Ex. Div.] was thereupon entered for the plaintiffs, with leave to the defendants to move to enter it for them; and a rule was afterwards made absolute to enter the verdict for the defendants on the ground that the pilot by whose negligence the collision was caused was compulsorily employed. GENERAL STEAM NAVIGATION Co. v. LONDON AND EDINBURGH SHIPPING CO. Butt, Q.C. and Webster, now moved for an order that the defendants should have no costs of the cause. The application is made under Order LV. No application as to costs was made at the trial, but this court has power to make such an order under the words "or the court." That this is the interpretation of the order is clear. In the case of Baker v. Oakes (L. Rep. 2 Q. B. Div. 171; 35 L. T. Rep. N. S. 671, 832), Cockburn, C.J., said, "If the application had been to the court itself, I think there can be no doubt it would have had power to deal with the costs." If it does not bear the interpretation we put upon it, viz., that the court has a substantive and independent power to make an order as to costs, then we are driven to the interpretation that it means, "The Court on Appeal." But that cannot be the interpretation, as the Act says there is to be no appeal upon a question of costs only which is a matter of discretion. The words "or the court" must either be wholly unmeaning therefore, or must bear the interpretation we put upon them. Assuming, therefore, that the court has power to make such an order, the circumstances of the case are such as to justify the court in doing so. In the Court of Admiralty it has been the uniform practice to disallow the defendant his costs where he succeeds solely on the defence of compulsory pilotage, if besides that he raises other defences. When the Court of Admiralty was a separate court that practice existed; that court has now become a Division of the High Court, and the appeal is the same in that as in other divisions. The Court of Appeal has decided that in Admiralty causes, where the defendant succeeds on such a plea, it will follow the practice of the Admiralty Court: (The Daoiz, Weekly Notes, April 28, 1877, p. 93; and see post). That, no doubt, only decides that in proceedings in Admiralty the Court of Appeal will follow the Admiralty practice in this respect; but it would be a great inconvenience that there should be two distinct practices in the Divisions of the High Court. Murphy, Q.C. for the defendants, was not called upon. KELLY, C.B.-This is an application under Order LV., by which the court is asked to make an order depriving the defendants of their costs on an issue or plea in an action for collision on which they succeeded, in which the defence set up was that of compulsory pilotage under the Merchant Shipping Act. The case was tried some time ago, and at the trial I entered the verdict for the plaintiffs on that defence, with leave to the defendants to move to enter it for them. That rule has been argued and has been made absolute, so that the verdict now stands for the defendants. Now Order LV. is in these terms: "Subject to the provisions of the Act, the costs of and incident to all proceedings in the High Court shall be in the discretion of the court: . . . Provided that where any action or issue is tried by a jury, the costs shall follow the event, unless upon application made at the trial for good cause shown, the judge before whom such such action or issue is tried, or the court, shall [Ex. Div. otherwise order." No application was made to me at the trial to make this order depriving the defendants of costs in this issue, nor has any been made, for the reason that none could be made with any effect since the trial. But it is contended that the latter words give this court a substantive and independent power to make this order, notwithstanding anything that may or may not have taken place at the trial. That is undoubtedly a question of great importance, and as far as I know, it is one which has not yet been determined. But as I do not think I am bound in this case to decide that question, and as I think it unnecessary to do so, I forbear to enter further into the question. For the purpose of this case I assume that the court has power to make such an order. Assuming that be so, then, what are the grounds on which we are asked to make this order. The law for centuries has been that where a plaintiff or defendant succeeds in an action and obtains a verdict, he is entitled to costs as a matter of course, unless he is deprived of them by some Act of Parliament. That is still the law, and that must prevail in this case, unless the defendants can be deprived of costs under this rule. Now we ought not to, nor can we make an order depriving the defendants of their costs without good cause shown. What is the cause shown in this case? It is simply this: that it was a practice of the Admiralty Court while it existed as a sepa rate court, and is now a practice of the Probate, Divorce, and Admiralty Division in cases of collision in which the collision has been occasioned by a ship under the command of a compulsory pilot, where that defence is set up with other defences and successfully established by the defendant, to disallow the defendant his costs of such defence. It is urged upon us that the Court of Appeal have affirmed that practice and have held that it