have taken place in such a manner as not to have been capable of being prevented by ordinary skill and ordinary diligence. We were not to expect extraordinary skill or extraordinary diligence, but that degree of skill and that degree of diligence which is generally to be found in persons who discharge their duty. The evidence agreed with the preliminary act, that it was a very tempestuous night, and that the wind was blowing with considerable severity. Looking at all the circumstances, and considering where the vessels were anchored, the questions to be decided were, whether the collision was or was not the result of an inevitable accident, or whether any fault was imputable to the pilot of the Cuba, or whether, in the fair discharge of his duty, there was either a want of skill or gross negligence to which the blame of the collision could fairly be attributed? It had been said that the collision might have been avoided if the Thomas Powell had had steam power. As a fact there could be no doubt whatever that she had not steam power in a proper and usable condition; but whether that was neglect (looking at the circumstances of the case, and considering she was anchored and the state of the night), and an absence of reasonable precaution, are open questions. If the evidence of the pilot of the Cuba is to be believed, it was the Thomas Powell that came down upon the Cuba, and not the Cuba upon the Thomas Powell; but, on the other hand, it was but fair to observe there was the evidence of the mate of the Thomas Powell, who deposes just as strongly that the Thomas Powell never did break her shear, and that the collision was occasioned by the Cuba breaking her shear and coming down upon her. Under all the circumstances of the case, and on full consideration of the evidence on both sides, the court was of opinion that the Cuba was to blame for the collision, and that the blame was imputable to the pilot of the Cuba.

The Court was assisted by Capt. Were and Capt. Weller.

Monday, Nov. 20, 1866.

(Before the Right Hon. Dr. LUSHINGTON.) THE HANNAH PARK AND THE LENA.

66

Collision-Admiralty regulations as to rules of the road.
17th, 18th, and 19th regulations : Every vessel over-
taking any other vessel shall keep out of the way of
the vessel being overtaken, and where by such rules the
one ship is to keep out of the way, the other ship shall
keep her course, due regard being had, in the observance
of both these rules, and their observance being subject,
to all dangers of navigation, and to any special cir
cumstances which may exist in any particular case,
rendering a departure from such rules necessary in
order to avoid immediate danger."

Plea: "That a steamer overtaking a sailing vessel could
not comply with the first of the above regulations in
consequence of the state of the weather, and the
neglect on the part of those on board the sailing vessel
to take proper precaution to avoid a collision:"
Held, that the proof of such a plea was entirely on the

steamer, who must make out in her defence that it was
impracticable for her, in consequence of the state of
the weather, to have seen the sailing ship in time to
have avoided her; and that the steamer was pursuing
her course at a reasonable speed, such weather con-

sidered.

[ADM.

Dr. LUSHINGTON gave judgment in this case, which was an action brought against the owners of the steamship Lena, 875 tons, from Cronstadt for London, by the owners of the late brig Hannah Park, 259 tons, from the same ports of departure and destination, to recover for a total loss resulting from a collision between them in the Gulf of Finland, about 4 a.m. on the 15th Sept. last. On the part of the brig the wind was represented as N.W. by N. to N.N.W. and the weather clear and fine, blowing fresh with a strong sea; for the steamer, the former was stated as N.N.W., and the wind as blowing strong, with a heavy sea and a dark night. The case for the plt. was, that the brig was steering from W. to W. S. close-hauled on the starboard tack, exhibiting her regulation lights brightly burning, when the masthead light of the Lena was seen astern of her, distant three or four miles; that the Lena approached and brought both her side lights also into view, whereupon those on board the brig loudly hailed the steamer, notwithstanding which she ran stem on into the brig's stern with such violence as to cause her to sink in about two hours. The defence of the Lena set forth, that she was steering S.W. by W. W., and was proceeding under steam about eight and a half knots, carrying her proper lights brightly burning, when the brig was descried six lengths ahead of her, no light of any kind being visible on board her to those in the steamer; that, upon the brig being seen, the helm of the steamer was put hard a-port, and her engines were stopped and reversed, but nevertheless the steamer's port bow came in contact with the brig's starboard quarter; that after the collision the brig's crew boarded the steamer, and the brig sunk after daylight. There were three questions raised here: first, whether the collision was the result of inevitable accident; secondly, whether the steamer was solely to blame; and, either for omitting to show a light, or, after the thirdly, whether the brig herself was to blame, collision, in consequence of neglecting to do that which was incumbent upon her to do for the preservation of the property. It is agreed that the steamer was following very nearly, though not precisely, in the wake of the brig; and the Admiralty regulation states that "Every brig overtaking any other vessel shall keep out of the way of the said last-mentioned vessel." It is also provided that the vessel which precedes shall keep her course. manifest, the collision having actually taken place, and on behalf of the steamer it is said that she this regulation was not strictly complied with; could not comply with it in consequence of the state of the weather and the neglect of those defence is clearly and entirely upon the steamer. on board the brig. The duty of proving that She must make out affirmatively that it was impracticable for her, in consequence of such state of the weather, to have seen the brig in time to have avoided her; and, moreover, she must show that she was pursuing her course at that reasonable rate of speed, considering the state of the weather, that there was no impropriety of conduct in that respect which could avail against her. Regarding the conflict of evidence as to the

