PRIV. Co.]

was found the ship could not be discharged at the quay and the cargo landed; and that they ought to hold that, the master being ready and able to give delivery in the harbour, and having kept the goods a reasonable time there for the purpose, the freight has been earned. It is admitted that both parties, when they made the contract, were ignorant of the prohibition against landing petroleum, and therefore no question of intentional infraction of the law of France arises.

It was contended for the plaintiff that, as the inability to land arose from the incapacity of the goods and not of the ship, the judgment of Sir William Scott in The Fortuna (Edwards 26) was an authority for declaring the freight to be recoverable, even if the contract of the ship had been to land the goods, or to deliver them on land. But as, in their Lordships' view, that is not the contract, it is unnecessary for them to consider whether the judgment for the plaintiff could properly rest upon this ground. The counsel for the defendant relied on some of the reasons given by the judges in Ford and others v. Cotesworth and others (L. Rep. 4 Q.B. 127; 5 Id. 544). The action in that case was for detaining the ship, and the judges were considering whether reasonable diligence had been used by the merchant in unloading the goods. The right to freight did not arise, and the attention of the judges was directed only to the ques tion whether, under the peculiar circumstances of the case, unreasonable delay in discharging the ship had been established.

The next question to be considered is, whether the plaintiff is entitled to compensation in the shape of homeward freight for bringing the petroleum back to England. It seems to be a reasonable inference from the facts, that after the four days during which the petroleum had been lying in the harbour had expired, the authorities would not have allowed it to remain there. It was still in the master's possession, and the question is, whether he should have destroyed or saved it. If he was justified in trying to save it, their Lordships think he did the best for the interest of the defendant in bringing it back to England. Whether he was so justified is the question to be considered. As pointed out by the judge of the Admiralty Court, the same kind of question arose in Christy v. Row (2 Taunt. 300). In that case Sir James Mansfield says; "Where a ship is chartered upon one voyage outwards only, with no reference to her return, and no contemplation of a disappointment happening, no decision which I have been able to find determines what shall be done in case the voyage is defeated; the books throw no light on the subject. The natural justice of the matter seems obvious—that a master should do that which a prudent man would think most conducive to the benefit of all concerned. But it appears to be wholly voluntary; I do not know that he is bound to do it; and yet, if it were a cargo of cloth or other valuable merchandise, it would be a great hardship that he might be at liberty to cast it overboard. It is singular that such a question should at this day remain unde. cided." The precise point does not seem to have been subsequently decided; but several cases have since arisen in which the nature and scope of the duty of the master, as agent of the merchant, have been examined and defined. (Amongst others, Tronson v. Dent, 8 Moore P. C. C. 419; Notara v. VOL. II., N. S.

[PRIV. Co.

Henderson, ante, vol. 1, p. 278; L. Rep. 7 Q. B. 225; Australasian Navigation Company v. Morse ante, vol. 1, p. 407; L. Rep. 4 P. C. 222.) It results from them that not merely is a power given, but a duty is cast upon the master in many cases of accident and emergency, to act for the safety of the cargo in such manner as may be best under the circumstances in which it may be placed, and that, as a correlative right, he is entitled to charge its owner with the expenses properly incurred in so doing. Most of the decisions have related to cases where the accident happened before the completion of the voyage, but their Lordships think it ought not to be laid down that all obligations on the part of the master to act for the merchant ceases after a reasonable time for the latter to take delivery of the cargo has expired, It is well established that if the ship has waited a reasonable time to deliver goods from her side, the master may land and warehouse them at the charge of the merchant; and it cannot be doubted that it would be his duty to do so rather than to throw them overboard. In a case like the present, where the goods could neither be landed nor remain where they were, it seems to be a legitimate extension of the implied agency of the master to hold that, in the absence of all advices, he had authority to carry or send them on to such other place as in his judgment, prudently exercised, appeared to be most convenient for their owner; and if so, it will follow from established principles that the expenses properly incurred may be charged to him. Their Lordships have no doubt that bringing the goods back to England was in fact the best and cheapest way of making them available to the defendant, and that they were brought back at less charge in the Argos than if they had been sent in another ship. If the goods had been of a nature which ought to have led the master to know that on their arrival they would not have been worth the expenses incurred in bringing them back, a different question would arise. But in the present case their value, of which the defendant has taken the benefit by asking for and obtaining the goods, far exceeded the cost. The authority of the master, being founded on necessity, would not have arisen if he could have obtained instructions from the defendant or his assignees. But under the circumstances this was not possible; indeed, this point was not relied on at the bar.

