loss of the clothes and the imprisonment. In my judgment, the deft. is entitled to a new trial unless the plt. consents to confine the verdict to 127. 10s., the amount given by the jury on account of the

wages.

CHANNELL, B.-After the pains taken by the Lord Chief Baron at the trial to have the damages separately assessed with respect to the imprisonment and the clothes, it is not without great regret that I come to the conclusion that, unless the parties consent to reduce the verdict below 30%, there should be a new trial. I am of opinion that the plt. is not entitled to recover in respect of the imprisonment, and I am equally of opinion that he is not entitled to recover in respect of the clothes. I think it unnecessary to repeat the observations that have been made by my brothers Bramwell and Martin upon that subject. I am not to be understood to say that, in my opinion, the damages might not, and properly so, exceed the amount of the wages that the plt. would have earned had the voyage been performed, but he is not entitled, in my judgment, to recover in respect of the imprisonment or of the clothes. It is possible that the 301. may include some claim in respect of the imprisonment which ought not to be an item introduced into that calculation. Therefore I think the verdict for that amount cannot stand, and that there should be a new trial.

KELLY, C.B.-I must express my regret that I have to differ with my learned brethren on both the points on which they have given judgment. With respect to the general damage, I thought at the trial, and I still think, that as by reason of the breach of contract by the deft. in placing the vessel under the orders of the Peruvian ships of war, he had left the plt. no alternative between serving on board the vessel and so putting his life and liberty in peril, and landing at Rio, and there remaining till he could find a ship in which he could return to England, the jury might reasonably give damages in respect of such expenses, inconveniences, and hardships as the plt. might have incurred during his compulsory residence there, and as the danger would have been greater if he had been obliged to land on a desolate island, without food or clothing, and among savages, than if he had been left in a town where, at a small expense he could be wel provided for, so I thought the jury might consider the difference between his being left in a place of security against all but ordinary risks and inconveniences, and his finding himself in this town of Rio, exposed to the consequences of his having belonged to a vessel engaged in the hostilities then being carried on between Peru and Spain, and, therefore, that if they thought the imprisonment of the plt. had resulted from the state of things at Rio, thus created by the deft. himself, they might fairly take it into account in estimating the damages. I am confirmed in this view of the case by what appeared to me at the trial as not improbable from the letter of the police officer to the consul, and which is now made certain by the affidavit filed on behalf of the deft., namely, that the apprehension and imprisonment of the plt. was upon the information of some one belonging to these very Peruvian vessels, perhaps Borras himself, charging that he and the other sailors who landed were Peruvian deserters. The consul, in his letter which is now before us, which was, I believe, read at the trial, but not perhaps very much adverted to, says, "It appeared to me that the crew were committing no breach of neutrality by fulfilling the terms of their contract, and that there could be no penalty attached to them even if the ship should be again employed in carrying stores for the Peruvian vessels of war." The police officer

66

[Ex.

