this assistance, there is, I think, great force in the - argument which has been pressed upon us, that if the construction contended for by the deft. were the true one, the words “or claim arising from jettison or leakage," would be perfectly superfluous as being synonymous with the word "average." I think, therefore, that the true way of reading it is, "free from average or claim arising from jettison or leakage" so as to make "average or claim" refer to jettison or leakage ;" and that the word "claim" was put in to enlarge the word "average" in case there might be any claim which the parties might think not to fall within the term "average." WIGHTMAN, BLACKBURN and MELLOR, JJ. gave Plts.' attorneys, Oliverson and Co. Nov. 17, 1863, and Feb. 22, 1864. Marine insurance Non-liability of assurer for damages Coey v. Smith (supra); 22 Vict. c. 10, s. 7; 17 & 18 Vict. c. 104, ss. 509, 523. [Q. B. Sir G. Honyman, in reply, referred to Feb. 22.-MELLOR, J.-This case was argued before the Lord Chief Justice, the late Mr. Justice Wightman, my brother Blackburn and myself, and the question in the case turns on the effect to be given to a clause in a policy of marine insurance, of recent known by the name of the "collision clause," the introduction into such instruments, and generally object of which is to secure the shipowner against damages which he may be compelled to pay for injury done to others by his vessel coming into collision with another, either through accident or negligence, such damage not being by the law of England, as settled by the case of De Vaux v. Salvador, 4 A. & E. 420, recoverable under a policy of insurance in the ordinary form. In the present case the clause is as follows: "In case the vessel shall by accident or negligence of the master and · In a marine policy of insurance there was a clause as follows: "In case the vessel shall by accident or negli and the assured shall thereby become liable to pay crew run down or damage any other ship or vessel, gence of the master and crew run down or damage any and shall pay as damages any sum not exceeding other ship or vessel, and the assured shall thereby become the value of the said vessel and her freight, by or in liable to pay and shall pay as damages any sum not exceed·ing the value of the said vessel and her freight. pursuance of any judgment of any court of law or equity, the assurers shall pay such we, the assurers, shall and will bear and pay such propor-proportion of three-fourths of the sum so paid, tion of three-fourth parts of the sum so paid as as the 40007. assured bears to the value of aforesaid as the sum of 4000l. hereby assured bears to the ship and her freight." The vessel insured the value of the said vessel Rouen and her freight: under this policy, the Rouen, having come into Held, that the liability of the insurer under this clause collision with and run down another ship called the does not extend to damages paid by the assured in Magyar, and the master and five of the crew of respect of loss of life or personal injury arising from the latter having been drowned, the owners of the collision through negligence. Rouen have, by the judgment of the Court of Admiralty, been condemned to pay damages to the personal representatives of the deceased, and such damages have been paid accordingly; and the question raised by the demurrer in this case is, whether, under the clause in question, the amount thus paid can be recovered back, the controversy being, whether the provision for indemnity applies to damages paid by the assured in respect of personal injury arising from collision through negligence. We are, after much consideration, of opinion that it does not, and that our judgment should be for the defts. It was contended on the part of the plt., that the death of the deceased having been occasioned by the running down of the Magyar, through the negligence of the master and crew of the ship insured, the damages which the plt. had been condemned to pay were within the words of the clause, and must be held to be within the indemnity. But it is to be observed on the other hand, that the language of the clause is altogether silent as to personal injury. It speaks of the vessel insured, "running down or damaging any other ship or vessel," and of "the assured thereby becoming liable to pay damages." It seems to us that the more reasonable construction is to consider the This was a demurrer to a declaration. The declaration was upon a policy of marine insurance effected with the deft. upon the hull and furniture of a ship called the Rouen, which policy ⚫ contained a clause as follows: "And we, the assurers, - do further covenant and agree that in case the said vessel shall by accident or negligence of the master or crew run down or damage any other ship or vessel, and the assured shall thereby become liable to pay and shall pay as damages any sum or sums not exceeding the value of the said vessel the Rouen, and her freight, by or in pursuance of any judgment - of any court of law or equity, we, the assurers, shall and will bear and pay such proportion of three-fourth parts of the sum so paid as