C. P.] SEAGRAVE v. THE UNION MARINE INSURANCE COMPANY. [C. P. appears, however, that McCarter was dissatisfied | who had been indemnified by payment, and not the with the amount which he recovered in the name of Joyce as to the following particulars detailed by him at the trial, viz., 50%. of the former verdict not paid, 491. extra costs, 1047. difference between the interest which he recovered and the interest which he had to pay his own bankers in order to raise money, 201. travelling expenses, not alleged to have come within the suing and labouring clause, or to have had anything to do with the insurance. The mass of these items was irrecoverable under any circumstances against the underwriters upon either policy; and no one of them could by any proceeding be justly claimed against the present defts. McCarter, however, took a different view of his rights; and it appears now plainly that, by arrangement between him and the plt., the present action was brought in effect to enforce payment of the enumerated items, though, under good advice, a verdict was not sought for the whole 11507, a measure which, if resorted to, would, we believe, have so demonstrated the impropriety of the claim as to prevent the actual result of a verdict in the plt.'s favour. At the trial of this cause, the plt.'s case was launched upon his own evidence, which was to the same effect as that given by McCarter, upon the trial of Joyce v. Swann, with these exceptions: first, that after the examination by counsel was over, in answer to a question put by the learned judge (being the question for decision), the plt. made the following statement, "I made the sale to McCarter on the 9th; secondly, that the plt. stated that, instead of being principal in the actual or intended sale, his firm were only commission agents (not del credere) of Dixon and Co., of the same town. And although the objection on the score of insurable interest was urged early in the case, the plt.'s only account of his interest was, that his firm were brokers, not factors; nor did it appear that the guano was ever in their possession as bailees, nor that they had any lien. The evidence was quite bare upon this point; and it is consistent therewith that the guano went straight from the stores of Dixon and Co. to the ship, and that the name of the plt.'s firm was put in the bill of lading in accordance with a not uncommon practice of brokers to carry on business in their own names, and not because they had any other interest in the transaction. And this appears to be the reasonable conclusion from the evidence of the plt., who gave no further account of his interest than that he acted as broker and agent for Dixon and Co., coupled with the fact that he sought to recover nothing upon his own behalf, but all for McCarter. The last additional fact as to which the plt. was examined was as to the payment of the bill given him for the price of the guano. At first he stated, "It has not been paid; 2001. or 300l. is still unsatisfied." "The bill has not been satisfied to a considerable extent." "Messrs. Dixon have suffered a loss." But upon cross-examination he said: "McCarter dishonoured the bill at first. It was satisfied by mutual arrangement. We were put to expense by the dishonour and delay "-not, be it observed, by the loss of the goods. Now, the only way of reconciling these contradictory statements is, to suppose that the 2007. or 3001. spoken of by the plt. represent the 2007. or 3007. made up of the items already enumerated as claimed by McCarter, and which are, by agreement with McCarter (who is probably a good customer), to be allowed or not allowed to him, according to the event of the present action. Upon the evidence, without calling McCarter, the plt. relied; whereupon certain objections were taken for the defts., some of them founded upon mere formal variances, to which we attach no importance, and one which raises the main question, viz., that Dixon and Co., plt., were the persons interested in the policy, and that the plt. had not proved any interest in the subject-matter of insurance. The learned judge overruled these objections; and the defts. called McCarter (the real plt.) as a witness. McCarter, like the nominal plt., gave evidence to the same effect as in the former cause of Joyce v. Swann, with these exceptions, that after the examination by counsel was over, he, in answer to a question put by the learned judge (being the question for decision), made the following statement, viz., "The purchase by me was on Monday morning the 9th." As to the bill in payment of the guano, McCarter stated, "It is paid or satisfied." As to the items of claim already set forth, he added, "I expect to be made good this loss out of the policy now sued on." Such being the evidence, the learned judge told the jury that, upon McCarter's evidence, it appeared to him clear that there was no contract before the 9th March, at Londonderry, after the goods were lost, and upon that point he took the opinion of the jury, who adopted this direction, and found a verdict for the plt. No other question was left to them.. With respect to the point of insurable interest, the learned judge ruled as a matter of law that the plt. had an insurable interest "as an unpaid vendor, and with a bill of lading making the goods deliverable at