says, These seamen," including the plt., "were apprehended on the 28th April from information given by Charles Pector, that they were deserters from a Peruvian vessel of war, and were all found concealed in the house of Ildefonso Vasques, a Spaniard, situated in the Rua Diario Louis de Gonzaga, No. 67B, Santa Cristiana." This man, after being questioned, stated that the thirteen prisoners left the Peruvian vessel, and “on going before me," that is, the consul, "they were ordered to return on board that vessel." This they refused, and they waited on the Spanish minister soliciting his assistance, as they did not wish to fight against the Spanish squadron, returning afterwards to the house of Ildefonso; and Thompson, in the affidavit now before us, and on which this rule has been obtained, says to the same effect, "I understood that we were arrested as being deserters from one of the Peruvian rams." So that it seems to me that there was no doubt at all that the state of things created on the part of the deft. and his crew, by what, in my opinion, and indeed in the opinion of the majority of the court, constituted a breach of contract (see Burton v. Pinkerton, ante, p. 494: 36 L. J. 137, Ex.; L. Rep., 2 Ex. 343), this very state of things, and this only, led, amongst other mischiefs and injuries, to the imprisonment of the plt. under the circumstances that now appear. I thought under those circumstances the jury might well take the whole state of things into consideration, but my learned brethren are of a contrary opinion. With respect to the contradictions arising upon the affidavit as to the men having been lodged for a few days by the Spanish consul, and the difference between an imprisonment of four days and of eight days in such a case as this, where the damages are but 30%, I think such small matters are of no weight whatever. Then as to the loss of the clothes-it was directly caused by their having been left on board when the plt. landed to consult the consul, and the ship having sailed when he came out of prison, and when, if he could have ventured to go on board, he might no doubt have managed to have come back again. It appears, however, that my learned brethren are of a different opinion, with respect not only to the imprisonment but also to the clothes. Adverting, then, to the terms of the rule, which is not in any shape or form directed towards a new trial, the result will be that, unless the parties can agree upon the sum to which, in addition to the 121. 10s. for wages (about which there is now no question), the verdict shall be reduced-and 107. has been suggested by one of my learned brethren as a proper sum-the rule must be made absolute to reduce the verdict by the 307. and the 20%, so as to leave it standing for the 127. 10s. for the wages, which we are all agreed the plt. is entitled to recover. The rule for a new trial was refused, and the rule as now drawn up is for the plt. to show cause why the damages found for him upon the trial should not be reduced as the court shall direct. I do not know that we have authority to enter the verdict for the 102, which the jury have not found, unless it be by consent; and there will be no alternative in the absence of such consent, but a new trial, or that the verdict should be reduced by both the sums in respect to which alone leave was reserved.

Rule absolute for a new trial. Attorneys for the plt., Shaen and Roscoe, 8, Bedfordrow, W.C.

Attorneys for the deft., Bischoff, Coxe, and Bompas, 19, Coleman-street, City, E.C.

Ex.]

June 17 and 22, 1867.

JONES v. HOLM.

[Ex.

forwarded by the master to Liverpool by steamer at the following rate of freight, viz., d. per lb., being one-sixteenth of a penny more than the chartered freight, and was received, and the freight of

any more cargo :

of lading) paid by the consignees. The ship having been repaired with all dispatch, was on the 30th July 1866, and as soon as it could be, tendered to the charterer's agents at Pernambuco to take the remainder of the cargo, but they refused to supply any more cargo. Having endeavoured to obtain a cargo at Pernambuco and failed, she sailed to Macao, a neighbouring port, and there obtained a cargo of 2529 bags of sugar and 1939 bales of cotton for England, at a freight less than that which would have been earned had the ship been loaded with a full and complete cargo under the original charterparty.

This was a case stated without pleadings for the opinion of the court.

On the 29th Jan. 1866, the following charterparty was entered into between the plt. as owner of the barque Edith Merion, and the deft. as charterer:

London, 29th Jan. 1866.

It is this day mutually agreed between G. W. Jones, Esq., owner of the good ship or vessel called the Edith Marion, A 1 nine years, and coppered, of the measurement of 348 tons or thereabouts, now at Liverpool, with leave to take an outward cargo direct, and J. H. H. Holm, Esq., of London, merchant, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall, with all convenient speed, sail and proceed to Pernambuco, or so near thereto as she can safely get, and there load from the factors of the said affreighters a full and complete cargo of cotton in presspacked bales, with sufficient sugar in bags as ballast; the cargo to be brought to and taken from alongside at merchant's risk and expense, 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 Liverpool direct, or so near thereto as she may safely get, and deliver the same on being paid freight as follows, viz., eleven sixteenths of a penny sterling per lb. net delivered for cotton, and 20s. sterling per ton of 20 cwt. net weight delivered for sugar in bags, all with 5 per cent. primage thereon in full of all port charges and pilotage (restraint of princes and rulers, act of God, Queen's enemies, 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 freight to be paid on unloading and right delivery of cargo in cash, as customary. Thirty running days are to be allowed the said merchants (if the said ship is not

