In testimony whereof, we have caused our common seal to be hereunto affixed the 18th Oct 1872.

(Signed) G. T. REAMAN,

The commou seal of Trinity House. The appelant did, on the said 6th June 1874. within the district for which he was so licensed as aforesaid, offer to take charge of the said ship then navigating within such district as above stated, and the respondent after such offer did himself pilot the said ship as in the said information or complaint is charged.

By sect. 91 of a local Act of Parliament, viz., The Ipswich Dock Act 1852 (15 Vict. c. cxvi.), "It shall be lawful for the corporation of Trinity House of Deptford Stroud, and they are hereby required to appoint" sub-commissioners of pilotage for the said port" (of Ipswich), and who "shall take the oath prescribed by the Act of Parliament passed in" 6 Geo. 4, c. 125, and to examine into the qualification of persons to act as pilots for the said port; and the said Corporation of Trinity House were empowered upon the certificate of such sub-commissioners to license such persons to act as pilots accordingly, and to publish such notice thereof, as is prescribed by the said Act of Parliament of 6 Geo. 4, c. 125. And by the same section it is enacted that, after the time limited in such notice, " All vessels, sailing, navigating, or passing into or out of the said port, or upon the coasts thereof, save and except under such circumstances as are saved and excepted in and by the said Act of Parliament, shall be conducted and piloted by such pilots only as shall be so licensed as aforesaid, and by no other pilots or persons whomsoever."

Sect. 92 of the said local Act enacted that the licences to be granted as aforesaid should be granted in such form, and for such period, and subject to such power of renewal and suspension, amendment or revocation, as licences granted under the said Act of Parliament so passed in 6 Geo. 4, and such pilots when so licensed should for all purposes and to all intents be deemed and taken to be pilots licensed under the said Act so passed as last aforesaid; and all enactments, protections, provisions, forfeitures, penalties, matters, and things contained in such last-named Act, or conferred or imposed thereby, except as thereinafter provided, and all bye-laws made by the said corporation, in pursuance thereof, should be deemed and taken to apply to pilots so to be licensed as aforesaid under the authority of that (the said 1pswich Dock) Act, and to all masters, owners, and others, in the same manner and to the same extent; and the forfeitures and penalties should be recovered and applied as if such pilots had been licensed under the said Act of Geo. 4.

Sect. 93 of the same local Act provides that the master of any vessel, inward or outward bound, refusing to employ a pilot licensed as aforesaid and offering his services (except such vessel be under the burden of fifty tons registered tonnage), shall pay full pilotage to such pilot as if such pilot had been employed.

Sect. 94 of the same local Act provides that such Act shall not extend to prevent the master of any vessel under the burthen of fifty tons by the certificate of registry, in the coasting trade, from corducting or piloting his vessel into or out of the said port, nor hinder any person from assisting any vessel in distress, nor subject, such person to the penalties of the said Act.

[Q. B.

The said Ipswich Dock Act prescribes the rates of pilotage to be charged, and makes provision for altering same with the consent of the Corporation of Trinity House.

Sect. 111 of the same last-mentioned Act saves all rights, estates, powers, jurisdictions, immunities, exceptions, advantages, and privileges belonging or appertaining to the mayor, aldermen, burgesses, and freemen of the borough of Ipswich, or any other person whomsoever, except as thereby expressly taken away or altered.

It was contended on the part of the appellant that the effect of the 93rd section of the said Ipswich Dock Act was to render pilotage compulsory in respect of all vessels navigating within the said Ipswich district, except in the excepted cases specified in that and the following section (sect. 94), and that the Eider not being within those exceptions, was subject to compulsory pilotage, and that the respondent was therefore liable to conviction under the Merchant Shipping Act 1854, which came into operation after the said local Act (viz., on the 1st May 1855); and the 353rd section of which said Merchant Shipping Act enacts that subject to alteration to be made by any pilotage authority, the employment of pilots shall continue compulsory in all districts in which the same was by law compulsory immediately before the said Merchant Shipping Act came into operation; and that every master of any unexempted vessel navigating within any such district who after a qualified pilot has offered to take charge of such ship, shall himself pilot such ship without possessing a pilotage certificate enabling him so to do, shall incur a penalty of double the amount of pilotage demandable for the conduct of such ship.