aforesaid - as the sum of 4000l. hereby assured bears to the value of the said vessel Rouen and her freight." The declaration then averred that the said vessel the Rouen ran down the Magyar and sunk her with her master and crew, and that the owner (the plt.) had to pay a sum of money to the personal representatives of the deceased master and crew, whereof he now claimed three-fourth parts under the terms of the said policy. Sir G. Honyman, in support of the demurrer, argued that the above clause in the policy did not cover loss by reason of money paid for personal injuries to persons on board the ship damaged, and that, in order to render the underwriters liable, the loss sought to be recovered must be attributable to the ship having run down or damaged the other ship, and that only: De Vaux v. Salvador, 4 A. & E. 420; Coey v. Smith, 22 Court of Ses. Cas. 955. Manisty, Q.C. (J. Brown with him) contended that the deft. was liable, there being nothing in the language or object of the clause to confine it to damages done to the vessel run down : damages herein referred to as limited to such damages as shall be payable in respect of the loss of or damage done to the ship run down or damaged, or possibly as extending to her freight or cargo, which for this purpose may perhaps be treated as part of herself. This view becomes very materially strengthened when it is considered that the present is a policy of marine insurance, and that hitherto policies of marine insurance have never been applied to the purpose of insurance against loss of life, or indemnity in respect of personal injury arising from perils of the seas. This being so, it appears to us more reasonable, in the absence of express agreement, to limit the general language of Q. B.] DAKIN v. OXLEY. on the clause to those matters which have alone been the subject of marine insurance. And it is to be observed, that the clause provides not only for damage occasioned by negligence, but also for damages arising from accident; the latter provision being, probably, introduced to meet the possible case of the vessel becoming subject to a foreign jurisdiction in a country by the maritime law of which, in case of accident, the damage is to be divided. Now, it is clear, that the shipowners never could be liable for damages for loss of life or personal injury arising from accidental collision; their liability to such damages depends the relation of master and servant between them and those whose negligence occasions the death or personal injury; and the running down or damaging the other ship is only material in so far as it may connect the death or personal injury with that negligence. By providing in the same sentence for the case of accident as well as for that of negligence, the parties would appear to have been looking to what might become payable in respect of damage to the ship, not to those on board of her, who never could have any claim in respect of injury arising from accident. There is a further circumstance deserving of notice. By the terms of the policy the liability of the underwriters is limited to such proportion of three-fourths of the sum paid as the 4000 assured bears to the value of the ship insured and her freight." Now, this must be taken to mean the actual value of the ship and freight. But, by the express provision of the 504th section of the 18 & 19 Vict. c. 104, in no case where liability is incurred in respect of loss of life or personal injury to any passenger, shall the value of any ship or freight be taken to be less than 157. per register ton. The absence of any reference to this special provision in the case of damage arising in respect of loss of life or personal injury, tends strongly to show that the parties were contemplating the case of damage paid in respect of loss of, or damage to, the ship and her appurtenances, as to which the statutory enactment as to value would not apply. We regret that, in coming to this conclusion, we find ourselves in conflict with the decision of the Court of Session in the case of Coey v. Smith, Court of Sess. Cas. vol. 22, p. 956, to which our attention was called on the argument. The words in the policy in that case are not, indeed, identical with these occurring in the present, but we think they are in substance the same; and it is, therefore, with very great reluctance that we find ourselves compelled to differ from a court whose decisions, although not binding on us, are entitled to the highest consideration at our hands. But, after the best consideration we have been able to give to the case, we cannot arrive at any other conclusion than that the view taken by the Lord Ordinary in that case was the right one, namely, that on such a clause as the present, occurring in a policy of marine insurance, the liability of the insurer does not extend to damages paid by the assured in respect of loss of life or personal injury. Our judgment will therefore be for the defts. Judgment for the defts. [C. B. COURT OF COMMON BENCH. Reported by W. MAYD and L. SMITH, Esqrs., Barristers-at-Law. Monday, Jan. 18, 1864. DAKIN v. OXLEY. Shipping-Freight-Right of shipowner to recover for freight when by reason of his negligence the cargo has "been damaged." An action was brought on a charter-party by the shipowner for freight due, to which the charterer pleaded that by the fault of the master and mariners of the vessel, and by reason of their negligence and unskilfulness in the navigation and management of the vessel on the voyage, and not otherwise, the cargo was so damaged and deteriorated in condition during the voyage, that on its arrival at the port of destination it had become of less value than the amount of the freight, and that thereupon the deft. abandoned the cargo to the plt. for the freight, and was thereby discharged from payment of the freight: Held, that the plea was bad on demurrer. Declaration.