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Pril, Co.]

THE BOUGAINVILLE v. Tule James C. STEVENSON.

[Priv. Co.

which she did, until she put her helm hard-a- Straits of Gibraltar on the night of the 29th March. starboard to ease the blow of the collision, and She says, that at forty minutes past eleven on that the duty of the steamer wall to have kept that night, being eight miles from Tarifa light, clear of her, which although she might easily which bore W. by N., and steering W., and the have done, she failed to do.

wind, which was squally, being W. inclining to S., The learned judge of the Vice. Admiralty Court the night being clear but cloudy (it is not imheld both vessels to biance ;. the Bougainville, material to observe this), and proceeding at the because her lights did not give a uniform and un- rate of 8) knots an hour; while so proceeding a broken light over an-ace of the horizon of ten sail was reported right ahead, distant about three points from the stest. to'two points abaft the miles, apparently coming end on; but she says no beam as required. by. Articles 3 and 5 of the lights were visible. The course which she purRegulations for preventing Collisions at Sea, sued was immediately to port, and she appears which contributed to the collision ; and because from the evidence to have hard-a-ported almost she neglected to keep her course; the James 0. directly afterwards, by which she fell, before the Stevenson, because she did not make use of the collision took place, seven points off from her means ir ber pocket for keeping out of the way of original course. It is important to observe here the Bougainville, which means were sufficient and that there is no dispute at all that those on board woulq:-have accomplished that object, and would the steamer were perfectly aware that the vessel have been resorted to by a man of ordinary nau- right ahead of them was a sailing ship, and as the tical experience and prudence, as he was bound on learned judge of the court below remarked, they accertaining the Bougainville to be a sailing ship must have known perfectly well that she was to have slackened speed or stopped, or taken other coming directly through the Straits with the wind means to keep out of the way, and the neglect to directly aft. It is also important to observe that do so was a breach of Articles 15 and 16 of the the captain of the steamer entireiy misappreRegulations.

hended the existing regulation with respect to his From this decree the owners of both vessels duty in such circumstances. He says in his eviappealed; the owners of the James C. Stevenson dence, “I think that it was the duty of the other on the ground that she had by porting her helm vessel, although a sailiog vessel and myself a done all that was necessary to keep out of the way steamer, to have ported her helm, because she was of the Bougainville within Article 15; that she running free, and it is the rule of the road; and I was not bound tu stop and reverse, and that if sbe say that, although we were meeting each other took any erroneous measure, it was owing to the stem on.

It would be quite different if she had want of lights on board the Bougainville;—the been close hauled.” It is hardly necessary to state owners of the Bougainville on the ground that the that this opinion of the captain of the steamer is evidence showed that her lights were properly | directly at variance with the existing regulation placed, and that she kept her course after sighting of Article 15, viz., that if two ships, one of which the steamer until immediately before the col- is a sailing ship and the other a steamship; are lision.

proceeding in such directions as to involve risk of The facts and arguments are fully set out in the collision, the steamship shall keep out of the way judgment of the Judicial Committee.

of the sailing ship. The steamer ascribes this Milward Q.C. and Clarkson for the owners of collision to two circumstances; first, to the inthe James O. Stevenson.

visibility (if I may use such an expression) of the The Admiralty Advocate (Dr. Deane, Q.C.) and lights on board the sailing vessel-it not being Dr. Tristram for the owners of the Bougainville. disputed that she carried lights-their invisibility

