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READ v. J. LYONS & CO., LTD.

(1946) 80 Ll L Rep 1

Factory - Explosion - Personal injuries sustained by plaintiff-Liability of occupier-Plaintiff employed by Ministry of Supply as inspector in defendants' factory engaged in manufacture of high explosive shells - Explosion of shell, killing one man and injuring plaintiff and others-Action brought against defendants -Negligence not averred-Obligation of occupier towards invitee - Contention by plaintiff that defendants, as manufacturers of high explosive shells, were under strict liability to prevent such shells from exploding and causing harm to persons on the premises as well as to persons outside-Consideration of Rylands v. Fletcher doctrine-Limits of doctrine- Applicability to claim for damages for personal injuries-"Non-natural" user of land.

CANADA AND DOMINION SUGAR COMPANY, LTD. v. CANADIAN NATIONAL (WEST INDIES) STEAMSHIPS, LTD.

(1946) 80 Ll L Rep 13

Bill of lading-Damage to cargo-Receipt in apparent good order and condition-Marginal indorsement-Estoppel-Shipment of sugar at Demerara in respondents' steamer Colborne for carriage to Montreal -Bill of lading issued by respondents stating that sugar had been received in apparent good order and condition- Indorsement stamped on face of bill of lading: "Signed under guarantee to produce ship's clean receipt"-Clause 27: "In cases where the clean bills of lading are signed, subject to mate-receipt, the consignee and/or consignor to be bound by any notations and/or exceptions on such mate's receipt, as though the notations and exceptions had been placed on the bill of lading itself, it being recognised that clean bills of lading have been surrendered before the exceptions (if any) were known, in order to facilitate the business of the shipper or other party directly interested in the goods"-Custom of port as to issue of bill of lading before loading completed-Ship's receipt issued with notation: "Many bags stained, torn and resewn"-Sugar delivered damaged- Claim by plaintiff indorsees-Whether respondents estopped to deny statement in bill of lading that cargo was received in apparent good order and condition- Carriage of Goods by Sea Ordinance of British Guiana, 1930, Schedule, Art. III (2), (4), (7)-No demand for bill of lading made by shipper-Applicability of statute.

HAWORTH v. DAWSON AND OTHERS.

(1946) 80 Ll L Rep 19

Motor insurance-Car hirer's policy-Breach of conditions-Excluded hirers-Waiver- Personal injuries sustained by plaintiff cyclist involved in accident with car driven by first defendant-Car hired by first defendant from second defendants-Car hirer's policy taken out by second defendants with insurance company-Action brought by plaintiff against first and second defendants-Judgment recovered by plaintiff against first defendant- Judgment against second defendants deferred, leave having been given to join insurance company as third defendants- Liability of insurance company under policy-Plea by insurance company that first defendant came within the description of "Excluded hirers," in that his licence had been twice endorsed for speeding offences and he had not undergone a driving test by the second defendants- Allegation by second defendants that they had informed insurance company of such facts and that insurance company had waived the conditions contained in "Excluded hirers" clause-Rood Traffic Act, 1930, Sect. 35 (1)-Road Traffic Act, 1934, Sect, 10.

PAN-AM TRADE & CREDIT CORPORATION AND ANOTHER v. THE "CAMPFIRE."*

(1946) 80 Ll L Rep 26

Carriage of Goods by Sea Act, 1936-Short delivery of cargo-Partial loss-Limitation of value-Excess value (over 500 dols. per package) not declared-Pro rata clause in bill of lading-Validity-Shipment of rayon piece goods from New York to Guayaquil-Two cases valued at 1619 dols. -Loss from one case amounting to 677 dols. (40 per cent. of total)-Provision in bill of lading: "17. In case of any loss or damage to or in connection with goods exceeding in actual value 500 dols. lawful money of the United States, per package . . . the value of the goods shall be deemed to be 500 dols. per package . . . on which basis the freight is adjusted and the carrier's liability, if any, shall be determined on the basis of a value of 500 dols. per package . . . or pro rata in case of partial loss or damage, unless the nature of the goods and a valuation higher than 500 dols. shall have been declared in writing by the shipper upon delivery to the carrier and inserted in this bill of lading and extra freight paid if required and in such case if the actual value of the goods per package . . . shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the carrier's liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value"- Whether shipowners entitled to limit their liability to 40 per cent. of 500 dols. limit-Repugnancy to 1936 Act- Sects. 3 (8), 4 (5).

ROYSTER v. CAVEY.

(1946) 80 Ll L Rep 29

Negligence-Procedure - Crown - Nominated defendant - Right of action - Personal injuries sustained by plaintiff employed at Royal Ordnance Factory - Fall into unlighted trench on premises-Claim brought in County Court against superintendent of factory, nominated by Treasury Solicitor as defendant, alleging common law negligence and breach of statutory duty under Factories Act, 1937, Sect. 26 (1)-Claim dismissed on ground that no negligence or breach of statutory duty had been proved-Appeal by plaintiff -Evidence that defendant was not occupier of the premises, nor was he under any duty to the plaintiff, but that, in accordance with the practice of Government Departments, the defendant had been nominated as the person against whom the action should be allowed to proceed-Duty of Court in such circumstances.

THE "ATHELVICTOR."

(1946) 80 Ll L Rep 33

Damages - Assessment - Motions in objection to Assistant Registrar's report - Personal injuries sustained by plaintiffs (naval personnel in H.M. ships) following fire and explosions resulting from ignition of petrol negligently allowed to escape from tanker Athelvictor in Lagos Harbour - Owners of Athelvictor admittedly to blame - Assessment of damages by learned Assistant Registrar - Awards made in respect of general damages: B., £300; C., £1500; S., £5000 - Motions to confirm or vary - Right of Court to interfere with assessment - Evidence of pain and suffering - Loss of earning capacity - Assessment of damages in case of S. confirmed; in case of B. increased to £550; and in case of C. increased to £3500.

THE "L.S.T. 303."

(1946) 80 Ll L Rep 37

Collision - River - Vessel emerging from dock - Look-out - Collision between motor vessel Eastern City and L.S.T. 303, in Gravesend Reach, River Thames, in broad daylight - Flood tide - Eastern City bound up on her own starboard side of mid-river; L.S.T. 303 emerging from tidal basin leading from Tilbury Docks - Long blast sounded by L.S.T. 303 on casting off, followed shortly afterwards by signal of "four and two" - Second signal admittedly heard by Eastern City - Significance of such signal - Masts and superstructure of L.S.T. 303 seen by Eastern City overland on her starboard bow - No steps taken by either vessel until they saw each other at close quarters across knuckle of entrance, when Eastern City went full ahead under hard-a-port helm and L.S.T. 303 starboarded - Impact between bows of L.S.T. 303 and starboard side of Eastern City - Attempt by Eastern City to regain her up-river heading by starboarding, followed by attempt to "snub herself round" on to a down-river course by dropping her anchors - Attempts unsuccessful, resulting in collision between Eastern City and barges on southern side of river - Whether consequence of first collision - Novus actus interveniens - Port of London River By-laws, 1938, Rule 30.

GRANT v. SUN SHIPPING COMPANY, LTD., AND ANOTHER.

(1946) 80 Ll L Rep 45

Negligence - Contributory negligence - Breach of statutory duty - Covering of hatches - lighting - Personal injuries sustained by pursuer (dock labourer) working on 'tween deck of first defenders' ship - Second defenders' (ship-repairers') men working in lower holds - Number of 'tween deck hatch covers removed to enable repair work to be carried out - Upper deck hatch covers on, necessitating use of artificial light supplied by three clusters - Break for lunch by pursuer and his mates, second defenders' men remaining at their work - 'Tween decks found in darkness by pursuer and his mates upon their return, second defenders' men having by their finished their work - Cluster of lights detected face down on other side of hold - Attempt by pursuer to reach lights by proceeding direct across hatch - Hatch uncovered - Fall down hold - Claim brought by pursuer against defenders alleging common law negligence and breach of statutory duty under Docks Regulations, 1934 - Defenders' plea of contributory negligence - Decision of learned Lord Ordinary that the act of the pursuer in making direct for the lights was an "involuntary" or "incautious" movement, which was insufficient to establish contributory negligence on his part, and that the first defenders were alone to blame for their breach of statutory duty as regards lighting and hatch covers - Regulations 12, 37 (a) - Appeal by first defenders.

OWNERS OF CARGO EX "GREYSTOKE CASTLE" v. MORRISON STEAMSHIP COMPANY, LTD. [THE "CHELDALE."]

(1946) 80 Ll L Rep 55

Collision - Damages - Both to blame - General average contribution by cargo in carrying ship - Right of recovery from other ship - Collision between steamship Cheldale and motor vessel Greystoke Castle - General average expenses incurred by Greystoke Castle - Contribution made by owners of cargo on board - Apportionment of collision liability: Greystoke Castle, three-quarters; Cheldale, one-quarter - Limitation decree obtained by Greystoke Castle - Cross-settlement of claims between shipowners - Claim for damages brought by owners of cargo ex Greystoke Castle against owners of Cheldale - Reference to Registrar - Items claimed: (1) Damage to cargo; (2) General average contribution made to owners of Greystoke Castle - Report awarding damages under both heads - Motion in objection by owners of Cheldale in respect of recovery of general average contribution - Nature of general average expenditure incurred by ship - Relationship between ship and cargo - Obligation of cargo to contribute - Right of cargo to recover from wrongdoing ship as head of damage - Whether flowing from tortious act of wrongdoing ship - Remoteness of damage.

THE "TOWARD."

(1946) 80 Ll L Rep 77

THE "CORCREST."

(1946) 80 Ll L Rep 78

Salvage - Derelict - Risk of probable total loss - Services rendered by tugs Richard Lee Barber and George Jewson, by motor launch R. J. Colman, by lifeboat Millie Walton, and by harbour-master and his staff, to steamship Corcrest off Yarmouth - Stranding of Corcrest on Haisborough Sand in bad weather - Crew taken off by Minnie Walton - Refloating of Corcrest by flood tide, vessel drifting towards Scroby Sand - Vessel intercepted by Minnie Walton and boarded by lifeboatmen - Connection established with Richard Lee Barber, which had been sent out to render assistance - Towage commenced towards Yarmouth - George Jewson employed to take harbour-master to Corcrest, which he boarded and took charge of until salvage services completed - Corcrest, with engine-room and after holds flooded, down by the stern and with a list to starboard, still making water - Necessity for pumping services before towage into Yarmouth Harbour could begin - Portable pump fetched by George Jewson and installed on Corcrest - Pumping services also rendered by Richard Lee Barber - Corcrest eventually lightened sufficiently for her to be towed into harbour - Minor services rendered by R. J. Colman and harbour-master's staff - Further pumping and other services rendered by Richard Lee Barber and by George Jewson after Corcrest was moored at her harbour berth - Risk of mines - Section of coast unswept - Total services occupying four days - Minor damages and expenses incurred by salvors - Corcrest rescued from certain total loss solely by salvors' efforts - Salved values: £11,000 - Awards: Richard Lee Barber, £2500; Millie Walton, £1200; George Jewson, £300; R. J. Colman, £50; harbour-master, £430; staff, £70 - Total award: £4550, plus £35 in respect of damage and expanses.

BUTLER v. HOGARTH SHIPPING COMPANY, LTD.

