merely comment on the article which they have advertised to the public. In Malacky v. Soper (1), where a paragraph was published in a newspaper, falsely stating that the petition in a bill filed in the Court of Chancery against the plaintiff and certain other persons as shareholders in a mine, had been granted by the Vice Chancellor, and that persons duly auth.sed had arrived at the workings, it was held that as the slander did not affect the person or character of the plaintiff, it was not actionable without proof of special damage, and in Evans v. Harlow (2), where the action was for a publication by the defendant of a notice that certain self-acting lubri cators sold by the plaintiff were not good for their purpose, but wasted the tallow, it was held that the words were not a libel on the plaintiff, either generally or in the way of his trade, but were only a reflection upon the goods sold by him, which was not actionable without special damage. The same principle applies to the present

case.

[LUSH, J.-This is not a case of slander of title, and are not the words nothing more than an expression of the writer's opinion on the good taste of the advertisement?]

There is nothing to distinguish the remarks of the defendant from the ordinary criticisms on the titles of books and other publications, and such criticisms are generally supposed to be privileged.

Parry, Serjeant (J. O. Griffits with him), in support of the declaration.-The article is a spiteful attack on the plaintiff's in the way of their trade. Whether regarded as a libel on the goods which they sell, or on the mode in which they carry on their business, it is equally a cause of action. The words, "As we have not seen the Bag of Bags, we cannot say that it is useful, &c.," suggest that the plaintiff's have been guilty of misstatements, and to say that they have forced an article " upon the notice of the public ad nauseam," is a slander on the mode in which they conduct their business. In Ingram v. Lawson (3)

it was held that an action could be maintained in respect of a statement in a newspaper, that a ship of the plaintiff was unseaworthy.

[MELLOR, J., referred to Campbell v. Spottiswoode (4).]

It has been held actionable to publish words which throw discredit on the commodity in which the plaintiff deals -Tubart v. Tipper (5), Starkie on Libel, ed. 161.

Joyce, in reply.

6

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MELLOR, J.-I regret that in this case there should be a difference of opinion on the Bench, and if the action had rested on the first part of the paragraph, which is said to suggest that the plaintiffs' advertisement is untrue, I should certainly have thought that the words complained of were of too vague a character to be evidence of a libel for the jury. The words to which I refer are these, as we have not seen the Bag of Bags,' we cannot say that it is useful, or that it is portable, or that it is elegant; all these it may be." If the writer had stopped there I should have thought that the words could not be actionable, without some allegation that they were intended and calculated to convey an impression that the bag was not portable, or useful, or elegant, for it would not have been clear that the real meaning of the words might not be the reverse of that which the

plaintiffs' counsel has endeavoured to put upon them. But we must look at the succeeding words, which are as follows: "but the only point we can deal with is the title, which we think very silly, very slangy, and very vulgar, and which has been forced upon the notice of the public ad nauseam." The words were possibly not meant as an imputation on the plaintiff's, but I cannot help thinking that it is for the jury, and not for the Court, to decide whether these words do or do not go beyond the limits of fair criticism. The jury may hold that the criticism is not unfair, and that the plaintiff's have advertised their article in a manner which

(4) 2 B. & S. 776; s. c. 32 Law J. Rep. (N.s.) Q.B. 185.

(5) 1 Camp. B. Rep. 350.

is not altogether tradesmanlike, but on the other hand I cannot say that they would not also be justified in holding that the words do convey an imputation on the plaintiffs' mode of carrying on their business, and that they are therefore actionable. The jury may think this language calculated to bring the plaintiff's into odium, and to disparage them in the opinion of the public in respect of the manner in which they conducted their business. I should have been glad to see my way to a different conclusion, for I do not think that actions of slander and libel ought to be encouraged, but I cannot on demurrer hold that the declaration contains no matter for the consideration of the jury.

