having charge of the cargo, assuming that there was any legal duty imposed upon him to take active steps for that purpose.

During the stay of the vessel at Liverpool the shippers, who were on the spot, called the shipowner's attention, through their agent, also on the spot, to the state of the beans, and to the fact that they would be seriously injured unless dried at once, and they requested that either the beans should be taken out and dried and then reshipped for Glasgow, or that they should be delivered at Liverpool at a proportionate freight, so that the shippers might dry them for themselves. The shipowners refused to accede to either alternative. They offered to deliver at Liverpool upon being paid the whole freight, but insisted that unless the whole freight was paid they had a right to retain and carry on the beans undried, and getting worse for want of drying, as they were, in order to earn the whole freight upon arrival at Glasgow, provided the beans arrived in specie, whatever might be their condition.

The shippers refused to pay more than the freight pro rata, and the shipowners took on the beans without drying them, and thereby occasioned further damage to the beans, which, quite exclusive of the damage proximately and necessarily caused by the collision, and limited to the consequence of the neglect to dry (of course calculated after allowing for the estimated expense of unshipping, drying, and reshipping), has by consent been assessed at 6661. 1s. 5d.

The value of the cargo at Glasgow, but for the collision and its results proximate and remote, would have been 3,500l. The value in the state in which it arrived was 1,1677. 78. 8d. The entire loss caused, whether proximately or remotely, by the collision was, therefore, 2,3327. 128. 4d., out of which the remote loss caused by neglect to dry amounts to 6661. 18. 5d. The shippers do not claim in respect of the damage necessarily caused by the collision and its unavoidable results, but only for the estimated aggravation of that damage, by reason of nothing having been done in the way of drying, to arrest or mitigate decomposition, and for that

amount, 666l. 18. 5d., they obtained judg ment in the Court of Queen's Bench.

Upon that judgment the shipowners have assigned error, alleging that they were entitled to retain and take on the beans in their wet state, and were not bound to do anything to check the damage occasioned by the collision. The case was very fully and ably argued by Mr. Field, for the defendants, and Mr. Milward, for the plaintiffs, before the Lord Chief Baron; Martin, B.; Channell, B.; Cleasby, B.; and Willes, J.; Byles, J.; and Keating, J., and we took time to consider our judgment. The question thus raised is a compound one of law and fact: first, of law-whether there be any duty on the part of the shipowners through the master to take active measures to prevent the cargo from being spoilt by damage originally occasioned by sea accidents, without fault on their part, and for the proximate and unavoidable effects of which accident they are exempt from responsibility by the terms of the bill of lading; and secondly, of fact-whether if there be such a duty, there was under the circumstances of this case a breach thereof in not drying the beans. The law up to a certain point is clear and well settled by authority. The shippers, though upon the spot, were not entitled to the possession of the beans for any purpose without paying the full freight to Glasgow. That freight was not due, but the shipowners were entitled to retain the goods as a security for earning it. The offer of pro rata freight may have been reasonable, but it was one which the shipowners were not bound to accept, and it must be treated as an attempt to compromise, not affecting the rights of the parties, though it may bear upon the reasonableness of the course pursued, assuming such reasonableness to be material in determining the question of neglect.

It was argued for the shipowners that the fact of the shippers being on the spot negatived, any implied duty on the part of the master, as agent of necessity, to take care of the goods; but this argument will not bear examination. The shippers were present, but they could not lawfully touch the goods without leave. The shipowners refused to let

them do so without payment of a sum not yet earned, and insisted upon retaining the goods, with the rights and consequently the duties of the original bailment, whatever those might be. The shippers thereupon insisted upon the goods being properly taken care of by the shipowners, who retained the control of them as a pledge for their freight.

That a duty to take care of the goods generally exists, cannot be doubted; and the question raised is, whether it extends to incurring expense and trouble in preserving the cargo from destruction or serious deterioration from the

conse

quences of sea accident, for which originally the shipowners were not liable, by unshipping and drying it, when that is a reasonable and ordinary course to take, and would certainly have been adopted by the shippers if the whole adventure had been under their control and at their risk.

