that price. It was said that the owner continued to hold the hemp in hopes that the market would rally, but that it never did, and that ultimately he had to sell it at a considerable loss. He claimed, not, indeed, the difference between the price at which he might have sold it, had it arrived in October, and the price at which he ultimately did sell it; but the difference between the former, and the price which he might have got for it, immediately after it had been delivered. It was shown that during November and in the first week of December there was a fair demand for hemp at 411. 10s. per ton, and that price might have been obtained for it. It was also shown that it would have taken about three weeks after the vessel's arrival to have got the hemp sampled and put upon the market; that by that time there was no demand for it. and that, although the prices current had not altered much, a seller forcing any quantity upon the market would have had to submit to a reduction of at least 208. in the ton. It was proved, also, that after Christmas the market continued to fall, owing to large shipments of hemp brought to Liverpool, so that, as one of the brokers observed, the market was knocked all to pieces. "Assuming, then, that by the delay in the delivery there was a loss of market, the question arises whether this is an item which can be properly allowed in a claim of this description; whether, in fact, a claim for loss of market can be allowed on account of an unreasonable delay in the delivery of the goods. The case must have frequently arisen in this court, as, for instance, when a vessel has been run into by another, and the delivery of the cargo has been delayed by the vessel having to put into port for repairs; and yet I think that I may say with certainty that no such claim has ever yet been preferred in this court, certainly not during the time I have held this office, now nearly twenty-three years. may be, however, that we have hitherto proceeded on a wrong principle, and as the point has been very strongly urged in this case by a counsel who is not wont to maintain an untenable position, I propose to examine carefully all the authorities which have been cited in support of that position, as well as the grounds upon which it has hitherto been thought that a claim for loss of market cannot properly be allowed." It The Registrar then referred to and discussed the following cases : The St. Cloud, Br. & Lush. p. 4; Nor. 512; Fraser and others v. Telegraph Construction and Horne v. Midland Railway Company, L. Rep. 8, and concluded his report as follows: "It seems to me that the cases of Hadley v. Baxendale, Smeed v. Foord, and Irvine and another v. The Midland Railway Company (ubi sup.), are conclusive on the point; and that the practice of the Court of Admiralty, in refusing to entertain any claim for loss of market in such cases, is in entire accordance with that of the courts of common law, and I shall refuse to alter that practice until I am corrected by superior authority. I may add that the merchants by whom I am [ADM. The general rule in collision cases is that where more than one-third is taken off, the claimant shall pay the costs of the reference. But this rule does not apply to cases of this description. The defendant in the first instance denied altogether his liability, and set up several pleas, which he afterwards withdrew; the condition of the boilers of his vessel was most discreditable, and he entailed heavy losses on the plaintiff; he has, moreover, made no tender on account of the sums which the latter was undoubtedly entitled to recover. On the other hand, the plaintiff has failed in the main issue, the question of loss of market. On the whole, we think that justice will be done by leaving each party to pay his own costs of the reference, but the reference fees will have to be paid by them in moieties." A motion was heard in court in objection to the report of the Registrar, "to modify and alter the same so far as it disallows the sum of 2891. 58. 9d., claimed as damages for the defendant's breach of contract in respect of the depreciation in value by loss of market on 2403 bales of hemp, weighing 5785 cwt., forming part of the cargo of the above-named steamship, because the disallowance of such damages is based upon a misapprehension of law, and is erroneous, and the plaintiff is legally entitled upon the facts of the case appearing by the Registrar's report to recover such damages, and also to alter the said report so far as it orders the plaintiff to bear his own costs of the reference, and to make such order as shall be meet and right in and about the premises, and to condemn the defendant in the costs of this motion." The Clarkson, in support of motion. It is admitted that the speed of the Parana was defective, and the plaintiff claims 2851. 58. 