MARITIME LAW CASES. 7‘J - Reports of Cases Relating to Maritime Law : containing all the deci

certificate is a representation not wv,ioh renders and a representation made for r0W V, , _The com-the defendants liable. [Cockbuisn, . • ,g Qn t he pany make the representation, ffioera. I t is not strength of tho survey made by tnoi the certifi-tho officer who makes the s“ r vey , A , wfts asking, Senlation. Now, misrepresentation w;thout aIiy know- When i t is either fraudulent, or m n 0f the accu-ledge sufficient to satisfy a reaso . there anything racy of the statement B®,18 ¿“¿Vtion that this com- here which would ju s tifiy the were negligently pany, acting through.their ApiaL d employed competent giving a certificate where they P coaraoy of the officers, and had no re a s o n to doubt t b e ^ n ,g report which those competent on fees are to said they were employed for rewardand t ^ ^ pai(J for competent officers, they being the

of Lloyd’s Register). [Q.B. Piv. made by the competent officers ordinarily employed, gave the certificate. YV here is the negligence ? There mav be negligence in the officers who made the survey, but how can i t he said there was misrepresentation in comes to me for the character of a subordinate servant.

I know nothing of that servant in d iv id u a lly ; perhaps I have never seen him. T apply to the head man of tho establishment, the butler or some other person, and say that person has been so many months m my service,

“ has he discharged his duties properly?” I get an answer which I have no reason to doubt, and give the character of tho servant accordingly. Am I respon

sible ? That is gratuitous; you do not receive reward, you are not paid for inquiring into the subject.

[ Co c k b u r n, C .J .-T h a t appears to me exactly this

L ™ Hero i t is gratuitous so far as the plaintiff is concerned; the plain tiff never paid a shilling ] True, but M r. Peters, who paid for this certificate, is furnished w ith i t by the company for the purpose of its being that we apply the principles that are applicable, not to a case of contract, but to a case of misrepresentation.]

I do not pretend that there is any contract between the nlain tiff and the defendants furthe r than this—that the assignment by M r. Peters to the plaintiff as a sort of eauitable assignment by a certificate, which, w ith the consent of the defendants, was to bo communicated case where they have no reason to doubt the accuracy of the statement, and where they have employed competent ncople who sign a report and have given the ir views m tho ordinary course of business-are they to be made responsible for what is not negligence in them ?] I can put the case upon no other ground than that ct misre-pTW nWMiams, Q.C. for the defendants.—I only wish to make one observation. I t is not really admitted by the defendants that there is any negligence at all and m the case negligence is only admitted hypothetically because i t would have involved a long and expensive inquiry, ia that there lias been misrepresentation. That is not tnnno-h You must have proof of a misrepresentation of a fraudulent character, as being made contrary to knowledge or, at a ll events, without knowledge. Here the defendants have done all they could; they have nnnsed a survey to bo made, and a report has been made by the officer they employed, who was a person compe

tent in tho matter in question. There is no dispute as fo that and the defendants, m the ordinary course of i ° J ’ through their chairman, gave the usual certi-

«nSto Assuming for tho purpose of the argument, there w ^ e g ^ g e n c e on the part of the person employed to

Q.B. D iv.] Thiodon v. Tin b a l l and others (the Committee of Lloyd’s Register). [Q.B. Div.

Peek (ubi sup.), inasmuch as here i t is not con

tended that there was any actual fraud on the part of the defendants. That principle, however, does not apply, hut I base my claim upon this ground, that the defendants have taken upon themselves a duty to the public, that is, to the ship-buying public, have undertaken a duty which they have negligently performed, and for the negligent performance of that duty they are liable in damages to any person who buys a ship upon the faith of their representation as to the classification and character of that ship. The defendants are bound by the act of their servants or officers in making that survey and classification, and a breach of duty by such servants or officers is a breach of duty by the defendants themselves, for which the defendants would he liable. The thing we are complaining of here is a thing about which no mistake could be made. [ W i l l s, J.—

