continued at the pace at which they had previously been going, and what is the result? Shortly afterwards-say, a minute-they find themselves in such close proximity to another vessel, that then it becomes, as they allege, practically impossible to avoid a collision. This state of facts which the plaintiffs put forward shows that where the whistle of a steamer is heard practically ahead, that it is not right to wait till another whistle is heard, but immediate steps must be taken to ascertain in what direction the other vessel may be going. As I have hitherto had occasion to say, they must put themselves, as it were, en rapport with each other. They must put themselves in such a position that each may be able to deliberately form a judgment as to what distance the other vessel is off, and in what direction she is going. If the vessels continue going as they are until another whistle is heard, it may be through the negligence of the other vessel that they are brought into such close proximity that it may be impossible to avoid collision. I do not think that when officers in command of ships are dealing with fogs, they should say "We expect everything to be done that ought to be done on the other side." It has been pointed out that precautionary steps are to be taken at a time when the vessels are approaching so as to involve risk of collision. That risk may arise from ignorance or even negligence on the other side.

It is to be further observed, with regard to the Telesilla's case, that it was originally put forward in a very different manner to that in which it has been attempted to be proved. It was represented that there were three points of time, at two of which a change was made in the manoeuvring of the Telesilla. It is said in the Preliminary Act that the Ebor's whistle was heard, and, when ber whistle indicated that she was approaching, that then the engines of the Telesilla were stopped, and that, when the Ebor again whistled and came into view, the engines of the Telesilla were reversed. In the pleadings it is said that the whistle, having been heard for the first time, was again heard, apparently nearer, whereupon the engines of the Telesilla were stopped, and her whistle was again blown; but soon afterwards, and when the speed of the Telesilla was reduced so that she was just moving through the water, the masthead and green lights of a steamer, which proved to be the Ebor, came in sight about two points on the port bow. That statement of facts emphatically marks a decided interval between the stopping and the reversing; but the evidence which has been given satisfies me that there was practically but one operation of stopping and reversing. The man scarcely had his hand on the lever to accomplish one order before he had to effect the other operation. Everything leads to the conclusion that these two orders, viz., "Stop" and "Reverse full speed," were uttered as rapidly as they could be after each other. This shows the very short space of time which, by not stopping sooner, the Telesilla had left herself to perform any needful manoeuvre when it was found that there was danger. There is no doubt that the position of the Telesilla was a difficult one. In justice to her, I should say that the Elder Brethren are of opinion that, in no other respect but in that which I have indicated, was there any want of proper care shown on her part. It is, however, our opinion that, though she may have VOL. V., N.S.

[CT. OF APP.

been only a little in fault, yet she was in fault, and therefore there will be a decree of both these vessels to blame.

From this decision the plaintiffs appealed.

Jan. 18, 1886.-The appeal came on for hearing before the Court of Appeal, assisted by Nautical Assessors.

Sir Walter Phillimore and J. P. Aspinall, for the plaintiffs, in support of the appeal.-The Telesilla has been improperly held to blame because those in charge of her did not act with the engines on hearing the first whistle. It is admitted that she was then going at a moderate speed, and that, when it became known to her that the Ebor was approaching so as to involve risk of collision, her engines were immediately reversed. It has never been laid down that a vessel, on hearing a first whistle, is to at once take all way off her. If she is going at a moderate speed she is entitled to hold on until she hears a second whistle, and then act as circumstances may require. In The Dordogne (51 L. T. Rep. N. S. 650; 5 Asp. Mar. Law Cas. 328; 10 P. Div. 6) the Master of the Rolls said that, on hearing the first whistle, the vessel should reduce her speed, and that, when the other vessel came substantially near, then all way should be taken off. It is true that Sir James Hannen has found that the first whistle was heard practically ahead, but all the plaintiff's witnesses describe it as being dull and faint, indicating that it was some considerable distance off. If so, the circumstances were not such as to lead a reasonable and prudent officer that there was then risk of collision; suppose and, if so, the Telesilla did not infringe art. 18 of the regulations in not acting on hearing the first whistle.

