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tion). The suit was instituted in the City of London Court by the following precipe:

We, Cattarns, Jehu and Cattarns, attorneys, hereby institute a suit for freight, demurrage, and expenses on behalf of Jules Gaudet, of No. 73, Lower East Smithfield, owner of the steamship or vessel Argos, against 147 barrels of petroleum late shipped on board the steamship Argos by W. Horner, but now lying at Plaistow Wharf, Plaistow, in the county of Essex, owner or owners unknown in the sum of 2001. ; and we consent, &c. Dated 28th of Dec., 1870.

To this suit an appearance was entered on behalf of Walter Horner Brown, the owner of the petroleum, and bail was given in the sum of £150. The cause was heard in the City of London Court upon the following

STATEMENT OF AGREED FACTS.

The plaintiff, who trades under the style of Gaudet Frères, was, in the month of November, 1870, the owner of the British steamer Argos, and of other steamers which were frequent traders between London and Havre, and other ports in the North of France.

The defendant, Walter Horner Brown, is a merchant in Billiter Square, dealing in petroleum, oils, chemicals, and other articles, trading as Walter H. Brown and Co., and on the 25th November he received an order from Messrs. Tuffieré and Prudhon, of Rouen, for two hundred barrels of petroleum, to be delivered free on board, in London, and to be sent to Havre as soon as possible.

In consequence of this the defendant, on the same day sent his clerk to the plaintiff's London brokers (Messrs. Rowell and Racine), to inquire the freight of petroleum from London to Havre, and the probable date of sailing of the next steamer, and was informed the freight would be 158. to 208. per ton, and the steamer would sail about the end of the week. The defendant thereupon arranged to send 147 barrels of petroleum by such steamer, and the same was shipped on board the Argos, on the 5th December, and the captain gave the defendant the following bill of lading :

Shipped in good order, and well conditioned, by W. Horner, in and upon the good steamship called the Argos, whereof is master for the present voyage," Richardson," and now riding at anchor in the river, and bound for Havre, 147 barrels of petroleum. The goods to be taken out

Washington, 1/147

Freight 21 13 Primage 332

£24 4 5

Exchngef.25.40

All goods

within 24 hours after arrival, or pay 10l. 108. a day demurrage... 421cwt. Oqrs. 9lb. Being marked and numbered as in the margin, and are to be delivered in the like good order, and well-conditioned, at the aforesaid port of Havre, the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, machinery, boilers, steam and steam are subject navigation, of whatever nature or kind to a landing charge of 3 soever, excepted, unto order or to their per cent. on assigns, on paying freight for the said the amount goods at the rate of 20s. and 15 per cent. of freight primage per ton gross, with primage and and primage average accustomed. In witness whereof payable au change de the master or purser of the said ship hath f. 25.40. affirmed to two bills of lading all of this tenor and date, the one of which bills being accomplished the others to stand void. Dated in London, 30th November, 1870. Weight and contents unknown. Not accountable for leakage.

W. J. RICHARDSON.

The said bill of lading was by direction of the

[PRIV. CO. defendant made out in the name of W. Horner, his two first names.

Upon the 6th December the defendant applied to the plaintiff's brokers for the name of the ship's broker at Havre, and was informed it was M. H. Généstal, Rue d'Orleans, Havre. Defendant thereupon wrote him the following letter, which was duly received by Généstal, but of which the plaintiff had no notice.

11, Billiter Square, 6th Dec., 1870. Monsieur H. Généstal, 73, Rue d' Orleans, Havre. We beg to inform you that we have shipped upon the steamship Argos,

Washington, 147 barrels of spirit of petroleum,
1/147
21,392 kilogrammes,

to order. These spirits are to be sent to Messrs. Tuffieré and Prudhon, at Rouen, and you must not deliver them unless they present the regular bill of lading endorsed by us.

The freight and other expenses are to be charged on the goods.

Accept, Monsieur, our salutations.

W. H. BROWN & Co.

The Argos sailed with the petroleum and other goods, being a general cargo, at midnight on the 6th December, arrived at Havre 10:30 p.m. on the 7th, and, being unable to land the cargo there, the captain proceeded to Honfleur; and being unable to land it there, he took the ship to Trouville, and was informed there he might land it there if he obtained a certificate from the engineer of bridges and ways resident at Honfleur; and the captain thereupon went to Honfluer, and obtained the following certificate :

Honfleur, le 8 Décembre, 1870. L'Ingenieur Ordinaire de l' Arrondissement du Nord Est.

