H. OF L.]

commerce. It is said (Paley on Agency, by Lloyd, 226), and though I do not know how it was, it is probable, that in the Bill which afterwards became the 4 Geo. 4, c. 83, as it was introduced, the proviso was that the consignee should not have notice by the bill of lading, and that Lord Eldon in committee added the important words, or otherwise. Still it is notice and not merely knowledge; and notice and knowledge are not necessarily the same. The fourth ques

tion was not framed with this distinction in view. I should be unwilling, without more consideration, to decide either way, whether knowledge, however acquired, did or did not deprive the consignee of his rights of lien for advances made subsequent to the acquiring of that knowledge, and it is unnecessary to decide that question now, for notice undoubtedly does so deprive him. In the present case the knowledge was conveyed by the two letters I have read, inclosing the one the charter-party and the other the invoice and the bills of lading. And I think knowledge conveyed by the consignor to the consignee in such letters is notice. It is not necessary that there should be notice of the name of the person who has an interest, but only that there is a person having such an interest, or as in the Spanish letter he is called an interesado; that is enough to give the consignee notice that the consignor "is not the actual and bonâ fide owner of such goods," or rather of the whole interest in such goods. But so far as the consignor has an interest by way of lien or otherwise paramount to that of the interesado he is the actual owner, and the consignee has his lien. The order appealed against is, therefore, I think, right, as far as the merits go.

on

I will now proceed to make a few remarks

what I may call the technical points. The plaintiffs, in their statement of claim, say: "The plaintiffs claim (1) 11,000l., with interest, until payment; (2) a declaration that the said sum of 11,000l. is the money of the plaintiffs as against the defendants; (3) such further and other relief as the nature of the case may require." This seems to me to be exactly what would have been more briefly stated on the old system of pleading under a count for money had and received to the use of the plaintiffs. The first eighteen paragraphs of the statement of defence amount to saying that the money was not had and received to the use of the plaintiffs, but to the use of the defendants and other persons who had a lien paramount to the plaintiffs. That would, under the old system of pleading, have amounted to the general issue; and under it the defendants could have raised the whole question decided on what I have called the merits. It was, I think, at your Lordships' bar contended that the plaintiffs could not have maintained money had and received, even if there had been no lien at all, as suppose that the balance between the plaintiffs and Demestre and Co. had been in favour of the plaintiffs, and the balance as between the defendants and Demestre and Co. had been in favour of Demestre and Co., still it was said that money had and received would not have lain, for the defendants received the money to the use of Demestre and Co. exclusively. Had their relation to them been that of servant to master, as in Stephens v. Badcock (3 B. & Ad. 354), that would have been

So.

I am not able to understand how that could

[H. OF L.

be maintained after the answers of the jury to the sixth and eighth questions. By the 19th and 20th paragraphs of the defence it is alleged: "19. The city of Havannah, where the plaintiffs are carrying on business, is in the island of Cuba, a colony of Spain, and governed by the law of Spain, and the plaintiffs, and their factors and agents, the said Demestre Chia and Co., who also carry on business in Havannah aforesaid, conducted all the business relating to the shipment of the said cargo of tobacco to the defendants in Havannah aforesaid, and subject to the said law of Spain. 20. By the law of Spain, whenever an agent deals in his own name with the business intrusted to him by his principal, a third person with whom such agent contracts is bound to consider the agent as a principal entitled to deal with the subject-matter of the contract as his own property, and the principal of such agent has no right of action against the third party, unless the principal obtains an assignment from the agent, and the third person so contracting with the agent, as aforesaid, has no right of action against the principal. It was under this law of Spain that the defendants, who have had long experience in commerce with Spain and her colonies, accepted the consignment of the said cargo." No evidence whatever was given of that part of the allegation as to the law of Spain which I have marked in italics. The portions of the Spanish Code cited seem to me to go far to show that the law of Spain does differ from the law of England to some extent. Article 119 of the Spanish Code seems to show that the law of Spain does not establish privity of contract between a principal and those with whom his agent has made a contract to the same extent as the law of England. But the plaintiffs' case in no respect depended on the existence of any privity of contract between the plaintiffs as principals of Demestre and Co. and the defendants. They had a right, so long as the goods remained in specie, a right consequent on their property, to demand and take their goods from Mildred and Co., on satisfying whatever lien paramount to their right there was on the goods; this depended not on agency nor on privity of contract, but upon property. And the defendants having effected the insurance for the benefit of all whom it concerned, they had the same right to demand the insurance money that they would have had to demand the goods. They must satisfy every lien on the policy, paramount to their own, but after doing so are entitled to the surplus. It was contemplated by Maspons and Demestre that the tobacco was to be sold, and the proceeds were to be remitted. Had this been done questions might have arisen, for the solution of which it might have been necessary to consider whether there was privity of contract, and to discuss the doctrines laid down in the cases cited in the judg ment of the Court of Appeal. Should any such questions arise in some other case, the reasoning in the judgment will be well worthy of consideration. But the goods perished at sea, when the only thing done had been to effect the insurance. With great respect to Lindley, L.J., I will not follow him in discussing questions which do not arise. I think, therefore, that the order appealed against should be affirmed, and the appeal dismissed, with costs.

