H. OF L.] OWNERS OF STEAMSHIP LANGFOND v. CANADIAN FORWARDING, &c., Co. [PRIV. Co. was it is no doubt part of the description of an officer, but in the third section this is not so. It is there used to denote the geographical limits within which the powers of the trustees can be exercised. The question is, what does the expression "limits of the said port" mean in sect. 16, the charging section? It is an obviously unnatural mode of construction which would give different meanings to the same expression occurring in several subsections of the same section unless the language used necessitates it. In sub-sects. 2 and 3 a clear distinction is drawn between the operations of "arriving in" or "coming to" the " said port by stress of weather or otherwise," and "passing or sailing through the Menai Straits." It cannot be supposed that it was ever contemplated that a foreign vessel which sailed though the straits should pay 6s. or 3s. per ton dues, but that a vessel which, driven by stress of weather or for some reason was sailed up the river, anchored, and lay opposite Dinorwic, and was then sailed out again, never going into the harbour of Carnarvon at all, should pay nothing. Or that a vessel which, from stress of weather or for some other cause, anchored and lay inside the bar, but some miles from the barbour, should pay nothing either. And yet the last-mentioned vessel, if not the former, must escape unless the word "port as used in sub-sect. 2 extends to waters miles above or below the local port. The words used in sub-sect. 3 are "coming to" as distinguished from " arriving in" used in the preceding subsection. I do not think that by reason of this change of language a different mearing can be given to the word "port" in the two sub sections. It would be irrational to draw such a distinction as it would necessitate between the treatment to be given to British and foreign vessels. If then the words "the said port" cannot be restricted to the local port or harbour in sub-sects. 2 and 3 of sect. 16, neither can they be so restricted in sub-sects. 1, 3, 4, and 5 of the same section, in which the phrase "limits of the said port" are consistently used. If, therefore, the question turned upon the construction of the 16th section of the earlier statute alone, it should, in my opinion, be decided in favour of the contention of the trustees. The next matter to be considered is whether the provisions of the Act of 1809 restrict the meaning to be given to the words "the said port" and "the limits of the said port in sect. 16 of the earlier Acts. So far from that I think sects. 5, 7, 15, 16, 17, and 20 of the Act of 1809 clearly draw a distinction between the port and the word "harbour," and require that a wider meaning should be given to the former word than to the latter. For instance, in sect. 15 the words used are caused to be removed all, every, or any docks at the Swellies or in any other part of the said straits within the said port of Carnarvon for the more convenient passage of vessels to and from said harbours and through the said straits." If that clause would empower the trustees to blast a rock opposite the port of Dinorwic, as unquestionably it was intended that it should, then it could only do so because the rock was within the port of Carnarvon, since it was not situated either at "the Swellies or near the harbour. In sect. 5 the words are "or within the limits of the said port," and, as has been pointed out in the Court of Appeal, the only port that had its limits defined was the fiscal port. Read 66 On A month's hire became due on the 11th Sept. the 1st Oct. it was still unpaid, and the owners gave notice that they withdrew the ship, which was at that time at sea, On the 2nd Oct. the month's hire was paid, and on the same day the ship arrived in port. On the 4th Oct. the master, under instructions from the owners, withdrew the ship. Held (affirming the judgment of the court below), that there was a breach of the charter-party for which the owners were liable in damages, because at the date of withdrawal there was no hire in arrear. APPEAL from a judgment of the Superior Court for the Province of Quebec (Tait, Loranger, and Doherty, JJ.), affirming a judgment of Fortin, J. in favour of the respondents (the plaintiffs below) in an action brought by them as charterers of the steamship Langfond, against the owners, for damages for a breach of the charter-party. The facts are fully set out in the judgment of their Lordships. J. A. Hamilton, K.C. and Maurice Hill, for the appellants, referred to Tyrer v. Hessler, Re an Arbitration between, 9 Asp. Mar. Law Cas. 186 (1901); 84 L. T. Rep. 653; Grimwood v. Moss, 27 L. T. Rep. 268; L. Rep. 7 Price v. Worwood, 4 H. & N. 512; Tonnelier v. Smith, 8 Asp. Mar. Law Cas. 327 (1897); 2 Com. Cas. 258. (a) Lord Davey was present during the argument, but died before their Lordships gave judgment. b, Reported by C. E. MALDEN, Esq. Parrister-at-Law. PRIV. Co.] OWNERS OF STEAMSHIP LANGFOND v. CANADIAN FORWARDING, &c., Co. [PRIV. Co. Atkin K.C. and Macdougall, K.C. (of the Colonial Bar) for the respondents. J. A. Hamilton, K.C. was heard in reply. At the conclusion of the arguments their Lordships took time to consider their judgment. March 22.