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some means of ascertaining what the circumstances were. Without some such power judgment except a venire de novo could be given, unless it could be laid down as a general proposition of law, either that no expenses of housing the cargo and afterwards reshipping it in a port of refuge can ever be general average expenses, or that they must always be so. I am not prepared to assent to either proposition. Any State may, by its Legislature, enact that within its territories the law shall be either way. Judg. ing merely from the language of their codes (which, however, is often apt to mislead, unless construed with reference to their law and usage), I should say that some foreign nations have enacted in opposite ways. There is, however, no English enactment on the subject. I have no doubt that both parties would, if it had occurred to anyone that it was necessary or even desirable so to do, have readily agreed to give the court power to look at the ship's papers, and, if it thought fit, draw inferences from them as an average adjuster would do. I propose to deal with this case as if such a power was given. In Simonds v. White (2 B. & C. 811) Abbott, C.J. says: "The principle of general average, namely, that all whose property has been saved by the sacrifice of the property of another shall contribute to make good his loss, is of very ancient date, and of universal reception among commercial nations. The obligation to contribute, therefore, depends not so much upon the terms of any particular instrument as upon a general rule of maritime law. The obligation may be limited, qualified, or even excluded by the special terms of a contract as between the parties to the con. tract, but there is nothing of that kind in any contract between the parties to this cause. There are, however, many variations in the laws and usages of different nations as to the losses which are considered to fall within this principle." The point decided in that case was that the loss was to be adjusted according to the law of the place of the destination, in that case Russia, and that the Russian adjuster was to adjust it according to the Russian law, which, of course, was to be gathered from the Russian edicts and the decisions of the Russian judicature; and that, though the ship and the parties were English, the goods owners could not recover back so much of the money as would not have been charged to them on an adjustment of average made according to the law of England. As in the present case the place of delivery was English, this is an authority, if one was required, to show that the law and usage of foreign nations, where they differ from our own, are irrelevant. But it will be observed that Abbott, C.J. expressly says that a contract might alter the whole, and in Wilson v. Bank of Victoria (16 L. T. Rep. N. S. 9; 2 Mar. Law Cas. O. S. 449; L. Rep. 2 Q. B. 203) it was intimated that a custom tacitly making it part of the contract that any particular principle should be applied might alter the whole. I think that unless it was proved that there was such a custom as to be tacitly incorporated, it could have no such effect. And I have no doubt that the issue which has not been brought here by appeal was rightly decided. I think, bowever, there is much force in the concluding observations of Manisty, J. in Atwood v. Sellar (ubi sup.). I

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agree with him at least thus far, that a general practice, long continued amongst English adjusters, affords strong ground for thinking that the practice is one which is not in general inconvenient, and that it throws a considerable onus on those who impugn it to show that the particular circumstances are not such as to render an adherence to the practice in that case against principle. Before proceeding further, I think it desirable to consider what is the question raised on the issue reserved for further consideration. The plaintiffs claimed the sum which Messrs. Lowndes and Ryley made payable, viz., 7701. The defendants had paid the sum which Messrs. W. Richards and Sons made payable by them. The issue was whether all that was really due had been paid. It is to be observed, first, that the points on which Messrs. W. Richards and Sons differ from Messrs. Lowndes and Ryley are not all in favour of the defendants. If the 1907. which represent the warehousing rent, and fire insurance are properly charged to cargo, the defendants have to pay the whole of it. If it is properly charged to general average, they have only to pay their proportion of it, or somewhat less than one half. That, if it stood alone, would make nearly 100l. more payable by the defendants. But if the 4501., which is the cost of reshipping, is properly charged to freight, the defendants are not liable to pay any portion of it. If it is properly charged to general average, they would have to pay about half of it. So that that item makes a difference of about 230l. If, in addition, the 201. for the cost of going out of port is properly charged to freight, that makes a further difference of about 107. It is not, therefore, necessary to decide anything more than whether these two items are, under the circumstances of the case, properly chargeable to general average or not. If they are not so chargeable, the order appealed against is right, for the defendants have paid enough, and more than enough, whether the 1901. is properly chargeable to cargo or not, and it is unnecessary to consider that question except in so far as it may throw light on the principles which are to guide the decision of the first and most important one. I do not think it necessary to inquire what would be the proper course if the seeking the port of refuge had been solely for the purpose of doing repairs, the cargo not being in any danger. Such a case may perhaps sometimes, though rarely, occur. Nor do I think it necessary to inquire what would be the proper course if the ship and cargo were both safe in the harbour of refuge. and the unloading of the cargo was entirely for the purpose of facilitating the repairs. Such a case seems more likely to happen than that first supposed. I think, on examining the two adjustments, and exercising the power which I have assumed to be given, there can be no doubt that the cargo on board the ship, leaking to the extent which she did, was not safe even in harbour until the ship was so far lightened that she could be taken into dry dock. Should the expense of reloading her, after the repairs were made, be charged to freight, the goods having been taken out under such circumstances? I think it should. I am afraid I have not understood the reasoning on which Cockburn, C.J. in his judgment in Atwood v. Sellar (ubi sup.) comes to a contrary conclusion. If I have, I must express dissent from it. The