(1946) 80 Ll L Rep 84

Negligence - Discharge of ship - Personal injuries sustained by plaintiff stevedore - Alleged defect in ship's winch - Liability of defendant shipowners - Plaintiff, employed by J. & Sons, engaged in discharge of sets of timber from ship into barge alongside - Winchman also in employ of J. & Sons - Set of timber lowered over barge in which plaintiff was working - Inability of winchman to stop winch when proper signal given by foreman stevedore - Plaintiff struck by set - Dispute as to cause of breakdown of winch - Whether due to negligence of winchman - Duty of shipowners to take reasonable care to see that winch was in fit condition to take weight of contemplated loads - Evidence as to previous care of winch by shipowners and as to repairs necessary to be made before winch was able to be operated again - Estimate of damages.

CHAPPELL v. A. E. SMITH & SONS, LTD., AND MERSEY DOCKS AND HARBOUR BOARD.

(1946) 80 Ll L Rep 92

Negligence - Safe means of access - Breach of statutory duty - Personal injuries sustained by plaintiff dock labourer - Plaintiff, employed by first defendants, engaged in driving electric bogie at Birkenhead Docks, for loading of cargo into ship - Necessity to cross dock railway lines to reach part of cargo - Wheels of bogie caught in railway lines, resulting in plaintiff being crushed between bogie and railway truck - Action brought by plaintiff against employers and against dockowners (second defendants) - Obligation of employers and of dockowners - Alleged trap - Docks Regulations, 1934, Regulation 1.

FORTH (TRINITY HOUSE OF LEITH) PILOTAGE AUTHORITY v. LORD ADVOCATE AND OTHERS.

(1946) 80 Ll L Rep 96

Pilots - Benefit fund instituted by pursuers - Confirmation by Board of Trade of by-laws providing for recruitment of fund by deduction from pilots' earnings, etc. - Several attempts made by pursuers to draw up further by-laws for regulation of payments from fund to pilots and dependants - Objections made on each occasion by certain groups of pilots - Refusal by Board of Trade to confirm - Potential beneficiaries without benefits - Multiplepoinding action brought by pursuers asking that project be abandoned and fund dispersed - Case adjourned to enable further by-laws to be formulated and submitted to confirming authority.

A/S TALLINNA LAEVAUHISUS AND OTHERS v. ESTONIAN STATE STEAMSHIP LINE AND ANOTHER.

(1946) 80 Ll L Rep 99

International law - Foreign shipping company - Dissolution - Company domiciled in Estonia - Occupation of Estonia by Russia in June, 1940 - Estonia declare to be Soviet Socialist Republic - Election of new Chamber of Deputies - New constitution published - Issue of nationalization decrees - Effect - Plaintiffs (Estonian company) acting as managers of and part shareholders in Estonian shipping association owning steamship Vapper - Insurance of ship placed with English underwriters - Domicile transferred by company to Stockholm in October, 1939, practically all business thereafter being transacted there and conducted by N. (plaintiffs' managing director) acting under general power of attorney - Decrees issued on July 22, 1940, and afterwards, nationalizing banks and large industrial enterprises, "including deposits and current accounts in the banks in the Republic and abroad, as well as all claims belonging to these enterprises, including claims to insurance sums" - Estonia occupied by Germans from July, 1941, until September, 1945 - Loss of Vapper on July 6, 1940 - Insurance moneys paid into Court by English underwriters - Title to fund - Interpleader issue - Claim by plaintiffs opposed by Estonian State Steamship Line (which had taken over shipping in Estonia) on grounds: (1) that the plaintiff company was dissolved by decrees issued by the Estonian Soviet Socialist Republic and therefore was incapable of maintaining claim; (2) that the property in the moneys claimed was now in the Estonian State Steamship Line; (3) that N.'s authority was determined by the German occupation of Estonia - Legality of new constitution - Effect of decrees - Legislation confiscatory in character - Enforceability in English Courts - Government of Estonian Soviet Socialist Republic recognized by H.M. Government as de facto (but not de jure) government of Estonia - Effect of German occupation - Alien enemy.

VAUGHAN v. SIR R. ROPNER & CO., LTD.

(1946) 80 Ll L Rep 119

Negligence - Maintenance of ship's equipment - Alleged failure by shipowners to maintain - System of working - Personal injuries sustained by plaintiff fireman - Breaking of fall of hoist used for raising and lowering articles from stokehold to deck - Evidence that wire rope customarily used had been damaged and replaced by a fibre rope made up of odd pieces; that a water can supplied by the defendants had rusted during the voyage and was replaced first by a canvas receptacle and subsequently by a glass jar; that the rope snapped when lowering the glass jar full of water; and that the jar fell and broke, injuring the plaintiff - Claim brought by plaintiff against defendants - Whether defendants under obligation to provide water can - Duty of employer to provide and maintain proper appliances - Whether accident occurred as result of failure in such duty - Casual negligence of fellow employee - Common employment - Contributory Negligence.

STOCKS v. WINGFIELD.

(1946) 80 Ll L Rep 125

Sale of ship - Misrepresentation - Innocent or fraudulent - Sale of motor yacht by plaintiff to defendant - £750 paid on signing of agreement, the balance of £250 to be paid after completion of certain work by vendor, when yacht was to be handed over - Provision in contract that "the vendor gives no warranty except that the main, wing, and lighting engines and accessories are in reasonable running order at handing over" - Verbal inquiry as to condition of hull made on three occasions by purchaser before entering into contract - Purchaser informed by vendor that as far as he knew the hull was sound - Evidence of serious rotting of timbers and stringers - Knowledge of vendor - Whether statement made by vendor as to condition of hull was fraudulent, inducing purchaser to enter into contract of sale - Evidence of capsizing of yacht on two separate occasions; of previous surveys; and of repairs and alterations made by vendor before sale - Yacht taken over by purchaser before vendor had completed repairs provided for in contract of sale - Claim by vendor for balance of price - Counterclaim by purchaser for rescission and for return of money paid.

COMPTOIR D'ACHAT ET DE VENTE DU BOERENBOND BELGE, S.A. v. LUIS DE RIDDER, LIMITADA.

(1946) 80 Ll L Rep 140

Sale of goods - C.i.f. contract - Documents - Payment by buyers against delivery order - Ship diverted by sellers to neutral port owing to enemy occupation of contract destination - Right of buyers to repayment of price paid - Failure of consideration - Sale of 500 tons of rye (part of bulk cargo) "at the price of 4.025 dols. per 100 kilos c.i.f. Antwerp on the terms, conditions and rules contained in Form No. 41 of the London Corn Trade Association" - Further provision that "Payment to be made by net cash on first presentation of and in exchange for first arriving copy/ies of bills of lading . . . and/or delivery orders and policy/ies and/or certificate/s and/or letter/s of insurance at Antwerp . . ." - Bulk cargo shipped by sellers in chartered ship Julia - Delivery order presented in Antwerp to Belgian buyers (claimants) - Delivery order signed by sellers' agents and addressed to sellers' cargo superintendents instructing them to release to claimants 500 tons rye ex bill of lading for 1120 tons shipped in Julia - Notification in delivery order that holder was entitled to share in certificate of insurance covering bulk cargo - Certificate retained by sellers' agents - Payment made by claimants against delivery order - Invasion of Belgium by German armed forces - Julia diverted to Lisbon arrangement between shipowners and sellers (as charterers) - Cargo discharged and sold by sellers ex ship - Proceeds offered to claimants - Contention by claimants that they were entitled to repayment of sum paid against delivery order - Alleged failure of consideration - Construction of contract - Evidence of course of business followed in previous transactions between parties - Passing of risk - Frustration - Arbitration - Award rejecting buyers' claim - Case stated.

A/B KARLSHAMNS OLJEFABRIKER AND ANOTHER v. MONARCH STEAMSHIP COMPANY, LTD.

(1946) 80 Ll L Rep 151

Carriage of goods by sea - Unseaworthiness - Delay in prosecution of voyage - Outbreak of war - Ship directed by authorities to different port of discharge - Cargo transhipped by cargo-owners at port of discharge to contract destination - Claim by cargo-owners against shipowners for cost of transhipment - Measure of damages - Cargo of beans purchased by pursuers from Japanese firm - Defenders' ship chartered by Japanese firm for carriage of cargo from Rashin to Karlshamn - Serious delay on voyage due to boiler trouble - Unseaworthy condition of boilers at commencement of voyage - Outbreak of war during voyage to Karlshamn - Ship directed to discharge at Glasgow - Transhipment by cargo-owners from Glasgow to Karlshamn - Liability of shipowners for non-delivery at Karlshamn - Breach of contract - Remoteness of damage - Real cause of loss - Whether embargo freed shipowners from further performance - Effect of war deviation clause.

THE "BENRINNES."

(1946) 80 Ll L Rep 159

Collision - River - Starboard-hand rule - Channel obstructed by anchored vessels - Vessel moving into fairway - Collision between motor vessel British Gratitude and steamship Benrinnes in Gravesend Reach, River Thames, in broad daylight - British Gratitude (in ballast) bound down river - S.W. gale - Anchored vessels lying wind-rode in mid-channel with their sterns to northward - British Gratitude navigated to northward of anchored vessels - Benrinnes (laden), originally at anchor down river of anchored vessels, nosing her way from behind anchored vessels to pass up river - Vessels sighted by each other - Starboarding by British Gratitude in an attempt to pass as closely as possible to sterns of anchored vessels - Porting by Benrinnes - Duty of vessels to pass port to port - Contention that it was not "safe and practicable" for deep-draughted Benrinnes to starboard - Meaning of "fairway" - Whether British Gratitude was under duty to pass to southward of anchored vessels - Look-out - Port of London River By-Laws, 1938, Rule 38.

THE "DIOMED."

(1946) 80 Ll L Rep 164

Collision - Anchored vessels - Dragging - Foul berth - Collision between motor vessel Kota Baroe and steamship Diomed in Durban Roads - Vessels at anchor, with Diomed astern of Kota Baroe and to leeward of her - Sudden squall - Impact between stem of Diomed and port quarter of Kota Baroe, followed by further impacts between port side of Diomed and stern of Kota Baroe - Whether Diomed anchored too close to Kota Baroe and gave her foul berth or whether Kota Baroe negligently dragged her anchor - Evidence of complaint made by master of Kota Baroe, in accordance with Port Instructions, that Diomed was anchored too close.

THE "FORT ORANGE."

(1946) 80 Ll L Rep 171

Collision - Convoys on crossing courses - Look-out - Seamanship - Crossing rule - Collision between steamship Blairdevon, in starboard column of outward-bound nine-column convoy on course of 210 deg., and steamship Fort Orange, in centre column of inward-bound three-column convoy on course of 97 deg. - Lights of each convoy switched on when convoys about four miles distant from each other - Cluster of green and white lights seen by Blairdevon on starboard bow, denoting presence of convoy - Starboarding by Fort Orange (allegedly in accordance with commodore's orders) resulting in her red opening on Blairdevon's starboard bow - Porting by Blairdevon - Course and speed of Fort Orange maintained - Impact between stem of Fort Orange and starboard side of Blairdevon at about right angle - Whether Blairdevon under a duty to give way under the crossing rule - Respective duties in the particular circumstances.

THE "QUEEN MARY."