is to prevail, and that we are, therefore, bound by that decision to make this order. We are, in fact, called upon to accept that decision as a decision of the law and practice not only of the Probate, Admiralty, and Divorce Division, but as also deciding that the practice and the law of that division is to be the law and practice of every other division of the High Court. That would be to say that, because the practice has prevailed in the Admiralty Court, whether that practice be good or bad, it is for the future to be the practice of every division. That, however, is not so. It has nothing to do with the practice or law of other courts at Westminster. It may be desirable that the Legislature should assimilate the practice and law in the several courts in Westminster Hall, and that the practice of one should be made conformable to the practice in the others, but it is only by the Legislature that that can be effected. That has been done by the Legislature in relation to cases of collision in any of the divisions, where it appears that both ships are in fault, the Legislature enacting that in such a case the damage should be divided, which was the old Admiralty practice, but in the practice now under consideration the Legislature have done no such thing. We come back, then, to the question whether there is any ground for our making this order. Nothing has been urged as a reason for our doing so, except that such is the practice of the Admiralty Court, and is the decision of the Court of Appeal. I repeat that was an appeal from the Court of Admiralty, or rather the Pro Ex. Div.] MARITIME LAW CASES. THE BARQUE CARLOTTA; BLISS v. GOMEZ. bate, Divorce, and Admiralty Division, and that HUDDLESTON, B.-I am of the same opinion. He says We then come to the question whether Mr. Butt has shown sufficient ground to influence this court in its discretion to depart from the general rule. He does not go on the merits of the case. there is a rule invariably adopted by the Admiralty Court that the defendant, under such circumstances as those of the present case, would, though successful, be deprived of costs. That is a rule prevailing in the Probate, Divorce and Admiralty Division of the High Court of Justice, and as Mr. Webster put it, the Court of Appeal is a Court of Appeal from all five divisions, and that Court has decided that the practice is in future to be that in all cases of collision in whatever division it may be this practice is to prevail. If I thought that that was really the decision, much as I should feel disinclined to deviate from the practice of this and the other divisions, I should follow it. But I do not think that is the result. I understand the decision to be this. The Master of the Rolls said, as we understand, that the universal practice in the Probate, Divorce, and Admiralty Division is that which it was before the Judicature Act, that costs should not be given, it is convenient in such cases that on appeal from that division that that practice should prevail, but he never laid it down that in appeal from other divisions that was to be SO. The Master of the Rolls said, as we gather from the Weekly Notes for April 28, 1877, "The rule acted on in the Admiralty Court in cases like the present was, that when the owners of a ship [AMERICAN REPS. were relieved from liability on the ground of compulsory pilotage, no costs were given on either side, and the same rule ought to apply in the Court of Appeal." That decision, then, is not binding upon us; there is no reason why we should depart from the rule of practice that the successful party is entitled to his costs, and this application must therefore be refused. Application refused. Leave to appeal was Solicitor for plaintiff, W. Batham. AMERICAN REPORTS. UNITED STATES SOUTHERN DISTRICT THE BARQUE CARLOTTA; BLISS v. GOMEZ ET AL. Charter-party and bill of lading-Damage to cargo -Rats-Petroleum-Sale of cargo to arrive— Parties-Rebate of duties-Recoupment. The barque C. was chartered in New York by G. and A. to bring a cargo of fruit from Mediterranean ports to New York. tained this clause: "It is understood that said The charter con vessel is now bound to Barcelona with a cargo of refined petroleum in barrels. Thence she shall proceed, immediately after discharge of outward cargo, to enter upon this charter. cleared as customary previous to loading homeVessel to be ward cargo." The vessel made the outward voyage, and, having discharged her outward cargo, was cleansed and fumigated for the purpose of removing the scent of petroleum, and also of killing any rats. After this she took on board a cargo of almonds and other fruits, and made the voyage under the charter. After being at sea some days, rats were noticed on board, and on discharge of the cargo at New York some of the bags of almonds were found to have been gnawed by rats. The vessel had on board on the voyage a cat, and also a rat terrier. Other portions of the cargo on discharge were found to have been damaged by contact with petroleum, and other portions were scented with petroleum. The owner of the vessel, B., filed a libel against G. and A., the charterers, to recover charter money, and G. and A. filed a libel against the barque to recover the damage to the almonds. It appeared that previous to the filing of their libel, G. and A. had sold the