-Their Lordships' judgment was delivered by Sir ARTHUR WILSON. The action out of which this appeal arises was brought by the respondents, as charterers, against the appellants, as owners, of the steamship Langfond to recover damages for breach of the charter-party. The charter-party was made in New York on the 17th Feb. 1902 between Bennett, Walsh, and Co, agents for owners of the steamship Langfond, of Stavanger, and the respondents. By it the owners agreed to let and the respondents to hire the ship, from the time of delivery, for a period of about two months, fourteen days more or less, with an option in the charterers to continue the charter for a further period of two months, fourteen days more or less. By subsequent agreements the term of the charter was extended to at least the month of November, and its commencement was fixed as the 11th April. The clauses of the charter which need be noticed are as follows: "(4) Charterers shall pay for the use and hire of the said vessel 7601. per calendar month, commencing on and from the day of her delivery as aforesaid, and at and after the same rate for any part of a month, hire to continue until her delivery with clean holds to the owners (unless lost) at a port in the United Kingdom or on the Continent between Bordeaux and Hamburg at charterers' option. (6) Payment of the said hire to be made in cash monthly in advance in New York, . . . and in default of such payment or payments as herein specified, the owners shall have the faculty of withdrawing the said steamer from the service of charterers without prejudice to any claim they, the owners, may other. wise have on the charterers in pursuance of this charter." The owners, who, from the steamship's port of registry, seem to be Norwegian, had agents in England, Clark, Gray, and Co. They had agents in New York, Bennett, Walsh, and Co., the firm by whom the charter-party was executed. They had agents in Montreal, McLean, Kennedy, and Co. The respondents carried on their business in Montreal, and all their direct communications, connected with the charterparty, were with McLean, Kennedy, and Co., through whom all monthly payments were made, up to and including that in August. Up to that time the monthly payments were made and were accepted, though the payments were not made with strict punctuality. The controversy between the parties arose out of the payment which fell due on the 11th Sept. When that payment was about to become due the steamship was in an English port, Maryport, loading a cargo of rails on account of Messrs. Hine Brothers, who had a sum of advance freight to pay to the respondents, which it was estimated would be sufficient to meet the monthly payment due by the latter to the owners on the 11th Sept. Under the charter-party the monthly freight was payable in New York, but on this occasion it was proposed and agreed that it should be met by Messrs. Hine Brothers paying the freight due by This them to the English agents of the owners. is made clear by a telegram from McLean, Kennedy, and Co. to Hine Brothers, dated the 8th Sept., three days before the monthly freight became due, referring to the arrangement. The completion of this transaction was delayed by the fact that an agent of the respondents in Rotterdam raised a claim to the freight payable by Hine Brothers. It was some time before this difficulty was overcome, but ultimately, on or before the 2nd Oct., Hine Brothers paid to the English agents of the owners 6077., being the amount of freight payable upon the Maryport cargo. On learning the amount paid in England by Hine Brothers, the respondents, on the 2nd Oct., paid the balance remaining due by a cheque in favour of McLean, Kennedy, and Co. The result was that on that day nothing remained due in respect of the monthly freight payable on the 11th Sept. As to the footing upon which these payments were made and accepted there seems to their Lordships to be no room for doubt. All the documents, both before and after the final payment, show that what was in question was payment in satisfaction of the sum due on the 11th Sept. as the hire of the ship from that day up to the 11th Oct. In the meantime before the payments were completed, on the 29th Sept., Bennett, Walsh, and Co. telegraphed from New York to McLean, Kennedy, and Co., in Montreal : "London cables notify charterers owners say they consider charter violated; steamer has been withdrawn." And on the 1st Oct. that notice was communicated by McLean, Kennedy, and Co. to the respondents. The steamship arrived at Montreal on or about the 2nd