W hat relationdo the defendants establish between themselves and the person who buys a ship, which imposes upon them a legal duty that they should be accurate or rig h t in their survey and classifica

tion of the ship ?] The defendants are responsible for the acts of their servants, and this negligent survey having been made by their servants, i t is the same as if i t had been done by themselves ; and i f the survey had been made by the defen

dants themselves, they must have seen tho inaccuracy of the report and the defects in the yacht, so that this inaccuracy of the report and classification must have been w ithin their own knowledge, and therefore they would have been responsible. They having brought into existence something which other people wTere sure to use, namely, their report as to the character of this vessel, were absolutely bound to see that that thing did fu lfil tho character which they repre

sented i t to be. In Derry v. Peek (ubi sup.) Lord Herschell said (14 App. Cas., at p. 360 : “ There is another class of actions which I must refer to also for the purpose of putting i t aside. I mean those cases where a person w ith in whose special pro

vince i t lay to know a particular fact, has given an erroneous answer to an inquiry made w ith regard to i t by a person desirous of ascertaining the fact for the purpose of determining his course accordingly, and has been held bound to make good the assurance he has given. . . . In cases like this it has been said that the circum

stance that the answer was honestly made in the belief that i t was true affords no defence to the action. Lord Selborne pointed out in Brownlie v. Campbell (5 App. Cas., at p. 935) th at these cases were in an altogether different category from actions to recover damages for false repre

sentation, such as we are now dealing w ith.” So in Slim, v. Croucher (1 L. T. Rep. N. S. 396; 29 make the survey, there is no negligence on the part of the company, nor any misrepresentation contrary to their knowledge of the fact, nor a misrepresentation that was not justified by the circumstances that were brought to the ir minds. Therefore I thin k tha t the action, as founded upon misrepresentation, w ill not lie.

Me l l o r, J.—I am of the same opinion, for the reasons given by my Lord. M r. Benjamin can only argue the case upon the ground of misrepresentation, which under the circumstances of the present case does not give a rig ht of action. Therefore, I think, our judgment should be for the defendants.

Judgment fo r the defendants.

Solicitor for the p la in tiff, M c D ia rm id .

Solicitors for the defendants, Parker and Clarke.

L. J. 273, Ch.) the effect of the decision was, that i f the person making the representation knows or ought to know the existence of a certain state of things, then he cannot get out of lia b ility by saying that he has forgotten the circumstances.

In that case Lord Campbell, L.C. said, “ I f a man made a representation as to what he ought to have known or did at one time know, he must make it good.” What has occurred in this case is, that the defendants either knew or ought to have known of the defective state of the yacht and the inaccuracy in the report, and so they can

not now tu rn round and say they did not know of it. [ W i l l s, J.—W hat is the meaning of the words in the certificate “ b u ilt under special survey ” P] We allege that i t is not the fact that the yacht was b uilt under special survey. I f there were no officer at all of the society present at the survey or the building, then that is a matter which ought to be known to the defendants, and the statement of that fact in the certificate would render the defendants liable :

Burrowes v. Lock, 10 Ves. 470 ;

Brownliev. Campbell, 5 App. Cas., at p. 938.

In this case i t was w ithin the knowledge of Lloyd’s whether the ship was properly b u ilt or not, and they have undertaken a duty to the plaintiff, as one of the public, that this yacht corresponded w ith and in fact was what their cer

tificate represented i t to be, and for the breach of that duty they are liable to the plaintiffs.

Cohen, Q.C. in reply. [ Den m an, J.—The only thing that at all impresses us in favour of the p la intiff is the statement in the certificate of the fact that this yacht was b uilt under special survey.] [He was stopped in his reply as to that part of the case.]

De n m a n, J.—This is a case really, so fa r as the reported cases are concerned, of firs t impression;

but M r. Cohen has been able to call our attention to a case which in substance is on all-fours, and it is a case that is entitled to considerable weight, even although i t is only reported in the Shipping Gazette, and not in the ordinary reports, because i t anticipates the actual law as laid down in the accurate manner i t is in Derry v. Peek (ubi sup.), and both sides here agree that i t is in accordance w ith Derry v. Peek (ubi sup.), so far as the lia b ility in cases of this sort is concerned. M r.