ordinary contract between shipowner and merchant is, that the goods shall be carried to their destination, and shall there be delivered, unless prevented by the excepted perils. And this generally should be done in the original ship, Whenever the ship is disabled it must, in order literally to fulfil this contract, be necessary to repair the ship so far as to make her fit to carry on the cargo, and if any part of the cargo has been taken out to reship it. Rosetto v. Gurney (11 C. B. 188) was a case between the owners of corn insured from Odessa to Liverpool and their underwriters. The plaintiffs claimed for a total loss, and the underwriters paid money into court. The cargo was at Cork in a very damaged state, but by great skill, and at considerable cost, was prevented from turning into manure, and was sold at Cork, a considerable part of it being still corn. The verdict was entered for a total loss. A rule for a new trial was obtained on various grounds, one, on which it was made absoluto, was that the judge had not properly directed the jury as to the effect of the extra cost of conveyance in a new bottom from Cork, the port of distress where the wheat was sold, to Liverpool, the port of destination. The Court say as to this: "If the voyage is completed in the original ship it is completed upon the original contract, and no additional freight is incurred. If the master tranships because the original ship is irreparably damaged, without considering whether he is bound to tranship, or merely at liberty to do so, it is clear that he tranships to earn his full freight; and so the delivery takes place upon the original contract."

There never was in the present case any question as to the Olaf Trygvason being irreparably damaged; but she was so far damaged that it was certain that there would be some delay (it turned out to be about six weeks) before the Olaf Trygvason was in a fit state to carry the goods on to Liverpool. And if there had been a good ship at St. Louis willing to carry the goods to their destination for less than the agreed freight from Rangoon, it might have been for the benefit of all that the goods should be shipped on that vessel at once, carried on, and delivered to the consignee without delay. Such was the course pursued in Shipton v. Thornton (9 A. & E. 314), where the original shipment was from Singapore to London in the James Scott. She put into Batavia in distress, and there the goods were transhipped into the Mountaineer and the Sesostris, carried to London, and there delivered to the owner of the James Scott at a cost less than the amount of freight which he would have earned had the goods been caried on in the James Scott. He delivered them to the consignee, who prodaced the original bill of lading by the James Scott. The consignee refused to pay freight at the rate in the bill of lading of the James Scott from Singapore to London, though he paid that from Batavia agreed on in the bills of lading of the Mountaineer and the Sesostris. The decision was, that whether or not the captain was bound to tranship he was at liberty to do so, and having done so had earned his full freight. The expense which he had incurred to earn it being certainly not general average, but I think a particular average paid by the shipowner to earn his freight. My conclusion is that it, instead of transhipping, the captain waits till the original ship is repaired,

