Ct. o f Ap p.] Fo r r e s t t a n d So n Li m i t e d v. Ar a m a y o. [ Ct. o f Ap p. certain sum which they themselves have fixed and
agreed upon. I do not, however, assent to the proposition th a t when two persons have to do something, one person to deliver and another to accept, and the person whose duty i t is to accept fads in the performance of th a t d uty and is not in a position to accept, and so states to the other side th a t he is not in a position to accept, he is entitled, sim ply because the other has not been in a position to deliver, to any damages, whether liquidated or not. Here, seeing th a t in my opinion the defendants were themselves not in a position to accept, except on the 6th Jan., when the p la in tiffs were not bound to deliver, and seeing th a t the tim e when they were next in a position to accept was on the 12th A p ril, I find there was not a perform ance by them on th e ir part, and th a t they there
fore cannot claim liquidated damages, and there must be judgm ent fo r the p la in tiffs fo r the amount claimed. Judgm ent f o r the p la in tiffs .
The defendants appealed.
A . T. Lawrence, Q.C. and C. C. S cott fo r the appellants.—The defendants were e ntitle d to deduct from the price the agreed damages fo r delay in the completion o f the launch. The defendants were not, and could not have been, ready to deliver the launch before the tim e at which they did in fact deliver it, and therefore i t was unnecessary fo r the defendants to name any vessel on board of which the launch should be delivered earlier than the vessel in A p ril which they did name.
T. T e rre ll, Q.C. and H . T in d a l A tk in s o n fo r the respondents.—I t was p art of the obligation of the defendants to provide a vessel at the p ort of London to take delivery, and to n o tify to the p la in tiffs th a t they had done so. The defendants cannot recover damages from the p la in tiffs fo r delay in delivery unless they prove th a t they were always ready and w illin g to take delivery.
There were concurrent obligations to deliver and to be ready to take delivery, and neither p arty can recover damages fo r breach of his obligation by the other p arty unless he was ready and w illin g to perform his p art :
M o rto n v . L a m b , 7 T . R . 125 ; 4 R . R . 395 ; Qoodisson v . N u n n , 4 T . R . 761.
The defendants never had a vessel ready to take delivery at the p ort o f London u n til A p ril, and therefore they cannot claim damages fo r delay before th a t tim e.
A . T. Lawrence, Q.C. replied.
The Lo r d Ch a n c e l l o r (Halsbury).—I am of opinion th a t the judgm ent of Buck n ill, J. was rig h t.
The sole point which I intend to decide upon th is appeal is th a t whenever there are concurrent obligations the p arty who seeks to recover against the other must show th a t he has always been ready and w illin g to perform the obligation upon him . I t is im m aterial whether the obliga
tio n is express or is im p lie d ; expressio eorum quse tacite n is u n t n i h il operatur. In a contract fo r the sale or manufacture of a chattel, the one party must be ready and w illin g to deliver, and the other to accept delivery. The d iffe r
ence between the two acts is quite im m aterial.
The one p arty in th is case is bound to b uild the launch, and the other to accept i t when b u ilt; the one is bound to finish the launch, and the other
Vo l. IX ., N . 8.
to provide a vessel to receive it. I t is common ground th a t neither p arty has performed th a t obligation. The law has been well ascertained and accepted fo r many years upon this subject.
W hichever p arty is the actor, and is com plaining of a breach of contract, he is bound to show, as a m atter of law, th a t he has performed a ll th a t was incident to his p art o f the concurrent obligations.
The averment th a t he was always ready and w illin g to perform his obligation is a necessary averment. Therefore in th is case each party has failed to perform his obligation. I t is said th at the builders o f the launch were not ready in tim e, but the p la in tiffs did not give notice th a t they had a vessel ready. Therefore i t seems to me th a t neither p arty can b ring an action against the other fo r breach of contract, because neither p arty was ready and w illin g to do his p art of the c mcurrent acts. T hat is the only question w ith which we need trouble ourselves. The p arty who brings the action m ust show th a t he was ready and w illin g to perform his p art of the concurrent acts. The defendants have not shown th a t they were ready and w illin g to perform th e ir part, and therefore th e ir appeal fa ils and m ust be dismissed.