9d. for the loss of market. The Registrar bas allowed nothing in respect of this claim. only cases in which loss of market has been disallowed as the measure of damages, are those in which it has been occasioned by a special sub-contract, unknown, and not in the consideration of both parties: In Smeed v. Foord (1 Ell. & Ell. 602) the wheat claimed for was not the subject matter of the contract, which was for the delivery of thrashing machines, not to deliver wheat; here the subject matter of the contract was the carriage and delivery of the hemp; the plaintiff could have recovered on the thrashing machines if he had procured others at a higher price. The Registrar relied also on Hadley v. Baxendale (9 Exch. 341), but that case is in my favour, for the fluctuation of the market is a matter in the knowledge of both parties. [Sir R. PHILLIMORE.-There are two criteria (1) Was it in contemplation of the parties? (2) Was it the natural result of the negligent delay of the defendant?] Fraser v. Telegraph Construction and Maintenance Company (L. Rep. 7 Q.B. 566) lays down the law under which damages of this description may be recovered. The breach of contract there was in not supplying a vessel whose principal moving power was steam; here it is for delay in delivery of goods occasioned by defective power of ship, and the loss occasioned thereby is the difference of price caused by the delay. Horne v. Midland Railway Company (L. Rep. 8 C. P. 131) is really in favour of the plaintiff; the reason that the extra sum there claimed for loss upon the contract by delay could not be recovered was because the defendants had not notice of any special sub-contract which would increase the ordinary loss caused by non-delivery in time. In Borries v. Hutchinson (34 L. J. 169, C. P.) the question was what was the proper measure of damages where, from the delay of the carrier, the plaintiff lost his market altogether, and there, also Willes, J. says, "In ordinary cases, the measure of damages is the difference between the contract price, and the market price." In O'Hanlan v. The Great-Western Railway Company (34 L. J. 154, Q. B.) the general principle is the same, and in The Great- Western Railway Company v. Redmayne (L. Rep. 1 C. P. 329) the court held that the market value of the goods at the time was the true test of the measure of damages. In Collard v. The South-Eastern Railway Company (4 L. T. Rep. N. S. 410; 7 H. & N. 79) also, the plaintiff, a hopgrower, was held entitled to recover the difference between the market value and the contract price. The Watkin Williams, Q.C. and G. Bruce, in support of the report. The principle adopted by the Registrar is the only correct one. shipowner cannot be taken to know the purpose for which the cargo is intended, and ought not to be involved in questions concerning the rise and fall of the market. The only ques. tions are, whether the fall of market occasioning the loss was in the contemplation of the parties when the contract was made, and whether the goods have depreciated intrinsically. Hadley v. Baxendale (9 Exch. 341) settled, at all events, that complete compensation for such a loss could not be claimed. There must also be some general principle applicable to all cases, and that the Registrar has correctly stated in his report. Cory v. Thames Ironworks and Shipbuilding Com pany (17 L. T. Rep. N. S. 495; L. Rep. 3 Q. B. 181), is not a question between carrier and sender, it is true, but I especially rely on the judgment delivered therein by the Lord Chief Justice. It is necessary to look at the nature of the contract and the circumstances under which it was made, to see if the damage resulting was such as was in contemplation of both parties. Here it was not in contemplation of shipowner that loss of market would ensue; some loss was contemplated, certainly, and that is fairly represented by the five per cent. on the value of the cargo allowed by Registrar. The British Columbia, &c., Saw Mills Company (Limited) v. Nettleship (L. Rep. 3 C. P. 499), is directly in point; there the non-delivery of a certain piece of machinery stopped the whole work, but the defendant was held not to be liable for the loss arising therefrom, but only of the price of replacing the goods which he had lost, and interest at the rate of five per cent. for the delay occasioned by his negligence, and this is the true principle to allow a rough mercantile profit. Any other rule would lead to complications practically insoluble by the court. actual amount of damage cannot be looked to, as it is not and cannot be in the contemplation of the parties. The cases cited for the plaintiffs are all cases between vendor and purchaser, and therefore do not apply. The plaintiff's contention The [ADM. is opposed to the universal practice of this court and to the analogy of insurance law, by which underwriters in goods are never made responsible for loss of market. The plaintiff cannot recover such damages as these without notice to shipowner that he wanted the goods to be delivered for a particular market: Horne v. Midland Railway Company, L. Rep. 8 C. P. Wilson v. Lancashire and Yorkshire Railway Com- Borries v. Hutchinson, 34 L. J. 169, C. P.; Great Western Railway Company v. Redmayne, Collard v. South-Eastern Railway Company, 7 H. & Clarkson in reply. In addition to the cases mentioned above, the following authorities were cited in the course of the argument. Jackson v. Union Marine Insurance Company, ante, Phillimore's International Law, vol. 3, p. 699, Smith's Leading Cases, vol, 2, Vicar v. Wilcox, 6th edit., p, 503. Cur. adv. vult. June 13.