APP.] AGINCOURT STEAMSHIP Co. v. EASTERN EXTENSION, &C., TELEGRAPH Co. [APP. APPEAL FROM THE KING'S BENCH DIVISION. Submarine Telegraphs Convention-Cables-Protection-Cable fouled by anchor-Sacrifice of anchor-Measure of damages-Submarine Telegraph Act 1885 (48 & 49 Vict. c. 49), schedule, art. 7. Art. 7 of the schedule to the Submarine Telegraph Act 1885 provides that shipowners who can prove that they have sacrificed an anchor in order to avoid injuring a submarine cable shall receive compensation from the owner of the cable. Held, that in the circumstances of this case the owner of the cable was liable to make compensation for the anchor and chain sacrificed, but not further to pay the damages resulting from such sacrifice; though the measure of the compensation is not necessarily merely the cost of replacing the anchor and chain sacrificed. THE plaintiffs were the owners of the steamship Agincourt, and the defendants, the Eastern Extension, Australasia and China Telegraph Company and the Great Northern Telegraph Company Limited, were the owners of submarine telegraph cables portions of which were laid across the bed of the Yang-tsze-kiang river, in the neighbourhood of Woosung, China. On the 31st Aug. 1905 the Agincourt, while in the course of a voyage from Shanghai to San Francisco, via Japan, in charge of a licensed pilot, anchored in the river, and on the next morning, there being indications of an approaching typhoon, the anchor was weighed and the vessel proceeded further up the river to a safer anchorage. The starboard anchor was dropped about 1 p.m., and later, the wind having increased, the port anchor was let go. At daylight on the 2nd Sept. it was necessary for the safety of the vessel that the anchors should be got up. Accordingly the port anchor was weighed, but it was found to be foul of a telegraph cable. It was then let go, and the starboard anchor was hove up, when it also was found to be foul of a telegraph cable. The telegraph cables were, the plaintiffs alleged, the property of the defendants jointly, or, in the alternative, the property of the first defendants, or, in the further alternative, of the second defendants. With a view to the preservation of the defendants' telegraphs from injury, in the event of their being fouled by the anchors of vessels, the defendants issued the following public notice, which was dated Shanghai, the 1st Aug. 1902: The Great Northern Telegraph Company Limited, of Copenhagen; the Eastern Extension, Australasia and China Telegraph Company Limited.--Important Notice to Owners, Captains, and Pilots of Steamers and Sailing (a) Reported by W. C Biss, Esq., Barrister-at-Law. Vessels. The submarine telegraph companies in the Far East desire to draw attention to the fact that telegraph cables, when caught by ships' anchors, chains, &c., as frequently happens, are unfortunately often damaged or broken in the endeavour to free the said gear, the latter being at the same time often lost or destroyed. It is consequently in the interest of all concerned that in such cases the greatest care should be taken not in any way to forcibly strain the cable when hooked, but preferably to sacrifice anchors and other gear. The telegraph companies have therefore decided to compensate owners of vessels (excepting houseboats, launches, and similar small craft) for loss of material from the above causes by adhering, for the Far East, to the Submarine Telegraph Act of 1885, schedule, art. 7, according to which owners of ships or vessels who can prove that they have sacrified an anchor, &c., in order to avoid injuring a submarine cable shall receive compensation from the owner of the cable. Art. 7 of the schedule (the Submarine Telegraphs Convention) to the Submarine Telegraph Act 1885 is as follows: Owners of ships or vessels who can prove that they have sacrificed an anchor, a net, or other fishing gear in order to avoid injuring a submarine cable shall receive compensation from the owner of the cable. In order to establish a claim to such compensation, a statement, supported by the evidence of the crew, should, whenever possible, be drawn up immediately after the occurrence, and the master must, within twentyfour hours after his return to, or next putting into port, make a declaration to the proper authorities. The latter shall communicate the information to the consular authorities of the country to which the owner of the cable belongs. It appeared from a statement of the captain that when it was found that the port anchor was foul of a telegraph cable he would have cut it, but that the pilot said he must slip the anchor and chain, they having received instructions that ships fouling the telegraph companies' cables would be reimbursed for any loss or delay through slipping their anchors and chains to save damage to the telegraph cables. The master added that, after the pilot again assured him that the plaintiffs would be "fully compensated" by the telegraph companies if the anchors were slipped, he decided that this should be done. In consequence of the loss of the anchors the Agincourt was delayed eight days at Shanghai, while endeavours were being made to recover the lost anchors or obtain