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Motor insurance-Private hire-Implied hiring-Personal injuries sustained by plaintiff in motor accident-Plaintiff knocked down by ear driven by P. (insured by defendant insurance company) -Indemnity limited to use for "Private purposes only"-Exclusion from liability when being used for "private or public hire"-G. (carrying on private hire business) telephoned by M. requesting car to pick him up at Liverpool dock and take him to railway station-G.'s car out of commission- P. (at the time on a visit to G., and whose car was outside) requested by G. to execute commission-M. picked up by P.-Plaintiff knocked down on way to station-G. informed of accident by P. -M. subsequently picked up by G. and journey completed, but too late to catch train-No express mention made of payment for hire-No hire paid- Judgment recovered by plaintiff against P. unsatisfied - Claim for indemnity under policy refused by Pritchard, J.-Whether P. at time of accident was engaged in "private hire"-Inference to be drawn from conduct of parties.

(1948) 82 Ll.L.Rep. 1


Criminal law - Indictment - Joinder of counts - Appeal against conviction - Alleged misjoinder-Right to separate trial in respect of one count - Misdirection-Appellant convicted on indictment containing four counts: (1) Felony, charging him with maliciously setting fire to ship, contrary to Sect. 42 of Malicious Damage Act, 1861; (2) Felony, charging him with maliciously setting fire to ship with intent thereby to prejudice underwriters, contrary to Sect. 43 of said Act; (3) Misdemeanour, charging him with intent to defraud underwriters in falsely claiming under policy payment in respect of total loss of ship by accidental fire; (4) Misdemeanour, charging him with having obtained money by false pretences from insurance company in respect of alleged theft of mink coat - Indictments Act, 1915, Schedule 1, r. 3: Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character.

Contention by appellant that conviction should be quashed on grounds: (1) that fourth count should not have been joined with other three counts, and that therefore whole indictment was bad; (2) that there should have been a separate trial in respect of fourth count; and (3) that there was misdirection of jury by learned trial Judge- Appellant acquitted on fourth count- Malicious Damage Act, 1861, Sects. 42, 43-Indictments Act, 1915, Sects. 4, 5, Schedule 1, r. 3-Administration of Justice (Miscellaneous Provisions) Act, 1933, Sect. 2.

(1948) 82 Ll.L.Rep. 7


Collision-River-Starboard-hand rule- Look-out-Speed-Collision in River Ouse between lighter Lillian May (in tow of motor barge Maranne) and steamship Pearl-Lillian May bound up; Pearl bound down-Maranne navigating without towing and masthead lights-Porting by Maranne to avoid down-coming Pearl, which she believed would keep to the deep water channel on the north side - Starboarding by Pearl in order to pass port to port up-coming flotilla (which she at first erroneously thought included the Maranne and her tow) - Confused signals-Evidence as to visibility- Maranne and Lillian May in same ownership.

(1948) 82 Ll.L.Rep. 15


Negligence - Safe means of access - Dangerous premises - Warning - Breach of statutory duty-Delegation of duty - Contributory negligence - Personal injuries sustained by plaintiff scaffolder - Plaintiff, in employ of defendants, instructed by them to dismantle scaffolding on their premises which had been erected for the purpose of air raid precautions-Part of defendants' premises where scaffolding situated requisitioned during war, but now de-requisitioned, though not used by defendants as part of their factory -Plaintiff warned of unsafe condition of structure-Collapse of scaffolding during dismantling, plaintiff being injured-Plaintiff provided by defendants with adequate materials and resources for scaffolding work-Unsafe system of working adopted by plaintiff -Right of recovery from defendants- Whether structure a "factory" - Distinction between "means of access" and "place at which any person has at any time to work"-Factories Act, 1937, Sects. 26 (1), 151 (6).

(1948) 82 Ll.L.Rep. 23


Repairs to ship - Breach of contract to repair-Subsequent leakage-Defective workmanship - Heavy weather - Collision repairs effected at Greenock by defenders to pursuers' ship in accordance with surveyors' recommendations -Leakage on voyage to St. John (N.B.) -Leaks repaired at St. John-Further leakage on voyage from St. John to Halifax-Further repairs carried out at Halifax-Leakages both within and outside the area of Greenock repairs- Evidence as to the nature and extent of repairs at Greenock - Whether defects discovered at St. John and Halifax due to effect of heavy weather on an old ship - Alternative explanations of leakage-Probabilities.

(1948) 82 Ll.L.Rep. 30


Charter-party-Cancellation-Withdrawal of ship from service of charterers-Nonpayment 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 permitted 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 - Findings by arbitrator that steps taken by charterers were "in accordance with the procedure that had been previously adopted in remitting the hire"; that "the practice between the owners and charterers during the currency of the charter-party was for the charterers to pay the hire on the 27th of each month, deducting from the hire any amount for time off hire during the currency of the previous month"; that there was an "accepted method between the parties during the currency of the charter with regard to the payment of hire" and that "the payment of hire had been regularly and properly paid in this way during the currency of the charter and had always been paid on its due date until this payment of the hire due on the 27th day of September"-Award in A/S Tankexpress v. Compagnie Financiere Belge des Petroles S/A. H.L. 44 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 owners had instructed the captain not to proceed with the loading until authorized 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 owners 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 the hire became due on Sept. 27, 1939, notwithstanding the fact that the captain had not received the owners' instructions to load, the charterers were excused from paying the hire on Sept. 29 [?27] owing to the fact that the charterers' letter of Sept. 25 was delayed in the post.

(1948) 82 Ll.L.Rep. 43


Collision-River-Fog-Anchored vessels- Duty of vessels coming to anchor -Seamanship - Consequential damage - Plaintiffs' steamship Royal Star lying at anchor close to north bank in Gravesend Reach, River Thames, and partially athwart tide-Evidence that, proceeding up river on the ebb tide, she ran into fog and decided to anchor; that having passed a tug and tow (anchored) on her starboard side, she dropped down river on the opposite side of the tug and tow and between the tug and tow on the north bank; that with the turn of the tide she attempted by the use of her twin screws to swing through northward (she was too close to the tug and tow to swing through southward) but was brought up against the north bank; that she was lying in that position when the defendants' motor vessel Paraguay approached from astern, apparently attempting to pass between the Royal Star and the north bank, and came to rest aground in close proximity to the Royal Star's stern; and that the Royal Star, using her engines to move ahead, fell more athwart the tide and collided with steamships Algol and William Homan -Action brought by Royal Star against Paraguay, alleging that collisions between Royal Star and Algol and William Homan were a consequence of negligence of Paraguay - Onus of proof - Evidence of Paraguay that, proceeding up river, she was seeking a place in which to anchor; that having starboarded for a succession of anchored vessels she found herself in close proximity to Royal Star; and that she was prevented from passing northward of the Royal Star by reason of the unusual angle at which the Royal Star was lying - Whether Paraguay under duty to have anchored earlier.

(1948) 82 Ll.L.Rep. 62


Negligence-Damage to ship-Ships moored alongside each other - Ranging - Defective moorings - Plaintiffs' tug Criccieth tied up outside trawler William King moored at quay on River Tyne-Ropes and wires laid out from Criccieth to William King and fore and aft from Criccieth to quay-Defendants' steam wherry Moody tied up outside Criccieth-Moorings laid out from Moody to Criccieth and to William King-No ropes to shore- Deterioration of weather during weekend -Damage to port side of Criccieth due to contact with Moody-Cause of damage-Whether Moody properly and adequately moored - Watchman installed on Moody-Alleged duty upon plaintiffs to provide watchman on board Criccieth-Tyne Improvement Commission By-laws, 1884, Nos. 5, 78.

(1948) 82 Ll.L.Rep. 72


Motor insurance-"Social, domestic and pleasure purposes" - Meaning - Personal injuries sustained by policy-holder (garage proprietor) in car accident - Car being driven by W. (employee of policy-holder)-Judgment recovered by policy-holder against W. -Claim by W. against insurance company for indemnity under Motor Dealers' Comprehensive Policy (Road Risks Only) issued by them to policy-holder and containing an "Extension of use" clause providing: The [insurance company] will in like manner indemnify the policy-holder or any member, director or employee of the policy-holder who on the order or with the permission of the policy-holder is using any vehicle described in the endorsement hereon for social, domestic and pleasure purposes.

Arbitration - Findings of arbitrator that policy-holder was travelling as a passenger, and that he was making the journey to the premises of a firm with whom he intended to negotiate for a contract in connection with his business; that it was more convenient for the policy-holder to travel in his own car than in a hired vehicle; and that it was more comfortable, pleasurable and restful so to travel-Award that car was not being used for "social, domestic and pleasure purposes," and that W. was not entitled to indemnity - Case stated - Test to be applied in determining purpose of use - Multiplicity of purposes.

(1948) 82 Ll.L.Rep. 77


Collision-Crossing vessels-Overtaking- Look-out - Collision between steam trawlers Ben Roy and George H. Hastie off Orkney Islands-Ben Roy on S. by E. course; George H. Hastie on S.W. course-Course of Ben Roy altered to S.W. by W., bringing ships on to gradually converging courses with Ben Roy "off the port side" of George H. Hastie-Course of George H. Hastie altered to S.-Respective duties-Criticism of look-out on board Ben Roy- Evidence that navigation of Ben Roy at critical time was left in control of unskilled deckhand-Collision Regulations, Arts. 19, 24.

(1948) 82 Ll.L.Rep. 82


Sale of ship - Breach of warranty - Draught-Sale by plaintiffs to defendants of motor fishing vessel and motor sea coach - Inclusive price for both vessels - Part price paid - Claim by plaintiffs for balance - Counterclaim by defendants for damages for breach of warranty in that the sea coach did not comply with the specification regarding her passenger capacity; her draught; and her speed - Judgment entered for plaintiffs by Byrne, J., on claim and counterclaim - Appeal by defendants argued solely on question of draught of sea coach-Specification: "Draught: 2 ft. 6 in." - Meaning - Whether referring to "mean" or to "maximum" draught.

(1948) 82 Ll.L.Rep. 89


Negligence - Sinking of barge in dock - Damage to bottom plating-Cause of damage - Onus of proof - Plaintiffs' barge Tweed holed and sunk in Royal Albert Dock, London-Action brought by plaintiffs against owners of steamship Ocean Valley, it being alleged that barge, which was lying moored in immediate vicinity of steamship's stern, was struck by steamship's propeller, which was admittedly turned a short time before the barge sank-Coincidence of three contact marks on barge and three contact marks on propeller- Defendants' evidence that proper care was taken before turning the propeller and that the Tweed was at that time well clear-Alternative theories as to cause of sinking-Probabilities.

(1948) 82 Ll.L.Rep. 95


Negligence - Sinking of barge in dock - Flooding by ship's discharge pipe - Plaintiffs' barge Sanda, loaded with timber, left unattended in Royal Albert Dock-Defendants steamship Empire Nene moored at quay-Wooden screen erected for purpose of deflecting water from discharge pipe down ship's side- Unexplained drifting of barge during night - Found by lighterman next morning to be lying waterlogged underneath discharge pipe, barge sinking before pump could be obtained - Liability of ship-Standard of care- Duty of barge-Port of London (Consolidation) Act, 1920, Sect. 155 (5), (6).

(1948) 82 Ll.L.Rep. 101


Collision-Canal-Local by-laws-Duty of inward-bound vessel to give way - Starboard-hand rule-Speed-Consequential damage - Personal injury claim - Contributory negligence - Towage contract-Common employment -First defendants' motor vessel Polartank, with tugs M.S.C. Bison and Rixton fast fore and aft, outward bound in Manchester Ship Canal; second defendants' tug Aviator, towing third defendants' barge Lynn, inward bound-Meeting of flotillas in Millbank cutting-Impact between Lynn and port side of Polartank, Lynn finally going under stern of Polartank and colliding with Rixton - Plaintiff (employed as deckhand on Rixton) seriously injured when attempting to disconnect tow rope to Polartank just before collision - Action brought by plaintiff against owners of Polartank, Aviator and Lynn - Whether plaintiff's injuries a consequence of collision-Alleged contributory negligence - Evidence that plaintiff, in carrying out orders to release tow rope, stood in bight of rope -Obvious risk-Manchester Ship Canal By-laws, No. 15: When vessels navigating the canal and proceeding in opposite directions are approaching one another each vessel shall be navigated slowly and with caution and shall keep to her own starboard side, so as to pass with safety port side to port side. When two vessels proceeding in opposite directions and about to meet are approaching a dredger or stationary craft (moored in the canal), or the rock-cuttings at Ince, Stanlow, and Millbank, or any other place in the canal where it is not prudent or seamanlike for them to attempt to pass each other, the inward-bound vessel shall give way until passed by the outward-bound vessel . . .

Liability for collision-Obligation upon Aviator to give way to Polartank - Warning of approaching flotilla-Duty of vessels approaching one another to reduce speed and to navigate "slowly and with caution" - Whether vessels failed to take seamanlike action when approaching each other-Failure by Polartank to warn her stern tug (Rixton) of impending danger-Cause of sheer by Lynn-Rixton engaged by Polartank under contract providing:

It is further agreed 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.

Whether plaintiff in common employment with first defendants' servants on board Polartank - Circumstances in which doctrine applicable-Manchester Ship Canal By-laws, Nos. 4, 5, 6, 12, 13, 15.