almonds for a sound price, which had been paid them in full. It also appeared that they had made an application to the Government for a rebate of duties on the almonds by reason of their damaged condition, and had received such a rebate. In the suit against them to recover the charter money, G. and A. set up the failure of the barque to perform the charter, in that not only was the cargo that was delivered damaged, but that some was not delivered. contained no provision for the giving of bills of The charter-party lading, but bills of lading for the almonds were given by the master to the shippers, who were the agents of the charterers, by which the almonds were to be delivered to G. and A., and the libel of G. and A. against the barque was based on these AMERICAN REPS.] THE BARQUE CARLOTTA; BLISS v. GOMEZ. bills of lading. There was no exception of damage by rats in the bills of lading. Held, that the bills of lading must be taken to be the contract between the parties as far as the damage by rats was concerned. That the damage by rats was not a peril of the sea, and that it was not made to appear that the damage to the almonds by rats was a thing against which it was impossible to guard. That as to damage by petroleum the provisions in the charter must govern, and that the effect of the clause about petroleum would be that if the vessel was cleansed in the customary manner the barque should not be liable for any damage resulting from the petroleum cargo which she carried out; but that as it appeared that vessels were cleansed after carrying petroleum cargoes, so that the cargo subsequently carried showed no indication of being damaged by petroleum, the fact that these almonds showed such injury was evidence that the barque was not cleansed as customary. That G. and A. were entitled to sue for the damage to the almonds, notwithstanding their sale of them before arrival. That G. and A. must give credit, as against any claim for damage to the cargo, for any rebate of duties received by reason of such damage. That the owner of the vessel was entitled to a decree for the charter money, less the value of any cargo not delivered; and that G.and A. were entitled to a decree against the vessel for any damage to the almonds, less the rebate of duty. BLATCHFORD, J.-William Bliss, as owner of the barque Carlotta, filed a libel on the 13th Feb., 1874, against Raphael M. Gomez and Daniel V. Arguimban to recover the amount due on a written charter of the barque Carlotta to the respondents. The libel alleges that the vessel performed the charter in all respects and became entitled to receive the charter money therein specified, and that 1000 dollars, or thereabouts, still remain due thereon. The charter party, which was made at New York on the 8th August, 1873, between the agents of the owner of the vessel, then lying at New York, and the said respondents, under the co-partnership name of Gomez and Arguimban, charters the vessel to the respondents "for a voyage from two ports in Spain, between Barcelona and Malaga, both inclusive, and including Ivica, to New York-charterers have privilege also of taking part cargo at Barcelona, and then using two ports to load if required—on the terms following." Among those terms are the payment by the charterers, as charter-money, of 2500 dollars in United States currency; and that "it is understood that said vessel is now bound to Barcelona, with a cargo of refined petroleum in barrels, thence she shall proceed immediately after discharge of outward cargo to enter upon this charter -vessel to be cleaned as customary previous to loading homeward cargo." The answer of Gomez and Arguimban to the libel of Bliss was filed on the 26th March, 1875. It admits the execution and contents of the charter-party, as set forth in the libel, and avers that under said charter-party the respondents delivered to the master of the vessel certain merchandise in barrels, bales, and bags, to be transported to the port of New York from Spain; that such merchandise was shipped and received on board of said vessel under certain [AMERICAN REPS. bills of lading, which recited that said merchandise was received in good order, and by which the master and owners of the vessel promised to deliver the same to the respondents at the port of New York in the like good order and condition as received, on payment of freight as therein provided; and that the masters and employés of said vessel took so little and such bad care in putting said cargo on board and in storing it and in attending to it while on board and while landing it, that a large part of said cargo was badly stained by petroleum or other such substance, and also im pregnated by the smell arising therefrom, and thus rendered unmerchantable, and many of the bags and packages containing said merchandise, and the contents thereof, were badly eaten by rats, or other vermin, and in other ways the said cargo was so badly damaged by the negligence of said master and owners that part of said cargo was wholly lost and other parts damaged to the amount altogether of at least 2000 dollars. On the 17th Feb. 1874, Gomez and Arguimban filed a libel against the barque Carlotta. It alleges that in Nov. 1873, the said barque then lying in the port of Tarragona, in Spain, and in other ports, various parties shipped on board