sooner dispatched) for loading the ship, and to be discharged with all dispatch as customary, and ten days on demurrage over and above the laying days at 51. per day. Penalty for non-performance of this agreement, estimated amount of freight. The captain to sign bills of lading if required, at any rate of freight, without prejudice to this charter. The ship to be addressed to charterer's agents at Pernambuco paying 24 per cent, commission on this charter. Sufficient cash to be allowed the captain at the port of loading for ship's ordinary disbursements.

(Signed)

G. W. JONES.
J. H. H. HOLM.

The vessel arrived at Pernambuco on the 21st March 1866, and was ready to take her homeward cargo on the 24th May 1866. On the 1st June 1866 the charterer had loaded a part of the cargo, viz., 2380 bags of sugar and 700 bales of cotton, and 118 bales were alongside in lighters for loading. On the 1st June a fire broke out in the ship, and the vessel with the cargo on board was taken across the harbour and scuttled, by or under the order of the master. The master had at that time signed and delivered to the charterers bills of lading for the whole of the above-mentioned cargo, both that aboard and alongside. The cargo aboard and that alongside was not a full cargo. The said cargo on board, viz. 2380 bags of sugar and 700 bales of cotton, was so far damaged that it was necessarily sold by auction by the master of the ship under the advice of surveyors, and realised 2586l. 14s. 6d., which was received by the master of the vessel. The 118 bales of cotton so alongside as aforesaid were

to complete the loading of the ship.

The

Mellish, Q. C. (with him Day) for the plt.-The deft. was bound to complete the loading of the ship, and was not discharged from the obligation by any of the circumstances which occurred. Nothing being stated as to the cause of the fire, it must be result of any negligence on the plt.'s part. taken to have been a mere accident, and not the exception of fire contained in the charter-party protects the plt. from any liability in respect of such a fire, and, that being so, the deft. had no right to rescind the contract. Suppose the ship had been blown out to sea while the cargo was in the course of loading, and a necessary delay had been caused while damage so occasioned was being repaired, the deft. could not have rescinded the contract on the ground of such delay. Or, suppose after a complete cargo had been loaded, part had been burnt, neither party would have been entitled to rescind. The plt. would have been bound to carry the remainder of the cargo if the deft. had required him to do so, and if one party still remained liable under the contract the other must also be liable. He cited

Bruce v. Nicolopulo, 11 Ex. 129; 24 L. J. 321, Ex.;
M'Andrew v. Chapple, L. Rep., 1 C. P. 643.

Watkin Williams for the deft.-The mere delay might not have excused the deft., but the result of the fire in this case was more than a mere delay. The deft. was bound under the contract to load, and the plt. to carry a full and complete cargo. The deft. had already loaded a large part of the cargo, which was so damaged by the fire that the plt. could not carry it. The plt., therefore, became unable to carry a full and complete cargo, for the deft. clearly was not bound to load this portion over again, and the deft. could not then, under the contract to load a complete cargo, be bound to load part of a cargo.

Under these circumstances, the original voyage was frustrated, and the voyage became a different voyage from that contemplated by the charter-party. Even if this were otherwise, the plt. elected to rescind the contract by the course which he pursued as to the 118 bales forwarded.

Cur, adv. vult.