It is remarkable that upon a question so familiar to persons conversant with maritime affairs, and which has so constantly to be considered from another point of view in settling claims upon policies of insurance, the reported authorities in this country, so far as regards the mutual rights and liabilities of shipper and shipowner, should be so rare. The only case in which it was much discussed is that of Tronson v. Dent (2). That was an action by shipper against master for non-delivery of goods pursuant to a bill of lading. The vessel, The Erin, left Calcutta for Hong Kong, partly laden with opium, suffered damage by collision, and was obliged to put into Singapore for repair. Part of the opium was damaged by salt water to such an extent that the master, acting honestly, thought proper to sell it, and the amount realised by the sale was paid into Court. The shipper, however, insisted upon recovering the value of the opium at the port of discharge, and proceeded to trial, where evidence was given that the opium might have been carried on in specie, at least, if dried during the stay for repairs. The Chief Justice directed the jury in effect that if the

master could "with reasonable exertion" have brought on the damaged opium in the marketable state of opium, either in NEW SERIES, 41.-Q.B.

the Erin or in some other vessel, he should have done so. The jury found for the plaintiff, and an appeal was brought to the Judicial Committee upon, amongst other grounds, misdirection, and that the verdict was against the weight of evidence. The direction was criticised in the judgment delivered by Sir John Patteson as follows:-"An objection that is made to his summing up is with respect to these words with reasonable exertion,' and it is assumed that by the words 'reasonable exertion' he told the jury that it was the master's duty to have transhipped the goods, or at least that it was his duty to have dried the opium; and if it took two months to have dried the opium, it was his duty so to have done after he himself had left the place, because he clearly was not bound to keep the ship there for the purpose of doing so. If the ship could have been repaired in twelve days, of course he could have gone on at the end of those twelve days; but he was bound to get somebody to attend to the drying of the opium, and then to forward it to Hong Kong. I think it is a great stretch of ingenuity to say the words' reasonable exertion' mean all that. I do not know what the words 'reasonable exertion' actually and necessarily import, but certainly there was some exertion which it was the master's duty to have made on that occasion. It is stated, I think, by foreign authorities, that it is the master's duty to tranship; but doubt is raised as to that; and in our Courts it should seem to be considered that he is quite at liberty to do so, and that if he does tranship he would be protected in doing so, if it turns out in the opinion of the jury that it was the proper course of dealing with the goods, but that he is not positively bound to do so. If his own ship cannot carry them on at all, he may either leave goods which are not perishable or sell goods which are in their nature porishable which cannot be carried on, which must of course be sold, but that is not the case here, But although he may not be bound to tranship, he is at liberty to do so. In other cases it has been held that he ought to take all proper care of the cargo, but there is no authority that I know of which distinctly shews

Y

some

that he is bound to lay out a great deal of money in order to endeavour to repair the damage done to the cargo, either by drying or in any other way. While the cargo is there he may not have the means of doing so. He is bound to ventilate it, and so on, but that, I apprehend, is while it is on board the ship. And I think, if I am not mistaken, there is case of a ship in Ireland, where there was a cargo of corn, and the question was, whether it could be kiln-dried, and whether the master was bound to kiln-dry it there. The case did not turn on whether he was bound to do so; but if I remember the case, he had done it, and the question was, whether he was at liberty to do so. It was clear he was at liberty to do so, and here he would have been at liberty to have taken steps to dry this opium during the twelve days he was at Singapore. Whether he was bound to do it or not need not be determined in this case; nor do I find that it was laid down by the judge, at least I cannot collect from his language here that he laid down to the jury that the master was bound to do any such thing, but merely that he was bound to use reasonable exertion to have brought the opium on. It is, in order to be carried on, taken out of the vessel; therefore, if by reasonable exertion he could have dried the outside of the chests, and put them back into the vessel, afterwards to be taken to Hongkong, he was bound surely to use that 'reasonable exertion' at all events. On the whole question I think we should be justified in saying that he really did tell the jury that he was not bound to tranship, or to lay out a great deal of money in the drying of the opium, but that he was bound to carry it on, if it could be carried on, in a merchantable state."