It was further contended on the part of the appellant, that although the appointment and control of pilots at Ipswich were vested in the Trinity House by the said local Act, Ipswich is not a Trinity House outport district within the meaning of sect. 370 (sub-sect. 3) of the Merchant Shipping Act 1854, inasmuch as Trinity House outpost districts are therein described as comprising any pilotage district for the appointment of pilots within which no particular provision is made by any Act of Parliament or charter;" and inasmuch as in the Ipswich district particular provision has been made by Act of Parliament. viz,, by the said Ipswich Dock Act 1852, and that, therefore, the exemptions relating to Trinity House outport districts, under sect. 379 of the said Merchant Shipping Act (which exemptions extend, inter alia, to all ships employed in the coasting trade of the United Kingdom, when not carrying passengers), do not extend to the present case.

It was contended on the part of the respondent, that the Eider was exempted from compulsory pilotage by virtue of sect. 111 and the latter part of sect. 91 of the said Ipswich Dock Act, which last-mentioned section, as above mentioned, exempts vessels navigating under such circumstances as are excepted by the said Act of 6 Geo. 4, c, 125, from the obligation to employ a pilot, and which said Act of Geo. 4, exempts, by its 59th section, the master of any ship employed in the regular coasting trade of the United Kingdom from any penalty for piloting his own ship, and that the words, save and except under such circumstances as are saved and excepted in and by the said Act of Parliament," could mean no other than the exceptions contained in the said 59th section of 6

66

Geo. 4; and that, notwithstanding the repeal of the said Act of 6 Geo. 4, by 17 & 18 Vict. c. 120 (which came into operation at the same time as the Merchant Shipping Act 1854), all the exemptions of the said Act of Geo. 4 are preserved by virtue of the 353rd section of the said Merchant Shipping Act; in support of which view the cases of The Earl of Auckland (1 Mar. Law Cas. O. S. 27, 177; 30 L. J., 21, Adm.), affirmed by the Privy Council (ib. 387); Reg. v. Stanton (8 E. & B. 445); and The Stettin (1 Mar. Law Cas. O. S. 229; 31 L. J., 209, Adm.), were cited by the respondent's attorney.

It was further contended on the part of the respondent that Ipswich is a Trinity House outport district, within the meaning of the said sect. 370 (sub-sect. 3), of the said Merchant Shipping Act, inasmuch as the provision for appointing pilots contained in the said Ipswich Dock Act places the appointment of such pilots upon the same footing as in Trinity House outport districts, and it is not, therefore, such a "particular provision as was contemplated by or is within the true meaning of the said sub-section, and that, therefore, the Eider was further exempted from compulsory pilotage by virtue of the exemptions relating to Trinity House outport districts contained in the said 379th section of the said Merchant Shipping Act, of all ships (not carrying passengers) employed in the coasting trade of the United Kingdom, or navigating within the limits of the port to which they belong.

It was further contended on behalf of the respondent that the expression "any vessel," in clause 93 of the Ipswich Dock Act, must be qualified by the expressions contained in the concluding part of sect. 91 of the same Act, and must be construed to mean "any vessel sailing navigating, or passing into or out of the said port or upon the coasts thereof, save and except under such circumstances as are saved and excepted in and by the said Act of Parliament," and that in the same manner sect. 94 must be qualified by the exception contained in sect. 93; otherwise only vessels under the burthen of fifty tons, by the certificate of registry, in the coasting trade, would be exempted from compulsory pilotage, whereas, by sect. 93, all vessels under the burthen of fifty tons register tonnage are exempted.