Their Lordships, for the above reasons, are of opinion that the plaintiff has made out a case for compensation for bringing back the goods to England.

But they think the plaintiff is not entitled to recover the amount claimed for demurrage and expenses in attemping to enter the ports of Honfleur and Trouville. These efforts may have been made by him in the interest of the cargo as well as the ship; but they were made before the ship was ready to deliver at all in the port of Havre, and the expenses of this deviation and of the return to Havre, after permission had been obtained to discharge there, must be treated as expenses of the voyage, and not as incurred for the benefit of the defendant. The charges for the hire of the vessel and of storing the petroleum in her at Havre, after permission had been obtained for its discharge there, stand on different ground. If the ship had then waited in the outer harbour with the petroleum on board, the defendant would have been liable to pay demurrage at 10l. 10s. a day. It was ob

C

viously, therefore, to his advantage under the circumstances for the master to hire the vessel and thus relieve him from the heavy demurrage payable for the detention of the ship. The whole expense of this operation appears to be about 151. only.

In the result their Lordships think the plaintiff is entitled to recover the outward freight, and the charge made for the carriage back to England, together 481. 88., and also the 15l. for the above expenses at Havre, in all 631. 88.

When their Lordships remitted the cause, after deciding the question of jurisdiction, they were told it had been fully heard by the judge of the Admiralty Court, and they presumed that the judgment he was prepared to give would be acquiesced in. The defendant, however, notwithstanding the small amount in dispute, applied for leave to appeal, which was granted only on the ground that questions of law of general importance were involved in the decision. Having failed on these questions, he ought, although the decree will be reduced in amount, to pay the costs of his appeal.

Their Lordships will humbly advise Her Majesty that the judgment given for the plaintiff ought to be affirmed, except only that the amount thereof should be reduced to 631. 88. The respondent will have the costs of this appeal.

Appeal dismissed.

Solicitors for the appellant, Heather and Son. Solicitors for the respondent, Cattarns, Jehu, and Cattarns.

COURT OF COMMON PLEAS. Reported by H. F. POOLEY and JOHN ROSE, Esqrs., Barristers-at-Law.

Saturday, May, 3, 1873. CORKLING v. MASSEY. Charler-party-Meaning of words, "expected to be at a port"-Warranty-Breach of. By a charter-party it was mutually agreed between the plaintiff and defendant that a ship expected to be at Alexandria about 15th Dec. should proceed to Alexandria, or as near thereto as she could safely get, and there load a cargo. Held, that the words expected to be at Alexandria about 15th Dec. were a matter of contract for the breach whereof an action is maintainable, also that they mean that the ship is in such a place that she may reasonably expect to be at Alexandria at the time named.

THE declaration stated that an agreement or charter-party was made by and between the plaintiff and defendant bearing date the 14th Nov. 1871, and that in the said charter-party it was agreed between Messrs. Massey and Sawyer, of the good British steamship or vessel called the Ceres, expected to be at Alexandria about the 15th Dec. 1871, and R. Corkling, of Manchester, merchant, that the ship being tight, staunch, and strong, classed Al, and every way fitted for the voyage,should with all convenient speed sail and proceed to Alexandria, Egypt, or so near thereunto as she may safely get, and there load a full and complete cargo of cotton, seed, &c. setting out all the conditions of the charter-party; and averred that the said Robert Corkling, in the said charterparty mentioned was the plaintiff, and the said Massey therein mentioned was the defendant, and that all things happened, and all times

[C. P.

elapsed, necessary to entitle the plaintiff to have the said agreement performed by the defendant, and to maintain this action for the breaches thereinafter alleged, yet the said ship was not then expected to be at Alexandria about the said 15th Dec. 1871, but it was then in such part of the world, and under such engagements that the said ship could not perform her said engagements and arrive at Alexandria about the said day.