June 22.—BRAMWELL, B. now delivered the judgment of the court:-In this case, which was argued before my brothers Martin and Channell and myself, we are all of opinion that the plt. is entitled to our judgment. The action was on a charter-party, and the vessel had taken part of the cargo which the deft. was bound to ship on board, and then accidentally a fire broke out, and the cargo which was then on board was so damaged that it was necessary to sell it; the captain sold it, and then the char

ADM.]

terer's agents were called upon by him to give him what would be equivalent to the remainder of the cargo, that which would have filled the ship up if she had not caught fire. Now, the first objection was, that the vessel having met with this accident, and a delay of two months having been caused while she was under repair, the voyage became a different voyage, and that the case therefore came within the rule whereby the original voyage being frustrated and the voyage having become a different voyage, the charterer is exonerated from loading the cargo. I do not think that the facts here stated bring the case within the rule. There is no warranty here, no condition precedent that she shall be ready by any particular time; there is only a provision that she shall with all convenient speed sail and proceed to Pernambuco, getting as near as she can, and then load a cargo after having discharged the outward cargo. Then, if without any voluntary neglect or wrongful act on the part of the shippers she were delayed by an accident of this sort, and no cargo could be put on board at all, it appears to me that the charterer would not be ex

cused, and he would be bound, when she was ready, to furnish a cargo. Then it was said that, inasmuch as the vessel could not take the whole of the cargo to England, as the captain had sold a portion of the cargo, and had sent another portion of the cargo by another means to Liverpool, the deft. was under no obligation to do what in one sense had become impossible, that is, load a full and complete cargo, because all that he could do now would be to put a half cargo on board, leaving the rest of the vessel to be wasted or not filled up, which was not in the original contemplation of the parties. This objection struck me at first as having considerable weight in it, but upon consideration I have come to the conclusion that it cannot be supported. The charterer's relations to his consignees in England, or his own objects and views in entering into this charter-party, are things which ought not to affect its construction; and the true construction I think of the expression, "to load a full and complete cargo," means "to bring as much merchandise as will be a full and complete cargo;" and if instead of the expresion "a full and complete cargo," the parties had said what I think is clearly its equivalent, viz., "so many bales of cotton and so many bags of sugar," it would have been manifest that the deft. had not performed the contract, and that nothing had occurred to exonerate the deft. from the liability to complete the loading, although a certain number of the bales or bags had been destroyed after being loaded. For these reasons I think the plt. is entitled to our judgment.

Judgment for the plt. Attorney for plt., Rowell, for Pain of Newport. Attorney for deft., Cotterill.

COURT OF ADMIRALTY. Reported by HENRY F. PURCELL, Esq., Barrister-at-Law.

Saturday, May 4, 1867.

(Before the Right Hon. Dr. LUSHINGTON.)
THE CARGO EX CAPELLA.

Collision-Both vessels to blame-Claim for salvage by one of the crews.

Where a collision occurred between two vessels, and both were held to blame, the crew of one of the vessels having instituted a cause of salvage against the owners of the cargo of the other, it was

Held, that the claimants were not entitled to receive sal

[ADM.

vage for property which had been put in jeopardy by their own wrong-doing.

A collision had taken place in March 1865 between the English ship Southern Empire, then on a voyage from Callao to Liverpool, and the Dutch vessel Capella, which was bound from Amsterdam to Batavia with a cargo of silver specie. After the collision the crew of the Southern Empire succeeded in saving the specie and bringing it into Liverpool; for this service they instituted the present suit against the cargo.

A collision cause, by the owners of the Capella, which had been wrecked by the collision, was previously brought against the owners of the Sonthern Empire when the Court, assisted by Trinity Masters, held that both vessels were to blame.

Dr. Deane, Q. C. and Butt, for the plts., referred to The Sappho, Swab. 242.

Brett, Q. C. and Lushington, contra, contended that there could be no contribution between wrongdoers. By the 33rd section of the Merchant Shipping Act Amendment Act (25 & 26 Vict. c. 63) it was the duty of the plts.' ship to assist the other. The plts. could not profit by their own wrong-doing, especially as against the owners of the cargo, who were innocent parties, and referred to The Milan, Lush. 388.

Dr. Deane, Q. C. in reply.-The Merchant Shipping Act does not apply. The duty to render assistance does not take away the right to salvage reward.

Cur. adv. vult.

