The action was brought upon a policy of insurance effected by J. H. Cooper and Co. on behalf of the plaintiff with the defendants.

By this policy, dated the 2nd June 1902, the plaintiff insured against the usual marine risks seven bulls, thirty heifers, and one cow and calf on board the steam ship Highland Scot on a voyage from the United Kingdom to Buenos Ayres:

each and, in

On and (or) under deck; including all risks of mortality, jettison, and washing overboard; warranted free from all claim (except for general average, salvage, and special charges) in respect of animals which may walk ashore or are capable of walking after leaving the ship at port of destination, bat to include risk of mortality for three days after landing of animals animal to be deemed a separate insurance case of any loss or misfortune, it shall be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the said subject-matter of insurance without prejudice to this assurance; to the charges whereof the said corporation will contribute according to the rate and quantity of the sum herein assured.

On the 5th June 1902 the defendants reinsured by a policy of reinsurance which was underwritten by Faber, the present appellant, and other underwriters.

This policy was expressed to be a reinsurance of the Empress Assurance Corporation on the cattle as per original policy of the 2nd June and to apply to the above-mentioned policy, and to be subject to the same clauses and conditions as the original policy and to pay as might be paid thereon. It contained the following clause:

Warranted free from particular average, jettison, washing overboard, and mortality, unless caused by the ship being stranded, sunk, on fire, or in collision, this to be of such a nature as may be reasonably supposed to have caused or led to the damage claimed for.

The policy also contained a sue and labour clause similar to that in the original policy.

By his points of claim the plaintiff alleged that there had been a constructive total loss of all the animals by perils insured against, and he also made a claim under the sue and labour clause.

Alternatively, he claimed as for a partial loss and for a proportion of his costs under the sue and labour clause.

The defendants obtained leave from the master to issue and serve a third party notice upon Faber under Order XVI., r. 48.

Upon Faber's appeal to the judge at chambers, Bigham, J. affirmed the order of the master. Faber appealed.

Scrutton, K.C. and Leck for Faber.-The court has no jurisdiction to make this order. A contract of reinsurance is not, strictly speaking, a contract of indemnity. It therefore affords no ground for third party procedure under Order XVI., r. 48. The contracts of insurance and reinsurance are independent contracts. The underwriter of the policy of reinsurance does not contract merely to indemnify the underwriter of the original policy against the claim that may be made under the original policy:

Mackenzie v. Whitworth, 2 Asp. Mar. Law Cas. 490; 33 L. T. Rep. 655; 1 Ex. Div. 36; Johnston v. Salvage Association, 6 Asp. Mar. Law Cas. 167; 57 L. T. Rep. 218; 19 Q. B. Div. 458. Secondly, assuming that the court had jurisdic

tion to allow a third party notice to be issued, this case is one in which that jurisdiction ought not to be exercised. The matter is one for the discretion of the court, and, as the terms of the two policies here are not identical, great inconvenience would be caused. The factor's servants and assigns of the assured under the original policy Iwould not be the same as the factor's servants and assigns of the assured in the policy of reinsurance :

Uzielli and Co. v. Boston Marine Insurance Company, 5 Asp. Mar. Law Cas. 405; 52 L. T. Rep. 787; 15 Q. B. Div. 11.

There is no authority to be found anywhere for bringing in a reinsurer in such a case as this as a third party.

Carver, K.C. and F. T. R. Bigham for the defendants. This policy of reinsurance is a contract of indemnity within Order XVI., r. 48. Faber has agreed to pay the defendants whatever the defendants may become liable to pay under the policy of the 2nd June 1902. In Johnston v. Salvage Association (ubi sup.) there was no question of reinsurance. Even if there should be some little difficulty with regard to the sue and labour clause, yet, as regards the main point of the plaintiff's claim, there is no doubt that Faber has agreed to indemnify the defendants.

Scrutton, K.C. in reply.

