« EelmineJätka »
3 Hag. Eo. 173; Redhead v. Wait, 6 L. T. Rep. 580; Richings v. Cordingley, 19 L. T. Rep. 26; L. Rep. 3 A. & E. 113). Neither parishioner nor organist, whether engaged by the parishioners, or the incumbent, or anyone else (a)-much less a non-parishioner or a pupil of the organist-have a right of access into the church out of the hours of Divine worship: (cf. Dewdney v. Good, 7 Jur. N. S. 637; Redhead v. Wait, sup.).
Moreover, the property in the organ is vested in the parish (Bucksale v. Anon., 1 Roll. 57; Welcome v. Lake, 1 Sid. 281), and, should the churchwardens-who can bring an action of trover in respect of it-lock the instrument up, it would not seem competent for anyone to unlock it without their permission, much less to break it open, unless it was the incumbent for use during and for Divine worship, seeing that he has the right to use all the church furniture for that time and purpose: (Hutchins v. Denziloe, 1 Hag. Con. 170). It has still to be decided whether this right of user implies a right to the possession of a duplicate key of the organ-we do not see why it should; and it is interesting and important to observe that there is nothing in the reports to justify a contention that an organist, as a right appurtenant to his office, has a right to hold the key and to exclude others than his pupils and friends from playing upon the organ. If a custom to this effect were pleaded, the custom would have to be proved and shown to be reasonable, and, moreover, to be so universal that no organit could be supposed to bave entered into the contract of service without regarding it as a part of his engagement: (Reg. v. Stoke-on Trent, 5 Q. B. 303).
And when inquiry is made respecting the rights of the various interested parties during the hours of worship, those of one will be found to be paramount and equally exclusive. With two limitations, not seemingly very efficacious in practice, to be presently mentioned, the manner in which each service is to be performed is within the absolute discretion, and at the sole direction, of the incumbent, and no parishioner, whomsoever he be, or churchwarden, has any right to interfere: (Hutchins v. De ziloe, ubi sup.). It clearly follows that it is the incumbent alone who can order if there is to be any, and, if So, what, instrumental or vocal music before, during, or after, each service, and who are to be the performers or performer, and probably, as consequential, how each is to be robed or dressed. And wherever the rubric directs that a part of a service may be said or sung, it will be for the incumbent at his sole discretion, and as a part of this right of general superintendence, to determine which alternative shall be taken.
In a few words, the incumbent is the sole diotator of the music, and master of the choristers and accompaniste. No one can entertain the slightest doubt as to this principle. The City ohurchwardens who pay the organist, and "manage the children of the ward, and think, with some show of logic, that, consequently, they have the right to say when the organist is to play, and the children to chant, are firmly told by Lord Stowell that their honourable office is one merely of observation, and, if necessary, of complaint to the ordinary; and that they would be punishable if they countermanded the rector's directions on the matter: (Hutchins v. Denziloe, ubi sup.). So, also, the country organist, who has been engaged by the vestry and is paid through the churchwardens, is instructed, by another ecclesiastical judge of eminence, as to keeping his place, and that should he play on the organ during Divine worship in defiance of the directions of the incumbent, he will infringe the law: (Wyndham v. Cole, 1 P. Div. 130). And in both of these cases it seems clear that the litigants had a considerable body of parish opinion with them.
Possibly the law here may seem reminiscent of, and more suitable for, a bygone age. And it is also no less instructive to observe that in one or two other ways the law does not err in the interests of the musical profession. Even where, beyond the time of living memory, there has always been an organist, and a stipend provided for him, a mandamus will not lie to elect one (Reg. v. St. Stephen, Coleman-street, 14 L J. 34. Q. B.), and whether there had been an organ for several years, or one was newly erected, there was no legal obligation on the parishioners to pay an organist to play it, or an organ builder to repair it (Pearce v. Rector of Clapham, 3 Hag. Eo. 10; Reg. v. St. Stephen, Coleman street, ubi sup.). Or, to put it another way, the fact of there being an organ in the church did not necessitate the appointment of an organist, or the tuning and repair of the instrument. It may, indeed, be asked if an incumbent has not, as part of his right of user for and during Divine worship, the right to tune and repair the organ even though it is not necessary for the decent performance of Divine worship, and is the parishioners' property, Some cases (e.g., Churchwardens v. Parishioners of Margate, 1 Hag. Con. 198, and Reg. v. St. Stephen, Coleman-street, ubi sup) seem to intimate the existence of such a right, but if any churchwardens denied it, the point is not definitely decided, and is one quite free for argument. somewhat careful search has failed to discover any case deciding, or even intimating, to what length of notice an organist, or his employer, is, in the absence of special stipulation, entitled before the contract of hiring and service between them can be terminated, or whether it can be terminated before the end of the first year. In the absence of authority, "no clear rule," as Sir John Macdonell states, "as to the length of notice to be given to servants, other than menial or domestic servants, exists": (Macdonell's Master and Servant, 2nd edit, p. 138).