to

C. Hall, Q.C. (with him Baden-Powell) for the respondents, was not called upon.

Lord ESHER, M.R.—I think the judgment of the learned judge was right, and for the reasons he gave. Much has been said about the case of The Dordogne (ubi sup.) and the construction of art. 13 of the Regulations for Preventing Collisions. The article is, "Every ship, whether a sailing ship or steamship, shall in a fog, mist, or falling snow go at a moderate speed." In The Dordogne (ubi sup.) the question was raised as to the construction of that article-whether "moderate was to be an absolute term, or whether it was meant to be a term relative to the circumstances. It was there urged in argument that "moderate" meant an absolute rate of speed without any relation to the circumstances; and what the court endeavoured to state, and held, was, that "moderate" really meant moderate according to circumstances, so that what is moderate under one set of circumstances is not moderate in another. That was the real effect of the judgment, which did not attempt to say that, if two vessels were within a mile of each other in a fog, their speed was to be a certain specified speed. I recollect in The Dordogne (ubi sup.) trying to illustrate my meaning. For instance, if a ship were going up or down a narrow river in a thick fog, so that those in charge could not see ahead, under those circumstances, where the chances are a hundred to one that they would meet another ship exactly opposite to them, whether there was a whistle or no, moderate speed might 20

in that case consist in being absolutely stopped in the water. At all events, it might be her duty to have only just enough way on to keep steerage way. Another case would be where the ship is in the open sea, but in the track of vessels; then, if she is in a thick fog, and knows that in all probability there will be ships meeting her, although it is not the same as if she were in a narrow river, yet she ought to go very slow. Again, if she is in the open sea and not in the track of vessels, then, until she hears a whistle, she has no reason to suppose that any ship is near. But if she hears a whistle the circumstances are different. Here, again, we must consider the direction of the whistle. If she hears a whistle astern of her, there is, of course, then no reason why she should stop. By so doing she would probably be run into by the vessel behind her. If the vessel were on either beam it would be very nearly the same thing. But when you come to a whistle on the bow you come to a different state of things. If a whistle is heard on the bow, it is absurd to say that an experienced officer cannot tell something as to the distance of the vessel sounding the whistle. Suppose you hear a whistle, say, about two miles off, and broad on your bow, there is then no necessity to stop your ship, perhaps hardly any necessity to moderate her speed. But if the ship is really close to you-I do not mean within a ship's length-and on your bow, then you ought to bring your ship to a moderate speed within the meaning of the rule. If you find the vessel is ahead of you, then it becomes necessary to take extreme precautions, because you know that every moment is bringing the ships nearer together, and that there will be danger. When the whistle is ahead of you, you ought, to my mind, to act much sooner than if the whistle is anywhere else. But, supposing it is ahead, then comes the question whether you have a right to wait till there is a second whistle. If the whistle is ahead, I should say you ought hardly to wait at all; but if it is on the bow, and seems to be at a considerable distance, you may wait till there is a second whistle. If the second whistle, under these circumstances, is nearer than the first, your duty is clear-you ought to stop, and keep your vessel in hand.

In the present case, where was the first whistle that was heard? There seems to be a dispute whether there were three whistles or two. One of the witnesses says there were only two whistles-others say there were three whistles. It is also said that there was one whistle, and then an interval between the second and third. But there is one witness who says that he heard three whistles, and that there came one, and then the other two within a second of each other, and that, within a second of these two whistles, the ship was in sight. If so, that was equivalent to two. If there were really an interval between the second and third, the question will depend on the second, and whether the ship acted properly on hearing the second. I, however, take it that the evidence comes to this that there were in substance two whistles. Now, what ought this ship to have done on hearing the first whistle? It was as nearly as possible ahead of her. It has been described as being "dull." Was that really so? That partly depends upon how far the ship was. If she was within what any reasonable person would call a near distance, then I shall not

[CT. OF APP.

