Ap p.] Mil b u r n & Co. v . Ja m a ic a Fr u i t Im p o r t in g & Tr a d in g Co. op Lo n d o n. [ Ap p. b ills of lading, which in fa ct he did sign, th a t the
shipowners have lost a rig h t of general average contribution which they would otherwise have had against the owners of p art of the cargo shipped.
The peril, in respect o f which the expenses were incurred by the ship which form the basis of the claim fo r general average contribution, was a p e ril incurred by the negligence of the officers and crew of the ship, who under the charter- p arty continued to be the servants of the ship
owners and in possession o f the ship on th eir behalf. The charterers had nothing to do w ith the navigation of the ship. The cause of the p e ril was careless navigation, resulting in a col
lision w ith another ship. Now, it is clear law th a t the rule o f contribution has no application in cases where the danger which led to the sacrifice was brought about by the fa u lt o f the person claim ing contribution, and, if the rig h t o f co ntri
bution was thus excluded, i t could not be said th a t the fa ct th a t the ship could make no claim fo r contribution was the consequence of the captain follow ing the instructions of the char
terers and Bigning the b ills of lading, and the case would not fa ll w ith in the scope of the con
tra c t of indem nity. In such circumstances, in the absence of some special contract, the rig h t to contribution would never arise, and i t would not be true to say th a t the exclusion of the rig h t to contribution was due to anything but the negli
gence o f the shipowners’ servants. B u t i t is said that, if the b ill of lading had been in a different form from th a t in which it in fact was, and had con
tained, as undoubtedly is very usual, an exception of negligence of the master and crew, the rig h t to contribution would have arisen. The C a rron P a rk (63 L . T. Rep. 356 ; 6 Asp. M ar. Law Cas. 543 ; 15 P. D iv. 203) is relied on as an a uth ority th a t such an exception in the contract of carriage would have this effect, and seems so to decide.
Lord Hannen, speaking of such an exception in a contract o f carriage, in th a t case a charter-party, says : “ Here i t appears to me th at the relation of the goods owner to the shipowner has been altered by the contract ” [constituted by the exception] “ th a t the shipowner shall not be responsible fo r the negligence of his servants.”
Lord Hannen held on th is ground th a t the ship
owner was entitled to recover general average contribution, although the p eril was caused by the negligence of the ship’s officers. This con
clusion of Lord Hannen was based upon a passage in the judgm ent of Lord Watson, in S trang, Steel, an d Co. v. Scott and Co.(u b i sup.), in which he said : “ The fa u lt o f the master being _ m atter of admission, i t seems clear upon a uth ority th a t no contribution can be recovered by the owners of the ship unless the conditions o rd in a rily existing between parties standing in th a t relation had been varied by special contract between them and th e ir skippers.” I do not th in k th at the judgm ent of Lord W atson justifies the decision in The C a rron P a rk (u b i sup.), and the decision in The C a rro n P a rk does not bind th is court, and i t is our duty to consider whether th a t decision was rig h t in principle. I th in k i t was not. I th in k th a t the exceptions in the contract of carriage had nothing to do w ith the lia b ility of the shipowner, under the law of general average contribution. The lia b ility to contribute in no sense results from the contract o f carriage, but exists wholly independently o f the contract of carriage,
by virtue o f the equitable doctrine o f the Rhodian law which, as p art o f the law m aritim e, has been incorporated in the m unicipal law of Eng
land. Lush, L .J., in S c h m id t v. R o y a l M a il Steam ship Company (45 L . J. 646, Q. B.), says :
“ The office of the b ill o f lading is to provide fo r the rig hts and lia b ilitie s of the parties in reference to the contract to carry, and is not concerned w ith lia b ilitie s to contribution in general average.”
This dictum of Lush, L . J. is affirmed em phatically by a ll the Lords Justices in B u rto n v. E n g lis h (49 L . T. Rep. 768 ; 5 Asp. M ar. Law Cas. 187 ; 12 Q. B.