A Monsieur, L'Ingenieur Soussigné a envoyé le steamer Argos à Trouville à cause du danger tout particulier en ce moment qu'offre la présence du pétrole sur les quais à côté du matériel de guerre en chargement pour le Havre. Le Soussigné à écrit à ce sujet M. Dubose une lettre qui lui parviendra demain matin et qui indique les precautions à prendre sous le benefice de ces precautions et en installant de suite un garde-feu à bord pour empêcher.

M. Dubose peut faire entrer le steamer Argos en bassin ce-soir a la marée.

E. ARNOUX, L'Ingenieur Ordinaire.
Arrondissement du Nord Est,

Ponts et Chaussées, Departement du Calvados. The captain, under this authority, took the ship into the basin at Trouville Deauville, where he remained during the 9th, and was on the 10th compelled to go out of the basin; and the President of the Municipal Commission of Trouville Deauville, endorsed on the engineer's authority the following certificate:

Nous President de la Commission Municipale de Deauville certifions que nous avons été obligés malgré l'autorisation de Monsieur l'Ingenieur d'Honfleur de faire sortir du bassin de Deauville le navire Anglais Argos chargé de pétrole, le population s'opposant au déchargement du dit navire et menaçant de se laisser entraîner à des excès. (sd.) HEBERT DEROCQUETT, Le President de la Commision Municipale, Le Membre Délégue.

Deauville, 10 Décembre, 1870. Upon that the captain went to Honfleur, and the following protest was noted before the British Consul there, and the statements therein are to be taken as true:

Vice-Consulat Britannique à Honfleur. By this public Instrument of Protest be it known and manifest unto all whom it doth or may concern, that on the 10th Dec. 1870, before me, British Vice-Consul for the port and district of Honfleur, voluntarily

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came and personally appeared William John Richardson, master of the British steamship or vessel called the Argos, of London, official No. 60,839, of the burden of 109 tons, or thereabouts, then lying in the port of Trouville-sur-Mer, in the consular district of Honfleur, laden with petroleum, who duly noted and entered his protest with me, the said Vice-Consul, against all losses and charges he incurred for not being allowed to unload his cargo in the port of destination and two other ports, by the local authorities of these ports, and did declare, depose, and say, That he sailed from London on the 6th Dec., present month, at midnight, with a cargo of petroleum, in destination for Havre, where he arrived on the 7th, at 10:30 p.m., having the red flag up on account of having petroleum on board, and that early in the morning of the 8th Dec. the authorities at the port of Havre compelled him to take the ship out of the harbour, as they would not allow him to remain there, having petroleum on board, and in consequence of which he started immediately, at 10:30 p.m., for Honfleur, where he arrived at 11:30a.m., and having swung the vessel, and was about to make her fast in a position where the pilot told him, he received an order from the harbour-master to leave immediately the port, and therefore he did leave, at noon, for the next nearest port, which was Trouville-sur-Mer, and where he arrived at 1:30 p.m. And the said appearer did further declare, that on arriving at Trouville he found a difficulty for the unloading of the petroleum from the port or harbour-master, or principal of the port, who informed him that he would allow him to unload the petroleum if he could obtain a permission from the Ingenieur des Ponts and Chaussées, residing at Honfleur; and in order to hasten the despatch he immediately employed a cab, and started himself with the broker, M. Hébert, to Honfleur, and obtained the required permission, and after which he returned to Trouville, and put the ship in dock next day (Friday, the 9th), waiting further instructions. And further, that to-day (Saturday, the 10th), he met with some objection from the part of the president of the Municipality Administrative Commission of Deauville Trouville, for the landing of the casks in question; and after having made further steps in the case before other authorities he had been ordered to leave the port of Trouville as soon as possible, without landing any of the casks of petroleum, and in consequence of which he went to Honfleur at 3 p.m., in order to deposit, note, and enter his present declaration and protest at this Vice-Consulate with all reserve, to furnish further particulars if required. And therefore the said William John Richardson, master, did declare to protest, and by these presents he does solemnly protest against all and every person or persons whom it doth, shall, or may concern, against all loss of time and charges incurred by the above-mentioned opposals of landing his cargo he met in these three different ports, and doth declare that all damages for delay or detention, and all losses and charges, are and ought to be borne by the merchants and freighters interested, and reserves for himself and his owner all rights against them. And I the said Vice-Consul, at the request of said William John Richardson, master of the said steamship Argos, did and do hereby solemnly protest against the same, in the manner and form aforesaid.