(1946) 80 Ll L Rep 178

Collision - Single ship convoy - Escort - Respective rights and duties - Seamanship - Look-out - Collision between H.M.S. Curacoa and steamship Queen Mary in Atlantic Ocean in broad daylight - Curacoa acting as protective escort to Queen Mary - Queen Mary on zigzag course known to Curacoa, and overtaking Curacoa in spite of zigzag - Manoeuvres by Curacoa to keep herself within limits of Queen Mary's zigzag - Starboard leg of zigzag undertaken by Queen Mary when Curacoa was a little forward of her starboard beam and about a mile distant - Converging courses - Porting by Queen Mary when vessels about two cables apart, followed by hard-a-porting when they were about one cable apart - Evidence of ineffective starboard helm action taken by Curacoa - Porting by Curacoa just before collision - Cause of porting unexplained - Interaction - Impact between stem of Queen Mary and port side of Curacoa - Curacoa sunk - Consideration of correlative duties of escort and her faster convoy - Collision Regulations, Art. 21n.

TYNE IMPROVEMENT COMMISSIONERS v. ARMEMENT ANVERSOIS, SOCIETE ANONYME, AND OTHERS.

(1946) 80 Ll L Rep 190

Practice - Writ - Foreign defendant - Service of notice of writ out of jurisdiction - "Proper party to an action properly brought against some other person duly served within the jurisdiction" - Sinking of Belgian steamship (carrying British Government-owned cargo) off entrance to Tyne - Expenses incurred by plaintiff harbour authority, acting under statutory powers, in removal of wreck - Action to recover such expenses brought against Belgian shipowners (first defendants), Ministry of Supply (second defendants), and nominal consignees of cargo (third defendants) - Writ served upon A., director of first defendants, resident in England - Service of writ upon A. set aside on ground that A. at the material time was not carrying on the first defendants' business in England - Ex parte application by plaintiffs for leave to serve notice of writ out of the jurisdiction granted by learned Judge - Motion by first defendants to set aside order - Whether first defendants "proper parties" and whether action "properly brought" against second and third defendants - Prima facie cause of action against second and third defendants - Likelihood that defences open to second and third defendants would be successful - Rules of the Supreme Court, Order 11, r. 1 (g) - War Department Stores Act, 1867, Sect. 20 - Tyne Improvement Act, 1890, Sect. 42 - Ministry of Supply Act, 1939.

MURPHY v. FREE TRADE WHARF COMPANY, LTD., AND ELLERMAN'S WILSON LINE, LTD.

(1946) 80 Ll L Rep 198

Negligence - Breach of statutory duty - Docks Regulations, 1934 - Fencing at edge of wharf - Duty to maintain - Gangway to ship - Safe means of access - Claim by plaintiff dock labourer for damages for personal injuries - Plaintiff leaving ship by ship's gangway in broad daylight - Ship's deck below level of wharf at low tide - End of gangway above level of wharf - Attempt by plaintiff to step on to wharf through gangway ropes - Fall into dock - Action brought against employers (wharfowners) and against shipowners - Alleged failure by wharfowners to fence edge of wharf; of shipowners to provide safe means of access - Part of fencing at edge of wharf removed to enable gangway to be placed in position - Purpose of fencing - Duty of shipowners to fence gangway "by means of upper and lower rails, taut ropes and chains . . ." - Meaning of "taut ropes" - Duty of "person employed" to "use the means of access" - Docks Regulations, 1934, Regulations 1, 9, 47.

FREDERICK LEYLAND & CO., LTD. (J. RUSSELL & CO.) v. COMPANIA PANAMENA EUROPEA NAVEGACION, LIMITADA.

(1946) 80 Ll L Rep 205

Contract - Repairs to ship - Claim by repairers for balance of amount due from shipowners - Supervision of work by shipowners' surveyor - Surveyor to certify that work satisfactorily carried out - Refusal to certify - Construction of contract - Purchase of damaged ship by T. on behalf of C. - Ship registered under ownership of Panamanian company, of which T. and wife were sole directors - Power of attorney executed by company giving full control to C. - Repairs to ship in London authorized under licence from Ministry of War Transport - Requisition of ship - Agreement between Ministry, repairers and C. (shipowners), transferring all rights in vessel to shipowners, who were to be responsible for cost of repairs. 6. . . . During the execution of the repairs the owners shall have the right to send their superintending surveyor to inspect the said vessel at all reasonable times and to examine all the materials intended for the execution of the repairs and all parts of the vessel so far as then repaired and generally to exercise reasonable supervision of the repairs during the progress thereof any reasonable expense incurred by the repairers in complying with the wishes of the owners on such inspections and examinations to be charged to the owners in accordance with the provisions herein contained. 7. . . . Payment shall be effected as required by the repairers on the basis of cash against expenditure during the progress of the work and the ascertained balance on the completion of the repairs and every such payment shall be effected promptly by the owners after the issue of a certificate by the owners' surveyor that the work has been satisfactorily carried out and on receipt of a certificate of the amount due issued by the Costs Investigation Branch of the Ministry of War Transport and certifying that same has been checked and found correct (and the Minister agrees to procure that the said Costs Investigation Branch shall so certify and issue certificates) . . . Such last-mentioned certificates shall be accepted by the parties hereto as final and conclusive and shall not be questioned except as regards any error appearing on the face thereof and of which due notice shall forthwith be given to the said Costs Investigation Branch.

Certificate issued by Costs Investigation Branch certifying expenditure by repairers - Refusal by T. to issue certificate that work had been satisfactorily carried out - Whether T. entitled to refuse certificate if, although repairs were satisfactory in quality, the cost was in his opinion excessive - Function of T. - Contention by shipowners that the issuing of a certificate by their surveyor was a condition precedent to the repairers' right to receive payment - Whether T. acted unreasonably in refusing to issue certificate - Amendment of pleadings by repairers during trial, alleging that T. was acting in collusion with, or under influence of, shipowners - Dual capacity of T. under contract.

SPENCER v. R. & H. GREEN & SILLEY WEIR, LTD.

(1946) 80 Ll L Rep 217

Negligence - Safe system of working - Contributory negligence - Personal injuries sustained by plaintiff painter engaged in painting doors of blacksmiths' shop belonging to his employers (defendants) - Plaintiff standing on ladder resting against door - Door opened, causing plaintiff to jump from ladder - Duty of defendants - Evidence that system usually employed was for foreman in charge of painters to warn foreman of shop that painting work was proceeding; that no such warning was given; that plaintiff and his mate had on other occasions safeguarded themselves by the use of wedges; but that no such wedges were used on this particular occasion - Failure by painters' foreman to inform plaintiff that shop foreman had not been warned.

THE "DAGEID."

(1946) 80 Ll L Rep 225

Collision - Convoy - Defective steering gear - Failure to keep station - Right of following vessel to overtake - Inevitable accident - Collision between motor vessels Erinna and Dageid, units in same convoy, with Erinna astern of Dageid - Failure of Dageid's steering gear - Starboarding by Erinna when she found that Dageid was losing her headway - Sheer to port by Dageid followed by sheer to starboard - "Not under command" lights exhibited by Dageid - Impact between stem of Dageid and port side of Erinna - Collision prima facie due to failure of steering gear - Cause of failure - Onus of proof - Whether Dageid should have exhibited her "not under command" lights sooner - Criticism of engine action taken by each vessel - Whether Erinna was negligent in attempting to overhaul the Dageid - Conflicting advice from Elder Brethren as to engine action which should have been taken by Dageid.

JOHN T. ELLIS, LTD. v. HINDS.

(1946) 80 Ll L Rep 231

Road Traffic Act, 1930 - Offence - Uninsured driver - Driver not qualified to hold licence - Omission by employers to make inquiries - Permitted use of motor vehicle on road - Policy complying with Act - M. employed by E. Ltd. as driver of their motor vehicle - Policy taken out by E. Ltd. with insurance company covering third-party risks, but providing that "The company shall not be liable in respect of any claim arising (1) whilst such vehicle is . . . (c) being driven with the general consent of the insured or of his representative by any person who to the knowledge of the insured or of such representative does not hold a licence to drive such vehicle . . ." - Accident while M. driving, M., under 17 years of age, having no driving licence and not qualified to obtain one - E. Ltd. without express knowledge that M. was unlicensed or unqualified to obtain one - Information preferred against E. Ltd. charging them with unlawfully permitting the use of a motor vehicle on a road when there was not in force such policy covering the user as complied with the requirements of the Act - Conviction - Case stated - Finding of Justices (affirmed by Quarter Sessions) that E. Ltd. having recklessly failed to make inquiries must be charged with notice of what such inquiries would have revealed; that by reason thereof E. Ltd. were not within the cover of the policy; that the fact that the insurance company subsequently agreed to indemnify E. Ltd. was irrelevant; and that therefore they were guilty of the offence charged - Appeal by E. Ltd. - Construction of exceptions cause in policy - "To the knowledge of" - Whether E. Ltd. under duty to see that their driver was himself covered by policy - "User of the vehicle" - Road Traffic Act, 1930, Sect. 35 (1).

F. BOWLES & SONS, LTD. v. MAYOR, ALDERMEN AND CITIZENS OF THE CITY OF CARDIFF.

(1946) 80 Ll L Rep 238

Canals - Right to navigate - Restriction - Private Act - Interpretation - Statute of 1790 (as amended by statute of 1796) entitling persons "to navigate upon the said canal with any such ships . . . as the locks thereon will permit" - Navigation of Glamorganshire Canal by plaintiffs' steamship Deloraine - Deloraine employed to dredge sand in Bristol Channel and to bring it to plaintiffs' wharf on landward side of sea lock of canal - Evidence that Deloraine had with careful manoeuvring been navigated through sea lock for such purposes on more than 2000 occasions - Canal vested in Corporation of Cardiff (defendants) - Notice given by defendants to plaintiffs prohibiting navigation of canal by Deloraine except under licence of the defendants, and subject to plaintiffs signing an undertaking that they would make good any damage to defendants' property - Refusal by plaintiffs to sign undertaking - Plaintiffs notified that the Deloraine would not in future be permitted to use sea lock - Claim by plaintiffs (1) for declaration that by the Act of 1790 they were entitled to navigate Deloraine through the sea lock; (2) for an injunction restraining defendants from preventing plaintiffs from so navigating; (3) for damages for breach of statutory duty - Contention by defendants that sea lock did not permit Deloraine to navigate the canal, as Deloraine could not be locked through without extraordinary precautions being taken or without serious risk of damage to the lock, lock gates and vessel; further, that as the sea lock was the only lock permitting Deloraine to pass through, the statute of 1790 gave no right to navigate upon any part of the canal - Act of 1943 extinguishing navigation rights (entitling plaintiffs to compensation), but giving an overriding right to the Minister of War Transport by notice to require defendants to keep open for navigation the canal (or part thereof) until a date to be later determined - Notice given by Minister to defendants to keep open part of canal (which included plaintiffs' wharf) - Expiry date not fixed - Evidence that partly by reason of the defendants' refusal to permit Deloraine to navigate upon canal and partly because of failure to dredge, that portion of canal above sea lock had silted up and was unfit for navigation by Deloraine - Glamorganshire Canal Act, 1790, Sect. 53 - Glamorganshire Canal Act, 1796, Sect. 1 - Cardiff Corporation Act, 1943, Sects. 27, 55.

THE "LOCHMONAR" AND THE "EMPIRE NUGGET."