Londonderry to him or his assigns." The damages were agreed to be 2007. (representing the items already mentioned, or some of them), in the event of the plt. being entitled to retain the verdict. In the last term a rule was obtained for a new trial upon several grounds, amongst others a miscarriage in that the learned judge ruled as matter of law that the plt. had an insurable interest; and, the matter having been fully argued, and time taken to consider, we are of opinion that the rule for a new trial ought to be made absolute. In considering the case, three prominent points present themselves: first, that both McCarter's and the plt.'s policies were for the value of the guano only, and not for such extras as McCarter detailed in evidence; secondly, that this action is for McCarter's benefit; thirdly, that McCarter has already received from his underwriters, through Joyce, the whole amount at which the goods are valued in the plt.'s policy. It was argued, therefore, that according to the case of Bruce v. Jones, 1 H. & C. 769; 32 L. J. 132, Ex.; 7 L. T. Rep. N. S. 748, there was a com-plete answer to any further claim. We need not, however, consider this further at present, as there is no plea to raise the question, and if such a plea be added, it may, if necessary, be discussed. upon a future occasion. Next it appears that the direction of the learned judge in point of law, and the finding of the jury in pursuance of that direction, are in conflict with the verdict in Joyce v. Swann, and the judgment of this court thereupon, of which verdict and judgment McCarter has already reaped, and now retains, the benefit. Nor was the evidence as to the question upon which the verdict passed substantially different from what was offered upon the trial of the former action, save in the answers given to the mixed questions of law and reasoning upon facts proposed to the nominal and to the real plt., and which was the very question to be decided by the court. Whether such a result can be deemed satisfactory it is at present unnecessary to consider; and the rule hardly raises the point with sufficient distinctness as an objection to the verdict. Thirdly and lastly, the report of the learned judge is distinct, that he thought "the plt. had an insurable interest as an unpaid vendor, and with a bill of lading making the goods deliverable at Londonderry to him or his assigns." In this statement of law we are, after much consideration, unable to concur. In point of fact, the now verdict finds that the plt. was not "vendor," because it finds that there was no valid sale, and no sale until after the loss. In point of fact also, the evidence of the plt. and of McCarter shows that payment was made by bill, which has been paid or settled; so that, if the plt. was a vendor, he was not an "unpaid vendor." This ground failing, and with it the argument that there amight be an interest in respect of commission, which probably, like the price, was settled between the parties as upon a valid sale, it remains to consider what is the effect of the plt. being named as shipper and consignee in the bill of lading. That this as a matter of fact is primâ facie evidence of interest, we entertain no doubt; but the question is whether, as matter of law, it is conclusive that there is an interest, even though the facts should show that the norainal shipper and consignee is a mere agent, having no lien upon the goods for advances, commission, or otherwise, nor the possession or custody of them as carrier, factor, warehouseman, or other bailee, nor any liability to account for their loss by the perils insured against, such as sustained the insurance by a carrier (Crow ley v. Cohen, 3 B. & Ad. 478); by a warehouseman declaring himself a trustee (Waters v. Monarch Life Assurance Company, 5 E. & B. 870; 25 L. J. 102, Q. B.); a bankrupt or insolvent in possession of after-acquired property by permission of his assignees (Marks v. Hamilton, 7 Ex. 323; 21 L. J. 109, Ex.); a ship carpenter having a lien for repairs (Tasker v. Scott, 6 Taunt. 234; 1 Marsh. 556); a person having an equitable assignment (Wilson v. Martin, 11 Ex. 684; 25 L. J. 217, Ex.) The evidence did not bring the plt. within any of these categories; and the loss which took place was a loss of the goods to the intended seller or the intended buyer, according as the sale was complete or not, and not a loss to the mere intermediate agents. It was argued that the liability for freight as shipper made an interest; but by the loss of the goods on the way the freight was also lost; and, if the goods had arrived, the interest was in the shipowner's enforcing his lien, not in the goods themselves. It was further argued that the bill of lading gave a remedy against the master, and was as against him an estoppel; but, even as against the master, the bill of lading was not conclusive, if Dixon and Co. chose to interfere and to insist upon delivery to them; and such delivery would have been an answer to any claim by the plt., as was decided in the case of Sheridan v. The New Quay Company, 4 C. B., N. S. 618; 28 L. J. 58, C. P. The persons, if any, interested in the policy were Dixon and Co., and not the plt. The property was theirs. The temporary possession of it was that of the ship's master, as bailee; the plt., if there was a valid sale, was