-For that by a certain charter-party in which the plt. was described as Capt. Geo. Dakin, of the British good ship or vessel called the Contest. it was mutually agreed by and between the plt. and the deft. that the said ship being tight, staunch and strong, and every way fitted for the voyage, should, without any delay, sail and proceed to Newport, Mon., and there take on board in the usual and customary manner from the factors of the defts. a full and complete cargo of coals, which was to be brought to and taken from alongside at merchant's risk and expense, not exceeding what she could reasonably stow and carry over and above her tackle, apparel, provisions, and furniture (including a sufficient supply of coals for ship's use during the voyage which the plt. bound himself to take on board), and being so loaded, should therewith proceed to Nassau, N. P., and there deliver the same on being paid freight at and after the rate of 22s. 6d. sterling per ton of 20 cwt., delivered in full of all port charges whatsoever, including trimming, customary dues, lights and pilotage; the act of God, the Queen's enemies, fire, frosts, riots and strikes of pitmen, and all and every other damages and accidents of the sea, rivers and navigation, mines and works of whatever nature or kind soever during the said voyage, always excepted. The freight to be paid on the right and true delivery of the cargo in cash at current rate of exchange, or approved bills on London, at sixty days' sight, one-half freight to be advanced on signing bills of lading by acceptance at three months less 5 per cent., for all charges; seven days is to be allowed the said merchants (if the ship is not sooner dispatched) for loading, and the ship to be discharged (weather permitting) at not less than thirty tons per running days, Sundays excepted, and the defts. to have the option of keeping the ship for ten days on demurrage over and above the said laying days at 51. per day; the said vessel to be addressed to the deft.'s agents at the port of discharge, paying 2 per cent. commission on amount of freight; and the plt. says that the said ship sailed and proceeded to Newport aforesaid, and there took on board a full and complete cargo of coals according to and in pursuance of the said charter-party, and being so loaded, proceeded therewith to Nassau aforesaid, and all things have happened and been done, and all conditions precedent have been performed and fulfilled, and all times have elapsed necessary to entitle the plt. to maintain this action for the breach of the charter-party in this count complained of; and, although a large amount of freight, to wit, 2531. 2s. 6d., is due to the plt. according to the said charter party, the deft. has not paid to the plt. the said amount, or any part thereof, either in cash or in bills, according to the terms of the said charter-party, but has wholly made default in so doing; and the plt. also sues the deft. for money payable by the deft. to the plt. for freight for the conveyance by the plt. for the deft. at his request of a certain cargo of coals in a certain ship, and for money found to be due from the deft. to the plt. on accounts stated between them; and the plt. claims 5001. The sixth plea, which alone was material, was as follows: Sixthly, and for a further plea to the first and second counts of the said declaration the deft. says that the said cargo of coals in the said first count mentioned, and the said cargo of coals in the said second count mentioned, were and are one and the same cargo, and that the freight alleged to be due to the plt. according to the said charter-party and in the said first count mentioned, and the alleged freight for the conveyance by the plt. of the said cargo of coals as in the said second count mentioned, were and are one and the same freight. And the deft. says that the said cargo of coals became by the fault of the master and mariners of the said vessel, and by reason of their negligence and unskilfulness in the navigation and management of the said vessel on the said voyage, and not otherwise, so greatly damaged and deteriorated in condition during the said voyage, that on the arrival of the said cargo of coals at the said port of discharge, the same had become and were then of less value there than the amount of the said freight, and that thereupon the deft. abandoned the said cargo of coals to the plt., to wit, for the said freight, and was thereupon and thereby discharged from payment of the said freight. Demurrer and joinder in demurrer. Cohen in support of the demurrer.