(1946) 80 Ll L Rep 251

Collision - Convoy - Helm action taken to avoid vessel ahead - Risk of collision with vessels in adjoining column - Look-out - Speeds - Collision between plaintiffs' steamship Sovac and first defendants' motor vessel Lochmonar in Atlantic Ocean - Sovac third vessel in sixth column from port of eastbound convoy - Lochmonar third vessel in seventh column - Second defendants' steamship Empire Nugget second vessel in eighth column - Vessel ahead of Empire Nugget "not under command" - Avoiding port helm action taken by Empire Nugget - Port helm action, and subsequent starboard helm action, taken by Lochmonar to avoid Empire Nugget - Impact between port bow of Lochmonar and starboard quarter of Sovac - Action brought by Sovac against Lochmonar and Empire Nugget - Counterclaim by Lochmonar against Sovac and Empire Nugget - Whether Empire Nugget negligent in maintaining her port wheel and in failing to ease her speed - Look-out on Lochmonar - Duty of Lochmonar to use her twin screws - Look-out on Sovac - Green light switched on just before collision.

THE "NO. 14" (HOPPER).

(1946) 80 Ll L Rep 258

Collision - River - Barges (in tow) turning in River Thames - Duty to avoid - Collision between hopper No. 14 and barges Lentil and Leader, sternmost of six barges in tow of tug Regal - Regal and tow bound up; No. 14 bound down - Flood tide - Tug Grappler (with five barges in tow) also bound up and a little ahead and southward of Regal - Turning signal sounded by Grappler, followed by her rounding under port helm - Engines of Regal stopped to enable Grappler to complete her turning movement and No. 14 to pass - Barges Lentil and Leader found to be tailing to southward - Engines of Regal put ahead in endeavour to straighten up barges - Engines of No. 14 reduced to "slow," then to "stop" and later full astern - Sheer to port - Impact between No. 14 and Lentil - Lentil and Leader broken adrift.

THE "TRUMPETER."

(1946) 80 Ll L Rep 263

Salvage - Abandonment - Misconduct by salvors - Refusal to permit crew of salved trawler to regain possession - Loss of fishing time - Damages - Alleged loss by pilferage of equipment and crew's effects - Services rendered by trawler Tanager to trawler Trumpeter in Galway Bay - Trawlers sheltering - Trumpeter and trawler Ilfracombe driven ashore - Distress signal sent out by Ilfracombe - Crews of both Ilfracombe and Trumpeter taken ashore by lifeboat - Loss of boat and Carley float during rescue - Lifeboat requested by Trumpeter to stand by to enable crew to be taken back when weather moderated - Crew taken back to Trumpeter - Trumpeter in meantime refloated by efforts of Tanager, Trumpeter being boarded by members of Tanager's crew - Crew of Trumpeter forcibly restrained from re-boarding her - Action by Tanager at first indorsed by owner (Tanager being directed by owner to tow Trumpeter to Milford Haven), but later rescinded, Tanager being instructed by owner to hand over Trumpeter to her master and crew at nearest port - Trumpeter handed over at Berehaven - Trumpeter directed by Lloyd's Agent at Berehaven to return to Milford Haven, owing to the loss of her boat, etc. - Claim by Tanager to salvage award - Reduction of award by reason of salvors' misconduct - Counterclaim in respect of alleged pilferage and lost fishing time - Salved value: £10,732.

THE "DOTTEREL."

(1946) 80 Ll L Rep 272

Collision - Look-out - Lights - Speed - Collision between steamships Alaska and Dotterel in English Channel - Vessels in area of intersecting lanes of traffic - Duty to pay special attention to look-out - Alaska, unlighted, on course of 170 deg.; Dotterel, with dimmed side lights, on course of 65 deg. - Red light of Dotterel sighted by Alaska about 200 yards away on starboard beam; loom of Alaska sighted by Dotterel about a quarter of a mile away on port bow - Helm of Alaska ported and then hard-a-starboarded in endeavour to throw her quarter clear - Hard-a-porting by Dotterel, followed by the switching on of her forward masthead light and full astern action - Impact between stem of Dotterel and starboard side aft of Alaska - Alaska sunk - Whether Dotterel should have gone astern sooner - Duty of vessel to show either no lights or her dimmed forward masthead light and side lights - No helm signal sounded by Dotterel - Navigation and Anchor Lights Order, 1939.

THE "EMPIRE OPOSSUM."

(1946) 80 Ll L Rep 276

Collision - Convoy - Fog - Breaking up of convoy - Approaching position for picking up pilot - Look-out - Speeds - Collision between steamships Stad Arnhem and Empire Opossum off Chebucto Head (N.S.) - Both vessels part of westbound convoy which had broken off from main body to proceed into Halifax Harbour - Fog signals of Empire Opossum heard ahead by Stad Arnhem - Engines of Stad Arnhem stopped when signals of Empire Opossum became more distinct - Vessels sighted by each other about ship's length away, Empire Opossum seen by Stad Arnhem to be lying athwart channel - Engines of Stad Arnhem put full astern - Engines of Empire Opossum (alleged to be then "lying stopped") first put full astern and then full ahead - Impact between stem of Stad Arnhem and starboard side of Empire Opossum - Whether Empire Opossum negligent in allowing herself to get athwart channel - Empire Opossum aware that other vessels were astern of her - Evidence that Empire Opossum had arrived at place where it was known she would be expected to pick up pilot - Allegation that Stad Arnhem approached such position at excessive speed.

PAGET v. POLAND.

(1946) 80 Ll L Rep 283

Motor insurance - "Driving with the insured's consent" - Accident - Car belonging to Mrs. F. insured with defendant - Miss F. (daughter of insured) under orders to take Ministry of Information van to Cambridge - Insured car borrowed by daughter to bring her back from Cambridge - Objection by Mrs. F. to daughter's suggestion that car should be driven to Cambridge by Miss P. (an inexperienced driver) - Assent given to proposal that Miss M. (an experienced driver) should drive - Journey commenced with Miss M. at wheel - Driving taken over by Miss P. (allegedly with Miss F.'s acquiescence) during journey - Accident due to negligence of Miss P. - Miss M. seriously injured - Damages awarded in action brought by Miss M. against Misses F. and P. - Action brought by Miss P. for declaration that she was entitled to indemnity under policy issued to Mrs. F. - "The underwriters will indemnify under this section any licensed driver personally driving with the insured's consent any motor vehicle hereby insured."

ECAY v. GODFREY.

(1946) 80 Ll L Rep 286

Sale of ship - Misrepresentation - Warranty - Sale of motor cruiser by defendant to plaintiff - Oral agreement - Evidence of conversation between parties leading up to sale - Questions raised by plaintiff as to condition of boat and as to her sea-going capabilities - Qualified answers by defendant - Boat purchased by plaintiff next day without any further inquiry - Boat in fact unsound - Claim by plaintiff for damages for breach of warranty - Meaning of "warranty" - Test to be applied.

C. BURLEY, LTD. v. MAYOR, ALDERMEN AND COUNCILLORS OF METROPOLITAN BOROUGH OF STEPNEY.

(1946) 80 Ll L Rep 289

Negligence - Dangerous chattels - Removal of "trade refuse" - Damage to contractors' barges - Liability of sanitary authority - Agreement by plaintiffs to remove defendant Council's refuse by barge from Council's wharves - Barges loaded with miscellaneous refuse (including "trade refuse") - Fire in barges, causing serious damage - Action brought against Council - Provisions in agreement that "the contractors shall bear all risk and responsibility of whatever kind which shall attend or result from the execution of this contract" and "that the Council shall not be held responsible for any damage or mischief caused by or through the refuse after it has been shot for disposal into the contractors' barge or barge" - Alleged negligence of defendants in causing to be tipped into barges material which was potentially dangerous - Evidence that "trade refuse" loaded was composed in the main of magnesium "swarf" - Both plaintiffs' and defendants' servants unaware of nature of refuse or that it was dangerous - Impracticability of examination of refuse on tipping - Statutory duty of Council to remove "trade refuse" - Whether an implied term of agreement that refuse tipped should not contain material which was dangerous - Construction of agreement - Public Health (London) Act, 1936, Sect. 92 (1).

COMMISSIONERS OF INLAND REVENUE v. GARDNER, MOUNTAIN & D'AMBRUMENIL, LTD.

(1946) 80 Ll L Rep 297

Revenue - National Defence Contribution - Accounting period - Assessment - Underwriting agents - Computation of profits - Basis of liability - Chargeable accounting period - Practice of Lloyd's - Company acting as agents for various Lloyd's underwriting syndicates - Company to receive as remuneration fixed salary and expenses and commission on net profits on each year's underwriting - Tax returns for accounting period Apr. 1, 1938/Mar. 31, 1939, showing commission relating to transactions initiated in 1936 - Commission relating to transactions initiated in 1938 included in returns for 1941 (when commission finally ascertained) - Additional assessment to National Defence Contribution for 1938/1939 period made in respect of commission on 1938 transactions - Agency agreement providing: 8. The underwriter shall pay to the company as remuneration for its services in conducting the agency a fixed salary [at the rate of so many pounds per annum, so many pounds expenses] and a commission of [so much] per cent. on the net profits on each year's underwriting. . . . The said fixed salary and expenses shall be paid quarterly and shall be treated as an outgoing of the underwriting. 9. The said fixed salary and expenses shall cease at the termination of the agency but after such termination (whether by death of the underwriter or otherwise) the company shall be entitled to wind up the underwriting and the accounts in connection therewith and shall be paid for its services in connection therewith a remuneration of not less than one hundred guineas. 10. An account shall be kept for the period ending the thirty-first day of December [next after the agency commences] and for each subsequent year of the agency . . . and each such account shall be made up and balanced at the end of the second clear year from the expiration of the period or year to which it relates and the amount then remaining to the credit of the account shall be taken to represent the amount of the net profit of the period or year to which it relates and the commission payable to the company shall be calculated and paid thereon. Provided always that for the purpose of ascertaining the commission payable to the company the account for each period or year shall be treated as a separate account and the profits of any one period or year shall not be affected by the result of the underwriting done in any other period or year. 12. In the event of any transaction relating to the underwriting carried on in any period or year being left outstanding when the account for such period or year is made up and balanced any payments or receipts which may afterwards result from such transaction shall be carried to the debit or credit as the case may be of the account for the next year as if the transactions giving rise thereto had occurred in that year. Provided always that in the event of the termination of this agreement the account may at the discretion of the company remain open until all risks have run off and the business shall have been completely wound up. 14. Either of the parties may terminate the agency on the thirty-first day of December [in a particular year] or on the thirty-first day of December of any succeeding year by giving to the other party six months' previous notice in writing of his or its intention to do so. Commissioners of Inland Revenue v. Gardner, Mountain & D'Ambrumenil, Ltd. H.L. 298

Construction of agreement - Evidence as to Lloyd's practice - Underwriting accounts drawn up by reference to calendar year but kept open for certain time (usually three years) to allow for calculation of losses and expenses and ascertainment of profits - Whether commissions proper to be brought into assessment for chargeable accounting period to Mar. 31, 1939, were, as company contended, those relating to policies underwritten in 1936, or, as Crown contended, those relating to policies underwritten in 1938.

PESQUERIAS Y SECADEROS DE BACALAO DE ESPANA, S.A. v. BEER.