(a) In this article the word organist" is, it will be observed, confined to those hired to play an organ in a parochial church of the Church of England, but it generally includes a choirmaster. The position of an organist or a choirmaster at a cathedral would probably depend on the cathedral statutes: (see Reg. v. Dean and Chapter of Chester, 15 Q. B. 513).
Then, in conclusion, to mention the two limitations of the rights already mentioned by an incumbent, by law he must not depart from the rubrics, and he should not disobey any lawful directions of the ordinary.
The rubrics are seldom imperative on musical matters, and, as has been said, when they offer more than one course, the incumbent is the person to say which course shall be adopted. Hence, as respects the subject of this article, the first limitation would not seem to possess much force. What, doubtless, an acute controversialist would point out is that it would appear that any incumbent who was disposed to be contumacious can trespass on these limitations at pleasure; and that, should be do so, the means of stopping him appear neither quick nor decisive. For if an incumbent introduce any irregularity into the service, the parishioners or the churchwardens can only litigate the matter in a court of law, or make complaints to the ordinary (Hutchins v. Denziloe, ubi sup.); and an organist duly appointed, if arbitrarily forbidden to play on the organ, might, it seems appeal to the ordinary: (Wyndham v. Cole, ubi sup.). Still, in any event, the directions of the incumbent must be provisionally obeyed until the judge, or the ordinary, has directed what is the right course for the incumbent to follow: (Wyndham v. Cole. ubi sup ). It has been well pointed out that an ordinary has a freer hand than a judge. While an ordinary may judge as to what is expedient in the circumstances as well as what is legal, and exercise a kind of paternal jurisdiction, a judge can only apply the law to the case, and decide the legal rights and obligations of the parties: (Hutchins v. Denziloe, ubi sup.). And when the rights of an incumbent only come in question, where as a judge must disregard as irrelevant any expression of the opinion of the parishioners (Richings v. Cordingley, ubi sup.), an ordinary would very properly regard such an expression as valuable for his information and guidance. Many, however, will call to mind pathetic confessions such as that made by the Bishop of London in 1859: "The law allows an incumbent to have a choral rather than a read service, if he please; and though I may highly disapprove-as I doof forcing a choral service on an unwilling parish, I can only remon strate; I have, by law, no power of forbidding, or, if I forbid, of enforcing obedience to my mandate." Still, the occasion for any such statement is, we may believe, rare and far between.
PROMOTIONS AND APPOINTMENTS. Information intended for publication under the above heading should reach us not later than Thursday morning in each week, as publication is otherwise delayed.
His Honour JUDGE THOMAS COLPITTS GRANGER, of Cornwall Circuit, No. 59, has been appointed Judge of the County Courts of Greenwich, Woolwich, and Southwark, Circuit No. 47, in succession to the late Judge Willis.
Mr. FREDERICK CROWTE, deputy clerk of the Salop County Council, has been appointed Clerk of the Peace and Clerk of the County Council for Salop, in succession to the late Mr. Cresswell Peele. Mr. Crowte was admitted in 1908.
Mr. GEORGE FREDERICK LODDER, of the firm of Christophers and Lodder, solicitors, Henley in Arden, Birmingham, has been appointed Clerk to the Justices for the Henley Division of Warwickshire, in succession to Mr. T. Christophers, deceased. Mr. Lodder was admitted in 1902.
Mr. CLEMENT E. ARNOULD has been appointed a Commissioner in Great Britain for taking Oaths to be used in the Province of New Brunswick.
THE PRACTICE OF INTERPLEADER BY SHERIFFS AND HIGH BAILIFFSWith Acts, Rules, and Forms. By DANIEL WARDE, of the Middle Second Temple and South-Eastern Circuit, Barrister-at-Law. Law Times "Office, Edition, price 5s. 6d., post free.-HORACE COX, Windsor House, Bream's-buildings, E.C.-[ADVT.] ASPINALL'S MARITIME LAW REPORTS (New Series).-Containing all the Decisions in the Admiralty Courts of England and Ireland, and in all the Superior Courts, with Notes by the Editor. Parts, price Law 5s. 6d., will be sent free by post to subscribers.-HORACE COX, Times" Office, Windsor House, Bream's-buildings, E.C.-[ADVT.]