-It will probably be contended that no service was done to the merchant by conveying a cargo which became of less value than the freight; but the principle on which it is sometimes possible to defend an action for work done on the ground of its turning out to be useless, is only founded on the principle of avoiding the necessity of a cross-action. This is fully explained in 2 Sm. Lead. Cas., 22. In Mondel v. Steele, 8 M. & W., Parke, B. says, that that principle does not apply to freight. Moreover, and this is conclusive to enable that principle to be applied, it must always be shown that the damages in the crossaction would at least equal the sum claimed in the principal action, and therefore the plea is bad because it does not state that by reason of the negligence of the mariners the cargo was deteriorated in an amount equal to the freight. In fact, the damage might amount to 100%, whilst the freight amounted to 1000l. The defts. however, may say that the whole of the enterprise of the merchant was frustrated by reason of the damage. Now of course the delivery of the cargo in an undamaged condition is not a condition precedent to the right of freight, or else, if one ton of coals had been negligently lost or damaged, the merchant could refuse to pay the freight and reject the whole cargo; and it is conclusively shown in Behn v. Burness, 8 L. T. Rep. N.S. 207, that whether something is or is not a condition precedent cannot depend on the happening of an event subsequent to the contract, even though that event may frustrate wholly the object for which one party entered into the contract. In fact, if the deft. had pleaded that the cargo which the plt. was only ready and willing to deliver had been damaged by the negligence of the mariners, so as not to be worth the freight, the plea would have been clearly bad, because the delivering of a cargo damaged by negligence is not and cannot become a condition precedent to the title to freight. to Abbott on Shipping, 324; [C. B. He also referred Kent's Commentaries, lib. 2, 225; Vlierboom v. Chapman, 13 M. & W. 230; Basten v. Butler, 7 East, 479. Brett, Q. C., contra, referred to Luke v. Lyde, 2 Burr. 882; Lutwidge v. Grey, 891; The Consolato del Mare, c. 192. Cur. adv. vult. WILLES, C.J. now delivered the judgment of the court.-This is an action by shipowner against charterer to recover the freight of a cargo of coal carried from Newport to Nassau. The first count is upon the charter-party. The second is the common count for freight. The deft. pleads that by the fault of the master and crew, and their negligent and unskilful navigation of the vessel, the coal was damaged, so as upon arrival at the port of discharge to be then of less value than the freight, and that he abandoned it to the shipowner. The plea, as it does not deny, admits that the cargo arrived as coal, and that it was of some value. The plt. demurs, and the question for us to consider is, whether a charterer whose cargo has been damaged by the fault of the master and crew, so as upon arrival at the port of discharge to be worth less than the freight, is entitled to excuse himself from payment of freight by abandoning the cargo to the shipowner. We think not; and we should not have taken time to consider but for the general importance of the subject, and of its having been suggested that our law was silent upon this question, and that the plea was warranted by the usage and law of other maritime countries, which it was said we ought to adopt. The principal foreign authorities upon the effect of damage to the cargo upon the right to freight are referred to in Abbott on Shipping, part 4, c. 9, pp. 324 et seq. of the 10th edition, by Serjt. Shee. The ancient and modern French laws are stated and discussed in Boulay-Paty, Cours de Droit Maritime, vol. 2, pp. 484; et seq. The Spanish law is to be found in articles 787 to 790 of the Codigo de Comercio, and in de Bacardi's Diccionario del Derectio Maritimo, title "Flentamento." The law of the United States is laid down in 1 Parsons on Maritime Law 172, n. The continental authorities are not altogether consistent with one another, and, in so far as they tend to sanction this plea, they seem to have been founded upon two notions: first, that the cargo is the sole and exclusive security for the freight, to which the shipowner ought to be contented to look, and by abandoning which the merchant ought to be allowed to free himself from any responsibility; and, secondly, that in the case of culpable damage the freight is forfeited. The first of these propositions was maintained by some even in the case of fortuitous damage (2 Boulay-Paty, 44 et seq.; Casaregis de Commercio, Discursus 22, p. 60, No. 46); and it has even been insisted, but unsuccessfully, that it applied to the case of undamaged goods: (Gilbert's Code de Commerce, note 3 to art. 310, p. 89 of the edition of 1854.) This doctrine, as applied to fortuitous damage, must, however, now be