The justices were of opinion that the Eider was, under the circumstances above detailed, exempted from compulsory pilotage, by virtue of the above-mentioned provisions, both of the Ipswich Dock Act and the Merchant Shipping Act; but feeling there was room for reasonable doubt, both as to the true construction of the said Dock Act (the terms of the 93rd section thereof appearing to them contradictory to the exceptions contained in the latter part of the 91st section), and as to the true construction of the expression "particular provision" in the said 370th section of the Merchant Shipping Act, the justices, in dismissing the said information or complaint, consented, as before stated, to submit the above case for the opinion of this honourable court.

If the court shall be of opinion that the Eider was exempted from compulsory pilotage, by virtue of the provisions either of the said Ipswich Dock Act, or of the said Merchant Shipping Act, their decision will stand.

If the court should be of opinion that the Eider was not exempted from compulsory pilotage by

[Q. B.

virtue of the provisions of either of the said Ipswich Dock Act or of the said Merchant Shipping Act, the justices begged that this case might be remitted to them with an expression of such opinion that they might thereupon make such order in the premises as should be lawful and just.

Sutton argued for appellant, the complainant.
Graham appeared for the respondent.

BLACKBURN, J.-We need not trouble the counsel for the respondent. When we understand the point, we see the magistrates were quite right. Sect. 379 of the Merchant Shipping Act 1854, exempts from compulsory pilotage ships not carrying passengers employed in the coasting trade of the United Kingdom, in the Trinity House outport districts. This ship was employed in the coasting trade, and was not carrying passengers; the only question left, therefore, on that section is, whether there was a Trinity House outport district?

Sect. 353 had continued the compulsory employment of pilots in all districts in which the same was by law compulsory; and all exemp. tions for compulsory pilotage then existing within such districts were also thereby continued in force. Mr. Sutton argues upon these two provisions, that the exemptions of sect. 379 cannot go beyond those which existed at the passing of the Act in the districts where compulsory pilotage was the law before. It has been held in Reg v. Stanton (8 E. & B. 445), that a previously existing exemption is not limited by the express words of sect. 379, but it does not follow that sect. 353, although it continues an exemption beyond sect. 379, should continue a liability in opposition to the later section. Probably the words of the former of these two sections were forgotten by the Legislature when the latter was passed, but it is clear that the effect of sect. 353 cannot take away any of the express exemptions in sect. 379. The question, therefore, already mentioned, comes to be considered, viz., whether this is one of the Trinity House outport districts ?

The expression is defined in sect. 370 as "comprising any pilotage district for the appointment of pilots within which no particular provision is made by any Act of Parliament or charter." The general provision of law with respect to the appointment of pilots, which was in existence at the passing of the Act of 1854, was that contained in sect. 5 of 6 Geo. 4, c. 125. By that section the Corporation of Trinity House were "required to appoint proper and competent persons at such places or ports in England as they may think requisite (except within the liberty of the Cinque Ports, and all such other ports and places within or for which particular provision shall have been made by any Act or Acts of Parliament, or by any charter or charters for the appointment of pilots)," as sub-commissioners to examine and certify pilots. At that time, no doubt, a particular provision for appointing pilots at this port of Ipswich had been made by 45 Geo. 3, c. ci. That statute, however, was subsequently repealed, and the enactment concerning the appointment of pilots at this port in force at the time of the Merchant Shipping Act 1854, was sect. 91 of the Ipswich Dock Act of 1852. That section adopts the very words of the general provision of law with respect to the appointment of pilots contained in 6 Geo. 4, c. 125, s. 5, and applies them to the particular port of Ipswich, with the exception only that the local Act requires the persons appointed sub-commis

Q. B.]

sioners to be" resident within the port of Ipswich," instead of the words used in the public Act, "at each port or place for which any such appointment shall be made." That is the only difference between the general provision and the particular provision for Ipswich at the time of the Merchant Shipping Act 1854, and I do not think the definition in sect. 370 of that Act could have been intended to refer to such an adoption of the general law by the words " particular provision," . . . " by any Act of Parliament." The essence of the provision is the mode of appointment of sub-commissioners and pilots, and that is exactly the same in the local as the public Acts. The provision for the appointment of pilots in Ipswich district was, therefore, the general law, and that district is, according to the 370th section, a Trinity House outport district.