Appleby, Saturday, at 12
Ashton-under-Lyne,* Thursday, at
Attleborough,* Monday, at 11 Aylsham, Friday, at 10
Banbury, Wednesday (R. By) and
Bellingham, Saturday, at 1
Biggleswade, Monday, at 10.30
Wednesday. Thursday, and Fri-
Bishop's Castle, Monday, at 10
Bow, Monday, Tuesday, Wednes-
Bradford (Yorks), Tuesday, and
Brentford, Thursday, at 10
Brighton, Thursday (R. By) and
Burnley, Friday (R. By), at 10.30
Carlisle, Tuesday, at 9.30
Colchester, Tuesday and Wednes-
Crewe, Wednesday, at 10
Darlington, Wednesday (C.S.), at 9
Dover, Wednesday, at 10
Durham, Monday and Tuesday, at 10
Eastbourne, Tuesday (R. By), at
Kirkham, Thursday, at 10.30 Leeds, Monday (J.S. & A.O.), Wednesday, Thursday, and Friday, Tuesday, Wednesday, and Thursday, at 10; Saturday, at 9.30
at 10 Leicester,
Tuesday, Wednesday, Thursday, and Friday, at 10.30
Melton Mowbray.* Friday, at 10
Newport (Mon.), Thursday and
North Walsham, Thursday, at 1
Portsmouth, Thursday (C.S.), at
Preston, Tuesday, at 9.30
Rugby, Thursday, at 10
Saffron Walden, Thursday, at 11
Shoreditch, Tuesday and Thursday
Sunderland, Wednesday, Thursday.
Tredegar, Tuesday and Wednesday,
Wakefield, Tuesday, at 10
Whitchurch,* Saturday, at 10
Wigton, Monday, at 11
Wolverhampton, Thursday Woodbridge, Monday, at 11.15 Wood Green Monday, at 10.30 Wooler, Wednesday, at 10 Worcester Wednesday and Friday,
Other sittings are specially fixed if necessary.
WIGNALL V. WATSON.
Workmen's Compensation-Death from Sunstroke.
CASE heard by T. E. Mansfield, Esq., as arbitrator, in the Preston County Court, on the 28th Sept.
Ambler for the applicant.
W. G. Lord for the respondent.
The ARBITRATOR.-This is an application by Margaret Wignall, the widow of James Robert Wignall, on behalf of herself and her infant son, Thomas Wignall, against Robert Watson, hay and straw dealer, Preston, for compensation in respect of the loss of her husband from personal injury by accident arising out of and in the course of his employment with the respondent, and it is resisted by the respondent on the ground that the death of the deceased was not the result of injury caused by accident arising out of and in the course of his employment. The facts of the case are simple and undisputed, and they are as follows: The deceased man was employed as a carter, and on Friday, the 21st July last,
he was sent to Woodplumpton, a distance of some five miles, with a lurry for a load of hay. On arriving there, he carried from the stack to the lurry seventy-two trusses of hay, weighing 5 stones each, in one hour and twenty minutes. On the completion of this task he complained to Jonathan Jackson, who was cutting, or had cut, the hay for the trusses, of pain in the head. It was a very hot day. Jackson accompanied him to Preston, where they arrived about five o'clock. Jackson put up the horses for him, and then left. The applicant stated that the deceased was a healthy man, and was quite well when he left home in the morning, but on arriving home at night about 6.30 he sat down, saying his head was bad. She got him to bed, but he was never himself again. On the following Tuesday she sent for Dr. Raynor, but the deceased died on the 1st Aug. Dr. Raynor in his evidence said when he saw the deceased he complained of pains in the back of his neck and head, and his temperature was high. Ultimately he died from meningitis, which he believed was the result of sunstroke. He considered a man doing heavy labourer's work was much more likely to get sunstroke than an ordinary individual. In cross-examination he said the effect in this case would be common to every person working out in the sun-common to agricultural labourers, porters working at docks, carters going along the road; in fact, to the whole of the labouring classes working out in the daylight, but the greater the exertion the greater the probability. In answer to a question from me, he said he was of opinion that a man lifting seventy-two trusses, as this man had done, would tend to increase the risk greater than that of an agricultural labourer. Now, on this evidence I must first consider whether this man died from an "accident." Lord Macnaghten in Fenton v. Thorley and Co. laid it down that the expression "accident in the statute is used in the popular and ordinary sense of the word as denoting an unlooked-for mishap or an untoward event which is not expected or designed. I find in Taylor's Medical Jurisprudence a paragraph headed " Accidental Causes of Death-Death by Sunstroke," and "accident" is described as 'the happening of an event without the design of the agent,' an event that takes place without one's foresight or expectation." So far as I understand it, sunstroke is an inflammatory disease of the brain brought on by exposure to the intense heat of the sun's rays. In some cases a person may sink and die suddenly from exhaustion, or symptoms of cerebral disturbance may continue for some time and the case ultimately prove fatal. In my judgment, the death in this case was an accident, and did not arise from purely natural