It is

darkness of the night, undoubtedly it was very great.

The time of collision may be fairly taken at a few
minutes, five or ten minutes, before four, and it is
admitted the day was breaking at that time. There
deration, viz., that on board the steamer it was said
is one
matter that ought to be taken into consi-
the brig was seen seven to eight ship's lengths off.
Taking it at seven, that is 1400 feet, which is more

than 400.yards. As to whether it was the duty or

not of those on board the brig to have hoisted a light, as a general proposition it must be admitted that it is the duty of those who see any chance of 2 A

C. P.]

FRY V. THE CHARTERED MERCANTILE BANK OF INDIA, LONDON, AND CHINA.

[C. P.

The

The Court was assisted by Capt. Pigott and Capt. Weller, of the Trinity-house.

COURT OF COMMON PLEAS. Reported by W. MAYD and W. GRAHAM, Esqrs., Barristers-at-Law.

Thursday, June 21, 1866.

FRY V. THE CHARTERED MERCANTILE BANK OF
INDIA, LONDON, AND CHINA.

Ship-Bill of lading-Freight payable as per charter-
party-Lien.

The vessel of the plts. was chartered at S. to ship cotton to L. under a charter-party containing the stipulation, the ship to have a lien on cargo for freight, 31. 108. per ton, payable on right delivery at the port of discharge." The goods shipped fell short of a cargo. The bill of lading of these goods stati "freight to be payable as per charter-party." The rest of the cargo was shipped at a lower freight. The defts. were indorsees for value of the bill of lading: Held, that the plts. had no lien on the goods for the while amount of freight, and that the provision as to freigh being payable as per charter-party only incorporated the charter-party as far as the rate of freight was concerned.

SPECIAL CASE.

Messrs. Sanderson, Frys, Rigge, and Co., the plts. in this action, carry on basiness as shipowners and merchants in St. Helen's-place, in the city of Lotdon, and are the owners of the ship Her Majesty.