others. This action was brought by the plaintiffs for compensation for the loss of the ship's materials. They also claimed damages for the detention of the vessel at Shanghai, for the extra consumption of coal in steaming from the place of the accident to Shanghai and back, and for the expenses incurred to save her cancelling date at Portland under a charter-party, the total amount claimed being 20841. At the trial it was proved or admitted that one of the anchors had fouled an abandoned cable belonging to the first-named defendants, but the position of the other cable had not been ascertained. These defendants before the commencement of the action had supplied the ship with a new anchor, and they paid the sum of 851. into court as representing the value of the chain which had been lost. The action was heard by Bray, J., who by his judgment declared amongst other things—(1) that the captain had concluded a contract in the App.] AGINCOURT STEAMSHIP Co. v. EASTERN EXTENSION, &C., TELEGRAPH Co. terms of the notice issued by the defendants; (4) that by the terms of the notice each company was liable for its own cables only; and (5), further, that the liability of each company under the terms of the notice was not only for the value of the anchor and chain, but also for the damages resulting from such sacrifice, and he adjourned the trial of the questions of fact. The first-named defendants appealed from declarations (1) and (5), and by their notice of appeal they asked for a declaration in lieu of declaration (5), assuming that they were liable under the notice of the 1st Aug. 1902, that their liability was limited to replacing the anchor and chain or payment of their value. Upon the hearing of the appeal the appellants admitted their liability under the notice, the only question argued being the measure of damages. It J. A. Hamilton, K.C. and Bailhache (Wolfe Barry with them) for the appellants.-Upon the construction of art. 7 of the schedule to the Submarine Telegraph Act 1885 the plaintiffs are only entitled to compensation for the thing sacrificed, which in this case is the cost of replacing the anchor and chain. Damages resulting from the sacrifice are not included. is argued that unless all the consequences of the sacrifice are included, the master would always cut the cable in preference to sacrificing the anchors, but under art. 2 injuring a cable is a punishable offence unless it is done for the purpose of saving the ship after every precaution has been taken to avoid injuring the cable. Then, if art. 7 has that limited meaning, it follows that a similar meaning must be given to the notice which expressly limits the compensation to loss of material. Atkin, K.C. and Raeburn for the respondents. -The plaintiffs are entitled to compensation for any damage which flows naturally from the loss of this gear. The judge was right in holding that compensation was not limited to the loss of the materials. The offer of the telegraph companies was intended to induce shipowners not to cut their submarine cables, and unless the shipowner is to be compensated for the sacrifice-that is, for any loss arising directly and necessarily from the sacrifice-the offer is useless. If the owner of a fishing-boat sacrificed his net full of fish, his compensation would not be limited to the cost of a new net, or of a new net and the value of the fish in the net at the time, but must include something for the loss of opportunity to catch more fish at that time. Hamilton, K.C. in reply. COZENS-HARDY, M.R.-The question raised by this appeal turns mainly upon the true construction and effect of art. 7 of the schedule to the Submarine Telegraph Act 1885, because of the reference to that article contained in a notice issued by the appellant company, which notice was accepted by the master of the ship under circumstances which resulted in a contract made by the appellants with the shipowner. But a contract to do what? The language of the article is, Owners of ships or vessels who can prove that they have sacrificed an anchor, a net, or other fishing gear in order to avoid injuring a submarine cable shall receive compensation from the owner of the cable." The learned judge in the court below has in his fifth declaration held [APP. that the liability of the company under the terms of the notice is not only for the value of the anchor or chain sacrificed, but also for the damages resulting from such sacrifice. The appellants are not content with that, and they ask to substitute for that a declaration that their liability is limited to the replacement of the anchor and chain or payment of their value. With great respect to the learned judge, I think the language of his declaration is dangerously wide, and I also think that the language of the appellants' notice of appeal is wrong. The facts may be very shortly stated. The vessel was coming down from Shanghai; a storm arose; she dragged her anchor; the anchor got caught in a cable, and the pilot told the captain that he had better not try to clear his anchor, as the telegraph companies had issued a notice, the terms of which were not actually shown to the captain, but which he accepted on the statement of the pilot. That