Pr i v. Co.] Fo r m a n a n d Co. Pr o p r i e t a r y Li m i t e d v. Sh i p Li d d e s d a l e. [ Pr i v. Co.
case, because it lays upon those who are a t fa u lt to make out beyond a ll doubt th a t the lig h t was in such a position th a t i t must have been seen.
Looking at a ll the facts in combination, it appears to me beyond a ll doubt th a t they have not satis
fied the burden upon them, and therefore they must fa il. The question of a judge having seen the witnesses and having had an opportunity of judging whether they spoke the tru th or not is generally a very im portant one. I am not certain th a t either side can rely upon th a t position, be
cause I am bound to adm it th a t the judge who trie d the case indicates a tendency not to act upon the testim ony of the witnesses, b ut he did so act, and gave judgm ent fo r the Oannet. That he should have yielded in th a t respect to the views o f the nautical assessors is not absolutely satis
factory to me, as i t shows th a t he had not a very strong conviction either way, Therefore I am not overwhelmed by the fa ct th a t the judge saw and heard the witnesses. In the result I th in k th a t the reasonable conclusion is th a t the vessel athw art the stream having her lig h ts in an un
usual and adm ittedly im proper position was the vessel to blame. B u t i t it. enough to say th a t it was the duty of the A lg o a to make out the propo
sition, which I th in k th a t they have failed to make out. I therefore move th a t the judgm ent be reversed, and the respondents pay to the appel
lants the costs both here and below.
Lords Ma c n a g h t e n, Mo r r i s, Da v e t, Br a m p t o n, and Ro b e r t s o n concurred.
Judgm ent o f the C o urt o f A p p e a l reversed.
Judgm ent o f B u c k n ill, J. restored. Respon
dents to p a y to the appellants the costs in th is House and i n the courts below.
S olicitor fo r the appellants, W illia m B atham . Solicitors fo r the respondents, P r itc h a r d and Sons, fo r Batesons, W arr, and W im shurst, L ive r
pool.
J U D I C I A L C O M M IT T E E O P T H E P R I V Y C O U N C IL .
Dec. 14,15,16, 20, 1899, and Feb. 17,1900.
(Present: The R ig h t Hons. Lords Hop,h o u s e, Da v e y, and Ro b e r t s o n, and S ir Ri c h a r d Co u c h.)
Fo r m a n a n d Co. Pr o p r i e t a r y Li m i t e d v. Sh i p Li d d e s d a l e. (a)
O N A P P E A L P R O M T H E S U P R E M E C O U R T O P V I C T O R I A .
S h ip w rig h t— C ontract f o r re p a irs — L u m p sum— V a ria tio n — A u th o rity o f m aster and agent— Acquiescence—Necessaries.
The p la in tiffs contracted w ith the defendant's m aster a t a fo re ig n p o r t to effect c e rta in re p a irs to the steamship L ., f o r a lu m p sum. These re p a irs were s tr ic tly lim ite d to those necessitated by the vessel ha vin g stranded. I t was also agreed th a t the p la in tiffs should state schedule prices f o r any w o rk req uire d to be done in a d d itio n to the contract repairs. The p la in tiffs never executed the contract re p a irs , but they cla im ed the lu m p sum, a lle g in g th a t they had done the eq uivalent thereof, or something better, a n d th a t they had the a u th o rity o f the m aster f o r the
( a ) Reported by Bu tle b As p in a l l, Esq., Q.C., and Sutton Tim m is, Esq., Barrister-at-Law.
v a ria tio n . They also claim ed f o r extra w o rk at schedule prices. The m aster's a u th o rity to con
tra c t was to the p la in tiffs ' knowledge lim ite d to re p a irs o f the s tra n d in g damage.
H e ld , th a t as the contract f o r the lu m p sum, being an en tire one, had not been executed, and as the m aster had no a u th o rity to v a ry it , the p la in tiffs could recover n o thin g un de r the contract.
