was no such usage to give notice, then the general case applies; and if there was, then, ought the defendants in this case to have given such notice? They could have found the address from the shipping note; ought they to have got it from thence ? There can be no doubt they could have found the plaintiff's address had they looked at the shipping note. If, however, there was no such usage to give notice, then they were not bound to give any notice at all. In conclusion, his Lordship left it to the jury to say, first, was there a custom of the Port of London such as the defendants contended for? Secondly, did the defendants keep the goods on board for a reasonable time? Thirdly, were the defendants bound to give notice? In which case the question of reasonable time would not arise, as the plaintiff received no notice at all before the arrival.

The jury found there was no such custom to give notice, and returned a verdict for the defendants.

Verdict for the defendants.

HOULDER

V.

GENERAL

STEAM NAVIGATION COMPANY.

[ *176]

TURNER v. OWEN.

(3 F. & F. 176-179.)

When a seaman signs articles at a foreign port, there is an implied warranty of seaworthiness, and if the ship is unseaworthy, there is consideration for a new contract for extra reward to induce him to sail in her.

THE first count stated that the defendant promised to pay the plaintiff 5l., in consideration that the plaintiff, at the request of the defendant, would assist in navigating a ship from the Falkland Isles home, the said ship being at the Falkland Isles in a leaky condition, unseaworthy, and insufficiently supplied with seamen, and unsafe for the passage home. Averment of performance.

Breach: Non-payment.

Common counts for work, &c.

Pleas: 1. Denying the promise in the first count.

2. That the ship was not unseaworthy.

3. That the plaintiff, being a seaman, was bound and liable to serve and assist in navigating the ship from the Falkland Isles to a home port (the ship being then in the condition in the said first count mentioned), under and by virtue of certain articles of agreement before then lately made and entered into by and between the plaintiff and the defendant for wages and reward thereby made payable by the defendant to the plaintiff. And that such articles were in full force before and at the

time of the making of the agreement. And that the promise

1862.

[176]

TURNER

V.

OWEN.

[ 177 ]

[178]

declared upon was to pay wages over and above the wages mentioned in the articles. Issue.

Lawrence and Prendergast for the plaintiff.

M. Chambers and Brown for the defendant.

In February, 1860, the ship of which the defendant was owner was four years old, A. 1, copper bottom, 776 tons register. And in March she sailed from England for Otaheite, laden with coal, intending to bring home guano from the Chinchilla Islands. The crew consisted of nineteen hands, all of whom had signed articles for the voyage out and home.

On the 3rd July, on her return voyage, after taking in her return cargo, she met with rough weather, and on the 4th put into port at the Falkland Isles, making eight inches water, and with several sails split, yards broken, and other damage done, and moreover short of several hands through sickness. The crew refused to proceed, even with a promise of extra hands, considering the ship not safe. The leak being beneath the cargo could not be got at without taking out the cargo, and this was not done.

On the 28th August the crew consented to proceed home, on condition that four extra hands were taken; and these hands, of whom the plaintiff was one, signed articles in the usual way. On the 30th August, just before the ship sailed, the crew refused to proceed unless the captain would pay each man 57. extra for the voyage, and he agreed to do so, and signed a memorandum to that effect: "I agree to pay the crew as compensation for each man in the ship 51. for the passage home. (Signed) J. G., Master." To this it was added that the men were to do nothing but take in sails and work the pumps.

On the 31st August the ship sailed, still leaking, and leaking the whole way home.

The plaintiff was called, and it appeared that he had signed articles. He was asked as to a conversation between him and the captain before he had signed, in which he said he did not think the ship seaworthy, though the captain had represented to him that it was so.

Chambers objected that after articles had been signed evidence of previous parol representations was not admissible; but

COCKBURN, Ch. J., said:

When a man signs articles to go on board ship there is an implied warranty that the vessel is seaworthy.

The plaintiff stated that the captain had told him before he signed the articles that he would get more men, but that afterwards he said he could not get the full number of them, and then, after the signing of the articles, entered into the alleged agreement with the crew, which the plaintiff said was signed. in his presence, and in which, it will be observed, the extra money is promised as compensation; so that according to the case for the plaintiff the money was promised as compensation, not merely for services already agreed for under the articles, but for the non-performance of what might be deemed perhaps a previous warranty or stipulation, on the facts of which the articles had been signed, that a certain number of men should be engaged. The plaintiff stated that on the voyage home he had to work at the pumps constantly, and, in addition, he stated that the vessel was not seaworthy.

At the close of the case for the plaintiff, Chambers, for the defendant, submitted that there was no case, for that there was no implied warranty of seaworthiness, as between the owner and a seaman signing articles, especially when at a foreign port. And he cited Abbott on Shipping, p. 616.