of her various quantities of almonds, for which the master signed bills of lading, which admitted the receipt of the goods on board in good order and well conditioned, and by which he agreed to carry the goods to New York and there deliver them to Gomez and Arguimban, with certain exceptions in the bills of lading specified; that the said barque arrived in the port of New York and the libellants demanded the delivery of said merchandise to them, but the employers of said bark took so little and such bad care, not only in attention to said vessel, but in putting said cargo on board, and in stowing it and in the care of it while on board, and in landing it in the port of New York and in the care of it after it was landed, that a large part of it was badly stained by petroleum or some other such substance, and also impregnated by the smell arising therefrom, and the bags and contents in which said cargo was delivered were damaged by being eaten by rats, and a large part of said cargo was wholly lost to the libellants or only delivered in a damaged condition, whereby the libellants were damaged to the amount of 2000 dollars and upwards, and that the libellants are ready to pay said freight upon the proper delivery of said cargo. The libel prays a decree against said barque for said damages. The answer of the owner of the barque to the last named libel denies all its allegations as to negligence and damage except the allegation that some of the bags were eaten and damaged by rats, and alleges that the libellants were the charterers of the barque under the written charter before mentioned, and that all of the said goods were put on board under said charter, and that the provisions of said charter and of the bills of lading were in all things complied with on behalf of said barque, and any loss or damage or injury to said cargo was caused by perils excepted and without any negligence or fault on the part of said bark. It is set up in the answer in the in personam suit that many of the bags and packages containing the merchandise and the contents thereof were badly eaten by rats or other vermin, and that AMERICAN REPS.] THE BARQUE CARLOTTA; BLISS v. GOMEZ. such injury was the result of want of care on the part of the master and employers of the vessel. In the libel against the vessel the allegation is only of damage by rats to bags and contents of bags through want of care on the part of the employés of the vessel. On the evidence a claim is made for loss by rat damage, by the gnawing by rats of holes in some of the bags containing almonds in the shell, and by the eating of some of such almonds by rats, and by the loss of others of such almonds through holes gnawed in such bags by rats, It is contended on the part of the consignees that the vessel is liable for the damage by rats, because there is no exception in the charter-party or the bill of lading which can relieve the vessel from liability for such damage occurring during the voyage, that such damage is not the act of God nor a peril of the sea, and that the vessel is liable in the absence of an excepting clause in the contract. For the vessel it is contended that a carrier is not responsible for damage from natural causes against which he is unable to guard, that it is the natural tendency of rats to gnaw, that the vessel was fumigated before taking in cargo, and had on board a cat and a rat terrier, that nothing more could have been done, and that the rats were probably brought on board in the cargo. The charter-party provides that the vessel shall be in every way fitted for the voyage, and specified fruit as a contemplated cargo. It contains no other provisions which refer to damage to cargo, and no provision as to the giving of bills of lading. It is signed by both of the parties to it. Three of the four bills of lading cover almonds in the shell in bags. One of them specifies 750 bags of soft almonds in the shell as received on board in good condition, and the master by it promises and undertakes, "God taking me in safety with the said vessel to the said port, to deliver in the same terms." The second specifies 425 bags and 850 half bags of soft shell almonds as shipped in good order and well conditioned in and upon the vessel, and states that they are to be delivered in the like good order and well conditioned, acts of God, the king's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever, excepted." The third specifies 157 bags of almonds as shipped in good order and well conditioned on board the vessel, and states that they are to be delivered in like good order and well conditioned, "the dangers of the sea only excepted." "the In the case of Aymar v. Astor (6 Cowen, 267) the owners of a vessel were sued for damages sustained by the owner of goods shipped on board of it through the destruction of them by rats. The bill of lading signed by the master stated that the goods were to be delivered in good order and well conditioned, "the dangers of the seas excepted. At the trial evidence was given on the question whether the vessel was prudently managed for the avoiding of rats, or whether the master had been negligent in that respect; but the court charged the jurors that the defendants were common carriers and liable as such for damage done, unless by the act of God or the perils of the sea, excepted in