sufficed to create a contract between the parties. What happened was this: The ship left her anchor behind, buoyed, and went up to Shanghai. There the telegraph com. pany presented the ship with a new anchor, which is conceded to be as good as the old one, and they have paid into court the cost of a certain number of fathoms of anchor chain. Is that the full measure of the compensation which the company agreed to pay? I think it is not, or at least not necessarily. I think that the compensation may reasonably extend to the journey back to to Shanghai, there being no suggestion that that was not a reasonable course for the captain to take under the circumstances, and, therefore, primâ facie I think that the offer of the telegraph company was not sufficient. On the other hand, the language used in this declaration seems to me to open a very wide field of inquiry which might result in grievous injustice to the telegraph company. I think that the proper form of order is that suggested by Buckley, L.J. The fifth declaration will be modified by making it run as follows: "Further, the liability of each company under the terms of the notice is to make compen sation for the sacrifice of the anchor or chain sacrificed, but not further to pay the damages resulting from such sacrifice." BUCKLEY, L.J.-By their notice of appeal the Eastern Extension Telegraph Company ask this court to reverse the judge's first declaration, by which he found that there had been concluded a contract in the terms of the notice issued by the telegraph companies. That has not been pressed before us on the appeal, and we are asked to dispose of the appeal on the footing that there was concluded a contract in the terms of the notice. The question, then, is one of the construction of that notice, and the first step towards that is the construction of art. 7 of the schedule to the Submarine Telegraph Act 1885. Read shortly, that article runs thus: "Owners who can prove that they have sacrificed an anchor shall receive compensation." That, I think, means that owners who can prove that they have sacrificed an anchor shall receive compensation for that sacrifice. The notice runs in a form which I think is truly reproduced by stating it thus: "The telegraph companies have decided to compensate CT. OF APP.] THE HIBERNIAN; TASKER & Co. v. ALLAN BROTHERS & Co. [CT. OF App. owners of vessels (with certain exceptions) for loss of material from the above causes; that is to say, owners of ships or vessels who can prove that they have sacrificed an anchor, &c., in order to avoid injuring a submarine cable shall receive compensation from the owner of the cable." That is effected in the notice by putting in the words "by adhering to art. 7," and then the material words of art. 7 are repeated as I have just read them. Reading the notice in the way I have suggested, it means that the shipowner is to be compensated for the sacrifice of the anchor, or for the loss of the anchor, or for the loss of material, whichever way you like to express it. What is the exact compensation for the sacrifice of the anchor is a question which we mean to leave open. In my opinion, to limit the compensation to the replacement of the anchor and chain or payment of their value is not necessarily wrong. It may be wrong; under some circumstances it might be right; but I agree with the Master of the Rolls to this extent, that it is wrong to limit the compensation to that as a matter of principle. What you have to ascertain is the compensation for the sacrifice of the anchor. The exact form in which that should be expressed will be by altering declaration (5) of the judgment below in the manner stated by the Master of the Rolls. That will leave open the question what is the proper amount to be paid as representing compensation for the sacrifice of the anchor. Certainly, in my view, a large part of that which is claimed here by the points of claim is far outside anything of that kind, but I do not think we ought to do more than state here what the proper measure of that compensation is as a matter of principle. It is to be compensation for the sacrifice of the anchor. I think, therefore, that the declaration should be amended in the manner proposed. KENNEDY, L.J.-I agree, and the judgments which have been already delivered substantially cover, in my view, all that is important to be said. I only wish to add two things. First of all, stress was laid by the defendants in the court below upon the existence of the words in the notice which forms the contract, when accepted and acted upon by the captain of the ship," for loss of material from the above causes." I think compensation for loss of material is really another way of stating that which is contained in art. 7 of the schedule to the Submarine Telegraph Act 1885, and nothing different. "For loss of material means for losing your anchor, which is a sacrifice, if you do it intentionally, for the purpose of saving the cable. I think that nothing turns upon the use of the word "material," and that compensation for loss of material in this notice is not necessarily limited to the replacement of the thing lost, but comprises all that may be fairly included