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and then reships on that original ship, the cost of so doing should not be general average, but particular average to earn the full freight. Cockburn, C.J. seems to think that in all cases where the ship is disabled, whether she can be repaired or not, the original contract is dissolved, and a new one formed by law. This seems to me in direct conflict with the two decisions I have just cited; and even if it were so, I think it is somewhat in the nature of a petitio principii to say that one of the terms of the new contract should be that the cost of transhipment or reshipment, as the case may be, should be general average. The judgment, however, of the Court of Appeal, delivered by Thesiger, L.J., does not proceed on this ground. I have some difficulty, after reading the statement as to the grounds on which the Court of Appeal proceeded, given by Baggalay, L.J. in his judgment in the present case, in saying on what ground it does proceed. The special case in Atwood v. Sellar (ubi sup.) was express that the ship was injured by a voluntary sacrifice, and was thereby compelled to put in to Charleston to repair the said damage. It is not expressly said either way whether the cargo was in any danger. Baggallay, L.J., who was a party to that judg ment, says that it was decided on the ground that putting into the port of refuge was necessary for the safety of both ship and cargo, and that he at least thought that it was immaterial what was the cause of that necessity. Yet I think there is much reason for doubting if Thesiger, L.J. quite agreed in this. He says: "The principle which underlies the whole law of general average contribution is that the loss, immediate and consequential, caused by the sacrifice for the benefit of cargo, ship, and freight, should be borne by all. This principle is in the abstract conceded by counsel for the defendants, and its application to the present case is admitted to the extent of allowing the expenses of unloading the goods, for the purpose of doing the necessary repairs to enable it to proceed on the voyage, to be the subject of general average contribution, but they attempt to distinguish such expenses from those of warehousing and reloading the cargo, and of outward port and pilotage charges, by the suggestion that the common danger to the whole adventure is at an end when the goods are unloaded, and that general average ceases at the point of time when the common danger ceases.' This is, I think, a fair statement of the argument of the respondents' counsel in the present case. Afterwards, he says, the going into port, the unloading, warehousing, and reloading, are at all events parts of one act or operation contemplated, resolved upon, and carried through for the common safety and benefit, and properly to be regarded as continuous." This was much relied on by the counsel for the respondents. If I thought it was the state of the case before the House, I should consider whether in such a case it might not fairly be argued that the whole of these operations were to be considered as parts of the expense of repairing the damage, and therefore, in a case where the cause of the damage was such that the expense of repairing it ought to be borne by all, as was the case in Atwood v. Sellar, to be borne by all; but that in a case where the cause of the damage was such that the expense of repairing it ought to be borne by the ship only, which is the present case, to be borne by the ship

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only. But having come to the conclusion that such is not the state of the case before the House, I do not enter into this inquiry. Having come to the conclusion that, under the circumstances of this case, the expenses of reloading, &c., should not be placed to general average, and that being enough, if your Lordships agree with me, to show that the respondents have paid more than enough, it is not necessary to consider whether the smaller sum of 201. ought also to have been charged to ship or freight, and not to general average. I agree with Bowen, L.J. in what he says, that is a more difficult question than the other.

And as the amount is not sufficient to turn the scale, it is not necessary to decide it. I should think it seldom involved any sum so great as to be of practical importance, and I prefer leaving it undecided. I shall therefore move that the order appealed against be affirmed, and the appeal dismissed, the appellants to pay the costs. Lords WATSON and FITZGERALD concurred. Order appealed from affirmed, and appeal dismissed with costs.

Solicitors: For the appellants, Field, Roscoe, and Co., for Bateson, Bright, and Warr, Liverpool; for the respondents, Waltons, Bubb, and Walton.

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

Tuesday, Feb. 10, 1885.

(Present: Lord BLACKBURN, Sir BARNES PEACOCK, Sir ROBERT COLLIER, Sir RICHARD COUCH, and Sir ARTHUR HOBHOUSE.)

MATWIEF v. WHYTOCK.

THE YOURRI; THE SPEARMAN. (a)

ON APPEAL FROM THE SUPREME CONSULAR COURT OF CONSTANTINOPLE.

Collision - River Danube - Fog - NegligenceTitre 2, cap. 2, art. 34 of Danube Commission Rules.

"ils

Under art. 34, cap. 2, titre 2, of the Danube Regulations, directing that, where two steamships meet going in opposite directions, sont tenus de se diriger de telle sorte qu'ils viennent tous deux sur tribord. A cet effet, le bâtiment qui remonte le fleuve doit appuyer vers la rive gauche, et celui qui descend vers la rive droite," vessels going down the river are bound to keep to the right bank, and if a vessel in a mist after sunset keep to the left bank and come into collision with another vessel, the breach of the rule is negligence.

THIS was an appeal by the master of the Russian steamship Yourri from the decision of the Supreme Consular Court of Constantinople sitting in Vice-Admiralty, holding the steamships Yourri and Spearman both to blame for a collision in the river Danube.