(1946) 80 Ll L Rep 318

Marine insurance - Riots and civil commotions - "Any other malicious act" - Civil war - Insurance of Spanish trawlers - Constructive total loss - "This insurance is only to cover loss or damage to the within insured interest caused by strikers, locked-out workmen or persons taking part in labour disturbances or riots or civil commotions or arising from incendiarism, use of explosive bombs or other engines of destruction or from any other malicious act whatsoever by any persons, including general average, salvage and salvage charges as a direct result of malicious damage not recoverable under the marine policies. Excluding war risk and excluding all other risks ordinarily covered under the vessels' marine policy" - Unrest in Spain at commencement of civil war - Plaintiffs' trawlers M., V., E. and H., stationed at Pasajes, seized in August and September, 1936, by armed men and taken to Bilbao, where the Basque Government was in control - Ships taken over by Basque Government and armed for defence against approaching Nationalist forces - V. sunk in engagement with Nationalist cruiser - H. scuttled just before Bilbao fell to Nationalist forces - Escape of M. and E. to French port, where they were interned - H. subsequently raised and returned to plaintiffs - M. and E. returned to plaintiffs in bad condition and with considerable loss of gear - Claim brought against defendant underwriter in respect of total loss of V. and gear and in respect of total loss of gear of M., E. and H. and serious damage to vessels - Right of recovery as for loss due to riots and civil commotions - Meaning of "riots and civil commotions" and of "any other malicious act."

LATHAM v. ROSS & MARSHALL, LTD., AND ANOTHER.

(1946) 80 Ll L Rep 346

Negligence - Explosion on board ship due to petrol leaking from pump - Engineer killed - Action brought by widow against first defendants (managers of ship) and second defendants (suppliers of pump) - Pump designed for general A.R.P. purposes - Engine, pump and petrol tank, forming one unit, installed below deck - Cause of explosion - Whether ventilation adequate - Board of Trade recommendation that petrol tank should be fitted apart from rest of unit - Discovery of petrol fumes by engineers - Engineers unable to detect leak - Increase in petrol fumes - Engineers unable to enter pump-room to turn off petrol owing to heavy fumes - Explosion, killing engineer and sinking ship - Alleged contributory negligence of engineers in failing to stop engine immediately they discovered petrol fumes - Evidence of satisfactory running tests - Duty of first defendants - Liability of second defendants.

HEKTORIA, LTD. v. MINISTER OF WAR TRANSPORT.

(1946) 80 Ll L Rep 354

Charter-party - Requisitioned ship - Loss - Compensation - Claimants' whaling factory ship Hektoria requisitioned by Ministry of War Transport, letter of requisition providing: It is desired that you will run the vessel on the conditions of the pro forma Charter-party T.99A (Tankers) which is enclosed. It is anticipated that there will be no difficulty in agreeing an appropriate rate of hire, but, in default of agreement, compensation payable in respect of the requisition will be determined under the Compensation (Defence) Act, 1939.

Incorporation in T.99A of provisions of T.773:

Provided that the ship is entered in and kept entered in and is covered and kept covered by a policy issued by one or more approved war risks associations, the charterer will pay, or make provision for the payment of, all premiums due in respect of the ship under any such policy. . . . Save as aforesaid the charterer shall be under no liability in respect of the insurance of the ship or any loss or damage by war risks.

Ship torpedoed and sunk during requisition - Payment in full of insured value made by war risks association - Claim by owners under Compensation (Defence) Act - Alleged right to recover balance of "value of vessel . . . immediately before occurrence of the damage which caused the loss" - Whether claimants entered into such agreement as precluded them from claiming compensation under Act - Onus of proof - Inference to be drawn from conduct of parties - Alleged implied acceptance by claimants of terms offered by Ministry - No final hiring agreement concluded, but ship kept insured by claimants with war risks association, premiums being paid by Ministry - Severability - Compensation (Defence) Act, 1939, Sects. 4 (1), 15.

A/S TANKEXPRESS v. COMPAGNIE FINANCIERE BELGE DES PETROLES S/A.

(1946) 80 Ll L Rep 365

Charter-party - Cancellation - Non-payment of hire - "Monthly, in advance" - Cesser of hire - Time charter for seven years (one month more or less at charterers' option), providing: 11. Payment of the said hire to be made as follows: - In cash, monthly, in advance, in London. In default of such payment the owners shall have the faculty of withdrawing the said vessel from the service of the charterers, without prejudice to any claim they (the owners) may otherwise have on the charterers in pursuance of this charter. 27. In the event of loss of time through . . . breach of orders or neglect of duty on the part of the captain causing delay, the payment of hire shall cease from the commencement of such loss of time until she be again in an efficient state to resume her service . . . 34. The Act of God, perils of the sea, fire, barratry of the master and crew . . . and other accidents of navigation always excepted, even when occasioned by negligence, default or error in judgment of the pilot, master, mariners, or other servants of the shipowners . . . Nothing in this clause shall, however, limit the charterers' right to suspension of hire for any period the vessel may not be at charterers' disposal for a period exceeding 48 hours.

Outbreak of war during currency of charter - Dispute between parties as to destination - Vessel then lying at port in Venezuela - Master instructed by shipowners not to commence loading until instructed by them - Dispute settled on Sept. 25, 1939 - Hire due on 27th of each month - Instructions to master to load, sent by shipowners on Sept. 25, not received - Cheque for hire sent by charterers to shipowners' London bank on Sept. 25, immediately they were informed by shipowners that master had been instructed to commence loading - Shipowners notified that cheque was in post - Cheque not received until Oct. 3, owing to delay due to war - Notice of cancellation of charter given by shipowners on Sept. 30, as "hire not received," master being instructed to stop loading - Right of shipowners to cancel - Whether charterers in breach for non-payment of hire - Arbitration - Award in shipowners' favour - Case stated - Questions for opinion of Court:

(a) Whether the charterers were in default in not paying the hire having regard to the fact that the shipowners had instructed the captain not to proceed with the loading until authorised by them and that in fact the captain had not received instructions to load at the time the hire was tendered, viz., on Oct. 3, 1939. (b) Whether on the facts stated the shipowners had the right on Sept. 30, 1939 (at which date the captain was still without instructions to load and the vessel was not at the disposal of the charterers to load) to cancel the charter-party. (c) Whether on the facts stated, and on the assumption that hire became due on Sept. 27, 1939, notwithstanding the fact that the captain had not received the shipowners' instructions to load, the charterers were excused from paying hire on Sept 29 [?27] owing to the fact that the charterers' letter of Sept. 25 was delayed in the post.

HARTWELL v. GRAYSON, ROLLO & CLOVER DOCKS, LTD., AND OTHERS.

(1946) 80 Ll L Rep 381

Negligence - Shipbuilding Regulations, 1931 - Notional occupier - Invitor - Personal injuries sustained by plaintiff (employed by P.) while on board - Ship under repair in dry dock belonging to Mersey Docks and Harbour Board - G.R. under contract with Ministry of War Transport to convert cargo-carrying vessel into troopship - P. sub-contractors to G.R. - B. under contract with shipowners to carry out electrical repairs and repairs to propeller - C. under contract with M.W.T. to supply ballast - Plaintiff instructed to proceed to lower 'tween deck, where G.R. were engaged, to assist them in lowering of timber into hold below - Fall down unlighted and unfenced booby hatch - Claim brought against G.R., B., shipowners and C., alleging common law negligence and breach of statutory duty under Shipbuilding Regulations - Action dismissed by Stable, J., on ground that no common law negligence had been found against any of the defendants and that the occupier under the Shipbuilding Regulations was the Mersey Docks and Harbour Board - Appeal by plaintiff - Contentions on appeal that G.R. were liable at common law; that B. were liable as notional occupiers under shipbuilding Regulations; that shipowners were liable both at common law and under Shipbuilding Regulations - Whether B. notional occupiers of shipbuilding yard - "When a ship is being repaired in public dry dock, the person who contracts with the owner of the ship or with his agent to execute the work of repair, shall be deemed to be the occupier" - G.R. in physical occupation of 'tween deck at time of accident - Meaning of "work of repair" - Shipbuilding Regulations, Duties, pars. (b), (c), Regulations, 1, 10, 42.

THE "KATINGO HADJIPATERA."

(1946) 80 Ll L Rep 392

Collision - Anchored vessel - Fog - Vessels in anchorage preparatory to forming convoy - Vessel under way - Respective duties - Collision between steamships Freden and Katingo Hadjipatera in River St. Lawrence - Vessels due to form part of same convoy - Convoy instructions allotting particular position in convoy and directing vessels to anchor in positions corresponding to order in which vessels should proceed - Timed programme for departure laid down, Katingo Hadjipatera being due to take up position ahead of Freden - Practice for vessels to await executive signal from commodore ship before weighing anchor - Signal not given - Freden at anchor not sounding bell for fog - Risk of hostile submarine attack - Katingo Hadjipatera (anchored wrongly up-river of Freden) moved down river in belief that, the time for departure having passed, she had missed executive signal - Descent of thick fog - Decision to anchor again - Fog signals not sounded - Freden sighted close to - Impact between port bow of Katingo Hadjipatera and starboard side of Freden.

WILLIS STEAMSHIP COMPANY, LTD. v. UNITED KINGDOM MUTUAL WAR RISKS ASSOCIATION, LTD.

(1946) 80 Ll L Rep 398

Insurance - Marine or war - Warlike operations - Damage to bearings of tailshaft - Plaintiffs' ship Harborough insured by defendants under policy covering war risks, which included the consequences of hostilities or warlike operations - Ship carrying army stores from Barry to Middle East via Cape of Good Hope - Arrival at Durban on outward voyage with damage in vicinity of tailshaft - Misalignment of shaft - Rivets renewed - Further repairs effected upon drydocking at Durban on homeward voyage - Dispute as to cause of damage - Lignum vitoe lining excessively worn down - Contention by plaintiffs that abnormal rate of wear-down was due to the maintenance of high speed during heavy weather, causing excessive vibration in and consequent misalignment of propeller shaft - Contention by defendants that misalignment of the propeller shaft, causing damage, was due to faulty lignum vitoe lining - Consideration of survey reports - Discrepancies between plaintiffs' evidence and contemporary correspondence.

PRUDENTIAL STAFF UNION v. HALL.

(1946) 80 Ll L Rep 410

Burglary insurance - Loss of monies - Insurable able interest - Policy covering fire, burglary and housebreaking effected by plaintiff Union for benefit of members - Policy issued by defendant underwriter indemnifying all members of the Prudential Staff Union with respect to claims which might be made upon them by the Prudential Assurance Company for monies held by members as representatives of the insurance company and for which members were responsible - Claim under policy - Alleged burglary or housebreaking at member's premises - Onus of proof - Right of Union to sue - Insurable interest - Estoppel - Whether insurance on "goods" - Life Assurance Act, 1774, Sect. 4.

THE "GEO. W. McKNIGHT."

(1946) 80 Ll L Rep 419

Collision - Fog - Speeds - Breaking up of convoy - Collision between motor vessels Nueva Granada and Geo. W. McKnight in North Channel, Firth of Clyde, in fog - Vessels originally in port column of inward-bound convoy on course of 142 deg., Geo. W. McKnight being next but one astern of Nueva Granada - Orders given that vessels in port column, bound for Clyde, should alter course to 95 deg. a few hours later - Slight porting by Nueva Granada in accordance with instructions, speed being reduced and signals sounded when she ran into bank of tog - Porting by Geo. W. McKnight - Speed maintained when she ran into fog, no signals being sounded - Geo. W. McKnight aware that other vessels in port column were on her port side - Vessels sighted by each other close to - Impact between port bow of Geo. W. McKnight and starboard side of Nueva Granada - Whether vessels under obligation to maintain their convoy course and speed in fog - Collision Regulations, Arts. 15, 16. Practice - Pleadings - Preliminary act - Contradictory evidence - Duty of Court.