The LORD CHANCELLOR (Selborne).-My Lords:

CT. OF APP.]

I agree with the conclusion of my noble and learned friend. The fact that the appellants had notice of the respondents' interest is enough, in my opinion, to decide this case. There is one observation of my noble and learned friend as to a possible distinction between "notice " and "knowledge" as to which I should desire to reserve the expression of any opinion on my own part until some case arises in which the question whether actual knowledge, however acquired, is or is not notice, may become material.

Lord FITZGERALD.-My Lords: I concur in the conclusion at which Lord Blackburn has arrived. There were but two questions in the cause when the facts came to be properly understood, though some other matters were very elaborately discussed. The first question was whether the plaintiffs could in their own names maintain any action against the defendants: for the present I pass that question by. The second question was as to the extent of the defendant's lien, which went to the whole merits of the action. That the defendants had a lien for their outlay and commission in respect of the policies of insurance was not disputed. Lindley, J., in delivering the judgment of the Court of Appeal, says, with accuracy, that this question of lien must be determined by English law, and depends on a question of fact, namely, whether the defendants knew before their alleged lien accrued that Demestre and Co. were acting for a principal whose name was not disclosed. I think this is correct, whether the rights of the parties are to be determined by the Factor's Act, or by analogy to it, or at common law. On this question of fact there is no opening for any doubt. The lien, if any, of the defendants never attached, speaking accurately, on the cargo of the Bachi, for they never had possession, or the right to the possession, of the cargo, or made any advances on it. Both ship and cargo had perished before the bill of lading and other shipping documents reached the defendants, and before any insurance had been effected. Assuming that the policies represented the cargo, they were not effected till the 18th Aug., 1880, and before that day the defendants had received Demestre and Co.'s letter of the 24th July, 1880, in which occur the passages, "the interesado has decided on making the shipment which he proposed to make previously. To that end we have chartered the Spanish brig Bachi," and "the cargo, in order to please the interesado, we will insure here with the Lloyd Habanero." We have thus a clear intimation to the defendants that there was a party interested, and such party is described as the interesado making the shipment, at whose desire it had been intended to effect the insurances with the Lloyd Habanero. The notice to the defendants is in effect that there is a third party, who apparently had the whole interest in and control over the cargo. The Factors Act, sect. 1, deals with the apparent ownership of goods, and provides that for certain purposes, and under certain circumstances, the apparent owner shall be deemed to be the true owner, so as to entitle his consignee to a lien for advances, but notice to the consignee deprives him of the statutable protection. may be open to argument and consideration whether that enactment directly embraces, or is applicable otherwise than by analogy to the case before us, but it being quite clear that the defendants had notice that Demestre and Co. were not

It

[CT. OF APP.

the actual and bonâ fide owners of the cargo, the defendants can have no benefit from the statute, and if they claimed their alleged lien on the proceeds of the policy at common law, the notice equally excludes that lien.

The

On the question as to whether the plaintiffs had a right to intervene, and in their own names sue the defendants for the money received on foot of the policies of insurance, I think there never was an opening for doubt. defendants having notice of "the interesado" effect the policies "as well in their own names as for and in the name and names of all and every other person or persons to whom the same doth, may, or shall appertain, in part or in all, doth make assurance, and causeth themselves, and them and every of them, to be assured." Prior to the effecting of these insurances they had received the invoice of the goods, headed thus: "Invoice of the following goods shipped by us on board the Spanish brigantine Bachi, Captain Uribe, for Gibraltar, and consigned to Messrs. Mildred, Goyeneche and Co., London, for account and risk of whom it might concern.' Before the receipt of any part of the insurance moneys the defendants had notice that the plaintiffs were the interesado, and if the plaintiffs are entitled to recover any part of the proceeds, as your Lordships hold that they are, then the money so received by the defendants is money had and received by the defendants for the use of the plaintiffs, which, in justice and good conscience, they ought to pay over, and an action lies at the suit of the plaintiffs to recover it.