D iv. 218). I t has been argued th a t there is no duty on the shipowner except th a t contained in the contract of carriage, in cases in which there is a contract of carriage, and it is said th a t th is con
tra c t of carriage excludes the common law lia b ility of carriers, excepting so fa r as it is expressly or im pliedly incorporated in the contract o f carriage.
I agree, so fa r as regards the obligation to carry and deliver, the contract of carriage is exhaustive, and th a t the exception applies to every duty under th a t contract. B u t the rule of the Rhodian law, excluding the person through whose fa u lt the p eril arose from benefits of general average contribution, is based upon an obligation out
side the contract of carriage. I t is based upon th a t duty — which arises whenever one person is by circumstances placed in such a position w itti regard to another th a t everyone of ordinary sense, who did th in k, would at once recog
nise that, if he did not use ordinary care and s k ill in his own conduct w ith regard to those circumstances, he would cause danger of in ju ry to the person or property of the others—to use ordinary care and s k ill to avoid such danger : (Heaven v. Pender, 49 L. T. Rep. 357 ; 11 Q. B.
D iv. 503). The charter-party leaves the ship in the possession of the shipowner, and its naviga
tio n in his control. This entails on the shipowner a duty to take due care in the navigation of his ship, because otherwise danger w ill arise fo r the person and property of others, both the persons and property on board his own ship and the ship he may meet and the persons and property therein, and, if he fa ils in the observance of this duty and p e ril is thereby caused to the person or goods on board his own ship, he is, in my jud g ment, a t fa u lt in such sense as to exclude him from the benefits of the m aritim e law of con
trib u tio n . He has failed in his duty to his co
adventurers. He cannot claim contribution, because p e ril has been caused by his fa u lt ; and the fa ct remains th a t it was caused by his fa u lt, notw ithstanding the fact th a t it may be a term of the charter-party th a t the charterer shall relieve him from responsibility, so fa r as relates to the contract o f carriage, fo r th a t fa u lt of which he has been g u ilty . In my judgm ent, the only way in which a shipowner can be placed in a position to recover general average contribution, in a case where the p e ril has arisen from the negligence of the master or crew, is a case where the master and crew have ceased, by the terms of the charter-party or otherwise, to be the servants or agents of the shipowner. In my opinion, the exception in the charter-party has not th is effect, and a sim ilar exception in the b ill of lading would not have had th a t effect. The exception in the b ill of lading relieves the shipowner from a ll breaches of the contract of carriage brought about by the negligence o f the master or crew,
Ap p.] Mił b u b n & Co. v . Ja m a ic a Fr u i t Im p o r t in g & Tr a d in g Co. o p Lo n d o n. [ Ap p. b ut i t does not relieve the shipowner from those
legal duties which are by law cast upon him by reason of the fa ct th a t the ship is in the possession o f his servants and navigated by him . I f the p eril is caused by the negligence of his servants in navigating the ship, he is a person a t fa u lt, w ith in the meaning o f the law o f general average contribution, and, so long as the ship is navigated by his servants, the shipowner can no more get rid of responsibility fo r his legal duty by a con
tra c t which he makes w ith a th ird person than a man can get rid of a statutory, or any other positive, duty arising from his position by any contract which he makes w ith any person upon whom the duty is not by law cast. I th in k The C a rron Parle (u b i sup.) was w rongly decided.
I th in k, therefore, th a t the p la in tiffs cannot recover, and th a t the judgm ent of Mathew, J.
ought to be reversed.
The case of Johnson v. C hapm an (19 C. B.