causes. The more serious question is, Was it an accident arising out of and in the course of this man's employment? There can be no question it arose in the course of the employment; but was it an accident arising out of the employment within the meaning of the Act? I am bound to confess, having regard to the variety of accidents and the numerous decisions, that it has caused me considerable anxiety in arriving at a decision in this case. Mr. Lord, who appeared as counsel for the respondent, pressed upon me the case of Warner v. Couchman, and argued that the present case was on all fours with that decision. Mr. Ambler, the applicant's solicitor, referred me to Morgan v. Owners of Steamship Zenaida an authority in his favour. Both advocates referred to a number of cases bearing on the question, but I have selected the two most material, although I have carefully considered all the cases. In my opinion, all the decisions must be read in the light of the particular facts in each case, for no general direction can be given as to what mishap is an accident arising out of the employment, any more than the wit of man could draft a section to describe what kind of accident is an accident within the Act, there being such innumerable unlooked-for mishaps in the course of the daily employment in the great industrial centres of this country. In my humble opinion, the majority of the court in Warner v. Couchman came to the conclusion they did simply on the facts as found by the County Court judge that there was nothing in the nature of the applicant's employment which exposed him to more than the ordinary risk of cold to which any person working in the open was exposed on that day, and that the only fact relied on was the taking off the right-hand glove in order to give change, and that this act was probably convenient, but was not necessary. In his judgment the learned Master of the Rolls said the applicant must say, the accident arose because of something I was doing in the course of my employment, or because I was exposed by the nature of my employment to some peculiar danger. I think, therefore, the decision in that case was based on the fact that there was nothing in the nature of the employ. ment which in fact exposed him to greater danger than any other person out in the cold. I now have to ask myself, Was the deceased doing something in the course of his employment which by the nature of that something exposed him to the danger of the heat beyond that to which the large section of the population who are drivers of vehicles or who are otherwise engaged as out-of-door labourers are exposed? In the course of his duty it was necessary for him to carry, and he did in fact carry, seventy-two trusses of hay, weighing 5 stone each, from the haystack to the lurry in one hour and twenty minutes, and I can well understand, in hard work of that kind, this man must have been considerably overheated and exhausted. In these circumstances I feel compelled to answer this question in the affirmative. There was, I think, in the nature of his work something appreciably and substantially beyond the ordinary normal risk which ordinary people run, and that the injury he suffered was largely the result of his work that day. I therefore hold it was an accident arising out of his employment.
f'otal for High Court
and County Courts
INTERNATIONAL MARITIME LAW CONGRESS. THE tenth congress of the International Maritime Law Association was held in the Hall of the Chamber of Commerce, Paris, from the 9th to the 13th Oct., under the presidency of M. Paul Couyba, and under the honorary presidency of the Minister for Foreign Affairs, the Minister of Marine, and the Minister of Commerce. Fifteen foreign countries sent delegates to the congress, but the English members were conspicuous by their absence, there being only three-namely, Mr. Arthur Serena, delegate of the London Chamber of Commerce; Mr. Douglas Owen, and Mr. J. E. R. Stephens. Letters regretting their inability to attend were received from Lord Alverstone, Lord Justice Kennedy, Mr. Justice Pickford, Mr. R. B. D. Acland, K.C., Mr. Leslie Scott, K.C., and Mr. Harry Miller. Mr. Serena said he felt called upon to explain the embarrassing position in which he found himself. He said he appeared to be the only Englishman present who represented officially a corporate body. Owing to the illness of Mr. Leslie Scott and Mr. Harry Miller, the London conference had not had an opportunity of discussing the problems now before the conference, and of going to some resolution upon them. had the British delegates who ought to have been present indicated In these circumstances he felt he would not to him their views. be justified in taking part in the discussions, because he had absolutely no instructions, and he did not feel he could vote on behalf of Great Britain on any of the resolutions which might be submitted to the conference. He understood that the reason for the absence of the British legal element was the reopening of the Law Courts this month.