in the word "compensation," not merely for the thing, but for the act which has been donethe sacrifice which has been made. At the same time, without prejudging details, it is to my mind quite clear that many of the claims in the particulars prima facie, at any rate, fall outside anything which can be properly called compensation. The only other observation I wish to make is upon a point made by Mr. Raeburn in his very clear and concise argument with reference to the loss by a fishing smack of its nets. My view upon that may be thus expressed. If the net was actually being used at the time of the sacrifice, I do not think that compensation is necessarily confined either to a subsequent furnishing of the boat with a net or to the value of the fish which were actually taken within the folds of the net. It might fairly include the loss of that which the use of the net at that moment might have got for the fisherman. On the other hand, putting another case, sup. posing, although the sacrifice was made, there was a comrade boat there, and the fisherman of that boat said, "Here is a net for you in lieu of the one you have just lost," or supposing the man who had sacrificed the net had a spare one on board, in either of those cases it would be absurd to say that anything more was needed as compensation than the cost of a new net when the vessel came into port. Each case must stand on its own merits. In my opinion the suggestion of my brother Buckley which the court has adopted places a proper limitation upon the order in the court below, and at the same time leaves open for future argument what compensation for sacrifice really means. Solicitors: Bischoff and Co.; W. A. Crump and Son. March 18 and May 7, 1907. (Before Lord ALVERSTONE, C.J., MOULTON and KENNEDY, L.JJ.) THE HIBERNIAN; TASKER AND CO. v. ALLAN BROTHERS AND CO. (a) Carriage of goods Through bill of lading Freight for land and sea carriage-Inland freight paid by steamship company-Damage to cargo during transit by sea-Cargo in part sold-Cargo in part transhipped and delivered -Lien of steamship company for whole inland freight paid. Bags of flour were forwarded from Milwaukee to London under a through bill of lading, the flour being conveyed by rail to Montreal, and thence by the Allan Line to London. The through bill of lading contained clauses with regard to the carriage of the goods by land and sea, and also incorporated all the "conditions expressed in the regular forms of bills of lading in use by the steamship company at the time of shipment," and was signed by the carrying companies severally and not jointly. One of the clauses relating to the carriage by the railway company in the through bill of lading was as follows: "This contract is executed and accomplished, and all liability hereunder terminates on the delivery of the said property to the steamship, her master, agent or servants, or to the steamship company, or on the steamship pier at the said port, and the inland freight charges shall be a first lien due and payable by the steamship company." Among the clauses relating to the sea carriage was one which provided: "That the carrier shall have a lien on, and a right of sale over, the goods for all freight, primages, and charges"; and another which provided "that freight payable on weight or measurement is to be paid on gross weight or measurement landed from ocean (a) Reported by L. F. C. DARBY, Esq., Barrister-at-Law. CT. OF APP.] THE HIBERNIAN; TASKER & steamship unless otherwise agreed to or herein otherwise provided, or unless the carrier elects to take the freight on the bill of lading weight." The following was a clause in the bill of lading regularly used by the Allan Line: When the goods are carried at a through rate of freight, the inland proportion thereof together with the other charges of every kind (if any) are due on delivery of the goods to the ocean steamship, and the shipowner or his agent shall have a first lien on the goods in whole and in part until payment thereof." The steamship company having paid the railway Held (affirming the decision of the Divisional The facts and material clauses of the through and ocean bills of lading are fully set out in the judgment of Lord Alverstone, C.J. The arguments of counsel were the same as in the court below. F. D. Mackinnon for the appellants. C. R. Dunlop for the respondents. Lord ALVERSTONE, C.J.-This is an appeal from the Divisional Court of the Admiralty Division, in an action brought in the City of London Court by the plaintiffs, the consignees of 1500 bags of flour, to recover the sum of 147. 