adopt the epithet "dull." I shall take it to be an ordinary whistle. As far as I can make out, the ships certainly were not more than a mile from each other-I should think within a mile. What, then, was the duty of the officer in charge of the Telesilla? It was to go at a moderate speed. What was a moderate speed? He was going over the ground from three to three and a half knots. That was a moderate speed before he heard any whistle; but was it so after he heard the whistle? It seems to me, then, that moderate speed was to go nearly as slow as he could, consistently with keeping his vessel under command. I do not think he was then obliged to stop his engines; but ought he to have gone on at the pace he was going? He could have gone at some pace between that and stopping his engines. But, instead of doing that, he kept on the same speed till the vessels were close together. Therefore, the question before the learned judge was this: Was the Telesilla going at a moderate speed between the first and second whistle, having regard to the fact that the first whistle was sounded ahead, and that the officer in command could not say in what direction the other vessel was going? What should an officer in a fog do when he cannot tell whether a vessel is coming towards him or not? He certainly ought to act on the possibility that she is coming towards him. That is a rule I do not hesitate to lay down in those circumstances. With a whistle right ahead of you in a fog, so that you cannot see the ship whistling until she is close on you, you ought to act on the possibility-nay, on the probability-that she is coming towards you. If she is coming towards you, to my mind it follows, as a matter of course, that your speed ought to be almost as slow as it can be. If it is not, you have not gone at a moderate speed within the meaning of art. 13, and then, by reason of your breaking that article, the consequence is that you also break art. 18. You may, of course, break art. 18 without breaking art. 13, for that is only applicable to fog, mist, or falling snow. In this case, the learned judge was advised that, with the whistle ahead, and at a distance certainly not more than a mile, the Telesilla ought to have stopped till she had time to discover what the other vessel was doing. The meaning of that is not that the officer in command ought to have actually stopped the engines, but that he ought to have stopped the way of the ship, and make her go slower, until a second whistle should tell him whether the other vessel was coming towards him or going away from him. Had there been a second whistle which showed that the other vessel was going away, he might instantly have gone on; but if the second whistle showed that the vessel was approaching him, he would have to act again, because, although he had brought his engines to slow, yet, on finding that the other vessel was coming closer to him, he ought to stop his engines and probably reverse. Those on the Telesilla ought to have been in such a position that, when the second whistle was heard, they could have stopped and reversed their engines, and sent their ship back almost instantly. Unfortunately they did not do so. It has been said over and over again by this court that vessels in a fog must be held very strictly to the rule, and also that the rules are not made to prevent collisions cnly, but to prevent risk of collision. The learned judge has taken that view, and, to my

CT. OF APP.]

mind, he was right in so doing. I wish I could! express myself so clearly with regard to my decision that the utmost hypercriticism could not hereafter question what I say now. I will there

fore say again that this was a case in which the vessel whistling was as nearly as possible right ahead, and at such a distance that it must have been apparent to those on the Telesilla that, if the vessel was coming towards them, it must very soon produce a position of great danger; that therefore the officer in charge ought to have acted on the probability that the vessel was coming towards him; that therefore he ought to have acted at once and without delay; and that, because he did not act sooner than he did, he broke the rules. I therefore think that the judgment of the President was right, and I would only add that our assessors agree with the opinion of the Trinity Masters below.

LINDLEY, L.J.-I am of the same opinion, that the conclusion arrived at by the learned judge in this case was right, though I think, as he did, that the decision bears somewhat hardly on the Telesilla. The collision took place in a fog off Cromer, and, up to that time, the Telesilla was going at what there is no reason to suppose was other than a moderate speed. She was going easy, and I understand there was no other method of going slower, except perhaps by stopping the engines from time to time. I will assume that to be so. The Telesilla hears a whistle, which is a little on the port bow, but practically ahead. Now comes the question, What ought she to have done? In point of fact, we know she did nothing until she heard the second whistle, which was much plainer and clearer than the first, and which showed that the other vessel was approaching nearer. Directly after that they see the vessel, and there is a collision. must say I agree with the learned President when he says: "The state of facts which the plaintiffs put forward show that immediate steps should have been taken, by waiting for a repetition of the whistle, to ascertain the distance of the other vessel and the direction she was taking. As I have had occasion to say, they should, as it were, put themselves en rapport with each other. Instead of that they still continue to go or, at the same speed, until another sound is heard, and then the ships are brought into such close proximity that it is impossible to avoid a collision."

I

It is very difficult to lay down a general rule in these cases. But, looking at the facts of this case, and the speed at which the Telesilla was going, it is obvious that something more might have been done to ascertain the movements of the other vessel. It seems to me that she was in fault, and did break art. 18. I am therefore of opinion that the decision is right, and that this appeal should be dismissed.

The

LOPES, L.J.-It appears to me that the decision in The Dordogne (ubi sup.) lays down no invariable rule as to what a vessel must do in a fog after she hears a whistle. Each case must depend on its own particular circumstances. "moderate speed" spoken of in art. 13 must be taken to be a relative term. Thus, there may be circumstances where it would be prudent to stop, and even to reverse. In the present case the whistle was heard almost directly ahead. When it was heard, the Telesilla was going about three and a half knots, and continued on at that speed.