Order appealed from affirmed, and appeal dismissed with costs.

Solicitors for the appellants, Freshfields and Williams.

Solicitors for the respondents, Waltons, Bubb, and Walton.

Supreme Court of Judicature.

COURT OF APPEAL.

Dec. 17 and 18, 1883. (Before BRETT, M.R., BAGGALLAY and BOWEN, L.JJ.) Burton and Co. v. ENGLISH And Co. (a) Charter-party-Deck load at merchant's riskJettison-General average.

Words in a charter-party providing that a deck load of timber is to be carried at full freight, but "at merchant's risk," do not preclude the owner of the deck load from recovering general average contribution if the cargo be carried on deck by the custom of trade and jettisoned.

The plaintiffs' deck cargo of timber on board the defendants' steamship was jettisoned on a voyage from the Baltic to London.

The charter-party contained a clause that the steamer should be provided with a deck load, if required, at full freight, but at merchant's risk. Held (reversing the judgment of Cave and Day, JJ.) that these words did not prevent the plaintiffs from recovering a general average contribution from the defendants.

(a) Reported by A. A. HOPKINS, Esq., Barrister-at-Law.

CT. OF APP.]

THIS was an appeal from a judgment of Cave and Day, JJ. upon a special case, reported 5 Asp. Mar. Law Cas. 84; L. Rep. 10 Q. B. Div. 426; 48 L. T, Rep. N. S. 730.

The Divisional Court gave judgment in favour of the defendants.

The plaintiffs appealed.

Cohen, Q.C. and Barnes for the plaintiffs.

Webster, Q.C. and Myburgh, Q.C. for the defendants.

The arguments used in the court below were repeated. The following cases were cited:

D'Arc v. London and North-Western Railway Com-
pany, L. Rep. 9 C. P. 325; 30 L. T. Rep. N. S.
763;

Hall v. Great Eastern Railway Company, L. Rep. 10
Q. B. 437; 33 L. T. Rep. N. S. 306;
Steel and others v. State Line Steamship Company,

3 Asp. Mar. Law Cas. 516; L. Rep. 3 App. Cas.
72; 37 L. T. Rep. N. S. 333;

Taylor v. Liverpool and Great Western Steam Com-
pany, 2 Asp. Mar. Law Cas. 275; L. Rep. 9 Q.B.
546; 30 L. T. Rep. N. S. 714;

Macawley v. Furness Kailway Company, 27 L. T.
Rep. N. S. 485; L. Rep. 8 Q. B. 57;
Wright v. Marwood, 4 Asp. Mar. Law Cas. 451; 45
L. T. Rep. N. S. 297; 7 Q. B. Div. 62;
Austin v. Manchester, Sheffield, and Lincolnshir
Railway Company, 21 L. J. 174, C. P.

uhire

BRETT, M.R.-In this case the plaintiffs were timber merchants, who, at a Baltic port, shipped upon a vessel belonging to the defendants a cargo of timber, part of which was, according to the contract, stowed upon the deck, and part in the hold, and also a cargo of iron. The vessel was taken up by the plaintiffs under a charter-party, and the goods were put on board under a bill of lading which incorporated the charter-party. During the voyage, and in a case of necessity, part of the timber which was stowed on the deck was jettisoned by the captain of the vessel for the safety of the adventure. This action was then brought by the plaintiffs to obtain from the defendants general average contribution in respect of the cargo so jettisoned. It is said that the defendants, the shipowners, are not liable to make this contribution by reason of a stipulation which is contained in the charter-party, or in the bill of lading which incorporates the charter-party. In the first place, I wish to point out that this is not a general ship; it is a ship taken up by the charterer for the purpose of carrying two or three different sorts of cargo, but it is not a general ship. The clause in the charter-party which is relied upon by the defendants is as follows: "The steamer to be provided with a deck load, if required, at full freight, but at merchant's risk." Now, the first remark which arises upon that stipulation is, that it is obviously made in favour of the shipowner; it gives him leave to carry some cargo upon deck so that he can earn a larger freight, and it absolves him from some of the risks which he would otherwise be open to as a carrier.