The collision occurred on the 9th Dec. 1882.

On the 20th Dec. 1882 the master of the Yourri instituted a damage action against the Spearman and her freight.

On the 30th Jan. 1883 the master of the Spearman instituted a cross action agaiust the Yourri.

(a) Reported by J. P. ASPINALL and BUTLER ASPINALL, Esqrs. Barristers-at-Law.

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The case on behalf of the appellants was as follows:

The Yourri, a Russian steamship of 92 lasts, was, at the time of the collision, on a voyage from Lisbon to Odessa with a general cargo and passengers, and in charge of a pilot licensed by the European Commission of the Danube. Shortly before 6 p.m. on Dec. 9, 1882, the Yourri, with her regulation lights duly exhibited, was being navigated down the river a little to the starboard side of midstream, and was proceeding at a slow rate of speed. The weather, which had been a little misty, was then fine but dark. In such circumstances a vessel, which proved to be the Spearman, was observed ahead. The helm of the Yourri was at once put hard-a-port and her engines stopped, but the Spearman, coming on at great speed apparently under a starboard helm, struck the port bow of the Yourri and did her so much damage that she shortly afterwards sank.

The case on behalf of the respondents was as follows:

The Spearman, a steamship of 651 tons net, was, on the 20th Dec. 1882, bound to Galatz from Sulina. At about 4.45 p.m. the Spearman, being on the starboard side of the river, was preparing to anchor for the night when the Yourri was seen right ahead. At this time it was still daylight, and, though the weather was hazy, both banks of the river were visible. On the Yourri being reported the helm of the Spearman was put hard-a-port and her engines reversed full speed astern. Notwithstanding the endeavours of the Spearman to avoid collision, the port bow of the Yourri struck the Spearman, causing her considerable damage. The current swung the Yourri round the bow of the Spearman, and, the ships parting, the Yourri sank close to the left bank of the river.

On the 14th Feb. 1884 the Supreme Consular Court of Constantinople delivered judgment finding both vessels to blame, the Yourri for being navigated on the wrong side of the river in contravention of art. 34, cap. 2, of the Danube Rules, and the Spearman for being navigated after sunset without lights in violation of the Danube Regulations, which violation contributed to the collision.

The regulations applicable to the navigation in question are the Danube Regulations, of which art 34, c. 2, is as follows:

Lorsque deux bâtiments à vapeur ou deux bâtiments à voiles navignant par un vent favorable se rencontrent faisant route en sens contraire, ils sont tenus de se diriger de telle sorte qu'ils viennent tous deux sur tribord, ainsi qu'il est d'usage à la mer. A cet effet, le bâtiment qui remonte le fleuve doit appuyer vers la rive gauche, et celui qui descend vers la rive droite. Il en est de même, lorsque la rencontre a lieu entre un bâtiment à vapeur et un bâtiment à voiles navignant par un vent favorable.

The master of the Yourri was appealing from the above decision, and submitted that it should be varied by the Spearman being held alone to blame for the following among other reasons:

1. Because it appears by the evidence that the Fourri was being navigated in a careful and proper manner, and in obedience to all the rules in force for the navi. gation of the Danube.

2. Because it appears by the evidence that the helm of the Yourri was ported as soon as the Spearman was or could be seen by those on board the Yourri to be meeting the Yourri, and this was in compliance with the regulations in force,

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3. Because, assuming that both vessels were about in midstream, the Yourri did all that could be required of her by porting as and when she did.

4. Because the learned judge was wrong in finding that the Yourri was navigating on the left or port side of the river.

5. Because, if she had been so navigating, that of itself would be no breach of the regulations.

6. Because it appears by the evidence that the collision and the damage consequent thereon are imputable solely to the negligence of those on board the Spearman.

The respondents submitted that the decision ought to be affirmed for the following among

other reasons:

1. That the Yourri was, at the time of the collision, coming down the left or wrong side of the Danube, and that she neglected to comply with article 34 of the Regulations for the Navigation of the River Danube, and also article 21 of the Regulations for Preventing Collisions at Sea.

2. That, having regard to the terms of the said article 34 and the breach of it by the Yourri, she is responsible for the collision.