MATHEW, L.J.-In my opinion this appeal must be allowed. The rule under which a defendant may bring in a third party has been in existence for many years, but I think that this is the first occasion on which it has been sought to apply the rule to a marine policy of reinsurance. The reported cases show that contracts of insurance and reinsurance are independent of each other, the original underwriter being entitled to reinsure himself by reason of the interest which he has acquired in the subject-matter of the original insurance. The condition that the underwriter of the policy of reinsurance is to pay as may be paid on the original policy does not import that the contract is one of indemnity. The assured under a policy of reinsurance must show, like any other assured, that there has been a loss of the subject-matter of the insurance by a peril insured against by the policy of reinsurance. It is argued that a contract of reinsurance is a mere contract of indemnity within the meaning of Order XVI., r. 48. We have to consider the nature of the contract of reinsurance. If it were nothing more than an agreement to indemnify, the underwriter of the original policy, when sued on his contract, might give notice to the underwriter of the policy of reinsurance that, if that underwriter would not pay, he would defend the action and would afterwards claim to be indemnified by him against the costs of the defence. No one ever heard of such a position being assumed by the assured under a policy of reinsurance. Moreover, it would be very inconvenient to make the underwriter of the policy of insurance a third party in respect to some part only of the subject-matter of the action on the original policy. It might turn out that no question of liability common to the original underwriter and the underwriter of the policy of reinsurance was ultimately decided in the action, and then the third party would have been brought in and additional expense incurred for nothing.

KING'S BENCH DIVISION. April 18 and May 29, 1905. (Before KENNEDY and RIDLEY, JJ.) AUSTIN FRIARS STEAM SHIPPING COMPANY LIMITED (apps.) v. STRACK (resp.). SAME (apps.) v. STRACK AND OTHERS (resps.). (a) Seaman-Wages-Agreement for ordinary voyage -Carriage of contraband of war-Termination of voyage by capture of ship-" Loss" of shipRight of seaman to wages and damages · Merchant Shipping Act 1894 (57 & 58 Vict. c. 60), s. 158.

A seaman entered into an agreement with the owners of a British ship, and signed articles to serve as a seaman on board the ship on a trading voyage to the East and to different ports in the East, the voyage not to exceed two years, and to end at a final port of discharge in the United Kingdom. During the course of the trading war broke out between Russia and Japan, and after the declaration of war the ship was employed in carrying contraband of war. While on one of these voyages, with contraband of war on board, the vessel was seized by a Russian gunboat, and she and her cargo were confiscated by a prize court. The master knew, but the crew did not, that the ship was carrying contraband. The crew were sent back to London, vià St. Petersburg, and suffered considerable hardships on the journey through insufficiency of food and sleeping accommodation.

Held, that the capture of the ship was not a "loss of the ship within the meaning of sect. 158 of the Merchant Shipping Act 1894; that the termination of the voyage was not " by reason of the loss" of the ship within the meaning of that section, but was by reason of the act of the owners in carrying contraband of war, and that in consequence the character of the voyage and its risk and danger were altered, and that there was therefore a breach of the agreement by the owners which entitled the seaman to his wages up to the date of his arrival in London and to damages. Two cases stated by an alderman and justice of the peace for the city of London, sitting as a court of summary jurisdiction at the Guildhall Justice Room, the first being as to the wages of a seaman and the second as to damages.

1. On the 10th Sept. 1904 the respondent (Johannes Strack) took out a summons under sect. 164 of the Merchant Shipping Act 1894, against the appellants, claiming a sum of 351. 28. 2d., balance of wages alleged to be due (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

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from them in respect of his services as a seaman on board the steamship Cheltenham from the 24th Nov. 1903 to the 30th Aug. 1904, and continuing wages up to the date of final settlement under sect. 134 of the Merchant Shipping Act 1894.

On the 16th Sept. 1904 the parties attended before the magistrate on the summons, when the appellants admitted the respondent's claim up to the 2nd July 1904 (which they had always been willing to do).