interested at the outside to the extent of his commission, if it was at risk, which it was not, for it was earned by the fact of sale, and there would be no lien for it against the buyer; and if there was no valid sale, he was a mere agent, who suffered nothing and incurred no liability by the loss, for he had discharged his functions, save that he held the shipping documents subject to the orders of his employers. We are not aware that it has ever been held that a mere agent, without possession or lien, has an insurable interest to the extent of the value of the goods, simply because his name appears in the bill of lading instead of that of his principal; and the general rule is clear, that, to constitute interest insurable against a peril, it must be an interest such that the peril would by its proximate effect cause damage to the assured. We are, therefore, after much consideration, of opinion that the learned judge was wrong in ruling as matter of law, even on the state of facts found by [C. P. the jury, that there was an insurable interest in the plt. We were asked to amend the declaration by inserting a statement of interest in Dixon and Co.; and undoubtedly, if Dixon and Co. had sustained a loss, they might have adopted and recovered upon this policy; but we are of opinion that no such amendment ought to be allowed in this case, because the action is in our judgment brought for McCarter, not for Dixon and Co., who have been paid, and such an amendment might tend to frustrate, and could not tend to promote, the decision of the question which this action was brought to try. As to the formal objections raised to the declaration, they may be cured by amend ment if and when the plt. thinks it worth while. We give the deft. leave to add a plea or pleas within eight days, upon condition that the plt. may within eight days thereafter enter a stet processus and cancel the policy. For these reasons, and with these directions, the rule for a new trial is made absolute; and we hope we are not outstepping our province if we add a suggestion that, in the event of the matters of law decided by the court upon this or the former occasion being again contested by either party, the more convenient course will be that such party should be put to raise his objection by bill of exceptions, and thus obtain the benefit of reviewing our decision before a superior tribunal. Rule absolute. Attorneys for plt., Upton, Johnson, and Upton. Attorneys for defts., Field and Roscoe. Wednesday, April 17, 1866. VALIERI V. Boyland. Action by indorsee of bill of lading-Short delivery -Fraud of shipper-Evidence-18 & 19 Vict. c. 111, s. 3. The indorsee of a bill of lading sued the captain, who had signed it, for the value of four bales not delivered. The evidence was, that the goods were shipped by certain persons acting as agents for the actual shippers, and that when the goods were put on board there was a dispute with the mate as to the number of bales shipped. He made a memorandum of the fact, but by mistake put down in the bill of lading sixty-nine bales instead of sixty-five, and had since died. Sixty-five bales were delivered: Held, that there was evidence to go to the jury that the misrepresentation as to the amount shipped was "caused wholly by the fraud of the shipper" within the terms of sect. 3 of 18 & 19 Vict. c. 111. Declaration : That after the 14th Aug. 1855, in parts beyond the seas, to wit, at Constantinople, M. M. Katinakis delivered to the deft, and the deft. received from the said M. M. Katinakis, certain goods, to wit, bales of skins, to be by the deft, carried and conveyed in a certain ship of the deft. from Constantinople to London under a certain bill of lading signed by the deft, whereby the deft. agreed to carry the said goods and deliver the same at the port of destination (certain perils and casualties only excepted) unto the order of the said M. M. Katinakis, or to his or their assigns, for certain freight pay able for the said goods; and the plts. say afterwards, and after the said 14th Aug. 1855, the said M. M. Katinakis indorsed the said bill of lading to the plts. in order to pass the property in such goods to the plts, and that thereupon and by reason of such indorsement the property in the said goods passed to the plts., and the plts. say that before action brought all con ditions had been fulfilled, and all things had been done, and all times had elapsed necessary to entitle the plts. to have the said bill of lading performed by the deft, and to sue him for the breach of contract hereinafter mentioned. Yet the deft, casualties, made default in delivering a portion of the said although not prevented by any of the excepted perils or goods agreeably to the bill of lading, whereby the pits, have lost the value of such goods, and been greatly damnifled. And the plts. also sue the deft, for that the deft, converted to his own use, or wrongfully deprived the plts. of the use and possession of the plts.' goods, that is to say, bales of skins. C. P.] Pleas : VALIERI V. BOYLAND. 2. That the said M. Katinakis did not deliver, nor the deft. receive, the said goods as in the said first count alleged. 3. Denial of the indorsement as alleged. 4. Denial of default in delivery. 5. Not guilty. 