(1948) 82 Ll.L.Rep. 108


Salvage-Towage or salvage - Pilotage - Services rendered by plaintiffs' motor launch Ferry Nymph and pilot boat Trio to motor yacht Eileen Siocht in Poole Bay-Boarding by pilot for purpose of pilotage to Poole Quay-Pilot informed by engineer that engines were not working satisfactorily - Trio requested by pilot to stand by-Breakdown of engines - Discussion between pilot and owner (who was on board) as to steps to be taken - Possibility of anchoring for purpose of effecting repairs-Risk of grounding-Evidence of weather and of tidal set - Yacht towed to Poole Quay-Whether salvage or towage.

(1948) 82 Ll.L.Rep. 128


Bill of lading - Unseaworthiness - Prolongation of voyage-Outbreak of war -Nominated port of discharge not reached - Ship ordered by British authorities to proceed to different port of discharge - Cargo transhipped to nominated port-Cost of transhipment -Damages-Remoteness-War clause- Illegality-Cargo of beans purchased by pursuers from M. & Co. on c.i.f. terms -Defenders' ship chartered by M. & Co. for carriage of beans from Rashin to range of European ports-Serious delay on voyage due to boiler trouble- Unseaworthy condition of boilers at commencement of voyage-Karlshamn nominated by M. & Co. during voyage as port of discharge-Outbreak of war before arrival in European waters- Evidence that voyage would normally have been completed weeks before outbreak of war-Ship directed by British authorities to discharge at Glasgow- Bills of lading indorsed to pursuers after arrival at Glasgow-Cargo transhipped from Glasgow to Karlshamn- Claim by pursuers against defenders for cost of transhipment-War clause: (2) The ship shall have liberty to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages, destination, delivery or otherwise howsoever given by the government of the nation under whose flag the vessel sails or any department thereof, or any person acting or purporting to act with the authority of such government or of any department thereof, or by any committee or person having, under the terms of the war risks insurance on the ship, the right to give such orders or directions and if by reason of and in compliance with any such orders or directions anything is done or is not done, the same shall not be deemed a deviation, and delivery in accordance with such orders or directions shall be a fulfilment of the contract voyage and the freight shall be payable accordingly.

Effective cause of diversion - Ship bound to proceed to Glasgow in compliance with Admiralty orders-Risk of outbreak of war within reasonable contemplation of parties - Measure of damages.

(1948) 82 Ll.L.Rep. 137


Shipbuilding Regulations, 1931 - Safe means of access - Staging - Design - Repairs to ship in dry dock-Fall from staging - Personal injuries sustained by plaintiff engaged in welding work to hull of ship in dry dock - Staging (planks on trestles) erected by defendant ship-repairers (plaintiff's employers)-Evidence that planks overlapped, and that plaintiff stumbled against overlap when ducking under spawl - Alleged negligence and/or breach of statutory duty by defendants -Regulations 1, 11 (b) (i).

(1948) 82 Ll.L.Rep. 160


Collision-River-Turning in river-Look-out - Collision between steamships Ewell and Moses Gay in Erith Reach, River Thames, in broad daylight-Both vessels bound up, Moses Gay, having passed Ewell a short time before, being ahead of Ewell-Turning to port by Moses Gay in neighbourhood of Coldharbour Point - Signals sounded and repeated - Porting by Ewell, it being contended that there was no room to pass to northward of Moses Gay- Collision on south side of river, stem of Moses Gay striking starboard side of Ewell at about a right angle-Action brought by Ewell against Moses Gay -No counterclaim-Respective duties- Port of London River By-laws, 1938, Rule 30.

(1948) 82 Ll.L.Rep. 163


Salvage - Services rendered by river tug Merry Moller and lighters Prettylight and Silkylight to motor vessel Prometheus off mouth of River Yangtze - Prometheus damaged forward by mine - Down by head - Inability to cross river bar to Shanghai-Lighters towed by tug from Shanghai to ship for purpose of assisting in lightening of ship-Part cargo loaded into lighters- Cargo shifted from forward to aft by other salvors to put ship on even keel- Ship enabled to cross bar - Claim by tug and lighters against ship-Estimate of value of services - Plea by defendants that ship could have been similarly lightened by jettison of cargo, in which case the ship's liability would have been limited to general average contribution-Risk to ship-Evidence of prevailing weather -Damage to lighters-Loss of ropes, etc.

(1948) 82 Ll.L.Rep. 172


Contract - Indemnity - Hiring-Personal injuries claim-Mobile truck hired by plaintiffs to defendants (plaintiffs' agents) - Driver supplied by plaintiffs - Truck driven by man recently engaged and trained by plaintiffs-D. (employed by defendants as cargo checker) run down and injured-Settlement of action brought by D. against plaintiffs-Right of plaintiffs to indemnity by defendants-Conditions of hire (set out on plaintiffs' hire form) that hirer should be liable for all loss or damage, however caused, by or in connection with the use of the truck, to (inter alia) the hirer's own employees or property - Hiring to defendants without form being signed - Implied term that driver supplied with truck should be competent - Dispute as to cause of accident-Whether due to incompetence of driver or to his negligence - Onus of proof - Evidence of driver's engagement and of his training.

(1948) 82 Ll.L.Rep. 179


Negligence-Personal injuries sustained by shipwrights (O. and F.) engaged in repairs to lifeboat of steamship Sea Perch in dock-Fall of lifeboat from davits on to deck of steamship alongside -O. killed and F. seriously injured -Action brought by F. and by dependants of O. against owners of Sea Perch-Evidence that O. and F., having left the scene of their work at about noon, returned at about 1 40 p.m.; that the lifeboat fell shortly after they reentered it; and that release gear had in some way got into a position of danger -Onus of proof of negligence.

(1948) 82 Ll.L.Rep. 183


Negligence-Stevedores-Failure to supply proper plant - Proof - Personal injuries sustained by pursuer, dock labourer engaged in loading ship in Glasgow dock-Fall of keg from tray while being hoisted by crane-Crane owned by first defenders and operated by craneman employed by them-Action brought by pursuer against first defenders, alleging negligence in craneman- Negligence denied by first defenders, it being alleged that accident was due to defective condition of tray (supplied by stevedores, pursuer's employers); also that accident was caused or contributed to by negligence of pursuer himself or of his fellow dock labourers -Stevedores joined by pursuer as second defenders-Evidence adduced by pursuer supporting case against first defenders and denying negligence of second defenders-Right of pursuer to found on evidence of craneman (denied by pursuer in his action against first defenders) to establish his claim against second defenders - Judgment of Lord Ordinary holding neither defenders to blame - Decision upheld by Inner House-Present appeal limited to case against second defenders.

(1948) 82 Ll.L.Rep. 187


Charter-party - Hire - Cesser of hire - "Deficiency of men . . . or other accident" -"Inability to get or to complete a crew"-Time charter of ship -Ship ready to sail-Full complement of officers and crew - Refusal to sail except in convoy-Delay-Liability of charterer for hire during delay. 11 (A). In the event of drydocking or other necessary measures to maintain the efficiency of the vessel, deficiency of men or owners' stores, breakdown of machinery, damage to hull or other accident, either hindering or preventing the working of the vessel and continuing for more than twenty-four consecutive hours, no hire to be paid in respect of any time lost thereby during the period in which the vessel is unable to perform the service immediately required. 13. . . . The owners not to be liable for loss or damage arising or resulting from strikes, lock-outs or stoppage or restraint of labour (including the master, officers or crew) whether partial or general. Subject to Clause 11 (A) and Addendum thereto. . . . 34. Addendum to Clause 11 (A). Notwithstanding the provisions of Clause 11 (A) it is agreed that in the event of loss of time due solely to inability to get or to complete a crew (a) full hire will be paid for the first seventy-two hours of such loss of time and (b) in the event of such loss of time taking place at a port in the United Kingdom or in ports in the British Empire overseas and continuing beyond such seventy-two hours, half hire will be paid for a further period of seventy-two hours, but thereafter hire shall cease until the vessel is again ready to resume her service. . . .

Arbitration-Award that Clause 11 (A) and its Addendum did not relieve the charterer in whole or in part from his obligation to pay hire - Case stated - Meaning of "deficiency of men"-"Or other accident."

(1948) 82 Ll.L.Rep. 196


Sale of goods-Non-delivery-Measure of damages - Mitigation - Available market-Sale by defendants to plaintiffs of parcel of Indian snakeskins, c.i.f. a United Kingdom port, "net cash against documents"-Documents taken up by buyers-Shipment properly rejected by buyers as being unmerchantable - Claim by buyers for return of price paid plus damages for loss of profit-Evidence of steps taken by buyers in mitigation-Small parcel of dressed skins purchased for resale - Whether buyers under a duty to have sought further skins in India in replacement of skins which sellers failed to deliver-Judgment entered by Sellers, J., for buyers for return of price paid plus damages for loss of profit (an allowance being made in sellers' favour on the grounds (1) that skins of a similar type might have been obtained elsewhere; (2) that the profit on each skin was based on anticipated rather than on certain sales)-Appeal by sellers against award of damages for loss of profit-Sale of Goods Act, 1893, Sect. 51.

(1948) 82 Ll.L.Rep. 202


Negligence-System of working-Personal injuries sustained by plaintiff dock labourer in London dock-Plaintiff a member of gang employed in removing boxes from shed and stacking them outside preparatory to their being lifted by stationary mobile crane on to lorry-Plaintiff injured by near rear wheel of another mobile crane just after it had passed lorry and stationary mobile crane - Cranes belonging to P.L.A. and driven by their servants -Action brought by plaintiff against P.L.A. alleging (1) that they were negligent in that (a) the moving crane was without means of giving adequate warning of its approach; (b) there was no look-out man in advance of the crane; (c) the look-out afforded to G., the driver of their crane, was by reason of the construction of the crane inadequate; (2) that the driver G. was negligent in various particulars - Denial of negligence by P.L.A. - Further pleas that plaintiff was guilty of contributory negligence, in that he stepped back into the crane; alternatively, that accident was due to negligence of S., driver of stationary mobile crane, in signalling the mobile crane driven by G. to pass when it was unsafe to do so and without giving proper warning to plaintiff and his gang, and that, both G. and S. being in common employment with plaintiff, there was no right of recovery.

(1948) 82 Ll.L.Rep. 206


Contract-Repairs to ship-Lump sum contract - Breach - Plaintiff's motor yacht put in hands of defendant ship-repairers for purposes of overhaul, refitting, etc. - Alleged agreement between parties that work should be completed by a certain date and at a maximum cost of £600, plaintiff to supply certain fittings - Denial by defendants that any fixed price was agreed-Alleged implied term that they should be paid a reasonable price for the work-Evidence of conversations and other matters leading up to contract -Claim by plaintiff for damages for breach of contract; for delivery up of yacht; and for damages for detention -Alleged defective workmanship- Counterclaim by defendants for work done and for declaration that they were entitled to exercise a lien on the yacht.

(1948) 82 Ll.L.Rep. 217


Charter-party - Demurrage - Loading - Bulk cargo-Stowage-Bagging of part cargo required by local regulations and for reasons of safety-Time occupied- Charter of Canadian ship to Ministry of Food - Ship to load at named Canadian ports (one port only) full and complete cargo of wheat in bulk- "Steamer to be loaded according to berth terms, with customary berth dispatch . . . charterer to pay demurrage . . . provided such detention shall occur by default of charterer"-Loading subject to local port regulations permitting ship to carry bulk grain to the full capacity of all lower holds, provided properly constructed feeders were fitted in the hatches and trunked in the 'tween decks-"All other grain in the 'tween decks . . . must be in bags"-Bagging also necessary for safety of ship-Loading commenced on Oct. 11, full amount of bulk cargo permitted by regulations being put on board by 8 45 a.m. on Oct. 17, when ship was already on demurrage- Further wheat loaded for purpose of bagging, ship being down to her marks by 1 p.m. - Bagging completed by stevedores (employed by shipowners) by 3 p.m.-Whether charterers liable for demurrage for both periods between 8 45 a.m. and 3 p.m. - Time of completion of loading - Whether bagging part of loading - Meaning of "loading."

(1948) 82 Ll.L.Rep. 223


Charter-party-Dispatch money - Computation of time saved-Lay days-"In turn not exceeding 48 running hours" -"All time saved at port of loading" -Steamship chartered for voyage from Sfax and Casablanca to Finnish ports under charter-party providing (inter alia): 6. The vessel to be loaded at Sfax and Casablanca in the customary manner alongside the wharf reserved to shippers, at the berth they indicate and according to their orders, in turn not exceeding 48 running hours not included the legal holidays or Sundays, nor the time between noon on Saturday or the day preceding any holiday and 8 a.m. on Monday or the day following any holiday even though work should have commenced earlier, and after the vessel has been admitted in free pratique and notice been given to shippers that she is ready to load. The cargo to be loaded in vessel's holds by shippers, the owners paying 3s. per ton of 1000 kilos loaded (bill of lading weight) for this operation. Lay days to count as soon as the vessel has reached the end of her turn from 8 a.m. or 2 p.m. after the vessel being admitted into the port in free pratique and ready in all respects to load has occupied the loading berth indicated by shippers (the loading gear being free for loading). Legal or local holidays for 24 hours, and the time between noon on Saturday or the day preceding any holiday and 8 a.m. on Monday or the day following any holiday not to count as turn and/or as lay time. Time allowed for loading to be calculated on the bill of lading weight . . . Any time used by the vessel changing berth not to count as turn and/or lay time. 11. Demurrage, if any, at loading port to be paid to owners at the rate of U.S. $1000 per running day or pro rata. On all time saved at port of loading, owners to pay to shippers dispatch money at half of demurrage rate per day (portions of a day pro rata).