April 24.-The judgment of the Court was de resulting from their improper position; and also livered by Sir R. PHILLIMORE.—This is an appeal to the sailing vessel having starboarded instead of from the decision of the judge of the Vice-Admiralty keeping her course. That is the case, stated Court at Gibraltar in a case of collision between a briefly, on behalf of the steamer. steamer and a sailing vessel. The collision took The case on behalf of the sailing vessel may be place in the Straits of Gibraltar, according to the also stated in a few words. She was a French iron best conclusion their Lordships can come to from barque of very large tonnage, and was coming from the evidence, somewhere about 8, miles east of the Cape of Good Hope to Marseilles. She says that Tarifa. The nature of the damage was this : The on this night, when she was due south of Europa sailing vessel ran into the steamer at right angles Light, and midway between it and Ceuta Light, 10 feet abaft the stem. The consequences of the she saw the white light of a steamer, which collision were very serious to both vessels, both proved to be the James C. Stevenson, two points being obliged to put into Gibraltar on account of on the starboard bow, and distant about three the damage they received. The learned judge of miles. Both vessels agree in putting the distance the court below found, upon the evidence, that at which they were mutually discerned at about both the vessels were to blame, and he made the three miles. She snys the wind was W.S.W., ono usual decree. From that decree appeals have been point on the starboard quarter, and her head was prosecuted to the Judicial Committee of the Privy E. by N. Then she gives an account of her sails. Council by both parties.

She says she bad her courses, fore and maintopIt will be convenient before stating the conclu- sails, maintop-gallant sails, and two gibs set, the sions at which their Lordships have arrived, to starboard clew of the mainsail being hauled up. notice in the first instanco the case of the steamer She gives the same account of the night that the who appeared as the first plaintiff here, and also in other vessel does. She says that the white light the court below. She was called the James O. Steven- of the James C. Stevenson was discovered at 11:35, 8on. She was a screw steamer of 1226 tons, and 250 and that she was supposed to be steering west; horse power, and was sailing from Calcutta with a that shortly afterwards the red light of the James general cargo for London. She passed through C. Stevenson was observed, that her course was the Suez Canal and arrived at the entrance of the i pot discovered by those on board the sailing vessel Priv. Co.]

THE BOUGAINVILLE v. THE JAMES C. STEVENSON.

[PRIT. Co.

until the steamer was seen at about 300 yards have enabled her before she took the decided step distant. Then she says that the Bougainville had of porting to ascertain on what side the sailing hitherto been kept on her course supposing that vessel was going. It is not necessary, in their the steamer would keep out of her way, but upon Lordships' opinion, therefore, to inquire whether the hull of the James O. Stevenson

eing dis

it would have been a prudent course her part, covered, and it being found that she was coming if she elected not to wait, to have starboarded on at right angles towards the bows of the Bou- instead of porting, by which manæavre she cut in gainville, and it being then evident that a collision between the ship and the lee shore at the rate of was inevitable, the helm of the Bougainville, was seven knots an hour. Their Lordship’s think that put hardto starboard, but the Bougainville only fell the finding of the learned judge on this part was off one point before the collision. Now she on her perfectly correct, and will advise her Majesty that part ascribes the collision to these three circum- it be affirmed. stances, that is by her pleading and by the argu. There then remains the other part of the ment of her counsel. She says that the collision case, upon which the greater part of the arga. was caused by the rash and improper conduct of ment has been addressed to their Lordships, the steamer in not waiting to ascertain what namely, as to whether, in the circumstances of course the sailing vessel was taking; she says this case, it must not be holden that the conduct that the steamer ought at all events to have re- of the sailing ship contributed to the collision ? versed her engines, which would have been one First, as to the contribution of the collision, which mode of preventing the collision ; and lastly, the is said to have been made by the absence of the ship says that if the steamer did not choose to proper lights, that is to say, by the lights not wait, she ought in the first instance to have star- being placed in a position in which they were boarded instead of ported.