I think the justices were right in holding this to be a case of exemption from compulsory pilotage.

MELLOR, J.-I am of the same opinion. I think the words "particular provision," must relate to something which has a greater distinction from the general law than this has.

QUAIN, J.-I am of the same opinion. I think the description, "particular provision," applies only to some mode of appointment of pilots different from any by the Trinity House and their sub-commissioners.

Judgment for respondent. Attorney for appellant, W. H. Fairfield, for A. A. Watts, Ipswich; attorney for respondent, Edward Bromley, for Jackaman and Son, Ipswich.

Friday, June, 11 1875,

PREVITE AND ANOTHER v. THE ADELAIDE FIRE AND MARINE INSURANCE COMPANY.

Reg. Gen. H. T. 1853, R. 12-Cost of witnesses examined before the master.

In an action on a marine insurance policy, owing to plaintiffs' delay in complying with an order for production of papers, defendants did not plead until a year after declaration. Meanwhile, to save expense, defendants examined witnesses before the master, under 1 Will. 4, c. 22, s. 4. Defendants pleaded unseaworthiness, &c., and paid 251. into court on the money counts for the premium, Plaintiffs took the money out of court, and joined issue on the other pleas, but afterwards discontinued:

Held, that defendants were entitled to the costs of the witnesses examined before the master, such costs not being costs incurred before instructions for plea, within the meaning of Reg. Gen. H. T. 1653, R. 12, and a rule to review taxation was made absolute.

THIS was an action on a policy of insurance on the ship Balaclava, claiming for a total loss; there was also a count for money received.

The action was commenced on the 1st Dec. 1871; the declaration was delivered on the 17th Jan. 1872, and on the same day the defendants obtained an order for the production of the ship's papers, which was not complied with until Jan. 1873.

On the 13th Feb. 1873 the defendants delivered pleas, including pleas of unseaworthiness, concealment, and deviation to the first count, and payment of 251., the amount of the premium into court, on the count for money received.

Plaintiffs replied the same day, taking the money out of court, and taking issue ou the other pleas, VOL. II., N.S.

[Q. B.

and gave notice of trial for the next London Sitting. The cause was not reached, and, ultimately, on the 2nd Dec. 1874, the plaintiffs served a rule to discontinue.

Some of the crew of the Balaclava, who were material and necessary witnesses for the defendants, were detained in this country for the purpose of being examined in the cause, and in consequence of the plaintiffs' delay in complying with the order for the production of the ship's papers, and to avoid further expense, they were examined before the master, under 1 Will. 4, c. 22, s. 4, in Aug. and Sept. 1872.

On taxing the defendants' costs on the rule to discontinue, the master refused to allow the costs of these witnesses, on the ground that they were costs incurred before instructions for ples.

By 1 Will. 4, c. 22, s. 4: "It shall be lawful to and for each of the said courts at Westminster . . . and the several judges thereof, in every action depending in such court, upon the application of any of the parties to such suit, to order the examination on oath . . . before the master . . . of the said court... of any witnesses within the jurisdiction of the court where the action shall be depending."

...

Rule 12. Regulo Generales of Hilary Term 1853, is as follows:

When money is paid into court in respect of any particular sum or cause of action in the declaration, and the plaintiff accepts the same in satisfaction, the plaintiff, when the costs of the cause are taxed, shall be entitled to the costs of the cause in respect of that part of his claim so satisfied, up to the time the money is so paid in and taken out, whatever may be the result of and issue or issues in respect of other causes of action; and if the defendant succeeds in defeating the residue of the claim, he will be entitled to the costs of the cause in respect of such defence, commencing at "instructions for plea," but not before.