HEARD v. BRYMBO STEEL COMPANY, LTD., AND ANOTHER.

(1946) 80 Ll L Rep 424

Negligence - Breach of statutory duty - Maintenance of electrical apparatus - Fault - Explosion - Contributory negligence - Personal injuries sustained by plaintiff electrician, employed by first defendants in power house of their works - Current supplied by electricity supply company (second defendants) - Current to first defendants' works controlled by second defendants' main feeder switch at their power station, supply entering first defendants' works through switch No. 1 and thence through switches Nos. 2, 3 and 4 - Each switch fitted with automatic circuit breaker (or tripping device) in case of fault or excessive loading - Electrical engineering practice for tripping device to be so adjusted that switch nearest fault tripped first - Tripping of No. 4 switch owing to overloading, followed by explosion on supply side of switch - Works thrown in to darkness - - Tripping of second defendants' main feeder switch at same time - Failure of switched Nos. 2 and 3 to trip owing to faulty stetting and of switch No. 1 to trip owing to jamming - Main feeder switch closed by second defendants after short period of time, in accordance with usual practice - Second explosion in vicinity of switch No. 4, injuring plaintiff in course of investigating fault - Whether plaintiff guilty of contributory negligence in failing to take precaution of opening switches Nos. 2 and 3 (which were on the same switchboard) before investigating - Statutory duty of first defendants as occupiers - "All apparatus and conductors shall be sufficient in size and power for the work they are called upon to do, and so constructed, installed, protected, worked and maintained as to prevent danger so far as is reasonably practicable" - Statutory responsibility of second defendants "for all electric lines and apparatus placed by them on the premises of a consumer and either belonging to the [second defendants] or under their control (whether forming the whole or part of the consumer's installation or not) being installed and maintained in a safe condition and suitable for their respective purposes and being so fixed and protected as to prevent so far as is reasonably practicable leakage to any adjacent metal" - Liability of second defendants to employee of consumer for all accidents, damages and injuries happening through their act or default - [1908] S.R. & O., Heard v. Brymbo Steel Company, Ltd., and Another. C.A. 425 No. 1312, Regulation 1 - Electricity Supply Regulations, 1937, Regulations 24, 25, 39 - Electric Lighting (Clauses) Act, 1899, Schedule, par. 77.

THE "LLANOVER."

(1946) 80 Ll L Rep 433

Collision - Damages - Loss of ship requisitioned under Charter-party T.99A - Market value - Loss of profits - Plaintiffs' steamship Presto sunk by collision with defendants' steamship Llanover - Llanover alone to blame - Reference to Registrar - Claim by plaintiffs including (1) market value of Presto at date of loss; (2) loss of trading profits - Presto under requisition by M.W.T. upon terms of Charter-party T.99A - Hire "for such period as the charterer may require but, unless otherwise agreed, not extending beyond the expiration of six months from the cessation of hostilities" - Award by learned Assistant Registrar of (1) £22,900 (claim: £25,000) in respect of market value; and (2) £4500 (claim: £20,269 13s. 4d.) in repect of loss of profits - Award of sum for loss of profits made on basis of long term charter, on grounds that Presto was in fact certain of continuous employment under Government charter - Motion in objection by defendants in respect of Item (2) - Contention by defendants that, there being an option in the charter to cancel at will, the amount which could be claimed for loss of profits was limited to anticipated profits of collision voyage - Further evidence adduced as to market value - Basis of market value - Assurance of profitable employment during war.

THE "LIGHTFOOT."

(1946) 80 Ll L Rep 441

Collision - River - Narrow channel rule - Look-out - Speed - Alteration of course without signalling - Collision between H.M.S. St. Helier (ex passenger vessel) and steamship Lightfoot on southern edge of swept channel in Sea Reach, River Thames - St. Helier bound down; Lightfoot bound up - Green of Lightfoot opened to St. Helier; red of St. Helier opened to Lightfoot - Starboarding by Lightfoot to take her on her up-river course - Red and green opened to St. Helier - Porting by St. Helier to make for exit to swept channel - Green opened to Lightfoot - No helm signal sounded by either vessel - Hard-a-porting by Lightfoot for purpose of passing green, to green (helm signal then being sounded, though not heard by St. Helier) - Starboarding by St. Helier (no helm signal being sounded) - Port helm signal repeated by Lightfoot - Hard-a-starboarding by St. Helier (helm signal then being sounded) - Impact between stem of Lightfoot and port side aft of St. Helier - Speed maintained by both vessels until moment of collision.

THE "DELILIAN."

(1946) 80 Ll L Rep 448

Collision - Convoys meeting - Fog - Alterations of course - Look-out - Collision between steamships Cape Wrath and Delilian in English Channel in dense fog - Cape Wrath in centre column of eastbound convoy; Delilian acting as commodore vessel of westbound single-line convoy - Both vessels exhibiting lights and streaming fog buoys - Cape Wrath (in accordance with convoy instructions) on course of 111 deg. - Unidentified signals heard ahead - Course maintained - Delilian (and her convoy) originally on course of 276 deg. - Course of convoy altered 30 deg. to starboard to avoid Cape Wrath's convoy (which Delilian as commodore vessel had been informed was approaching) - Signals giving instructions to starboard heard ahead by Delilian, apparently coming from Cape Wrath's convoy - Further starboarding by Delilian - Cape Wrath and Delilian sighted by each other close to - Impact between stem of Cape Wrath and port side of Delilian - Evidence of method adopted in convoy to transmit orders for alteration of course - Alleged negligence of Cape Wrath in being out of station and in failing to hear signals instructing her to starboard - Confusion of signals - Whether Delilian should have taken more drastic starboard helm action when she became aware of the immediate presence of the Cape Wrath's convoy.

BULGARIS v. LA PLATA CEREAL COMPANY, S.A.

(1946) 80 Ll L Rep 455

Arbitration - Arbitrator - Appointment - Extension of time - Charter-party - Greek ship chartered in 1940 to load grain at Rosario - Marseilles nominated by charterers as port of discharge - Collapse of France - Ship diverted to Cadiz - Complaint made by shipowner's agent regarding detention at Cadiz - Subsequent agreement between parties that cargo should be discharged at Genoa, charterers to pay extra freight - Claim by charterers for damage to cargo and short delivery - Freight withheld - Arbitrators appointed by each of the parties - Contention by charterers that shipowner's arbitrator was appointed only in respect of the damage and short delivery claims - Motion by shipowner asking for extension of time in which an arbitrator might be appointed by him in respect of his claim for detention - Appointment admittedly out of time - Undue hardship - Arbitration Act, 1934, Sect. 16 (6).

ANGLO-SAXON PETROLEUM COMPANY, LTD., AND ANOTHER v. THE ADMIRALTY; SAME v. DAMANT.

(1946) 80 Ll L Rep 459

Salvage - Negligence of salvors - Stranding of oil tanker - Salvage by naval personnel - Loss of ship and cargo by fire - Damages - Alleged failure by officer in charge of salvage operations to take reasonable precautions against fire - Proceedings brought by owners of ship and cargo against Admiralty by way of petition of right and against salvage officer in tort - Stranding of plaintiffs' ship Delphinula off entrance to Alexandria Harbour - Request made by master to naval authorities for tugs and lighters - Conduct of operations put in hands of D. (O.C. Admiralty Salvage Section) - Refloating a matter of urgent military necessity - Failure of first attempts at refloating by lightening and towing - Full responsibility accepted by D. for decision to force petrol cargo through holes in bottom of tanks by means of air compressors - Creation of dangerous area around ship by reason of escape of large quantities of petrol - Great risk of fire - Necessity for special precautions to be taken - Whether D. took all reasonable steps, by instructions given to tugs and personnel, to ensure that risk was reduced to a minimum - Explosion and fire as tugs met alongside vessel - Risk in sending tugs alongside - Possible causes of fire and explosion - Actual cause unknown - Total loss of ship - Standard of skill to be applied in conduct of salvage operations - Misconduct by salvors - Alleged assent by plaintiffs' representatives to method adopted - Volenti non fit injuria - Measure of damage - Market value - Depreciation - Estimated cost of repairs.

"TOWER FIELD" (OWNERS) v. WORKINGTON HARBOUR AND DOCK BOARD.

(1946) 80 Ll L Rep 488

Docks, Harbours, etc. - Approaches to port - Duty of harbour authority to maintain in safe condition or to give warning of obstructions - Ship in charge of pilot - Negligence of pilot - Grounding of plaintiffs' steamship Tower Field on bank of silt in entrance channel to Workington Harbour - Damage to ship - Claim by plaintiffs - Counterclaim by defendant harbour authority for damages resulting from obstruction - Inaccurate and misleading inset on Admiralty Chart of Solway Firth - Inset based on plan supplied by defendant harbour authority - Statement on inset that certain depth and width were maintained by dredging - Evidence that such depth and width of entrance channel were not maintained - Leading beacons indicating centre of channel inaccurately placed - Harbour authority aware of serious encroachments into entrance channel caused by development of banks of silt on each side - Evidence of periodical personal inspections of channel by local pilots - Pilot aware of encroachments into channel and of misleading character of leading beacons - Reliance upon own judgment - Attempt to bring in ship without reference to the line of leading beacons, but using a beacon on the northern side of the channel as a guide.

THE "CARLGARTH."

(1946) 80 Ll L Rep 502

Collision - Anchored vessel - Lights - Look-out - Auxiliary fishing vessel Victoria II sunk by collision with defendants' tug Carlgarth in Liverpool Bay - Victoria II at anchor - Dispute as to whether Victoria II was exhibiting her lights - Onus of proof - Probabilities.

THORNALLEY AND ANOTHER v. GOSTELOW AND ANOTHER.

(1946) 80 Ll L Rep 507

Sale of ship - Breach of warranty - Innocent misrepresentation - Sale by defendants to plaintiffs of converted ship's lifeboat (powered by 25 h.p. motor engine) - Boat purchased without examination by defendants from third party for purpose of sale to plaintiffs - Receipt signed by third party stating that boat was "in watertight condition" - Boat bought by plaintiffs for purpose of inshore fishing - Defendants informed by plaintiffs of purpose for which boat required - Sale completed after trial trip - Evidence of statements honestly made by defendants at time of sale that boat was seaworthy and fit for plaintiffs' purpose - Whether intended by parties to form part of contract - Defects found in planking after subsequent fishing trips by plaintiffs - Unseaworthiness - Claim by plaintiffs for damages.

PICKFORDS, LTD. v. PERMA PRODUCTS, LTD.

(1946) 80 Ll L Rep 513

Carrier - Loss of motor lorry by fire - Measure of damages - Indemnity agreement - Construction - Carriage of defendants' highly inflammable goods in plaintiffs' lorry - Agreement by defendants to indemnify plaintiffs "against all loss damage or injury arising out of the carriage of such dangerous goods" - Twin tyres punctured during journey - Evidence that deflation was likely to set up additional friction in tyres, resulting in heating and possibly in combustion - Examination of tyres by driver (employed by plaintiffs) - Lorry left by driver for purpose of telephoning his employers for spares - Lorry and defendants' goods burnt out during absence - Whether driver negligent in leaving lorry - Right of plaintiffs to indemnity - Measure of indemnity - Claim by plaintiffs for (1) market value of lorry; (2) loss of earnings.