visible. The law does not require any particular In considering this case, it will, I think, be place at which the lights should be affixed ; though convenient to assume in the first instance that no doubt it does require that they should be so the lights were not visible. On that assump- placed as to be properly visible within the scope of tion what, according to the 15th Article, was the regulations upon that point; but no particular the clear duty of the steamer ? It was to get place is pointed out. The evidence in this case out of the way of the sailing vessel. What establishes these points with regard to the lights, getting out of the way is must depend, of first, that they were carried, and secondly, that course, on the circumstances of each particular they were proper lights, properly screened ; and case. It may be by porting, it may be by star. their Lordships incline to the opinion that it also boarding it may be by stopping. But according to is proved that they were carried in the place in her own version of the story, the steamer was which they were usually carried by French vessels. aware that the sailing vessel was coming directly There has been considerable discussion upon the through the Straits with the wind directly aft, evidence as to whether the testimony of the master but she says that owing to the absence of her of the ship be credible with regard to the cutting lights she had no indication of what course the or arching of the foresail, which, according to his sailing vessel was pursuing. That vessel was evidenco, to which he was not cross-examined, going at the rate of 8} or 9 knots an hour, and and according to the evidence of another witness, their joint speed must have been something like was expressly done for the purpose of rendering 17 or 18 knots. Being, as she says, in uncertainty these lights visible. The vessel was a very large as to the course the sailing vessel was steering, it ship, and she had come all the way from Calcutta, was surely not the part of a prudent master imme. and the presumption is in favour of her statement diately to take the active and decided step of porting, as to the lights. It may here be observed that if at the rate which she was then going, of between the allegation were correct on the part of the eight and nine knots an hour, which would carry steamer, that the sailing ship had contravened her to the opposite coast across the bows of the the rule of navigation in not keeping her course, ship. If she was in doubt as to the course of the but in starboarding, it is quite clear that that vessel approaching her, as she says, stem on, or a position is fatal to the other contention that her little upon a starboard bow, and as the evidence green light was not visible, because, if the sailing in their Lordships' opinion seems to prove rather vessel had starboarded earlier than she said she more than that, between one and two points on did, unquestionably, by that manœuvre, she must her starboard bow, surely it was the part of a have shown her green light, which it is proved prudent master to have waited until he could was carried, and which it is proved was of proper ascertain which course the sailing vessel was pur- quality. She must have shown her green light to suing. The 16th Article seems to be precise upon the approaching steamer, and have given her that this point. “Every steamship when approaching information of which she complains that she was another ship so as to involve risk of collision, shall deprived. The learned judge of the court below slacken her speed.” There is no reason why she seems, on the whole, to have come to the conshould conceive that the ship was going to the clusion that there was a deficit probatio, upon this Moorish side of the Strait, although some sug- particular and material point, that it was incumgestions were made to that effect. In their Lord.

bent upon the sailing vessel to have proved by ships' opinion, therefore, the judge came to a pere more conclusive evidence than she adduced, that fectly sound conclusion upon this part of the case, these lights so placed in the stern of the vessel that is in holding that upon the steamer's own were visible by the circumstance that the foresail statement, upon the assnmption that the lights was cut or arched in the manner described. The were not visible owing to their improper position, learned judge seems to have come to the connevertheless, she sinned against the rules of navi- clusion that there was not sufficient evidence to gation laid down for preventing these unfortunate warrant him in thinking that this point was collisions by not slackening her speed, or waiting, established, and therefore to have decided on that or taking any of those precautions which would ground principally that the ship contributed to Priv. Co.]

The ADA; THE SAPPHO.

[Priv. Co.

this collision. Their Lordsbips do not think it

Friday, April 25, 1873. necessary to express any opinion as to the con

(Present: The Right Hons. James W. COLVILE, clusion at which they might bave arrived if this

Sir BARNES PEACOCK, Sir MUNTAGUE SMITH, and particular matter had come before them as a

Sir ROBERT COLLIER.) court of first instance, whether they would or would not have been satisfied with the evidence

THE ADA; TIE SAPPHO. which was produced on bebalf of the sailing vessel

Collision-Crossing vesselsTaking pilot-Special, to the effect already stated, because their Lord.

circumstances-Regulations for preventing Colships are clearly of opinion, after consulting with

lisions at Sen-Arts. 14, 16, und 19. their nautical assessors, and after a review of the whole circumstances of this case, that the sailing