Mr. Douglas Owen said he thought a word was due on behalf of British underwriters and shipowners who were not present. Those delegates were all men who occupied responsible positions, and the present political situation was causing all shipowners and underwriters great anxiety. Therefore it did not surprise him that none of the representatives of British shipowners and underwriters were present. He was sure that their absence would not be attributed to any want of courtesy to or lack of interest in the affairs of the conference. For several years he had been actively engaged in marine insurance himself, and he regretted to have to admit that he had not kept himself in close touch with the affairs of the International Maritime Committee. He was present to represent no one. He took it He was responsible to none. that they were met really to discuss-though no doubt most of them had probably made up their minds-whether shipowners should be liable for loss of life or personal injury. Speaking for
himself, he thought the English law in regard to the shipowner's liability for loss of life and personal injury to passengers was right. It was a humanitarian law, and might be adopted throughout the world. In England, the law was already very clearly defined as regards the liability of the shipowner towards the seamen and dock labourers, and the shipowner, rightly or wrongly -he thought rightly-enjoyed the power of contracting himself out of his responsibility to the passengers whom he carried. If the Maritime Law Committee were to pass resolutions expressing the opinion that those rights should be interfered with, he was sure they would have against them public opinion in England and the opinion of the British shipowning community. His own opinion was that, as regards the liability of the shipowner to his own seamen and to dock labourers, the committee should not think of interfering, but should leave each country to make its own laws. As to passengers on the carrying ship, the position was, perhaps, not quite so clear, but on the whole he took the same view-namely, that each country should be left to make its own laws. There remained the further class-namely, the passengers and crew on board the ship collided with. It was his opinion that, as it was the law in England, the shipowner should be liable for such a loss caused by the negligent navigation of the ship. It was a humanitarian law. If the committee had adopted the principle that the shipowner was to be liable for material losses, how could it stop there, and say that the shipowner was not to be liable for personal injury or loss of life?
Shipowner's Liability for Loss of Life.
The two questions for consideration of the conference were(1) shipowner's liability for loss of life or personal injury; (2) the draft code on affreightment. The proceedings and discussions of the Brussels Diplomatic Conference on the question of limitation of shipowners' liability in respect of loss of life or personal injury have shown how desirable it would be to determine by international convention the conflict of laws now existing as to this question. The views expressed at the Diplomatic Conference proved that several Governments, representing great maritime interests, would have great satisfaction in seeing a uniform settlement of this question arrived at, so as to assure to the persons injured or their heirs the benefit of a fixed limitation fund, calculated at so much a ton. Dr. Louis Franck, the hon. secretary and moving spirit in this association, said that there were practically four great classes of life claims-(1) on behalf of the crew; (2) on behalf of the labourers of the harbour; (3) claims of passengers against the carrying ship; (4) third-party claims, such as passengers, crew, and others on board the colliding ship. legislation has settled the first two sets of claims, and practically done away with the difference between British and foreign legislation. As to the third class, it may be in itself a heavy one, but the negligence clause in passengers' contract tickets does away with the burden of it. The real burden for life claims, so far as the difference between British and foreign legislation is concerned, centres in the fourth class.
Mr. Douglas Owen said that practically the liability for loss of life worked out at about £11 per ton, and not £7 per ton. The £7 per ton in the Merchant Shipping Act was the minimum. But the passengers can share in the other £8. If it is attempted to reduce this minimum, it will be opposed by the whole Press of England.
Herr B. C. J. Loder (Holland) said that, though he had at first been opposed to the matter of the shipowner's liability for loss of life being discussed at all, yet, as the Diplomatic Conference at Brussels had taken it up, he felt they were bound to consider the matter. Everyone agreed that, with regard to the crew and dock labourers, the Maritime Law Conference should not seek to interfere, because it was a matter of the public policy of each particular country. As regards passengers on board the carrying ship, he was of opinion that, apart from the negligence clause, it was not a very great matter what limit was placed on the liability of the shipowner. With regard to the passengers and crew of the colliding ship, it was not so much a matter of how you limit the liability as of how the liability is assessed.