Sm i t h, L .J .—I agree. The defendants are suing the p la in tiffs to recover liquidated damages because the p la in tiffs did not deliver the launch u n til many days a fte r the. agreed date. The defendants, being the actor, must, in order to recover the damages, show th a t they were always ready and w illin g to perform th e ir p a rt o f the contract by having a vessel ready to receive the launch on board, and th a t they gave notice to the p la in tiffs th a t they had such a vessel. The breach o f th a t obligation on the p a rt of the defendants is clear. I t is, therefore, clear th a t the defendants have not performed the condition precedent neces
sary to e ntitle them to recover liquidated damages under the contract. The defendants contend th a t they were excused from perform ing th a t obliga
tio n because they knew th a t the p la in tiffs were not ready, and could not be ready by the appointed date; b u t the p la in tiffs say, on the other hand, th a t they were excused from being ready by the agreed date because the defendants would not then be ready to receive the launch. There were conditions to be performed on either side, and, if excused, they were excused on both sides, and the defendants cannot rely on those conditions to support th e ir claim . Therefore the defendants cannot recover, and th is appeal must be dismissed.
Wi l l i a m s, L .J .—I entirely agree. I t is plain th a t under th is contract there was an obligation upon the defendants to name a vessel upon which they were prepared to take delivery of the launch, on the 7th Jan., in London, and i t is also plain th a t before they can claim these damages they m ust show th a t they were ready and w illin g to take delivery, and th a t they gave notice to the p la in tiffs of the name of the vessel. I t is now adm itted th a t in p oint of fa ct the defendants did not give such notice, and did not name any vessel which would be ready to take delivery, f.o.b., in London on the 7th Jan. On the contrary, the defendants gave notice to the p la in tiffs th a t they would not be ready to take delivery on the 7th Jan. in London, because they said th a t they m ust have delivery in Liverpool or Hamburg,
T
Ct. o f Ap p.] Se a In s u r a n c e Co m p a n y v. Ca r r. [Ct. o f Ap p. and, if they could not have delivery in one of
those places, they could not take delivery u n til A p ril. The defendants cannot deny th e ir o b li
gation to perform the condition precedent, and cannot say th a t they were ready and w illin g to perform the concurrent condition, but they say th a t they were excused because by th e ir conduct the p la in tiffs inform ed them th a t it would be useless.
In the firs t place it is not pretended th a t the p la in tiffs gave any such notice in words, or even by any act, such as may be in a case where the chattel to be delivered is sold to someone else.
B u t i t is said th a t there was such notice because the defendants were aware of the fa ct th a t the p la in tiffs could not be ready in tim e. T hat does not seem to me to amount to a waiver of the con
d itio n th a t notice of a vessel should be given.
I t is plain th a t in this case i t did not in the circumstances amount to any such waiver. I t therefore seems to me th a t the onus was on the defendants to give notice th a t they were able to take delivery on a vessel in London on the 7th Jan., and th a t they did not do so. I agree, there
fore, th a t th is appeal m ust be dismissed.
A ppeal dismissed.
Solicitors : fo r the appellants, Dale, Newm an, and Hood ; fo r the respondents, G. T e rre ll.
T hursd ay, Nov. 1, 1900.
(Before the Lo r d Ch a n c e l l o r (Halsbury), Sm i t h, M .R., and Co l l in s, L .J.) Se a In s u r a n c e Co m p a n y v. Ca r r, ( 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 .
P ra ctice — C om m ercial cause— E n te rin g cause in com m ercial lis t— D is c re tio n o f ju d g e — A ppeal to C o u rt o f Appeal.
I f a ju d g e directs a. cause, w h ich is no t i n fa c t a
“ com m ercial cause,” to he entered in the com
m ercial lis t, an appeal w i ll lie to the C o urt o f Appeal.
Th is was an appeal by the defendant from an order of Mathew, J., directing the action to be entered in the lis t o f commercial causes.
The p la in tiffs brought th is action against the defendant to recover the amount which they had paid, under a policy of insurance, to the owners of certain goods which had been seized on board a vessel in the Persian G u lf by the defendant, who was in command of H.M.S. L a p w in g .
The present p la in tiffs had been sued upon the policy by the owners of these goods, and judg
ment had been given against them : (F ra c is , Times, and Co. v. Sea Insurance Com pany,8 Asp. Mar.
Law Cas. 418 ; 3 Com. Cas. 229.)
In respect of other goods which had been seized on board the same vessel, the present defendant had been sued by the owners, and judgm ent had been given against him : (F ra c is , Times, and Co.
v. C a rr, 82 L . T. Rep. 698.)
The defendant justifie d the seizure of the goods under a proclam ation issued by the Sultan of Muscat and proceedings before a court o f inq u iry appointed by the Sultan.
I Jpon the application of the p la in tiffs, Mathew, J., at chambers, made an order directing th a t the action should be transferred to the commercial lis t, th a t the p la in tiffs should deliver points of
claim in seven days, th a t the defendant should deliver points o f defence in seven days, th a t the parties should exchange lists of documents in seven days and give inspection in three days afterwards, and th a t the action should be tried w ithout a ju ry .