Upon this construction the direction was sustained, and the judgment was affirmed. The judgment of the Judicial Committee, though it does not define the duty of the master, does not disaffirm his duty to take reasonable care, whether passive or active, to save and preserve a cargo damaged by sea accidents. The effect of the decision appears to be that the duty of the master to use reasonable exertion, to preserve the

goods, if necessary, by drying them, so as to make them capable of being taken on in specie, was recognised, though the limit of the duty was left unsettled. It was suggested, indeed, that the duty of taking active measures, such as ventilating the cargo, ordinarily applied to doing so on board the ship, and that under no circumstances was the master bound to lay out a great deal of money" (limit not stated), in drying the cargo. It was assumed that the master was not bound, under the circumstances of that case, to delay beyond the time necessary for the repairs of the vessel. This assumption, however, can hardly be taken as intended for a proposition of law universally applicable, but rather as applicable to the cir cumstance that the opium then in question was only a part of the cargo, and that delay would be unreasonable to persons equally entitled to consideration as the plaintiff. The existence of such duty to take active measures for the preservation of the cargo from loss or deterioration in case of accidents is, however, distinctly recognised in the maritime law in one important particular, wherein it follows the civil law, which, though it be not recognised as jus commune, either here or abroad, in mercantile or maritime affairs (see Baldasseroni, leggi del cambio, 31) has been the source of many valuable rules, namely, that the master may incur expense for the preservation of the cargo, and may charge such expense against the owner of the cargo in the form of particular average. This maritime right is, in

one point of view, analogous to that of salvage, and it may be urged that the services in respect of which it is rendered should, as in the case of salvage, be looked upon as optional, and not obligatory. There is, however, this marked distinction, that the master, as representing the shipowner, has the charge of the goods under contract for the joint benefit of the shipowner and shipper, and falls within the class of persons who are under obligation to take care of and preserve the goods as bailees (Pothier, Obligations, Art. 142, and Nantissement, Art. 29, et seq.; and as to extraordinary expenses, Art. 60, 61; and also under the special head of care imposed upon masters, Louages Maritimes,

Charte-partie, Art. 31.) This obligation on the part of the master has been commonly recognised, both in respect of preserving goods on board in a state of safety by pumping, ventilation and other proper means, and of saving goods which by accident have been exposed to danger. Thus, even in case of wreck, it is laid down, in a work on sea laws, approved by Lord Stowell (1 Hagg. Adm. p. 232) that the master 66 ought to preserve the most valuable goods first, and by attention and presence of mind endeavour to lessen the evil, and save, or help to save, as much as possible": Jacobsen, book ii., chap. 1, p. 112. It is recognised in the French Code generally, in Art. 222, and as to the right to charge the cargo with particular average, for extraordinary expenses incurred to preserve it, in Art. 403; in the Spanish Code, in Art. 935, as to like expenses; and in the German Mercantile Code, with its usual good sense and fulness, in Art. 504; where the duty of the master to take care of and preserve the cargo for its owners, at their expense (Art. 722), in case of accident, and for avoiding or lessening the loss thereby occasioned, is specially enforced and provided for, to an extent, perhaps, beyond what our own law has yet been held to recognise. The master is to take every possible care of the cargo during the voyage, in the interests of all concerned. When special measures are required to avoid or lessen a loss, he is to protect the interests of the owners of the cargo, as their representative, under their direction, if pos sible, otherwise according to his own discretion, giving an account of what he has done. He is, in such cases, specially authorised to discharge all or part of the cargo. In extreme cases, to avert considerable (erheblicher) loss, on account of imminent deterioration or other causes, he may resort to sale or hypothecation to procure means for its preservation or transport. He is to reclaim it in case of capture or detention, and to take all extra physical or judicial steps for its recovery if otherwise taken out of his charge. There are unquestionably cases in which the exercise of such a duty would be incumbent upon the master, as represent

ing the owners of the 'ship and for their interests, as, for instance, in the case of a perishable cargo so damaged by salt water that it could not, in its existing state, be taken forward in specie to the port of discharge, so as to earn the freight, but which could, at an expense considerably less than the freight, be dried and carried on. In such a case, to earn the freight, it might be for the interest of the owner of the ship to save the cargo by drying. To sell it, or abandon it, would give no right to freight, pro rata, against the owner of the cargo, nor any right to recover against the underwriter upon freight; Mordy v. Jones (16), recognised in Philpott v. Swann (17). In Mordy v. Jones (16), the cargo was so damaged that it would have cost more than the freight, though less than the value of the cargo, to restore it, and no question arose as to the right of the owner of the cargo because he consented to the sale. But we are at present supposing a case in which it would have been for the shipowner's interest to dry and save the goods; as, if the freight were 1,000l., the expense of drying 1001., and the rest of the voyage so long that, but for the drying, fermentation would destroy the specific character of the cargo before arrival. In such a case, if the process were also for the benefit of the owner of the cargo, the expenses would have fallen, according to the ordinary practice, upon the cargo as particular average. It is clear, therefore, that there are cases in which it is the duty of the master to save and dry the cargo, even as between him and his owner, though the expense of his performing that duty fall upon the cargo saved. Can it be that this duty of taking care of the cargo by active measures if necessary, at the expense of the cargo, is owing only to the shipowner, or that it is other than a duty to take reasonable care of the cargo, both in its sound state, and in arresting the damage to which it has become liable by accident of the sea, for the benefit of all who are concerned in the adventure? In the result it appears