The claim was amended accordingly, and, after hearing the matter, the summons was adjourned till the 17th Sept., on which day, the appellants having in the meantime paid the respondent's wages up to the 2nd July 1904, the magistrate gave judgment for the respondent and adjudged the appellants to pay the balance of wages up to the 30th Aug. 1904-namely, 91. 13s. 4d.-and the sum of 161. 16s. for costs.

2. The following facts were either admitted or proved before the magistrate :

(a) The respondent was a seaman who at the time of the matters hereinafter mentioned was serving as a seaman on board the British steamship Cheltenham. The appellants were the owners of the Cheltenham.

(b) The respondent on the 24th Nov. 1903 signed on the articles of the Cheltenham, then at Bremerhaven, to serve as boatswain on the vessel at the rate of 5l. per month. The articles of agreement, so far as is material, were as follows:

The several persons whose names are hereto subscribed and whose descriptions are contained herein, and of whom five are engaged as sailors, hereby agree to serve on board the said ship in the several capacities expressed against their respective names on a voyage from Bremerhaven vid port in Bristol Channel to Colombo and (or) any ports or places within the limits of 75° N. and 63° S. latitude, trading in any rotation, and to end at a final port of discharge in the United Kingdom or continent of Europe between the Elbe and Brest inclusive. Period not to exceed two years' trading and time to reach the United Kingdom or Continent if vessel so bound direct at end of trading term. If above trading ends, from any cause except wreck, or if such time expires while vessel is abroad and not bound direct for United Kingdom or Continent as stated, the crew agree to ship in any other British vessel provided by the master (bound direct for United Kingdom or Continent) at not less than the same rate of wages. It is agreed that when British seamen shipped in the United Kingdom are discharged on the Continent as above the master "shall furnish the means of sending them back” (with maintenance) to the nearest port in the United Kingdom served by regular steamers, and the crew agree to such port as the port in the United Kingdom to which they may be so sent back. The crew further agree at master's option to proceed from the port of final discharge as above to a port in the United Kingdom for loading or otherwise.

(c) The Cheltenham left Bremerhaven on the 25th Nov. 1903, and, after loading a cargo of coals at Barry, arrived at Colombo on the 10th Jan. 1904. Thence she proceeded to Rangoon, where she arrived on the 26th Jan., and loaded a cargo of rice, and sailed for Yokohama on the 9th Feb., where she arrived on the 7th March 1904.

(d) Early in Feb. 1904 war was declared betwen Russia and Japan. On the 12th of that month a Royal Proclamation announcing that fact appeared in the London Gazette, and on the 19th Feb., 1st March, 18th March, and 22nd

March there appeared various notices as to contraband of war in the London Gazette, which were produced before the magistrate.

(e) On the 11th March 1904 the Cheltenham was chartered by the appellants to Messrs. Makino and Umeura, contractors for the Chemulpho Railway Company, for the term of six calendar months, to be employed in trading between Muroran and Otaru and Japan coast ports and Chemulpho and Southern Korean ports in such lawful trades as the charterers or their agents should direct. The Cheltenham then made several voyages between Japan and Korea, carrying various descriptions of railway material which had been declared contraband of war by the Japanese and Russian Governments. Whilst at Yokohama, between the 7th and 19th March, the respondent endeavoured to obtain information as to what was contraband of war, a letter being written by one of the crew to the German Consul at Yokohama for information on the subject, but no reply was received. This was the only step taken by the respondent or any of the crew to ascertain if the cargo was contraband of war. On the 2nd July 1904, whilst proceeding from Otaru to Fusan, in Korea, with a similar cargo, the Cheltenham was captured by the gunboat Gromobor, belonging to the Russian Vladivostok Squadron. A prize crew was put on board and she was taken as a prize of war to Vladivostok, where she arrived on the 4th July. On the 7th July a prize court was held at Vladivostok and the vessel and her cargo were confiscated. The decision of the prize court was declared to the captain and crew of the Cheltenham on the 11th July. The appellants did not appeal from such decision. There was no vessel at Vladivostok in which the crew could be sent home, and the captain at once applied to the proper authority at Vladivostok to have them sent home via St. Petersburg. This was ultimately arranged; and on the 29th July the captain and the respondent and the rest of the crew left Vladivostok, viâ the Trans-Siberian Railway, for St. Petersburg, where they arrived on the 18th Aug. On the 23rd Aug. they left St. Petersburg as passengers in the steamship Kurga, and arrived in London on the 30th Aug. 1904.