The Regulations made by the judges o f the Queen’s Bench D ivision fo r the despatch of commercial business, provide:
1. C om m ercia l causes in c lu d e causes a ris in g o u t o f th e o rd in a ry tra n s a c tio n s o f m erchan ts and tr a d e r s ; am ongst oth ers, those re la tin g to th e c o n s tru c tio n o f m e rc a n tile docum ents, e x p o rt o r im p o rt o f m erchandise, a ffre ig h tm e n t, insurance , b a n k in g and m e rc a n tile agency and m e rc a n tile usages.
2. A separate l is t fo r summonses in com m ercial causes s h a ll be k e p t a t cham bers. A separate l is t w i l l also be k e p t fo r th e e n try o f such causes fo r tr ia l, b u t no causb s h a ll be entered in such lis t w h ic h has n o t been d e a lt w ith b y a ju d g e charged w ith com m ercial business, up on a p p lic a tio n b y e ith e r p a r ty fo r th a t purpose, o r up on sum m ons fo r d ire c tio n s or otherw ise.
The defendant appealed.
S ir B . B . F in la y (A.-G.) and R . B . D . A c la n d fo r the appellant.—This action is not a “ com
m ercial cause ” w ith in the meaning of the regula
tions, and therefore the learned judge was wrong in ordering the action to be entered in the com
mercial lis t. The real question in th is case is a serious question o f international law. I t is not an action “ arising out of the ordinary trans
actions of merchants and traders,” w ith in the meaning of the regulations. The discretion of the learned judge to direct causes to be entered in the commercial lis t extends only to “ commer
cial causes,” and an appeal lies against an order which directs a cause, which is not a “ commercial cause,” to the entered in th a t lis t:
B a r r y v. P e ru v ia n C o rp o ra tio n , 73 L . T . R ep. 678 ; (1896) 1 Q. B . 208.
The orders as to discovery, exchange of docu
ments, &c., which are usually made in actions which have been entered in the commercial lis t, ought not to be made in an action lik e this.
Joseph W alton, Q.C., F . W. H o lla m s, and F ra n k P h illip s fo r the respondents.—A n appeal cannot be brought in a case of th is kind. The question whether an action shall be p u t into a p articula r lis t, or be trie d before a particula r judge, in the Queen’s Bench D ivision, is purely a m atter o f discretion. The judges have power fo r the convenience of business to arrange what actions shall be put into p articula r lists and be trie d before particula r judges. There can be no appeal in such matters. The rules o f practice and evi
dence relatin g to actions entered in the commer
cial lis t are the same as those relating to any other actions. There is no “ order,” w ith in the meaning o f sect. 19 of the Judicature A ct 1873, against which an appeal can be brought.
This action is a “ commercial cause ” and the learned judge had therefore a discretion in the m atter. There is no definition of “ commercial cause” and it is entirely w ith in the discretion of the judge to say what ai'e and what are not com
m ercial causes under these regulations, which are not orders and rules of the Supreme Court. The question whether there could be an appeal or not was not raised in B a r r y v. P e ru v ia n C o rpo ra tion (ub i sup.).
Sir B . B . F i n l a y (A.-G.) replied.
Cfll Reported b y J. H . W I L L I A M S , E s q ., B srriuter-a t Law.
M A R IT IM E L A W CASES.
139
Q.B. D i v . ] St e a m s h ip Ba l m o r a l Co m p a n y Li m i t e d v. Ma r t e n. [Q .B. Di y. The Lo r d Ch a n c e l l o r (Halsbury).—So fa r
as I am concerned, I am o f opinion th a t upon the main point urged by counsel fo r the respondents we are bound by the decision of th is court in B a r r y v. P e ru v ia n C o rpo ra tion (73 L . T. Rep. 678 ; (1896) 1 Q. B. 208). I t was decided in th a t case that, when the judge directs an action to be entered in the lis t o f commercial causes, i t is an order, and, if i t is an order, i t is a m atter of appeal. A lthough th a t case was not a decision upon th is question, yet it was necessary to decide th is question in order to decide the p articular p oint in question in th a t case, and the court did in th a t sense decide it. I am, therefore, of opinion th a t the question is concluded in this court by th a t decision. W ith regard to the present case, i t has not really been argued th a t th is is a “ commercial cause.” I t is true th a t there is no definition of a “ commercial cause.”