Plea 3.-And for a third plea the defendant says that before and at the time of the making of the alleged agreement, the said vessel Ceres in the said charter-party mentioned, was on a passage to Revel and Helsingfors, and thence to load from Cronstadt or Riga for a port on the east cost of England or a port on the continent, and thence to proceed to Alexandria with a cargo from a coal port, of all which the plaintiff had notice, and the said above-named defendant says, that the alleged charter-party was made subject to the conditions that the said vessel should with all convenient speed fulfil her said engagements and then sail and proceed to Alexandria, and the said above-named defendant says that the said vessel did with all convenient speed fulfil his said engagement, and sail and proceed to Alexandria.

The defendant demurred to so much of the declaration as alleged as a breach, that the said ship was in such part of the world, and under such engagements, that the said ship could not perform her said engagements and arrive at Alexandria about the said day or days.

Replication and joinder in demurrer and demurrer to the defendant's third plea.

Joinder in demurrer.

Day, Q.C.(with whom was Petheram) for the plaintiff. It is part of the contract that the ship shall be at Alexandria on or about the day named, and it amounts to a warranty that she was so situated that she might be there, and under such engagements that she might be reasonably expected to arrive there at the date mentioned. What the words " on or about" mean, is shown in the case of Behn v. Burness (1 Mar. Law Cas. O. S. 178, 329; 8 L. T. Rep. N. S. 207; 3 B. & S. 751); there by a charter-party dated the 19th Oct. it was agreed that the ship now being in the port of Amsterdam, should sail to Newport for cargo. On 15th Oct. the ship was at a place sixty miles from Amsterdam, and could have reached the docks in twelve hours with ordinary weather, but owing to boisterous weather, she did not reach the docks until the 23rd inst. It was held that the words in the charter-party, "now in the port of Amsterdam," implied a warranty, and that as the ship was not in the port of Amsterdam at the time the charter-party was made, the charterer was justified in saying there had been a failure of performance of an essential condition, and in refusing to load the ship on her arrival at Newport. Secondly, the plea is bad, for the charter-party being in writing, cannot be varied or added to by any parol condition. Young v. Austen (L. Rep. 4 C. P. 553; 20 L. T. Rep. N.S. 396) is against me, but that case is disapproved of, and Brett, J. invites the court to overrule it in Abrey v. Crux (L. Rep. 5 C. P. 46). [KEATING, J.-We certainly sitting here should not overrule a decision of our own court.]

Butt, Q.C. and R. E. Webster for the defendant. There is no condition precedent that the vessel should be at Alexandria. It is a mere statement in the charter-party, that the vessel

is expected to be there about the 15th Dec. A statement of the tonnage of a ship in a charter-party is mere matter of description, and does not amount to a warranty: (Barker v. Windle, 6 El. & Bl. 675; see also Harris v. Mantle, 3 T. R. 307). And so here the statement is too vague to amount to a warranty, and distinguishable from Behn v. Burness (ubi sup.). It is necessary for the plaintiff to aver according to the true construction of the charter-party, that the defendant knew that the situation of the ship was such that she could not be expected to arrive. The third plea does not attempt to vary the words of the charterparty, but shows that the whole charter-party was subject to a condition that the vessel should fulfil her engagements, which she had at that time unfinished. [KEATING, J.-On that point we have made up our minds.

Day, Q.C. in reply.