Ship berthed at Sfax and loading commenced at 1 p.m. on Friday, Oct. 24 (day before local holiday)-No time in fact lost in awaiting turn - Whether charterers entitled to 48 hours' free time before commencement of lay days - Loading completed at Sfax on Friday, Oct. 31-Lay days allowable: 9 days, 16 hours-Expiry of permissible loading time at Sfax (allowing for holidays, etc.) on Nov. 12-Arrival at Casablanca on Nov. 7, loading being completed on Nov. 10-Lay days allowable: 3 days, 4 hours, 48 minutes-Expiry of permissible loading time at Casablanca (allowing for holidays, etc.) on Nov. 14 -Computation of dispatch money - Deduction by charterers from freight- Whether, as owners contended, dispatch money should be calculated by reference to the actual loading time saved, or whether, as charterers contended, it should be calculated by reference to the difference between the allowable loading time and the time during which the shippers could, without paying demurrage, have kept the ship in port for the purpose of loading - Arbitration - Award in charterers' favour - Case stated.

(1948) 82 Ll.L.Rep. 232


Master and servant-Common employment -Servant pro hac vice-Dock Labour Decasualization Scheme - Claim for personal injuries brought by pursuer (dock labourer) against defenders (stevedores) - Negligence alleged against shore craneman and foreman (ordinary employees of defenders) and against hatchmouthman (allocated to defenders under Dock Labour Decasualization Scheme)-Pursuer also allocated to defenders under Scheme - Plea of common employment made by defenders -Applicability of doctrine to a temporary servant allocated under Scheme -Implied contract.

(1948) 82 Ll.L.Rep. 244


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), Minister of Supply (second defendant), 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- Tests to be applied - Bona fides - Whether second and third defendants "owners" of cargo - Rules of the Supreme Court, Order 11, r. 1 (g)- Privileges and prerogatives of Crown- Action against Minister of Supply - Immunity - War Department Stores Act, 1867, Sect. 20-Tyne Improvement Acts, 1850-1934 - Ministry of Supply Act, 1939-Ministry of Supply (Transfer of Powers) (No. 1) Order, 1939.

(1948) 82 Ll.L.Rep. 251


Sale of goods-Failure of consideration- Passing of property-C.i.f. form- 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- 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. U.S.A. currency per 100 kos. c.i.f. Antwerp on the terms, conditions and rules contained in Form No. 41 of the London Corn Trade Association.

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 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 - Delivery order signed by sellers' agents and addressed to sellers' cargo superintendents instructing them to release to buyers 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 Comptoir d'Achat et de Vente du Boerenbond Belge, S.A. v. Luis de Ridder, Ltda. H.L. 271 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.

(1948) 82 Ll.L.Rep. 270


Docks Regulations, 1934-Lighting-Breach of statutory duty - Safe system of working - Contributory negligence - Personal injuries sustained by plaintiff stevedore engaged in loading heavy cases of machinery into hold of first defendants' steamship in Royal Victoria Dock, London-Evidence that plaintiff, during the operation of stacking the cases, fell into space between cases and bulkhead - Action brought against shipowners (first defendants) and against employers (second defendants) alleging that accident was due to inadequate lighting.

(1948) 82 Ll.L.Rep. 290


Motor insurance-Proposal form-Answer - Warranty - Change of risk - Ambiguity - Contra proferentes doctrine -Proposal form for insurance of commercial vehicle completed by plaintiff -"Q. 9: Are any of your drivers under 21 years of age or with less than 12 months' driving experience? A.: No"-"I/we hereby agree that this declaration shall be held to be promissory, and so form the basis of the contract between me/us and the underwriters" -Meaning of "promissory" -Policy issued by defendant Lloyd's underwriter on Mar. 18, 1946-C. (third party) fatally injured on Oct. 7, 1947, during unloading of lorry covered by policy - Lorry being driven by plaintiff's son, who had been regularly employed as driver since Feb. 2, 1947.- Son with over 12 months' driving experience but under 21 years of age at time of accident - Action brought against plaintiff by dependants of C. - Claim by plaintiff for indemnity under policy - Liability denied by defendant on grounds (1) that employment of a driver under 21 years of age fundamentally altered character of risk; (2) that Q. 9 and the answer thereto amounted to a continuing warranty; and (3) that the declaration made by plaintiff amounted to an undertaking as to the future - Arbitration-Award that answer to Q. 9 was true when made; that subsequent employment by plaintiff of his son as driver did not render answer untrue; and that therefore plaintiff was entitled to indemnity by defendant- Case stated.

(1948) 82 Ll.L.Rep. 294


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, 24, 27, 29.

(1948) 82 Ll.L.Rep. 303


Negligence - Damage to wharf - Proof of damage-Claim brought by plaintiff wharf-owners against owners of motor vessel L.C.G. (M.) 182-Plaintiffs' case that vessel was negligently (or in breach of contract to use plaintiffs' wharf) berthed alongside wharf so that she in part drifted under wharf and, on the rising tide, caused damage- Alleged failure by defendants to provide proper and sufficient fenders - Plea by defendants that wharf had been de-requisitioned by the Admiralty shortly before alleged damage, and that the Admiralty had agreed to pay a certain sum for dilapidations; that the items of damage charged against the defendants had been included in the Admiralty settlement; and that therefore plaintiffs had suffered no material loss - Judgment entered by learned County Court Judge for £133 (plaintiffs' claim: £247)-Appeal-Question of fact-County Courts Act, 1934, Sect. 106.

(1948) 82 Ll.L.Rep. 344


Negligence-Loading of ship-Fatal accident -Negligence of crane-driver-W. engaged in checking sugar which was being loaded from Ipswich quay into sailing barge Repertor-Loading being carried out by shore crane belonging to port authority-Flying jib stay fouled by jib of crane, breaking off piece of topmast, which fell and killed W. - Action brought by administrators of W. against port authority, alleging negligence of crane-driver, and against barge-owners, alleging negligence of those in charge of barge-Dispute as to cause of accident - Whether barge shifted during course of loading-Evidence of moorings-Matters to be taken into account in assessing damages.

(1948) 82 Ll.L.Rep. 350


Collision - Crossing vessels - Respective duties - Seamanship - Collision in Bedford Basin, Halifax (N.S.), between steamships Norefjord and Alcoa Rambler in daylight-Norefjord proceeding in an easterly direction across fairway, but, by use of constant port helm, in fact maintaining a curved course-Alcoa Rambler outward bound down fairway on a S.S.E. course- Basin congested with other shipping, requiring numerous changes of helm- Ships sighted by each other at a distance of about 1800 ft.-Alcoa Rambler loaded with explosives and being escorted by naval launch, as required by local regulations - Both Alcoa Rambler and escort carrying warning flags-Evidence that regulations, which applied to inward-bound vessels, and which required other vessels to keep clear of ships carrying explosives, were in practice applied to outward-bound vessels - Crossing courses - Meaning of "course" - Whether course of Norefjord should have been so apparent to Alcoa Rambler as to make it incumbent upon her (Alcoa Rambler) to give way-Tests to be applied - Collision Regulations, Arts. 19, 21, 27.

(1948) 82 Ll.L.Rep. 359


Collision - Fog - Convoy - Single ship meeting fast two-ship convoy with escort-Escort vessels fitted with radar -Collision in English Channel between French steamship Espérance and Polish motor vessel Sobieski-Sobieski, commodore vessel of two-ship convoy travelling at speed, escorted by naval vessels, and subject to "Coastal Convoy Cruising Order & Instructions" -L., on board H.M. Canadian ship Loch Alvie, acting as senior officer in charge of escorting flotilla - Action brought by Espérance against Sobieski - Counterclaim by Sobieski against Espérance and L.-Espérance inward bound for Solent and sounding pilot signal "G" (in the hope of obtaining directional guidance) - Ship being navigated at very slow speed to maintain northerly heading-Signal "Q" faintly heard from time to time on port bow - Espérance unaware that "Q" was recognized signal of southbound convoys-Explosions heard on starboard quarter-Engines put slow ahead, helm being ported-"G" signal heard by Sobieski fine on starboard bow - Inquiry made to senior escort officer as to significance of "G" signal -"G" signal heard close to by Sobieski before inquiry answered - Engines immediately stopped and navigation lights switched on-Impact between port bow of Sobieski and port quarter of Espérance - Loch Alvie aware by radar of presence of surface vessel (which turned out to be Espérance), then some considerable distance away-Duty of L. to advise convoy commodore as to changes of course and speed deemed necessary - Presence of enemy submarine detected by asdic before L. thought it necessary to advise convoy commodore as to change of course and speed-Depth charges dropped by Loch Alvie-Radar put out of action, making it impossible to ascertain later bearing of Espérance -Respective duties-Whether L. failed in his duty to warn commodore of presence of Espérance or to instruct her to alter course-Collision Regulations, Arts. 15, 16, 27.

(1948) 82 Ll.L.Rep. 370


Charter-party - Freight - Demurrage - "Centrocon" charter-party-Ship to load wheat and/or maize and/or rye- Ship fully loaded at Buenos Aires partly with specified cargo and partly with optional cargo, but short of her deadweight capacity for wheat in bags -Cargo discharged at Liverpool and Avonmouth - Cargo not weighed on discharge at Avonmouth-Provisions in charter: 6. Charterers have the option of shipping other lawful merchandise, cotton, sugar, quebracho wood, quebracho extract and distillery residue excluded, in which case freight to be paid on steamer's deadweight capacity for wheat in bags on this voyage at the rate above agreed on for heavy grain, but steamer not to earn more freight than she would if loaded with a full cargo of wheat in bags. This option can only be used if the quantity of other lawful merchandise as above shall amount to not less than 200 tons. All extra expenses in loading and discharging such merchandise over heavy grain to be paid by charterers . . . 13. The steamer shall be loaded at the rate of 500 tons per running day . . . otherwise demurrage shall be paid by the charterers as per clause No. 48 . . . 25. At destination cargo to be received at the average rate of not less than 1000 tons per weather working day . . . for bulk cargo, and at the average rate of not less than 750 tons per weather working day . . . for bagged cargo . . . demurrage, if incurred, to be paid by consignees at the rates stipulated in Clause 48. 48. Demurrage in loading and/or discharging to be at the rate of eightpence per gross registered ton per day, or pro rata for part of a day.

(1948) 82 Ll.L.Rep. 386


Master and servant-Duty of master to provide safe system of working - Master pro hac vice-Crane and plaintiff driver lent on hire by general employers (second defendants) to stevedores (first defendants) - Personal injuries sustained by plaintiff while working under directions of stevedores-Method of working-Power obtained for crane by plugging in flexible cable from crane to switch-box fixed on pillar and 12 ft. 7 in. from the ground-Switch-box normally reached by plaintiff climbing back of jib of crane-Stowage of oil drums and sugar bags by stevedores round base of pillar to height of from 6 ft. to 9 ft., and obstructing use of crane as ladder to switch-box-Switch-box twice reached by plaintiff climbing obstruction - Ordering of plaintiff by stevedores' foreman to move crane to a position necessitating the unplugging of the cable-Foreman's knowledge of obstruction and of necessity of unplugging cable - Attempt by driver to reach switch-box by climbing obstruction - Fall resulting in personal injuries to plaintiff - Admission by general employers that they were plaintiff's employers at all material time and were under a duty to provide a safe system of working-Finding by learned County Court Judge that plaintiff was therefore precluded from asserting, and that he (the Judge) was precluded from holding, that the stevedores were under such a duty; and that the general employers were not responsible for a system of working made defective by the casual action of the stevedores - Plaintiff's claim for damages accordingly dismissed.

(1948) 82 Ll.L.Rep. 397


Ship - Requisition of ship in Prize - Whether a requisition in Prize carried a right to compensation under Compensation (Defence) Act, 1939-Whether shipowners' claim for compensation from respondent Minister of Transport out of time and barred by the Act- Jurisdiction - Claimants' ship under construction in country overrun by Germans-Conversion into armed merchant cruiser by enemy-Seizure of ship in Prize by Allies on occupation of Kiel-Release of ship by Prize Court in August, 1945, for requisition by respondent - Release to claimants in June, 1946, on return of ship to Admiralty Marshal by respondent - Claim for compensation made eight months after required date - No extension of time allowed by Treasury -Sect. 11 of the Act providing:

No claim for any compensation under this Act shall be entertained unless notice of the claim has . . . been given to the prescribed authority within the period of six months, or such longer period as the Treasury may . . . allow, beginning . . . with the date on which the compensation accrues due . . .

Whether waiving of provisions of Sect. 11 by respondent gave Court jurisdiction - Conclusions of Court, notwithstanding possible lack of jurisdiction, to be binding upon parties by agreement-Compensation (Defence) Act, 1939, Sect. 11.