Mr. Douglas Owen said that the British public viewed with indifference the proposal with regard to compensation for material loss. When it came to be a question of dealing with the rights of the subject, it was a very different matter. Every man either travelled or might be called upon to travel. If he knew anything about the law, he knew that he or his representatives would have a claim up to a minimum of £7, and probably up to £11, per ton in the event of personal injury or death. If the committee attempted to interfere with the claim against the shipowner, they would evoke opposition of the whole Press of England. The committee had already agreed, logically or not, that the shipowner's liability for loss of property should be £8 per ton; was it then going to say that his liability for loss of life should be less? Why? On what grounds was life to be valued at a less sum than ship or cargo? He would suggest that the same basis should be adopted for both classes of claim. Let them be consistent and say that they saw no reason for making any distinction between property claims and life claims; that, whereas they have agreed that the shipowner's liability for loss of property should be limited to £8 per ton, so his liability for loss of life should be the same
Mr. Frederick Brown, the United States delegate, said the system which he thought might probably be adopted in America was one in which there would be two alternatives open to the
shipowner-the one to abandon his ship and freight, or the value of them, in full satisfaction of all claims for loss of property and loss of life and personal injury; the other would be to pay into court a lump sum, whatever sum might be fixed. As to that sum, the United States delegates at the Brussels Conference voted, in respect of loss of property, in favour of £8 per ton. When the matter came before the American Association, the view of those who voted at Brussels was not approved of. In America it was thought the limit should be measured by a larger sum than £8 for material damage and greater than £15 for loss of life and personal injury all together. He, however, proposed the following resolution: This conference is of opinion that an international convention ought to be concluded on the basis of an additional liability in favour of life and personal injury claims. The conference is of opinion that this additional liability should be assessed at £7 per ton on the tonnage of the ship." This resolution was carried, all countries voting for it except two.
Dr. Arthur Sieveking, who was one of the members of the London Commission, said the object of that commission had been to show the conference that it was impossible to discuss and decide questions of detail without having previously arrived at an understanding with regard to questions of principle. For instance, they could not well discuss the question whether freight was to be paid on goods which had not arrived, or which had been sold during the voyage, or which had not been shipped at all, before knowing whether they were going to give freight pro rata itineris or not. Again, they could not discuss questions as to the dissolution or cancellation of the contract of affreightment before having arrived at an understanding with regard to the meaning, or the difference between a contract whereby the whole ship was chartered, a time charter, or a shipment of general cargo. Until the distinctions between these three classes of contract had been well defined, the conference could not very well lay down rules for the dissolving of the contract. The same observations applied to the relations arising from the signing of the bill of lading and the charter-party. The conference could not determine these relations until they had settled the relations between consignee, the charterer, owner, sub-charterer, and so on. If the conference discussed and settled questions of detail without having determined the great principles, and then tried to put the patchwork together afterwards, the result would be the same as happened to an old artist-a sculptor who did not know exactly what he wanted to do, but had two blocks of marble carved, the one into a charming figure and the other into a beautiful head. When, however, he put them together, he found that he had placed the frowning head of Jove on the beautiful body of Venus. Therefore it was proposed that they should first discuss and settle general principles. Up to now only one general principle had been settled-namely, that no distance freight should be payable. That had been settled at Bremen. He suggested, therefore, that the conference should discuss Part 1 of the draft code, having in mind, however, that all rules contained in the first part were subject to be altered by agreement. At the same time, he suggested that, in connection with Part 1, they should discuss only the case of a general cargo-owner, leaving on one side the question of whole ship charters and time charters. In this way they could continue the discussion begun in Bremen. The other general principles involved must be placed before another sub-committee.
Herr Asser (Holland) asked whether it would not be possible, instead of embodying the law of affreightment in an international treaty, to agree to a code of rudes which shipowners and cargoowners would be willing to embody in their charter-parties and bills of lading.
M. Louis Franck said that, because the York-Antwerp Rules had been a success, it did not follow that such rules as Herr Asser had suggested would be equally successful. Indeed, such rules had been tried over and over again, and had always failed.
Dr. Brandis (Germany) asked that, in discussing the first article, reference should only be had to shipments of general cargo, and that other questions relating to the difference between time charters and charters of whole ships should be left out of discussion. General principles must first be discussed, and art. 1 involved a general principle, because it was not possible to decide that freight should not be paid for goods which had been lost during the voyage or were not delivered at the portion of destination, until you knew what was meant by saying goods had been lost. There was a difference in English law between goods arriving in specie and goods arriving not in specie; for instance, if fruit arrived in a state of putrefaction, they were held in English law not to have arrived in specie. That commercial point of view might be of importance to the relations between the vendor and vendee, not as between the shipowner and the cargo-owner. He asked the conference to adopt the principle of German law, under which goods were considered to have been lost if their primitive nature had been destroyed.