Oct. with her cargo for that port, and the respondents were at first allowed to proceed, not only with the unloading of the ship, but with the lining of her for an outward voyage. But on the 4th Oct. the captain gave a verbal notice to the respondents' manager that, under instructions from his owners, he must refuse to allow them to continue shipliners' work or loading the outward cargo. And on the same day the captain at the manager's request embodied this notice in a letter. On the 8th Oct. this action was begun by saisie conservatoire of the ship on the part of the respondents. The declaration stated the facts, alleged the withdrawal of the ship on the 4th Oct. as a breach of the charter-party, and claimed damages. The plea justified the withdrawal of the ship, on the ground of the charterers' failure to pay the monthly hire on the 11th Sept. The case was tried before Fortin, J. in Jan. 1905; and on the 31st of that month the learned judge gave judg. ment in favour of the plaintiffs with damages 3347.22 dollars. On the 27th Jan. 1906 the Superior Court in review affirmed the judgment of Fortin, J., and against that decision the present appeal has been brought. On the argument of the appeal, the first question discussed was, when was the ship withdrawn? It was contended for the appellants that the withdrawal occurred when Bennett, Walsh, and Co.'s telegram, saying that the owners declare the steamer has been withdrawn, was communicated to the respondents is, on the 1st Oct.; that at that date the monthly hire was still in arrear; that the election to enforce the forfeiture was then complete, and that nothing which happened afterwards could ⚫ that PRIV. Co.] MOEL TRYVAN SHIP CO. LIM. v. KRUGER AND CO. LIM. alter its effect. It is unnecessary to consider, whether, in the case of a ship at sea, carrying a cargo for the charterers or for shippers under them, a mere notice could operate as a present withdrawal within the meaning of the charterparty. To give it that operation in the present case would be to give it a meaning which it was never intended to bear, and no person concerned ever supposed it to bear. On the 1st Oct. Bennett, Walsh, and Co. cabled to the owners asking the specific question, when they withdrew the steamer; and got back the answer, "after outward cargo discharged from Montreal." The respondents never thought that the steamer had been withdrawn on the 1st, for they not only paid up what was due, but commenced the shipliners' work for an outward voyage. The master was of the same mind, for he allowed the work to proceed till the 4th Oct., when he interrupted it. on Their Lordships think it clear that there was no withdrawal of the steamer until that effected by the master on the 4th Oct. And that date there was nothing to justify a withdrawal; for there was nothing in arrear, the full hire for the month ending the 11th Oct. having been paid and received. Much stress was laid in argument upon the case of Tonnelier v. Smith (8 Asp. Mar. Law Cas. 327 (1897); 2 Com. Cas. 258). That case related to a charter-party similar in many respects to the present one. At the beginning of a month, it was clear that the charter-party would come to a natural termination during the month, so that the amount actually earned would be less than the monthly sum which in that case, as in this, was payable in advance. The question was whether an estimate was to be made at the beginning of the month of what would be earned, and that amount only paid, or whether the full monthly sum was to be paid at the beginning of the month, leaving the adjustment to be made afterwards? The Court of Appeal adopted the latter view. The case does not seem to their Lordships to afford much assistance in the decision of the present case. The appellants further raised a question as to the propriety of the damages awarded against them. But their Lordships, in the course of the argument, intimated their opinion that the objections so raised were not well founded. Their Lordships will humbly advise His Majesty that the appeal should be dismissed. The appellants will pay the costs. Solicitors for the appellants, Botterell and Roche. Solicitors for the respondents, Lawrence Jones and Co. [CT. OF APP. Supreme Court of Judicature. COURT OF APPEAL. Jan. 25 and 26, 1907. (Before Sir Gorell Barnes, P., FARWELL and BUCKLEY, L.JJ.) MOEL TRYVAN SHIP COMPANY LIMITED v. KRUGER AND CO. LIMITED. (a) APPEAL FROM THE KING'S BENCH DIVISION. Bill of lading-" All other conditions as per charter-party "-Negligence clause in charterparty-Charterers presenting bills of lading for master's signature without negligence clauseNegligence-Implied contract of indemnityShip totally lost by master's negligence-Liabi lity of shipowners to indorsees of bills of lading -Right to indemnity from charterers-Breach of contract. The plaintiffs, who chartered a vessel to the defen dants, excepted themselves in the