Aspinall has ably endeavoured to distinguish that case, but according to my view he has failed really to distinguish it. I t is well, however, to call attention to the particular nature of this case. The admitted facts of the case show that Lloyd’s—to use the most convenient expression

—is a society which is associated together for the purpose of obtaining a fa ith fu l and accurate classification of the shipping of the United Kingdom. Then the statement of claim says that they by their surveyors survey ships, and i t goes on to state the mode in which the thing is done; i t says that the committee make charges to the owners of ships, and then i t goes on w ith this statement: “ The said certificate and regis

ter are and are intended by the defendants to be acted upon by the owners, and through such owners by others dealing w ith such ships as tru ly representing the character and strength of such ships.” I th in k that the fallacy of the argument in favour of the p la in tiff really turns upon the assumption that that is a statement of

m a r i t im e l a w o a s e s

.

^{8 1}

Q.B. D iv.] The New Fe l t o n. [ Ad m.

fact made and triable in the cause, whereas in real truth, when one looks at the whole of the statement of claim, that is, in my view, an assumption or inference which is drawn from the state of things which is set forth in the whole of the statement of claim ; and i t is upon that very view which occurred to me in the course of the argument that the inability to make out a good case on behalf of the plaintiff here rests. M r. Cohen has just pointed out the distinction between this case and the cases in equity, some of them old cases, which were reliect upon by Mr. Aspinall. Those are cases m which the parties complaining of the defendants were parties who had a rig h t to go to the defendants and say, “ You have misled me. There was a p riv ity between us ; there was a duty towards me because you undertook a duty towards me, and as between me and you. That is not so in this case. This is a case of a certain person who, because there had been at a certain time a certificate given, merely by alleging neg

ligence contends that he has a good cause o action. The p la intiff cannot have a good cause of action unless he brings the case w ithin the decision in Derry v. Peek (ubi sup.), or w ithin the exception to that case ; and the exception to that case is the very exception which I have jq s alluded to. Otherwise the action is one whic is brought merely for an honest misrepresenta

tion without any fraud of a th ird party, between whom and the p la intiff there is no p riv ity at all.

The p la in tiff has no rig h t to do that according o Derry v. Peek (ubi sup.), and according to the ca.se to which our attention has been called, namely, the case reported in the Shipping ^ Gazette, o Braginton v. Chapman and others (Trustees oj Lloyd’8 Register) ; The Midas.

The p la intiff was obviously in a very gi ea.

difficulty as to how to state his case, and is very well indicated by the repetition in tue course of the statement of claim more tnan once, as though it were quite uncertain wmen, i f either, he could rely upon, of the ^ wore

“ represented or in the alternative warran • Now, there was no representation to the p am >

that is certain. There was no fraudulent repre

sentation; that also is certain. There was statement which may have been negligen Part, at all events, of the persons who made it.

That is possible enough; but there certa ? no warranty. I t would be impossible, - ’ and would be contrary to one s not,1^ , ■ f i«

real relations between parties such as P ‘ , and the defendants here, to suppose

was any warranty intended. I t wou > , mind, almost as great a stretch as to y ‘ m a public directory there was a statement of an address of a firm which was n,accurate, and which by reasonable diligence mig i , g made more accurate—i f in that sen ^ a negligent statement of the addre

anyone of the public who w as induced to give credit to that firm, or who had to pay a very large extra sum for a journey to go to that place to do business w ith that firm, would

of action against the proprietors of the d ire c to ^ for that statement. I t is an assumption and an inference which I th ink is not wa

any real solid relation between the ses assumes that in that sense, and for all P ■ P ■ ’ these certificates when given are intend

Vol. Y IL , N. S.

acted upon by all the world, and that that gives a rig h t against Lloyd’s, who do their best perhaps, and who sometimes make mistakes in so difficult a matter as the classification of ships. I th in k that the case of Braginton v. Chapman (ubi sup.) is really in p o in t; that M r. Aspinall has failed to distinguish it, and that we are bound by that decision, a decision of the Queen’s Bench Division, consisting of Cockburn, C.J. and my brother Mellor. I th ink that case is clearly in point, and that upon that ground alone our judgment ought to be for the defendants.