6. Denial that the goods were the plts.' goods. The action was brought by the plts., merchants in London, as indorsees of a bill of lading signed by the deft., as master of the steamship Brenda, at Constantinople, for certain bales of lambskins. The bill of lading, which is set out infra, stated that 119 bales had been shipped, and contained a memorandum that four bales more were in dispute, but, if on board, they were to be delivered. Upon arrival, only 115 bales were delivered, and the plt. in consequence claimed the value of the short delivery. It was not disputed that the plts. were indorsees for value of the bill of lading within the provisions of the Bill of Lading Act, nor that 115 bales only were delivered at the port of discharge. Three questions were left to the jury, viz., Were the goods shipped? Was there any default by the deft.? and was the omission wholly caused by the fraud of the shipper? The jury found each question in favour of the deft. Upon the last point the deft. had leave to move. The only witnesses called for the defence were the deft. himself and two of the crew. The deft. stated that he signed the bill of lading on the faith of the mate's receipt, and that he knew nothing of the shipment of the goods. The mate was dead, and the deft.'s other witnesses merely proved that a question arose as to the number of packages, but there was nothing whatever to suggest any fraud on the part of the shipper. The declaration by the deceased mate was to the effect that he had received the goods on board and there had been a dispute at the time whether they were sixty-four or sixty-nine, and in consequence he had added the memorandum which appeared on the bill of lading. In June last Mr. M. Katinakis, a correspondent of the plt. at Constantinople, purchased a quantity of lambskins, to be shipped on board the steamship Brenda. Accordingly the vendor of the goods sent them on board the vessel, and Mr. Katinakis then obtained from the deft. the following bill of lading: The agents in London are Smith, Sundias, and Co., 17, Gracechurch-street. K. 69 L 18 B. 32 119 K. 4 bales more in dispute, if on board to be delivered. [The vessel is not answerable for damage arising through insufficiency in strength in packages.] [C. P. defective packages, or wrong delivery caused by error, indis- Deliver to Messrs. Mairo, Basily, and Co. The action was brought to recover damages in respect of the four bales marked K in the margin of the above bill of lading, being four out of the sixty-nine which formed a part of the 119, the plt. having, in fact, only received 65 bales marked K. The amount of the claim 43. 1s. 2d. was at the rate of 11. 5s. per bale, from which a deduction of 17. 18s. 10d. was made for freight. Sect. 3 of 18 & 19 Vict. c. 111, enacts that Every bill of lading in the hands of a consignee or indorsee for valuable consideration representing goods to have been shipped on board a vessel shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or other part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden signing may exonerate himself in respect of such misrepresenon board. Provided that the master or other person so tation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper or of the holder, or some person under whom the holder claims. The cause was tried before Byles, J., in London, after Hilary Term, when a verdict was found for deft., with leave to the plt. to move to enter it for 431. 1s. 2d. for him. Sir Geo. Honyman now moved accordingly. ERLE, C. J.-I think there should be no rule in this case, and that there was evidence to go to the Shipped in good order and condition by Mr. M. M. Kati-jury that the mistake in the bill of lading was akis, in and upon the steamship called Brenda, whereof is master for the present voyage James Boyland, or whoever else may go as master in the said ship, and now lying in the port of Constantinople, and bound for London, with liberty to and and and or or or receive land cargo -passengers at Gibraltar and Malta, and any other ports whatever, and in any rotation, with liberty to sail with or without pilots, and to tow and assist vessels in all situations, 119 bales skins being marked and numbered as in the margin, and to be delivered in the like good order, and well conditioned, at the aforesaid port of London, or as per margin or foot-note (the act of God, and all accidents, loss, or damage whatsoever from machinery, boilers, and steam navigation, or from perils of the seas or rivers, or from any act, neglect, or default whatsoever of the pilot, master, or mariners, being excepted), and the owners being in no way liable for any consequence of the causes above excepted, unto order or to his or their assigns. Freight for the said goods payable in London on delivery in case, without discount, at the rate of 41. per ton of 20 cwt. gross weight, with 10 per cent. primage and average accustomed. In witness whereof the master or agent of the said ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplished the other to tand void. Dated in Constantinople 27th June 1865. Weight, length, contents, and value unknown, and not answerable for leakage, breakage, rust, or mortality, damage by heavy weather or pitching or rolling of the vessel, inherent deterioration or caused" wholly by the fraud of the shipper." Messrs. Katinakis, or persons acting with them, brought down the bales, and the persons who brought the bales alongside were guilty of the fraud. The mate said there were sixty-five, while they said there were sixty-nine bales; I think he was compelled to sign for sixty-nine bales. There was evidence to go to the jury that the person who had counted them as sixty-nine, when there were only sixty-five, was willing to overreach, and I think he knew that he had only shipped sixty-five, and that he knowingly took advantage of the mistake, and is guilty of fraud under the statute, and that the captain is exonerated. M. SMITH, J.