charter-party from accidents of navigation even when occa sioned by negligence of the master, and it also provided that the master should sign clean bills of lading at any rate of freight without preju dice to the charter-party. The vessel loaded a cargo at Rangoon, and the charterers presented for the master's signature bills of lading which contained certain excepted perils, but did not contain the negligence clause. The clause "freight and all other conditions as per charter-party" was inserted. The master and the charterers thought that that clause incorporated all the exceptions in the charter-party. Whilst on the voyage the vessel was totally lost through the master's negligence. The shipowners thereupon became liable to the indorsees on the bills of lading. In an action by the shipowners against the charterers (1) for damages for breach of duty as agents, or (2) on an implied contract to indemnify the plaintiffs: Held, that the charterers had committed a breach of contract by presenting bills of lading to the master to sign which imposed a greater obliga tion on the owners than they were subject to under the charter-party, and, as the damages flowed from that breach, the charterers were bound to indemnify the owners. Held, also, by Buckley, L.J., that assuming the master had authority to sign the bills of lading in the form in which they were presented to him, the charterers were bound to indemnify the shipowner against the consequences of the master having signed them at their request. Decision of Phillimore, J. (10 Asp. Mar. Law Cas. 310 (1906); 95 L. T. Rep. 614; (1906) 2 K. B. 792) affirmed. APPEAL from a decision of Phillimore, J. sitting as a judge in the Commercial Court. By a charter-party dated the 22nd April 1903 the defendants chartered the plaintiffs' ship, the Invermore, to load a cargo of rice at Rangoon, and, being so loaded, to proceed thence to Rio de Janeiro, and there deliver the cargo. The (a) Reported by W. C. Biss, Esq., Barrister-at-Law. CT. OF APP.] MOEL TRYVAN SHIP Co. LIM. v. KRUGER AND CO. LIM. material clauses of the charter-party were as follows: 6. The act of God, perils of the sea, fire, barratry of the master and crew, the King's enemies, pirates, arrests and restraints of princes, rulers, and people, collisions, stranding, and other accidents of navigation excepted, even when occasioned by negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowners. 7. The master to sign clean bills of lading for his cargo, also for portions of cargo shipped (if required to do so) at any rate of freight, without prejudice to this charter, but not at lower than chartered rates, unless the difference is paid to him in cash before signing bills of lading. 25. Charterer's liability under this charter to cease on ship being loaded, provided the cargo is worth the freight, the owners having an absolute lien on the cargo for all freight, dead freight, demurrage, average, and any other lawful claim they may have under this charter, which lien they are hereby bound to exercise. The vessel loaded a cargo at Rangoon, the defendants entering and clearing the vessel. The defendants presented the following bill of lading to the master for signature: called the Invermore Shipped in good order and well conditioned by Kruger and Co. Limited on and upon the good sailing ship now riding at anchor in the port of Rangoon and bound for Ilha Grande for free pratique, and then to proceed to Rio de Janeiro; 14,109 bags cleaned Ngasein rice, No. 2 quality, each weighing 131lb. net to be delivered in the like good order and well conditioned at the aforesaid port of Rio de Janeiro (the act of God, the King's enemies, fires, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever excepted), unto order or to its assigns, freight for the said goods, and all other conditions as per charter-party, dated London, the 22nd April 1903. The bill of lading did not contain the exception "accidents of navigation even when occasioned by negligence of the master," as in the charter-party, but both the charterers and the master thought that the clause in the bill of lading, "freight... and all other conditions as per charter-party" incorporated for all purposes every exception in the charter-party. This, however, was incorrect, according to the decisions in Serraino v. Campbell (7 Asp. Mar Law Cas. 48; 64 L. T. Rep. 615; (1891) 1 Q. B. 283) and Diederichsen v. Farquharson (8 Asp. Mar. Law Cas. 333; 77 L. T. Rep. 543; (1898) 1 Q. B. 150). When the bill of lading was presented to the master, he asked whether it contained the ordinary clause conditions as per charter-party,”". and, on being informed by the charterers that it did, he signed it, and the vessel proceeded on her voyage until the 12th Oct. 1903, when by the negligence of her master she stranded, and with her cargo became a total loss. 66 The plaintiffs alleged that it was the defendants' duty as