[CT. OF APP.

Tuesday, March 2, 1886.

(Before Lord ESHER, M.R., LINDLEY and
LOPES, L.JJ.)

THORMAN v. BURT, BOULTON, and Co. (a) ON APPEAL FROM THE QUEEN'S BENCH DIVISION. Carriage of goods-Action for freight-Counterclaim for short delivery-Bill of ladingSignature of master's agent-Liability of owner -Estoppel-Bills of Lading Act 18 & 19 Vict. c. 111), ss. 1, 3.

To an action for freight by a shipowner against the indorsees of the bill of lading, the defendants counter-claimed in respect of short delivery. All the goods that were actually put on board had been delivered to them; but the bill of lading acknowledged the receipt of a larger quantity. All the goods mentioned in the bill of lading had been floated alongside the ships in rafts, and mate's receipts given for them; but some of them were lost before they were shipped. The bill of lading was signed, "By authority of the captain, Wilh. Ganswindt as agent." Ganswindt was the ship's broker at the shipping port.

Held, that, apart from the Bills of Lading Act, a bill of lading is not conclusive against a shipowner, and he is not liable in respect of any goods not actually shipped; and that, in the present case, he was not liable under that Act, as the bill of lading was not signed by or for him.

Grant v. Norway (10 C. B. 665; 16 L. T. Rep. O. S. 504) and Jessel v. Bath (L. Rep. 2 Ex. 267) followed.

By a contract between Schoenberg and Domansky, of Dantzic, and Burt, Boulton, and Haywood, of London, the former sold to the latter 800 to 1000 loads of sleeper blocks deliverable to ships at Dartzic, according to the custom of the port, payment by buyer's acceptance in exchange for shipping documents. The custom of the port of Dantzic in loading timber cargoes is as follows: The shipper counts the number of pieces in each raft, and they are then floated down to the ship, and again counted by the mate or someone on behalf of the ship, and a mate's receipt given for them, which receipt is handed over to the ship when bills of lading are signed. In the present case 7497 pieces were delivered in rafts alongside the s.s. Meredith, belonging to the plaintiff, and a mate's receipt given for that number. This receipt was taken to the office of Ganswindt, the shipping broker, and the bill of lading was made out for the (a) Reported by A. H.BITTLESTON, Esq., Barrister-at-Law.

CT. OF APP.]

quantity named in the receipt, and was signed by the shipping broker. The bill of lading commenced as follows: "I, Fletcher, master of the steamship called Meredith, which is now loading in Dantzic, to sail for London, where the discharge is to take place, certify that I have received from Messrs. Schoenberg and Domansky in the hold of my said ship, 7497 pieces," &c., and was signed, By authority of the captain, Wilh. Gans windt as agent." The number of pieces actually shipped on board and delivered to the defendants, who were the indorsees of the bill of lading, was 216 short of the 7497 pieces, such 216 pieces being lost in some way from the rafts when alongside the ship.

66

This action was brought for freight and dock dues, but the only question in dispute was, whether there had been a short delivery for which the defendants could counter-claim. The action was tried before Grove, J., who held that the counter-claim was not maintainable.

The defendants now appealed.

Bigham, Q.C. and Armytage for the defendants. -By the Bills of Lading Act, the bill of lading is conclusive evidence that the goods therein represented to be shipped have been shipped, as against the master or other person signing. Here the signature is by the ship's agent and binds the shipowner. [Lord ESHER, M.R.-You will find Jessel v. Bath (L. Rep. 2 Ex. 267) a distinct authority to the contrary.] Even if the person signing has only authority to bind the owner in respect of goods actually shipped, delivery of the goods to the servants of the shipowner alongside the vessel is equivalent to delivery on board :

British Columbia Sawmill Company v. Nettleship, 3 Mar. Law Cas. O. S. 65; L. Rep. 3 C. P. 499; 18 L. T. Rep. N. S. 291.

They also cited

Fragano v. Long, 4. B. & C. 219;

Re Bahia and San Francisco Railway Company,
L. Rep. 3 Q. B. 584; 18 L. T. Rep. N. S. 467;
Howard v. Tucker, 1 B. & Ad. 712.

Cohen, Q.C. (with him (J. Edge) for the plaintiff.-The Bills of Lading Act only makes the person actually signing the bill of lading liable:

Brown v. Powell Duffryn Coal Company, L. Rep. 10 C. P. 562; 2 Asp. Mar. Law Cas. 578; 32 L. Î. Rep. N. S. 621.