(1948) 82 Ll.L.Rep. 404


Workmen's compensation-Notice of reduction -Respondent blinded in left eye in course of employment by appellants- Compensation paid by appellants on basis of total incapacity - Partial recovery - Signing on by respondent at Labour Exchange-Receipt of unemployment benefit-Service of notice on respondent by appellants alleging partial recovery and purporting to reduce compensation - Workmen's Compensation Act, 1925, Sect. 12: An employer shall not be entitled . . . to end or diminish a weekly payment except in the following cases . . . (3) where the medical practitioner who has examined the workman under Sect. 18 of this Act has certified that the workman has wholly or partially recovered . . . and a copy of the certificate (which shall set out the grounds of the opinion of the medical practitioner) together with notice of the intention of the employer at the expiration of ten clear days from the date of the service of the notice to end the weekly payment, or to diminish it by such amount as is stated in the notice, has been served by the employer upon the workman . . .

Notice containing extracts from medical reports certifying partial recovery - Whether a "copy of the certificate" as required by Sect. 12 - Finding by learned County Court Judge that there was no proper copy of the certificate served with the notice, as required by Sect. 12 (3), and that therefore the notice was invalid-Award of compensation on basis of total incapacity-Appeal by employers.

(1948) 82 Ll.L.Rep. 411


Ship - Limitation of liability - Improper management of the ship-Actual fault or privity of shipowners-Explosion on board plaintiffs' barge, loaded with chlorate of soda - Damage to defendants' property ashore and afloat - Damaged drums loaded into barge - Ignorance of plaintiffs' employees of dangerous character of cargo-Alleged lack of proper system of informing employees of dangerous cargoes-Whether explosion and damage occurred without plaintiffs' actual fault or privity - Onus of proof-S. (plaintiffs' order clerk) provided by plaintiffs with book relating to classification of merchandise -Practice for S. to warn fellow employees by indication on loading note if cargo dangerous - Failure by S. to do so-Whether the acceptance of drums, and stowage on board the barge, in their damaged and leaky condition was an act of negligence in the management of the barge-Meaning of "improper management of the ship" -Merchant Shipping (Liability of Shipowners and others) Act, 1900, Sect. 1.

(1948) 82 Ll.L.Rep. 414


Negligence - Stevedores - Unloading of deck cargo of timber overside into barge-Personal injuries sustained by plaintiff tally clerk-Timber unloaded by ship's derricks (Nos. 3 and 4) fore and aft of stack - Booms of derricks 14 ft. apart, necessitating swinging of chains in order to pick up sets from centre portion of stack - Plaintiff, working on deck, tallying timber unloaded by No. 3 derrick - Struck by chain of No. 4 derrick which, having unloaded a set overside, was returning to loading position on deck-Dispute as to plaintiff's position when struck - Whether working within area properly covered by No. 3 derrick-Alleged negligence of defendant stevedores in management of No. 4 derrick-Onus of proof-Evidence of warning given to plaintiff-Contributory negligence.

(1948) 82 Ll.L.Rep. 422


Charter-party - Demurrage - Dispatch money-Delay in discharging-Exceptions clause - Excepted causes operating at date of charter-party - Charter of plaintiffs' vessel by defendants to carry phosphate to New Zealand. 10. Cargo to be loaded (provided ship can take it in) at the average rate of 2000 tons per working day of 24 consecutive hours, Sundays and holidays excepted and weather permitting, and to be received at the average rate of [1500] tons per working day of 24 consecutive hours (provided the ship can put it out), Sundays and holidays excepted and weather permitting . . . Time occupied in shifting ports or berths or changing positions not to count as lay days, and in the event of any delay or hindrance in discharging cargo by reason of . . . scarcity of labourers . . . intervention of constituted authorities . . . or from any other cause whatsoever beyond the control of the charterers, shippers or consignees, or from inability or inefficiency of ship to load or discharge, the lay days not to count during the period of such delay or hindrance and demurrage not to accrue . . . At charterers' option, any days or parts of days not consumed in loading may be added to the time for discharging, and any extra time consumed in loading may be deducted from the time for discharging. 11. Demurrage over and above the lay days so calculated to be paid to ship at the rate of 8d. per gross registered ton per day or part thereof pro rata, and dispatch money to be paid by owners at the rate of half demurrage rate per gross registered ton per day or part thereof pro rata, on working time saved in loading and discharging.

(1948) 82 Ll.L.Rep. 430


Negligence - Breach of statutory duty - Shunting operations in dock power station siding - Inexplicable fatal accident to E., coal foreman of first defendants, Electricity Authority -E. in charge of stacking of coal in siding-Railway engine belonging to second defendants (dock authority) engaged in hauling wagons from siding - Railway line in "cutting" between banks of coal - Refusal by shunter to couple wagons to engine owing to danger from proximity of coal to line-Coupling of wagons to engine by E. - "All clear" signal given by E. from safe position, behind engine, on bank of coal to west of line -Departure of engine and wagons- Subsequent discovery of E. fatally injured on cast side of line-Claim by E.'s widow under Fatal Accidents Acts alleging (1) negligence of second defendants' servants; (2) breach by first defendants of Regulation 9 of Regulations for use of Locomotives and Waggons on Lines and Sidings in or used in connection with Premises under the Factory and Workshop Act, 1901 ([1906] S.R. & O., No. 679)-Contributory negligence.

(1948) 82 Ll.L.Rep. 441


Workmen's compensation - Review of weekly payments - Application for review-Applicant (then a scaler 15 years of age) awarded compensation in respect of accident in September, 1942- Compensation (assessed on notional weekly wage of £3) terminated on applicant taking up other work in which he earned more than £3 per week -Recurrence of incapacity after reaching age of 21 and when unemployed- Application made for "such weekly compensation as he may be entitled to" -No express mention of fact that applicant had reached the age of 21-Whether correspondence between parties was a sufficient indication that applicant was making a claim for review under Sect. 11 (2) of Workmen's Compensation Act, 1925-Appeal by applicant against award of learned County Court Judge that the application for review under Sect. 11 (2) was made out of time.

(1948) 82 Ll.L.Rep. 445


Charter-party-Freight-Balance of lump sum freight-Failure by shipowners to load full and complete cargo (okoume logs)-Measure of damages-Charter of plaintiffs' steamship by defendants at lump sum freight for carriage of full and complete cargo of okoume logs from Port Gentil to Cape Town-"Vessel to load a full deckload as usual in this trade"-Meaning-Logs floated down river to Port Gentil, where they were towed to and loaded on vessel off shore -Refusal by master to load more cargo on deck, on ground that safety of vessel would be thereby imperilled - Empty space left in double bottom tanks (to an extent of 128 tons) as reserve against using up of bunkers in lower part of vessel-Part of guaranteed cubic feet bale space taken up by temporary coal hunker - Claim by shipowners for balance of freight withheld by charterers -Counterclaim by charterers for damages, it being alleged that shipowners failed to load a full and complete cargo; further, that there was a failure to load "a full deckload as usual in this trade"-Evidence as to methods of computing ship's capacity; and as to shipped and outturn weights -Matters to be taken into account in assessing damages - No other vessel available for carriage of logs shut out -Valve at port of destination-Contract of sale entered into by charterers, but unknown to shipowners-Logs shut out valueless (owing to exposure) and unmarketable-Unavailing steps taken by charterers to dispose of such cargo.

(1948) 82 Ll.L.Rep. 452


Sale of ship-Fraudulent misrepresentation -Breach of warranty - Purchase of sailing barge by plaintiff from defendant - Defendant informed that plaintiff's intention was to convert barge into yacht and (inter alia) to make summer trips to French Channel ports-Serious defects discovered subsequent to purchase-Unsuitability for plaintiff's purpose without extensive repairs-Alleged fraud and/or breach of warranty by defendant in inducing contract - Claim by plaintiff for damages for fraud and/or breach of warranty, or rescission-Onus of proof -Evidence of circumstances leading up to sale-Plaintiff given every opportunity of inspection and survey - Whether defendant warranted that barge was suitable for plaintiff's purpose -Animus contrahendi.

(1948) 82 Ll.L.Rep. 481


Ship - Conversion - Towage contract - Breach-Sale of landing craft by plaintiffs to J. & L. (Portuguese company), delivery to be made at Lisbon-Plaintiffs aware that craft would be resold by J. & L. to Portuguese syndicate - Credit up to £5000 made available to plaintiffs by syndicate-Balance of purchase price, cost of delivery, etc., to be provided by bill drawn upon J. & L., bill to be accepted against delivery of bill of lading-Arrangements made by P. & M. (acting for plaintiffs) with defendants, whereby defendants agreed to tow craft from Harwich to Lisbon- Towage instructions given by defendants to their tugmaster - Bills of lading signed by tugmaster, at request of plaintiffs' Harwich agents, acknowledging receipt of craft - Defendants unaware at time towage contract entered into that tugmaster would be required to sign bills of lading - Whether request to sign bills of lading should have indicated to tugmaster that original towage contract was being varied and that craft was only to be handed over to J. & L. upon surrender of bill of lading-Craft handed over by tugmaster to J. & L. upon arrival at Lisbon, without surrender of bill of lading - Action brought by plaintiffs against defendants alleging conversion and claiming balance of sum outstanding from J. & L.

(1948) 82 Ll.L.Rep. 488


Negligence - Explosion on board ship - Plaintiff, a marine fireman, in charge of donkey engine in defendants' motor vessel Kaipaki in dock at Liverpool - Explosion in furnace, due to accumulation of gases, causing personal injuries to plaintiff-Claim against shipowners -Cause of explosion - Whether due to defect in boiler, permitting excessive leakage of oil-Onus of proof.

(1948) 82 Ll.L.Rep. 498


Marine insurance-Riots and civil commotions - 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.

(1948) 82 Ll.L.Rep. 501


Master and servant-Negligence of master -Personal injuries sustained by servant - Volenti non fit injuria - Contributory negligence of servant- Action brought by electrician (plaintiff) against his employers (defendants) -Plaintiff instructed by defendants' foreman to free electric cables embedded in pitch in trough-Discussion between plaintiff and foreman as to best method to employ-Decision to use hammer and chisel - Obvious danger if fuses not pulled-Acceptance of risk by plaintiff, who realized that defendants' works would shut down if fuses were pulled- Plaintiff injured when chisel pierced cable-Liability of defendants-Review of evidence given before learned County Court Judge, who found for defendants on ground that, although there was a breach of duty on their part, the maxim volenti non fit injuria must be applied-Further finding that plaintiff was guilty of contributory negligence. Practice - Transcript of evidence before County Court Judge-Admissibility.

(1948) 82 Ll.L.Rep. 515


Salvage-Services rendered by motor tug Victory to motor trawler Appel de la Mer in Brixham Harbour-Trawler, with nobody on board, adrift from her moorings in Outer Harbour and being driven by wind towards breakwater- Connection established and vessel towed to berth in Inner Harbour-Gusty weather-Risk to trawler of sustaining serious damage-No other assistance immediately available-No real danger to tug-Services, occupying 612, hours, rendered without real difficulty - Salved values: £5500-Award: £500.

(1948) 82 Ll.L.Rep. 521


Bill of lading-Onions Clause-Bad stowage - Unseaworthiness - Liability of shipowners-Parcels of onions shipped in apparent good order and condition in defendants ship from Alexandria to Liverpool-Delivery in damaged condition -Claim by plaintiff indorsees of bills of lading, alleging unseaworthiness and/or negligent stowage-Incorporation of Carriage of Goods by Sea Act, 1924-Bills of lading containing following superimposed stamped "Onions Clause": It is specially agreed that no liability for loss or damage to and/or deterioration in onions shall attach to the master and/or owners of the steamer, even if such loss, damage and/or deterioration result from a cause for which but for this special agreement to the contrary, the steamer would have been liable. The steamer shall not be responsible for obliteration of marks and numbers, delay in delivering or incorrect delivery involving loss whether in quality, condition, or other account, nor for protraction of voyage through any cause whatever.

Whether plaintiffs' claim maintainable, having regard to terms of "Onions Clause," even assuming that unseaworthiness and/or negligent stowage was proved-Preliminary point of law.

(1948) 82 Ll.L.Rep. 525


Master and servant-Negligence of servant -Liability of master - C.J.A. under contract with shipping company to remove refuse from ships in dock - Work being carried on by J.A., brother of C.J.A., who was indisposed - Plaintiff, a stevedore standing on quayside, struck and injured by carton (containing refuse) thrown overside from ship in Royal Albert Dock-Claim brought against C.J.A. and against J.A.-Relationship between C.J.A. and J.A.-Conflict of evidence as to responsibility for accident.

(1948) 82 Ll.L.Rep. 531


Collision-River-Channel narrowed by presence of wreck-Obligation of ship navigating against tide - Defective steering gear - Inevitable accident - Collision between steamships Merganser and Norwalk Victory in River Scheldt-Merganser bound up against tide; Norwalk Victory bound down- Starboarding by Norwalk Victory to negotiate bend in river - Failure to answer helm - Breakdown of steering gear - Alleged duty to have reversed sooner and dropped anchor-Whether Merganser should have held back in accordance with local rule providing that when vessels meet near a channel or a bend in the river.

where the channel is so narrow that it would be dangerous for them to meet there, the vessel proceeding against the tide must stop her way over the ground until the vessel navigating with the tide had passed the channel . . . or the bend . . .

Alleged negligent failure by Merganser to put her engines astern - River Scheldt Rules, Art. 40 (1).

Practice-Costs-Bail-Excessive bail - Refusal by Merganser to accept bail in an amount equivalent to the statutory liability of Norwalk Victory, on ground that steering gear was defective and that there was reason to suspect fault or privity of her owners-Reasonableness -Claim by Norwalk Victory to be paid costs of excess bail refused.