-I am of the same opinion. The persons who shipped the goods and took the mate's receipt are the parties guilty of the fraud in question. There may have been an honest dispute as to whether the mate's receipt was given for sixty-five bales or more; but whoever shipped the goods must have known that they were not shipped without dispute. The word "wholly" in the statute is C. P.] CARR AND ANOTHER v. THE WALLACHIAN PETROLEUM COMPANY (LIMITED). clear, and the mate or other person signing the bill of lading must not be mixed up with the fraud. BYLES and KEATING, JJ. concurred. Rule refused. Thursday, May 24, 1866. [C. P. Sir G. Honyman now showed cause.-The simple question is, what is the effect of the loss of this vessel. This is not the case of a person merely becoming surety for freight. If the cargo of petroleum had been loaded according to the charter we could have insured it, and the defts, having failed to load we had a right of action for a much larger sum than this, but instead of that we take CARR AND ANOTHER v. THE WALLACHIAN PETRO- this agreement. I submit that the defts. guaranteed LEUM COMPANY (LIMITED). Charter-party- Substituted contract · Guarantee. Freight The plts. chartered a ship to the defts. to proceed to I. and take in a cargo for London. On the arrival of the ship at I. the defts. were unable to provide a cargo, and the plts. agreed to cancel the charter on the defts. guaranteeing them "9001. gross freight home, the vessel to be placed on the most profitable charter or trade procurable, and to carry 300 tons. The vesse shipped a cargo of 300 tons, the freight for which would be 556l. 14s., and was totally lost on her voyage to London. In an action to recover the difference between 5561. 14s. and 9001. guaranteed, Held, that the liability of the defts. arose at the port of lading on the ship's sailing away with a cargo that would not earn 9001. freight, and was not affected by the loss of the ship. This was an action to recover the sum of 6867. 12s., under the following circumstances:-The plts. were the owners of two vessels called the Botassis and Izamados, which they chartered to the defts. in Aug. 1864, the ships being then in the Danube. By the terms of the charter they were to proceed to Ibraila, and there load a full and complete cargo of petroleum oil and deliver the same in London on receiving 41. 4s. per ton freight payable in London. The ships duly proceeded to Ibraila, but previously to their arrival there the defts.' stores had been destroyed by fire, and they were unable to provide cargoes. The defts. thereupon applied to the plts. to cancel the charters, and after some negotiations a Mr. Housden, on the part of the plts., attended a meeting of the directors of the defts.' company on the 7th Sept., and a verbal arrangement was come to, the following minute of which was made in the books of the company. It was proposed by the directors that the company should guarantee the above-named vessels (the Botassis and Izamados) a sum of 9001. each gross freight home on the following understanding: That Messrs. Carr and Co. place the vessels named at once on the most profitable charter or trade procurable; the vessels will carry 300 tons each of whatever cargo they may take on board, or should they not take 300 tons each, that a proportionate reduction of the guarantee should be made for any lesser quantity of cargo they may take. That the charter-parties dated the 9th and 10th Aug. last respectively for the vessels named be cancelled. A copy of this resolution was forwarded to the plts. in a letter requesting them to cancel the charters, which they accordingly did. The vessels being unable to obtain any other cargo, loaded two cargoes, of 300 tons each, of barley on account of the plts., and proceeded on their voyage to London. According to the current rates of freight for barley at that time, the vessels would have earned 5567. 14s. The Izamados arrived in London, but the Botassis was totally lost on the voyage. The plts. brought this action to recover two sums of 3431. 6s., being the difference between the two sums of 5561. 14s., which the vessels would have earned had they both reached London, and the sums of 9007. each guaranteed by the defts. A verdict having been entered for the plts. for 6867. 12s., W. Williams subsequently obtained a rule to reduce the verdict by the sum of 3431. 6s., on the ground that the defts. were not liable to pay that sum, the Botassis having been totally lost. that cargo which would pay 9001. freight should be put on board, and as soon as the vessel sailed away with less than that amount they became liable to pay us the difference. [BYLES, J.