H e ld , fu r th e r , th a t the f a c t th a t the shipowner had taken the ship as rep aire d d id not am ount to an acquiescence in the v a ria tio n .
Appleby v. M je rs (16 L . T. Rep. 669; L . Rep.
2 C. P . 651) follow ed.
Th i s was an appeal from p art of a decree of the Y ice-A dm iralty Court of Y icto ria , dated the 5th M ay 1898, whereby i t was pronounced th a t the sum of 17007. 18s. 5d. only was due to the appel
lants fo r necessary m aterials, work, and repairs other than those supplied and executed under a contract, dated the 10th Dec. 1896, the terms of which, so fa r as is m aterial, are set out in th eir Lordships’ judgm ent; and th a t nothing was due in respect of such m aterials, work, and repairs as were supplied and executed under and in pur
suance of such contract.
The appellants having executed, under the c ir
cumstances stated in the judgm ent, certain repairs to the steamship Liddesdale, began this action on the 8th Feb. 1897 by w rit of summons, claim ing 15,5677. 8s. 9d. fo r necessaries supplied and repairs done to the Liddesdale, or a sum ex
ceeding by 9571L 18s. 9d. the lum p sum of 59951 10s. mentioned in the contract of the 10th Dec. 1896. B y paragraph 4 of the petition the appellants alleged:
The said m a te ria ls were so supplied and th e said w o rk and re pairs executed p a r tly u n d e r and in pursuance o f a w r itte n c o n tra c t, co n sistin g o f a te n d e r in w r itin g by th e p la in tiffs , dated th e 8 th D ec. 1896, to do c e rta in p o rtio n o f th e w o rk s and su p p ly c e rta in p o rtio n o f th e said m a te ria ls, in accordance w it h c e rta in w rite n specifica
tio n s and co n d itio n s re fe rre d to in such te n d e r (w hich te n d e r was accepted in w r itin g b y the m a ster upon the 10 th D ec. 1896), p a rtly in accordance w ith ce rta in schedule ra te s re fe rre d to in th e docum ents he reinbefore m entioned, and p a r tly in pursuance o f orders g iv e n by th e m a ster d u rin g th e progress o f th e c o n tra c t w o rk s to do c e rta in o th e r w o rk s n o t m entioned in th e c o n tra c t.
The amounts claimed under each head of the appellants’ claim were as fo llo w s:
£ s. d.
I . C o n tra c t fo r re p a irs ... 5,995 10 0 I I . W o rk n o t in clu d e d in con
tr a c t, b u t claim e d u n der
schedule r a t e s ... 6,847 12 6 I I I . O th e r r e p a ir s ... 2,724 6 3
T o ta l c la im ... ¿615,567 8 9
The answer of the respondent (the owner of the ship) was as fo llo w s: (1) As regards the lum p sum contract, th a t the appellants had not performed th e ir contract. (2) As regards the schedule rate repairs a,nd (3) the other repairs, th a t they were not necessaries, and th a t they were not ordered by anyone having a uth ority on behalf of the owner.
The respondent fu rth e r pleaded that, so fa r as the p la in tiffs’ claim related to extras, there were no w ritte n orders or prices agreed as required by the conditions o f the w ritten contract which the parties had entered into.
Pr i v. Co.] Fo r m a n a n d Co. Pr o p r i e t a r y Li m i t e d v. Sh i p Li d d e s d a l e. [ Pr i y. Co. B y th e ir reply the appellants alleged th at a ll
deviations, alterations, and extras were acquiesced in and ratified and approved by the respondent, which averment was denied by the respondent in his rejoinder.