(1948) 82 Ll.L.Rep. 539


Negligence - Invitee - Standard of duty owed by invitor-Personal injuries sustained by plaintiff while engaged in painting part of refrigerator plant in defendants' ship - Arm caught in revolving belt of electric motor-Plaintiff unaware, in the noise and bustle of the unloading of cargo, that motor was running-Consideration of duty of occupier towards invitee - Whether plaintiff properly warned - Contributory negligence-Onus of proof.

(1948) 82 Ll.L.Rep. 550


Smuggling - Ship - Forfeiture of ship, binnacle and compass-Offences against Customs Consolidation Act, 1876- Disputed nationality of owner - Whether nationality a relevant circumstance - Transhipment of uncustomed goods outside statutory territorial limits-Limits assigned by Regulations made under Act-No extension without licence - Regulations not applicable "to boats and vessels exclusively used as private yachts" - Whether confiscated ship was exclusively used as a private yacht-Motor vessel Taku (a decked boat of 38 gross tons) employed to transport liquor from France to a point more than three miles off the English coast, where liquor was transhipped to landing craft- Cargo put ashore by landing craft and loaded into lorry-Lorry stopped by Customs officials, who seized liquor, binnacle and compass found on board- Intention that Taku after transhipment should proceed to French port, but in fact, owing to engine trouble, taken to Portsmouth, where she also was seized- Forfeiture of Taku and of binnacle and compass sought by Crown-Plea by defendant owner that he was an American citizen and that question of forfeiture did not arise-Customs Consolidation Act, 1876, Sects. 169 (and Regulations made thereunder), 170, 172, 179, 202.

(1948) 82 Ll.L.Rep. 554


Contract-Nullity-French company-Non-existence - Enforcement of award of damages for breach-Conflict of laws- Capacity-Charter-party entered into between plaintiff, as owner, and first defendants (French private limited liability company), as charterers - Breach by plaintiff - Arbitration - Award of damages in favour of charterers - Proceedings to enforce award successfully taken by first defendants both in England and in United States -Present action brought by plaintiff against first defendants and second defendant (liquidator of first defendants) claiming declarations that first defendants, when charter-party was entered into, were non-existent as a private limited liability company under French law, and that therefore award and subsequent Court orders were null and void; also, against third defendants (solicitors acting for first and second defendants) claiming declaration that they were liable, on the ground of breach of warranty of authority, to indemnify plaintiff against costs incurred by him in such proceedings-Evidence of French law -Res judicata - Estoppel - Whether plaintiff aware (when defendants' claim for breach was adjudicated upon) that defence of non-existence of first defendant company was open to him- Onus of proof. Practice - Costs - Security for costs - Sum paid in by foreign plaintiff - Plaintiff successful in action-Stay of execution pending appeal by defendants -Right of plaintiff to payment out.

(1948) 82 Ll.L.Rep. 565


Motor insurance-Misrepresentation-Non-disclosure - Occupation of assured- Materiality-Bookmaker-Exclusion of use by commission agents - Right of insurers to avoid policy-Car belonging to H. insured with C. Co.-Collision with lorry-Injuries sustained by passenger in car-Damage to car and lorry -Claim by H. to indemnity under policy-Avoidance of policy by C. Co. -Arbitration-Findings of arbitrator that H. was a bookmaker and that accident occurred on way to races; that H. was aware that C. Co. would not insure bookmakers; that H. falsely represented in his proposal form that he was a dealer; that proposal form was made basis of contract and was incorporated in policy; that certificate of insurance excluded use by commission agents wholly or partly for their business purposes; and that expression "commission agent" meant and included "bookmaker"-Award in favour of C. Co.-Case stated.

(1948) 82 Ll.L.Rep. 575


Collision-Crossing vessels-Stand-on ship (unlighted) under escort - Escort equipped with radar-Give-way ship also equipped with radar and showing her navigation lights - Respective duties under crossing rule-Obligation of escort - Collision between steamship Hindoo (owned by United States) and British steamship Australia Star in Caribbean Sea - Ships on crossing courses with Hindoo as stand-on ship -Hindoo escorted by PC-616 (U.S. naval craft)-Australia Star aware (by radar) of presence of Hindoo 28 minutes before collision, at distance of over 14,000 yards-Further radar readings indicating continued presence of Hindoo on narrowing bearing, last report (about 10 minutes before collision) recording Hindoo at distance of about 4000 yards-Lights of Australia Star switched on-No request by master of Australia Star for further radar reports-Green of Australia Star not recognized by Hindoo as starboard navigation light until just before collision, when Hindoo's lights switched on - PC-616 navigating on zig-zag course ahead of Hindoo and aware (by her radar) of the presence of Australia Star - Unsuccessful attempt made by PC-616 to send visual warning signal to Australia Star-Whether Australia Star, as the lighted ship, entitled to expect Hindoo (unlighted) to keep out of her way-Duty of Australia Star to make full use of her radar equipment as a means of safety-Scope of duty owed by PC-616 to Hindoo and to Australia Star-Collision Regulations, Arts. 19, 29.

(1948) 82 Ll.L.Rep. 579


Collision-Fog-Crossing courses-Look-out -Speeds-Collision between steamship Penstone and motor vessel Villanger in Liverpool Bay-Penstone on course of N.E. by E.; Villanger on course of 263 deg. - Dispute as to visibility - Patchy fog-Whether vessels bound by crossing rule or by fog regulations - Helm action taken by each vessel-Impact between stem of Villanger and starboard side of Penstone at about a right angle-Penstone sunk.

(1948) 82 Ll.L.Rep. 585


Collision-River-Sharp bend-Starboardhand rule-Fourfold collision in River Thames off Stoneness-Ebb tide-Plaintiffs' motor vessel Roxburgh Castle bound up; defendants' steamship Crackshot bound down - Motor vessel Empire Seabright and steamship Fraser River following astern of Crackshot - Collision between Roxburgh Castle and Crackshot, followed by collisions between Roxburgh Castle and motor vessel Empire Fabric (not a party to litigation), between Crackshot and Empire Seabright and between Crackshot and Fraser River-Actions brought by Roxburgh Castle against Crackshot and by Crackshot (by way of counterclaim) against Roxburgh Castle, Empire Seabright and Fraser River- Lights of Crackshot and Roxburgh Castle sighted by each other across land at Stoneness-Duty to keep to starboard side of "the fairway or mid-channel" -Meaning of "fairway or mid-channel" -Dispute as to place of collision-Whether subsequent collisions consequent upon first collision-Novus actus interveniens - Whether Roxburgh Castle failed in her duty to ease her speed-Port of London River Bylaws, 1938, Rules 38, 42.

(1948) 82 Ll.L.Rep. 594


Negligence - Damage to ship's wireless installation-Welding operations-Contributory negligence - Statutory duty upon shipowners to disconnect aerial- Defendants employed to carry out welding operations in connection with fitting of protective slabs to outside walls of wireless room on plaintiffs' steamship-Use of electric welding instrument-Coils of wireless transmitter found burnt out-Cause of damage-Shipowners required for security reasons to disconnect wireless aerials while ship in port-Evidence that aerial was dismantled and coiled but not disconnected from transmitter -Wireless Telegraphy (Ships) No. 2 Order, 1942.

(1948) 82 Ll.L.Rep. 609


Sale of ship-Offer and acceptance-Revocation of offer - Offer made by defendant to plaintiffs to purchase their yacht - Reply by plaintiffs that they were "a little undecided as to defendant's offer" - Subsequent firm acceptance by plaintiffs - Contract repudiated by defendant-Contention that his offer had been withdrawn - Conflicting accounts of intervening telephone conversations - Claim by plaintiffs for damages for breach of contract.

(1948) 82 Ll.L.Rep. 615


Master and servant-Contract of service- Dispute as to terms - Claim by ship's engineer for wages, subsistence allowance, expenses of repatriation, etc.- Plaintiff appointed by defendants in London as junior engineer on board their motor vessel Empire Confidence- Ship to proceed from United Kingdom to Egypt, where she was to be taken over by Egyptian company, plaintiff thereafter to be employed under an Egyptian agreement-"Free repatriation to arrival in U.K. if Egyptian agreement ends abroad, also wages payable providing discharge is not due to misconduct"-Whether defendants in making agreement in London were acting as agents of Egyptian company - Arrival in Egypt - Plaintiff not immediately taken on by Egyptian company under Egyptian agreement -Wages and subsistence allowance withheld-Defendants' plea of justification - Alleged refusal by plaintiff to sign on as junior engineer - Plaintiff eventually re-engaged as junior engineer on ship, which put into Southampton with generator trouble on way to New York-Whether plaintiff should have signed off his articles at Southampton - Claims for back pay, etc., then still outstanding - Arrangements made by defendants for plaintiff's services to continue - Arrival back in Egypt, where plaintiff was discharged -Withdrawal by defendants of plea that plaintiff was discharged for misconduct - Repatriation effected four months later at plaintiff's own expense -Arrival back in Glasgow-Right to recover railway expenses to London.

(1948) 82 Ll.L.Rep. 621


Master and servant-Common employment -Directed labour - Safe system of working-Personal injuries sustained by plaintiff stevedore while unloading machinery from railway wagons in Middlesbrough dock - Negligence of railway company's servants in charge of shunting operations-Plaintiff allocated to railway company under Dock Labour Scheme-Whether plaintiff was the general employee of the National Dock Labour Corporation who was employed temporarily by railway company -Applicability of doctrine of common employment-Involuntary employment -Alleged failure by railway company to provide safe system of working - Whether plaintiff in common employment with railway company's servants in charge of shunting operations - Essential Work (Dock Labour) Orders, 1941 ([1941] S.R. & O., No. 1440) and 1943 ([1943] S.R. & O., No. 1114).

(1948) 82 Ll.L.Rep. 637


Shipbuilding Regulations, 1931-Occupier of dock-Public dry dock-Repairs to ship-Several repairers engaged in work-Notional occupier-Breach of statutory duty-Common law negligence -Safe system of working-Contributory negligence-Plaintiff, an angle-iron striker, employed by first defendants, who were under contract with French Government (as prospective owners to execute repairs to third defendants' ship in second defendants' public dry dock-Fall into unguarded hold-Life-line removed by first defendants' servants- Action brought against first defendants, alleging common law negligence; and against all three defendants, alleging breach of statutory duty-Duty of compliance with Regulations placed upon occupier, "provided that, 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 . . ."-Applicability where several repairers have contracted with shipowner - Whether in such circumstances liability should revert to dockowner and/or rest upon shipowner - Ambiguity - Shipbuilding Regulations, 1931, Duties, sub-par. (b), Regulation 10-Factories Act, 1937, Sect. 26 (1). Costs-Joinder of parties-Reasonableness -Discretion of Court-Action brought by plaintiff against three defendants- Second and third defendants reasonably joined in light of authorities-Judgment entered for plaintiff against first defendants, with costs, and for second and third defendants against plaintiff, with costs - Whether unsuccessful defendants should be ordered to pay second and third defendants' costs awarded against plaintiff - Order refused.

(1948) 82 Ll.L.Rep. 642


Seamen-Dismissal from Canadian ship in London Dock-Termination of articles -Refusal by crew (members of Canadian Seamen's Union) to leave ship-Alleged breach of articles by shipowners in commencing negotiations for agreement with rival union- Action brought by shipowners claiming damages for trespass and breach of contract, and an injunction to restrain trespass - Mandatory injunction granted by Judge on an interlocutory application, restraining crew from remaining on or going on board ship- Appeal by crew-Jurisdiction of English Courts to hear dispute- Whether Court in granting injunction was assisting plaintiffs in committing an act illegal under Canadian law- Consideration of Canadian law- Canada Shipping Act, 1934: Sect. 284. (1) The master of a ship registered in Canada shall not discharge a seaman at any place out of Canada (except at a port in the country in which he was shipped), unless he previously obtains, indorsed on the agreement with the crew, the sanction of the proper authority as defined for the purpose in this Part of this Act, but that sanction shall not be refused where the seaman is discharged on the termination of his service. (3) If the master of a ship fails to comply with this section, he shall, in respect of each offence, be guilty of an indictable offence, and in any legal proceeding for the offence it shall lie on the master to prove that the sanction was obtained or could not be obtained or was unreasonably withheld. Sect. 573. A Court (in this Act called a Naval Court) may be summoned by any officer in command of any ship belonging to His Majesty, on any foreign station, or, in the absence of such an officer, by any British Consular Officer, in the following cases that is to say- (i) Whenever a complaint which appears to that officer to require immediate investigation is made to him by the master of any ship registered in Canada, by a certified mate, or by any one or more of the seamen belonging to any such ship. . . .

Evidence of steps taken by shipowners to obtain "the sanction of the proper authority"-Right of master to terminate articles-Whether Court entitled to grant mandatory injunction on an interlocutory application- Discretion of learned Judge-Oppression -Alleged alternative remedy in plaintiffs to summon Naval Court in London to deal with dispute-Whether London was a "foreign station" within meaning of Sect. 573-Canada Shipping Act, 1934, Sects. 284, 285, 286, 290, 297, 573.