THE "DAGEID."

(1946) 80 Ll L Rep 517

Collision - Convoy - Defective steering gear - Failure to keep station - Right of following vessel to overtake - Inevitable accident - Collision between motor vessels Erinna and Dageid, units in same convoy, with Erinna astern of Dageid - Failure of Dageid's steering gear - Starboarding by Erinna when she found that Dageid was losing her headway - Sheer to port by Dageid followed by sheer to starboard - "Not under command" lights exhibited by Dageid - Starboarding by Erinna at increased speed - Impact between stem of Dageid and port side of Erinna - Collision prima facie due to failure of steering gear - cause of failure - Onus of proof - Whether Dageid should have exhibited her "not under command" lights sooner - Criticism of engine action taken by each vessel - Whether Erinna was negligent in attempting to overhaul the Dageid and in increasing her speed just before collision - Decision of Pilcher, J., that neither vessel was to blame - Appeal by Erinna - Cross-appeal by Dageid.

THE "EROS."

(1946) 80 Ll L Rep 523

Collision - River - Turning in river - Signals - Look-out - Duty of up-coming vessel to keep out of way - Collision between steamships John Perring and Eros in Halfway Reach, River Thames - Both bound up river, Eros gradually overtaking John Perring - Signal sounded by John Perring indicating that she was turning under port helm - Turning signal repeated - Porting by Eros in endeavour to cross ahead of John Perring - Wheel of John Perring put amidships and engines put astern - Impact between port bow of John Perring and starboard side of Eros - Whether John Perring embarked upon her turning manoeuvre at an improper time - Port of London River By-laws, 1938, Rule 30.

THE "VICTORIA PEAK."

(1946) 80 Ll L Rep 527

Salvage - Services rendered by tugs Arcadia and Hibernia to steamship Victoria Peak aground stern first in Gravesend Reach - Inability to use engines - Towed off and taken downstream - Salvage admitted - Short and simple service occupying one hour - Dispute as to danger - Evidence that plating was generally thin - Risk of damage - Salved values: £67,000 - Award: £500 - Tender of £500 - Defendants awarded costs after date of tender.

SOCIETE CO-OPERATIVE SUISSE DES CEREALES ET MATIERES FOURRAGERES v. LA PLATA CEREAL COMPANY, S.A.

(1946) 80 Ll L Rep 530

Sale of goods (f.o.b.) - Breach - Cancellation by sellers - Failure by buyers to declare or tender ship - Prohibition of export - Impossibility of performance - Frustration - Liability of sellers - Construction of contract - Measure of damages - Sale by Argentine company to Swiss company of "about 5000 tons Plate maize new crop by steamer/s . . . as per bill or bills of lading dated or to be dated 16th May/June, 1945" - Second contract entered into on similar terms - Contracts based on terms of London Corn Trade Association Contract No. 64, which provided (inter alia): - Extension clause. Should buyer not tender suitable tonnage within contract time he shall be in default, unless he gives notice to the seller by letter or telegram not later than the last day of the specified period for delivery, that an extension is claimed. Should extension be so claimed, seller shall carry the grain for account of buyer at the current charges for storage, interest and insurance, such to be paid by the buyer; but at any time after 21 days after the expiration of such specified period for delivery, seller may demand payment at contract price, plus such carrying charges, but less the current f.o.b. charges, against a tender of proper warehouse receipts, and such tender of warehouse receipts, without fire insurance, shall be deemed complete performance of contract on the part of seller. Prohibition clause. Should the fulfilment of this contract be rendered impossible by prohibition of export, blockade, or hostilities, this contract, or any unfulfilled part thereof, to be cancelled.

"Special conditions as annexed." Special conditions providing: -

Payment in Buenos Aires by telegraphic transfer on Switzerland on first presentation of the documents and/or warehouse receipts and/or mate's receipts if necessary. The buyers must declare the name of the steamer to load the goods at least 15 days beforehand. If the goods have not been able to be loaded by the 30th of June, 1945, the carrying charges will be for buyers' account from the 1st July, 1945, at the rate of 10 centavos per 100 kilos per fortnight for storing and fire insurance, and payment will be made against warehouse receipt established by the sellers.

Ship not declared or tendered by buyers - Extension not claimed - Contracts cancelled by sellers on July 2, 1945, on ground of prohibitive decrees introduced by Argentine Government - Decrees providing that all maize destined for export must be purchased exclusively from Agricultural Products Regulating Board - Evidence that Board had no "Plate maize new crop" which they were willing to sell and that sellers were unable to obtain permit to export maize of their own property - Claim by buyers for damages - Whether sellers excused from performance of contracts - Effect of decree - Arbitration - Award in favour of buyers - Damages assessed on oasis of estimated market value at time of breach - Case stated - Interpretation of contracts - Effect of annexed special conditions - Whether extension clause of Contract No. 64 superseded.

EGAN v. GENERAL STEAM NAVIGATION COMPANY, LTD.

(1946) 80 Ll L Rep 545

Negligence - Safe means of access - Personal injuries sustained by plaintiff labourer on board defendants' steamship - Steamship moored alongside quay at Deptford - Ebb tide - Ship sitting on mud - Fall from ship end of gangway leading from quay to ship's deck - Injury to knee - Allegation that gangway pivoted as it was improperly secured - Suitability of gangway - Evidence that it had been in use without mishap for considerable time - Workmen's compensation paid during plaintiff's total incapacity - Plaintiff now back at work - Possibility of further claims on basis of partial incapacity - Costs of action.

COMMISSIONERS OF INLAND REVENUE v. LAURENCE PHILIPPS & CO. (INSURANCE), LTD.

(1946) 80 Ll L Rep 549

Revenue - Excess Profits Tax - Assessment - Underwriting agents - Advances by agents - "Debts due to the person carrying on the business" - "Capital employed in the business" - Company carrying on business as underwriting agents at Lloyd's - Formation of marine and non-marine syndicates, company to act as agents - Advances made by company to A. and B. (associated with company) to enable them to qualify as underwriting members of Lloyd's and as "names" in, syndicates - Loans repayable out of profits accruing to A. and B. as "names" - Profits resulting from use of moneys loaned to A. and B. included in assessment of company's profits - Computation of capital - Contention by company that such loans were made by company in the furtherance of their business, and that the debts owing to the company in consequence of the making of such loans formed part of the capital employed in the company's business - Submission by Crown that such debts were not capital employed in the company's business; alternatively, if employed in the company's business, that they were investments - Finance (No. 2) Act, 1939, Sects. 13(3), 14(2), Seventh Schedule, Parts I and II.

THE "ST. ROGNVALD."

(1946) 80 Ll L Rep 559

Collision - Overtaking - Duties of overtaking and overtaken vessels-Collision between H.M. drifter Boy Andrew and steamship St. Rognvald in Firth of Forth-Both vessels eastward bound in swept channel, St. Rognvald overtaking Boy Andrew at lateral distance of about 100 ft.-Sudden starboarding by Boy Andrew across course of St. Rognvald-Cause unexplained- Hard-a-starboarding by St. Rognvald, engines being stopped - Impact between starboard tide aft of Boy Andrew and steam of St. Rognvald-Boy Andrew sunk with all hands-Negligence of St. Rognvald in attempting to pass Boy Andrew at so close a distance-Whether a contributory cause of collision-Collision Regulations, Arts. 21, 24, 27.

TYNE IMPROVEMENT COMMISSIONERS v. ARMEMENT ANVERSOIS, SOCIETE ANONYME, AND OTHERS.

(1946) 80 Ll L Rep 570

Practice - Writ - Foreign defendant - Service of notice of writ out of jurisdiction - "Proper party to an action properly brought against some other person duly served within the jurisdiction" - Sinking of Belgian steamship (carrying British Government-owned cargo) off entrance to Tyne - Expenses incurred by plaintiff harbour authority, acting under statutory powers, in removal of wreck - Wreck removal expenses recoverable from owner of wreck (which includes cargo) - Action to recover such expenses brought against Belgian shipowners (first defendants), Ministry of Supply (second defendants), and nominal consignees of cargo (third defendants) - Writ served upon A., director of first defendants, resident in England - Service of writ upon A. set aside on ground that A. at the material time was not carrying on the first defendants' business in England - Ex parte application by plaintiffs for leave to serve notice of writ out of the jurisdiction granted by learned Judge - Motion by first defendants to set aside order - Whether first defendants "proper parties" and whether action "properly brought" against second and third defendants - Whether second and third defendants "owners" of cargo - Rules of the Supreme Court, Order 11, r. 1 (g) - War Department Stores Act, 1867, Sect. 20 - Tyne Improvement Act, 1890, Sect. 42 - Ministry of Supply Act, 1939 - [1939] S.R. & O., No. 877.

THE "TAIWAN."

(1946) 80 Ll L Rep 580

Collision - Crossing rule - Narrow channel rule - Look-out - Contributory negligence - Apportionment of blame - Collision between steamship British Hussar and motor vessel Taiwan in Suez Bay - British Hussar originally at anchor to westward of dredged channel leading to Suez Canal entrance - Outward-bound voyage continued, ship making her way across edge of dredged channel and thence direct between buoys marking southern entrance to channel - Taiwan originally at anchor to south-west of southern entrance to channel - Inward-bound voyage continued, ship being manoeuvred to pass between buoys marking southern entrance to channel - Ships first sighted by each other on crossing courses, with the British Hussar as the give-way ship - Duty of British Hussar directly she entered channel - Helm ported, taking her over to east side of channel - Ineffective astern action taken just before collision - Bad look-out on Taiwan - Engines put full speed ahead on direct course for entrance between buoys - Impact on east side of channel between stem of British Hussar and port side of Taiwan.

THE "ST. MELANTE."

(1946) 80 Ll L Rep 588

Salvage - Award - Loss of fishing - Services rendered by steam trawler Red Sword to steam trawler St. Melante in White Sea - Propeller fouled by trawl - Request made by radio telephone to Red Sword for assistance, Red Sword then being 95 miles away - St. Melante towed 148 miles to Kirkenes, total services occupying about 68 hours - Moderate weather - No immediate danger - Other trawlers in vicinity - Further fishing by Red Sword discontinued after short period of time - Lock of quality coal - Return to Fleetwood - Alleged loss of fishing - Extra coal consumed (£220) - Damage to tow ropes, etc. (£90) - Salved values: £25,000.

THE "FERNWOOD."

(1946) 80 Ll L Rep 592

Salvage - Services rendered by tugs Morpeth, Brunswick, Coburg, Marsh Cock, Storm Cock and Troon to motor vessel Fernwood aground on Pluckington Bank, River Mersey - Grounding just before high water - Risk of serious damage - Vessel refloated by means of towing and pushing services occupying periods of time varying between 15 and 25 minutes - Salved value of ship: £172,000 - No appearance entered on behalf of Government-owned cargo valued at £862,000 - Awards against ship (taking into account horse-powers and values of tugs): Morpeth, £1500; Brunswick, £1500; Coburg, £1500; Marsh Cock, £1000; Storm Cock, £1000; Troon, £750 - Intimation by learned Judge (at request) that total awards would have been increased from £7750 to £9000 if salved values had included cargo.