Thus done and protested in the City of Honfleur, at the British Vice-Consulate.

On the 9th Dec., M. Généstal wrote to the defendant as follows:

:

Havre, 9th Dec., 1870. Messrs. Walter H. Brown and Co.,

11, Billiter-square, London.

Your letter of the 6th I have received to-day only. For some time the entry into the port of Havre has been refused to ships carrying petroleum. I have attempted in vain to discharge the 147 barrels at Honfleur, and been compelled to send the Argos to Trouville, where I hope to be able to disembark it. Rouen has been occupied by the Germans, and I have not yet heard from Messrs. Tuffieré and Prudhon. If a judicial sequestration could be obtained at Trouville, he (the officer appointed by the court), would take care of the goods, and he would only deliver against presentation of a regular endorsed bill of lading, and after payment of the freight, and all other expenses.

I cannot truly comprehend how the buyers at Rouen should have directed this petroleum to go to Havre, since

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it has been forbidden in the newspapers to discharge such goods here, and that for more than two months. Accept, gentlemen, my sincere salutations. H. GÉNÉSTAL.

The plaintiff and defendant were throughout personally quite unaware that there was any difficulty in landing petroleum at Havre.

The Argos having other cargo in her, Mr.Duprey, on the part of Généstal, hired a lighter, called the Augustine Amélie, in order that the petroleum might be transshipped into her in Havre outer harbour, or the roads, while the Argos went into dock to unload her other cargo; and the following agreement was entered into:

Havre, le 12 Lec., 1870. Entre le Capitaine Ponetre de sloop Français Augustine Amélie d'une part.

Et M. Généstal, agent du steamer Anglais Argos, d'autre part, a été convenu et reglé ce qui suit.

Le Capitaine Ponetre s'engage à recevoir et garder à son bord jusqu'à Samedi 17 courant 147 futs essence de pétrole les dits futs à transborder dans l'avant port ou en rade du Havre a bord du steamer Anglais Argos.

Il est bien entendu que le Capitaine Ponetre gardera son navire à disposition, de maniére à ce que le transbordement s'opérer sans aucun retard et des la sortie du port du dit steamer Argos, moyennant quoi il lui sera à titre de fret â forfeit la somme de deux cent cinquante francs. PONETRE.

Fait double au Harve, 12 Dec., 1870.

On Monday, 12th Dec., the Argos arrived in Havre Roads, when the captain found permission had already been obtained to enter the outer harbour, and having entered the outer barbour, he transshipped the petroleum into the lighter.

Immediately on the arrival of the Argos in Havre outer harbour the transshipment of the petroleum into the lighter was commenced, and was finished at 4:30 p.m. on the same day, and at midnight the Argos entered the dock, and was moored alongside the quay, whilst the remainder of her cargo was discharged, and a fresh cargo shipped for London; and on the 16th, a fresh cargo having been loaded, the Argos came out of dock, and having re-shipped the petroleum, as she was obliged to do by the port authorities at Havre, sailed again for London, where she arrived at 9 a.m. on the 18th Dec.

During the whole of this time no bill of lading was presented to the captain or officers of the Argos, nor was any request made for the delivery of the goods. In the ordinary course of business petroleum would be delivered on the quay at Havre, on presentation of the bill of lading. In this case it would not have been possible for the captain to have landed on the quay, even if the bill of lading had been presented. M. Généstal was well aware at the respective times that the Argos was in dock and moored alongside the quay, and of the various movements of the ship, and of the petroleum having been put on board the lighter.

By reason of the hereinbefore-mentioned circumstances the plaintiff was put to the following expenses :

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And he also claims the following amount of freight :

Freight to Havre Freight back to London

£24 4 5 24 4 5

And he also claims five days' demurrage for the detention of the Argos whilet engaged in travelling from port to port, which, at £10 10s. per day, as per bill of lading, amounts to £52 10s., and she also consumed on her extra journey 5 tons of coal, which, at 18s per ton, amounts to £4 103.

