right to cancel the contract in its entirety or any part thereof, and he awarded that they pay the buyers the sum of £1534 as damages for breach of contract. If the Court should be of opinion that his award was wrong in law, and that while the sellers did waive their right to cancel the contract so far as the two parcels tendered by the Michigan and the Mississippi were concerned, they did not waive their right to cancel the remainder of the contract, he awarded that the sellers pay to the buyers the sum of £675 as damages for breach in failing to deliver the 100 tons per the Mississippi.

Mr. JowITT now said Messrs. Wiener & Co. were the sellers under a contract dated January, 1922, under which Messrs. Wiener & Co. sold a large quantity of tallow which

had to be delivered to the Compagnie Générale at certain dates, and which was to be paid for by 60 days' acceptances. A dispute arose between the parties as to a certain shipment on the Sonora, the buyers claiming that the sellers had telescoped their shipments. Then an arrangement was reached by which the disputed shipments were to be paid for by one 60 days' acceptance, one 90 days' acceptance and another 90 days' acceptance with the right to renewal for another 30 days.

Meanwhile a new contract was entered into in June, 1922, and it was under that contract that the present dispute arose. One of the conditions of the second contract was that the sellers had the right to cancel if the buyers did not pay in respect of the Sonora shipment by specified dates. The buyers claimed the privilege of the 30 days' renewal and the sellers claimed the right to cancel the second contract. This was referred to the Court, which found on construction that the sellers were right.

It happened, however, that the sellers had declared a shipment under the second contract by the Michigan, and that shipment ultimately got into the hands of the buyers after proceedings in France. Another shipment by the Mississippi which was declared by them never reached the buyers. The buyers in these circumstances then said that, although the sellers had the right to cancel the contract, they had waived their right by making the two declarations of the Michigan and the Mississippi shipments. The matter went to arbitration, and the Umpire, subject to the opinion of the Court, awarded the buyers damages to the amount of £1534, holding that the sellers had waived their right to cancel.

Wednesday, June 27, 1923.

Mr. JowITT argued that, in the circumstances, there had been no waiver either as to part or the whole of the contract.

Mr. LE QUESNE, for the buyers, contended that, having regard to the correspondence between the parties, it was not open to the sellers to say that they were entitled to give nothing over and above the Mississippi consignment, and at the same time to claim. that they had elected to cancel the whole. In the original contract, the sellers had the right to cancel in certain circumstances, but when these arose they elected not to cancel, but, on the contrary, had indicated by their letters that they desired to proceed with the contract. The sellers were not entitled to go on making deliveries and letting the buyers think they were going to complete the contract and then suddenly turn round afterwards and say, "I will not supply you with any more." That would be putting the buyers in an impossible position.

JUDGMENT.

Mr. Justice BAILHACHE, in giving judg ment, said: This is, I think, an interesting case, and not a very easy one. The point

to be determined arises in this way: Messrs. Wiener & Co. sold to the Compagnie Générale de l'Afrique Française a quantity -some 700 tons-of tallow. There had been an earlier contract, and some mixture of the shipments had interfered with the payment for which, by arrangement, bills were given. Three bills were given, and the last was payable in 90 days, with an arrangement that there should be an extension of time, if the buyers wished it, to 120 days. There was also a memorandum that unless the bills were paid on maturity the contract might be cancelled.

In due date the period of 90 days arrived and the buyers did not pay, but they got an extension to 120 days, from July 31 to Aug. 30, as they were entitled to do. The arrangement for cancellation was contained in a letter of June 3, 1922, which said that the sellers had the right to cancel the contract in its entirety or any part thereof if the contract was not carried out absolutely, that is to say, if the bills accepted relative to the former contract of Jan. 6 were not met on maturity or due date. Now the sellers claimed the right to cancel a part of this contract, and a case was stated for the Divisional Court as to whether the bills were payable on July 31 (they were paid by Aug. 30), or were due on Aug. 30. What was the due date upon which they matured? The Divisional Court came to the conclusion that it was July 31, and that in consequence of this the right of the sellers to cancel the contract as regards the goods remaining undelivered on or about Sept. 28, 1922, arose. The point was also submitted to the same Court as to whether the sellers were entitled to cancel the whole contract under the circumstances I have mentioned, but the Divisional Court declined to answer that question, thinking there might be some oral evidence, and the matter went back to the arbitrator, who decided that the right to cancel was lost by the conduct of the parties.

Whether it was or was not depends upon four letters and two facts. On Aug. 3 the sellers write to the buyers :

In view of the extension of this bill we find ourselves in the situation provided for by the letter attached to the contract of the 3rd of June and consequently must reconsider entirely our position under this contract.