Two vessels bearing down at the same time from vessel coming through the strait with the wind,

different directions upon a well-known pilot as described, was perfectly and clearly seen at a

station to take pilots on board are to be treated as distance of three miles as stated by the steamer,

crossing vessels within the meaning of Art. 14 but at all events between two and three miles ;

of the Regulations for Preventing Collisions at that upon the assumption that the lights were not

Sea, if their courses, if continued, would intersect; visible, it was still the duty of the steamer not to

and the fact of their seeking pilots at the same take that decided course wbich she did take, in

place is not such a special circumstance within perfect ignorance, according to her own statement,

the meaning of Art. 19 as will take them out of as to which way the sailing vessel was proceed

the operation of the rule requiring that the ship

which has the other on her own starboard hand ing; that it was very imprudent, rash, and careJess navigation, and was the real cause of this

shall keep out of the way of the other. collision ; and even assuming that the lights were

Where a vessel is approaching a pilot station to take placed in a wrong position, and therefore were not

a pilot, and has, as regards another vessel doing visible, their Lordships are of opinion, upon the

the same thing, the right to keep her course, she particular circumstances of this case, that it would

has a right to keep sufficient headway on her to not be right to come to the conclusion, that the

give her steerage way, 80 as to get on her proper invisibility of those lights could, in any legal

course after taking a pilot, and is not bound

within Art. 16 to stop and reverse. The other sense of the term, and according to the judgments upon the question of contribution to negligence,

vessel is bound to stop and let her take her nroperly be said to have coutributed to this col.

pilot, or to take some other means of avoiding

her. lision. Their Lordships bare not failed to consider

This was an appeal from a decree of the High the point which was urged on behalf of the Court of Admiralty in cross causes of collision, steamer, that the starboarding of the sailing instituted by the owners of the steamship Sappho vessel might have contributed to this collision against the steamship Ada, and by the owners of Their Lordships are clearly of opinion upon the

the Ada against the Sappho. The place of collision evidence that the starboarding was done at so late

was the mouth of the Humber; both vessels were a period as to take it completely out of the cate

bound for Hull, the Ada coming from the southgory of any contribution to the collision; indeed east, and the Sappho from the north-east, and both if the starboarding had been at an earlier period

were approaching a pilot cutter lying at anchor to it is fatal to the contention of the steamer, that

pick up a pilot. The learned judge of the High she was not apprised by seeing the green light

Court of Admiralty held that the vessels were to of the course which the other vessel was pur

be treated as crossing vessels. under Art. 14 of the suing; because the dilemma is obvious ; if the Regulations for preventing Collisions at Sea, and starboarding took place at an earlier period, then that the fact of approaching a well-known pilot the green light, which is proved to have been

station was not such a special circumstance as there, must have been seen; if the starboarding

took them out of the operation of the rule, and tock place, as we are inclined to suppose, at a

that the Ada haring the Sappho on her cwn sturlater period, then there was no contribution to

board hand, was bound to keep out of the way, the collision by that manœuvre at that late

and that the speed of the Sappho was not period in the history of the case.

improper, and pronounced the Ada alone to blame. Their Lordships will therefore humbly advise her

The facts and judgment are set out in the re. Majesty that the decree of the judge of the Vice

port of the casa below : (ante vol. 1, p. 485; Admiralty Court should be varied so as to pro

27 L.T. Rep. N. S. 718.) From this decree the nounce that the steamer is alono to blame for this

owners of ihe Ada appealed on the ground that collision. We think that the costs must follow

the Ada having the right to approach the pilot this decision, and that the sailing vessel will be

cutter to take a pilot, also had a right to expect entitled to her costs both here and in the court that the Sappho would be navigated as to avoid below.

risk of collision under the special circumstances Decree varied accordingly.

of the case. Solicitor for the owners of the James C. Steven- Milward, Q.C. and W. G. F. Phillimore, for the 8on, Thomas Cooper.