8s. 3d., being an amount paid by them under protest to Allan Brothers and Co., in excess, as they allege, of their true indebtedness to Allan Brothers and Co., as the owners of the steamship in which the goods, of which the plaintiffs were consignees, had been conveyed from Montreal to London, under the circumstances which I will shortly state. The facts are agreed, and may be briefly summarised as they appear on the agreed statement. The Gem Milling Company, Milwaukee, consigned to the Gem Milling Company, London, 1500 bags of flour by three through bills of lading or contract notes, which provided that the flour should be carried from Milwaukee to London at an all-round rate of 19 cents per 100lb. This rate included railway, and other carriage, from Milwaukee to Montreal, and freight from Montreal to London. On the voyage of the steamship Co. v. ALLAN BROTHERS & Co. [CT. OF APP. Hibernian from Montreal she ran aground, and of the 1500 sacks 366 were damaged, and were sold, and the balance- viz., 1134, were transhipped into another of the defendants' steamers, and duly arrived in London. Upon the plaintiffs, the consignees, demanding delivery of these goods, the defendants, as a condition of delivery and in exercise of a claim of lien, required payment of a sum of 851. 5s., which consisted of a charge of 6 cents per 100lb. as ocean freight on the 1134 bags delivered, and of 591. 1s. 3d. for the American inland carriage, which had actually been paid by the defendants to the American railway company on the 1500 bags of flour from Milwaukee to Montreal. To the payment of 141. 8s. 3d. out of this 591. 1s. 3d., representing the amount of the American railway carriage and charges upon the 366 bags which were not delivered in London, the plaintiffs objected, but ultimately paid, and they now claim in this action to recover that amount from Messrs. Allan Brothers and Co. The Divisional Court has decided that, having regard to the terms of the contract upon which the bags were carried, the plaintiffs are not entitled to succeed. The question depends entirely upon the terms. of the contract. Each of the three through bills of lading or contract notes provided that the bags to which it related should be carried from Milwaukee to London at 19 cents for 100lb. gross weight. The contracts contained two sets of conditions, one relating to the land service until delivery at the port of Montreal, the second relating to the service after delivery at Montreal until delivery in London. Under the first set, condition 12 was in the following terms: "This contract is executed and accomplished and all liability hereunder terminates on the delivery of the said property to the steamship, her master, agents, or servants, or to the steamship company, or on the steamship pier at the said port, and the inland freight charges shall be a first lien due and payable by the steamship company." This condition, in my judgment, has only an indirect bearing upon the question we have to decide. What it provides is that the railway company shall have a lien upon the goods for the inland freight charges payable by the steamship com. pany on taking delivery at Montreal. The conditions relating to the ocean carriage which are material are as follows: (5) "That the carrier shall have a lien on [and right of sale over] the goods for all freights, primages, and charges, and also for all fines or damages which the ship or cargo may incur or suffer by reason of the illegal, incorrect, or insufficient marking, numbering, or addressing of packages or description of their contents." (15) “That freight payable on weight or measurement is to be paid on gross weight or measurement landed from ocean steamship unless otherwise agreed to or herein otherwise provided, or unless the carrier elects to take the freight on the bill of lading weight." (17) "That the property covered by this bill of lading is subject to all conditions expressed in the regular forms of bills of lading in use by the steamship company at times of shipment and to all local rules and regu lations at ports of loading and destination not expressly provided for by the clauses herein." In my view condition 5 gives the ordinary lien for freights, primages, and charges in respect of THE HIBERNIAN; TASKER & Co. v. ALLAN BROTHERS & Co. [CT. OF APP. CT. OF APP.] the ocean transit. Condition 15 deals with the way in which the freight shall be calculated upon the goods landed. Condition 17, read in conjunction with the Allan Line bill of lading, to which it refers, is the condition on which, in the opinion of the court below and in my own, the question turns. The words "all conditions expressed in the regular forms of bills of lading in use by the steamship company at time of shipment" were for the purpose of argument agreed to mean the bills of lading of the Allan Line. Those bills of lading contained the following clause: "When the goods are carried at a through rate of freight the inland proportion thereof together with the other charges of every kind (if any) are due on delivery of the goods to the ocean steamship, and the shipowner or his agent shall have a first lien on the goods in whole or in part until payment thereof." It is in my opinion clear, and indeed it was not disputed by counsel for the appellants, who argued the case on behalf of the appellants with great ability, that, under this clause, taken by itself, if the shipowner paid the inland proportion, that is to say, the land charges upon the consignment, the shipowner would have a lien on the goods until repayment, or, in other words, that the clause in the Allan Line bill of lading just quoted was the counterpart of clause 12 of the first set of conditions on the through bills of lading, and was intended to protect the shipowner in respect of payments