Cave, J. has held that these words absolve the shipowner from this liability upon which he is sued in this action, and the question before us is, whether he was right in so holding. That which seems to have most weighed upon his mind to lead him to this decision seems to have been this, that to hold that the shipowner was liable for this contribution would lead to the anomaly that the shipowner would be liable to general average contribution

[CT. OF APP.

where, as here, the deck cargo was properly jettisoned, but would be free from liability if it was unnecessarily and improperly jettisoned; at first sight that seems a captivating point, and I do not wonder that it led the learned judge to the decision at which he arrived, and the question is, whether we can agree with his view. This stipulation contained in the charter-party is clearly a limitation of the liability of the shipowner in respect of his contract of carriage, and is a stipulation in his favour; therefore, according to the general rule, we must construe it, if we have any doubt, against the person in whose favour it is made. I now come to consider by what right the owner of the cargo claims a general average contribution; does he claim it in any way under the contract of carriage or under some other right? It seems to me that this stipulation in this charter-party is intended to cover every act of the master which, being done as servant of the shipowner, would make the shipowner liable, but for the words of the stipulation. Therefore, it would cover the case of improper jettison by the captain, it would cover the case of collision brought about by the negligence of the captain or crew, or the case of loss caused by stranding the vessel by reason of the negligence of the captain or crew. And I think that if the liability of the shipowner to pay this contribution can be properly said to arise in consequence of an act done by the captain or crew as his servants, then it follows that the shipowner is free from liability under these words.

How, therefore, does the claim for this contribution arise? It does not arise in consequence of an act done by the captain or crew as servant of the shipowner, because, if it did, the claim of the cargo owner would be a claim for the whole value of the lost cargo, and not for a contribution towards that value. The theory of the thing is, that the captain does this act of jettison, not as the servant of the shipowner, but as the servant of the cargo owner; it is taken to be a voluntary sacrifice for the safety of the whole adventure, to which the cargo owner consents. By what law or right, then, does a claim for general average contribution arise? It has been hinted by Lord Bramwell (Wright v. Marwood, 4, Asp. Mar. Law Cas. 451) that it may arise from an implied contract between the parties, and although I always differ from any opinion of Lord Bramwell with great doubt, I can hardly agree with this view. It seems to me that it does not in any way arise upon contract. There is no such right in a contract of carriage by land; if goods are in a warehouse and are on fire, and are carried out to save the building, no claim for general average can arise. It seems to me that the right arose at the time of the making of the Rhodian laws, it is a consequence of the peculiarity of sea danger, and has become incorporated into the municipal law of England as a law of the ocean and of marine risk, because when two parties were jointly in danger of the same misfortune, natural justice required that any loss falling upon one party for the safety of the whole adventure should be recouped by the other party in proportion. Now, if this is so, and if this liability does not arise upon the contract of carriage, it will not be covered by the words in the contract of carriage, and for these reasons I venture to disagree with the judgment of the learned judge who tried this case.

It seems to me that his difficulty does not, in reality, arise; because the act of the captain in making an improper jettison of the deck cargo, and his act in making a proper jettison as here, for the safety of the whole adventure, is an act done in each case in a different capacity. In the one case it is done in his capacity as servant of the shipowner and, but for these words, would render the shipowner liable; in the other case it may be said to be done as servant of the cargo owner, for the safety of the whole adventure, and the general maritime law then gives the cargo owner, quite apart from the contract, a right to general average contribution at the hands of the ship owner. For these reasons I cannot agree with the judgment of Cave, J., and I think this appeal should be allowed.

BAGGALLAY, L.J.-The question in this case arises in consequence of a stipulation which is contained in the charter-party, and I will very concisely state the reasons which lead me to differ from the conclusion at which the learned judges in the court below arrived. I do not in any way dissent, and I do not think the learned judges below dissented from the principle laid down by Lush, J. in the two cases to which Cave, J. refers in his judgment, that the office of the bill of lading is to provide for the rights and liabilities of parties in reference to the contract to carry, and is not concerned with liabilities for general average, and that, unless the contrary appear, the words must be construed with reference to the contract to carry. Adopting that principle, the learned judges in the court below applied it to this case; I in no way differ from the principle, but from the facts of this case I draw a different inference from that which was drawn by Cave and Day, JJ., and I think that this appeal must be allowed.