appellants. The master of the Sappho, seeing a Solicitors for the owners of the Bouguinville, ship there for the lawful purpose of taking on Cole, Cole, and Jackson.

board a pilot, was bound to allow that ship to approach for that purpose, and to take steps to Avoid her whilst getting a pilot. If the Ada was stopped and lying to for a pilot, the vessels were not crossing vessels within the meaning of Art. 14 of the Regulations for preventing Collisions at Sea. At any rate such a state of things was a special circumstance within Art. 19, which ought Priv. Co.]

THE ADA; THE SAPPHO.

[Priv. Co.

to have obliged them not to throw all responsibility the Ada bad the other vessel on the starboard of avoiding a collision upon the Ada. These bow, and therefore if they were crossing vessels, vessels were not on a course in the sense of Art. it was her duty to keep out of the way of the 14. The way a ship's head is pointed at any given Sappho. Now, their Lordships think that they moment does not constitute her course; her were crossing vessels within the meaning of the course is the direction in which she should be rule, because both were of necessity directing navigated to reach a given point. If tbis given their courses to one point. That point would be point is known to another vessel, she should act the point of intersection of the two courses if upon that knowledge. Both vessels were bound prolonged. It was not, as was put in the arguup the river to Hull, and each must, with the ment, a case in which one vessel might have knowledge of the other, take a pilot at the one proceeded up the north side and the other up the place; for that purpose they must bear down south side of the river, because there was the upon one place and stop, oud, having got their necessity imposed upon each of going to this one pilot, change their directions to proceed up the point in order to procure a pilot. It appears to river. Hence, neither could be said to be on a their Lordships that the vessels were properly course after stopping, until they went a-head to go treated by the learned judge in the court below as up the river. The Ada was entitled to keep her falling within Art. 14 of the regulations, and it course along the left bank of the river, and the appears equally clear that the learned judge was Soppho in crossing over had no right to interfere right in holding that the Ada had failed in the with that course : (The Velocily, L. Rep. 3 P.C. 44; duty imposed upon her by that rule, and that 21 L. T. Rep. 686; 3 Mar. Law. Cas. 0. S. 308). there were no special circumstances taking her out If these vessels were approaching each other so as of the operation of the rule. to involve risk of collision, then it was the duty of In dealing with the disputed question of speed, the Sappho to have stopped and reversed at an the learned judge relied upon the captain of earlier period.

the pilot vessel, who was on board his own Butt, Q.C. and Clarkson, for the respondents, pilot vessel. As regards the speed of the two were not called upon.

vessels, it appears to their Lordships that he The judgement of the court was delivered by was in the best position to judge-more par. SIR J. W. TOLVILE — Their Lordships do not think ticularly with regard to the Sappho's speed. it necessary to go at any length into the facts Standing on the deck of his own vessel at archor, of the case, as they clearly appear upon the and evidently having his attention directed to judgement of the court below, and the main features the movements of the two vessels, he could best are not in dispute.