(1948) 82 Ll.L.Rep. 659


Arbitration - Enforcement of award - Validity of award-"Written agreement to submit"-Proof of contract- Mistake - Rectification - Negotiations (by cables and air mail letters) entered into between English buyers and East African sellers for sale of maize meal-Offer by sellers accepted by cable from buyers-Reference by buyers to Contract 83619 "in terms our Contract 83589 December/January shipment"-Confirmation by letter enclosing London Cattle Food Trade Association form numbered 83619- Reference in subsequent cable from sellers to "Contract 83619"-Evidence of previous dealings between parties -Failure by sellers to ship goods in accordance with contract-Arbitration claimed by buyers but refused by sellers - Arbitrators appointed by buyers and by Association (on sellers' behalf)-Award in favour of buyers- Application by buyers to enforce award as judgment upheld by Hallett, J.- Appeal by sellers - Jurisdiction of Court-Alleged doubtful validity of award-Whether firm contract entered into and whether such contract contained a "written agreement to submit"-Contract form not signed by sellers-Variation between terms of Contract 83589 and Contract 83619- Alleged mistake entitling sellers to rectification - Arbitration Act, 1889, Sects. 12, 27.

(1948) 82 Ll.L.Rep. 673


Salvage-Towage or salvage-Prolonged towage - Alternative arrangements available to owners of salved vessel- Reasonableness-Services rendered by motor vessels Stentor and Glenogle to steamship Troilus-Propeller lost in Indian Ocean while on voyage from Australia to Liverpool - Towage for 1050 miles by Stentor (sister ship) to Aden, where Troilus was only allowed to anchor outside the harbour-Services by Stentor admitted to be salvage services-Troilus subsequently towed by Glenogle 4300 miles to Falmouth- Nature of services-Whether "from safety to safety"-Suez admittedly first port of refuge-Possibility of repairs at Suez, Alexandria or Malta -Availability of ocean-going tug- Risk to cargo-Duty of prudent shipowner.

(1948) 82 Ll.L.Rep. 681


Salvage-Award-Expenditure admittedly properly incurred in rendering salvage services-Method of assessing award- Services rendered by steamship Demodocus to steamship Lycaon (sister ship) in South Atlantic Ocean-Loss of propeller-Towage 850 miles to Cape Town occupying six days-Valuable cargo-Moderate weather-No real danger-Agreed expenditure of £4800 by salvors in performing services.

(1948) 82 Ll.L.Rep. 691


Collision - Fog - Signals - "Lying stopped" - Unchanging bearing- Collision between French steamship Joseph Blot and British motor vessel British Confidence off Cape Trafalgar in fog-Vessels on almost opposite courses crossing at fine angle-Both vessels sounding for fog-"Lying stopped" signals sounded by Joseph Blot shortly before collision- Vessels sighted by each other at distance of between 600 and 700 ft.- Impact between port bow of Joseph Blot and port side of British Confidence-Whether Joseph Blot was "lying stopped"-Unsatisfactory nature of contemporary documents on both sides-Inconsistencies with pleaded cases-Demeanour of witnesses -Credibility.

(1948) 82 Ll.L.Rep. 697


Contract-Breach-Arbitration-Award- Interest-Liverpool Cotton Association Rules - Sale by Indian sellers of 5000 bales of Indian cotton "equal to Type 21 Bilas new crop" - Price: 18.25d. per lb. net c.i.f. Barcelona- Contract subject to Rules and Regulations of Liverpool Cotton Association, which provided (inter alia): 48. If, owing to any circumstances whatsoever, any such contract has not been or is not to be performed it shall not be treated as cancelled, but shall be closed by being invoiced back to the seller in accordance with the Rules in force at the date of the contract . . . 53. Should the seller be able to produce satisfactory evidence that the timely fulfilment of any contract for the purchase or sale of cotton was rendered impossible owing to unforeseen obstruction to traffic, strike, lock-out, riot, war, quarantine, or force majeure, or should the buyer be unable to take delivery of the cotton owing to such unforeseen contingencies, and should the buyer and seller be unable to come to a mutual agreement, then the arbitrators shall take such facts into consideration in making their award. 227 (8). In cases where a contract made subsequent to 12th June, 1947, is to be closed by invoicing back, the invoicing back price for such purpose shall be based upon the ascertained exporting value of the cotton contracted for on the appropriate date in the market appropriate to the country of origin of such cotton, Podar Trading Company, Ltd. v. Francois Tagher. K.B.(Div.Ct.) 706 translated to the value at the port of destination and subject to any variation that may have taken place in the costs of freight and insurance and in the rates of exchange, import and export duty or tax or any other charges. In so far as the provisions of this sub-clause are in conflict with any of the preceding sub-clauses in this rule the provisions of this sub-clause shall prevail.

Failure of cotton crop-Sellers unable to make delivery-Arbitration-Award of damages to buyer-Consultative case stated by arbitrators-Whether sellers relieved from liability (under Rule 53) by reason of force majeure; if not, whether arbitrators had power to award interest on sum found to be due to buyers - Measure of damages - "Invoicing back price"-Arbitration Act, 1934, Sect. 11-Law Reform (Miscellaneous Provisions) Act, 1934, Sect. 3 (1).

(1948) 82 Ll.L.Rep. 705


Damages-Assessment-Personal injuries sustained by appellant (26 years of age) while engaged in repair work on board defendants' steamship in Liverpool dock-Matters to be taken into consideration-Loss of future earnings-Appeal against inadequacy of assessment by learned Judge allowed -Damages increased from £2360 to £4360.

(1948) 82 Ll.L.Rep. 715


Charter-party - Rectification - Mutual mistake-Custom of the trade- Charter-party on "Centrocon" form entered into between plaintiff charterers and defendant shipowners for carriage of grain from the Argentine to Italy-Negotiations carried out by agents-Ship on voyage to Santos to discharge coal- "Expected ready River Plate about 5th March, 1948"-Cancelling date: Mar. 15-Further provisions of charter (passages in square brackets being deleted from normal "Centrocon" form):

2. That the said steamer being tight, staunch and strong, and in every way fitted for the intended voyage, shall with all convenient speed, after arrival at Montevideo or at an Argentine port, not south of Bahia Blanca, [and after discharge of her inward cargo, if any,] proceed as ordered by the charterers or their agents . . .

11. Orders for the first loading port or place shall be given within four running hours after receipt of written or telegraphic application of the master or agents to the charterers or their agents in Buenos Aires, between 9 a.m. and 6 p.m., Saturdays 9 a.m. to noon (Sundays and holidays excepted), [upon the completion of discharge of the inward cargo,] or upon notice of arrival in ballast in free pratique at Montevideo or at an Argentine port not south of Bahia Blanca . . .

Request to nominate first loading port made to charterers by master on voyage from Santos to River Plate-Master notified by charterers that he must "apply for orders as per charter-party" -Message sent by master to charterers on Saturday, Mar. 13: Federazione Italiana dei Consorzi Agrari v. Federal Commerce & Navigation Co. K.B. 718 "Received free pratique off Buenos Aires 1515 request loading instructions"-Instructions sent to master on Monday, Mar. 15, nominating Rosario as first loading port-Arrival at Rosario after cancelling date-Right of charterers to cancel-Contention by charterers that by mutual mistake between their agents and the agents of shipowners the word "or" (following the passage set out in square brackets in Clause 11) was not deleted as was intended; further, that in the particular circumstances the word "or" should have been deleted by the custom of the trade; and that accordingly they were entitled to rectification-Evidence of negotiations leading up to fixture-Particular terms (which did not include a consideration of Clause 11) discussed, "otherwise terms and conditions of s.s. Milton H. Smith charter-party" (which included Clause 11 in identical terms)-Proof of custom-Practice of shipbrokers.

(1948) 82 Ll.L.Rep. 717


Charter-party-Freight-Calculation of lump sum freight due-Charter of ship "guaranteed to carry about 8200 tons deadweight cargo, and having 470,000 cubic feet bale capacity guaranteed available for cargo"- Freight payable: 95s. per ton "on vessel's deadweight cargo capacity as mutually agreed between captain and charterers' agents before vessel commences to load" - Further provisions in charter: 27. All vessel's cargo space including decks to be placed at charterers' disposal, reserving only sufficient room for necessary bunkers and stores for the voyage. 32. If the above-mentioned deadweight cargo and cubic capacity be not placed at charterers' disposal, lump sum to be reduced pro rata.

Mutual agreement that deadweight cargo capacity was 7795 tons (which by accepted custom was "about" 8200 tons) -Cubic feet bale capacity available: 452,733 cubic feet-Dispute as to freight due-Payment of freight by charterers-Deduction made by reason of deficient cubic capacity-Claim by shipowners for balance of freight alleged to be due-Discussion of methods by which freight should be calculated-Reduction pro rata.

(1948) 82 Ll.L.Rep. 730


Insurance-"Pay as paid"-Floating policy covering (inter alia) water damage-Ultimate net loss-Floating policy for £34,500 taken out by plaintiffs with G.A. Corporation covering plaintiffs' property "at their own warehouse and offices and at any printers or binders or elsewhere or in transit in Great Britain" against (inter alia) water damage - Consequential loss policy taken out with Lloyd's underwriters, which provided (by subsequent indorsement): Notwithstanding anything herein contained to the contrary, it is hereby understood and agreed that as from the 25th day of December, 1944, the sum insured hereunder is increased to:-£17,935, the policy to pay the percentages as shown below, in the policies of the [G.A. Corporation] as specified:- To pay 30 per cent. of the ultimate net loss as may be paid on floating policy in [G.A. Corporation] for: £34,500 covering assured's stock, etc., anywhere in Great Britain, fire, explosion and water damage. To pay 50 per cent. as above in respect of contents at: 7/8, Henrietta Street, covered in [G.A. Corporation] policy for: £15,170.

Bursting of water main (belonging to L. Co.) damaging plaintiffs' stock at Henrietta Street - Admission of liability by L. Co.-Claim under floating policy brought by plaintiffs against G.A. Corporation, claim being settled for £5434-Claim then brought by plaintiffs under consequential loss policy for 80 per cent. of amount received under floating policy- Payment to G.A. Corporation's assessors made by L. Co. (discharging their liability) slightly in excess of settlement under floating policy- G.A. Corporation reimbursed amount paid to plaintiffs under floating policy, balance being sent to plaintiffs -Right of plaintiffs to recover under consequential loss policy - Whether there was an "ultimate net loss" under floating policy-Amount recoverable- Reference in indorsement to the "policies" of G.A. Corporation- Only one policy-Whether plaintiffs entitled to recover both 30 per cent. and 50 per cent.-Premium charged against each percentage item.

(1948) 82 Ll.L.Rep. 736


Negligence-Dangerous premises-Invitee -Duty of occupier-Personal injuries sustained by ship's welder while working in fish house of trawler which was being repaired in wet dock-Plaintiff's employers under sub-contract with defendants ship-repairers-Defendants in occupation of ship but not occupiers of dock-Fall from staging erected by defendants - Common law claim brought by plaintiff-Cause of fall- Whether due to dangerous nature of staging-Alleged duty upon occupier to give warning of unusual danger- Meaning of "unusual danger"- Evidence that plaintiff had worked on staging for some weeks before accident -Whether necessary to show that invitee freely and voluntarily accepted risk.

(1948) 82 Ll.L.Rep. 747


Marine insurance - Non-disclosure- Misrepresentation - Proposal form- Further information volunteered by insurance agent-Capacity of agent- Actual or constructive total loss- Refloating-Measure of loss-Proof- Purchase of auxiliary ketch Vishela by H. Co. (dealers in yachts, etc.)-H. Co. also acting as agents of N. & G. Insurance Company-Insurance of ketch placed by H. Co. with N. & G., who held her covered while lying at (inter alia) deep water moorings- Evidence that she lay at such moorings for four or five weeks without making any appreciable amount of water- Ketch purchased by G. (through plaintiffs, a hire purchase finance company) from H. Co.-Intention by G. to lay up ketch on mud berth and himself to effect refitting repairs to enable him to live on board-Evidence that under-water condition of ketch was satisfactory, but that her topsides caulking was inefficient-Insurance of ketch by G.-Proposal form for insurance with N. & G. supplied by H. Co. and filled up by G.-Completed proposal form sent by H. Co. to N. & G., with covering letter written by H. Co. stating that "this craft is quite sound, but needs a considerable amount of fitting out"-Policy issued by N. & G. covering ketch (warranted laid up) against "all loss of or damage to the insured vessel, and machinery . . . directly caused by external accidental means. . ." and also providing for recovery: (A) In the case of an actual or constructive total loss the agreed value [£660] of the insured property, or (B) In the case of a partial loss, the reasonable cost of repairing or reinstating the damaged or lost part of the insured property and necessary expenses connected therewith.

Sue and labour clause providing:

In the case of misfortune to the insured vessel it shall be lawful to the assured . . . to sue labour and travel for in and about the protection safeguard or repair of the insured vessel, without prejudice to this insurance and all charges thereof including salvage charges the cost of towing or removing the vessel to a place of safety so necessarily incurred shall form part of the claim . . .

Ketch, put on mud berth at Lymington, subsequently shifted across river to another mud berth, where she slipped over at low tide, and filled with water on the flood tide owing to the neglected state of her topside caulking-Ketch left in that position for about a month, when, being so required by the local harbour authority, she was raised at plaintiffs' expense and towed to Pylewell Creek, where she was left until another mud berth became available-No further steps taken, ketch gradually deteriorating and having no more than a break-up value- Later orders given by harbour authority that wreck must be removed or destroyed-Right of plaintiffs to recover as for total loss-Declaration claimed by plaintiffs that N. & G. were liable to indemnify them

(a) In a sum not exceeding £660, the agreed value of the Vishela; (b) In the sum of £87 17s. paid by plaintiffs for and in connection with the refloating of the Vishela; (c) In such sums as plaintiffs might become liable to pay in respect of the removal, destruction or disposal of the wreck of the Vishela.