-Sir R. PHILLIMORE.-I have taken time to consider my judgment in this case, partly on account of the great number of reported cases to which I was referred, but more especially because, unfortunately, I am unable to agree with the very elaborate and carefully reasoned opinion of the Registrar from whose ruling this appeal has been prosecuted. It is admitted in this case that the carrier must make some compensation to the merchant for the loss sustained by him in consequence of the delay in the execution of the contract; the question is what are to be the items of that compensation. The registrar has found that these items are 931. 158. for deterioration in quality of a portion of the cargo and 1011, 38. 3d. for loss of the interest, during the detention in consequence of the delay, at five per cent. on the value of the cargo. The merchant also claims, in addition to these items, the ascertained difference between the market value of the goods at the time when they might have been sold, if the carrier had not unreasonably delayed the fulfilment of his contract, and their value at the time when they did actually arrive, and the justice of this claim is the sole subject of this appeal. The law applicable to this question has apparently been difficult to ascertain and the application of it when ascertained more difficult. The general rule of law is stated with his usual clearness by M. Massè in the last edition of his Droit Commercial, vol. 3, p. 239, edit. 2, Lib. 5, Tit. I. Ch. 3, sect. iv., § 1. The principle of this rule is in different words expressed in the English and American judgments. In accordance with this principle the carrier has been holden liable to pay damages on the hypothesis that he contemplated payment of a certain kind of compensation in the event of his not executing, or his unreasonably delaying to execute his part of the contract. Another form of stating that proposition is to be found in the judgment of the Lord Chief Baron in the Exchequer Chamber in Horne v. Midland Railway Company (Limited) (L. Rep. 8 C. P. 135) decided in the year 1873. "The principle clearly to be declared for all the authorities is that the damages for a breach of contract must be such as may fairly and reasonably be considered as arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as the_probable results of the breach of it." The last English judgment which I have been able to find is one delivered by the Lord Chief Justice in 1876, in the case of Sampson v. The London and North-Western Railway Company (L. Rep. 1 Q. B. Div. 274). It is the only English case, I think, for the knowledge of which I am not indebted to the industry of counsel. "The law," the Lord Chief Justice says at p. 277, "as it is to be found in the reported cases, has fluctuated, but the principle is now settled, that whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to the carrier from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the future of that object. The latest American decision, I believe, is that of Ward v. The New York Central Railroad Company (48 N. Y. 29), it is thus stated in a note to the last edition of Sedgwick on damages (p. 430): "It is here held, that where a carrier from mere negligence,or plain violation of duty, omits to transport merchandise within a reasonable time, and its market value falls in the meantime, the true rule of damages is the difference in its value at the time and place it ought to have been delivered and the time of its actual delivery, the court observing that sagacious men rely upon their own ability to judge of the market in undertaking large commer. cial projects, and according to their views of the market send their merchandise by a quick or by a slow carrier, and make compensation accordingly. A contrary rule would deprive them of all benefit of a rapid transit. The court further remarked, had the goods been injured by reason of improper exposure by the carrier, and thus become depreciated in their market value, the carrier would be liable for the loss. Here his negligent delay caused the loss; the injury also is natural and direct; arriving later by the carrier's negligence, these goods, measured by the only standard that regulates value, were not worth as much as at the time when they should have arrived." I do not refer to other cases besides those two, but I have read them all with care; most of them will be found in the notes to Mr Sedgwick's valuable work on the Measure of Damages (6th edit., chap. 3, p. 81; chap. 13, p. 430), to which I have already referred. The result of the reported decisions is, that this merchant may claim to be indemnified for the actual loss in the value of the goods shipped (perte qu'il a fait)-damnum emergen,-and from loss of profit, gain dont il a été privé)—lucrum cessans— when such loss is the direct consequence of the carrier's default. Why should not the ascertained difference between the