-Is not the contract, that they will put you in the same which you would not earn unless the ship arrived?] position as if you had a 900/. freight on board No; as here we could only insure about 5601, freight, and under no circumstances could we get more than 6001. (Yeames v. Lindsay, 3 L. T. Rep. N. S. 853.) The agreement is, if you will cancel the charter we J.-If the other side are right you would have hadan will enter into an entirely new contract. [BYLES, insurable interest to the extent of 9001, as I suppose they say it was guaranteed freight, 9001.] I submit not, as we could only insure freight for the goods we had on board, and not what we should get on a collateral contract. This agreement was substituted for the original charter, which would have been broken when the defts. failed to load a complete cargo, and I contend that they became liable under that agreement on our failing to procure a cargo which would pay 900l. freight. W. Williams in support of the rule.-This is a question as to the amount of damages, and the con tract was made before breach of the charter: (Stracy v. The Bank of England, 6 Bing. 754.) If they had brought an action on the charter-party we might have pleaded a new arrangement before breach. We agree that they shall have a freight of 9001, and to assume that they could not insure that sum is begging the question. I submit that they were carrying this cargo at 9001. freight. If this is an engagement that if they got a full cargo they should have 9001. freight, that would give an insurable interest to the extent of 900l. It is like the case of a merchant saying, "If you will put your ship on s certain line I will pay you 9001. gross freight home," and he might wish to have the goods carried at merely nominal freights; surely in such a case the shipowner would be entitled to insure 900%, and would not have to depend on the solvency of the merchant. Here the cargo is, in point of fact, carried free of freight, and they give us credit for the current rates, but I submit that we are not to be called upon to pay the difference unless the ship arrives and earns freight. ERLE, C. J.-I am of opinion that this rule should be discharged. The question turns on the meaning of the guarantee. The defts. guarantee to the vessel 9001. gross freight home; that was a substi tuted contract, and is to be construed by reference to the original contract contained in the charterparty, and that is that the vessels are to take home cargoes of petroleum at 4/. 4s. a ton. Therefore it is a contract to pay about 12007. a ship, and the defts. substitute a contract that the plts. may load any other cargo, and the guarantee is 9001. gross freight; that is, that at the time of loading the freight shall be worth 9001, as it would under the original contract have been worth 1200/.; and if the defts. had only put on board 200 tons of petroleum instead of 300 their contract would have been broken at the port of loading. Here they guarantee that the goods put on board shall be worth 9001. freight, and the contract is broken when goods to that amount an not put on board. The whole difficulty in this caso has been caused by the use of the word freight. C. P.] MAC ANDREW AND ANOTHER v. CHAPPLE AND OTHERS. WILLES, J.-I am of the same opinion. I think the substituted agreement was a mere settlement of amount, and that was to stand as the original contract, and the liability came to a head at the same time as it would have done if the cargo had not been loaded. When the vessel weighed anchor it is clear that she had not a freight which could earn 9007., and therefore the defts. were liable, and they are not the less liable because one of the vessels was lost. It is impossible to say if the loss would have taken place if the original contract had been fulfilled, and therefore we must look at the contract without considering that, and see when the liability accrued, and I think that was when the ship sailed away without a sufficient cargo to earn 9007. BYLES, J.-I am of the same opinion. The guarantee is, that there should be freight worth 9002; and it seems to me that the contract was broken at the port of loading. M. SMITH, J.-I am of the same opinion. The liability under the guarantee must be determined by the amount of cargo put on board. Rule discharged. Attorneys for the plts., Thomas and Hollams. Attorney for the defts., A. E. Tower. A charter-party contained the following clause: that the ship E., "being tight, &c., shall with all convenient speed (on being ready), having liberty to take an outward cargo for owner's benefit, direct, or on the way, proceed to Alexandria," and there load a cargo of cotton, &c. At the time the charter was made the ship was at Newcastle taking in her machinery. She left Newcastle for the purpose of taking her trial trip, and, as there was some risk in crossing the bar of the Tyne, proceeded to London instead of returning to Newcastle. She was detained in London six weeks repairing machinery, during which time she took in cargo, and then proceeded to Constantinople, which is not" on the way to Alexandria, and thence to Alexandria. It was found by the case that going round by Constantinople only caused two or three days' delay. On her arrival at Alexandria the charterers refused to load a cargo: [C. P. The defts. are merchants and shipowners carrying on business at Liverpool under the style and firm of Chapple, Dutton, and Co. On