Contention by N. & G. that there was non-disclosure by G., in that he failed to disclose certain "material circumstances" concerning the condition of the topsides, etc., of the ketch; that there was misrepresentation by H. Co. (as agents for G.) in stating that "this craft is quite sound"- Meaning of "quite"-Denial that there was either actual or constructive total loss-Whether statement made by H. Co. was made as agents for G.- Measure of plaintiffs' loss-Evidence of condition of ketch and of loss sustained-"Loss proximately caused by delay"-Marine Insurance Act, 1906, Sects. 17, 18, 19, 55 (2) (b).

(1948) 82 Ll.L.Rep. 752


Docks Regulations, 1934-Breach of statutory duty-Common law negligence- Safe system of working-Invitee or licensee - Personal injuries sustained by plaintiff radio officer on returning to ship moored at loading jetty in Fowey Harbour-Decision of master to use iron ladder fixed to end of jetty as means of access between ship and shore- Jetty and rungs of ladder slippery with china clay-Fall from ladder-Action brought against ship's managers (first defendants) and against dockowners (second defendants) alleging breach of statutory duty and/or common law negligence-Respective duties of first and second defendants-Plaintiff aware of slippery conditions - Regulations 1, 9.

(1948) 82 Ll.L.Rep. 768


Lightermen-Wages-Dispute as to rate payable-London Agreement-Medway Agreement - Construction - Plaintiff (Medway lighterman) employed to work barge from Royal Albert Dock to Strood, barge reaching Northfleet (within area of London Agreement) on first day and plaintiff returning home to Rochester-Plaintiff then instructed to proceed as early as possible next morning to Northfleet to take barge to Strood-Early train caught for Northfleet, work being commenced before 6 a.m.-Journey completed at noon-Provisions in Medway Agreement by Clause 9 that where men sent to London, London rates to apply

excepting that if required to start for London by train before 6 a.m. 4s. 6d. per hour travelling time to be paid with a minimum of 18s. Also if required to start from Rochester in craft before 6 a.m. 4s. 6d. per hour to be paid with a minimum of 18s.

Provision in London Agreement by Clause 3 (a) (v) that

For any work performed between 12 midnight and 6 a.m. a man shall be paid six hours at the rate of time-and-a-half (21s. 6d.) in addition to the pay for the four hours at time-and-a-half between 8 p.m. and midnight (14s. 4d.); total 35s. 10d.

Claim by plaintiff for wages underpaid -Contention that he was entitled to "long night pay" under Clause 3 (a) (v) of London Agreement.

(1948) 82 Ll.L.Rep. 791


Salvage - Costs - Joinder of parties - Claim brought by plaintiffs in respect of services rendered by tugs George V, Wearmouth, Cullercoats, Fulwell and Cleadon to first defendants' motor vessel Diloma ashore off Sunderland- Lloyd's Form of Salvage Agreement entered into between first defendants and M.-Action brought by plaintiffs against first defendants-Undertaking for bail entered into by first defendants -Plea by first defendants that services of George V, Wearmouth and Cullercoats were rendered under contract between tugowners and M.- M. joined by plaintiffs as second defendant-Settlement of action on terms that first defendants should pay an amount in respect of salvage and the plaintiffs' costs, and that nothing was recoverable from second defendant- Application by plaintiffs that they were entitled to add second defendant's costs recoverable against them to costs recoverable from first defendants- Application refused.

(1948) 82 Ll.L.Rep. 795


Salvage-Award-Matters to be taken into consideration - Professional salvors- Salvage by H.M. tugs-Tugs under contract to provide towage assistance -"Special services"-High values of salved property-Ship of immense size -Prestige of well-known shipowners in maintaining advertised schedules- Immobilization of valuable ship- Services rendered by H.M. tugs Volatile, Swarthy, St. Mellons, Resolve, Saucy and Antic, by salvage tugs Bustler and Metinda III, and by S. Co.'s tugs Clausentum, Canute, Neptune and Vulcan to steamship Queen Elizabeth aground forward in Southampton Water-Ship refloated after being aground 24 hours-Ship lightened in meantime, reducing her mean draught by about 2 ft.- Alteration of trim, raising her forepart by about 6 ft.-Use of own engines -Nature of services-Risk to tugs- Bottom and other structural damage sustained by salved ship-Increasing risk-Possibility of total loss- Consideration of exceptionally high value of salved property in assessing award-S. Co. under contract with owners of salved ship to provide regular towage assistance-Term of contract that S. Co. must not make any claim on a salvage basis for any "special services" - Further provisions in contract that "Special services" shall mean and include services, whether by way of towage or of attendance upon vessels of the Cunard or Associated Companies, which, by reason of stress of weather, breakdown or any defect of machinery or equipment may not be under complete control. It is understood that you will reimburse us for any award for salvage services given through the Courts to the masters and crews of the tugs.

Whether services rendered by S. Co.'s tugs were "special services"- Position of H.M. tugs considered- Merchant Shipping (Salvage) Act, 1940.

(1948) 82 Ll.L.Rep. 803


Negligence - Schoolmaster - Physical training class - Diversion from physical training - "Jockeys and Horses"-Supervision and control- Personal injuries sustained by schoolboy in physical training class- Instructions given by physical training instructor to boys, as a diversion from normal physical training exercises, to take part in game known as "Jockeys and Horses" - Arm broken by fall-Action brought against county education authority, alleging that the instructor was negligent in that he failed to exercise proper supervision of the game.

(1948) 82 Ll.L.Rep. 823


Charter-party-Damage to ship-Liability of charterers-Unsafe port or berth- Compliance with charterers' orders- Improper or negligent act of charterers-Charter by defendants of plaintiffs' ship for a period of one outward voyage to Mediterranean "where she can lie safely always afloat or safely aground where vessels of similar size are accustomed to lie safely"-"Steamer to be redelivered . . . in Naples"-Further provisions in charter: 8. . . . Captain to be under the orders of charterers as regards employment, agency, or other arrangements. Charterers to indemnify owners against all consequences or liabilities arising from captain . . . complying with such orders . . . 12. . . . Charterers to be responsible for loss or damage caused to steamer or owners by goods being loaded contrary to the terms of this charter or by improper or careless loading or stowage of goods or any other improper or negligent act on their part or that of their servants.

Voyage to Naples, where ship ordered to Berth 51 by military authorities, who were in control of port-Cargo discharged and ship redelivered to shipowners-Damage to propeller in leaving berth-Tip of one blade broken off-Evidence that port of Naples had suffered extensive war damage and that there was under-water obstruction from debris-Whether Naples was a port where vessel could "lie safely always afloat"-Meaning of "safe port"- Plea by charterers that propeller was damaged owing to negligent navigation of master in leaving port-Whether such damage was a consequence which arose from master complying with charterers' orders-Alleged "improper or negligent act" on charterers' part- Measure of damages-Spare (old) propeller fitted at Sunderland as temporary repair while afloat-New propeller subsequently fitted in dry dock at Hull-Damage to low pressure piston rod-Whether resulting from propeller damage.

(1948) 82 Ll.L.Rep. 826


Negligence-Invitee or licensee-Unusual danger-Duty of occupier-Personal injuries sustained by plaintiff in neighbour's house-Plaintiff's case that she regularly visited defendant's house to administer to defendant's wife, who was an invalid; that in leaving bedroom she slipped on mat outside bedroom door; and that the mat, being on a highly polished surface and in a fresh position, constituted an unusual danger of which defendant should have been aware and guarded against - Proof - Whether plaintiff was invitee or licensee-Material interest of occupier.

(1948) 82 Ll.L.Rep. 837


Limitation of action-Conversion or wrongful detention-Defendant then unknown-Accrual of cause of action- Date-Insured car stolen by unknown person-Owner's claim for loss paid by plaintiff insurers-Car discovered in hands of innocent purchaser for value over six years afterwards-Action brought by plaintiffs against defendant, claiming return of car- Defence that action was statute-barred -Whether cause of action accrued at time car was stolen, even though the identity of thief was unknown-Limitation Act, 1939: 2. (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say: (a) actions founded . . . on tort. 3. (1) Where any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person and, before he recovers possession of the chattel, a further conversion or wrongful detention takes place, no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention. (2) Where any such cause of action has accrued to any person and the period prescribed for bringing that action and for bringing any action in respect of such a further conversion or wrongful detention as aforesaid has expired and he has not during that period recovered possession of the chattel, the title of that person to the chattel shall be extinguished. 26. Where, in the case of any action for which a period of limitation is prescribed by this Act . . . (b) the right of action is concealed by the fraud of any such person as aforesaid . . . the period of limitation shall not begin to run until the plaintiff has discovered the fraud . . . or could with reasonable diligence have discovered it. . .

(1948) 82 Ll.L.Rep. 841


Charter-party - Disbursements - Discount-Deduction from freight- "Vessel's ordinary disbursements"- Meaning-Charter of ship for carriage of coal from Cardiff to Buenos Aires, freight to be paid at the rate of "27s. 6d. per ton . . . delivered, or on bill of lading quantity less 2 per cent. at receiver's option" - Further provisions in charter-party: 7. Consignees to effect the discharge of the cargo, vessel paying three shillings per ton of 20 cwt., or 1015 kilos . . . 8. The freight to be paid one third if required by the owners, on signing bills of lading . . . in cash . . . and the remainder on right delivery of the cargo, in sufficient cash for vessel's ordinary disbursements at current exchange, for merchant's bills on London at 90 days' sight, and the balance in cash in London three days after receipt of cabled advice of right delivery of the cargo less 114 per cent. discount.

Cargo loaded-No freight paid on signing bills of lading-No payment made in cash by receivers of cargo or by charterers for vessel's ordinary disbursements - Freight paid in London-Deduction by charterers of 114 per cent. discount calculated on gross freight-Claim by shipowners for additional freight-Whether discount should be calculated after deduction from gross freight of (a) sum payable by vessel to consignees for discharge of cargo; and/or (b) dispatch money payable by ship; and/or (c) agency fee (the ship being consigned to charterers' agent at port of discharge at fee of 50 guineas)-Arbitration-Case stated.

(1948) 82 Ll.L.Rep. 846


Negligence-Repairs to ship-Safe means of access-Lighting-Erection of lifelines -Fatal accident to boilermaker's labourer on board ship in dock-Fall down unlighted hold-Ship undergoing repair-Riggers employed by shipowners to guard against open hatches, provide lifelines, etc. - Deceased, employed by repairers, engaged in work in 'tween deck of No. 3 hold- Evidence that, work having ceased for the day, he was instructed to proceed to main deck; and that he was found dead on the next morning at the bottom of No. 2 hold-Whether lifelines round No. 2 hold were properly in position -Action brought by personal representative against shipowners; against employers; and against riggers- Respective duties - Responsibility of shipowners (as occupiers) to employees of ship-repairers-Contributory negligence.

(1948) 82 Ll.L.Rep. 850


Salvage - Award - Appeal - Alleged arrangement fixing salvage remuneration irrespective of success - Requisition of plaintiffs' vessels by Crown representative for purpose of rendering salvage services to defendants' ship - Representative without authority - Salvage successful-Claim made by salvors - Award - Appeal against quantum on ground that salvors were entitled to remuneration independently of success-Merchant Shipping (Salvage) Act, 1940, Sect. 1.

(1948) 82 Ll.L.Rep. 859


Collision-Radar-Fog-Excessive speed - Helm action - Collision between steamships Finnborg and Southport in English Channel in fog-Finnborg on course of 68 deg.; Southport on course of 275 deg. - Southport fitted with radar-Presence of Finnborg first detected upon Southport's radar screen at distance of about seven miles- Conclusion drawn that Finnborg was on an opposite course and likely to pass in safety port to port-Course of Southport altered 10 deg. to starboard when ships were still three miles apart- Evidence that subsequent radar bearings of Finnborg were taken by Southport until ships were about three-quarters of a mile apart, after which accurate bearings were difficult to obtain-Speed of Southport reduced to about nine knots- Fog signals sounded by Southport - Finnborg sighted on port bow, distant about 900 ft.-Emergency action taken by Southport-Fog signal of Southport heard by Finnborg on starboard bow- Evidence of Finnborg that she immediately stopped her engines, that she ran off her way, and that she put her engines full ahead and her helm hard-a-port upon sighting the Southport- Impact between stem of Southport and starboard side of Finnborg at broad angle-Whether ship fitted with radar excused from strict compliance with rule requiring reduction of speed in fog -Collision Regulations, Art. 16.

(1948) 82 Ll.L.Rep. 862


Salvage-Award-Loss of fishing-Out-of-pocket expenses-Services rendered by motor fishing vessel Ebor Jewel to motor fishing vessel Perfective in North Sea - Engines broken down - Towage about 150 miles to Grimsby, occupying about 36 hours - Salvage services admitted - Degree of danger - Fair weather - Perfective otherwise seaworthy and equipped with sails and with radio-telephone-Agreed loss by salvors of six days' fishing - Loss of profits as a matter to be considered in assessing award.