The Chief J ustice on the evidence accepted the respondent’s contention!, and, being fu rth e r of opinion th a t there had been no holding out by the respondent o f any person as having authority to order the deviations from the specifications above mentioned nor any ratifica tion or acquiescence in the deviations by the respondent, he held th a t the appellants were not entitled to recover the contract price or any part of it. He also dis
allowed certain items, one on the ground th a t the work done was a deviation from the specification which had not been authorised in w ritin g pur
suant to clause 8 of the contract. He disallowed other works claimed fo r on the ground th a t they were not necessaries w ith in the im plied authority of the master to order, and th a t clauses 8, 23, and 24 of the specification, so fa r as they purported to enable the respondent’s agent to incur expenditure beyond 60001. or fo r repairs not caused by the stranding, were unauthorised although a regular order in w ritin g was given fo r them. Claims fo r extras outside the scope o f the specification were also disallowed.
Carver, Q.C. and M ansfield, fo r the appellants, contended th a t the contract of the 10th Dec. 1896 was binding on the respondent as having been made by a duly authorised agent. The master of the ship had express authority to enter into th at contract and bind thereby the owner of the ship ; i f not actual, he had apparent authority, and, fu rth e r, the respondent acquiesced in and ratified the contract. W ith regard to the master’s general a uthority to order necessaries, and as to what are necessaries, see
Webster v. Secamp, 4 B. & A . 3 5 2 ;
The R iga, 26 L . T . Rep. 202 ; 1 A sp. M a r. L a w Cas. 246 ; L . Rep. 3 A . & E . 516.
M ondel v. Steel (8 I I . & W . 858) is an authority th a t when a contract is fo r a lum p sum, proof of a breach of contract was only ground fo r deducting from the agreed price the difference between the value of the ship as she was at the tim e of de
live ry from what she would have been if the contract had been duly performed. See also
T h a rs is S u lp h u r C om pany v. M c E lro y , 3 A p p . Cas.
1040.
The departures from the specifications by the appellants were sanctioned by the master and surveyors who inspected the work on the respon
dent’s behalf as i t went on, and no objection to the manner in which the work was being done was taken by them. B y the terms of the contract the sanction o f the surveyors to alterations in detail was not necessarily to be given in w ritin g. Even if the appellants were not entitled to the contract price, they were entitled to payment fo r the value of the work done of which the respondent had accepted the benefit, having taken over the ship and sold her w ith her value enhanced by her having been repaired by the appellants. As to the authority which it should lie im plied in the agent from the conduct o f the parties and the nature of the business, see
De Bussche v. A lt. 38 L . T . R ep. 370 ; 3 A sp. M a r.
L a w Cas. 5 8 4 ; 8 Ch. D iv . 286, 310.
And as to the powers of the master of a ship, see
The K a rn a k , 18 L T . R ep. 6 6 1 ; L . Rep. 2 A . & E.
289, 300 ;
The A lb e rt C rosby, L . Rep. 3 A . & E . 37.
Counsel also referred to
A p p le b y v . M ye rs, 16 L . T . Rep. 6 6 9 ; L . Rep.
2 C. P. 651 ;
M u n ro v. B u tt, 8 E . & B . 738 ;
S um p ter v . Hedges, 78 L T . R ep. 3 7 8 ; (1898) 1 Q. B . 673 ;
B a r tle tt v. S ta n ch fie ld (1889) 148 M ass. Rep. 3 9 4 ; B u rn v. M ille r , 4 T a u n t. 745 ; 14 R . R . 655.
Joseph W alton, Q.C. and E n g lis h H a rris o n , Q.C.
