morning of the 11th the ship, making a very heavy plunge, sprang a leak, and, although the pumps were diligently attended to, the water, on the morning of the 12th was found to be gaining. During the night of the 12th the watch was kept constantly at the pumps, and at 7 a.m. on the 13th, the weather still being very bad, the crew being worn out with pumping, and the water still gaining, the master connected the donkey-engine with the pumps, and so worked the pumps by means of the donkey-engine. The pumps were kept constantly going by steam during the 13th and 14th, the weather all the time being bad, and all efforts being scarcely sufficient to keep the ship free.

8. On the 14th, there being no prospect of stopping the leak, or of getting the ship into a place of safety for some time, and it being impossible to keep her afloat without having the pumps worked by the donkey-engine, the master, seeing that the supply of coals on board would, under the circumstances, be insufficient, used some of the ship's spare spars and a portion of the cargo, together with coal, to keep up the fire of the donkey-engine in order to keep the pumps going. On the 15th, 16th, and 17th Sept. the ship encountered very severe weather, and laboured heavily all the time. and it was only by keeping the pumps going constantly by steam that the leak could be kept under, and for this purpose all the spare spars having been used up, further portions of the cargo were necessarily used for fuel. On the 18th Sept, the leak seemed to be gaining on the pumps, but by means of great efforts on the part of the master and crew of the ship she was kept afloat until the 20th Sept., when she fell in with a steamship, and procured from her a supply of coals sufficient to keep the donkeyengine working, until, on the following day, the 21st, the ship was safely docked in the Thames.

9. The course and measures adopted by the master under the above circumstances, were proper and necessary for the preservation of the ship and cargo. If he had not burned the said spars and cargo the vessel and cargo would, in all probability, have been lost.

10. The said ship was sufficiently equipped and manned for the said voyage according to the ordinary practice in equipping and manning such vessels for such a voyage, and but for the leak she would have had sufficient pumping power on board without using the donkey-engine. As it was, she had not (without using the donkey-engine) sufficient pumping power to deal with the water which she actually made, and she had not on board enough coal, or enough fuel, or other materials belonging to the ship to enable her to use the donkey-engine to the extent to which it became in fact necessary to use it.

The questions for the opinion of the court were: First, Whether the loss incurred by the burning of the ship's spare spars is a general average loss; and secondly, Whether the loss incurred by the burning of portions of the cargo under the circumstances stated is a general average loss.

Should the court answer both these questions in the affirmative, then it was agreed the judgment was to be entered for the plaintiff for the sum of 251. 148. 7d., together with costs of suit. Should the court answer the first question in the affirmative and the other in the negative, judgment was to be entered for the plaintiff for 67. 118. 10d.

[Q.B. DIV.

| Should the court answer the second question in the affirmative and the other in the negative, judgment was to be entered for the plaintiff for 191. 28. 9d. Should the court answer both the questions in the negative, then judgment was to be entered for the defendants, with costs of suit.

Cohen, Q.C. (with him Gainsford Bruce) argued for the plaintiff.-The facts stated are sufficient to make this a general average loss, and this case is concluded by the authority of Harrison v. The Bank of Australasia (ante, vol. 1, p. 198; L. Rep. 7 Ex. 39); the facts of that case are exactly the same as in this, except that here it was not as there the common practice to fit such vessels with donkeyengines. Baron Cleasby, at p. 51, dissented from the judgment of the court, mainly on the ground that the loss incurred was, what it cannot be here, the necessary expenses of navigating the ship. In Wilson v, The Bank of Victoria (2 Mar. Law Cas. O. S. 449; L. Rep. 2 Q. B. 203) fuel for the working of an auxiliary screw was not considered to be within the rule as to general average; but it was so put on the ground that it was not an extraordinary disbursement, and it was expressly distinguished from a case like the present. Blackburn, J., said at the conclusion of his written judgment (p. 313): "It is not similar to that of the master hiring extra hands to pump when his crew are unable to keep the vessel afloat, or any other expenditure which is not only extraordinary in its amount, but is incurred to procure some service extraordinary in its nature." The cases go to show that there is no necessity for the danger to be sndden to constitute general average; the facts here satisfy all the conditions required: Birkley v. Presgrave, 1 East. 220;

Arnould on Marine Insurance (1st edit.) p. 895;
2 Phillips on Insurance, 1299;