(f) The travelling expenses and maintenance of the respondent were provided partly by the Russian Government and partly by the appellants until the arrival in London.

(g) At St. Petersburg the respondent was offered his wages up to the 2nd July 1904, the date when the Cheltenham was captured. This was refused. Subsequently he was offered his wages up to and including the 30th Aug. 1904, the date of his arrival in London. This offer was also refused by the respondent, who intimated his intention of claiming damages for breach of contract contained in the ship's articles.

was

(h) The respondent did not know that the Cheltenham was carrying such cargo_as within the declaration of Russia and Japan as to contraband of war. The appellants' agent, the master of the ship, did know, but did not communicate his knowledge to any of the crew.

(i) An account of wages, made up to the 30th Aug. 1904, was made up by the master and given to the respondent in accordance with sect. 132 of the Merchant Shipping Act 1894, showing a balance due to the respondent of 351. 2s. 2d.

3. On the 1st Sept. 1904 the respondent and other members of the crew of the Cheltenham issued a summons under the Employers and Workmen Act 1875, as amended by sect. 11 of 43 & 44 Vict. c. 16, claiming damages against the present appellants for breach of the agreement contained in the ship's articles for the voyage in question. The matter came before the same magistrate, sitting as a court of summary jurisdiction, at the Guildhall Justice Room on the 9th Sept. 1904; and he found that the appellants had committed a breach of the said agreement, and awarded the respondent and the other members of the crew the sum of 101. each as damages for breach of the said agreement.

4. On behalf of the respondent it was contended that he was still on the articles and was entitled to wages as a debt to the 30th Aug. 1904, and to continuing wages under sect. 134 of the Merchant Shipping Act from determination of the voyage until a final settlement. The following authority was referred to as showing that a seaman was entitled to wages for a period during which he was not actually engaged as a seaman-viz., Beale v. Thompson (4 East, 546; 3 B. & P. 405).

5. On behalf of the appellants it was contended (1) that the respondent's right to wages terminated with the capture of the vessel on the 2nd July 1904, or at latest on the 11th July 1904, when the decision of the prize court was known, the vessel being "lost" within the meaning of sect. 158 of the Merchant Shipping Act 1894 immediately she was seized. The case of The Woodhorn (92 L. T. 113) was referred to. (2) That, having recovered judgment for damages for breach of the said agreement, he could not be entitled to wages under the agreement after the date of the breach thereof.

6. The magistrate held that, as after the 30th Aug. 1904 there was a bona fide dispute within the meaning of sect. 134 of the Merchant Shipping Act 1894, the respondent was not entitled to wages after that date. He decided that he was entitled to wages up to that date, and adjudged the appellants to pay him the balance from the 2nd July 1904 to the 30th Aug. 1904 -viz., 91. 13s. 4d.-and the sum of 16. 16s. for costs.

The question of law for the opinion of the court was whether the magistrate was right in holding that the respondent was entitled to wages up to the 30th Aug. 1904.

If the court should be of opinion that the magistrate was right, then his judgment was to stand; if not, it was to be quashed and such order made as the court should see fit.

The second case, as to damages, came before the same magistrate, and was heard on the 9th Sept. 1904.