N. S 563) only comes to this. I t was sought to say th a t deck cargo could not have the benefit of general average contribution. W illes, J. said there was no law m aking i t unlaw ful to carry deck cargo, b ut th a t it was suggested there was a custom affecting the voyage, and th a t it was not necessary to consider this, as by the contract between the parties there was to be a deck cargo. I t was not suggested th a t the carry
ing of the cargo made the ship unseaworthy, and W illes, J., under these circumstances, said th a t when you have established th a t it is a deck cargo la w fu lly there by the contract of the parties, it becomes subject to the rule of general average : (see p. 583). The case in no sense decides th a t the obligation of the co-adventurers on a voyage towards th e ir fellows to take care not to bring them or th e ir property into danger is the creature of contract, or th a t by contract between two of the co-adventurers the law of general average contribution can be so modified th a t it shall operate in favour of the g u ilty . Two adventurers may agree th a t they w ill make no claim on one another fo r general average contribution, and thus as between themselves exclude the Rhodian laws ; or two may agree that, as betweên them, there shall be general average contribution not
w ithstanding the fa ct th a t the claim ant by his negligence brought about the p e ril necessitating the sacrifice or general average act, but in such a case the rig h t to contribution would in no sense depend on the law m aritim e incorporated in the m unicipal law of England, but w ill be entirely the creature and result o f contract. In my judgm ent, the law of general average contribution cannot be applied in favour of a claim ant through whose fa u lt, whether personal or by his agents, the m aritim e p e ril was in fa ct brought about.
Moreover, even if by special contract the rig h t of contribution can be enforced against a p arty to the contract by the other party even though his fa u lt, or negligence, or his omission, or his act of com
mission has brought about the peril, I do not th in k th a t such a special contract is to be found in the exception to the charter-party, or would arise from the introduction of such an exception into the b ill of lading. W hat is the business meaning of the m utual exception in the charter- party (fo r the exception here is m utual) of the negligence o f the master and crew ? I t means th a t shipowner and charterer must each insure th eir own interest against losses arising from the voyage
from negligence of the master and crew. The exception does not mean th a t the one is to have a claim against the other, but merely th a t each, in respect of m atters fa llin g w ith in the exception, is to be relieved from the lia b ility which otherwise would fa ll upon him . T hat is, in the case of a charter-party, the lia b ility from the le ttin g or h irin g of the use of the ship, or, in the case of a, b ill of lading, the lia b ility of the carrier of goods by sea and of the consignor of such goods, but I cannot see how the exception from these lia b ilitie s can give the p arty excepted a claim which he would not otherwise have had, or render the party who had the benefit of the exception liable to a claim fo r which, b ut fo r the exception, he would not have been liable. I do not th in k th a t the exception makes the charterers or cargo owners liable to the shipowners fo r contribution in respect of a sacrifice made to avert a danger brought about by th e ir own negligence. The m utual exception, if i t applied at a ll to general average contribution, would rather have the contrary effect.
Ro m e r, L .J .—I have come to the conclusion th a t th is appeal should be dismissed. I can state my reasons briefly. On th is charter-party, as between the shipowners and the charterers, I th in k th at, fo r a ll purposes connected w ith the management of the ship during the existence of the charter, the negligence of the master and the crew was not to be treated as a ttrib utab le solely to the shipowners. Between shipowners and char
terers such negligence was to be “ m utually excepted,” so th a t both parties could be regarded as equally blameless in respect of it, L e t me, then, firs t consider how the case would have stood between the parties to the charter-party i f a ll the goods on board the vessel during a voyage had been the property of the charterers, and then by the master’s negligence a condition arose neces
sita ting a sacrifice at the expense of the^ ship
owners fo r the common good, so th a t p r im a fa c ie a claim fo r general average contribution against the owners of the cargo had arisen. In my opinion, there would have been no answer to the claim. The charterers could not have brought themselves w ith in the exception to general average claims which is so well known and was discussed oy Lord W atson in the case cited in the jud g ments already delivered—S trang, Steel, and Co.
v. S cott and Co. ( u b i sup.). F or the charterers could not have said as against the shipowners th a t the negligence o f the master was to be a ttrib uted to the shipowners so as to place the la tte r in the position of persons who had brought about the p e ril necessitating the common sacrifice by th e ir own wrong. There would have been no ground fo r treating the shipowners and the charterers as standing on a different footing a t the moment when the common sacrifice became necessary. As between themselves they stood at th a t moment on a footing of equality. N either the goods as against the ship, nor the ship as against the goods, had any claim by reason of any p e ril arising, or loss which m ight have resulted, from the master’s negligence. And the position of equality is the very essence of the rig h t to contribution. I t would, in my opinion, be m atter fo r regret if the opposite view were upheld, fo r the result would be th a t though, if loss ensued to the goods by the peril, the shipowners could not be made
M ARITIM E LAW CASES.