HERALD & WEEKLY TIMES, LTD. v. NEW ZEALAND SHIPPING COMPANY, LTD.

(1946) 80 Ll L Rep 596

Canadian Water Carriage of Goods Act, 1936 - Damage to cargo by sea water - "Act, neglect, or default of the master, mariner, pilot or the servants of the carrier . . . in the management of the ship" - "Any other cause arising with out the actual fault and privity of the carrier" - Unseaworthiness - Onus of proof - Shipment of newsprint in defendants' ship for carriage from St. John (N.B.) to Melbourne - Arrival at Sydney (N.S.W.) on Nor. 9, 1944 - Soundings regularly taken while in port - Water discovered in port and starboard bilges to No. 1 hold (where newsprint was stowed) on Nov. 17, when depths of 3 and 4 in. were found - Similar depths recorded until Nov. 20, when 3 ft. 6 in. of water was found in starboard bilge, indicating that water was present in No. 1 hold - Bilge and hold pumped dry in accordance with surveyor's recommendation - No under-water damage discovered by diver - Ship permitted to proceed to Melbourne, where ship was further surveyed - Soundings taken showing 3 and 5 in. of water in port and starboard bilges - Port bilge found on exposure to be full of water, further examination disclosing that port bilge sounding pipe was choked with sand to height of about 3 ft.; that number of bays in bilges were choked with sand; and that the cavity between tank top and close ceiling of No. 1 hold was packed solid with sand - Evidence that sand had been used as ballast on previous voyages, but that bilges were afterwards cleaned - Conflicting opinions as to cause of entry of water into No. 1 bilge - Suggestions made that valves in bilge pipeline were jammed; that they were blocked with sand; that they had been negligently left open - Probabilities - Canadian Water Carriage of Goods Act, 1936, Schedule, Art. III (2), Art. IV (2) (a), (q).

THE "QUEEN MARY."

(1946) 80 Ll L Rep 609

Collision - Single ship convoy - Escort - Respective rights and duties - Overtaking - Seamanship - Look-out - Collision between H.M.S. Curacoa and steamship Queen Mary in Atlantic Ocean in broad daylight - Curacoa acting as protective escort to Queen Mary - Queen Mary on zigzag course known to Curacoa, and overtaking Curacoa in spite of zigzag - Manoeuvres by Curacoa to keep herself within limits of Queen Mary's zigzag - Starboard leg of zigzag undertaken by Queen Mary when Curacoa was a little forward of her starboard beam and about a mile distant - Converging courses - Porting by Queen Mary when vessels about two cables apart, followed by hard-a-porting when they were about one cable apart - Allegation by Curacoa that order "Starboard 15 deg." was given when ships were about four cables apart - Evidence of port wheel action taken before collision - Reason for porting unexplained - Interaction - Impact between stem of Queen Mary and port side of Curacoa - Curacoa sunk - Consideration of correlative duties of escort and her faster convoy - Collision Regulations, Arts. 21, 27, 29.

THE "BERWICKSHIRE."

(1946) 80 Ll L Rep 644

Collision - Look-out - Lights - Inevitable accident - Collision between plaintiffs' sailing vessel Anne de Bretagne and defendants' steamship Berwickshire in Atlantic Ocean - Anne de Bretagne, exhibiting her regulation side lights, on an easterly course; Berwickshire, without lights, on a southerly course - Vessels sighted by each other at distance of about 100 yards - Points of impact in dispute - Anne de Bretagne so severely damaged that she had to be sunk - Plea by Berwickshire that collision was due to inevitable accident - Failure by Berwickshire to see lights of Anne de Bretagne sooner alleged to be due to intervening heavy swell.

M. GOLODETZ v. SCHRIER AND ANOTHER.

(1946) 80 Ll L Rep 647

Arbitration - Award - Enforcement - Jurisdiction of arbitrators - Submission - Consent of parties - Contract of sale - Offer and acceptance - Negotiations for sale of parcel of sugar entered into in Palestine between agent for plaintiffs (sellers) and defendants (Palestinian subjects) (buyers) - Terms of contract contained in order form - "Terms and conditions London Refined Sugar Association Contract" - Failure by buyers to implement contract - Sellers' claim submitted to arbitration of Council of Refined Sugar Association of London - Buyers notified of arbitration - No appearance by buyers - Award in sellers' favour - Action brought by sellers to enforce award - Contention by buyers that no firm contract had been entered into; that they had informed arbitrators to that effect; and that arbitrators were without jurisdiction - Whether terms and conditions of London Refined Sugar Association Contract (including the rules relating to arbitration) were incorporated in contract - Construction of arbitration rule.

COMPTOIR D'ACHAT ET DE VENTE DU BOERENBOND BELGE, S.A. v. LUIS DE RIDDER, LIMITADA.

(1946) 80 Ll L Rep 653

Sale of goods - C.i.f. contract - Documents - Payment by buyers against delivery order - Ship diverted by sellers to neutral port owing to enemy occupation of contract destination - Right of buyers to repayment of price paid - Failure of consideration - Sale of 500 tons of rye (part of bulk cargo) "for shipment per steamer . . . Julia afloat as per bill or bills of lading dated or to be dated accordingly at the price of 4.025 dols. per 100 kilos c.i.f. Antwerp on the terms, conditions and rules contained in Form No. 41 of the London Corn Trade Association" - Further provision that "Payment to be made by net cash on first presentation of and in exchange for first arriving copy/ies of bill/s of lading . . . and/or delivery order/s and polic/ies and/or certificate/s and/or letter/s of insurance at Antwerp . . ." - Bulk cargo shipped by sellers in chartered ship Julia - Delivery order presented in Antwerp to Belgian buyers (claimants) - Delivery order signed by sellers' agents and addressed to sellers' cargo superintendents instructing them to release to claimants 500 tons rye ex bill of lading for 1120 tons shipped in Julia - Notification in delivery order that holder was entitled to share in certificate of insurance covering bulk cargo - Certificate and bills of lading retained by sellers (or their agents) - Goods unascertained - No passing of property to buyers - Payment made by buyers against delivery order - Undertaking by sellers' cargo superintendents indorsed on delivery order "to honour the present delivery order according to the clauses and conditions of the bill of lading, and the bearer has all the rights and obligations of the original document which we hold for his inspection" - Invasion of Belgium by German armed forces - Julia diverted to Lisbon by arrangement between shipowners and sellers (as charterers) - Cargo discharged and sold by sellers ex ship - Proceeds offered to buyers - Contention by buyers that they were entitled to repayment of sum paid against delivery order - Alleged total failure of consideration - Construction of contract - Evidence of course of business followed in previous transactions between parties - Passing of risk - Frustration - Arbitration - Award rejecting buyers' claim - Case stated.

THE "BALTYK."

(1946) 80 Ll L Rep 668

Towage - Contract - Hire of tugs for towage purposes - Negligence of tug - Liability of hirers - Plaintiff canal company's tug hired by defendant shipowners to assist steamship B. from Manchester to Eastham - Tug engaged on plaintiffs' usual terms "that on the hiring of the company's tugs for towage, docking, piloting, or assistance services, the master and crew of such tugs, become in all respects the servants of and are identified with the ship, and are under the control of the person in charge of the ship, whilst the towage, docking, piloting, or assistance services are being performed" - Tug cast off at Partington to enable B. to bunker, tug berthing at adjacent tip during bunkering - Tug summoned by whistle signal from B. to continue towage - Collision between tug and steamer S.C. (bound up the canal) before again making fast to B. - Negligence of tug - Blame apportioned between tug and S.C. - Right of tugowners to be indemnified by defendant shipowners under towage contract - Construction of contract - Contra proferentem.

THE "AMERICAN FARMER."

(1946) 80 Ll L Rep 672

Salvage - Derelict - Prior salvors - Dispossession by later salvors - Whether justified - Alleged inability to accomplish salvage unaided - Successful search by R.A F. plane - Right to award - United States steamship American Farmer (which was eastward bound) abandoned by crew after collision in Atlantic Ocean about 650 miles west of Land's End - Expectation that ship would founder - SOS messages sent out - Request made by owners of American Farmer to R.A.F. Coastal Command that plane should be dispatched to ascertain whether American Farmer was still afloat and, if so, her exact position - American Farmer found by plane, message to that effect being sent to authorities - Salvage tugs Salvonia and Empire Mary ordered by their owners to answer distress call - Message in meantime picked up by British steamship Elizabete that American Farmer was still afloat - Course retraced by Elizabete (which was eastward bound) about 130 miles to last estimated position of American Farmer - American Farmer boarded by party from Elizabete - Holds Nos. 1 and 2 flooded - Ship down by head - Steering gear and engines out of action - Crew of Elizabete unfamiliar with layout - Steps taken to tow American Farmer to port - Connection established by means of four of Elizabete's mooring ropes - American Farmer shortly afterwards sighted by American Ranger (a westward-bound sister ship) - American Farmer boarded by party from American Ranger - Work commenced on steering gear and engines, so that ship could proceed to nearest port without assistance - Towage commenced by Elizabete - Slow progress - Steering gear and engines put in order by party from American Ranger - Master of Elizabete informed by master of American Ranger that American Farmer would proceed to port under her own steam - View expressed by master of American Ranger (indorsed by U.S. destroyer Perry which was then standing by) that Elizabete could not herself accomplish towage and that tow ropes should be cast off - Tow ropes to Elizabete cut by boarding party from American Ranger when it became apparent that Elizabete refused to disconnect - American Farmer navigated to port by skeleton crew from American The "American Farmer." Adm. 673 Ranger (which included five volunteer U.S. army personnel who were passengers on American Ranger) - American Farmer escorted by American Ranger and later by Salvonia and Empire Mary which upon arrival were asked by the master of American Ranger to stand by - Arrival at Falmouth before Elizabete arrived at Barry - No real risk to American Farmer or to salvors in prevailing weather - Right of President of Air Council and crew of plane to salvage award - Air Navigation Act, 1936, Sect. 28 - [1938] S. R. & O., No. 136.

IN RE MERCHANT SHIPPING ACTS, 1894 TO 1906. APPEAL BY WILLIAM DUNN, SECOND OFFICER OF STEAMSHIP "CITY OF LINCOLN."

(1946) 80 Ll L Rep 692

Seaman - Certificate - Suspension - Appeal - Stranding of steamship City of Lincoln off Quoin Point, South Africa - Stranding found by Court of Inquiry held in Cape Town to be due to "erratic steering; error in calculating distance off Danger Point; course set too near the land; no allowance made for inshore set or current; failure to take prompt action when it should have been obvious that the ship was well to the northward of her estimated course between midnight and 00 30" - Specific finding of negligence against second mate in that he failed to take sufficient warning, first from a sounding and later from a bearing, that ship was off her course - Twelve months' suspension (within limits of South African waters) of second mate's master's certificate, second mate being officer of the watch at time of stranding - Appeal by second mate against suspension - Evidence that second mate came on watch at midnight, having been given his position and the course he was to follow on chart - Position in fact erroneous - Alleged negligence or bad seamanship in regard to his conduct during his period of watch - Compass error - Alleged duty to take frequent soundings - Look-out - Bearings - Criticism of visit to chart-house during watch for purpose of working out compass error from his own observations.

Lloyd's Law Reports