(w ith them Lech), fo r the respondent, contended th a t the evidence showed th a t the appellants did not perform the w ritten contract so as to become entitled to the price stipulated. As to the lump sum, i t was shown th a t in many im portant respects the appellants had failed to carry out the work which was necessary to e ntitle them to payment. For instance, they failed to renew tw enty steel shell plates, and merely straightened the old bent plates and p ut them back, and in other details the appellant had failed to p u t in work in accordance w ith the specification. The evidence also proved th a t no one had authority to order or allow these alterations or deviations from the contract, and no order in w ritin g as stipulated by the specification was ever obtained in respect of them. I t was also proved th a t the repairs to the girder plates were so done as to substantially alter the original design of the ship contrary to the provisions of the contract, and th a t there had been no acquiescence, acceptance, or approval by the respondent of any of the alterations or deviations from the terms of the contract. The other repairs under the schedule rates were not necessaries, nor were they repairs due to stranding damage, which alone was compulsory or desired by the respondent, and neither the master nor any other person had authority to order such repairs to be done. H aving regard to the terms of the appeal, no question arises now as to any repairs done except as to those done under the w ritten contract, and as to these the court below was rig h t in holding th a t nothing was due, fo r neither the m aterials nor the work was supplied in pursuance of the contract. They cited
M o n ro v. B u tt (w in s u p .) ;
Thomas v . Levris, 39 L . T . Rep. 669 ; 4 E x. D iv . 18 S u m p te r v. Hedges (u b i s u p .);
S in c la ir v . Bowles, 9 B. & C. 9 2 ; A r t h u r v. B a rto n , 6 M . & W . 138 ;
G u n n v. Roberts, 30 L . T . R ep. 4 2 4 ; 2 A sp. M a r.
L a w Cas. 2 5 0 ; L . Rep. 9 C. P . 331.
Carver, Q.C. replied.
C ur. adv. vuIt.
Feb. 17.—Judgment was delivered by
Lord Ho b h o u s e. — This su it is in form a proceeding in the V ice-A dm iralty C ourt io make the ship Liddesdale answerable fo r the cost of repairs executed upon her. In substance it does not d iffer from other litig a tio n s between one who has done work on a chattel, and the owner of the chattel who denies his lia b ility to pay fo r it.
The p la in tiffs, now appellants, are a jo in t stock company, who carry on the business of building and repairing ships at Melbourne. The L id d e s dale, the nom inal defendant and respondent, is a
MARITIM E LAW CASES.
47 Pr i v. Co. ] Fo r m a n a n d Co. Pr o p r i e t a r y Li m i t e d v. Sh i p Li d d e s d a l e. [ Pr i v. Co.B ritis h steamer b u ilt of steel. The real defen
dant, her owner, is M r. Robert M ackill, surviving partner of a firm of merchants carrying on busi
ness in Glasgow. H er master was Captain Alexander Clark. In the month of Oct. 1896 the ship ran aground off the coast of W est A ustralia, b ut she was got off, and continued her voyage to several W est A ustralian ports. H aving then dis
charged her cargo, she made fo r Sydney to get a fresh one, b ut on the way put into the harbour of Melbourne, which she reached on the 25th Nov.
When there she was examined by the Marine Board of V icto ria , who detained her and required th a t the damage done to the structure of the vessel by her stranding should be repaired before she could be allowed to depart. That led to a correspondence between Captain C lark and the defendant, out of which arises the m aterial ques
tion in the suit—viz., what authority was vested in the ship’s master. The messages which passed are set out consecutively and in the most con
venient form in the judgm ent o f the learned judge below. They have been read frequently during the argument, and need not be quoted a t length now. The defendant was very anxious th at nothing should be done to the ship beyond what would enable her to come safely borne w ith a cargo, such as replacement of broken plates and so fo rth , and he forbade C lark to make contracts before being authorised to do so. Clark, on the other hand, inform ed him th a t Llo yd ’s agent and the Marine Board held th a t more permanent repairs were necessary fo r safety. Upon th is the defen
dant sent a message, dated the 6th D ec.: “ Arrange as best you can perm anent; must do nothing what
ever beyond repairing stranding damage.” In the meantime C lark had got specifications o f the work necessary to repair the stranding damage, and had advertised fo r tenders. The p la in tiffs ’ tender was the lowest. A n interview took place on the 8th Dec. between M r. Forster, the managing director of the p la in tiffs, and Captain C lark and M r. Brodie, who represented the firm of Sanderson and Co. That firm acted as the defendant’s agents in the m atter of the L idd es
dale, and in th e ir office a ll the negotiations took place. There is no discrepancy in the accounts of this interview. Some discussion took place as to a schedule of prices fo r possible addi
tional w o rk ; and when th a t had been settled C lark and Brodie inform ed Forster th a t they could not accept the p la in tiffs ’ tender w ithout authority from home, but th a t they would recom
mend it. Brodie and C lark cabled at once to the defendant: “ Lowest reliable tender 6000Z. Twenty days. Repairs commence acceptance tender.”