127 Bu c k n a l l Br o t h e r s v. Ta t e m a n d Co. [Ct. o f Ap p. Ct. o f Ap p.]responsible fo r th a t loss, yet if to avoid the p eril a sacrifice is made at the expense of the ship there would be no rig h t of contribution. These being, in my opinion, the relative rig hts of the ship
owners and charterers in a case where the goods are the property of the la tte r, I w ill now consider how m atters stand in a case where the charterers ship some th ird person’s goods and not th e ir own.
Now, in respect of these goods, i t appears to me th at under th is charter-party the charterers, as between themselves and the shipowers, were bound, if they wished to avoid any lia b ility towards the shipowners, to ship the goods on the same terms as th e ir own goods—th a t is to say, on the terms o f the charter-party.
B u t the charterers m ight by the b ills of lading, as between themselves and the th ird person, have shipped the goods on terms different from those of the charter-party. In th a t case, if any loss arose to the shipowners in consequence of the contents of the b ills of lading, then by the terms of the charter-party such loss would fa ll on the charterers. Now, considering the special circumstances o f th is case, it appears th a t the charterers did ship the Government goods on terms which (as shown by the b ills of lading) m aterially differed from the terms of the charter-party, inasmuch as those b ills of lading le ft the ship
owners responsible fo r the negligence of the master, officers, and crew o f the ship. The con
sequence has been th a t the shipowners have lost the rig h t of contribution fo r general average which, in my opinion, they would have had as against the Government’s goods i f the la tte r had been shipped on the terms of the charter-party.
That loss has, i t appears to me, flowed d irectly from the b ills o f lading having been signed by the master by the d ii’ections of the charterers in a form which, as between the charterers and ship
owners, should not have been adopted. That being so, I th in k the loss is a consequence of the signing of the b ills of lading w ithin the meaning of the charter-party, and is accordingly recover
able by the shipowners from the charterers. On these grounds I th in k the appeal fails.
A ppeal dismissed.
S o lic ito rs fo r th e appellants, P a rk e r, G a rre tt, and H olm an.
S o lic ito rs fo r th e respondents, Thomas Cooper and Co.
M onday, J u ly 23, 1900.
(Before Sm i t h and Wil l i a m s, L .JJ.) Bu c k n a l l Br o t h e r s v. Ta t e m a n d Co. (a) a p p e a l f r o m t h e q u e e n’s b e n c h d i v i s i o n. C h a rte r-p a rty — O ption o f charterers to cancel on
n o n -a rriv a l o f vessel by fixed date— Im p o s s ib ility o f a r r iv a l— R e fu sal to proceed—In ju n c tio n . B y a c h a rte r-p a rty the shipow ner agreed th a t his
vessel should proceed to a nam ed p o r t and there load a cargo f o r the charterer, and i t was p ro vided th a t, i f the vessel should n o t be a t th a t p o rt ready to load by a specified date, the charterer should be a t lib e rty to cancel the r cha rte r-pa rty.
The vessel was then a t another p o r t unlo ading , and was delayed in do in g so f o r so long th a t i t _became im possible f o r her to a rriv e a t the agreed
(a) Reported by J. H . Wil l ia m s, Eeq., Barrister-at-Law
p o rt by the specified date. The charterer refused to extend the tim e f o r cancellation, o r to prom ise to load the vessel i f she proceeded to the agreed p o rt, and s a id th a t i f he d id load, the rate o f fr e ig h t m ust be reduced, and he in sisted on the vessel proceeding to the agreed p o rt. The s h ip owner thereupon refused to send his vessel there.
p o rt by the specified date. The charterer refused to extend the tim e f o r cancellation, o r to prom ise to load the vessel i f she proceeded to the agreed p o rt, and s a id th a t i f he d id load, the rate o f fr e ig h t m ust be reduced, and he in sisted on the vessel proceeding to the agreed p o rt. The s h ip owner thereupon refused to send his vessel there.