On the 16th December Messrs. Rowell and Racine, the brokers in London for the Argos, wrote Messrs. W. P. Brown and Co. the following letter:

90, Lower Thames-street, London, Messrs, W. H. Brown and Co. 16th December, 1870. Dear Sirs,-Some few days ago we heard that the 147 barrels of petroleum that you shipped per Argos, for Havre, had been landed at Trouville. We now hear that this is a mistake, the authorities there having at the last moment refused to allow it to be landed. The Captain therefore took it back to Havre, where he had to charter a sailing vessel to take charge of it, while he took his ship in port to load (not being permitted to go in with it on board). We expect the Argos back shortly with the 147 barrels on board, and give you notice of the facts at once, so that you may make any arrangement you consider necessary.

The expenses incurred will, we fear, be enormous, and amount (with the freight) to about £128 or £130. ROWELL AND RACINE.

(Signed) but to which they had no reply. And in accordance with that letter Messrs. Rowell and Racine gave notice to Messrs. Brown and Co. of the arrival of the Argos with the said petroleum on board by the following memorandum:

MEMORANDUM.

90, Lower Thames-street, E.C. 19th December, 1870.

W. HORNER, Messrs. H. W. Brown

Messrs. H. W. Brown

From Walter H. Brown and Co.,

11, Billiter-square, London, E.C.,

19th December, 1870.

To

Messrs. Rowell. and Racine. Seeing that you have failed to fulfil your engagement to deliver 147 barrels petroleum at Havre, according to bills of lading for same in our possession, we herewith enclose you invoice for this lot, amounting to £240 10s. 2d., and shall feel obliged by a cheque for the amount at your earliest convenience.

We are buyers of this article at the present time, and although the market has dropped, we shall be happy to treat with you for the purchase of the 147 barrels you have, as you inform us, brought back to London, per Argos; of course, at land gauges.

WALTER H. BROWN AND CO. And enclosed in their letter was the following invoice: Messrs. Rowell and Racine, 11, Billiter-square, To Walter H. Brown and Co.

·

London, 19th December, 1870. Washington, 1/147......147 barrels petroleum spirit. Net gallons, 5382, at 11d per gallon £246 13 6 Discount, 2 per cent. 6 34 £240 10 2

And Messrs. Rowell and Racine, in reply to that letter, sent the following letter:

90, Lower Thames-street, London, E.C., Messrs. W. H. Brown and Co. Dec. 20, 1870. Gentlemen,-We have your favour of yesterday, and in reply beg to say that, as you are well aware that it was through no act of the ship's that the goods were not

[PRIV. Co.

landed at Havre, we can hardly imagine that your claim is intended seriously.

Nevertheless, as you seem inclined to dispute our claim, we beg to give you notice that, unless it is settled before three o'clock (3 o'clock) this afternoon, we shall place the matter in the hands of our solicitor, and instruct him to proceed at once to recover the full amount of our account as rendered, and farther, the costs of lighterage of the goods from the ship to the wharf.-We are, Gentlemen, your obedient servants, ROWELL and RACINE.

Messrs. W. H. Brown and Co. not having paid by the time mentioned, the goods were taken to Plaistow Wharf, and there lodged to the plaintiff's order; and the attorneys for the plaintiff instituted a suit in rem under the Admiralty Jurisdiction of this court against the said 147 barrels of petroleum. An appearance was entered to that suit by the defendants' attorneys, and shortly afterwards they, on behalf of W. H. Brown and Co, applied to the plaintiffs' attorneys to release the goods and deliver them to the said W. H. Brown and Co.; whereupon the defendants'attorneys put in bail to answers damages and costs in this suit, and a delivery order was accordingly given, and the said goods were duly delivered to W. H. Brown and Co.; and in order to obtain the delivery of their said goods they had to pay the wharf charges and expenses consequent upon the said goods being landed at Plaistow Wharf.

The cause was heard on the above statement of facts in the City of London Court (before Mr. Commissioner Kerr) on Jan. 4, 1872, and judgment was given on Jan. 15, 1872, for the plaintiff for the sum of 1351 5s. 8d. with costs. From this decree the defendants appealed to the High Court of Admiralty. The appeal came on for hearing on May 7, 1872, and Sir R. Philimore reserved judg ment. Subsequently the Court of Common Pleas having decided (Simpson v. Blues L. Rep. 7 C. P. 290; 26 L. T. Rep. N. S. 697; ante, vol. 1, p. 326) that County Courts had no jurisdiction over such questions beyond that possessed by the High Court of Admiralty, and this being a question over which the latter court has no original jurisdiction, Sir R. Philimore before giving judgment on the merits, ordered the question of jurisdiction to be argued; this question was argued, and the learned judge held, in deference to the opinion of the Common Pleas, that the County Court had not jurisdiction to entertain the cause, and dismissed the suit without costs: (see ante, vol. 1, p. 360; 27 L. T. Rep. N. S. 64). plaintiffs thereupon appealed to the Privy Council, and the decision of the learned judge was there reserved and the jurisdiction pronounced for, and the cause was remitted to the Court of Admiralty that the appeal might be decided on its merits (see ante, vol. 1, p. 519; 28 L. T. Rep. N. S. 77). The arguments before the High Court of Admiralty ou the merits were as follows::