LUSH, J.-I am sorry to be compelled to differ from my learned brothers, but I cannot bring my mind to the conclusion that the article in question contains anything which is actionable, that is, which can fairly be construed to amount to a libel. I cannot find anything in it which conveys a personal imputation on the conduct of the plaintiffs, or which is calculated to damage them in the public estimation. If the words, fairly considered, are not capable of the construction which the plaintiffs put upon them, there is no case to go to the jury, and I confess that I am unable to see anything in this article which either conveys an imputation on the character of the plaintiffs or the mode in which they carry on their business. The writer begins by saying, "Let us premise our remarks by declaring that they are not a planned advertisement," which goes to shew that he did not think that they would generally be considered as defamatory. He goes on to say, as we have not seen the 'Bag of Bags,' we cannot say that it is usefl, or that it is portable, or that it is elegant; all these it may be." It has been argued that these words are ironical, and suggest that the bag is not what it is represented to be, but can we suppose that any reasonable person would put such an interpretation upon them? I think that to do so would be doing violence to the meaning of the words. The writer goes on, "The only point we can deal with is the title, which we think very silly, very slangy, and very vulgar, and

66

which has been forced on the notice of the public ad nauseam.”

Now are we to hold that it is libellous to publish such an observation as this? It appears to me that the defendant is merely expressing an opinion, and that if we decide that he is liable to an action for libel, we shall be bound to hold that it is libellous for a critic to say that the title given to a book is silly or vulgar. For these reasons, I think that there is no case for the jury, and that the defendant is entitled to judgment.

HANNEN, J.-I am of opinion that upon this declaration there is a question to be left to the jury, and that they have to determine whether the words were published in the exercise of a fair criticism, or whether the passage was written with the intention of unduly disparaging the plaintiffs. It seems to me that there is much to support the argument, that the words were not written as a fair criticism, but were intended to injure. In the first place, the title of an article sold by a tradesman does not usually attract the attention of critics, and it may be thought that the defendant was induced by some motive other than a regard for good taste to notice the name that has been given to an article of commerce. The writer says, "the title we think very silly, very slangy, and very vulgar, and it has been forced upon the notice of the public ad nauseam.” It is for the jury, taking into consideration all the circumstances, to say whether or not the words are intended to disparage the plaintiffs in the conduct of their

business.

Judgment for plaintiffs.

Attorneys-Hughes & Son, for plaintiffs; Evans, Laing & Eagles, for defendant.

1871.

Nov. 17.}

JOYCE AND OTHERS v. KENNARD.

Marine Insurance-Right to complete Indemnity- ·Insurance against Losses as

Carriers-Construction.

The plaintiffs, who were lightermen, caused themselves to be insured by a Lloyd's policy in the ordinary printed form, upon craft of every description "at and from all or any of the wharves, banks, quays, and places of arrival or departure in the river Thames, comprising the whole extent of the river from Wandsworth downwards to the Victoria Docks, including all or any intermediate docks and wharves, and vice until on versa, board merchant or any steam vessel, barge or boat, or otherwise landed at any wharf," &c. The policy was

66

on all goods and produce as interest may appear," and at the foot of it was written "to cover and include all losses, damages, and accidents, amounting to 20l. or upwards, on each craft, to goods carried by the plaintiffs as lightermen, or delivered to them to be water-borne either in their own or other craft, and for which losses, damages, and accidents the plaintiffs may be liable or responsible to the owners thereof or others interested. It is agreed that the amount of each underwriter's liability shall not exceed the amount of his subscription."

This policy was subscribed by various underwriters for different sums, amounting in the whole to 2,000l. The defendant underwrote it for 1001. During the continuance of the risk a loss occurred to goods carried by the plaintiffs as lightermen, for which loss the plaintiffs became responsible to the owners interested in the goods to the amount of 1,1001., and paid that amount. The total value of the interest of the plaintiffs in goods carried in this and other barges employed by them, amounted at the time of the loss to 20,000l. and upwards:-Held, that the policy was not properly a marine policy, but was intended to indemnify the plaintiffs against losses sustained by them as carriers, and that the defendant was liable to the extent of his subscription for the loss, and not merely to such a proportion of the loss as his subscription bore to the whole value of the plaintiffs' interest at the time of the loss.

NEW SERIES, 41.-Q.B.