The second case stated that on the 1st Sept. 1904 a summons was issued by the respondent and eighteen others, who were members of the crew of the steamship Cheltenham, against the appellants (who were the owners) under the Employers and Workmen Act 1875 (as amended by 43 & 44 Vict. c. 16, s. 11), claiming 107. damages for each man for breach of the agreement contained in the ship's articles.

The case was heard on the 9th Sept. 1904, when the appellants were ordered to pay to each of the respondents the sum of 101. as damages and one sum of 101. 10s. for costs.

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The facts stated in this case were the same as in the first case, with the following addition to par. (f): The travelling expenses of the respondents from Vladivostok were paid partly by the Russian Government and partly by the appellants. In addition to certain provisions supplied by the captain to each of the seamen they were also provided by the appellants with a sum of one rouble per day for the first five days of the journey to St. Petersburg, and afterwards with 1 rouble 25 copecks per day, in order to purchase food, but which sums the respondents complained were not sufficient to get them one good meal a day in consequence of the scarcity of provisions. The respondents complained at the trial of the sleeping accommodation on the railway and of the difficulty of obtaining sufficient food during the journey, and afterwards of the accommodation and food at St. Petersburg.

The respondents contended that there had been in law a breach of the agreement contained in the articles and that they were entitled to damages in consequence of such breach. They did not claim damages in the nature of wages, as the appellants had offered the respondents their wages up to the 30th Aug., but only for the risks and privations the respondents had endured by reason of the breach of contract.

It was argued that the appellants' action was illegal, but that, whether it was illegal or not, the appellants had broken their contracts with the respondents in exposing them to risks they had not contracted for. The case of The Justitia (6 Asp. Mar. Law Cas. 198; 57 L. T. Rep. 816; 12 P. Div. 145) was referred to.

It was further contended that the respondents declined to take their wages, as to have done so would have precluded their taking these proceedings, and sect. 136 of the Merchant Shipping Act 1894 in support of that contention was referred to.

On behalf of the appellants it was contended that there was nothing illegal in carrying contraband of war; that the vessel was "lost" within the meaning of sect. 158 of the Merchant Shipping Act 1894 immediately she was seized; and that the agreement was then put an end to, and that there was no breach of contract. The case of The Friends (4 Ch. Rob. 143) was referred to.

The respondents, in reply, contended that "loss" only meant destruction by perils of the sea or capture by the King's enemies, and that the appellants had brought about the loss by their own acts.

The magistrate held that in law there had been a breach of the agreement by the appellants. He found that the respondents had sustained injury in consequence, and assessed the damages at 101. in respect of each man.

The question of law for the opinion of the court was whether on the facts above stated the magistrate was right in holding that the appelJants had committed a breach of contract and the respondents were entitled to recover damages.

If the court should be of opinion that the magistrate was right, his decision was to stand; if not, it was to be reversed, and judgment was to be given for the appellants.

The Merchant Shipping Act 1894 (57 & 58 Vict. c. 60) provides:

Sect. 134. In the case of foreign-going ships (other than ships employed on voyages for which seamen

by the terms of their agreement are wholly compensated by a share in the profits of the adventure) (c) In the event of the seaman's wages or any part thereof not being paid or settled as in this section mentioned then, unless the delay is due to the act or default of the seaman, or to any reasonable dispute as to liability, or to any other cause not being the wrongful act or default of the owner or master, the seaman's wages shall continue to run and be payable until the time of the final settlement thereof.

Sect. 136 (1). Where a seaman is discharged, and the settlement of his wages completed, before a superintendent, he shall sign in the presence of the superintendent a release, in a form approved by the Board of Trade, of all claims in respect of the past voyage or engagement; and the release shall also be signed by the master or owner of the ship, and attested by the superintendent. (2) The release, so signed and attested, shall operate as a mutual discharge and settlement of all demands between the parties thereto in respect of the past voyage or engagement.