In the present case the bill of lading is not signed by the plaintiff; and the person who actually signed, signed for the master, and not for the shipowner. [He was stopped by the Court.]

Lord ESHER, M.R.-This is an action by a shipowner for freight and dock dues. The defendants are the assignees of the bill of lading, to whom it must be taken that the property in the goods mentioned in the bill of lading has passed; and they have set up a counter-claim against the shipowner for not delivering all the goods specified in the bill of lading. The question is, whether that counter-claim is maintainable. Before the Bills of Lading Act, if any injury was done to the goods, so as to affect the rights of the person to whom, by the indorsement of the bill of lading, the property had passed, he could sue in respect of such injury. If the goods were misde. livered or any other form of conversion had taken place, he could bring an action of trespass; that

66

The

[CT. OF APP. was by reason of his ownership of the goods. But he could not maintain an action upon the contract contained in the bill of lading. question here is, not whether the defendants can maintain an action as owners of the goods, but whether they can sue for a breach of the contract contained in the bill of lading. By the Bills of Lading Act, sect. 1: 'Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit and be subject to the same liabilities in respect of such goods as if the contract contained in the bill had been made with himself." The contract contained in the bill of lading refers to all goods put on board the ship. It does not bind the owner of the ship as to more goods than those put on board. If the bill of lading signed by the master contains more goods than those actually put on board, the signature is beyond the master's authority; therefore, as far as this 1st section goes, the contract is only binding as to the goods actually put on board. But then it is said that the 3rd section of the Act gives the defendants a larger remedy. By that section, 'Every bill of lading, in the hands of a consignee or indorsee 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 person signing the same, notwithstanding that such goods, or some part thereof, may not have been so shipped, unless," &c. Now I agree that the words "the person signing the same" do not necessarily mean the person who actually signs. If, for instance, a clerk in the shipowner's office signs per pro., the owner might be the person signing within the section. Or, if the captain had the gout and was thereby prevented from signing himself, and a servant signed for him, the captain would be the person signing. But in the present case, the signature was not that of a mere clerk or servant but of an agent; and he was the agent of the master, not of the shipowner. Therefore, as the shipowner did not sign the bill of lading in the present case, he incurs no liability under the 3rd section. I have already said that the 1st section does not help the defendants, as under that they can only sue in respect of the goods actually put on board. A number of cases seem to me to have really decided what we are deciding in the present case.

66

LINDLEY, L.J.-If this counter-claim is based upon the Bills of Lading Act, I am of opinion that it is not maintainable. The bill of lading is signed as follows: "By authority of the captain, Wilh. Ganswindt, as agent." That is clearly not the signature of the shipowner, who is the person against whom this counter-claim is made. Therefore, the argument based upon the 3rd section of the Bills of Lading Act falls to the ground. The 1st section merely gives the indorsee of the bill of lading the right to sue upon the contract contained in it. Then, if we look outside the Act the case of Grant v. Norway (10 C. B. 665; 16 L. T. Rep. O. S. 504) settles the point. question to be decided was an extremely difficult one before that case; but that case settled it, and, as far as I am aware, has always been acted on. The marginal note is: "The master of a ship

The

signing a bill of lading for goods which have never been shipped is not to be considered as the agent of the owner in that behalf, so as to make the latter responsible to one who has made

advances upon the faith of bills of lading so signed." Then Mr. Armytage argues that there is a distinction between that case and this because all the goods mentioned in the bill of lading were floated alongside the ship in the present case, and were therefore in the custody of the ship. But that difference seems to me not to be material with reference to the question that we have to decide here. The decision of Grove J. was right, and this appeal must be dismissed.

LOPES, L.J.-The defendants in this action, who are indorsees for value of the bill of lading, seek to recover, by way of counter-claim, from the plaintiff, who is the shipowner, the difference in value between the goods delivered, which are all that were actually put on board, and the larger quantity of goods mentioned as being shipped in the bill of lading. It is perfectly clear that before the Bills of Lading Act such an action was not maintainable. Nor is it maintainable since that Act, and the case of Jessel v. Bath (L. Rep. 2 Ex. 267) seems to me to be a direct authority to that effect. That decides that the owner or charterer of a vessel is not bound by the signature of his agent to a bill of lading for a greater quantity than was actually shipped. The decision of the learned judge was therefore right, and this appeal will be dismissed.