made by him to the railway company; but it was contended on behalf of the appellants that this clause, properly interpreted, was inconsistent with the provision of the through bills of lading that the goods should be delivered on payment of 19 cents per 1001b. In my judgment the view taken by the Divisional Court is correct. There is, under the contract contained in the through bill of lading, an obligation to deliver the goods on payment of an agreed freight of 19 cents per 100lb.; but the bill of lading shows on its face that the contracting parties knew perfectly well that the route being a through route, at a through rate, some part of the through rate would be payable to the inland railway company carrying the goods for Milwaukee to the port of Montreal, and, accordingly, as it provided that in respect of these charges the inland freight was to be a first lien, it is provided by virtue of clause 17, that, in addition to the liability to pay the freight upon the quantity actually delivered, there shall also be a lien for moneys paid by the steamship company to the inland carriers in order to release the goods from the lien which the inland carriers had upon them; or, in other words, there are two liens created by the through bill of lading, one by clause 5 in respect of the ocean freight, the other by clause 17, incorporating as it does the conditions of the Allan Line bill of lading in respect of payments properly made by the shipping company to the railway company. Of course, in respect of the goods delivered in London these two liens may be said to coalesce, or overlap, but this does not, in my opinion, prevent the clause taking effect where, as in this case, the shipping company have paid to the railway company inland charges upon that part of the goods which has not arrived. To state the matter shortly, it being conceded that if the goods were carried under the Allan Line bill of lading the shipping company would have the lien in question, their right to enforce that lien is not destroyed by the fact that some portion of the goods was lost in transit. I am authorised to say that Kennedy, L.J. concurs in this judgment. MOULTON, L.J.-This is a most unsatisfactory case, and it has given me very grave doubt during the long consideration that I have given to it. The difficulty in the case is due solely to the slovenly way in which the document constituting the contract of carriage is drawn up. I regret to say that in this respect it resembles many other mercantile documents which by their nature have grown up by a long process of adding new terms and conditions to documents of older date, without any regard to whether they fit in with the provisions of those prior documents. Such documents become wellnigh unintelligible as contractual documents, and so far as my experience goes I have never met with so gross a case as the present one. Again and again I have found myself almost coming to the conclusion that it was the duty of the court to refuse to interpret this document. It purports to be a through bill of lading, relating to the carriage of goods from Milwaukee to London, partly by land carriage and partly by sea carriage, on ships of the Allan Line. It was admitted during the argument, and I think it is clear from the nature of the contract, that the land carriers and the sea carriers here combined to make an offer to the public to carry goods for the whole of the transit at a through rate. No doubt the through freight was to be divided between the land carriers and the sea carriers, and in fact there are unmistakable indications in the conditions and terms of the contract that that was to be done; but the proportions in which the total freight was to be divided between the two are nowhere expressed in the contract, and, it was admitted at the Bar, were probably wholly unknown to the persons availing themselves of the through freight. The only reference to this division of freight between the two parties to the carriage-the inland carriers and the Allan Line-is to be found in condition 12, in the left-hand column of conditions; that is to say, in the column which relates to the conditions of the land carriage. It there states that the inland freight-the amount of which it does not define-shall be a first lien on the goods being carried; but it immediately provides that that shall not affect the consignee, because the steamship company, that is to say, the Allan Line, are to lift the lien by paying the inland charges. Thus, so far as the consignee is concerned, it does not affect the matter at all. We therefore have, so far as the consignee is concerned, a contract for the whole of the transit at a through freight; and the obligation to deliver the goods at London on the payment of that through freight is absolute. In the bill of lading there naturally are conditions with regard to the responsibility of the carriers for the goods carried, and we find in the right-hand column a series of conditions mostly of a nature to exculpate and hold harmless the carriers for accidents of travel, or giving them certain rights over the goods in respect of the services they rendered. It is under those conditions that the claim is made |