KEATING, J.-With reference to the demurrer to the third plea, we have already expressed our opinion; it is decided by the opinion expressed by this court in the case of Young v. Austen (20 L. T. Rep. N.S. 396; L. Rep. 4 C. P. 553), and which case we entirely approve of. The remaining point for us to consider is with reference to the breach in the declaration. It alleges that the ship was not then expected to be at Alexandria about the 15th Dec. 1871, but was then in such part of the world, and under such engagements, that the ship could not perform her said engagements and arrive at Alexandria about the day. It depends whether the words "expected to be at Alexandria" are words of description, or are in the nature of a contract. I am of opinion they are in the nature of a warranty, and that the breach is therefore well assigned. No doubt the words are somewhat vague and uncertain, but I come to the conclusion they are part of the contract, and intended to be so. It is of the utmost importance to the charterer that he should know when to expect the ship to be at Alexandria, and such a statement one would expect to find in every charterparty. I therefore consider that the words "expected to be at Alexandria about the 15th Dec. 1871," mean she is in such a position that she may reasonably be expected to be there, else there would be no binding contract between the shipowner and the charterer, and the charterer would be at the owner's mercy. Here we do no violence to hold as we do. The proper construction is, that it is in the nature of a warranty, for breach of which there is a cause of action, and the breach is well assigned.

HONYMAN, J.-As to the third plea, I agree with my brother Keating, we are bound by the decision in Young v. Austen (ubi sup.). On the other question I consider the words used in alleging the breach as a matter of contract; they afford the only indication in the charter-party whereabouts the vessel is, and the only thing that affords the charterer any information when he will be likely to be able to ship his cargo. The words are not in the nature of description. In Gorrissen v. Perrin (2 C.B., N.S., 681), the words expected to arrive per a certain ship were held to be a warranty that the goods were then on their way. In Oliver v. Fielden (4 Ex. 135), by the charter-party it was agreed a new ship now about to be launched and ready to receive cargo in May, should load on board a cargo of timber, and it was there held that the readiness to receive a cargo in May was a

[C. P.

condition precedent to the plaintiff's right to recover for not loading a full cargo. I do not think that the words can be made out to be matter of description; there must therefore be judgment on the demurrer to the plea for the defendant, and on the demurrer to the declaration for the plaintiff.

Attorneys for plaintiff, Walter and Hanson.
Attorneys for defendant, Pritchard and Son.

Saturday, May 31, 1873. ROBINSON v. KNIGHT AND ANOTHER. Charter-party-Lump freight-Loss of part of cargo by excepted perils-Deduction of freight. By charter-party it was agreed that the ship should load a cargo of lathwood and a deck load, and "proceed to London and deliver the same, being paid freight as follows, viz., a lump sum of 3157.

the freight to be paid in cash, half on the arrival, the remainder on unloading and right delivery of cargo." The ship took her cargo accordingly, but on the homeward voyage the deck load was washed overboard and lost, by the excepted perils of the sea, without default of the shipowner. The rest of the cargo was rightly delivered;

Held, that the charterer was not entitled to deduct from the lump freight a sum proportioned to the amount of cargo which had been so lost, but that the whole freight was earned by the shipowner. The Norway (Bro. & L. 404) followed.

ACTION in the Lord Mayor's Court to recover a sum of 161. 198. 9d. for freight under a charter-party.

By charter-party of 3rd Oct. 1870, it was agreed between the owner of the ship Nile and the defendants, merchants of London, that the vessel should go to Riga there to load at two places named a full and complete cargo of lath wood, the ship to be provided with a deckload, and "that the ship so loaded shall proceed to London and deliver the same, being paid freight as follows, viz., a lump sum of 3157., the cargo to be taken from the side of the ship, freight to be paid in cash, half on the arrival, the remainder on unloading, and right delivery of cargo, less four months' discount."

The charter contained the usual clause, excepting losses by perils of the sea, &c.

The ship went to Riga, then loaded a full cargo with a deck load, and returned; but on the homeward voyage the deck load was, without default of the shipowner, washed overboard and lost by the perils of the sea.

