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having charge of the cargo, assuming amount, 6661. 18. 5d., they obtained judg. that there was any legal duty imposed ment in the Court of Queen's Bench. upon him to take active steps for that Upon that judgment the shipowners purpose.
have assigned error, alleging that they During the stay of the vessel at Liver- were entitled to retain and take on the pool the shippers, who were on the spot, beans in their wet state, and were not called the shipowner's attention, through bound to do anything to check the damage their agent, also on the spot, to the state of occasioned by the collision. The case was the beans, and to the fact that they would very fully and ably argued by Mr. Field, be seriously injured unless dried at once, for the defendants, and Mr. Milward, for and they requested that either the beans the plaintiff's, before the Lord Chief should be taken out and dried and then Baron; Martin, B.; Channell, B.; Cleasby, reshipped for Glasgow, or that they B.; and Willes, J.; Byles, J.; and Keatshould be delivered at Liverpool at a pro- ing, J., and we took time to consider our portionate freight, so that the shippers judgment. The question thus raised is might dry them for themselves. The a compound one of law and fact: first, of shipowners refused to accede to either law-whether there be any duty on the alternative. They offered to deliver at part of the shipowners through the Liverpool upon being paid the whole master to take active measures to prefreight, but insisted that unless the whole vent the cargo from being spoilt by freight was paid they had a right to retain damage originally occasioned by sea acand carry on the beans undried, and cidents, without fault on their part, and getting worse for want of drying, as they for the proximate and unavoidable effects were, in order to earn the whole freight of which accident they are exempt from upon arrival at Glasgow, provided the responsibility by the terms of the bill of beans arrived in specie, whatever might lading; and secondly, of fact-whether be their condition.
if there be such a duty, there was under The shippers refused to pay more than the circumstances of this case a breach the freight pro rata, and the shipowners thereof in not drying the beans. The took on the beans without drying them, law up to a certain point is clear and and thereby occasioned further damage to well settled by authority. The shippers, the beans, which, quite exclusive of the though upon the spot, were not entitled damage proximately and necessarily to the possession of the beans for any caused by the collision, and limited to the purpose without paying the full freight consequence of the neglect to dry (of to Glasgow. That freight was not due, course calculated after allowing for the but the shipowners were entitled to retain estimated expense of unshipping, drying, the goods as a security for earning it. and reshipping), has by consent been The offer of pro rata freight may have assessed at 6661. 18. 5d.
been reasonable, but it was one which the The value of the cargo at Glasgow, but shipowners were not bound to accept, and for the collision and its results proximate
it must be treated as an attempt to comproand remote, would have been 3,5001. The mise, not affecting the rights of the parvalue in the state in which it arrived was ties, though it may
the reason1,1671. 78. 8d. The entire loss caused, ableness of the course pursued, assuming whether proximately or remotely, by the such reasonableness to be material in collision was, therefore, 2,3321. 128. 4d., determining the question of neglect. out of which the remote loss caused by It was argued for the shipowners that neglect to dry amounts to 6661. ls. 5d. the fact of the shippers being on the spot The shippers do not claim in respect of negatived, any implied duty on the part the damage necessarily caused by the of the master, as agent of necessity, to collision and its unavoidable results, but take care of the goods ; but this arguonly for the estimated aggravation of that ment will not bear examination. The damage, by reason of nothing having shippers were present, but they could been done in the way of drying, to arrest not lawfully touch the goods without or mitigate decomposition, and for that leave. The shipowners refused to let
them do so without payment of a sum the Erin or in some other vessel, he should not yet earned, and insisted upon retain- have done so.
The jury found for the ing the goods, with the rights and conse- plaintiff
, and an appeal was brought to the quently the duties of the original bail- Judicial Committee upon, amongst other ment, whatever those might be. The grounds, misdirection, and that the vershippers thereupon insisted upon the goods dict was against the weight of evidence. being properly taken care of by the ship- The direction was criticised in the judg. owners, who retained the control of them ment delivered by Sir John Patteson as as a pledge for their freight.