Dr. Sieveking proposed to add two new sub-sections to art. 2. The first made freight payable on animals which had died during the voyage, and the second declared that the rights of the parties relative to freight in general average should be regulated by the laws of general average. The first was a very vexed question, and Lord Justice Kennedy, in the draft which he had prepared. proposed that freight should be due for animals which had died in the course of the voyage. As to the second amendment, if goods had been jettisoned in the course of the voyage, it stood to
reason that they would not arrive at the port of destination, and if nothing was said in the draft code to the effect that the relations between parties out of general average were not affected by the draft code, then no average adjuster would be able to assess the contribution in general average for freight for goods which had not What he proposed was merely explanatory, and not
Mr. Douglas Owen said the law of general average is that, if goods are sacrificed for the benefit of the general cargo, their value is made good in general average, as well as the freight. He said he took that opportunity of mentioning a matter he was inclined to think was important. It was this: They had decided in several instances that freight is to be due on goods which for various reasons do not arrive. From whom is the freight due? From whom are you going to collect it? It seemed to him that in most cases it will be impossible to collect such freight, and that, therefore, for them to pass a resolution of such a kind without undertaking to say who were the parties who in their opinion were liable was, at any rate, somewhat misleading.
Mr. Frederick Brown (New York) thought that both amendments were unnecessary, because he thought the courts would so construe the law. At the same time, perhaps it was wise to say specifically upon these points just what they meant. With regard to the payment of freight on animals which perished during the voyage, he would be compelled to vote against the amendment, because he had voted against the proposal to make freight payable on merchandise which had perished during the voyage.
The amendments were, however, agreed to, and referred to the drafting committee.
Mr. Frederick Brown proposed to add the following proviso to art. 2: 'Notwithstanding the provisions of the foregoing subdivisions of this article, all obligations for the payment of freight may be discharged by the surrender to the carrier of the merchandise carried within a reasonable time of tender at destination and opportunity for inspection in cases in which, without fault on the part of the cargo-owner or his representatives, the merchandise has become of less value than the amount of the freight, owing to the event of the voyage." This proposal was not accepted by the conference.
On art. 3, which declares that lump-sum freight is due whether the goods shipped are or are not delivered at the port of destination, Herr J. H. Koch (Denmark) expressed the opinion that what was proposed was an entirely novel principle. Consul-General Hansen (Denmark) agreed with the President of the Danish Admiralty Court as to the novelty of the principle contained in the article. As a practical shipowner, he had not heard of it before. He had heard of the old rule that prepaid freight was not recoverable, but not of this proposal with regard to lump-sum freight. He said he could not see why any difference should be made between lump-sum freight and other freight. This amendment was, however, declared carried.
Art. 4 states that prepaid freight, provided that the ship has sailed on the voyage, cannot be recovered back, although the goods are wholly or partially lost during the voyage. Herr Edzard said
this article was contrary to the general practice, but the German delegates thought it was advisable to go further, and to include in this article advance freight, because it was often very difficult to distinguish between advance freight and freight prepaid, and to decide under which category the particular case came. Mr. Frederick Brown (United States) said that it was the declared policy of the United States that prepaid and advance freight, unless earned or unless the contract otherwise provided, should be returned. He was therefore compelled to move the following amendment : That prepaid freight or advance freight shall be refunded unless it shall have been earned within the meaning of the foregoing provisions relating to freight payable at destination." Consul-General Hansen (Denmark) said the words of the article no doubt expressed what was the practice in shipping, but the laws of various countries considerably differed. The laws of Denmark and Sweden, for instance, were the same on this point, but that of Norway was different. Therefore he was not satisfied that it would be of any use to bring this matter before an international diplomatic conference, because what was proposed seemed to him to be in direct conflict with the laws of many nations. At the same time, he admitted that such a provision was desirable, because it was in conformity with the practice of shipping. The German proposal, to include advance freight in art. 4, was then declared to be carried.