I t would not be easy to make a definition in accordance w ith the rules o f logic, and I do not th in k th a t anyone would attem pt such a defini
tion. On the other hand, however, few business men would hesitate to say what was not a com
mercial cause in most instances. I t seems to me th a t i t would not be easy to find a case which is more p la in ly not w ith in the examples o f com
m ercial causes given in the regulations. This case raises a grave question o f international law as to whether the seizure o f these goods was ju stifie d under a proclam ation issued by the Sultan o f Muscat. I am of opinion th a t the present case is not in any way a “ commercial cause ” w ith in the meaning of the regulations. I do not intend to throw any kind of doubt upon the convenience and usefulness of the commercial court in cases which are properly entered in the lis t of commercial causes. I th in k th a t i t is most useful to litig a n ts, and I do not wish to say anything to interfere w ith its usefulness. I th in k th a t this order was wrong, and th at th is appeal m ust be allowed.
Sm it h, M .R .—I agree, and have nothing to add.
Co l l in s, L . J . - I agree. A p p m l
S olicitor fo r the appellant, The S o lic ito r to the Treasury.
Solicitors fo r the respondents, H o lla m s, Sons, Coward, and Hawksley.
H IG H C O U R T OF JUSTICE.
Q U E E N ’S B E N C H D IV IS IO N . J u ly 20 and A ug. 11, 1900.
(Before Big h a m, J.)
St e a m s h ip Ba l m o r a l Co m p a n y Li m i t e d v.
Ma r t e n, (a)
M a rin e insurance— General average and salvage expenses— Valued p o lic y — S h ip in s u re d f o r value m p o lic y — S h ip o f la rge r value a t tim e o f average statem ent — P ro p o rtio n o f general average a n d salvage charges to he p a id by u n d e rw rite rs .
Where a general average loss occurs under a valued p o lic y o f m a rin e insurance a n d the ship a t the tim e the average statem ent is made u p is o f a
(a) Reported by W . W, Or b, Esq,, B a rrister-at-Law .
la rg e r value tha n the value stated i n the p o lic y , the u n d e rw rite rs who have in sured the ship f o r the f a l l value as stated in the p o lic y are not bound to p a y the owner the whole loss, but are bound to p a y only the p ro p o rtio n w h ich the value in the p o lic y bears to the a c tu a l value on w h ich the average statem ent has been made up, and the same p r in c ip le applies equally in the a d ju s tin g , as between the owner and the u n d e r
w rite rs , o f a salvage c la im w hich the owner has had to p a y f o r salvage services.
A ship was in s u re d f o r 33,0001. and was valued in the p o lic y a t the same sum. D u r in g the currency o f the p o lic y a general average loss was sustained, and a salvage c la im had to be p a id by the owners u n d e r a salvage aw a rd f o r salvage ser
vices to the ship. The re a l value o f the ship f o r the purpose o f the salvage aw ard and a t the tim e o f m a k in g up the average statement was taken to be, a n d was in fa c t, 40,0001. I n a d ju s tin g the general average and salvage charges as between the u n d e rw rite rs and the owners o f the ship :
H e ld , th a t the u n d e rw rite rs , ha vin g in s u re d upon the value o f 33,0001. as stated in the p o lic y , were only lia b le un de r the p o lic y to p a y the owners th irty -th re e -fo rtie th s as w e ll o f the salvage charges as o f the general average charges, tha t being the p ro p o rtio n o f the value i n the p o lic y to the actu a l value a t the tim e o f m a k in g u p the average statement.
Ac t io n trie d before Bigham, J. in the Commercial Court.
The p la in tiffs were a lim ite d steamship com
pany carrying on business at Glasgow, and the defendant was an underw riter a t L lo yd ’s, and carried on business there.
The action was brought by the p la in tiffs, as the owners of the steamship B a lm o ra l, to recover a loss under a policy of marine insurance on the B a lm o ra l, underw ritten by the defendant; and the question in the case was how the claim fo r certain salvage services to the B a lm o ra l should be adjusted as between the owners (the p la intiffs) and th e ir underwriters, of whom the defendant was one, the owners contending th a t they were entitled to be reimbursed the to ta l amount of salvage they had been condemned to pay in a salvage action, and the underwriters contending th a t as the vessel was valued in the salvage
The action was brought by the p la in tiffs, as the owners of the steamship B a lm o ra l, to recover a loss under a policy of marine insurance on the B a lm o ra l, underw ritten by the defendant; and the question in the case was how the claim fo r certain salvage services to the B a lm o ra l should be adjusted as between the owners (the p la intiffs) and th e ir underwriters, of whom the defendant was one, the owners contending th a t they were entitled to be reimbursed the to ta l amount of salvage they had been condemned to pay in a salvage action, and the underwriters contending th a t as the vessel was valued in the salvage