J. J. Mathew moved for a rule calling on the plaintiffs to show cause why the costs of the witnesses examined before the master, as above mentioned, should not be allowed to the defendants, or why the master's taxation should not be reviewed. The court granted a rule nisi to review the taxation.

Lanyon showed cause in the first instance.-The case depends entirely on the construction of Rule 12, and according to the plain meaning of the words of that rule, the defendants are not entitled to be allowed the costs of these witnesses, for the examination having taken place before instructions for plea, the costs were incurred before instructions for plea. [COCKBURN, C.J.-The witnesses were examined for the purpose of their depositions being made use of by being read in court on the trial.] The plaintiffs, having had a cause of action, are entitled to their costs until their claim was satisfied. The taxation is in accordance with the usual practice in Rule 12.

J. C. Mathew was not called on to support the rule.

COCKBURN, C.J.-I quite agree that the question turns entirely on the construction of Rule 12. When that rule is looked at it is plain that it contemplates different stages of procedure. When money is paid into court, and the plaintiff accepts

2 P

Q. B.]

the same in satisfaction, he is entitled to the costs of the cause in respect to the part of his claim satisfied up to the time when the money is paid in and taken out, whatever may be the result of the other issues. That contemplates the case where money is paid in in the ordinary course. Then the rule goes on, "and if the defendant succeeds in defeating the residue of the claim, he will be entitled to the costs of the cause in respect of such defence, commencing at 'instructions for plea,' but not before." Mr. Lanyon contends that, taking the latter part of the rule, inasmuch as these costs were incurred before instructions for plea, they cannot be recovered as costs in the cause by the defendants. But the rule is framed with regard to the different stages of procedure, and the examination took place in acticipation of the trial, and if these witnesses had been examined on the trial they would have been the defendants' witnesses. Assuming that no money had been paid in, if the plaintiffs' case had been made out on the money counts, yet they would have been the defendants witnesses, and the master would have taxed their costs for the benefit of the defendants, as these costs would have been incurred in establishing the defendants' case; à fortiori, this would have been so if they had been called on the trial after money had been paid in. Does it then make any substantial difference that the witnesses were examined before the trial, and before instructions for plea? The rule is intended to meet the case of what is done for the purpose of preliminary proceedings, but these witnesses were examined for the purpose of the trial, and the costs, therefore, were costs in the cause, and were not incurred at such a stage of the proceedings as to bring them within this rule.

QUAIN, J.-I am entirely of the same opinion. The costs here were incurred by the plaintiffs' act and default in not complying with the order for production of the ship's papers, in consequence of which the witnesses were kept in this country when it was doubtful if the plaintiffs would go on. The plaintiffs cannot take advantage of their own default. I also agree with my Lord that these costs were not costs incurred before instructions for plea, within the meaning of Rule 12. The witnesses were examined de bene esse, and the costs must be considered as having been incurred as if they had been examined at the trial in the ordinary course. The mere fact of the examination having taken place at an earlier date does not make any difference. The costs should be considered as incurred at the proper stage at which they would come in, and therefore should be allowed among the general costs in the cause. I think the rule ought to be made absolute.

FIELD, J.-I am of opinion that the rule should be made absolute, on the ground stated by my Lord. The declaration contains two counts, one on the policy and one for money received. As to the special count, there were pleas of unseaworthiness, concealment, and deviation, and as to the indebitatus court, 251. was paid into court. In point of fact, the defendants succeeded, and the costs of these witnesses were a part of the costs of their defence. But it has been objected that they were incurred before instructions for plea, according to the construction of the last words of Rule 12, and the master held himself bound by the last words of the rule, if the costs came into existence before instructions for plea. I think that con

[C. P.

struction is too narrow. Here the costs were incurred in respect of a defence on which the defendants succeeded; if the cause had been tried, and no money paid into court, they would have been taxed as the defendants' costs. In point of time they were before instructions for plea; in fact, they were incurred for a defence after.