3. That the Yourri was being navigated at an improper speed, and that her steam whistle was not being sounded, and that she neglected to comply with article 34 of the Regulations for the Navigation of the River Danube and article 13 of the Regulations for Preventing Collisions at Sea.

4. That those on board the Yourri neglected to slacken her speed or stop and reverse her engines in due time. 5. That a sufficient look-out was not kept on board the Yourri.

6. That the judgment was right in holding the Yourri in the wrong, and that she caused the collision.

Sir Walter Phillimore and Stubbs for the appellants. On the evidence it is submitted that the Yourri was being carefully navigated on the starboard side of the river. Even assuming the Yourri not to have been keeping to the right bank there has been no breach of the rule. The rule provides that when two ships "se recontrent, faisant route en sens contraire," they must direct their course "qu'ils viennent tous deux sur tribord." In order to carry out this provision they are directed to "appuyer" towards the right and left banks respectively. The rule therefore is confined to cases where two ships are meeting, and hence it is submitted that the words "doit appuyer mean "should bear towards" and not 'keep to." If they mean "keep to" the right or left bank, as the case may be, the vessels would never meet at all.

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Their Lordships' judgment was delivered by Lord BLACKBURN.-Their Lordships do not think it necessary to call upon the respondents' counsel. The first important question is, what upon the evidence is the correct view of the facts, There is a good deal that is not in dispute at all, The Yourri was going down the river Danube and the Spearman was coming up. When the Yourri had got near the spot where the collision took place there was, according to all the evidence, a certain degree of mist, which, on the balance of the evidence, seems to have been sufficiently great to prevent seeing across the river. That being the case, there would be an obvious object and reason for the vessel that was coming down the river to steer so near to one shore or the other that it could see that shore and guide itself in going down the river. If she were to keep in the middle of the river when the mist was such that she could not see either shore, she would not know where she was going, and she

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must come nearer to either one side or the other to guide herself. Having that obvious desire, the question would be, did the Yourri go to the left side to guide herself, or did she go to the right? Now, as to that question, the whole of the evidence shows that she went to the left, and, in addition to that, after the collision took place she was found on the left side. What effect the collision might have had in moving the vessel from the spot where the collision took place to one side or the other would not matter here. It might have had some effect in pushing the vessel farther from or nearer to the shore, but it is quite clear that there is not upon this evidence any ground for saying that the court below was wrong in the conclusion that the vessel could not have been pushed to the spot where her hulk was found lying unless she was upon the left-hand side of the river instead of the right-hand when the collision happened.

That fact being established then comes the question that is put as a matter of law: Was it a right decision of the Consular Court to hold that it was negligent in the vessel coming down the river, especially when there was a fog and approaching night, to go to the left-hand side instead of going to the right? That of course very much depends upon what is the construction of the rule which has been referred to. That rule seems decidedly to say that, in the river, the vessel that is going down shall keep to the right bank. This ship, the Yourri, did not keep to the right bank when the fog came on, and it was necessary to keep to one bank or the other to guide her. She might and ought to have gone to the right side, and then she would have known that no vessels coming up the river could meet her, unless they were neglecting their duty by going to the wrong side. She would then have been safe. As it was, she went for no reason apparently on the left-hand side when she ought not to have done so, and their Lordships think it would be very dangerous indeed in the case of a river navigation to put any other construction on the rules than to say that it is a neglect of duty for the vessel that is to keep to the one side or the other, according as the rules may be, not to do so. It is very necessary that all vessels should know that going down the Danube they should keep to the right bank, and in coming up keep to the left bank, and that it is a neglect of duty and negligence to come across to the other side. That being so, that this neglect of duty, if it was one, was the cause of the accident, or contributed to it, is a matter that can hardly admit of dispute at all. Had the Yourri not improperly gone to the left-hand side, the Spearman would never have met her. The Spearman was held to blame for not having lights, and the court below thought that the absence of lights partly contributed to the accident, and that decision has not been appealed against. The result is, that the judgment of the Supreme Consular Court must be affirmed, and this appeal dismissed with costs, and their Lord. ships will humbly advise Her Majesty to that effect.

Appeal dismissed.

Solicitors for the appellants, Stokes, Saunders, and Stokes.

Solicitors for the respondents, Thomas Cooper and Co.