Mr. Brown (United States) said that American opinion was in favour of making the shipowner fully responsible for the seaworthiness of his vessel, because the shipowner, and not the cargo-owner, built and kept the vessel in repair. He therefore proposed the following amendment: "The shipowner is liable to the cargo-owner for the consequences of unseaworthiness of his vessel. Seaworthiness means a condition of the vessel such as to enable her to perform safely the intended voyage, notwithstanding the dangers reasonably to be anticipated as incident thereto." Herr Edzard (Germany) said that it would be quite in accordance with the conclusions arrived at at the Venice and Brussels Conferences to place unlimited liability on the shipowner for unseaworthiness, because the limitation of liability already agreed to only referred to occasions where the shipowner had lost control of his vessel.
Art. 17 of the draft code, which deals with the question of liability for the nautical and commercial faults of the master and crew, was also amended. Amended Articles.
The articles of the draft code as they now stand after amendment are as follows:
1. Except as hereinafter mentioned, no freight is due for goods which do not arrive or have not been tendered at the port of destination.
2. Freight, however, is due in the following cases: (a) Where the carrier has been prevented from carrying the goods to their destination by the act, neglect, or default of the shipper, his principals or his agents authorised to act on his behalf; (b) where the goods have perished by reason of their defective or improper condition at the time of shipment, or by reason of their nature, provided no accident was the primary cause of the loss; (c) for animals which have died during the course of the voyage; (d) where illegal goods or goods of a dangerous nature have been shipped without notice to the shipowner of their nature, and have been necessarily destroyed during the voyage in order to save either the ship or other cargo on board; (e) where goods are necessarily sold in the course of the voyage on account of their damaged condition, whether the same arises from their nature or inherent vice or from a peril of the sea; (f) in the case of general average the rights of the parties as to freight shall be regulated by the laws of general average.
3. Art. 1 shall not apply to lump-sum freight, whether for the whole or part of the ship, and in consequence the freight is due whether the goods are delivered or not at the destination.
4. Prepaid freight and freight advanced shall not be recoverable, although the goods are wholly or partially lost during the voyage, provided the ship has sailed on the voyage.
5. The shipowner is bound to provide a ship in a seaworthy condition-that is to say, capable in all respects of accomplishing safely the intended voyage in ordinary circumstances. The conditions which constitute seaworthiness shall be determined by national laws and regulations.
17. In all cases of affreightment, whether the ship is run under time charter by a pro tempore owner, or by a charterer having hired the ship for the purpose of sub-chartering the same or employing her for general cargo or otherwise, the owner alone is, as regards the cargo-owner, shipper, consignee, or any other person interested in the cargo, liable for the nautical defaults of the master and crew. The owner and the charterer are jointly and severally responsible for the commercial defaults of the master and crew.
The revised draft code as presented by Dr. Sieveking was then agreed to by the conference, although more mature consideration might necessitate further amendments at a later date. The other articles of the draft code were not touched, but stand over for future discussion.
Herr Koch, on behalf of the Danish Association of Maritime Law, invited the International Maritime Law Association to hold their next conference in Denmark, and it was understood that the invitation would be accepted. After the usual votes of thanks the proceedings terminated.
COMPANIES IN 1910.
REPORT BY THE SOLICITOR TO THE BOARD OF TRADE. THE legal proceedings conducted by me on behalf of the Board of Trade and official receivers during the year 1910 in connection with the Companies Acts (which, for the reason given in my last report, were governed in some cases by the Companies (Consolidation) Act 1908 and in the remainder by earlier Acts of Parliament) fall within the following classes, viz. :— (1) General proceedings.
(2) Proceedings against defaulting liquidators. (3) Cases relating to defaulting receivers.
(4) Proceedings relating to companies not in liquidation.
(1) General Proceedings.
A case of considerable importance to official receivers arose in connection with a company in course of compulsory winding-up under an order of the County Court of Newcastle-upon-Tyne. The winding-up order was made on the 12th May 1908, and therefore the case was one to which the Companies (Winding-up) Act 1890 applied. By sect. 8 of that Act it was provided that where the court has made an order for winding-up a company, the official receiver should submit a preliminary report to the court as to the affairs of the company, and, if he thought it, the official receiver might also make a further report stating the manner in which the company was formed and whether in his opinion fraud had been committed by any persons in the promotion or formation of the company, or by any director or other officer since the formation thereof. Where such a further report was made, the court was empowered, after considering the report, to make an order for the public examination of the persons against whom charges of fraud were made or suggested, in which examination the official receiver was required to take part, and if in the opinion of the court any person examined was exculpated from the charges made or suggested against him it might allow him his costs as the court might in its discretion think fit.
In the case in question the official receiver (who was also the liquidator of the company) made the further report referred to, in