an approaching collision to take all reasonable | opinion that the steamer was solely to blame for means in their power to avoid it; but this must the collision. depend on the circumstances of the case. third point is, whether or not after the collision occurred there was a dereliction from duty on the part of the master of the brig, in not adopting those measures which it is said could have been adopted to save the vessel. A case was cited where there was a collision with Her Majesty's ship Flying Fish, and the ship that came in contact with her was run ashore in the Bay of Rye some hours after the collision. The question arose then whether o not great damage had not accrued from the improper conduct of the master in not accepting the services offered to him by being towed off in that bay. I refused to hear that question discussed in the principal collision case; and I think when I come to look at the result I acted wisely, for when the matter came on as to the propriety of running her on shore, and the propriety of getting her off, fourteen or fifteen witnesses were examined, whose evidence was all contradictory and conflicting, when the question I should have put to the Trinity Masters would have been, whether the running her on shore was right or wrong. But whenever I meet with such a case again I will make a separate case of it. This is totally different, because all the witnesses here can speak to the facts, and no other witnesses could be produced. It has been said that the master of the brig was to blame for not having taken measures to prevent the ship sinking, that those measures could have been adopted, and with safety to the parties on board, and that the loss would have been avoided. In the first place, when the collision actually occurred, the master was left on board the vessel with, as he says, himself, a boy, and two seamen only. We must recollect, after a vessel of 876 tons, a steamer, has come immediately into collision with a brig of 259 tons, you cannot immediately expect that all on board the vessel run into are in entire possession of their wits so as to take all measures for their safety. Rational measures they must take. But at the same time they must not be expected to be very acute in their judgment, and it does not appear to me that after the collision anything could be done in the first instance. We will suppose that the rest of the crew were brought back from the steamer, and that the master had the power of getting all of his hands on board the brig; and that he had all his original crew. It has been said that the vessel remained afloat for the period of an hour and fifty minutes; the strong probability therefore is, under the circumstances, that she might have been saved. That that is a circumstance well deserving consideration I do not doubt, but it appears to me the main point in the case is the extent of damage which was actually done, because it must depend upon that whether there was danger of immediate sinking, or a probability that the danger could be temporarily repaired so as to bring the vessel into a state of safety. There is very little evidence from the steamer as to the extent of damage, and none that is satisfactory to my mind. The master of the brig described the hole as about as big as one of the windows of the court, and so large that the sea undoubtedly did from time to time get in. It was for the Trinity Masters, who assisted the court to say whether, under the circumstances, it was proved satisfactorily on the part of the steamer that the master of the brig neglected his duty; and by not doing that which might have been done with facility and safety, occasioned the ultimate sinking of his vessel, and the loss that has accrued. After carefully weighing the evidence on both sides, and upon the facts adduced, the court, under the advice and with the concurrence of the gentlemen who assisted it, is of

The defts. are a chartered banking company, carrying on business in London, and also at Shanghai in China, where they have a branch bank.

In the autumn of 1864 the said ship Her Majesty was at Shanghai, and was by a charter-party, date 14th Sept. 1864, chartered by Messrs. Dadabhoy and Co.. of that place, to take a full and complete cargo of cotton and [or] other merchandise, which they bound themselves to ship in the usual way for London or Liverpool as ordered.

Amongst other clauses the charter-party contained the following one, which is chiefly material in the

present case:

And, being so loaded, shall therewith proceed to London of Liverpool, as ordered at Shanghai, and deliver the said cargo on being paid freight as follows: - The ship to have a hen t cargo for freight. Three pounds ten shillings (31.10s.) stering per ton of fifty (50) cubic feet measured in Shanghai to be paid to captain or his agents on right and true delivery at pert of discharge (the act of God, the Queen's enemies, &c, always excepted). The freight to be paid on unloading sad right delivery of the cargo.

A fac-simile of the charter-party, which is partly in print and partly in writing, is annexed to and forms part of this special case.

After some difficulty and delay, the charterers, Dadabhoy and Co., succeeded in procuring for the said ship a full and complete cargo which, for the purposes of this case, is treated as divisible into three portions.

The first portion, consisting of 185 packages of tea and 42 bales of cotton, was shipped by the charterers themselves, and on their own account, under the bill of lading hereinafter set forth, the freight for the same being payable at the same rate as that agreed upon in the charter-party, and amounting, at 31. 10s. per ton, to the sum of 1014 8s. 10d.

The second portion (with respect to which similar questions arise between the pits. and other parties, viz., the Commercial Bank Corporation of India and the East) was also shipped by the charterers

C. P.] FRY V. THE CHARTERED MERCANTILE BANK OF INDIA, LONDON, AND CHINA.

under a similar bill of lading, and at the charter | the bills, to sell the said goods, and to apply the net pro eeds rate of freight.

The said Dadabhoy and Co., after the shipment of the above goods by them, applied to the defts.' branch bank at Shanghai to make them an advance upon the security of the same, and it was thereupon agreed that on receiving the bill of lading for the same, and also the letter of hypothecation hereinafter set out, the defts. should negotiate the draft of the said Dadabhoy and Co. for 1250l. on Mr. R. E. Gibson, of Liverpool, payable to the drawers' order, and by them indorsed to the bank.