May 7.-Dr. LUSHINGTON.-The question for me to determine is whether, when a collision has taken place between two vessels and both vessels are held to blame, one of them can sue for

salvage, for having saved the cargo of the other from the perils consequent on the collision. I do not which ought to govern the case. In my mind the seek for authorities, but I look to the principle principle is this, that no man can profit by his own wrong. This is a rule founded in justice and equity, and carried out in various ways by the tribunals of this country, and never, so far as I am aware, deof this rule to the present case is obvious. The parted from by an English court. The application asserted salvors were the original wrong-doers : it jeopardy. The rule would bar any claim by them was by their fault that the property was placed in for service rendered to the other ship which was a co-delinquent in the collision; but the present claim, it is to be observed, is a demand for salvage against the cargo, the owners of which were perfectly innocent. There has been no decision as to this particular question, at least to my knowledge, during my practice in this court, but I am not surprised at it, because I think that the claim is so opposed to common justice as to render it unlikely that any person would make the experiment. I pronounce against the claim, with costs.

Solicitors for plts., Marshall and Roberts.
Proctors for defts., Pritchard and Sons.

May 28 and June 18, 1867. (Before Dr. LUSHINGTON.)

THE WASP.

Defts. in a suit having pleaded that plts.' claim had Pleading-Assignment of causes of action-Trustee. vested in their trustee under a composition-deed, the first and eighth articles of the reply alleged that pits. had assigned the causes of action before the execution of the deed, and that the suit was now brought in their

the defts., the owners of the Great Eastern, to reject the plts.' petition.

Butt in support of the motion.-The question is, whether a seaman who is suing the ship in this court for wages has a lien on the ship for damages occasioned to him by the owner wrongfully discharging him before the termination of the stipulated voyage. It is submitted that there is no such lien, and that the only remedy for the seaman is to sue in a court of common law. If there is no authority for such a lien, the defts. are entitled to the judgment of the court, for the right of lien cannot be extended except by the Legislature. The seaman's remedy is now a matter governed by statute; the Admiralty Court Act, sect 10, which is the last enactment on the subject, limits his right to recover to "wages earned on board ship." There is no precedent showing that a lien for damages for breach of contract has ever been distinctly affirmed in this court, yet the opportunities for claiming such a lien must have been numberless The truth is, that for wages and towage and salvage, the lien arises out of the service done. The court has no jurisdiction over a breach of contract, unless a statute specially gives it: (The Robert Pow, Brow. & Lush. 99.) Nor does it exercise the machinery of a jury to whom such claims are submitted. The older cases, when carefully examined, show that there is really no authority for a lien for the damages, but the contrary. In the case of Wells v. Osman, Ld. Raym. 1044; 6 Mod. 238, the seamen who had been engaged for a voyage were discharged, after having done several months' work while lying in the Thames; and it is quite clear that all that the Court of Q. B. decided was, that the Court of Admiralty had jurisdiction to decree the wages for the work done. How is this case consistent with a lien for damages? In The Exeter, 2 C. Rob. 261, where the mate had been wrongfully discharged without wages abroad during the voyage, it is true that he claimed 1274. as the balance of wages and expenses incurred in returning to Europe, and true also that the court pronounced for the demand of wages, but there is nothing to show that it pronounced for wages beyond the date of the discharge. In The Beaver, 3 C. Rob. 92, a similar case, the court did, indeed, pronounce for the seamen's wages till the return of the ship to Liverpool, but the real contest in the case was, whether the man had deserted or not, and the measure of wages passed without argument. The City of London, 1 Wm. Rob. 88, was a case upon demurrer. The mariner had been discharged two days after the articles had been signed for a voyage to the East Indies and back, and before the commencement of the voyage. The ship pursued her voyage, the mariner took other employment and claimed for the balance between his actual earning and the amount of wages he would have been entitled to if he had proceeded in the original ship. The case is somewhat difficult to understand, but this is certain, that the court did no more than admit the petition, and in its observations distinctly held that it would not adjudicate on questions of unliquidated damages, which were for juries only. What is also important is, that such cases as that of The City of London, Wm. Rob. 88, are now specifically provided for by the 167th section of the Merchant Shipping Act 1854 (17 & 18 Vict. c. 104) limiting the mariner's right in such cases to one month's wages. The City of London, therefore, may be said to be overruled by statute. The cases in which this court has entertained claims for damages for personal injuries, were apparently personal actions against the master, not proceedings in rem; such, for instance, as The Ruckers, 4 C. Rob. 73, and have therefore no application in this case.