considered as exploded, upon the plain ground that a contract to' pay for the carriage of a thing in money cannot be satisfied by a cession of the thing itself in a damaged state to the carrier against his will. With respect [C. B. to goods damaged by the fault of the master, it has | standing that it is damaged, whether fortuitously also been laid down in general terms, in conformity or culpably, so as to be worthless, the freight with the second of the governing ideas already is saved, although, in case of culpable damage, setstated, that the master, besides being liable for the off is allowed. This allowance of set-off, it must damage, shall lose his freight. This was the law of be observed, affects procedure only; so that we the Hanseatic League (2 Pardessus' Collection of could not adopt it even in the case of a contract Ancient Maritime Codes, p. 550), and of other com-made where such law prevails. Indeed, in this case, mercial nations: (1 Casaregis de Commercio, Discur- a set-off could not avail the deft.; for the damage is sus 23, Nos. 85 to 89, p. 66.) Casaregis, besides being not alleged to have been equal to the freight. It one of the best commercial lawyers who wrote before ought to be borne in mind, when dealing with such the introduction of the modern code, has given in his cases, that the true test of the right to freight is elaborate work references to the more ancient writers, the question whether the service in respect of which and we content ourselves with referring to his the freight was contracted to be paid has been summary of the law as then understood upon the substantially performed; and, according to the law continent. He was born at Genoa, in 1675, and of England, as a rule, freight is earned by the died in 1737, after having been for twenty years a carriage and arrival of the goods ready to be dejudge of the Rota of Florence. In one of the livered to the merchant, though they be in a passages last referred to (No. 85), that great lawyer | damaged state when they arrive. If the shipowner first states that the effect of culpable damage was fails to carry the goods for the merchant to the to work a forfeiture of freight, "non solum tenetur destined port, the freight is not earned. If he navarchus ad emendationem damni ejus dolo, vel carry part, but not the whole, no freight is payable culpa mercibus obventi sed mercedem sive in respect to the part not carried, and freight is paynaulum etiam prætendere non potest." Here the able in respect to the part carried, unless the doctrine of forfeiture is clearly asserted, and the charter-parter make the carriage of the whole a same in No. 16 of the same discourse. The author condition precedent to the earning of any freightthen proceeds to state, that, where damage is occa- a case which has not within our experience arisen sioned by accident, without fault, the merchant in practice. As to freight pro rata itineris, in remay abandon if he thinks proper: "Adverte tamen spect of goods accepted and their future carriage quod si merces corruptæ vel vitiatæ fuerint ob casum waived, at an intermediate port, it becomes due, fortuitum, non culpa navarchi, mercator tenebitur not under the charter-party, but by a new integrum naulum solvere, vel si ei non inter erit contract, inferred from the conduct of the integrum naulum solvere poterit loco nauli merces parties, so that we need not stop to discuss relinquere, et ratio est quia naulum debetur propter it. It was in such a case that Lord Mansfield, merces." He goes on to state, upon the authority in Luke v. Lyde, 2 Burr. 882; 1 W. Bl. 190, said, of Targa, that this only applies in favour of the that the merchant, "if he abandons, is excused consignee, and not of the charterer of the entire ship, freight, and he may abandon all though they are not who is bound by his contract to pay the stipulated all lost." This is correct, if instead of "abandon freight upon the arrival of the goods: "Id procedit be read “decline to accept," because it is clear that in mercatore, cui consignandæ sunt merces à navi | when the goods have not been carried all the way conductæ, cesus in naulizatore totius navis, quia the merchant need not, in order to prevent a liability ille indistinctè tenetur semper naulum conventum for freight pro rata, give up the property to the pro tota navis locatione solvere: (Targ. Ponder. Marit. shipowner; and abandonment, in maritime law, inc. 84, s. per ei noli.") Moreover, he adds, that in the volves a giving up of the property. Little difficulty case of culpable damage, it is not competent to the exists in applying the above test where the cargo merchant to abandon the cargo to the ship- upon arrival is deficient in quantity. Where the owner and the claim of the whole value, except cargo, without loss or destruction of any part, has where the goods are reduced to a state of become accidentally swelled (Gibson v. Sturge, 10 uselessness or nearly so; clearly showing that Ex. 622), or perhaps diminished, as by drying the right of abandonment in such a case affected (Jacobson's Sea Laws, book 3, c. 2, p. 220) freight the amount of damages, and not the