market price, when the goods might have been sold had there been no delay, and the market price which they would fetch after the delay, be a reasonable measure of the loss of the merchant's profits; the deprecia [ADM. tion is the direct consequence of the carrier's default; in other words, he must be taken to have known or contemplated that the merchant desired a safe and quick transport of marketable goods to their intended market. This is the ordinary knowledge with which a carrier receives goods, and it is on this principle, as it appears to me, that in Horne v. The Midland Railway Company (Limited) (L. Rep. 8 C. P. 135), already cited, the difference between two market prices was consi dered to be the proper measure of the damages. The case before me is not one of a special private speculation or particular mercantile operation in which delay may inflict as much injury on the shipper with respect to the market value of the goods as their deterioration from want of requisite appliances or improper exposure during the passage. Upon the same principle the carrier is responsible for both injuries, the depreciation in the market value of these goods has been in my opinion the natural consequence of the carrier's unreasonable delay Propter rem ipsam non habitam, as the civilians say-and for reasons already alleged, I think the shipper is entitled to have included in his damages the difference between the market price at the time when the goods did arrive and at the time when they ought to have arrived. I must therefore direct that the registrar's report be varied by adding to the damages allowed the sum of 2897. 58. 9d., which represents the loss of market. I think that the justice of the case demands that the plaintiff's have their costs of appeal and of the reference. Solicitors for plaintiff, Hillyer, Fenwick, and Stibbard. Solicitors for defendants, Parker, Watney, and Clarke. Tuesday May 30, 1876. THE SISTERS. Limitation of liability-Practice. A vessel under arrest in a cause of damage was liberated on payment into court of the amount to which her liability was limited under 25 & 26 Vict. c. 63, s. 54, together with a sum to cover costs and interest, and subsequently she was found solely to blame for the collision. The owners, who had instituted a suit for limitation of liability moved for a decree in that suit, and that the money in court should be transferred to the credit of that suit; The court granted the prayer of the first part of the motion but not of the latter, holding it to be not necessary. ON the 15th Oct. 1874, the Sisters, a barge, in company with two other barges, the Volunteer and the Alfreda, were cruising up Halfway Reach in the river Thames. A steamer called the Thames was going down the river, and after just avoiding doing serious damage to the Sisters, ran into and sank the other two barges with their cargoes, and caused the death by drowning of two of the three persons on board the Alfreda. The Volunteer instituted an action against the Thames, which was dismissed on the ground that the Thames had been cbliged to adopt the course she had done to avoid the imminent danger of collision with the Sisters, which was occasioned by the improper navigation of that vessel. The Alfreda then, on the 2nd Feb. 1875, instituted an action against the Sisters and | arrested her; the Volunteer also instituted an action against the Sisters; the owners of the Sisters on the 22nd Feb. 1875 instituted a cause of limitation of liability, and on the 2nd March 1875 moved the court to release that vessel on payment into court of 960l. 7s., that being the amount at 151. per ton, for which the owners were liable under 25 & 26 Vict. c. 63, s. 54, and the court, after hearing counsel, permitted the release on that sum and a further sum of 3291. 88. to cover interest and costs, being paid into court, and the Sisters was released accordingly. On the hearing of the cause of damage the Sisters was found alone to blame, and that decision was confirmed on appeal (ante p. 122; 34 L. T. Rep. N. S. 338). F. W. Raikes. on behalf of the plaintiffs in the limitation of liability suit, the owners of the Sisters, now moved the court for a decree in that suit limiting the plaintiff's liability to 15l. per ton and the costs incurred in the causes of damage and limitation of liability, for a stay of proceedings in the cause of damage, and that the sums paid into court in that suit should be transferred to the credit of the suit for limitation of liability. He pointed out that as the jurisdiction in cases of limitation of liability was originally vested in the Court of Chancery, by the Merchant Shipping Act 1854, § 514, and was only transferred to the Court of Admiralty in certain cases, by the Admiralty Court Act 1861, § 13, the payments out of court must be in the limitation of liability suit and not in the cause of damage, and that for that purpose the money in court should be transferred to that suit. E. C. Clarkson, for the defendants in the limitation of liability suit only required that whatever course the court pursued with reference to the money in court. that the