Plummer v. Wildman, 3 M. & S. 482; Johnson v. Chapman, 19 C. B., N. S., 563; Stewart v. West India and Pacific Steamship Company, ante. vol. 1, p. 528; L. Rep. 8 Q. B. 362; Brencke's Principles of Indemnity, p. 171. French (with him Benjamin, Q.C.), argued for the defendant.-Although it is found here that it was unusual at the time to carry a donkey engine in a ship under these circumstances, yet the cases show that a master, if he has an exceptional equipment, must supply the necessary material for it. Part of the implied contract between the shipper and the shipowner is that the owner is to supply everything which may be required to work the ship, and a donkey engine without fuel is not an assistance to the equipment but the contrary, and the master would certainly have supplied himself with coals in this case and before starting on his voyage if his cargo had not been timber. Even if a sacrifice be proper, we must look back to see if it might not have been prevented; here it was the fault of the owner in not having supplied sufficient coal.

Parsons on Shipping, p. 411;

Daniels v. Harris, ante, vol. 2, p. 413; L. Rep. 10,
C. P. 1.

Here there was no emergency, and the coal was not finished when the spars and cargo were used for fuel. The master might have put into some port for coal, and he burnt these articles merely to preserve his coals in case of emergency. According to Phillips' Law of Insurance, sect. 1270, “In order to constitute a basis for a contribution for an expense or sacrifice, it must; be occasioned by an apparently imminent peril."

Q.B. Div.]

[Q.B. DIV.

This finding is conclusive against the defendants. The prima facie claim to general average contribution is not displaced by any default on the part of the owner, and our judgment must be for the plaintiff. Judgment for plaintiff.

Cur. adv. vult.

Nov. 21.-LUSH, J. delivered the judgment of the court (Mellor and Lush, JJ.).-The circumstances under which the ship's spars and the cargo were used as fuel for the donkey engine satisfy all the conditions of a general average claim. The peril was imminent, the sacrifice was voluntary, in the sense of being an act of will on the part of the master, it was in the emergency necessary in order to save the ship from sinking, and was, of course, made with a view to the safety of the whole adventure, ship, freight, and cargo; primâ facie, therefore, the case of the plaintiff is made out.

But it was objected that as the ship was furnished with a donkey engine adapted and intended in case of need for pumping as well as for loading and discharging the cargo, the owner was bound to provide sufficient fuel for its use; that if this had been done the resort to the spars and cargo would not have been required, that it was not done, and therefore the use of the spars and cargo was not a necessity brought about by the perils of the sea, but a necessity occasioned by his own default. Although we cannot accede to the proposition in its terms, we entirely accede to the principle which underlies it. We think that a shipper of cargo is entitled in time of peril to the benefit not only of the best services of the crew in order to save his goods, but of the use of all the appliances for that purpose, with which the ship is provided. It follows that where a ship is fitted up with auxiliary steam pumping power, it is the duty of the owner to make some provision for supplying the engine with fuel. Not that he is bound to have on board enough for every possible emergency, but he is bound to have a reasonable supply, having regard to the nature of the voyage, the season of the year, the quality of the cargo, the condition of the ship, and what experience has shown to be prudent to provide against, under these conditions. If he fails to do so, he cannot call upon the owners to contribute towards that reasonable supply. That would be to make them pay for that which he ought to have provided at his expense. If under such circumstances the opportunity occurs during a time of peril of buying coals from passing steamer, we think it clear that he would not charge their cost as an extraordinary expenditure entitling him to general average.

The statement of the case not being as explicit as it might have been upon this point, we thought it right to send it back to the learned counsel who settled it between the parties to find from the evidence, he had taken one way or the other upon this question. He has returned it to us with a statement as follows, "I find that the

Solicitor for the plaintiff, H. C. Coote, for TinleyAdamson, and Adamson, North Shields. Solicitors for the defendants, Argles and Rawlins.

Friday, Jan. 12, 1877. Ex parte MINTO.

Inquiry under Merchant Shipping Acts-Prohibi

tion.

When an inquiry is instituted under the Merchant Shipping Acts into the conduct of a captain, the court may proceed with the inquiry, although the Board of Trade have no charge to make against the captain.

THIS was an application for a writ of prohibition to Joseph York, Esq., stipendiary magistrate of South Shields, to prohibit him from proceeding further in an inquiry regarding the stranding of the ship Brazilian on the Goodwin Sands, in the month of Dec. 1876, and the conduct of Mr. Minto, the captain of the ship.

The inquiry was held under the Merchant Shipping Acts 1854 and 1876, and the rules made by the Lord Chancellor under the authority of the latter Act.