The

May 7th, 1872.-The Admiralty Advocate (Dr. Deane, QC) and Murphy for the appellant (the defendant below).-The rule as to the right to freight is laid down in Maclachlan on Shipping, p. 394. It is there said, "Freight is not due until it is earned; and as the carrier's contract is in its nature entire, nothing short of complete performance satisfies the common law, unless the freighter himself interferes to prevent it. No freight, then, is due, prima facie, unless the whole is earned. By the consent of the freighter, however, the shipowner not insisting on completing his con.

PRIV. Co.]

If

tract, imperfect performance may be a good title, under a new contract, to remuneration, in the nature of freight pro ratâ itineris peracti. there is no performance whatever, there may yet be a valid claim for damages, although there be no title to freight.... Freight being the price of safe carriage and delivery of the subject of bailment at the destined port, performance of the contract is a condition precedent to any right of the carrier to recover the reward." As an authority for this last proposition Osgood v. Groning (2 Camp. 466) is cited. Here the contract is to deliver at the port of Havre. The delivery was not prevented by any act of the defendants, and the claim is made without any benefit occuring to him. This was a special contract to deliver, and it remains unperformed on the part of the plaintiff; and he, therefore, cannot have an action to recover compensation for what he has done, until the whole is completed: (Cutter v. Powell, 2 Smith L.C. 6th edit. p. 16.) It was a positive contract, not in itself unlawful, and the plaintiff was bound to perform it, or to pay. damages for not doing it, although in consequence of an unforeseen accident, namely, the refusal of the French authorities toallow the landing of the petroleum, the performance of his contract became impossible: (Taylor v. Caldwell, 3 B & S. 826; 32 L. J. 164, Q. B.; 8 L. T. Rep. N. S. 356.) The plaintiff has at least no right against the defendant on this authority. Where a man contracts to do work for a specific sum, to be paid on completion of the whole, he is not entitled to recover anything until the whole work is completed, unless it be shown that the performance of his contract was prevented by the default of the other contracting party (Appleby v. Myers L. Rep. 2 C. P. (Ex. Ch.) 651; 16 L. T. Rep. N. S. 669,) In that case, which was an action for work done, which was destroyed by fire, Blackburn, J. said, "We think that where, as in the present case, the premises are destroyed without fault on either side, it is a misfortune equally affecting both parties; excusing both from further performance of the contract, but giving a cause of action to neither,

The case is like the case of a shipowner who has been excused from the performance of his contract to carry goods to their destination, because his ship has been disabled by one of the expected perils, but who is not therefore entitled to any payment on account of the part performance of the voyage, unless there is something to justify the conclusion that there has been a fresh contract to pay pro ratá." Here the complete performance was not prevented by an expected peril, and therefore, a fortiori, the plaintiff cannot claim freight. It is a rule that, if a shipowner, entering into a contract, and so creating a duty upon himself, wishes to excuse performance in certain cases, he must provide for those cases in his contract: Spence v. Chodwick, 10 Q.B. 517, 530, citing Paradyne v. Jane, Aleyn's Rep. 26.) To have any claim to freight at all, the master is bound to deliver at least in part: (Christie v. Row, 1 Taunt. 300). In The Teutonia (L. Rep. Adm. & Ecc.; 24 L. T. Rep. N. S. 521: ante, vol. 1, p. 32) various French authorities are quoted in the judgment to show that, where an interdiction of trade is imposed, the outward freight only is due, but not the homeward freight (Valin, Ordonnance de la Marine, lib. iii. tit. 3, art xv.; Traité des Assurances et des Contrats à la Grosse d' Emerigon, P.

[PRIV. CO.