S.G. £2000 "Delivered the 186 day of "No.

"Be it known that Smith, Sundius & Co., as agents as well in their own name as for and in the name or names of all and every other person or persons, to whom the same doth, may, or shall appertain in part or in all, doth make assurance and cause themselves and them and every of them to be insured, lost or not lost, at and from all or any of the wharves, banks, quays, and places of arrival or departure in the river Thames, and any merchant or steam vessel of any description therein, comprising the whole extent of the said river from Wandsworth downwards to the Victoria Docks, including all or any intermediate docks and wharves, and vice versa, until on board any merchant or steam vessel, barge or boat, or otherwise landed at any wharf, &c. The risk to commence on the 25th day of September, 1869, and terminate on the 24th day of September, 1870, including both days, upon any kind of goods and merchandises, and also upon the body, tackle, apparel, ordnance, munition, artillery, boat, and other furniture of and in the good ship or vessel called the craft, of every description whereof is master, under God, for this present voyage, or whosoever else shall go for master in the said ship, or by whatsoever other name or names the same ship or the master thereof is or shall be named or called, beginning the adventure upon the said goods and merchandises from the loading thereof aboard the said ship, as upon the said ship, &c., and shall so continue and endure during her abode there upon the said ship, &c., and further until the said ship, with all her ordnance, tackle, apparel, &c., and goods and merchandises whatsoever,

D

The

shall be arrived at, as above, upon the said ship, &c., until she hath moored at anchor twenty-four hours in good safety, and upon the goods and merchandises until the same be there discharged and safely landed. And it shall be lawful for the said ship, &c., in this voyage to proceed and sail to and touch and stay at any ports or places whatsoever and wheresoever in the river Thames from Wandsworth to the Victoria Docks, and vice versa, without prejudice to this insurance. said ship, &c., goods and merchandises, &c., for so much as concerns the assured by agreement between the assured and assurers in this policy, are and shall be valued at On all goods and produce as interest may appear. Touching the adventures and perils which we, the assurers, are contented to bear and do take upon us in this voyage; they are of the seas, men of war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mark and counter mark, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people of what nation, condition, or quality soever, barratry of the master and mariners, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said goods and merchandises, and ship, &c., or any part thereof; and in case of any loss or misfortune, it shall be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel for, in, and about the defence, safeguard, and recovery of the said goods and merchandises and ship, &c. or any part thereof, without prejudice to this insurance, the charges wereof we, the assurers, will contribute each one according to the rate and quantity of his sum herein assured. And it is agreed by us, the insurers, that this writing or policy of assurance shall be of as much force and effect as the surest writing or policy of assurance heretofore made in Lombard Street, or in the Royal Exchange, or elsewhere in London. And so we, the assurers, are contented, and do hereby promise and bind ourselves, each one for his own part, our heirs, executors, and goods, to the assured, their executors, administrators, and assigns, for the true performance of the premises, confessing ourselves paid the consideration due unto

us for this assurance by the assured, at and after the rate of seventy shillings per cent. In witness whereof we, the assurers, have subscribed our names and sums assured in London."

"7th October, 1869."

"To cover and include all losses, damages, and accidents amounting to 201. or upwards in each craft to goods carried by Messrs. W. A. Joyce & Son as lightermen, or delivered to them to be water borne, either in their own or other craft, and for which losses, damages, and accidents Messrs. W. A. Joyce & Son may be liable or responsible to the owners thereof, or others interested. It is agreed that the amount of each underwriter's liability shall not exceed the amount of his subscription."

This policy was subscribed by different underwriters for different sums amounting in the whole to 2,000l.

3. The defendant underwrote the policy for 1001., and received by way of premium the sum of 31. 10s.

4. On the 7th of December, 1869, and during the continuance of the risk covered by the policy, a loss, damage, and accident within the meaning of the policy, happened to goods carried by the plaintiffs as lightermen as aforesaid in a craft called The Lord Cardigan, and for which loss, damage, and accident the plaintiffs have become liable and responsible to the owners and others interested in the goods to the sum of 1,1007., and have paid that amount.