By the Merchant Shipping Act 1854, s. 33, it is enacted as follows:

If it appear to such officer or person as aforesaid [appointed by the Board of Trade] that a formal investigation is requisite or expedient, or if the Board of Trade so directs, he shall apply to any two justices, or to a stipendiary magistrate, to hear the case, and such justices or magistrate shall thereupon proceed to hear and try the same, and shall for that purpose, so far as relates to the summoning of parties, compelling the attendance of witnesses, and the regulation of the proceedings have the same powers as if the same were a proceeding relating to an offence or cause of complaint upon which they or he have power to make a summary conviction, or order, or as near thereto as circumstances permit; and it shall be the duty of such officer or person as aforesaid to superintend the management of the case, and to render such assistance to the said justices or magistrate as is in his power; and, upon the conclusion of the case, the said justices or magistrate shall send a report to the Board of Trade, containing a full statement of the case, and of their or his opinion thereon, accompanied by such report or extracts from the evidence, and such observations (if any) as they or he may think fit.

By sect. 32 of the Merchant Shipping Act of 1876 it is enacted as follows: In the following cases:

(1) Whenever any ship on or near the coasts of the United Kingdom, or any British ship elsewhere, has been stranded or damaged, and any witness, if found at any place in the United Kingdom; or

(2) Whenever a British ship has been lost, or is supposed to have been lost, and any evidence can be obtained in the United Kingdom as to the circumstances under which she proceeded to sea, or was last heard of.

The Board of Trade (without prejudice to any other powers) may, if they think fit, cause an enquiry to be made, or formal investigation to be held, and all the provisions of the Merchant Shipping Acts 1854 to 1876

Q.B. Div.]

shall apply to any such inquiry or investigation as if it had been made or held under the eighth part of the Merchant Shipping Act 1854.

By sect. 9 of the Act of 1876 the Lord Chancellor has authority to make rules to carry into effect the provisions of the Act with respect to a court of survey, and the following rules made under that section are material.

Proceedings in court.

14. The proceedings shall commence with the examination of the master, officers, and any other person who was on board at the happening of the casualty, and who can give material evidence in regard thereto.

15. On the completion of their examination the Board of Trade shall state in writing whether they have any, and if so what, charge to make against any person, and against whom.

16. Where the person against whom a charge is made in these rules called the defendant is in court, or before the court, the Board of Trade may make him a party to the proceedings by handing to him a copy of the charge.

17. Where the defendant is not in court, or before the court, the judge may, on the application of the Board of Trade, cause a summons to be served upon him in the form No. 2 in the appendix.

18. When the defendant has become a party to the proceedings, or when the time allowed for his appearance has expired, and he has not appeared, the Board of Trade shall produce any further witnesses whom they may wish to examine.

19. The defendant shall then produce any witnesses whom he may wish to examine.

20. The judge may then allow any further witnesses to be examined before him.

21. When the evidence is concluded, the defendant and any parties who may have appeared shall first be heard, and afterwards the Board of Trade.

22. The judge may adjourn the court from time to time, and from place to place, as may be most convenient.

23. The judge may deliver the decision of the court either viva voce, or in writing; and, if in writing, it may be sent or delivered to the respective parties, and it shall not be necessary to hold a court merely for the purpose of giving the decision.

The examination of the captain on behalf of the Board of Trade having been completed, the solicitor of the Board handed to the captain a written “discharge" as follows:

The Brazilian.

After a careful consideration of the evidence taken in this inquiry into the stranding of the above named vessel, I have decided not to formulate any charge against you in connection therewith. H. HAMILL.

The captain not putting in any further appearance was recalled by the stipendiary magistrate.

Milwain for the captain applied for a prohibition to restrain the stipendiary from proceeding further, and argued that, as the official representative of the Board of Trade had formally declined to proceed, the stipendiary magistrate was functus officio.

The COURT (Mellor and Lush, J.J.) refused the application pointing ont that, upon the construction of the statute and rules suggested on behalf of the applicant, the stipendiary magistrate would be completely subordinate to the Board of Trade. Solicitors for the applicant, Oliver and Botterell. Application refused.

[C.P. DIV.

COMMON PLEAS DIVISION. Reported by CYRIL DODD, Esq., Barrister-at-Law.

Tuesday, May 9, 1876.