Rule absolute to review the master's taxation. Attorneys for the plaintiffs, Westall, Roberts, and Barlow; attorneys for the defendants, Hollams, Son, and Coward.

COURT OF COMMON PLEAS. Reported by ETHERINGTON SMITH and J. M. LELY, Esqrs., Barristers-at-Law.

Monday, April 26, 1875.

BROWN AND OTHERS v. POWELL DUFFRYN STEAMSHIP COMPANY.

Charter-party-Contract for master's signature to bill of lading-Signature by master for more tons than delivered-Payment by shipowner to consignees of sum of money in respect of difference-Whether sum 80 paid recoverable" by shipowner from charterer-Bills of Lading Act (18 & 19 Vict. c. 111).

The signature of the master to the bill of lading does not estop the shipowner.

Declaration that it was agreed between the plaintiffs and the defendants by charter-party that the plaintiffs' ship should take on board, at Cardiff, a full cargo of coal, to be provided by the defendants, and proceed therewith to Buenos Ayres, "the master of the ship to sign bills of lading for weight of the said cargo put on board as presented to him by the defendants without prejudice to the tenor of the charter-party," and that the ship was loaded by the defendants with a cargo of 573 tons.

Breach, that the defendants presented to the master

bills of lading for a weight of 605 tons, whereby the plaintiffs were rendered liable and forced to pay the consignees of the cargo a certain sum in respect of the difference between the cargo as indicated in the bill of lading and as actually shipped: Held, on demurrer to the breach, a bad declaration, inasmuch as the plaintiffs were not bound to pay the consignee such difference, and there was no warranty on the part of the defendants that the bill of lading was indisputably correct. THIS was a demurrer to such part of a declaration as alleged a breach by the defendants of a charterparty.

The declaration stated that it was agreed by the charter-party that the plaintiffs' ship, called the Chigford, then at Newry, should proceed to Cardiff and there take on board as tendered a full and complete cargo of Powell's Duffryn steam coal, which the charterers bound themselves to provide for shipment, not exceeding what the said vessel could reasonably stow and carry, and being so loaded, should therewith proceed to Buenos Avres or Rosario, as ordered on singing bills of lading, and deliver the cargo on being paid freight on the quantity delivered at the rate of 378. per ton of 20cwt., if for Buenos Ayres, or of 42s. per like ton if for Rosario, with 61. gratuity in either case, the master paying dock and harbour dues, trimming, wharfage, and keelage on cargo, consulages, lights, pilotages, and other port charges whatsoever, certain perils and casualties excepted,

C. P.]

the said freight to be paid as hereinafter mentioned on unloading and right delivery of the said cargo, sufficient cash for the ship's ordinary disbursements, not exceeding one-third of the amount to be advanced on signing bills of lading, less six per cent. for interest and insurance, sufficient cash for ship's disbursements to be advanced at the port of discharge, not exceeding one-third of the freight, and the remainder by approved bill upon London, at three months' date from the right delivery of cargo, the master of the said ship to sign bills of lading for weight of the said cargo put on board as presented to him by the defendants without prejudice to the tenor of the said charter-party, within twenty-four hours after the said coals should have been put on board, or pay 4d. per registered ton per day for each day's delay; that the ship sailed to Cardiff and was there loaded by the defendants with a cargo, consisting of a certain quantity, that is to say, 573 tons of Powell's Duffryn steam coal.

Averment of performance of conditions precedent.