S. Boulay-Paty, tom. i., cap xii., sect. xxxi.; Cours de Droit Commercial Maritime, tit. viii., sect. 10, tom 2, p. 424, edition 1834). This is no doubt the Continental law, but by English law no freight is due without delivery, and no claim for freight pro ratâ can arise except on an implied contract. There are no circumstances here from which a contract can be implied to pay pro ratâ freight. [Sir R. PHILLIMORE.-If this be a court of equity, may I not presume freight to be due independently of the express contract, if the master could not reasonably deliver ?] There must be a voluntary acceptance (Vlierboom v. Chapman, 13 M. & W. 230), and this court has held in accordance with that ruling: (The Soblomsten, L. Rep. 1 Adm. & Ecc. 293; 15 L. T. Rep. N. S. 393; 2 Mar. Law Cas. O. S. 436.) There was no acceptance here. This is a written contract, and this court should, therefore, apply the principles of common law. A party seeking payment must show that he has done all that he is bound to do. Unless the performance of a contract has become illegal by the law of the country of the ship, the contract must be performed, or there must have been an actual change of relations between the country of the ship and the place of destination: (Esposito v. Bowden, 4 E. & B. 963; 7 E. & B. 763; 24 L. J. 210, Q. B.; 27 L. J. 17, Q. B.; Atkinson v. Ritchie, 10 East, 530.) A foreign law operating to make performance illegal or impossible at the port of delivery will not excuse non-performance: (Barker v. Hodgson, M. & Sel. 267; Blyth v. Page, cited in Touteng v. Hubbard, 3 B. and P. 291-295, note; Sjoerds v. Luscombe, 16 East, 201.) Even the act of a British superintendent of trade in a Chinese port is no excuse unless it appears that he was duly authorised to act: (Evans v. Hutton, 6 Jur. 1042). The plaintiff was a regular trader to the port of Havre, and had a regular agent there. It was within the plaintiff's knowledge that this was petroleum; and if there was difficulty in landing petroleum the plaintiff should have known this, and have refused to take the goods. The ship never got with these goods on board to the quay at Havre, which is found by the case to be the ordinary place of delivery, and therefore the plaintiff was never ready to deliver. The defendant made no contract to receive until the plaintiff was ready to deliver. The two acts were to be done together, and therefore no action lies without performance or an offer to perform on the part of the plaintiff : (Pordage v. Cole, 1 Williams' Saunders' Rep. 556). There was no obligation on the part of the defendant to produce the bill of lading until the plaintiff was ready to deliver. The letter of December 6th, 1870, to Généstal, did not constitute the latter the defendant's agent, and his acts do not bind the defendant. The master was bound to have waited till the removal of the disability of the goods, and then to have landed them: (Hadley v. Clarke, 8 T. R. 259).

Milward, Q.C., and Day, Q.C., for the plaintiff (respondent). The letter above referred to has the effect of authorising Généstal to represent the owner of the goods, and requests him to take charge of them. The goods were to be taken out within twenty-four hours after arrival, and the defendant wished Généstal to do this in order to save them the demurrage for which they would otherwise have been liable. This shows that it was the defendant's duty to remove the goods. There is no stipulation in the Bill of Lading as to

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any particular quay or dock, and all that the plaintiff was bound to do was to go to the port of Havre, and that he has done. We contend that delivery has been made; but even if we have failed in anything, it was through the fault of the cargo. Where delivery is prevented by the incapacity of the cargo alone, the shipowner is entitled to his freight: (The Fortuna, Edwards' Adm. Rep. 56; The Friends, Ib. 246.) In the latter case the ship had got to the mouth of the harbour of the port of destination, and was prevented from proceeding by a blockading force, and Lord Stowell said: "This court sits no more than courts of common law do to make contracts; but as a court exercising an equitable jurisdiction it considers itself bound to provide as well as it can for that relation of interests which has unexpectedly taken place under a state of facts out of the contemplation of the contracting parties in the course of the transaction. . . . Now if the incapacity of completing the voyage could be exclusively attributed to one of the parties, it would be proper that the loss should fall there; but the fact is that the calamity is common to both;" and the freight was divided. There is no law which made the delivery illegal. There was a popular disturbance caused by the petroleum. This was not the incapacity of the ship, but of the cargo. We say, however, that there was an actual delivery, for we transshipped the goods into a lighter in the harbour, and so really discharged the cargo. The defendants should have presented the bills of lading and taken the goods from the lighter, but as they did not, or were not allowed, we had to bring them back. A reasonable time for delivery is all the defendant can demand, and if he detain the ship beyond such a time she is liable in damages (Ford v. Cotesworth, 9 B. & S. 559; 10 B. & S. 991); and the defendant is not excused from not unloading by the Act of the French authorities: (Adams v. Royal Mail Steam Packet Company, 5 C. B.; N. S. 492; Kearon v. Pearson, 7 H. & N. 386.) Here it is expressly stipulated that the cargo shall be taken out within twenty-four hours by the defendant, and he is bound to concur with the plaintiff and do ali that was necessary to effect delivery and acceptance of the cargo: (Ford v. Cotesworth (ubi sup.) Spence v. Chodwick (ubi sup.) proceeded on the ground that a mere foreign revenue law could not be noticed in this country; the defendant is here bound to be ready to take delivery, in spite of a local law. Christie v. Row (sup.) shows that freight may be earned when delivery is presented, and even that we are entitled to our return freight. We completely performed our contract. By the bill of lading we were to deliver in the port of Havre, and we did so. The place of discharge depended on the harbour authorities, and a complete performance took place on discharge into the lighter under their orders. The goods were then at the defendants' disposal on payment of charges. The defendants were bound to take out the goods.