MEYER AND OTHERS v. RALLI AND OTthers. Judgment of foreign court-Sale of cargo ordered by foreign couri-Constructive total loss-Suing and labouring clause-Marine insurance. A cargo of rye shipped on an Austrian ship for carriage from Enos to Schiedam was insured by a policy warranted free from particular average. The ship was compelled by stress of weather to put into a French port on the 14th Jan. 1876. Part of the cargo suffered sea damage, and had to be in consequence sold at once. The remainder was warehoused. Afterwards, on

the 21st Feb., the court, on the petition of the captain, ordered the sale of the remainder. Notice of abandonment was given to the insurers, the defendants, that in the opinion of experts the cargo could not be carried to Schiedam. The defendants refused to accept this notice, and on the 5th March the defendants, as insurers, summoned the captain before the court to have it decreed that there was no need to sell the said remainder. The court, after a further survey, reversed its former decision, and decided that the remainder was capable of being conveyed to Schiedam. Notice of this decision was given to the insured, together with notice that any course pursued with the cargo would be for their benefit, and on their responsibility. The remainder was not forwarded, but was warehoused until December, although it would have been possible to have forwarded it. The captain having procured considerable sums to meet the expenses caused directly and indirectly by the forced interruption of the voyage, was summoned before the French court, and on the 14th Sept. an order was made that the ship should be sold, and a statement of general and particular average of the ship and cargo drawn up, which was accordingly done. Un the 21st Dec. the court ordered the sale of the remainder of the cargo, on the ground that the weather was against its further preservation. On the 25th Jan. the court ordered the full amount of freight due upon the whole voyage from Enos to Schiedam to be charged on the proceeds of the cargo, and a statement of average was made out on this footing, and adopted by the

court.

The said remainder of the cargo was sold on the 10th Jan. It was up to that date merchantable rye, and if carried to Schiedam at any time prior to its sale, would have fetched a price considerably more than the extra expenses properly incurred in respect of it and consequent upon the interruption of the voyage, including the cost of shipment to Schiedam. If the proportion of freight payable upon the said remainder under the above average statement was added to the aforesaid extra expenses, the amount would be more than what the remainder would have fetched at Schiedam.

Held, there was no constructive total loss of the cargo, the sale of the said remainder being rendered necessary by the delay and default of the captain, and not by the perils insured against.

Held, also, that it being found upon the special case that the judgment of the French court was clearly

C.P. Div.]

wrong in law, this court was not bound to treat it as correct, or give effect to it. Castrique v. Imrie (23 L. T. Rep. N. S. 48; L. Rep. 4 H. of L. 414), considered. Held, also, that the expenses which could be recovered under the "suing and labouring" clause were the expenses necessary to avert a total loss, and that they would be the expenses of unshipping the whole cargo and conveying it to the warehouse, separating that which could be carried on from the rest, and conditioning that which could then have been carried on.

THIS was a special case.

The facts and arguments are fully stated in the head-note and the judgments.

Cohen, Q.C. (M'Leod with him), appeared for the plaintiff's.

Benjamin, Q.C. (Norman with him), appeared for the defendants.

The following authorities were cited or referred to during the argument:

Stringer v. English, &c., Marine Insurance Company,
22 L. T. Rep. N. S. 802; L. Rep. 4 Q. B. 676;
L. Rep. 5 Q. B. 599;

Cammell v. Sewell, 3 H. &. N. 617; 5 H. & N. 728;
27 L. J. 447, Ex. 29 L. J. 350, Ex. ;
Castrique v. Imrie, 23 L. T. Rep. N. S. 48; L. Rep.
4 H. L. 414; 39 L. J. 350, C. P.;
Farnworth v. Hyde, 12 L. T. Rep. N.S. 231; 18 C.B.,
N. S., 835; L. Rep. 2 C. P. 204; 34 L. J. 207, C. P.;
11 Jur. N. S. 349;

Rosetto v. Gurney, 11 C. B. 176; 20 L. J. 257, C. P.;
Messina v. Petrococchino, 26 L. T. Rep. N. S. 561;
L. Rep. 4 P. C. 144; 41 L. J. 27, Priv. Co.;
Kidston v. The Empire Marine Insurance Company,
15 L. T. Rep. N. S. 12; L. Rep. C. P. 535;
Dent v. Smith, 20 L. T. Rep. N. 2. 868; L. Rep.
4 Q. B. 414.

May 9, 1876.-The judgment of the court (Lord Coleridge, C.J., Grove and Archibald, JJ.), was delivered by

ARCHIBALD, J.-This is a special case, with power to draw inferences of fact. The action is on a valued policy of insurance on 18,750 kilogrammes of rye, valued at 2731., including 150l. advance, on a voyage from Enos to Schiedam, in the Austrian ship Unico, warranted free of particular average unless the ship be stranded, sunk, or burnt, which was underwritten by the defendant in the sum of 27317. The policy also contains the usual clause, that in case of any loss or misfortune, it shall be lawful to the assured, their factors, servants, and assigns, to sue, labour, and travel, for, in, and about the defence and safeguard and recovery of the gaid goods, merchandise, ship, &c., or any part thereof, without prejudice to the insurance, to the charges whereof the assurers will contribute.