Appeal dismissed.

Solicitors for the plaintiff, H. C. Cooke and Co., agents for H. A. Adamson, North Shields.

Solicitors for the defendants, Wild, Browne, and Wild.

HIGH COURT OF JUSTICE.

CHANCERY DIVISION.
Monday, March 15, 1886,
(Before KAY, J.)

CAIRD v. Moss. (a)

Estoppel-Judgment-Res judicata-Shipbuilding contract-Action for rectification of-Agreement already executed under judgment of Palatine Court.

A judgment of the court deciding on the construction of an agreement that the plaintiffs are not entitled to priority over the defendants constitutes no bar, by reason of its being res judicata, to a subsequent action by the plaintiffs claiming rectification of the agreement so as to give them that priority.

The plaintiffs, shipbuilders, who had not been fully paid the price of a ship built by them for one B., entered into an agreement with B. and the defendants, who held a charge upon the ship in respect of a loan to B., whereby it was agreed to sell the ship to J. R.. the plaintiffs holding the purchase money and distributing it amongst B., the defendants, and themselves, in accordance with the terms of the agreement. The plaintiffs having paid themselves the balance of the purchase money due to them from B. in priority to the claim of the defendants, the defendants instituted an action against the present plaintiffs, claiming that the (a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

[CHAN. DIV.

trusts of the agreement should be carried out. In that action it was held that the present plaintiffs' claim was not entitled to priority over the defendants' claim, and that the plaintiffs were not entitled to pay themselves the balance of the original purchase money. In the present action to rectify the agreement by inserting such words as would provide for payment to the plaintiffs of the balance of the purchase money in priority to any other payment:

Held, that the previous judgment was no bar, in the sense of being res judicata, to the claim in the present action.

THE plaintiffs, Caird and Purdie, were ship. builders, carrying on business at Barrow-inFurness.

The defendants, Moss and Co., were shipbrokers, carrying on business in Liverpool and London.

On the 21st July 1880 the plaintiffs entered into a contract with William Batten to build for him a steamship, afterwards called the Espana, for the sum of 14,6007., which was subsequently increased by reason of certain extras to 15,6001.

In Aug. 1880 Batten gave a charge upon his interest under the contract to the defendants, who, on the 21st Sept. 1880, gave notice thereof to the plaintiffs.

In Feb. 1881 Batten sold his interest in the vessel to José Reyes. Batten being unable to pay the sum of 64601., the balance of the purchase money due from him to the plaintiffs, an agreement, dated the 15th March 1881, was entered into between the plaintiffs, Batten, and the defendants. By that agreement, after reciting, among other things, that Batten had paid to the plaintiffs 91401. on account of the 15,600l. due in respect of the purchase money for the vessel, leaving a balance of 64601. due to the plaintiffs, it was agreed that the plaintiffs should despatch the vessel to Manilla, to José Reyes; that on payment of 10,2761. the balance due from José Reyes to Batten (which payment Batten thereby authorised), the plaintiffs were to give up possession to José Reyes; in default of payment of the 10,2761., the plaintiffs were to be at liberty to sell the vessel. The 4th clause provided for the distribution of the purchase money, and was in the following terms:

4. The said Caird and Purdie shall hold the purchase money for the said vessel, whether received from the said José Reyes or any other purchaser, upon trust first, to recoup themselves all costs, charges, and expenses, of what nature or kind soever, in any way connected with the said vessel on and from the 7th day of March instant, being three days after her trial trip, including in such costs any expenses incurred in pursuance of clause 1, after giving credit for any freight, and including in such costs Mr. Caird's expenses of his present journey to London, and the legal expenses of the preparation of this agreement, and including the sum of 1621. 14s. 6d., part of the disbursements by H. E. Moss and Co. in respect of the present intended voyage of the steamer, which sum Caird and Purdie are to pay to them in exchange for proper vouchers for that amount; second, to pay to the said H. E. Moss and Co. the sum of 14271. 5s. 6d. now due to them by the said William Batten; and third, to pay over the balance, if any, to the said William Batten.

The agreement then provided for the collection and distribution by the plaintiffs of the insurance money in the event of the steamer being lost.

The vessel was ultimately sold by the plaintiffs to José Reyes, in July 1881, for 92001.

On the 20th Oct. 1881 the defendants com