The rest of the cargo having been delivered, the plaintiff claimed his lump freight, but the defendant sought to deduct therefrom a sum of 167. 198. 9d. in respect of the deck load lost, whereupon the plaintiff sued to recover the 167. 198. 9d.

The cause was tried by the Common Serjeant without a jury, when the defendants denied their liability to pay freight for the part of the cargo lost. Verdict for the 16l. 19s. 9d. Leave to move

to enter a nonsuit.

A rule having been obtained accordingly upon the authorities following, viz.

Wright v. Cowper, 1 Brownlow, 21;
Abbott on Shipping, 11th edit. 394;
Smith's Mercantile Law, 7th edit. 325;
Dakin v. Oxley, 15 C. B., N. S., 646; and

The Norway, 2 Mar. Law Cas. O. S. 17, 168, 254; 21
L. T. Rep. N. S. 57; Bro. & Lush, 377.

Grantham showed cause.-There was in effect a demise of the ship. The defendants have had the use of the whole vessel, and the plaintiff is entitled to the sum agreed upon for freight without deduction in respect of the part of the cargo which was lost, through no default on his part but, by the excepted perils. The Norway (2 Mar. Law Cas. O. S. 17, 168, 254; 12 L. T. Rep. N. S. 57; Br. & L. 377) was cited on moving the rule. There it was held that in all cases of short delivery under a bill of lading, a deduction may be made from the freight of such proportion as would have been payable if the goods had been delivered, and this, even though the freight be lump freight, but must, if necessary, be the subject of a separate action. But here the cargo was lost by excepted perils, which was not so in the Norway, and which distinguishes this case from that. [BRETT, J.-Dr. Lushington in that case says (2 Mar. Law Cas. O. S. 172), "The freight is lump freight, and it is urged on behalf of the defendant that lump freight cannot be apportioned, that the deduction would be difficult if not impossible to calculate, and consequently that the only remedy open to the shipper is that of an action for damages. On the other hand, Mr. Lush argued for the plaintiffs, that if there was any difference between lump freight and freight per tale, it was, that in the case of lump freight, if any part of the cargo shipped was not brought to the port of destination, the shipowner in an action for freight could not recover any freight at all, because he would not have observed his own part of the contract, and in favour of this proposition he cited the old case of Bright v. Cowper (1 Brown, 21). There seems to have been no recent decision on the point, and on consulting the various text-books on the subject, I find that they all speak donbtfully as to what would be decided if a case like the present was to arise, and the court must therefore fall back upon considerations of equity."] In Dakin v. Oxley (2 Mar. Law Cas. O. S. 6; 10 L. T. Rep. N. S. 268; 15 C. B., N. S., 268; 15 C. B., N. S., 646) it was held that it is no answer to an action by a shipowner against the charterer to recover freight, that, by the fault of the master and crew, and their negligent and unskilful navigation of the vessel, the cargo was damaged so as, upon the arrival at the port of discharge, to be then and there of less value than the freight, and that the charterer abandoned it to the shipowner. [BRETT, J.-There the whole cargo of coal arrived in specie, though damaged. But I find the Norway went to the Privy Council, and the loss of part of the cargo having been occaяioned by perils of the seas, the court held that, under the bills of lading and charter party, the master's lien on the residue for freight extended to the entire lump freight without deduction (2 Mar. Law Cas. O. S. 254; Bro. & Lush. 404). Now, there is a decision directly in your favour.1 It is. [BRETT, J.-But the charter was in somewhat different terms, for the sum of 11,2501. was to be paid as freight "for the use and hire of the ship."] A little stronger phrase than is to be found here, perhaps, but both cases are governed by the same principle. The payment here is in effect to be for the use and hire of the vessel. [BRETT, J.-It is clear from the judgment of Dr. Lushington that he put the case entirely on the ground of the jettison having been caused by the neglect of the master; and in the Privy Coun

[C. P.

cil the Court say (p. 257), “It is right to eld that we do not mean to express an opinion that, even if the jettison and sale had been attributable to the negligence of the master, there ought to have been a deduction. Perhaps in this case the proper remedy of the shipper would have been by a cross action."]