Sect. 158. Where the service of a seaman terminates before the date contemplated in the agreement, by reason of the wreck or loss of the ship, or of his being left on shore at any place abroad under a certificate granted as provided by this Act of his unfitness or inability to proceed on the voyage, he shall be entitled to wages up to the time of such termination, but not for any longer period.

Sect. 164. A seaman, or apprentice to the sea service, or a person duly authorised on his behalf, may as soon as any wages due to him, not exceeding fifty pounds, become payable, sue for the same before a court of summary jurisdiction in or near the place at which his service has terminated, or at which he has been discharged, or at which any person on whom the claim is made is or resides, and the order made by the court in the matter shall be final.

Scrutton, K.C. (Dawson Miller with him) for the appellants.-The first case is as to wages, and sect. 158 of the Merchant Shipping Act 1894 is the section upon which that question turns. Before the Merchant Shipping Act the seaman was not entitled to wages unless freight was earned. Sect. 157 of the Act provides that the right to wages shall not depend on the earning of freight. Sect. 158 gives the seaman a greater right, and gives him a right to wages up to the time of the termination of the service where such termination is caused by reason of the "wreck or loss" of the ship, although no freight has been earned. The capture of the ship was a "loss of the ship within the meaning of that section. The time when the ship was captured was the time when the ship was "lost" to the owners, and by sect. 158 the wages are to cease on the wreck or loss of the ship. The contention for the respondent that there was no wreck or loss of the ship and that therefore the wages went on is not well founded. Then the second case is as to damages, and as to that, as there no breach of the agreement, there was nothing in respect of which the respondent could claim damages. In the section "loss is distinguished from "wreck," and it means anything which deprives the owner of the possession of the ship, which the capture in this case did. The act of capture defeated the rights of the seaman and put an end to his wages: (The Friends, 4 Ch. Rob. 143). The carrying of contraband of war is not an offence against the law of nations or the law of this country; it is not illegal by the law of this country: (Ex parte Chavasse ; Re Grazebrook, 2 Mar. Law Cas. O. S. 197;

was

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12 L. T. Rep. 249; 34 L. J. 17, Bk.). The decision of Lord Westbury, L.C. in that case shows that this was a perfectly lawful voyage. The ship was carrying railway material, and was engaged in a trade that could lawfully be carried on. The case of The Justitia (6 Asp. Mar. Law Cas. 198; 57 L. T. Rep. 816; 12 P. Div. 145) is an altogether different case from the present. In that case damages were awarded to the seamen, but it was entirely owing to the fact that they had incurred hardships through the vessel being employed for purposes other than those contemplated by the agreement. The seamen were, in fact, employed for quite a different service from that which the agreement contemplated, whereas, in the present case, the seaman was employed precisely as contemplated by the agreement, and, as the agreement entered into was for a lawful voyage and a lawful trade, the loss falls upon the seaman, the shipowners, and cargo alike. The decision of the magistrate was therefore wrong. The Malta (2 Haggard, 158) was also referred to.