COCKBURN, Ch. J., said, if after a seaman had signed articles he found that it was not safe to sail in the ship, he was not bound to sail in her. And if this was so, at all events, if the danger should be so imminent that he would be justified in deserting the ship, he might make a new contract, which would be valid, in consideration of his thus consenting to risk his life. Evidence was adduced on behalf of the defendant, that *there was a fair voyage home; that it would have been quite safe to come home with the old crew; and that the captain had more; and that after the repairs the ship was fit for the homeward voyage.

COCKBURN, Ch. J. (to the jury):

When a seaman has signed articles, he cannot claim extra remuneration for the same services as are included in the articles. On the other hand, when he signs articles it is implied, on the part of the owner, that the ship shall be reasonably fit for navigation, i.e., shall be seaworthy. And if, before the ship sets sail, the seaman discovers that she is one in which he cannot safely embark, he can refuse to do so, and enter into a new contract. The question seems, therefore, to turn upon the facts.

Was the ship seaworthy or not when the captain made the contract? Verdict for the defendant.

1862.

[188]

[ *189 ]

PEREZ v. ALSOP.

(3 F. & F. 188—190.)

The lien of a ship-owner for freight being entire, is not lost or waived by allowing part of the goods to be taken away on payment of a portion only of the freight, without some express contract with the express or implied authority of the ship-owner: And semble, that brokers with only the ordinary authority to receive freight, have no authority to enter into such a contract.

ACTION by shipper against master, on a bill of lading, 1st June, 1861, whereby the defendant promised the plaintiffs that goods of the plaintiffs shipped on board his ship at Seville should be delivered at London to the plaintiffs, or their assigns-he or they paying freight as per charter-party.

Breach Non-delivery of the goods to the plaintiffs or their assigns, on payment of freight as per charter-party.

Second count, that the defendant was in possession of goods of the plaintiffs, on which he had a lien for freight; and, in consideration that the plaintiffs would pay 657. to Ellis and Newman, the defendant promised them to deliver the goods to them.

Breach Non-delivery; whereby they had to pay more than was due, in order to get the goods.

Third count: in detinue.

Pleas (to each of the special counts): denying the contract and breach in each.

And, to the last count, setting up a lien on the goods.

Replication in denial, and new assignment-detention for different purposes; and also a further replication, setting up the agreement with Ellis and Newman, stated in the second count. Issue.

M. Smith and Dowdeswell for the plaintiff.

Collier and Hannen for the defendant.

The plaintiffs were Spanish merchants; the defendant was master of the ship.

On the 26th April, 1861, the ship, with four others, was chartered to Euthoneus, by Ellis and Newman as agents of the ship, for 1,200 tons of lead, at 16s. per ton, to sail from Seville on the 31st May, under a penalty of 51. a day for delay in being ready to load.

Euthoneus transferred their interest in the charter to the *plaintiffs, who were not ready to load the cargo in time to complete within the last day.

On the 7th June the ship sailed, the bill of lading being dated on the 6th. There was thus a delay of six days.

There was a conflict of evidence as to who was to blame for this delay.

On the 15th July, Ellis and Newman, the ship's agents, wrote to the plaintiffs that the ship had arrived, and asking them to take the lead as soon as possible.

The defendant, the captain, refused, however, to deliver the cargo until the full freight was paid, which came to 1067.

The plaintiffs claimed to deduct 301. for six days' penalty under the charter-party, which would leave 721. only due.

On the 20th July the plaintiffs went to Ellis and Newman, who said they could not settle the dispute, but that if the plaintiffs would pay 651. on account of freight, they would give an order as to the cargo, and the matter might afterwards be settled.

The plaintiffs paid the 657. to Ellis and Newman, and got a receipt on account of freight," and also a delivery order, upon which, however, the defendant, the master, refused to deliver more of their goods, the freight of which (1) that sum would cover.

Eventually the balance was paid under protest.

Collier, for the defendant, submitted that there was no evidence of an authority to dispense with a tender of the freight, as per charter-party, according to the bill of lading; and as to the supposed set-off for penalties, even if it could be sustained, it would leave a sum still due for freight above the sum paid, but it could not be sustained, for the plaintiffs were in fault and were liable to demurrage. And although the defendant could not detain the goods for demurrage, yet as they had a right to detain them for the balance of freight, the detention was not unlawful, and the money could not be recovered.

It appeared that the master, the defendant, had no knowledge of the arrangement with Ellis and Newman, nor had in any way authorized or adopted it, but, on the contrary, had dissented from it and disclaimed it, and he had only authorized them to receive freight.

MELLOR, J. (to the jury):

It may be taken that the defendant was not to blame as to the delay in loading. Then he was entitled to recover the full freight, and there is a lien for freight, although not for demurrage; so that he was not bound to deliver the goods, but on payment of the entire freight, unless by virtue of the agreement; as to which you are to consider whether it was by authority of the defendant, and whether, if so, it was absolute or (1) Sic.

PEREZ v.

ALSOP.

[190]