The above arrangement was carried out, and in pursuance of it the defts. negotiated the said Dadabhoy and Co.'s draft upon the said R. E. Gibson for 12501., receiving from them at the same time the above-mentioned bill of lading, which was duly indorsed by them, and also the following letter of hypothecation :

The Chartered Mercantile Bank of India,
London, and China

Shanghai, 7th March 1865. We having this day negotiated with you our bills of exchange drawn on R. E. Gibson, Esq., of Liverpool, the particulars of which are noted at foot, and having at the same time handed to you as collateral security for the due payment of the said bills, the bills of lading and shipping documents belonging to us of the several goods also stated at foot, our agreement is understood to be as follows:

We hereby authorise the said Chartered Mercantile Bank of India, London, and China, and the holders of the above bills for the time being, to take conditional acceptances to all or any of such bills, to the effect that on payment thereof at maturity the above-mentioned bills of lading and shipping documents shall be delivered to the drawees or acceptors thereof, and such authorisation on our parts shall be taken to extend to cases of acceptance for honour.

We further authorise the said bank, or any manager or agent thereof, on default being made in acceptance on presentment, or in payment at maturity of any of the above bills, or on the drawees suspension of payment during the currency of

C. P.] Co., claimed to be entitled to delivery thereof upon payment of the freight for the same at the charter rate, viz., 37. 10s. per ton, amounting to 1017. 8s. 10d. The plts., however, claimed to be entitled to a lien thereon for the whole balance of the freight due and unpaid under the charter-party, as above mentioned.

FRY V. THE CHARTERED MERCANTILE BANK OF INDIA, LONDON, AND CHINA.

[C. P.

1112 tons, now lying in port of Shanghai, and Messrs. Dadabhoy and Co.

That the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenien: speed take on board in Shanghai a full and complete cargo of cotton and [or] other merchandise, cotton to be taken by measurement in Shanghai, the same to be placed alongside the ship within reach of her tackles, and not exceeding what she can reasonably stow and carry over and above her tackle,

The plts. and defts. entered into the following apparel, provisions, water, and furniture, and exclusive of the memorandum of agreement:

Memorandum. Whereas the Chartered Mercantile Bank of India, London, and China claim to be bona fide holders for value of a bill of lading, dated at Shanghai, 21st Feb. 1865, for 185 packages of tea, and a bill of lading, dated 8th Feb. 1865. for 42 bales of cotton, which said tea and cotton are now in the custody of the agents of the shipowners at Liverpool And whereas Messrs. Sanderson, Frys, Rigge, and Co., the owners of the said ship, claim payment of a balance of 1930. 48, 5d. as due to them for freight as per charter-party entered into by Messrs. Dadabhoy and Co. at Shanghai, and they have accordingly asserted a lien on the before-mentioned tea and cotton for the full amount so due to them. And whereas the said bank, as holders of the said bills of lading, deny the right of the shipowners as against them to their alleged lien for charter freight, and claim delivery of the said 185 packages of tea and 42 bales of cotton on payment of freight at the rate of 70s. per ton, and which freight amounts to 114 8s. 10d. And whereas Messrs. Sanderson, Frys, Rigge, and Co. have, for the purpose of enabling the holders of the said bills of lading, to deal with the said bank, held the said 185 packages of tea and 42 bales of cotton, without prejudice, and on the understanding hereinafter mentioned, on receiving payment of the lastmentioned sum of 1017. 8s. 10d. It is therefore mutually agreed by and between the said parties, that on payment of the said sum or 1017. 8s 10d. as and for freight on the said tea and cotton at the rate of 70s. per ton, the said Messrs. Sanderson, Frys, Rigge, and Co. will deliver the said bank an order on their agents at Liverpool for delivery thereof, it being nevertheless understood and agreed that for the purposes of any future proceedings it shall be considered that Messrs. Sanderson, Frys, Rigge, and Co. have asserted a lien on the said tea and cotton for the whole of their said claim of 19307, 4s. 5d., and that the said tea and cotton are to be delivered without prejudice to their right to recover against any party any sum beyond the said sum of 1017. Ss. 10d., the same to be determined as if the said tea and cotton still remained in the docks subject to their lien (if any). Dated 25th Sept. 1865.

The above goods were thereupon delivered to the defts. and sold, and the net proceeds thereof, amounting to 15147. 178. 11d., having been received by the bank, they have in hand (after retaining their claim on the goods) a balance of 2247. 12s. 7d. (subject to the deduction thereout of some law charges in reference to the matter), payment of which has been required of them by the trustees of Messrs. Dadabhoy and Co's deed of assignment.