BOWEN, L.J.-This case raises a question of the proper construction of a charter-party, and I therefore look to see whether any rules of construction have been laid down which will help us to a right conclusion in this case. Now, we are presented with a canon of construction by the late Lush, L.J., which he laid down in the case of Schmidt v. The Royal Mail Steamship Company (45 L. J., 646 Q.B.) in these terms: "The office of the bill of lading is to provide for the rights and liabilities of the parties in reference to the contract to carry, and is not concerned with liabilities to contribution in general average." Now, the first remark I have to make about that principle is, that it is not a rule of law; it is really in the nature of a wise observation brought to bear upon the construction of mercantile documents from the experience of those who were very conversant with such documents. The next rule of construction which we have to follow is this, that if the provision in question is a stipulation in favour of one party or the other, we must so construe it as not to give it any extension in favour of that party beyond what is fairly necessary upon the words of the clause in question. Now, the words in the charter-party are these: "The steamer to be provided with a deck load, if required, at full freight, but at merchant's risk." That is clearly a stipulation in favour of the shipowner, and prima facie it is clearly meant to relieve him from some of the risks which would otherwise fall upon him as a carrier under his contract of carriage.

It seems to me clear that these words would cover the case of the negligence of his captain or crew, by reason of which negligence the cargo was damaged or lost; but the question is, does it cover this case, which is a claim for general average contribution. in consequence of what was a general average act? How, then, does this claim arise? It arises in this way-it is part of the law of the sea, of the law maritime which is incorporated into the municipal law of England, and it arises in consequence of an act done by the captain upon the theory that the cargo owner consents to that act being done, on the assumption that he shall be indemnified against the loss thus occasioned upon a general average basis. I do not think the words relieve the shipowner from contribution to such a claim as this; the point, however, is not very clear. I find it difficult not to think that the persons who drew this charter-party were thinking of the deck cargo and of its risk of jettison, but they have not expressed it clearly, and of one thing I am quite certain that if shipowners wish to make it appear that they absolve themselves by their charter-parties from this liability in the case of deck cargoes, they can make it appear clearly on the words. My judgment is based upon the ground that in this case that intention is not clear enough.

Appeal allowed. Solicitors for the plaintiffs, Waltons, Bubb, and Walton. Solicitors for the defendants, H. C. Coote, for H. A. Adamson, North Shields.

July 4 and 30, 1883.

(Before BRETT, M.R. and FRY, L.J.) HAIGH AND OTHERS v. ROYAL MAIL STEAM PACKET COMPANY. (a)

APPEAL FROM THE QUEEN'S BENCH DIVISION. Carriage of passengers-Loss or damage-Death by negligence-Wrongful act, neglect or defaultExemption from liability-Lord Campbell's Act (9 & 10 Vict. c. 93), s. 1.

The ticket of a passenger by a steamer of defendants contained a notice that the defendants would not be responsible for any loss, damage, or detention of luggage under any circumstances; and that they would not be responsible for the maintenance or loss of time of a passenger during any detention of their vessels, nor for any delay arising out of accidents, nor for any loss or damage arising from perils of the seas, or from machinery, boilers, or steam, or from any act, neglect, or default whatsoever of the pilot, master, or mariners.

Held (affirming the judgment of Cave and Day, JJ., on demurrer), that this provision exempted the defendants from liability in an action for the loss of life of a passenger by negligence of the defendants' servants in a collision with another ship.

APPEAL by the plaintiffs from the judgment (5 Asp. Mar. Law Cas. 47) of Cave and Day, JJ. in favour of the defendants on demurrer to a statement of defence.

The plaintiffs, who were the executors of the will of Charles Schwind, deceased, sued for the benefit and on behalf of his wife and children, for

(a) Reported by P. B. HUTCHINS, Esq., Barrister-at-Law.

damages caused (as alleged) by the negligence of the defendants' servants on board the defendants' steamship Douro, whereby the said steamship, having come into collision with another ship, was sunk, and the said Charles Schwind lost his life.

The defendants, amongst other defences, alleged that the contract of carriage between themselves and the said Charles Schwind exonerated them from liability for the alleged negligence.

The defendants relied on the following clause which was contained in the ticket given by them to Charles Schwind when he paid his passage money :

The company will not be responsible for the maintenance of passengers, or for their loss of time, or any consequence resulting therefrom, during any detention consequent upon the occurrence of any cause to prevent the vessels from meeting at the appointed places, nor for any delay arising out of accidents, nor for any loss or damage arising from perils of the sea, or from machinery, boilers, or steam, or from any act, neglect, or default whatsoever of the pilot, master, or mariners, &c.