On the 10th the defendant rep lie d : “ Con
tra c t w ith Llo yd ’s agent’s approval. Twenty days, payment must be accepted by contractor, in banker’s guaranteed drafts, ninety days’ sight, on Clydesdale Bank, London.” The parties met again a t Sanderson’s office after receipt o f the message o f the 10th. A ll agree th a t M r. Wame, the secretary o f the p la in tiffs ’ company, objected to the mode of payment stipulated fo r by the de
fendant, saying th a t the payment ought to be in cash, b ut th a t his objection was overcome and the contract then signed. C lark adds th a t when W arne’s objection was made he answered it by saying: “ T hat is a ll the authority I have.” By the terms of the contract the p la in tiffs undertake to effect repairs as per specifications fo r the sum
of 59957.10s. in twenty w orking days The repairs specified are s tric tly confined to the damage by stranding. B y clause 14 it is said th a t “ this contract to repair and renew shall mean th a t the vessel shall be restored in every respect to her original condition p rio r to the accident.” There are two clauses relating to repairs not specified, which have been the subject of a great deal of discussion both in the court below and a t this bar. They run as fo llo w s:—Clause 8: “ The con
tractor shall not make any alteration or deviation from the specification agreed upon, nor shall he be entitled to make any charge or claim fo r extras or fo r anything whatever beyond the lump sum agreed upon, unless he obtain the w ritten sanction of the captain or his agents at the tim e of m aking such additions or alterations, which shall be at a price agreed upon.” Clause 23 :
“ The contractor to state schedule prices as follows fo r any work th a t may be required to be done in addition to what is a ttributable to damage—th a t is to say, fo r any repairs due to deterioration in water ballast under boilers.”
The claim made by the p la in tiffs is divisible into three portions. F irs t, they claim the lum p sum mentioned in the contract. Secondly, they claim fo r the extra work at the schedule rates stated by them under clause 23 of the contract. And, th ird ly , they claim fo r extra work not specified in the contract at a ll, but done in pursuance of orders given by C lark during the progress o f the work, and said to be authorised either by his inherent a uth ority or by virtue of clause 23 in the contract. The whole sum claimed is 15,5671.
and a fraction. As regards the firs t portion of the claim, the defendants say th a t the lum p sum was never earned because the stipulated work was not done ; and, indeed, the p la in tiffs do not assert th a t it was. W hat they allege on this point is th a t the equivalent of the stipulated work, or something better, was done, and th a t they had a uthority fo r the variation. As regards the second portion, the defendant insists th a t C lark did not order the work, and that, if be had done so, he had no authority to do it. As regards the th ird portion, there has been a separate dispute on each item w ith respect to its necessity fo r the liberation or fo r the safety of the ship, and w ith respect to C lark’s orders fo r it, whether given in fact and whether binding on the defendants in law. The learned judge below
and a fraction. As regards the firs t portion of the claim, the defendants say th a t the lum p sum was never earned because the stipulated work was not done ; and, indeed, the p la in tiffs do not assert th a t it was. W hat they allege on this point is th a t the equivalent of the stipulated work, or something better, was done, and th a t they had a uthority fo r the variation. As regards the second portion, the defendant insists th a t C lark did not order the work, and that, if be had done so, he had no authority to do it. As regards the th ird portion, there has been a separate dispute on each item w ith respect to its necessity fo r the liberation or fo r the safety of the ship, and w ith respect to C lark’s orders fo r it, whether given in fact and whether binding on the defendants in law. The learned judge below