Wil l s, J.—I am of the same opinion. I agree that the equitable cases quoted are distinguish

able, and inasmuch as there is a judgment of the Queen’s Bench Division, which is exactly in point, unless some distinction can be made, I think we are bound by i t ; but I do not mean to lim it myself to that, because I th in k that decision was right.

Judgment fo r defendants. Action dismissed with costs.

Solicitors for the plaintiff, Waters and Bryan.

Solicitors for the defendants, Parker, Garrett, and Parker.

PROBATE, D IVO RC E, A N D A D M IR A L T Y D IV IS IO N .

A D M I R A L T Y B U S IN E S S . Thursday, May 7,1891.

(Before Jeune, J., assisted by Tr in ity Masters.) The New Pelton. (a.)

Collision—River Thames— Vessel crossing and turning in river—Steam-whistle signals—Rules and Bye-laws fo r the Navigation of the River Thames, arts. 17, 18, 24, 25.

A steamship turning round in the Thames is bound to give the four-blast signal on or before commencing to do so, in obedience to art. 18 of the Thames Rules and Bye-laws 1887, and it is not enough fo r her merely to blow three blasts when as part of the manœuvre of turning she reverses her engines.

This was a collision action in s titu te d by the owners of the steamship Plover against the owners of the steamship New Pelton, to recover compensation fo r damage caused by a collision between the two vessels.

The collision occurred in Gravesend Reach of the river Thames at about 3 p. m. on Feb. 9,1891.

The weather was fine and clear, the wind easterly, and the tide first quarter ebb.

The facts alleged by the plaintiffs were as follows :—A t about 3 p.m. on Feb. 9, 1891, the Plover, a screw-steamship of 361 tons register, and manned by a crew of nineteen hands all told, was at anchor in Gravesend Reach. She was lying inside the buoys off the Custom-house, and in order to proceed down the river, she being bound to Newcastle in ballast, tripped her anchor, set her engines on easy ahead and put her helm hard-a-port. A fte r she had got partly athwart the river, w ith her head angling s till up stream but towards the north shore, those on board of her saw the steamship New_ Pelton coming down the river distant about a mile, and bearing about two points on the port bow. Shortly after this the /„. Reported by J. P. Aspinall and Bdtler Aspinall, Esqrs.,

1

Barristers-at-Law.

8 2

The New Peeton. [ Adm.

A^dm.]

Plover's engines were put astern to assist her in getting head down river, and her whistle was blown three short blasts, as a warning to the New Pelton that the Plover was reversing her engines. The New Pelton continued to come on heading for the Plover, and although her whistle was again sounded three short blasts, the New Pelton w ith her stem struck the Plover on her port side.

The facts alleged by the defendants were as follows:—A t the time in question the New Pelton, a steamship of 470 tons register, manned by a crew of sixteen hands all told, was proceeding down the river Thames in water ballast on a voyage to Newcastle. She was in about mid-channel of Gravesend Reach, and was making about three knots an hour through the water. In these circumstances those on board of her saw the steamship Plover distant from half to two-thirds of a mile, and bearing about one and a half points on the star

board bow. The Plover was to the southward of the mooring buoys off the Custom-house, and was heading up river. Shortly afterwards the engines of the New Pelton were stopped, for two sailing barges which were standing across her course. The Plover was then seen to be angling towards the north shore, and to be crossing the river as if under a port helm. The engines of the New Pelton were at once put fu ll speed astern,

W dokumencie Reports of Cases Relating to Maritime Law : containing all the decisions of the courts of law and equity in the United Kingdom, and selections from the more important decisions in the colonies and the United States, 1896 Vol. 7 (Stron 117-123)