judge of their speed, and their Lordships thereThe first argument upon which the appel- fore adopt without hesitation bis statement that lants rely in order to disturb the judgment of the speed of the Sappho was 1} knots through the the High Court of Admiralty is that it is water, and therefore about three knots per hour erroneous to treat these vessels as crossing over the ground. It also appears to their Lordvessels, as they were not, when they first sighted ships to be made out by that witness that the Ada each other, crossing vessels so as to involve was not motionless (as represented by some of the risk of collision, and consequently not within Art. witnesses) at the place where she stopped expecting 14 of the Regulations for preventing Collisions at a pilot, but she had decided head way on her, and Sea; and that even if they did become crossing was approaching both the Sappho and tbe pilot vessels it was by the fault of the Sappho, wbich cutter. The rate of speed attributed to her was had by improper navigation created the state of nearly as great as that of the Sappho, namely, 13 things. Upon that view, of course, it would be knots through the water, but she was coming the duty of their Lordships, provided they were across the tide. satisfied that it was correct, to advise Her Majesty Now, it appears to their Lordships that upon that the Sappho was solely to blame. The other this state of facts two questions arise : first, was branch of the argument was that both vessels were the Sappho justified in getting so far past the within the operation of Art. 16 of the regulations ; pilot cutter as she certainly did, as shown by that they were approaching each other so as to the place where the collision occurred; and, involve risk of collision, and that it was, therefore, secondly, was the Ada right in advancing so the duty of each to slacken speed, and if necessary, near to the pilot cutter, or in fact in going ahead to stop and reverse; that the Sappho certainly, at all under the circumstances ? As regards the and perhaps the Ada, bad failed in that duty, and first question, their Lordships are of opinion, and both were to blame. If both failed in that duty, their opinion is confirmed by that of their nautical and the breach of t.bat duty was the cause of assessors, that if there had been no question at all tbe collision, then, of course, both would be of another ship, which is the fair way to treat the in fault, and the loss would have to be divided. matter, it would have been the ordinary and

In dealing with these arguments, their Lordships proper course of navigation to keep such headway think it desirable to consider whether the vessels as she is represented to have had in order to were crossing vessels within the meaning of the enable her in getting a pilot on board to turn and 14th Article, and, consequent thereon, if the follow the proper course of the river up to Hull; assumption which seems to have been the ratio that is, baving come as far over as the place where decidendi in the court below was correct. Their the pilot cutter is represented to have been moored, Lordsbips are of opinion that it was correct. It to turn up towards the Spurm Light, so as to get appears that both vessels, the one coming from into the proper course of navigation; and that in the northward, the other from the southward, and fact both vessels, situated as they were, would have both bound to Kingston-upon Hull, were under had to follow the same course up the river from the necessity of proceeding to the same point where that point. Their Lordships, therefore, cannot say the pilot vessel was moored. It appears to their that the allegation is made out that the Sappho Lordsbips on the evidence that when first sighted | improperly threw herself into the way of the other

Priv. Co.]

Brown (app.) v. GAUDET (resp.); Cargo ex Argos.

[Priv. Co.

vessel, and in fact created the risk of collision which otherwise would not bare existed. On the other hand, if the vessels were crossing vessels, as their Lordships think they were, and, as their Lordships also think, and the event has shown, vessels crossing 'so as to involve risk of collision, it seems to their Lordships that it was the duty of the Ada to have become absolutely motionless at a far earlier period than that at which she is said by some of the witnesses to have stopped, and this when it did, or ought to have, become clear that the Sappho was coming inside the pilot vessel, and therefore would be the first to take the pilot, to have had the means of reversing her engines, and keeping out of the way. If she could not have done that, and their Lordships can see no reason why she could not, then she ought to have been navigated differently, and have been kept out of the way by some other means. No doubt both vessels at the last moment, and when too late, did reverse their engines, but that does not show, in their Lordships' opinion, any contributory negligence on the part of the Sappho, if she was pursuing, as their Lordships think she was, her ordinary course, keeping no more headway on her than was necessary to give her steerage way enough to put her upon her proper course of navigation.

Under the circumstances of the case their Lord. ships must humbly advise Her Majesty to affirm the judgment under appeal, and dismiss the appeal with costs.

Appeal dismissed.
Proctors for the appellants, Dyke and Stokes.

Proctors for the respondent, Pritchard and Sons, for J. and T. W. Hearfield, Hull.