the 15th Oct. 1864 the said steamer Ephesus was launched at Newcastle, a great portion of her engines and machinery having already been put in her, and was immediately afterwards placed in the hands of Messrs. Randolph, Elder, and Co., engineers, for completion ready for sea. About the 1st Dec. 1864 negotiations were opened chartering of the Ephesus by the defts. These negobetween the plts. and defts. for the purpose of the tiations were conducted by Mr. Nance, a shipbroker, on behalf of the plts., and by Mr. Pothonier, a shipbroker, on behalf of the defts. On the 7th Dec. 1864 the aforesaid negotiations were concluded by a charter-party being made by and between the plts. and the defts., and signed by or on behalf of the said parties respectively, which said charter-party was as follows: Charter-party. London, 7th Dec. 1864. It is this day mutually agreed between Messrs. Robert MacAndrew and Co., owners of the good ship or vessel called the Ephesus, of the measurement of 1634 tons or thereabouts, now at Newcastle, and Messrs. Chapple, Dutton, and Co., of Liverpool, merchants, that the said ship being tight and staunch and strong, and every way fitted for the voyage, shall, with all convenient speed (on being ready), having liberty to take an outward cargo for owner's benefit direct or on the way, proceed to Alexandria, Egypt, or so near thereunto as she may safely get, and there load from the factor of the said freighters in the customary manner a full and complete cargo of cotton in square bales, both in the hold and upon deck, the captain being at liberty to take other usual cargo (on freight) for ballast only, and to render customary assistance with boats and crew; in loading which the said merchants bind themselves to ship not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture, and being so loaded shall therewith proceed to London or Liverpool direct as ordered on signing B. lading, or so near thereto as she may safely get (cargo to and from, alongside, and at merchant's risk and expense), and deliver the same on being paid freight as follows: Three farthings per pound for cotton, in full of all port charges and pilotage (the act of God, the Queen's enemies, restraints of princes and rulers, and fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever during the said voyage, always excepted); the vessel to be addressed to the charterers' agents free of commission, and to have a lien on cargo for all freight, dead freight, and demurrage; captain to sign bills of lading at any rate of freight, without prejudice to this charter. Freight to be paid on unloading and right delivery of the cargo in cash, less (if required) for ship's use at Alexandria 500l. to be advanced on signing B. lading, subject to 3 per cent. for insurance, and all charges, twenty-five runsooner dispatched) for loading at Alexandria and discharging ning days to be allowed the said merchant (if the ship is not in England; and ten days on demurrage over and above the said lying at 701. per day; penalty for nonperformance of this agreement, estimated amount of freight. In the course of the negotiations Mr. Pothonier was informed by Mr. Nance that the plts. would Held, in an action by the shipowners against the not guarantee the time within which the vessel charterers for not loading, that the above stipulation would be finished, and that he should, therefore, only operated as an agreement, for the breach of insert in the charter-party the words "on being which an action would lie, and not as a condition pre-ready," and these words were inserted accordingly. cedent the breach of which would entitle the charterers to throw up the charter-party. This was an action brought by the plts. against the defts. for the recovery of damages for the loss sustained by the plts. by reason of the defts. having made default in shipping a cargo on board the plts.' vessel Ephesus under the circumstances hereinafter mentioned, and by consent of the parties, and by the order of Martin, B., dated the 2nd Aug. 1865, pursuant to the 46th section of the Common Law Procedure Act 1852, the following case (so far as is material) was stated without any pleadings. The pits. are shipowners carrying on business at Liverpool and London under the style and firm of Robert MacAndrew and Co., and were before and at the time of the transactions hereinafter mentioned, and have ever since continued to be, the owners of the steamer Ephesus. After the making of the said charter-party the plts. urged Messrs. Randolph, Elder, and Co., from time to time, to complete the fitting-up of the Ephesus with as much dispatch as possible, and did all that was in their power to expedite the completion of the vessel fit for sea. Between the time of the launch and the sailing of the ship from Newcastle, as hereinafter mentioned, several casualties occurred in the finishing of the engines and machinery, but Messrs. Randolph, Elder, and Co., were not guilty of any unreasonable delay in proceeding with the completion of the work. It is usual for steamers to make a trial trip before starting on their first voyage, and in order to have a satisfactory trial trip at Newcastle it is necessary for steamers to put out to sea, having to cross and recross the bar at the mouth of the Tyne-an operation accompanied by some risk in the case of |