freight. In (usage of trade apart) is payable upon the quantity No. 89, citing John de Hevia, a Spanish writer of shipped, because that is what the contract refers to. repute, Casaregis expressly says: "Non autem est The Spanish Code of Commerce makes a distinction in electione dominorum mercium, aut recipere res between decrease and increase. Article 787 provides deteriorates et petere damnum vel eas relinquere that the entire freight shall be due for goods which magistro et petere ut solvat pretium, sed illas are deteriorated or diminished by accident without præcisè recipere debent, et petere à magistro fault (caso fortuito) by intrinsic defect, or by the damnum, quod passæ fuerint, præter quam si bad quality and condition of the packages. On the hujusmodi damnum esset inutile quià ferè res re- other hand, article 791 enacts, that if the merchandactæ fuerint ad inutilitalis statum, tunc enim illas dise is increased in bulk or weight by natural causes, relinquere poterunt et simul pretium ab eo petere, the merchant shall pay freight in proportion to the ad latè tradita: (per Hæviam de Commercio Navale, excess. In the case of an actual loss or destruction c. 12, n. 38.") It should seem, therefore, that the by sea damage of so much of the cargo that no notion of the cargo being the sole security in case of substantial part of it remains; as, if sugar in mats, fortuitous damage, and that of forfeiture of freight shipped as sugar, and paying so much per ton, is by culpable damage, neither of which is consistent washed away, so that only a few ounces remain, with our law of contracts, was the prevailing idea and the mats are worthless, the question would arise amongst those lawyers who held an abandonment to whether, practically speaking, any part of the cargo be a satisfaction of freight, and that it was not a contracted to be carried has arrived. Such a case condition in their laws that the cargo should be seems to be within the principle of the French ordiworth less than the freight, although practically it nance, and the second clause of art. 310 of the Code de was only in such a case, or where he wished to get Commerce, though they are both in terms confined rid of a troublesome adventure, that the merchant to the case of liquids where all, or nearly all, has would, with his eyes open, exercise the right to leaked out, so as to include molasses, but not sugar. abandon. We have to add, that the law of the Pothier, "Sur la Charter-partie" (4th vol. of Pothier's United States is unfavourable to this plea. Pro- Works, by Bugnet, p. 404) deals with these as cases fessor Parsons, in his learned work on Maritime in which the thing contracted to be carried has Law, vol. 1, p. 172, lays down as the rule of those perished before arrival. The Spanish Code of ComStates, that, if the cargo arrives in specie, notwith-merce, art. 790, after enacting that the shipowner C. B.] THE SUBMARINE TELEGRAPH COMPANY v. Dixon. cannot be compelled to receive the cargo, whether damaged or not, in payment of the freight, arbitrarily laid down, as to liquids of which more than half has been lost, that the merchant may abandon for the freight. A reference to these provisions is enough to show that the task of finding an uniform rule in modern commercial law is at present impossible. Where the quantity remains unchanged, but by sea damage the goods have been deteriorated in quality, the question of identity arises in a different form; as, for instance, where a valuable picture has arrived as a piece of spoilt canvas, cloth in rags, or crockery in broken shreds, iron all-or almost all-rust, rice fermented, or hides rotten. In both classes of cases, whether of loss in quantity or change in quality, the proper course seems to be the same, viz., to ascertain from the terms of the contract, construed by mercantile usage, if any, what was the thing for the carriage of which freight was to be paid, and by the aid of a jury to determine whether that thing, or any and how much of it, has substantially arrived. If it has arrived, though damaged, the freight is payable by the ordinary terms of the charter-party; and the question of fortuitous damage must be settled with the underwriters, and that of culpable damage in a distinct proceeding for such damage against the ship, captain, or owner. There would be apparent justice in allowing damage of the latter sort to be set-off or deducted in an action for freight; and this is allowed in some (at least) of the United States: (1 Parsons on Merc. Law, 172, n.) But our law does not allow deduction in that form, and as at present .administered, for the sake, perhaps, of speedy set.tlement of freight and other liquidated demands, it affords the injured party a remedy by cross.action only: (Davidson v. Gwynne, 12 East, 381; Stinson v. Hall, 1 Hurl. & N. 831; Sheils, or Sheilds, V. Davies, 4 Camp. 119; 6 Taunt. 