That is to say, they are not saying they will cancel. It means to say that they are entitled to, but will consider their position. Without saying more, on Aug. 5 they write this letter:

While we refer you to our yesterday's letter we advise you at the same time that the 65 tons of tallow are on the s.s. Michigan and documents will be presented to you by the bank early next week.

The 65 tons of tallow were part of the contractual amount which the sellers were

claiming they had a right to cancel if they were so minded. They did make some trouble about the buyers having the cargo that is referred to in their letter. On Aug. 18 they wrote:

In our letter of the 5th we do not express the desire to cancel the contract which you will have been able to convince yourself of by reason of the fact that we have already begun to make you shipments.

In the reference to the letter of the 5th there must be a mistake. It must be their letter of the 3rd. They go on to say:

The change in maturity dates has brought about a change in the basis of the contract and we were, thus, to our great regret, obliged to make all our reserves with regard to the carrying out the same, and it is this we wished to express in our last letter.

At the time they had not demanded cancellation, but notwithstanding that on Aug. 28 they write:

100 tons of tallow deliverable July/ August ex contract of June 3, 1922.We have the pleasure to inform you by this letter, provisionally and without binding ourselves, that these 100 tons of tallow have been shipped by the s.s. Mississippi to the destination of Bordeaux. Kindly take note of this. We will not fail to advise you definitely as soon as the telegraphic confirmation will have reached us.

Notwithstanding this they declined to let the buyers receive this tallow and the buyers have never had it, and the arbitrator has found that with regard to this 100 tons shipped by the Mississippi the buyers are entitled to have it and that the reserves mentioned in their letter have nothing to do with the reserves of the contract or cancelling but are the ordinary reserves made by c.i.f. sellers to protect themselves before they know what the exact position is. I entirely agree with the arbitrator that the buyers are entitled to have the 100 tons on the Mississippi. About that, I think, there can be no doubt. But the buyers want more; they want the whole of the balance of the contract, and the arbitrator has found that by the tender of these two shipments by the Michigan and the Mississippi the sellers have impliedly waived their right to cancel their contracts and have elected not to cancel in whole or part. Mr. Le Quesne has argued that unless that is so the buyers are in the unfortunate position of uncertainty, which is the worst position a commercial man can find himself in when he has to deal with the sale or purchase of goods, and I think that is perfectly true, but at the same time, having regard to the fact that the sellers had the right to cancel in whole or part, and that they never in terms said they were not going to cancel, and that they

were never asked by the buyers if they were going to cancel, it seems to me that, although they made deliveries by the Michigan and are bound to make delivery by the Mississippi, it does not amount to a waiver of their right.

In my opinion, they do maintain their right. They talk about their reserves and express themselves as maintaining their rights of cancelling, and, in my judgment, they have not acted in such a manner as to waive their rights or estopped themselves by their conduct. In my opinion, the second part of the award ought to stand. With regard to the first part of the award, I do not agree that the buyers are entitled to the whole of the undelivered balance, but I agree with paragraph 9a of the award, which seems to me to be quite right.

Under par. 9a the Compagnie Générale recover £675. His Lordship also gave them.

costs.

KING'S BENCH DIVISION. Tuesday, June 26, 1923.

THRIGE v. UNITED SHIPPING COMPANY, LTD.

Before Mr. Justice ROWLATT.

Forwarding Agents-Claim for Damages for Delivery of Goods to Consignees without Production of Bill of Lading.

In this case, the plaintiff, Mr. Thomas Barfoed Thrige, of Odense, Denmark, claimed from the United Shipping Company, Ltd., Fenchurch St., E.C., damages for alleged breach of duty in and about the delivery of machinery and motor parts or in the alternative damages for alleged conversion.

Mr. H. Morris, K.C., and Mr. T. Beresford (instructed by Messrs. Turner & McCandlish) appeared for plaintiff; Mr. A. T. Miller, K.C., and Mr. I. H. Stranger (instructed by Messrs. Stokes & Stokes) for the defendants.

as

Plaintiff's case was that he sold machinery to the Victoria Dynamo & Motor Company upon terms of cash against documents. He shipped the machinery in vessels of a Danish company known Det Forenede Dampskibsselskab. This company gave plaintiff bills of lading for the goods that provided for the delivery to the Victoria Company at their London premises. By the bills of lading the machinery was to be carried from Esbjerg to Harwich and then forwarded by rail to the consignees in London. On arrival of the shipments at Harwich the goods were handed over to defendants to be by them forwarded to London and there delivered to the consignees upon production of the bills of lading. Plaintiff alleged that defendants, in breach of their duty, delivered the