Cock in support of the rule.-In the Norway (sup.) there was a clear demise of the vessel, and Knight Bruce, L.J. (in the course of the argument, see B. & L. 406) pointed out that the shipper had had the full value of the use of the ship. Here, however, are no such precise words. The contract for lump freight was merely made with reference to the nature of the cargo, the quantity of which could not be so easily ascertained by piece as when bales, &c. are shipped. Logs of wood would doubtless vary in size a good deal; and, therefore, it would be more convenient to estimate them in bulk and say, "For the shipload of wood delivered, you shall pay freight 3151. And for so much as is not delivered a proportionate deduction may be made."

KEATING, J.-I think the rule must be discharged. This is a question which arises on the right of the shipowner to recover the whole of a sum described as lump freight, without any deduction in consequence of the loss of the deck cargo contemplated by the charter-party, which loss occurred through no default on the part of the shipowner. Now the charter was entered into on the 3rd Oct. 1872, and by it the ship was to go to Riga, and there to load, at two places named, a full and complete cargo of lath wood, the ship to be provided with a deck load. Then it provides "that the ship, so loaded, shall proceed to London and deliver the same, being paid freight as follows, viz. a lump sum of 3157., the cargo to be taken from the side of the ship; freight to be paid in cash, half on the arrival, the remainder on unloading and right delivery of cargo, less four months' discount." The ship took in a full cargo, and took the deck load contemplated by the charter. But that deck load was lost by perils of the sea and without any default by the shipowner. The question is whether the shipowner is entitled to recover the full amount of 315l., or whether there should be a proportionate deduction in respect of the freight payable on the deck load which was so lost without the default of the shipowner. Some things are quite clear in this case. There seems to be no doubt that, under this charter, if the charterers had loaded less than a full cargo, the shipowner would have been entitled to a payment of the whole lump freight. Can any real distinction in principle be established betweer. a deficiency in the cargo caused by cargo not having been originally put on board, or a deficiency caused by peril of the sea without default of the shipowner? It seems to me that there can be no such distinction in principle. The only case relied on in moving this rule seems to be that of the Norway decided in the Admiralty Court by Dr. Lushington, and afterwards taken to the Privy Council. We have before us the decision of the Court on the appeal. There, on a charter-party not altogether identical with this, but, on the other hand, not distinguishable in principle, the Jadicial Committee of the Privy Council held the shipowner entitled to the lump freight without any deduction in consequence of losses occurring without anything that could be charged as negli

C. P.]

gence in the shipowner. The terms there were, in every respect, very similar to those now in question; and it is to be observed that a portion of the lump sum was to be paid in advance, and the remainder on the true and sufficient delivery of cargo at the port of discharge, similar words to those in the present charter, yet, nevertheless, they held that the whole lump sum was recoverable, although part of the cargo was lost. In the Norway, as was pointed out by my Brother Brett, during this argument, Sir M. Vaughan Williams says, that although the charter expressed the sum to be paid as freight, yet it was for the "use and hire of the ship," and this lump sum was to cover both the out and inward voyage. Now, I do not think that that makes any substantial distinction between the two cases, because it was not the less one entire sum to be paid for one entire service. What was the service for which it was to be paid? Was it the bringing and delivery of all cargo which might be put on board, or bringing cargo which might be put on board, and was not, but without default of the shipowner? Sir E. V. Williams said," It was objected on behalf of the respondent that by the charterparty the remainder of the lump sum is made payable only on 'true and final delivery of the cargo at the said port of discharge.' But it does not necessarily mean that the whole cargo originally shipped must be delivered. It may well have been intended merely to fix the time for payment to be the time of the delivery of such cargo as the ship brings with her to the port of discharge (7 Mar. Law Cas. O. S., p. 257). It seems to me that the same construction can be put on this charter-party. I think the better opinion is clearly that where a portion of the cargo has been lost without any default on the part of the shipowner, he is entitled to be paid his lump freight, even although there has been a partial loss.