65; the judgment of Parke, B., in Mondel v. Steele, 8 M. & W. 858; The Don Francisco, 6 L. T. Rep. N. S. 133, per Dr. Lushington.) It would be unjust, and almost absurd, that without regard to the comparative value of the freight and cargo when uninjured, the risk of a mercantile adventure should be thrown upon the shipowner by the accident of the value of the cargo being a little more than the freight, so that a trifling damage, much less than the freight, would reduce the value to less than the freight; whilst, if the cargo had been much more valuable, and the damage greater, or the cargo worth a little less than the freight, and the damage the same, so as to bear a greater proportion to the whole value, the freight would have been payable, and the merchant have been put to his cross-action. Yet this is the conclusion we are called upon by the deft. to affirm in his favour, involving no less than that damage, however trifling, if culpable, may work a forfeiture of the entire freight, contrary to the just rule of our law, by which each party bears the damage resulting from his own breach of contract, and no more. The case above supposed is not imaginary; for it has actually occurred on many occasions, and notably upon the cessation of war between France and England in 1748, which caused so great a fall in prices that the agreed freight in many instances exceeded the value of the goods. The merchants in France sought a remission of freight or the privilege of abandoment, but in vain: (2 Boulay-Paty, Cours de de Droit Commercial, 485, 486.) It is evident enough from this review of the law that there is neither authority nor sound reason for upholding the proposed defence. The plea is naught, and there must be judgment for the plt. Judgment for the plt. Wednesday, Jan. 20, 1864. [C. B. THE SUBMARINE TELEGRAPH COMPANY v. DIXON. Submarine telegraph-Liability of shipowners for damage done to the cable-Negligence. In an action for damage done through negligence to the telegraphic cable of the plts. by reason of its being dragged and broken by an anchor from the defts.' ship, the defts.' pleaded that they were aliens, and that their vessel was more than three miles from the seashore of England and out of the jurisdiction, and that in the usual and ordinary course of navigation the ship had occasion to cast anchor and afterwards got it up again, and that the anchor, without any default of the defts.", and in consequence of the effect of the winds and waves upon the vessel, dragged the cable, and became entangled in it, and was necessarily a little injured; and that there was no buoy to mark the position and existence of the cable, of which the defts. were wholly ignorant : Held, that the plts. had a good cause of action, as it must be inferred that shipowners were aware of the existence of those cables, and therefore were bound to navigate their vessels with such care and skill as not to damage them. Declaration, for damaging a submarine telegraph cable laid down within three miles from the shore. The second count was the same as the first, only varying the distance from three to eight miles from the shore. Demurrer and joinder to first and second counts. Fifth plea, as to the said first count, that the cable was lying more than three miles from the seashore of England, and therefore out of the realm, that the vessel was and is a Swedish vessel, and not subject to the laws of England; and that the anchor was cast in the regular course of navigation, and that in consequence of the effect of the wind and waves upon the vessel dragged and became entangled with the part of the cable, and that on getting up the anchor it became necessary to disentangle it from the cable, and that in so doing it was necessarily a little dragged and injured; and also that there was no buoy or mark of any kind to show the spot in which the cable was lying, which was at the bottom of the sea and incapable of being seen, and the place and position and existence thereof was wholly unknown to the defts. and their servants having the management, direction, and control of the said vessel and anchor. The ninth plea to the second count was to the same effect as the fifth plea to the first count. A replication to this plea averred that defts. had means of knowledge of the existence of the cable, and where it lay, and it was through the carelessness, negligence and want of ordinary or any care of the defts. and their said mariners and servants that they did not know of the position and existence of the cable; that the anchor was not cast and got up in the due course of navigation, and that it was through the carelessness and mismanagement and culpable want of knowledge of the defts. that the grievance occurred. Third replication to so much of the fifth plea as alleged the grievances to have been committed out of the realm, the plts. averred that one end of the telegraphic cable was fastened to the soil of the county of Kent, and carried thence across the seashore of the county unto and into the sea abutting thereon, and the part injured was within three marine miles of the seashore and coast of the county of Kent. And by way of new assignment the plts. alleged that the part of the cable injured was within three miles of the shore, and that defts. were informed and had express notice of, and well knew, the position and existence of the cable, and were warned |