follows:-“An objection that is made to That a duty to take care of the goods his summing up is with respect to these generally exists, cannot be doubted; and words with reasonable exertion,' and it the question raised is, whether it extends is assumed that by the words reasonable to incurring expense and trouble in pre- exertion ’ he told the jury that it was the serving the cargo from destruction or master's duty to have transhipped the serious deterioration from the conse- goods, or at least that it was his duty to quences of sea accident, for which originally have dried the opium ; and if it took two the shipowners were not liable, by un- months to have dried the opium, it was shipping and drying it, when that is a his duty so to have done after he himself reasonable and ordinary course to take, had left the place, because he clearly was and would certainly have been adopted not bound to keep the ship there for the by the shippers if the whole adventure purpose of doing so. If the ship could had been under their control and at their have been repaired in twelve days, of risk.
course he could have gone on at the end It is remarkable that upon a question of those twelve days; but he was bound so familiar to persons conversant with to get somebody to attend to the drying maritime affairs, and which has so con. of the opium, and then to forward it to stantly to be considered from another Hong Kong. I think it is a great stretch point of view in settling claims upon poli- of ingenuity to say the words . reasonable cies of insurance, the reported authorities exertion' mean all that. I do not know in this country, so far as regards the what the words reasonable exertion' mutual rights and liabilities of shipper actually and necessarily import, but cer. and shipowner, should be so rare. The tainly there was some exertion which it only case in which it was much discussed was the master's duty to have made on is that of Tronson v. Dent (2). That was that occasion. It is stated, I think, by an action by shipper against master for foreign authorities, that it is the master's non-delivery of goods pursuant to a bill duty to tranship; but doubt is raised of lading. The vessel, The Erin, left Cal- as to that; and in our Courts it should cutta for Hong Kong, partly laden with seem to be considered that he is quite at opium, suffered damage by collision, and liberty to do so, and that if he does tranwas obliged to put into Singapore for re- ship he would be protected in doing so, if pair. Part of the opium was damaged it turns out in the opinion of the jury by salt water to such an extent that the that it was the proper course of dealing master, acting honestly, thought proper to with the goods, but that he is not posisell it, and the amount realised by the sale tively bound to do so. If his own ship was paid into Court. The shipper, how- cannot carry them on at all, he may either ever, insisted upon recovering the value of leave goods which are not perishable or the opium at the port of discharge, and sell goods which are in their nature perishproceeded to trial, where evidence was able which cannot be carried on, which given that the opium might have been must of course be sold, but that is carried on in specie, at least, if dried not the case here, But although he during the stay for repairs. The Chief may not be bound to tranship, he is at Justice directed the jury in effect that if the liberty to do so. In other cases it has master could “with reasonable exertion" been held that he ought to take all proper have brought on the damaged opium in care of the cargo, but there is no autħothe marketable state of opium, either in rity that I know of which distinctly shews New SERIES, 41.-Q.B.
that he is bound to lay out a great deal goods, if necessary, by drying them, so as of money in order to endeavour to repair to make them capable of being taken on the damage done to the cargo, either by in specie, was recognised, though the drying or in any other way. While limit of the duty was left unsettled. It the cargo is there he may not have the was suggested, indeed, that the duty of means of doing so. He is bound to ven- taking active measures, such as ventilating tilate it, and so on, but that, I apprehend, the cargo, ordinarily applied to doing so is while it is on board the ship. And I on board the ship, and that under no cirthink, if I am not mistaken, there is cumstances was the master bound to lay case of a ship in Ireland, where out a “great deal of money
(limit not there was a cargo of corn, and the ques. stated), in drying the cargo. tion was, whether it could be kiln-dried, assumed that the master was not bound, and whether the master was bound to under the circumstances of that case, to kiln-dry it there. The case did not turn delay beyond the time necessary for the on whether he was bound to do so; but repairs of the vessel. This assumption, if I remember the case, he had done it, however, can hardly be taken as intended and the question was, whether he was at for a proposition of law universally appliliberty to do so. It was clear he was at cable, but rather as applicable to the cirliberty to do so, and here he would have cumstance that the opium then in question been at liberty to have taken steps to dry was only a part of the cargo, and that this opium during the twelve days he delay would be unreasonable to persons was at Singapore. Whether he was bound equally entitled to consideration as the to do it or not need not be determined in plaintiff. The existence of such duty to this case ; nor do I find that it was laid take active measures for the preservation down by the judge, at least I cannot col- of the cargo from loss or deterioration in lect from his language here that he laid case of accidents is, however, distinctly down to the jury that the master was recognised in the maritime law in one imbound to do any such thing, but merely portant particular, wherein it follows the that he was bound to use reasonable exer. civil law, which, though it be not recogtion to have brought the opium on. It nised as jus commune, either here or is, in order to be carried on, taken out of abroad, in mercantile or maritime affairs the vessel ; therefore, if by reasonable (see Baldasseroni, leggi del cambio, 31) exertion he could have dried the outside has been the source of many valuable of the chests, and put them back into the rules, namely, that the master may incur vessel, afterwards to be taken to Hong- expense for the preservation of the cargo, kong, he was bound surely to use that and may charge such expense against the * reasonable exertion' at all events. On owner of the cargo in the form of partithe whole question I think we should be cular average. This maritime right is, in justified in saying that he really did one point of view, analogous to that of tell the jury that he was not bound to salvage, and it may be urged that the sertranship, or to lay out a great deal of vices in respect of which it is rendered money in the drying of the opium, but should, as in the case of salvage, be looked that he was bound to carry it on, if it upon as optional, and not obligatory. could be carried on, in a merchantable There is, however, this marked distinction, state."