For the purposes of the present case it is to be taken that this claim is good and valid in law or in equity as against Messrs. Dadabhoy and Co.

The questions for the opinion of the courts are:1. Whether the plts. had a lien as against the present defts. upon the said tea and cotton for the unpaid balance of freight due under the charterparty or any part thereof. have a lien or claim to the said surplus of 2241. 12s. 7d. 2. Whether the plts. less law charges over and above the defts.' claim, and whether the defts, ought to hand the same over to the plts.?

If the court should answer the first question in the affirmative, the judgment is to be entered for the pits. for 15147. 17s. 11d., being the net proceeds

of the shipments or such part as the court may determine, and costs of suit.

If in the negative, then if the court should answer the second in the affirmative, judgment is to be entered for the plts. for 2244. 12s. 7d. less the before-mentioned legal charges, but without costs of

suit.

If the court should answer both questions in the negative, then judgment is to be entered for the

defts. with costs of suit.

poop and cabins, which shall remain for the use and benefit of the captain and owners; the said George F. Seymour to provide all necessary dunnage and ballast, and, being so loaded, shall therewith proceed to London or Liverpool, as ordered by charterers before final sailing of the vessel from Shanghai, or as near thereto as she may safely get, and deliver the said cargo ou being paid freight as follows: the ship to have & lien on cargo for freight three pounds ten shillings (1) sterling per ton of fifty (50) cubic feet, measured in Shanghai, to be paid to captain or his agents on right and true delivery at port of discharge.

The act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and naviga tion, of what nature and kind soever, during the said voyage, always excepted.

The freight to be paid on unloading and right delivery d the cargo. The ship at port of discharge to be consigned to the owners or their agents; lay days to commence twenty. four hours after written notice being given the charterers that the vessel is ready to receive cargo; seventy working days to be allowed the charterers for loading the ship. All cargo is to be loaded and discharged by people employed and paid by the ship. All port charges and pilotage at Shanghai, as also at London or Liverpool, are to be borne by the ship; denarrage beyond that time to be paid by the charterers at the rate of eighty (80) Mex. dollars per day, paid in advance. Com mission as customary, to be paid to the brokers by ship gross amount, earned under this charter. Penalty for nonperformance of this agreement the estimated amount of freight Witness,

F PORTER,
R. BYRANY.

GEORGE F. SETMOUR
DADABHOY and Co.

Watkin Williams, for the plt., cited
Faith v. The East India Company, 4 B. & Ald. 630;
Chappell v. Com fort, 10 C. B., N. S., 802;
Wegener v. Smith, 15 C. B. 285;

Kern v. Deslandes, 10 C. B., N. S., 205; 5 L. T. Rẹp.
N. S. 349;

Saunders v. Vanseller, 4 Q. B., 260, 290;
Smith V. Sieveking, 4 E. & B. 945.

Quain (Field, Q. C. with him) for the defts.:
Russell v. Nieman, 17 C. B., N. S., 163; 10 L. T.
Rep. N. S. 786.

Williams in reply.

ERLE, C. J.-I think our judgment should be for the defts. The case turns on the construction of the words in the bill of lading, "freight payable as per charter-party." The freight as per charter-party is 31. 10s. per ton of fifty cubic feet, port of discharge. measured, &c., on right and true delivery at the words refers us to the charter-party for the rate of The true construction of the freight, and that is 31. 10s. per ton. The charterhave a lien on cargo for freight, and it is contended party contains a stipulation that the shipowner is to that the shipowner has a right to demand the whole of the freight for every portion of the cargo from the holder of this bill of lading for these 500 bales. I think he has no right of lien for the whole party as to the amount of freight, but not the other cargo. The bill of lading incorporates the charterterms of the charter-party. Is the stipulation that the shipowner is to have a lien for freight intended to enable him to hold these goods till the whole Willes, J. in Chappell v. Comfort is applicable to this 7607 is paid? I think it is not. The judgment of case, and I agree with the opinion there expressed; but if you wish to import anything more than the lading, so as to give notice to the innocent holder. rate of freight, the words should appear in the bill of It is effectual as to the amount of freight only.

M. SMITH, J.-I am of the same opinion. The question in this case is, what is the meaning of the contract under the bill of lading. I think it should

SUTHERLAND v. ALLHUSEN AND ANOTHER.