5. It is agreed that the total value of the risks of the plaintiffs in this and other barges employed by the plaintiffs at the time of the loss, and which were covered by the policy, amounted to the sum of 20,000l. and upwards.

6. The total value of the goods in the barge The Lord Cardigan at the time of the loss was 2,9061.

7. The plaintiffs contend that upon the true construction of the policy they are entitled to be indemnified for the loss actually sustained, viz., 1,1007., and to recover from the defendant 551. as his proportion of such loss.

8. The defendant contends that under the policy sued on, the plaintiffs are only entitled to recover from the defendant

such a proportion of their loss as the sum for which the defendant subscribed the policy, viz., 1001., bears to the total value of all the goods on board all the plaintiff's craft which were between the limits mentioned in, and which were covered by the policy at the time of the loss before mentioned, and have paid into Court the sum of Gl., which is admitted to be sufficient to satisfy the plaintiff's claim, assuming this contention to be correct.

9. The defendant further contends that in any view the plaintiffs are not entitled to more than such proportion of the loss as 1007., the sum insured, bears to the total value in the barge, viz., 2,9067.

10. The Court is at liberty to draw all inferences of fact which a jury ought to have drawn.

The question for the opinion of the Court is, which of the principles above referred to is the proper principle upon which the amount to be recovered by the plaintiffs ought to be settled.

If the Court should be of opinion that the plaintiffs are only entitled to recover such proportion of the loss as 1007. bears to the total amount at risk, namely, 20,0007., then judgment is to be entered. for the defendant with costs of defence.

If the Court should be of opinion that the plaintiffs are entitled to recover such a proportion of the loss as 1001. bears to the total value of the goods in the barge, then judgment is to be entered for the plaintiffs for 317. 19s. 3d., in addition to the sum of 61. paid into Court with costs of suit, and if the Court should be of opinion that the plaintiffs are entitled to recover the proportion of the actual loss as contended for by the plaintiffs, judg ment is to be entered for the plaintiffs for the sum of 491., in addition to the 67. paid into Court with costs of suit.

Quain (A. L. Smith with him), for the plaintiffs. The policy in question is in a peculiar form, and the question is whether it was merely intended to cover the ordinary marine risk, or all the risks which the plaintiffs ran in their business as carriers. The latter construction is the right one. The policy is the ordinary Lloyd's policy, adapted to the peculiar risk incurred by the plaintiffs, and it will be observed that it is upon goods lost at

But

and from all or any of the wharves, quays, &c., until on board any merchant or steam vessel, or otherwise landed at any wharf, &c., and at the bottom of the policy are the important words, "to cover and include all losses, damages, &c., amounting to 201. or upwards in each craft, to goods carried by Messrs. Joyce as lightermen, or delivered to them to be waterborne, either in their own or other craft, and for which losses, &c., Messrs. Joyce may be liable or responsible to the owners thereof or others interested." Now the underwriters contend that although the plaintiffs have become liable to the owners of goods carried by them to the amount of 1,1007., they are only entitled to recover 1207. The only case which appears to have the slightest bearing on the subject is Crowley v. Cohen (1), which will probably be cited by the defendant. that case is distinguishable. There the policy was for 12,000l. on goods in canal boats, as interest may appear hereafter to pay average on each package or description as if separately insured, warranted free from damage or loss that may arise from or be occasioned by rain, snow," &c. And it was held that the assured were entitled to recover the proportion which 12,000l. bore to the value of the goods afloat at the time of the loss, and not the proportion which it bore to the value of goods afloat during the year. But that was the case of an ordinary canal navigation risk; it did not extend to the plaintiffs' liability as carriers. Here the policy applies to future losses for which the plaintiffs might be answerable as carriers on wharf, quay, dock, or river; there the policy was confined to risks on the canal only. In Wilson v. Jones (2), where the question was whether a policy by a shareholder in a telegraph company on a submarine cable, was to be construed as the ordinary marine policy, in which case there had been no total loss of the cable, or as a policy on the undertaking of laying down the cable successfully; it was held that the latter construction was the better one, although