BRETT, J.—It is quite true that the terms of this charter are not exactly the same as those apparently were in the Norway. But in the pregent case I think that the freight is a stipulated payment for a gross sum for the use of the whole ship for the whole voyage. Under these circumstances the rule is that in the first place the gross sum will be payable, although the merchant has not fully laden the ship, for the owner has put his ship at the disposition of the freighter to load with a full and complete cargo, if the freighter so please, but if he did not so please, and the voyage be completed the shipowner will be entitled to the lump sum. He has under his contract given the use of the ship for the purpose of carrying a cargo to the extent the freighter chooses to put on board. Therefore, it seems to me, the charters in this case, and in that of the Norway, are the same. In the Norway, it may be observed the freight was called in both courts a "lump freight," and was so treated. I do not think that either under that charter, or under this, there was what is called a "demise" of the ship, the vessel remaining in both cases in the possession of the shipowner. But it is one gross sum for the use of the entire ship, instead of a sum to be paid for each part of the cargo carried. Then the fact that the freight is to be paid half on arrival and the other half on unloading and right delivery of cargo, as in the Norway, was relied on to show that it would be payable on the delivering of the cargo. What cargo? Such as the freighter

[C. P.

chooses to put on board. Now, in this case, it is admitted that the disputed part of the cargo was lost by perils of the sea, within the excepted perils-therefore, not only lost without default of the shipowner but, positively a loss within the exception. In the case of the Norway before the Privy Council, the court doubted whether even if the cargo was lost by the shipowner he would not be entitled to full freight, leaving the freig' ter to bring an action against him. But here the loss was without any default. Then, if this be in fact the same case as the Norway, that is a distinct authority for saying that the innocent loss of a portion of the cargo does not entitle the freighter to deduct any part of the lump sum. Although a decision of the Privy Council is not in one sense binding on us, I think that court has put the true interpretation on the contract, and that the freighter bound himself to pay the full sum of 3157. for whatever things were brought to England. (a) Rule discharged.

and

or

Attorneys for plaintiff, Webb and Pearson. Attorneys for defendants, Parson and Lee.

66

May 29 and June, 2, 1873.

or

or

and or

RODOCANOCHI AND OTHERS v. ELLIOTT AND OTHERS. Marine policy-Terrene risk-Goods shut up in beseiged town" Restraint of princes"-Notice of abandonment-Total loss. Plaintiffs effected an insurance with the defendants by a Lloyds's policy in the ordinary form." lost or not lost, at and from Japan Shanghai to Marseilles and and Leghorn London, via Marseilles Southampton, and whiist remaining there for transit" on silks against the usual perilsarrests, restraints, and detainment of princes," &c., and it was agreed that the silks should be shipped by any of three designated lines of steamers, one of which was the Messageries Imperiales. That company, as was well known to underwriters, always sent such goods overland through France, i.e., by the Lyons Railway from Marseilles to Paris, and thence by the Northern Railway to Boulogne, and thence to London. The silks were shipped at Shanghai for London on board a steamer of the Messageries Imperiales, and reached Marseilles on the 27th Aug. 1870. There was then, and from the 15th July previously had been war between France and Germany. The silks were despatched by the Lyons Railway and arrived in Paris on or before the 13th Sept. The German armies, which were at that time advancing upon and gradually surrounding Paris, on the 19th completely invested it, held military possession of all the roads leading out of Paris, and prevented communication between it and all other places, by reason whereof it was impossible to remove the silk from Paris. This state of siege continued, and on the 29th Sept., while the silks were detained in Paris, the plaintiffs gave notice of abandonment to the under

writers:

Held, that the policy covered the terrene risk of the transit through France, that the goods were lost by the perils insured against, viz., restraint of princes; that notice of abandonment was given in reason

(a) This case has been since followed by the Court of Queen's Bench in Merchant Shipping Company v. Armitage (L. Rep. W. N., June 14, 1873).