66

to us that the duty of the master in this respect, is not, like the authority to tranship, a power for the benefit of the shipowner only to secure his freight — De Cuadra v. Swann (18), but a duty imposed upon the master, as representing the shipowner, to take reasonable care of the goods intrusted to him, not merely in doing what is necessary to preserve them on board the ship during the ordinary incidents of the voyage, but also in taking reasonable measures to check and arrest their loss, destruction or deterioration by reason of accidents, for the necessary effects of which there is, by reason of the exception in the bill of lading, no original liability. The exception in the bill of lading was relied upon in this Court as completely exonerating the shipowner, but it is now thoroughly settled that it only exempts him from the absolute liability of a common carrier, and not from the consequences of the want of reasonable skill, diligence and care, which want is popularly described as 'gross negli gence." This is settled, so far as the repairs of the ship are concerned, by the judgment of Lord Wensleydale in Worms v. Storey (4), as to her navigation, by a series of authorities collected in Grill v. The General Iron Screw Collier Company (19), and as to her management so far as affects the case of the cargo itself, in Laurie v. Douglas (20), where the Court (in a judgment unfortunately not reported at large), upheld a ruling of Pollock, C.B., that the shipowner was only bound to take the same care of the goods as a person would of his own goods, namely, "ordinary and reasonable care." These authorities, and the reasoning upon which they are founded, are conclusive to shew that the exemption is from liability for loss which could not have been avoided by reasonable care, skill and diligence, and that it is inapplicable to the case of a loss arising from the want of such care, and the sacrifice of the cargo by reason thereof, which is the subject matter of the present complaint. It was also argued that, if there was any default of duty, it

(18) 16 Com. B. Rep. N.S. 772.

(19) 35 Law J. Rep. (N.s.) C.P. 321 ; s. c. (Ex. Ch.) 37 Law J. Rep. (N.s.) C.P. 205. (20) 15 Mee. & W, 746.

was the fault of the master exclusively, and not of the shipowners. This argument might have had some plausibility, if the vessel had been wrecked or abandoned, and the objectionable conduct of the master had not taken place in the course of his employment, and for the supposed benefit of his owners. The master is the general agent of the owner for the purpose of the voyage, and for the exercise of that agency is intrusted with powers, to be used at his discretion, in which the owner who selects him is satisfied to confide. If, therefore, the master exercises a power which circumstances might justify, so that it is within the general scope of his functions, and it turns out that the facts do not warrant its exercise in the particular instance, as, for instance, if he unnecessarily throw goods overboard in a panic, or sell goods without justifying need, the owners are held liable for his acts, according to the rule, Omnia facta magistri debet præstare qui eum proposuit, Pothier, Louages Maritimes, 48; Ewbank v. Nutting (6); and for a like reason they must be liable for his culpable omissions.

For these reasons we think the shipOwners are answerable for the conduct of the master in point of law, if, in point of fact, he was guilty of a want of reasonable care of the goods in not drying them at Liverpool. This raises, in the end, the question of fact, whether there was a breach of the duty thus affirmed; a question which, though properly one for a jury, we are, under the powers given in the special case, to draw inferences of fact, and the 32nd section of the Common Law Procedure Act, 1854, bound to determine. It is obvious that the proper answer must depend upon the circumstances of each particular case, and that the question whether active special measures ought to have been taken to preserve the cargo from growing damage by accident, is not determined simply by shewing damage done and suggesting measures which might have been taken to prevent it. A fair allowance ought to be made for the difficulties in which the

master may be involved. The performance of such a duty, whether it be for the joint benefit of the shipowner and the