TUG AND TOW.

1. Damage to cargo-Action against tug and bargeowners-Costs.-A tug towing a laden barge negligently towed her into collision, whereby the cargo in the barge was damaged. The cargo owners sued the tug-owner and the barge-owner. In that action the claim of the cargo owners against the owners of the barge was dismissed with costs, but the owners of the cargo recovered judgment against the owners of the tug in tort, with costs, and the tug owners were ordered to pay to the cargo owners the costs of the cargo owners' unsuccessful action against the barge owners. (Adm. Div.) The Millwall 2. Salvage Collision Towage remuneration.-A sailing vessel injured by a collision caused by the negligence of her tug was subsequently towed to her destination by the tug. Held, that the tug although not entitled to salvage was entitled to towage remuneration. (Adm. Div.) The Harvest Home

See Collision, Nos. 5, 21, 41, 42, 43.

TYNE BY-LAWS.

See Collision, Nos. 44, 45.

UNSEAWORTHINESS.

PAGE

15

18

WHISTLE.

See Collision, Nos. 18, 19, 22, 24, 34, 35, 36.

WRECK.

Collision-Cost of raising wreck-AbandonmentThames Conservancy.-Under sect. 77 of the Thames Conservancy Act 1894 giving the conservators power to reimburse themselves for the expenses of raising wrecks they are entitled to recover from the owners of the sunken vessel the cost of raising the wreck, whether the owners have abandoned or not before the expenses are incurred. (Adm. Div.) The Wallsend

See Collision, No. 47.

YORK-ANTWERP RULES 1890. See General Average, No. 1.

476

OF

Supreme Court of Judicature.

COURT OF APPEAL.

Tuesday, Aug. 9, 1904.

(Before COLLINS, M.R., STIRLING AND
MATHEW, L.JJ.)

TURNER, BRIGHTMAN, AND. Co. v. BANNATYNE
AND SONS LIMITED. (a)

APPEAL FROM THE KING'S BENCH DIVISION. Charter-party-Demurrage - Lay days-Grain cargoes-London Corn Trade Association Contract-Construction.

The London Corn Trade Association Contract, which was incorporated in a charter party, provided that the time for discharge of a cargo of grain should be: "One running day for every 400 tons up to 2800 tons, and, for all quantities in excess, 500 tons per day; but in no case less than five days."

Held (affirming the judgment of Walton, J.), that, upon the true construction of the contract, the time to be allowed for discharge of a cargo, whatever its size, was one day for every 400 tons up to 2800 tons, and one day for every 500 tons in excess of 2800 tons.

APPEAL of the plaintiffs from the judgment of Walton, J. at the trial of a preliminary question in the action.

The plaintiffs brought this action to recover the sum of 1217., being demurrage for two and a half days, under a charter-party.

The plaintiffs were the owners of the steamship Zodiac.

The defendants were the holders of a bill of lading for a cargo of maize laden upon the Zodiac at Buenos Ayres, under which they took delivery of the cargo at Limerick.

By the terms of the bill of lading, freight and all other conditions were as per charter-party dated the 17th Nov. 1902.

The charter-party provided that: "Demurrage as above shall be payable for any detention in taking delivery of cargo at port of discharge, the same having to be discharged as per London Corn Trade Association Contract, No. 22."

(a) Reported by J. H. WILLIAMS, Esq., Harrister-at-Law.
VOL. X., N. S.

The London Corn Trade Association Contract, No. 22, provided as follows:

Sufficient days to be left for unloading (Sundays, Good Friday, Easter Monday, Whit Monday, and Christmas Day excepted). Sufficient days (counting quarter days) shall be as follows: One running day for every 400 tons up to 2800 tons of grain, and, for all quantities in excess, 500 tons per day (as provisionally invoiced), whether for direct port or for orders, but in no case less than five days, Sundays, Good Friday, Easter Monday, Whit Monday, and Christmas Day excepted.

The provisional invoice for the cargo showed an amount of 3839 tons.

The plaintiffs contended that the meaning of the contract was that one day should be allowed for every 500 tons of cargo, the cargo being over 2800 tons, and they alleged that, the time being so computed, the time for the discharge of the cargo had been exceeded by two days and a half.

The defendants contended that the meaning of the contract was that one day should be allowed for every 400 tons up to 2800, and one day for every 500 tons above that amount; and they alleged that, in that view, the cargo had been discharged in time.

The preliminary question as to the true construction of the contract was tried before Walton, J. without a jury, and the learned judge gave judgment in favour of the contention of the defendants (9 Asp. Mar. Law Cas. 495; 89 L. T. Rep. 507).

The plaintiffs appealed.

Scrutton, K.C. and A. A. Roche for the appellants. The learned judge's decision as to the true construction of the clause in the contract as to the time for discharge was wrong. The meaning of that clause is that, if a cargo exceeds 2800 tons, it is all to be discharged at the rate of 500 tons a day, but that cargoes which do not exceed 2800 tons are to be discharged at the rate of 400 tons a day, in each case subject to the minimum of five days. The reason why the larger cargoes are to be discharged at a faster rate is that in the case of larger vessels cargoes can usually be more quickly and easily discharged. The word used in the contract is "quantities," in the plural, and that clearly refers to whole cargoes, and not merely to a quantity in excess of 2800 tons.