The rest of the conditions contained in the ticket will be found in the report of the case in the court below (5 Asp. Mar. Law Cas. 47; 48 L. T. Rep. N. S. 267).

By Lord Campbell's Act (9 & 10 Vict. c. 93), s. 1: Whensoever the death of a person shall be caused by the wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

A. T. Lawrence (Cohen, Q.C. with him), for the plaintiffs, in support of the appeal.-The cause of action is not within the exception contained in the clause printed on the ticket. The words "loss or damage" do not apply to personal injury, and certainly not to personal injury resulting in death:

Smith v. Brown, 1 Asp. Mar. Law Cas. 56; 24 L. T.
Rep. N. S. 808; L. Rep. 6 Q. B. 729;

The Franconia, 3 Asp. Mar. Law Cas. 415, 435; 36 L. T. Rep. N. S. 445, 640; 2 P. Div. 163. Any contract which the deceased may have entered into by taking the ticket cannot bind his wife and children, or take away the right of his executors to sue under Lord Campbell's Act for their benefit. The case of Griffiths v. The Earl of Dudley (47 L. T. Rep. N. S. 10; 9 Q. B. Div. 357) is distinguishable, for there the workman had contracted for himself and his representatives, and any person entitled in case of death, not to claim compensation, and moreover the decision turned partly on the words of the Employers' Liability Act 1880 (43 & 44 Vict. c. 42).

Charles Russell, Q.C. and Phillimore for the defendants. The party injured could not have maintained an action if death had not ensued, and therefore the executors cannot recover under Lord Campbell's Act. The words of the contract expressly exclude the defendants' liability, and the decisions in Read v. The Great Eastern Railway Company (28 L. T. Rep. N. S. 82; L. Rep. 3 Q. B. 555), and Thompson v. The Royal Mail Steam Packet Company (June 1875, Exchequer, before Kelly, C.B., Bramwell and Cleasby, B.B., not reported), are strong authorities in their favour. The words "loss or damage" are sufficient to cover loss of life or personal injury. The word " damage " is

July 30, 1883.-The judgment of the court was delivered by

BRETT, M.R.-The question to be deter mined in this case is whether the executors of a person named Schwind can maintain an action against the defendants under Lord Campbell's Act (9 & 10 Vict. c. 93) on behalf of the widow and children of the deceased. They certainly can, unless they are prevented by something beyond the mere law of negligence. The defendants rely upon a contract entered into between themselves and the deceased, by virtue of which, if the accident had happened without causing his death, he would not have been entitled to recover against them. For the plaintiffs it was argued that the representatives of the deceased could recover on behalf of the widow and children, although if he had survived he might not have been entitled to recover. I am of opinion that this contention is inconsistent with the obvious interpretation of Lord Campbell's Act, and that it is clear, under the statute, that the executors can recover only where the deceased himself could have recovered if he had not been killed.

The question, therefore, is whether the contract between the defendants and the deceased would have prevented him from maintaining an action against them for personal injury caused to him by the negligence of their servants. That question depends upon the construction of the passenger's ticket, which formed the contract relied upon by the defendants. The ticket was given to the deceased as a receipt for the passage money paid by him for the carriage of himself and his luggage, and applied both to the person and the luggage of the passenger. With regard to the luggage, this stipulation contained in the ticket, was that the defendants would not be responsible for any loss, damage, or detention of luggage under any circumstances.' In Thompson v. The Royal Mail Steam Packet Company (b), the court construed a stipula

(a) In the Revised Version the words are, "I perceive that the voyage will be with injury, and much loss, not only of the lading and the ship, but also of our lives." (b) COURT OF EXCHEQUER. June 4, 1875.

(Before KELLY, C.B., BRAMWELL and
CLEASBY, BB.)

THOMPSON v. ROYAL MAIL STEAM PACKET COMPANY. THIS was an action brought by a passenger on board the defendants' s.s. Elbe to recover damages for the loss of his box, while on a voyage from Southampton to Colon.

Among the conditions printed on the ticket which the plaintiff had signed were that "the company will not be responsible for any loss or damage to luggage in any circumstances," and that the company should be at liberty to land any passenger suffering from an infectious disease. Some days after the Elbe sailed the plaintiff fell ill of typhoid fever, and was landed at Kingston, Jamaica, insensible. His box was also landed on the wharf by the defendants, but the plaintiff never heard or saw anything of it afterwards.

At the trial at Guildhall, the learned judge directed a nonsuit, but gave the plaintiff leave to move to enter the