charterers to present, and as the ship's agents to present, or see that there were presented, to the master for signature bills of lading in accordance with the terms of the charter-party; but, in breach of their duty so to do, presented and (or) allowed to be presented to the master for signature bills of lading which did not incorporate the exception in the charterparty as to accidents of navigation even when occasioned by negligence of the master. In consequence, as the plaintiffs alleged, of the defendants failure to incorporate the exception in VOL X., N. S. [CT. OF APP. the negligence clause the plaintiffs had been adjudicated in the Admiralty Division to be liable to the holders of the bills of lading. The plaintiffs claimed an indemnity against the amount which they would have to pay by way of damages under the judgment, and against all costs of the Admiralty action and of the proceedings taken by the plaintiffs to limit their liability in the Admiralty action. The defendants by their defence denied that either as charterers or under clause 19 of the charter-party or otherwise they became under any duty to the plaintiffs with regard to the form of the bills of lading to be presented to the master for his signature. Alternatively the defendants alleged that, if they were under any duty to the plaintiffs with regard to the form of the bills of lading, then such duty was only to use reasonable care and skill to see that the bills of lading appeared to incorporate the terms of the charter-party, and that there was no breach of such duty. Further, the defendants alleged, that the damages were not caused directly or at all by any act or default of the defendants. Phillimore, J. decided in favour of the plaintiffs, and the defendants appealed. J. A. Hamilton, K.C., Montague Lush, K.C., and Chaytor for the appellants.-The evidence shows that the appellants were not the ship's agents at Rangoon for the purpose of presenting bills of lading for signature to the master. No undertaking of indemnity is implied unless the facts show that the person to be indemnified did the act for the benefit of the person at whose request he did it. In this case the master on being requested to sign bills of lading was not asked to do an act which he ought not to do, but one which it was his duty to do. There is no implied indemnity in a case where the request is only to carry out a legal contract. An indemnity is only implied in cases where a person asks for something which the other is not bound to give him. Here the master's duty with reference to these bills of lading was not merely ministerial, and therefore Sheffield Corporation v. Barclay (93 L. T. Rep. 83; (1905) A. C. 392) does not apply. There the duty of the corporation was merely ministerial, and they did not register the transfer of the stock in pursuance of a contract. The foundation of that judgment was that a person, who was interested in having the transfer registered, came to the person who was compelled to register the transfer by ministerial duty and requested that the transfer should be registered, and the House of Lords held that, as they were compelled to register by ministerial duty, the respondents, who had requested them to register the transfer, must indemnify them against the loss which they incurred in consequence. The master could have refused to sign the bills of lading presented to him unless the negligence clause was inserted. The case of Hansen v. Harrold Brothers (7 Asp. Mar. Law Cas. 464; 70 L. T. Rep. 475; (1894) 1 Q. B. 612) is not in point. There was no breach of duty in presenting these bills of lading. The charterers were only the owners' agents for the purpose of entering and clearing the ship, and that imposed no duty on them as to the form of the bills of lading. 3 H CT. OF APP.] MOEL TRYVAN SHIP CO. LIM. v. KRUGER AND CO. LIM. [CT. OF APP. The master and the defendants considered that the clause "All conditions as per charter-party' incorporated all the exceptions in the charterparty. The defendants are not liable for negli. gence because they put a mistaken construction on those words. The principle as to implied indemnity appears from Ex parte Ford (16 Q. B. Div. 305). They also referred to Stumore, Western, and Co. v. Breen, 12 App. Cas. 698. Scrutton, K.C. and Bailhache for the respondents.