Breach, that the defendants presented to the master of the said ship for his signature, and caused and procured him to sign certain bills of lading for the said cargo for a weight greatly exceeding the said weight so put on board as aforesaid, that is to say, for 605 tons, whereby the plaintiff was rendered liable to pay, and was forced to pay to the consignees of the said cargo at Buenos Ayres 311., as and for the value of the difference between the said 605 tons mentioned in the said bills of lading, and the said 573 tons so shipped as aforesaid, and a further sum of 131. for dock and other dues and charges in respect of the same difference. And although the said ship was ordered to carry and carried the said agreed cargo in the said ship to Buenos Ayres aforesaid, and there unloaded and made right delivery of the said cargo according to the terms of the said charterparty, and although the said freight amounted in the whole to 11191., whereof a certain part was advanced according to the terms of the said charter-party, yet the remainder of the said freight was not paid by such bills as in the charter-party mentioned nor at all, and the same is wholly due and unpaid.

Demurrer, on the ground that it was not a breach of the terms of the charter-party.

Joinder in demurrer.

(a) Sect. 3 of 18 and 19 Vict. c. 111 is as follows: "Every bill of lading in the hands of a consignee or endorsed for valuable consideration representing goods to have been shipped on board a vessel shall be conclusive evidence of such shipment as against the master or other persons signing the same, notwithstanding that such goods, or some parts thereof, may not have been so shipped unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact lading on board. Provided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims."

Grant v. Norway, 10 C.B. 665;

Jessel v. Bath, L. Rep. 2 Ex. 267;

[C. P.

McLean v. Fleming, ante, vol. 1, p. 160; L. Rep. 2 Sc.
App. 128.

"We are called upon for the first time," said
Kelly, C.B., in Jessel v. Bath (ubi sup.), "to put
a construction on this statute (18 & 19 Vict. c. 111),
and it is fit that we should state our opinion as to
its effect with reference to the character of the
party signing the bill of lading where an action is
brought against the owner or charterer.
Here the master has not signed, but other persons,
the Messrs. Barchi, have; are, then, the defendants
within the second branch of the alternative of the
statute? They cannot be so, unless Messrs. Barchi's
signature is equivalent to their own, that is, unless
Messrs. Barchi have signed in their place. It
appears that these gentlemen, the defendant's
agents, have signed in conformity with a practice
arising out of circumstances which would make it
not merely inconvenient, but impossible, for the
agents to weigh the goods, and that the weight is
accordingly taken from the shipper. It appears
that, under such circumstances, the agent signs
instead of the master, and that no difference is
recognised, as any matter of trade usage or
understanding between the efficacy of a signature
by the master. Messrs. Barchi signed instead of
the master, and not instead of the defendants; and
if this action had been against the master the
point raised by the plaintiff might have been
material, but being neither against the master nor
against the person actually signing the bill of
lading, it entirely fails."

F. Meadows White, for the plaintiffs, argued that the breach assigned in the declaration was a good breach of the charter-party; inasmuch as there was an express if not an implied warranty by the defendants that they would present bills of lading for the correct weight.

Lumley Smith in reply.

Lord COLERIDGE, C.J.-I am of opinion that our judgment ought to be for the defendants.

The declaration is on a charter-partymade between the plaintiffs as shipowners, and the defendants as charterers, and containing a stipulation on the part of the plaintiffs that the master of the ship chartered should sign bills of lading for weight of the cargo put on board as presented to him by the defendants without prejudice to the tenor of the charter-party. There is an averment that the defendants presented and the master signed bills for an amount exceeding that actually shipped by thirty-two tons, and that the plaintiffs paid the consignees of the cargo two sums of 311. and 131. in respect of the difference; and the breach is that the defendants have not repaid those sums to the plaintiffs. The defendants have demurred on the ground that the plaintiffs were under no obligation to pay to the consignees the sums which the plaintiffs now seek to recover from the defendants.

Now it is plain from the authorities, especially from Maclean v. Fleming (ubi sup.) that the master of a ship, by signing bills of lading, does not bind the owner to deliver the amount of goods specified in the bills, but only the amount which has been actually put on board. But it is said that although such may be the general principle of law, the charterers have by this particular charter-party avoided the application of that principle, so that the shipowners were obliged either to deliver to the consignees the exact quantity named in the ill