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of shipowner and merchant-Master's authority Demurrage-Expenses-Back freight. The duty of a shipowner to deliver goods at the

usual place of delivery of a port, to which he has contracted to carry under a bill of lading stipulating only that the goods shall be delivered at the port without any particular part of the port being named, is an implied duty only, and does not amount to any engagement to go to the usual place in all events and under all circumstances. The shipowner's express contract is to deliver in the port, and if it be impossible to deliver at the usual place of delivery by reason of the prohibition of the port authorities, or other accidental cause, the contract is not dissolved, but may be performed by the master being ready to give delivery at some other convenient part of the port, and keeping the cargo in that place for a reasonable time ready for delivery, and the shipowner will thereupon be

entitled to his freight. A bill of lading by which a shipowner contracts to

deliver at a port, the goods to be taken out within 24 hours after arrival or pay demurrage,. does not absolutelyrequire that the shipownershould be ready, not merely to deliver, but also to land the goods in the port, or that the merchant should be able, on receiving them, to land ther, but it casts upon the merchant the duty of taking the goods out of, or, at all events, from alongside, the ship; hence, if it should be impossible to land the goods, by reason of a prohibition of the port authorities, the shipowner may still perform his part of the contract if he be ready to deliver the goods to the merchant in the port without landing them. The master of a ship being, in many cases of accident

and emergency, the agent from necessity of the owners of cargo where he cannot obtain instructions from them, has not only the power, but a duty cast upon him, to act in such cases for the safety of the cargo in such manner as may be best under the circumstances in which it may be placed, and is entitled as a correlative right to charge the owner of the cargo with the expenses properly incurred in so doing. The obligation on the part of the master to act for the merchant does not cease after a reasonable time for the latter to take delivery has elapsed, and hence after such time, if it be impossible to land and warehouse the goods, or to leave them at their port of destination, the master may, in the absence of all advises, carry or forward thein to such place, even back to the port of shipment, as is most convenient to the owner, and charge him with the expense of so doing. Wher goods carried under a bill of lading, by which

the shipowner is to deliver at the port of destination, and the merchant is to take them out within 24 hours or pay demurrage, cannot be landed at, but may be delivered within, that port, the shipowner cannot recover from the merchant demurrage and expenses claimed in respect of attempts to land the goods at other ports, before he is ready to give delivery at the port of destination ; but he may recover expenses incurred, after he is ready to give delivery at that port in hiring a vessel to store the goods, if thereby the merchant is relieved from the demurrage payable in respect of the detention of the

ship. This was an appeal from a decree of the High Court of Admiralty, affirming on appeal a decree of the City of London Court Admiralty jurisdic

May 2, 3, and 30, 1873. (Present: The Right Hons. Sir J. W. COLVILE,

Sir BARNES PEACOCK, Sir MONTAGUE SMITH, and

Sir R. P. COLLIER.) Brown (app.) v. GAUDET (resp.); CARGO ex Argo (a). Carriage of goodsBill of lading-Port-Usual

place of delivery-Impossibility of performaceLanding goods—"Goods to be taken out."--Duty

(a) The decision in this case, and the legislation upon which it is founded, carry out a principle of maritime law which seems to be in full force in almost every country except our own, viz., that whilst the ship is bound to the cargo for the performance of the contract, the cargo is equally bound to the ship. Before the recent Acts giving maritime jurisdiction to the County Courts the only means a master or shipowner had of enforcing a lien upon goods was to retain possession of them until security given to answer his claim. Now he may proceed in rem against the goods themselves, and so enforce his lien. This assimilates the practice in this country to that of the United States : (See Parsons on Shipping, vol. 1, p. 174, and notes.) The extraordinary condition of English law in the question of liens for freight and expenses has already been noticed in a note to the case of Mors-Le-Blanch v. Wilson (ante vol. i., p. 605). The County Court is the only court in this country with jurisdiction to enforce such a lien by a proceeding in rem. Whether the new Judicature Act will, by uniting all jurisdiction in one court, revive any former powers which were exercised by the High Court of the Admiralty,but prohibited by the common law courts, is a question which will, no doubt, be raised in due time. A proceeding in rem being merely a form of procedure, it is quite possible that the High Court might by its rules give the remedies which can now only be obtained through the County Court.-En.

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