Robson, K.C. (Pilcher with him) for the respondent. The question is not whether it is lawful to carry contraband or not, but whether, when a shipowner enters into a contract with a seaman, he is entitled to put on the seaman risks never contemplated by the contract. The agreement in this case was for an ordinary commercial voyage, and the employers had no right to change that voyage into a voyage for the carrying of contraband of war, and the case finds that the cargo was contraband of war. It was the carrying of railway material for the construction of railways for the conveyance of Japanese troops. That change from the agreed voyage necessarily involved greater risks and dangers to the seamen than they had agreed to. The respondent was entitled to treat as a breach of the contract the appellants' employment of him on a voyage which would expose him to greater danger than he originally had reason to anticipate when he entered into the service-that is, to dangers other than the ordinary perils of the sea. By so doing, and by deliberately putting their ship in peril of capture, as they did, they became liable to the seamen in damages (The Justitia, ubi sup.), and also for the wages until their arrival in London: (Burton v. Pinkerton, 2 Mar. Law Cas. O. S. 494, 547; 16 L. T. Rep. 419; 17 L. T. Rep. 15; L. Rep. 2 Ex. 340). Kelly, C.B. in that case said (16 L. T. Rep., at p. 424) that, as war had broken out between Peru and Spain, it was a breach of the contract with the seaman to place the vessel under the orders of a Peruvian who was causing her to act in concert with two Peruvian ships of war, "and so exposing the crew to the danger at any moment of the loss of their liberty or of their lives." That applies to this case, as the master deliberately put his ship in peril of capture. In O'Neil v. Armstrong, Mitchell, and Co. (8 Asp. Mar. Law Cas. 63; 73 L.T. Rep. 178; (1895) 2 Q. B. 70, 418) it was held by the Court of Appeal that, as the continuation of the voyage would, through the breaking out of war between Japan and China, have exposed the seaman to greater risks than those which he contracted to run, the seaman was justified in leaving the ship, and was entitled to recover the stipulated sum, notwithstanding that the voyage was not completed. Charles, J., in delivering the VOL. X., N. S.

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judgment of the Divisional Court in that case (72 L. T. Rep., at p. 778; (1895) 2 Q. B., at p. 77), said that the captain's action in going on with the voyage after war had broken out certainly increased the risk incidental to an ordinary voyage, and, "apart from any question of illegality," entitled the plaintiff to treat his conduct as a breach. That clearly shows that, apart altogether from the question of legality or illegality, the increased risk was a breach of the agreement. Under the proclamation of the Government the respondent's duty was not to go on if the vessel was carrying contraband of war. [KENNEDY, J. -How do you make the wages run up to the 30th Aug., the date of arrival in London ?] Under sect. 134. The vessel was captured owing to the act of the owner himself, and therefore the owner himself, by putting the vessel and crew under a risk not contemplated by the parties, has brought about the state of things which terminated the contract, and, that act being “the wrongful act or default of the owner or master, the seaman's wages shall continue to run and be payable until the time of the final settlement thereof." The master was bound to send the respondent home; during all that time his wages were running, as he was not bound to treat the contract as determined, and under sect. 134 he was entitled to his wages until the 30th Aug. He is also entitled to damages. In both the cases referred to there was a claim for damages as well as a claim for wages. Under sect. 136 the seaman, on the settlement of his wages, is bound to sign a release, but in the present case the respondent was justified in refusing to sign on account of his claim for damages. Clearly there was not a "loss" or "wreck" of the vessel within the meaning of sect. 158, as what is relied upon as the "loss" of the vessel-namely, the capture -was brought about by the appellants' own act in sending contraband of war to a port of a belligerent.

Dawson Miller in reply.-" Loss" or "wreck within sect. 158 means loss or wreck however caused. As to the question of damages, the cases cited of Burton v. Pinkerton (ubi sup.), O'Neil v. Armstrong, Mitchell, and Co. (ubi sup.), and The Justitia (ubi sup.) were all cases where illegality under the Foreign Enlistment Acts came in, and where the seaman was asked to carry out a contract which was in fact illegal. In the present case the respondent must be taken to have entered for a voyage which was lawful.

Cur, adv. vult. May 29.-The judgment of the court (Kennedy and Ridley, JJ.) was read by

RIDLEY, J.-These were two cases stated for the opinion of the court by a justice of the peace for the city of London, the first relating to a claim for wages made by a seaman under the Merchant Shipping Act 1894, and the latter to a claim for damages in respect of the same employment made by him under the Employers and Workmen Act 1875, as amended by 43 & 44 Vict. c. 16, s. 11. It appears that Strack, the seaman, on the 24th Nov. 1903, signed on the articles of the British steamship Cheltenham, belonging to the appellants, and then at Bremerhaven, as boatswain at the rate of 51. per month, upon an agreement the material part of which was as

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