that the master, as representing the shipUpon this construction the direction was owner, has the charge of the goods under sustained, and the judgment was affirmed. contract for the joint benefit of the shipThe judgment of the Judicial Committee, owner and shipper, and falls within the though it does not define the duty of the class of persons who are under obligation master, does not disaffirm his duty to take to take care of and preserve the goods as reasonable care, whether passive or active, bailees: (Pothier, Obligations, Art. 142, to save and preserve a cargo damaged by and Nantissement, Art. 29, et seq. ; and sea accidents. The effect of the decision as to extraordinary expenses, Art. 60, 61 ; appears to be that the duty of the master and also under the special head of care to use reasonable exertion, to preserve the imposed upon masters, Louages Maritimes,
Charte-partie, Art. 31.) This obligation ing the owners of the ship and for their on the part of the master has been com- interests, as, for instance, in the case of a monly recognised, both in respect of pre- perishable cargo so damaged by salt water serving goods on board in a state of safety that it could not, in its existing state, be by pumping, ventilation and other
proper taken forward in specie to the port of means, and of saving goods which by discharge, so as to earn the freight, but accident have been exposed to danger. which could, at an expense considerably Thus, even in case of wreck, it is laid less than the freight, be dried and carried down, in a work on sea laws, approved In such a case, to earn the freight, by Lord Stowell (1 Hagg. Adm. p. 232) it might be for the interest of the owner that the master ought to preserve of the ship to save the cargo by drying. the most valuable goods first, and by To sell it, or abandon it, would give no attention and presence of mind en- right to freight, pro rata, against the deavour to lessen the evil, and save, or owner of the cargo, nor any right to rehelp to save, as much as possible": Jacob- cover against the underwriter upon sen, book i., chap. 1, p. 112. It is re- freight; Mordy v. Jones (16), recognised cognised in the French Code generally, in Philpott v. Swann (17).
In Mordy in Art. 222, and as to the right to charge V. Jones (16), the cargo was
so dathe cargo with particular average, for maged that it would have cost more extraordinary expenses incurred to pre- than the freight, though less than the serve it, in Art. 403 ; in the Spanish value of the cargo, to restore it, and Code, in Art. 935, as to like expenses ; no question arose as to the right of the and in the German Mercantile Code, with owner of the cargo because he consented its usual good sense and fulness, in Art. to the sale. But we are at present sup504; where the duty of the master to posing a case in which it would have been take care of and
for for the shipowner's interest to dry and its owners, at their expense (Art. 722), save the goods; as, if the freight were in case of accident, and for avoiding or 1,0001., the expense of drying 1001., and Jessening the loss thereby occasioned, is the rest of the voyage so long that, but specially enforced and provided for, to an for the drying, fermentation would destroy extent, perhaps, beyond what our own the specific character of the cargo before law has yet been held to recognise. The arrival. In such a case, if the process master is to take every possible care of were also for the benefit of the owner of the cargo during the voyage, in the in- the cargo, the expenses would have fallen, terests of all concerned. When special according to the ordinary practice, upon measures are required to avoid or lessen the cargo as particular average. It is a loss, he is to protect the interests of clear, therefore, that there are cases in the owners of the cargo, as their repre- which it is the duty of the master to save sentative, under their direction, if pos- and dry the cargo, even as between him sible, otherwise according to his own dis- and his owner, though the expense of his cretion, giving an account of what he has
performing that duty fall upon the
cargo done. He is, in such cases, specially saved. Can it be that this duty of taking authorised to discharge all or part of the care of the cargo by active measures if cargo. In extreme cases, to avert con- necessary, at the expense of the cargo, is siderable (erheblicher) loss, on account owing only to the shipowner, or that it is of imminent deterioration or other causes, other than a duty to take reasonable he
resort to sale or hypothecation to care of the cargo, both in its sound state, procure means for its preservation or and in arresting the damage to which it
He is to reclaim it in case of has become liable by accident of the sea, capture or detention, and to take all extra for the benefit of all who are concerned physical or judicial steps for its recovery in the adventure? In the result it appears if otherwise taken out of his charge. There are unquestionably cases in which
(16) 4 B. & C. 394. the exercise of such a duty would be in
(17) 11 Com. B. Rep. N.S. 281; s.c. 30 Law J. cumbent upon the master, as represent- Rep. (N.s.) C.P. 358.