Murphy in reply.-In the cases of The Fortuna (sup.) and The Friends (sup.) there was an implied contract raised by the fact of the owner going into the court to claim his cargo, but in this case I submit the court will not exercise any equitable jurisdiction. The Court of Chancery proceeds, with respect to the payment of freight, upon precisely the same ground as the court of

[PRIV. Co.

common law Brown v. Tanner, L. Rep. 3 Ch. App. 597; 19 L. T. Rep. N. S. 624; 3 Mar. Law Cas. O. S. 94); and no freight is due until delivery is complete, "Taken out" in the bill of lading refers to the goods being taken away within twenty-four hours, and the margin of the bill shows that the plaintiff was to land them. The quay was the ordinary place of delivery, and delivery must take place according to the practice and custom of the port, and the defendant was entitled to a reasonable time to take the goods: (Gatliffe v. Bourne, 4 Bing. N. C. 314, 329, 331.) The plaintiff sailed away before twenty-four hours had elapsed after arrival. The plaintiffs were at no time ready and willing to deliver whilst at Havre, and no claim exists till they were so ready: (Duthie v. Hilton, L. Rep. 4 C. P. 138; 19 L. T. Rep. N. S. 285; 3 Mar. Law Cas. O. S. 166).

March 11, 1873.-Sir R. Phillimore.-This is a cause of appeal from the City of London court, arising out of an agreement made for the use or hire of the ship Argos, under the 32 & 33 Vict. c. 51, s. 2. I regret to say that I derive no assistance from the judgment of the Court below, which is in these words: "As I understand you are going to appeal in this case, all I shall say is, that I give judgment for the plaintiff. The amount I believe is agreed at 135l. 58. 8d." It appears to me that the reason here assumed for not stating the grounds of a judgment involving important questions of law is based upon a very mistaken view of the duty of a judge of the court of first instance, and deprives the appellate court of the assistance which it has a right to expect. All the material facts of this case are admitted. They are as follows: [The learned Judge then stated the facts down to and inclusive of the bill of lading, as in the statement given above, and proceeded.] A person of the name of Généstal appears to have been the shipbroker of Havre. He was selected by the defendant as his agent at Havre by the following letter [His Lordship then read the letter of Dec. 6th, 1870, from the appellant to Généstal, stated the rest of the facts as given above, and continued.] The plaintiff claims, for freight out, demurrage, freight back, and expenses, the sum of 135l. 58. 8d., for which he has recovered judgment in the court below. The defendant contends in substance that the plaintiff never performed his contract of carrying the petroleum to the usual place of delivery at Havre. which he asserts to be the quay; that, as the plaintiff was never ready to give delivery at the agreed place, the defendant was not obliged to take the goods; and that, at all events, though neither plaintiff nor defendant were hoiden to blame for the nondelivery, the contract was unexecuted, and no right of action could accrue to either party. The bill of lading contains the two stipulations : (1) That the goods are to be taken out within twenty-four hours after arrival or pay demurrage; and (2) that they are to be delivered at the port of Havre. Under this contract it was the duty of the defendants to take out the goods, and of the plaintiff to bring the goods to the port of Havre, where they could be taken out. Indeed, it is one of the admissions of the case that the captain could not have landed them on the quay. I think that when the ship on her first arrival at Havre went, under the direction of Généstal, to Honfleur and to Trouville, she had performed the duty of bringing