[ADM.

Lushington and R. G. Williams contra.-It is submitted that the seamen wrongfully discharged have a lien on the ship not only for wages earned, but for wages or damages ultra, and that they have this right by the ancient jurisdiction of the court. The purpose and effect of the entire Admiralty Court Act, and of the 10th section in particular was to extend the jurisdiction of the court. If, therefore such a right as is now claimed by these seamen existed before that statute it exists still. The jurisdiction of the Admiralty Court over claims for wages has always been affirmed, and even in days of prohibition common law judges have upheld it on the ground of convenience: (Wells v. Osman, 2 Ld. Raym. 1044.) Here every reason of convenience points to the seamen taking their remedy in this court for their unlawful discharge. They are already lawfully suing here for their wages earned, and the actions are consolidated; are they now to be sent into another court to bring 300 actions? The Legislature has shown its desire to have all the seamen's claims settled in one simple proceeding for wages (see sects. 188, 189, 190, 205, 213, 223, and 229 of the Merchant Shipping Act 1854.) Nor can it be said that the court cannot measure claims of an unliquidated kind. It does so in all cases of salvage and collision, in claims upon bills of lading under the Admiralty Court Act, and it has a special tribunal for the very purpose of settling matters of account-the registrar and merchants, who are at least as competent as a jury. In Parsons on Maritime Law, vol. 1, p. 463, is a note citing many authorities to the effect that the Admiralty Court has the power to assess damages in these cases of seamen suing for their wages. The theory of the ancient jurisdiction of the court is, that the contract of wages was regarded as one and entire; that freight was the mother of wages; that accordingly if freight was earned, that the entire wages were due. This is evidently the law laid down in the leading case of Cutter v. Powell, 2 Sm. L. Cas. 1. The Legislature, in the Merchant Shipping Act, has now abolished the rule that freight is the mother of wages, and introduced various provisions, and in the case of wreck, &c. (sects. 181-186 of the Merchant Shipping Act), but leaving the law of the Admiralty Court unabridged in cases of wrongful discharge. The authorities cited on behalf of the defts., such as The Exeter, 2 C. Rob. 261, and The Beaver, 3 C. Rob. 92, and such cases as The Madonna D'Idra, 1 Dods. 37, The Margaret, 3 Hagg. Adm. 238, as also the invariable practice of allowing foreign seamen a viaticum home, show what the jurisdiction and the practice of the Admiralty Court were. But even were it otherwise, they are totally irreconcileable with the notion that the seamen wrongfully discharged cannot recover in the Admiralty Court either damages for the breach of contract, or wages beyond the date of the discharge. Perhaps the truth is that the early theory of the contract for wages being entire was found to be inconvenient and unjust in its operation in many cases, and that even the mariner himself, as in The City of London and The Camilla, Swab. 312, did not put forward his full legal rights. But the case of Chandler v. Grieves, 2 H. Bl. 606 n., is conclusive as to what the law of the Admiralty Court was. That was an action of assumpsit for seamen's wages. The facts of the case were, that the plt. was a seaman on board a ship which was articled for, and sailed upon a voyage from London to Honduras, from thence to Philadelphia in North America, and from thence back again to England. The articles were drawn in the usual form. While the ship was in the bay of Honduras, the plt. received so violent a blow from a piece of timber accidentally falling upon