to us that the duty of the master in this was the fault of the master exclusively, respect, is not, like the authority to tran- and not of the shipowners. This argnship, a power for the benefit of the ship- ment might have had some plausibility, if owner only to secure his freight — De the vessel had been wrecked or abandoned, Cuadra v. Swann (18), but a duty im- and the objectionable conduct of the masposed upon the master, as representing ter had not taken place in the course of the shipowner, to take reasonable care of his employment, and for the supposed the goods intrusted to him, not merely in benefit of his owners, The master is the doing what is necessary to preserve them general agent of the owner for the puron board the ship during the ordinary in. pose of the voyage, and for the exercise cidents of the voyage, but also in taking of that agency is intrusted with powers, reasonable measures to check and arrest to be used at his discretion, in which the their loss, destruction or deterioration by owner who selects him is satisfied to con. reason of accidents, for the necessary fide. If, therefore, the master exercises effects of which there is, by reason of the a power which circumstances might exception in the bill of lading, no original justify, so that it is within the general liability. The exception in the bill of scope of his functions, and it turns out lading was relied upon in this Court as that the facts do not warrant its exercise completely exonerating the shipowner, in the particular instance, as, for instance, but it is now thoroughly settled that it if he unnecessarily throw goods over. only exempts him from the absolute lia- board in a panic, or sell goods without bility of a common carrier, and not from justifying need, the owners are held liable the consequences of the want of reason- for his acts, according to the rule, Omnia able skill, diligence and care, which want fucta magistri debet præstare qui eum is popularly described as "gross negli- proposuit, Pothier, Louages Maritimes, 48; gence.” This is settled, so far as the Ewbank v. Nutting (6); and for a like repairs of the ship are concerned, by the reason they must be liable for his culpable judgment of Lord Wensleydale in Worms omissions. v. Storey (4), as to her navigation, by a For these reasons we think the shipseries of authorities collected in Grill v.
are answerable for the The General Iron Screw Collier Company duct of the master in point of law, if, (19), and as to her management so far as in point of fact, he was guilty of a want affects the case of the cargo itself, in of reasonable care of the goods in not Laurie v. Douglas (20), where the Court drying them at Liverpool. This raises, (in a judgment unfortunately not reported in the end, the question of fact, whether at large), upheld a ruling of Pollock, C.B., there was a breach of the duty thus that the shipowner was only bound to aflirmed ; a question which, though protake the same care of the goods as a per- perly one for a jury, we are, under the son would of his own goods, namely, powers given in the special case, to draw " ordinary and reasonable care.” These inferences of fact, and the 32nd section of authorities, and the reasoning upon which the Common Law Procedure Act, 1854, they are founded, are conclusive to shew bound to determine. It is obvious that that the exemption is from liability for the proper answer must depend upon the loss which could not have been avoided circumstances of each particular case, and by reasonable care, skill and diligence, that the question whether active special and that it is inapplicable to the case of a measures ought to have been taken to loss arising from the want of such care, preserve the cargo from growing damage and the sacrifice of the cargo by reason by accident, is not determined simply by thereof, which is the subject matter of the shewing damage done and suggesting present complaint. It was also argued measures which might have been taken to that, if there was any default of duty, it prevent it. A fair allowance ought to be
made for the difficulties in which the (18) 16 Com. B. Rep. N.S. 772. (19) 35 Law J. Rep. (N.s.) C.P. 321 ; 8. c. (Ex.
master may be involved. The perform. Ch.) 37 Law J. Rep. (N.s.) C.P. 205.
ance of such a duty, whether it be for the (20) 15 Mee. & W. 746.
joint benefit of the shipowner and the