the bill of lading, and that damage by rats was not a peril of the sea. On a writ of error the Supreme Court held that the master of a vessel is not responsible, [AMERICAN REPS. The like a common carrier, for all losses, except they happen by the act of God, or the enemies of the country; and that it ought to have been submitted to the jury, whether the master had used ordinary care and diligence in carrying the goods in question. This exception in favour of a carrier by water is repudiated by the same court in McArthur v. Sears (21 Wendell, 190), and the statement of the exception in Aymar v. Astor is called a dictum. See also Allen v. Sewell (2 Wend. 327.) In Laveroni v. Drury (8 Ex. 166; 22 L. J. 2, Ex.), in 1853 cheese was shipped in a general ship, under bills of lading, whereby the master bound himself to deliver the cheese free from damage, "the act of God, the Queen's enemies, fire and all and every other danger and accidents of the seas, rivers, and navigation," &c., "excepted." cheese was eaten and damaged by rats on the voyage. The master had two cats on board, and it was contended by the owners of the vessel that it was for the jury to say whether the keeping of the cats relieved the defendants from the charge of negligence. The court, at the trial, held that the question was not one for the jury, and instructed the jury that damage by rats was not within the exception contained in the bills of lading, and that if the cheese had been eaten and damaged by rats in the course of the voyage, the defendants were liable. On a motion by the defendants for a new trial the Court of Exchequer said: "We are of opinion that this direction was right. By the law of England, the master and owner of a general ship are common carriers for hire and responsible as such. This, according to the well-known rule, renders them liable for every damage which occurs during the voyage, except that caused by the act of God and the Queen's enemies. They, however, almost universally receive goods under bills of lading signed by the master; and, in such case, the liability depends upon and is governed by the terms of the bill of lading, it being the express contract between the parties, the owner of the goods on the one hand and the master and owner of the ship on the other." As to the exception in the bills of lading, the court said: "The true question is, whether damage by rats falls within this exception, and we are clearly of opinion that it does not. The only part of the exception under which it possibly could be contended to fall, is as a danger or accident of the sea and navigation; but this, we think, includes only a danger or accident of the sea or navigation properly so-called, namely, one caused by the violence of the winds and waves (a vis major) acting upon a seaworthy and substantial ship, and does not cover damage by rats, which is a kind of destruction not peculiar to the sea or navigation, or arising directly from it, but one to which such a commodity as cheese is equally liable in a warehouse on land as in a ship at sea." The court further said, that the only true rule for ascertaining with accuracy and certainty the liability of the master and owner of a general ship is, "that primâ facie he is a common carrier, but that his responsibility may be either enlarged or qualified by the terms of the bill of lading, if there be one, and that the question whether the defendant is liable or not is to be ascertained by the terms of this document, when it exists." In the case of The Fame, in this court, in 1861, a vessel was libelled to recover for the damages sustained by the loss of part of a cargo of coffee from Rio AMERICAN REPS.] THE BARQUE CARLOTTA; BLISS v. GOMEZ. Janeiro, by the gnawing of the packages by rats, on the voyage. The coffee was carried under a bill of lading which excepted "the dangers and accidents of the seas and navigation." It was set up in defence that the vessel had two cats on board, and that, in view of that fact, the damage by the rats was covered by the exceptions. The court (Shipman, J.), reviewed the authorities and adopted the view that damage by rats was not a peril of the sea, but was damage arising from the negligence of the carrier, and might be prevented by due care, and was within the control of human prudence and sagacity. Independently of that view, the court was of opinion that the master of the vessel had not proved due diligence on his part, because, it being shown that Rio Janeiro was a very bad port for rats, it was not proved that he had fumigated his vessel. In the case of The Miletus (5 Blatchf. C. C. R. 335), in the Circuit Court for this district, in 1866, it was held by Mr. Justice Nelson "that damages occasioned by vermin on board of a ship, to a cargo, in the course of a voyage, are not the result of a peril of the sea, or of any of the dangers or accidents of navigation, within an exception to that effect in a bill of lading, but are damages for which the ship and its owners are liable, as insurers of the safe conveyance of the cargo." In Kay v. Wheeler (2 Mar. Law Cas. O. S. 236; L. Rep. 2 C. P. 302), in 1867, in the Exchequer Chamber, on error from the Common Pleas, coffee was shipped under a bill of lading which excepted "the act of God, the Queen's enemies, fire, and all and every other damages and accidents of