-Lcoking at this case from a business point of view, is it likely that a shipowner would enter into a contract the result of which would be that so long as the cargo belonged to the charterer he should not, but when the cargo came to belong to a third party he should be liable? It was the duty of the defendants to present bills of lading to the master for signature, which were in accord. ance with the charter-party. But the judg. ment of Lord Esher, M.R. in Hansen v. Harrold Brothers (ubi sup.) shows that if the master had known that the exception of negligence was not incorporated in them he would have been bound to sign them, and Rodocanachi v. Milburn (6 Asp. Mar. Law Cas. 100 (1886); 56 L. T. Rep. 594; 18 Q. B. Div. 67) is to the same effect. The meaning of the words "without prejudice to the charter-party" has been settled by Shand v. Sanderson (4 H. & N. 381). The master only has authority to sign bills of lading in the usual form: Grant v. Norway, 16 L. T. Rep. O. S. 504; 10 C. B. 665. The defendants for their own purposes presented bills of lading to the master, which imposed greater liability on the owners than the charterparty, and therefore there was an implied contract of indemnity by the charterers. But if there was no duty on the master to sign these bills of lading, then he was called upon to exercise a ministerial duty, and acted without any default on his own part, and the defendants are liable to indemnify the plaintiffs (per Lord Davey in Sheffield Corporation v. Barclay, ubi sup.) : Milburn v. Jamaica Fruit Importing and Trading The law as to implied indemnity is stated in Hamilton, K.C. in reply. Sir GORELL BARNES (after stating the facts continued:)-I think, in order to appreciate the difficulty which has arisen and in order to apply the law to the solution of the difficulty, it is necessary to see exactly how this matter stands looked at from a legal point of view. In former times a difficulty of this kind could not have arisen, because the bill of lading given under a charter-party had really no effect upon the contractual relationship between the shipowner and the charterer; it was a receipt for the goods, and the whole relationship of the two parties was governed by the contract contained in the charterparty. If, as business required it, the charterers passed the bill of lading over to a consignee or purchaser, and a dispute arose at the port of delivery or about the loss of the goods, there were only two ways of dealing with the difficulty so far as it affected the purchaser or consignee of the cargo. The action for its loss had to be brought in the name of the original contractor who shipped the cargo and made the charterparty and took the bill of lading; or, if the goods had been delivered at the port of destination, there were cases in which, from the fact of delivery and the abandonment of a lien for freight, and so forth, by the shipowner in making delivery, a contract might be implied, and was applied in some cases, against the consignee to recover freight. But where the difficulties arose with regard to non-delivery, such as in a case of loss like this, the remedy had to be enforced in the name of the original contractor. Then the Bills of Lading Act 1855 was passed, which gave the same rights of suit to a person who the consignee of goods named in a bill of lading, or indorsee of a bill of lading, to whom the property in the goods passed upon or by reason of the consignment or the indorsement, and subjected him to the same liabilites as if the contract contained in the bill of lading had been made with himself. I do not know that that was strictly a correct form of expressing the matter, but in substance the Act treated the original shipment under the bill of lading as a contract which could be transferred, and which did, when transferred, give rights to the person to whom it was transferred. was It is by virtue of those powers that in the present case the transferees of the bills of lading acquired the right to sue, their rights being based solely upon the bills of lading, and not being controlled by the charter party, except, of course, if the goods had been delivered, so far as the conditions of the charterparty affected the delivery. That is how a suit against the shipowners could be brought and came to be brought, and there was no answer to it as soon as negligence could be proved which caused the loss. Now, the difficulty in the present case has arisen because those persons who presented the bill of lading do not seem to have appreciated that situation, and do not seem to have appreciated that the bill of lading which was being issued would not protect the shipowner from loss by negligence, although it is quite obvious from the evidence that the point as to whether the exception as to negligence should be put in had over and over again been brought before them. They say some captains asked for it and others did not, and both they and the captain seem to have considered that the fact of putting on the bill of lading "all other conditions as per charter-party "would have the effect of making all the exceptions and all the liabilities and rights practically the same as they were in the charter-party. I confess I am very much surprised to hear that that was the state of things existing in Rangoon. More than twenty years ago shipowners were sued, one might say, almost day after day, certainly week after week, by underwriters using the name of cargo owners for losses caused by negligence |