(1948) 82 Ll.L.Rep. 873


Collision - Crossing vessels - Respective duties of stand-on and give-way ships- Look-out-Collision between steamships Warren Chase and Billings Victory in English Channel-Ships on courses crossing at fine angle, Warren Chase being the give-way ship - Good visibility -No action taken by Warren Chase until ships about half a mile apart, when she starboarded - Action taken by Billings Victory at same time, when she ported without immediately taking steps to reduce her speed - Manoeuvres embarrassed by presence of pilot cutter-Impact between stem of Warren Chase and starboard how of Billings Victory - Collision Regulations, Arts. 19, 21n.

(1948) 82 Ll.L.Rep. 877


Negligence-Res ipsa loquitur-Onus of proof-Breaking adrift of dumb barge Aralia from moorings in River Thames, causing damage to moored tugs and herself becoming total constructive loss -Barge in hands of defendants for purposes of repair and moored by them by means of breast ropes to other barges secured to wharf, Aralia being eighth barge out-Barge moored by defendants before Easter holiday and found adrift early on Easter Tuesday - Action brought by tugowners and by owners of Aralia against defendant repairers- Onus of proof upon defendants-Evidence adduced by them that Aralia was moored in the normal way before Easter holiday; that her moorings were inspected during holiday; that the mooring rope used was of the normal type; and that the part of the mooring rope which had been recovered indicated that it had been subjected to considerable strain - Suggestion made by defendants that barge was possibly struck and broken adrift by a drifting barge, or that she broke adrift owing to wash caused by a ship passing at excessive speed-No real evidence available-Whether defendants' evidence was sufficient to show that the accident could have occurred without their negligence.

(1948) 82 Ll.L.Rep. 884


Fire insurance - Valued policy - Agreed value in excess of actual value-Partial loss - Measure of recovery - Policy taken out by D with defendant representative underwriter covering country estate (which included mansion house, farm and other buildings) - Property covered itemised and valued in schedule to policy-Provision in policy: The sum set opposite each item in this specification has been accepted by the underwriters and the assured as being the true value of the property insured and in the event of loss the said property will be assumed to be of such value and will be assessed accordingly.

Total insurance for £186,950 (being part of £196,795)-Value of mansion and adjoining premises agreed at £106,850-Property sold to plaintiffs for about £50,000-Assignment of policy- Fire-Evidence as to real value at time of fire-Negotiations in progress before fire for compulsory purchase by County Council of mansion and portion of estate-Values of mansion and adjoining premises accepted by learned Judge: £18,000 (before fire); £12,600 (after fire)-Cost of reinstatement (including architect's and surveyor's fees): £43,252-Present cost of erection of similar building: £205,000-Dispute as to amount due under policy-Contentions by plaintiffs that they were entitled to recover

(a) Proportion of difference between agreed value and real value after fire; or (b) Proportion of percentage depreciation in real value due to fire, as applied to agreed value; or (c) Proportion of cost of reinstatement.

Contentions by defendant that his liability was limited to

(a) Actual depreciation in real value caused by fire; or (b) Such percentage of agreed value as cost of reinstatement bore to cost of erection of new building.

Principles to be applied - Marine Insurance Act, 1906, Sects. 27 (2), (3), 69 (3), 71 (3).

(1948) 82 Ll.L.Rep. 892


Repairs to ship - Illegality - Licence - Authority of licensing officer-Oral permission-Repairs executed by plaintiffs to defendant's ship-Claim for balance of cost of repairs alleged to be due-Necessity for licence to execute repairs-Application made by plaintiffs for licence "to complete B.O.T. requirements, for modified Steam 3 Certificate" -Work commenced by plaintiffs upon receiving oral permission of local licensing officer-Authority of licensing officer to give such permission - Licensing officers authorized to "sign" licences-Licence subsequently granted authorizing the carrying out of repairs, alterations and drydocking-Provision in licence that it "shall automatically determine if any unauthorized repairs, alterations or drydocking are carried out"-Whether licence retrospective- Construction of licence-Preliminary questions submitted to Official Referee -Defence Regulations, 1939 (as amended up to 1947), Nos. 55, 92.

(1948) 82 Ll.L.Rep. 904


Collision - Narrow channel - Obligation on ship leaving main channel - Local by-law - Seamanship - Look-out - Collision between steamships Louis D. Brandeis and Older in entrance channel to Buenos Aires - Older, outward bound, navigating down north channel into main channel - Main channel a continuation of north channel-Louis D. Brandeis, inward bound, navigating in main channel and proposing to branch off into south channel - Local by-law providing: A vessel which, while navigating in a channel, manoeuvres in order to leave the same, will do so in such manner and circumstances as not to force those navigating in its waters to manoeuvre to avoid collision, grounding or other accidents.

Whether by-law applicable in circumstances to both ships-Case for Louis D. Brandeis that she sounded and repeated signals indicating that she was intending to enter south channel; that no reply was received from Older; that, Older coming down to the northward of mid-channel, Louis D. Brandeis took starboard helm action; and that by reason of port helm action or sheer by Older, the ships came into collision port bow to port bow-Alleged negligence of Older in failing to take off her way either by engine action or by dropping anchor-Case for Older that she was navigating on her proper side of mid-channel; that she reduced speed as Louis D. Brandeis approached; that she heard no signals from Louis D. Brandeis; and that ships would have passed each other in safety but for port helm action taken by Louis D. Brandeis -Bad look-out on Older - Whether contributing to collision.

(1948) 82 Ll.L.Rep. 913


Negligence-Damage to barge-Berthing of tug alongside by tugmaster-Instructions alleged to have been given by tugowners' manager - "Interference" -Barges Alma and Willie in tow of tug Benfleet from Lydney to Bristol-Voyage unable to be completed on one tide-Alma and Willie cast off at mouth of River Avon, where they anchored side by side, taking the ground at low tide-Benfleet moored some distance away-Fresh orders given to tugmaster by tugowners' manager by which another tug was to complete towage and Benfleet was to return to Lydney to pick up other barges- Necessity to shift Benfleet - Benfleet moved alongside barges, with Willie between Alma and Benfleet - Willie damaged when vessels took ground - Liability admitted by tugowners-Limitation decree granted-Action brought by owners of Willie against tugmaster (first defendant) and against tugowners' manager (second defendant) -Evidence of discussion between tugmaster and manager before Benfleet was moved alongside barges - Whether manager gave positive orders to tugmaster -Discretion of tugmaster. Costs-Joinder of parties-Action commenced against two defendants- Plaintiffs successful against first defendant and unsuccessful against second defendant - Right of plaintiffs to Bullock Order - Plaintiffs aware that first defendant was without means and that second defendant was person of substance - Hearing protracted by reason of joining of second defendant -Discretion of Court.

(1948) 82 Ll.L.Rep. 923


Charter-party-Cancellation by charterers -Breach-Principal and agent-Undisclosed principal-Right of owners to sue-Disponent owners-Rectification- Frustration - War - Enemy taint - Illegality-Notice of readiness-Waiver -Charter-party dated April, 1940, entered into between H. (Dutch company), disponent owners of Finish ship, and defendant charterers (Swiss company) for carriage of peeled pulpwood from Canada to Rouen-Signed by M. & S. "under telephonic authority from and as agents for disponents"- Further provisions in charter-party: 3. The freight to be paid in cash without discount in London to Meldrum & Swinson Ltd. on telegraphic advice that bills of lading have been properly signed, non-returnable ship lost or not lost. 4. . . . restraints of princes, rulers, and people . . . always mutually excepted. . . . 6. Owners to give charterers or their agents and shippers ten days' notice of steamer's expected readiness at loading port. 8. The steamer to load as per Clause 1 and discharge in such dock, berth or place, always afloat, as may be ordered by charterers or their agents on receiving notice of arrival. Notice to be given in writing to charterers or their agents at port of loading when cargo will be required. 13. If the nation under whose flag the steamer sails shall be at war, whereby the free navigation of the steamer is endangered, or in case of blockade or prohibition of export from the loading port, this charter shall be null and void at the last outward port of delivery or at any subsequent period when the difficulty may arise, previous to cargo being shipped. 26. The loading time to count from the moment the ship starts loading but not later than 24 hours after the master has given written notice within the ordinary office hours that vessel is ready to load.

War Risks Clause: . . .

(2.) The ship shall have liberty to comply with any orders or directions as to departure, arrival, routes, ports of call, stoppages, destination, delivery or otherwise howsoever given by the Government of the nation under whose flag the vessel sails or any department thereof, or any person acting or purporting to act with the authority of such Government or of any department thereof, or by any committee or person having, under the terms of the war risks insurance on the ship, the right to give such orders or directions and if by reason of and in compliance with any such orders or directions anything is done or is not done, the same shall not be deemed a deviation, and delivery in accordance with such orders or directions shall be a fulfilment of the contract voyage and the freight shall be payable accordingly.

Pulpwood bought by charterers from B. & Sons (Canadian firm)-Sold to French company against open letter of credit to be opened with Swiss bank- B. & Sons to be paid by charterers by letter of credit to be opened with Canadian bank-Delay by French company in arranging letter of credit- Arrival of ship at Canadian loading port on May 14, 1940-Notice of readiness given by master on May 15- Ten days' notice of expected readiness not given-Whether waived-Loading not commenced by B. & Sons owing to delay by charterers in opening letter of credit with Canadian bank-Charter-party cancelled by charterers on May 22 "due aggravation general situation" (Germans having overrun France)- Impossibility of performance - Cancellation accepted by owners - Action for breach brought by W. Ltd. (Finnish owners of ship) and H. (disponent owners) - Right of W. Ltd. to sue-Admissibility of oral evidence to prove that W. Ltd. were principals - Meaning of "disponent owners"- -Right of plaintiffs to rectification- Whether W. Ltd. (in which H. held O/Y Wasa S.S. Co., Ltd., and Another v. Newspaper Pulp & Wood Export, Ltd. K.B. 937 controlling interest) tainted with enemy status when Holland occupied by Germans - Evidence that by Dutch decree of May, 1940, ownership of shares in and legal claims made by Dutch companies were vested in Dutch Government in London - Whether further performance of charter-party against public policy-Further defences of "restraint of princes, rulers, and people" and of frustration by supervening illegality.

(1948) 82 Ll.L.Rep. 936


International law-Poland-Polish seamen -Gratuities (or compensation) payable by owners on leaving ships - Breach of agreement to pay - Foreign law - Expert evidence - Change of Government-Retroactive effect of recognition by H.M. Government of new Polish Government (Lublin Government)-Action brought by Polish seamen against defendants (Polish shipping company) claiming sums alleged to be due to them on leaving their ships - Polish Act of March, 1939, providing that in the event of war the supreme management or control of shipping companies would be handed over to Minister of Shipping -Poland attacked and overrun by Germans in September, 1939-Polish Government (afterwards known as the Warsaw Government) moved to London -P. (a director and sole remaining representative of board of management of defendant company) appointed Curator to administer defendants' property outside Poland-Resolution of Warsaw Government on June 25, 1945, authorizing Minister to pay three months' wages as gratuity (or compensation) to Polish seamen on leaving their ships-Meeting between Minister of Shipping and seamen's union representatives at which Minister intimated Warsaw Government's intention to pay gratuity (or compensation) - Resolution communicated to crews of Polish ships-Instructions given by Minister of Shipping to P. to pay gratuities (or compensation) in accordance with resolution -Gratuities (or compensation) not paid to plaintiffs, who had left their ships - Enforceability of agreement-Evidence of Polish law- Question of fact-Power of Minister of Shipping to enter into agreement - Whether agreement was "collective agreement" (which was required by Polish law to be in writing)-Meaning of "collective agreement"-Authority of union representatives to enter into agreement-Power of seamen to ratify -Unilateral obligation - Validity of decree passed by Warsaw Government- Certificate of H.M. Foreign Office that up to and including midnight of July 5/6, 1945, Warsaw Government was recognized as being Government of Poland and that thereafter such recognition was assigned to Lublin Government.

(1948) 82 Ll.L.Rep. 970


Warehousemen - Contract - Negligence -Storage of motor lorries-Exemption of liability from negligence-"Owner's risk"-Oral contract entered into by which defendant warehousing company agreed to receive and store motor lorries on plaintiffs' behalf-Dispute as to terms of contract relating to draining of water systems-Contract affirmed by letter from defendants to plaintiffs in which defendants intimated that they would "drain the radiators on arrival," and that lorries would be accepted at "owner's risk"-Printed condition exempting defendants from liability for negligence - Evidence that each lorry contained two drainage systems; that the system applicable to the cylinder blocks was not drained; and that damage by frost was incurred-Claim by plaintiffs for damages for breach of contract and/or negligence.

(1948) 82 Ll.L.Rep. 995


Pilots-Benefit fund instituted by pursuers (pilotage authority)-Objections by certain groups of pilots - By-laws unconfirmed by Minister of Transport -Multiplepoinding action brought by pursuers asking that project be abandoned and fund dispersed - Action adjourned to enable further by-laws to be formulated and submitted to Minister-Further hearing of action- Court informed that there was agreement as to part of fund due to retired pilots and representatives of deceased pilots; and that by-laws formulated for regulation of pilots' benefit fund had been submitted to Minister for confirmation -No necessity for unanimous agreement - Pilotage Act, 1913, Sects. 17, 21.

(1948) 82 Ll.L.Rep. 1000