Clavell Salter, K.C. and E. Bray, for the respondents, were not called upon to argue. B

K.B. Div.]

COLLINS, M.R.-I am of opinion that we cannot differ from the judgment of Walton, J. as to the meaning of this contract The clause in question provides as follows: "One running day for every 400 tons up to 2800 tons of grain, and, for all quantities in excess, 500 tons per day (as provisionally invoiced), whether for direct port or for orders; but in no case less than five days." That, in its prima facie meaning, says nothing at all about the size of ships; it refers solely to the number of tons of grain carried by a ship. It is impossible for anyone to say that the construction given to that clause by Walton, J. is not a possible construction. In my opinion it seems to be not only a possible construction, but the natural construction. There would, I think, be just as many anomalies if the construction Suggested by the appellants were adopted as those which it is said would follow from the construction adopted by Walton, J. In his judgment the learned judge has made some valuable observations. He said: Again, it is plain, and there is no dispute about it, that at least five days are to be allowed, and it is suggested, and probably rightly suggested, that this is stipulated for because there is always certain work preliminary to the actual discharge which has to be done, and which, speaking generally, will very likely occupy more or less the same length of time in the case of a small ship as in the case of a larger ship." It seems to me that the longer time is given for the discharge of the first part of the cargo by reason of the preliminary work which has to be done in any case. In my opinion this appeal fails, and

must be dismissed.

66

STIRLING, L.J.—I agree.

MATHEW, L.J.-I am of the same opinion. Appeal dismissed. Solicitors for the appellants, Botterell and Roche. Solicitors for the respondents, J. and A. A. Tilleard.

HIGH COURT OF JUSTICE

KING'S BENCH DIVISION. Thursday, July 14, 1904. (Before Lord ALVERSTONE, C.J., KENNEDY and PHILLIMORE, JJ.)

REX (on the prosecution of the Board of Trade) (app.) v. GOLDBERG (resp.). (a) Offence-Going on board ship at end of voyage without authority Liability to six months' imprisonment Offence to be "prosecuted summarily" - Right to trial by jury-Merchant Shipping Act 1894 (57 & 58 Vict. c 60), ss. 218, 680, sub-s. 1 (b)—Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), s. 17.

Sect. 680. sub-sect. 1 (b), of the Merchant Shipping Act 1894 provides that an offence under the Act made punishable with imprisonment for a term not exceeding six months, or by a fine not exceeding 1001, "shall be prosecuted summarily in manner provided by the Summary Jurisdiction Acts" Held, that this sub-section does not exclude sect. 17 of the Summary Jurisdiction Act 1879, under (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

[K.B. Div.

which a person charged before a court of summary jurisdiction with an offence in respect of which he is liable to imprisonment for a term exceeding three months, has a right to be tried by a jury; and consequently, if a person is charged under sect. 218 of the Merchant Shipping Act with unlawfully going on board a ship which has arrived at the end of her voyage, whereby he becomes liable under that section to a fine not exceeding 201., or, at the discretion of the court, to imprisonment not exceeding six months, such person has the right upon being charged before the court of summary jurisdiction, to claim to be tried by a jury.

CASE stated by the stipendiary magistrate for the borough of West Ham.

At a court of summary jurisdiction held at the Police-court, Stratford, in the borough of West Ham, in the county of Essex, and within the metropolitan police district, on the 2nd June 1904, an information preferred by the solicitor to and on behalf of the Board of Trade (hereinafter called the appellant) against Abraham Goldberg (hereinafter called the respondent) for an offence against sect. 218 of the Merchant Shipping Act 1894 (57 & 58 Vict. c. 60) was heard and determined by the magistrate, and upon such hearing the magistrate at the request of the respondent pursuant to sect. 17 of the Summary Jurisdiction Act 1879, committed the respondent for trial at the adjourned borough sessions.

The facts were as follows:

The appellant was the solicitor to and on behalf of the Board of Trade, and the respondent was Abraham Goldberg, a tailor, carrying on business at Victoria Dock-road, E.

The information laid by the appellant charged that the respondent, on the 30th May 1904, in the borough of West Ham, not then being in His Majesty's service, and not being duly authorised by law for the purpose, did unlawfully go on board the British ship Acanthus, lying at D. Jetty, Victoria Dock, which vessel had arrived at the end of her voyage, without the permission of the master of the ship, before the seamen law. fully left the ship at the end of their engage. ment or were discharged, contrary to the form of the statute in such case made and provided: (sect. 218 of the Merchant Shipping Act 1894).

On the hearing of the information before the magistrate, on the 2nd June 1904, as it appeared to him that the respondent was liable on summary conviction of the offence, to be imprisoned in the first instance for a term exceeding three months, after the charge had been read to him and before the same was gone into, the magistrate addressed the respondent to the following effect, as required by sect 17 of the Summary Jurisdiction Act 1879 "You are charged with an offence in

:

respect of the commission of which you are entitled, if you desire it, instead of being dealt with summarily to be tried by a jury. Do you desire to be tried by a jury?" and the magistrate added to such address the statement suggested by the section.

The respondent, who was not represented, claimed to be so tried.

Upon this counsel for and on behalf of the appellant objected to the option being given to the respondent, of being tried by a jury. In support of his objection he contended: First, that