defendants' costs in the limitation of liability suit which had not yet been taxed should be secured. Sir R. PHILLIMORE, after consultation with the registrar as to the practice, made the decree prayed for in the limitation of liability suit, the plaintiffs' solicitors undertaking that the costs in that suit should be paid, and ordered a stay of all further proceedings in the damage suit, but as to latter part of the motion made no order, on the ground that whatever might have been requisite had the cause for limitation of liability been in another division of the high court, the money being in this division it was immaterial which suit it stood to the credit of. Solicitors for the plaintiffs, Deacon, Son, and Rogers. Solicitors for the defendants, Ingledew, Ince, and Greening; Keene and Marsland. Tuesday, Aug. 1, 1876. Pleadings-Limitation of liability-Counter claim. Under the system of pleading established by the Judicature Act and rules, the defendant where he admits his liability for the damage done by a collision, but claims to have his liability limited to 81. or 15l. per ton of his vessel under the Merchant Shipping Act 1862 (25 & 26 Vict. c. 63,) 8. 54, can so claim by counter claim instead VOL. III., N. S. LADY. of by instituting a separate suit for limitation of liability: Semble, when liability is not admitted a similar course may be adopted in the alternative. In this case actions were commenced against the Clutha and her owners by the owners of the Rus sian barque Tovernus, and of a portion of the cargo laden on board her, for damages sustained by a collision between the vessels whilst the Tovernus was at anchor in the river Clyde on the 23rd Dec. 1875. The Tovernus was sunk by the collision, and three of her crew drowned. These actions were, by order of the court, consolidated and statement of claim in the consolidated action delivered on the 26th June 1876. On the 14th July 1876, the defendants delivered a statement of defence and counter claim, which so far as material was as follows: Between RICHARD JANSSEN, of Parga, and others, the owners of the Russian barque Tover(plaintiffs), mus and RICHARD JANSSEN, of Parga,and others, the owners of the Russian barque Tovernus and the owners of the cargo lately laden on board the said barque, and the survivors of her crew, and the legal personal representatives of such of her crew as are deceased, and against all and every person or persons whomsoever claiming to be entitled to claim in respect of damage or loss to the said barque Tovernus or her boats, or to any goods, merchandise, or other things on board of her at the time of the collision, in the statement of claim mentioned, or in respect of any loss of life or personal injury occasioned by the said collision (defendants) (by counter claim). Statement of defence and counter claim. 1. The defendants in the said original action admit the statements contained in the statement of claim, and that the said collision was occasioned by improper navigation of the said steamship or vessel Clutha, and by way of counter claim the said defendants say as follows: 2. The said defendants were before, and at the time of the said collision, the owners of the said steamship Clutha which is a duly registered British steamship. 3. On the 27th June 1876, another action, numbered 1876 O No. 330, was commenced against the said steamship Clutha by the said owners of cargo, laden on board the said barque and in the statement of claim mentioned, to recover damages for the loss of the said cargo in the said collision, and such action has by order of the court been consolidated herewith. 4. No other action or suit save as aforesaid has yet been brought against the said defendants or the said steamship Clutha or her freight in respect of the said collision, but the defendants apprehend other claims in respect of a damage to goods, merchandise, and other things on board the said barque Tovernus, and also in respect of loss of life and personal injury caused to persons on board of and carried in the said barque Tovernus at the time of the said collision. 5. The said collision took place without the actual fault or privity of the said defendants, or either or any of them, and the said defendants submit that they are entitled to the benefit of the provisions of the Merchant Shipping Act 1854 and the Merchant Shipping Acts Amendment Act 1862, for limiting their liability in respect of the said collision. 6. The gross tonnage of the said steamship Clutha, Q 1. A declaration that the defendants are not answerable in respect of loss of life or personal injury caused by the said collision, together with loss or damage to ship's boats, goods, merchandise, or other things to an aggregate amount exceeding 151. for each ton of the gross tonnage of the said steamship Clutha, without deduction on account of the engine room, nor in respect of loss or damage to ship's goods, merchandise, or other things on board the said barque Tovernus, caused by the said collision to an aggregate amount exceeding 81. for each ton of the gross tonnage of the said steamship Clutha without deduction on account of the engine room. 2. That the said defendants may be at liberty to give bail for such an aggregate amount and for such interest as the court may think fit to award. 