the seas, rivers and navigation, of what nature and kind soever." The bags were gnawed by rats during the voyage, and the contents were partly eaten and damaged by them. The vessel had on board during the time she was at the place of shipment, and on leaving that place, two cats and two ferrets, and the vessel had, before leaving for that place been cleared of rats by a professed rat killer, and every possible precaution was taken to keep rats out of the vessel after that. It was contended for the defendants, that the injury by rats was a peril of navigation, because it was a danger which could not be guarded against, as it had been shown that the defendants had used every possible means to prevent the injury to the goods. The court held that the question depended on the contract contained in the bill of lading, that the defendants had thereby bound themselves to deliver the goods in the good order and condition in which they were shipped, except in the four cases therein specified; that damage by rats was not within any one of those exceptions; that the defendants had delivered the goods in a very different condition from that in which they received them, and had therefore broken their contract, and that the plaintiffs were entitled to recover. In the recent case of Nugent v. Smith (ante, pp. 87, 198; L. Rep. 1 C. P. Div. 19), it is laid down as the true rule, that "every shipowner or master, who carries goods on board his vessel for hire is, in the absence of express stipulaticn to the contrary, subject, by implication, by the common law of England, adopting the law of Rome, by reason of his acceptance of the goods to be carried, to the liability of an insurer, except as against the act of God, or the Queen's enemies," and that "it is not only such shipowners as have inade themselves in all senses common carriers [AMERICAN REPS. who are so liable, but all shipowners who carry goods for hire, whether inland, coastwise, or abroad, outward or inward." In the present case, the shippers having, notwithstanding the charter-party, accepted bills of lading for the goods, and brought suit thereon, and the owner of the vessel having, notwithstanding the charter-party, entered into special contracts, through the master, by means of the bills of lading, in respect to the carriage and delivery of the goods, the bills of lading must be regarded as the contract by which the rights of the parties are to be governed, so far as respects the matters provided for therein. There is nothing in the bills of lading, in respect to the carriage and delivery of the cargo covered by them, that is inconsistent with anything in the charter-party. As regards a contract in a bill of lading for the carriage and delivery of cargo covered by it, it must be regarded as settled by the case of Clark v. Bamwell (12 Howard, 272), that where a bill of lading admits the shipment of cargo in good order, and binds the carrier to deliver the same in like good order, certain specified dangers and accidents excepted, the carrier may be answerable for damage to the goods, although no negligence on his part be shown, unless he brings the case within a danger or accident so excepted; that, in considering whether the carrier is liable for a particular damage, the question is not whether it happened by reason of the negligence of the persons in the employ of the carrier, but whether it was occasioned by any of those causes which, either according to the general rules of law, or the particular stipulations of the parties, afford an excuse for the non-performance of the contract, and that, after damage to the goods has been established, the burden lies on the carrier, in the case of such a bill of lading, to show that such damage was occasioned by one of the perils from which he was exempted by the bill of lading. This principle is also held in Transportation Company v. Donner (11 Wallace, 129). It is the same principle as that decided in Laveroni v. Drury (8 Ex. 166), and in Kay v. Wheeler (2 Mar. Law Cas. O. S. 231; L. Rep. 2 C. P. 302). In the present case the bills of lading, which cover almonds in the shell in bags, admit that the goods were received on board in good condition, and undertake that they shall be delivered in like good order. In two of them there are specified exceptions, but loss or damage by rats is not within any of the exceptions specified. It is not an act of God, nor is it a danger or accident of the sea. The definition of the expression "the act of God" is well given in Nugent v. Smith (sup.) thus: "The damage or loss in question must have been caused directly and exclusively by such a direct, and sudden, and violent, and irresistible act of nature as the defendant could not by any amount of ability foresee would happen, or, if he could foresee that it would happen, could not by any amount of care and skill resist, so as to prevent its effect. It lies upon the defendant to show that a damage or loss for which he would otherwise be liable is brought within this exception." It is impossible to say that no humar ability could have prevented the presence of rats on the vessel, or could have rid the vessel of rats. It is alleged that the vessel had on board a cat and a rat terrier, and that she was fumigated or smoked in Barcelona before she took on board any cargo. But the cat and the |