3. That upon the filing of the bail bond all further proceedings in the said actions, numbered 1875 J. No, 106, and 1876 O, No. 330 respectively, may be stayed, and the respective plaintiffs in the said actions, and all and every other person and persons claiming in respect of damage or loss to the said barque Tovernus, or to her boats, or to any goods, merchandise, or other things on board her, or in respect of loss of life or personal injury occasioned by the said collision, may be restrained from bringing any other action or actions in respect of these said losses or injuries. 4. That all proper directions may be given by the court for ascertaining the persons who have any just claim in respect of loss or damage to ships, goods, merchandise, and other things caused by the said collision, and in respect of loss of life and personal injury caused by the said collision, and for the exclusion of any claimants who shall not come in within a certain time to be fixed for that purpose. 5. That the amount of the said defendant's liability may be rateably distributed among the several persons who may establish a claim thereto. 6. Such further and other relief as the nature of the case may require. On the 10th July the plaintiffs replied by not admitting the truth of the 5th and 6th paragraphs of the counter-claim, and on the 1st Aug. 1876 the case came on for hearing. Clarkson, for owners of barque Tovernus. Aspinall for defendants, mentioned the matter to the court, as the pleadings were new to the practice of this division, but he submitted that under the Judicature Act and rules the defendant was entitled to raise the question of the limitation of his liability by counter claim to the original action, instead of instituting a special suit for the purpose, the affidavit and copy of register usual in such suits being filed in this. He referred to Order XIX., rule 9, Order XXII., rule 5, and Supreme Court of Judicature Act, 1873, sect. 24, sub-sects. 4, 6, 7; Merchant Shipping Act 1854, sect. 514; Common Law Procedure Act 1860 (23 & 24 Vict. ch. 126. sect. 35), and the Admiralty Court Act 1862 (24 Vict. c. 10, s. 13). Clarkson and Phillimore agreed that it was now the proper course to pursue. Sir R. PHILLIMORE said that there could be no doubt that course could now be pursued, and that under the circumstances it was the proper one to adopt, and ordered all proceedings in the actions [ADM. to be stayed except for taxation and payment of costs, 81. per ton, on the gross tonnage of the Clutha, to be paid into court, and bail to be given for the remainder up to 151. per ton on the gross tonnage of the Clutha, with costs and interest. Solicitor for the plaintiffs, Thomas Cooper. Solicitors for the owner of the cargo, Stokes, Saunders, and Stokes. Solicitors for defendants, Pritchard and Sons. THIS was an action in rem instituted on behalf of the owners, masters, and crews of the pilot cutter Rapid and the boats O. and M., Guinevre, and Swift, against the cargo of the late German steamship Schiller, to recover salvage reward for services rendered to the lives of the passengers of that vessel. The Rapid was a pilot cutter belonging to the Island of Bryher, one of the Scilly Islands, was of the value of 500l., and at the time of the services was manned by a crew of eight hands. The O. and M. was a six-oared gig belonging to the Island of St. Agnes, one of the Scilly Islands, and at the time of the services was manned by a crew of six hands, including a licensed Trinity pilot. The Guinevre was also a six-oared gig belonging to the Island of St. Agnes, and was manned by a crew of seven hands. The Swift was a boat also belonging to the Island of St. Agnes and was manned by a crew of four hands. The Schiller went ashore on the Retarrier reef, which is about three miles and a quarter west of the Island of St. Agnes, and about two miles and three-quarters west and by south of the Island of Annett. The services were rendered during the morning of the 8th May, 1876, and during a dense fog. The Swift picked up one passenger from the Schiller's lifeboat which was discovered full of water in Smith's Sound; the Rapid picked up two men between the rocks of Minalto and Mincarlo; the O. and M. discovered the Schiller herself, and picked up from spars and wreckage five men; the Guinevre also got to the Schiller and picked up two men from among the wreckage; all these men were got ashore and saved. The O. and M., after taking the men she picked up ashore, got a steamboat that was going to Penzance to go to the wreck. steamboat took the lifeboat and the O. and M. in tow, and proceeded to the Schiller, the Trinity pilot from the O. and M. being on board the steamboat. The O. and M. was damaged before getting to the Schiller the second time, and had to put back, but the steamboat and lifeboat went on and saved more lives. The Guinevre also sent some fishing boats to the Schiller, and these saved more lives. All The |