On the 21st July 1865, the defendants had entered into a charter-party with one Faltata, of Venice, for the charter of the Unico, then lying at Smyrna, to proceed to Enos, a Turkish port, and there load a cargo of grain or corn and carry it to Amsterdam or Schiedam direct, and had on the 2nd Nov. 1865, shipped at Enos ou board the vessel, of which Antonio Lucovich was the master, a cargo equal to 2343 English quarters, or 6800 hectolitres of rye, sound and in good order and well conditioned. The captain received at Enos 150l., pursuant to the terms of the charter-party. He also signed a bill of lading.

On the 8th Nov. the Unico, then laden with the said cargo in bulk, left Enos on the voyage. On the 14th Nov. the plaintiffs, through

[C.P. DIV.

their agents, Messrs. Schroder and Bonniger in London, purchased from the defendants for 2735l. 88. 6d., the cargo in question, including freight and insurance to Schiedam, as per charterparty; and on the 21st Nov. the defendants handed to them the policy in question.

During the months of November and December 1865, the Unico on her voyage met with very tempestuous weather, in consequence of which she was obliged to jettison à portion equal to 300 hectolitres of the insured cargo: and on the 14th Jan., after hoisting signals of distress, she was taken by a French fishing smack into the port of La Rochelle, in France. On her arrival there, the captain placed himself in the hands of Messrs. Admyrault and Seignette. Mons. Admyrault was the Austrian Consul, and his firm made all necessary advances of cash to the captain.

Certain proceedings were, as stated in the special case, taken at the instance of the captain in the Tribunal of Commerce at La Rochelle, in consequence of which, first a portion, and eventually the whole of the cargo was landed and warehoused by order of the court. On the 10th Feb. 1866, a portion of the cargo, amounting to 5552 kilogrammes, was, by order of the Tribunal of Commerce, sold, and realised 8537fr. 65c. On the 21st Feb. 1866, on the petition of the captain, the court ordered the sale of the residue of the cargo by public auction.

Immediately on receiving information of this order, on the 21st and 22nd Feb. 1866, Messrs. Schroder and Bonniger, on behalf of the plaintiffs, gave notice of abandonment to the defendants, on the ground that in the opinion of experts or surveyors, the rye could not be forwarded to its destination. This notice the defendants declined to accept.

On the 5th March 1866, the defendants in their capacity of shippers, vendors, and insurers of the cargo, summoned Captain Lucovich before the Tribunal of Commerce for the purpose of having it decreed that there was no occasion to sell the residue of the rye, and for a new survey to be ordered. The Tribunal of Commerce thereupon ordered that the sale of the rye should be provisionally suspended, and that a new inspection should be proceeded with by three surveyors, whose instructions were to say if it were possible by continuing the expedients of manipulation and ventilation to preserve it in its good condition, so as to enable it to be re-shipped without risk, and to be conveyed to Schiedam, its destination.

On the 14th March, the surveyors having examined the rye, then in certain warehouses, were unanimously of opinion that the grain might be perfectly well re-shipped and conveyed without any danger to Schiedam, recommending that, if not re-shipped very speedily, it should be subject to ventilation once a month until the moment of its being put on board for conveyance to its destination. This report was confirmed, and ordered to be executed by the said court, and notice of it was given to the plaintiffs on the 17th March, 1866, together with notice that any course pursued with the cargo or any portion of it was for their account, and on their responsibility.

On the 11th May, 1866, the Captain of the Unico applied to the Tribunal of Commerce for and obtained authority to raise a loan on the bottomry of the ship, freight, and cargo. On the 6th June

C.P. Div.]

the Captain filed a petition in the Tribunal of Commerce, stating that he had been unable to effect a loan on bottomry, and asking the Tribunal to declare the ship unnavigable under Articles 369 and 389 of the French Code de Commerce, and a decree was made in conformity with the petition.

On the 21st June, 1866, Messrs. Admyrault and Seignette, who had made considerable advances to meet the several expenses caused directly and indirectly by the forced interruption of the voyage summoned the captain before the Tribunal of Commerce, to show cause why in default of payment to them of 20,000 francs within a fortnight from that date, they should not be authorised to sell for account of whom it might concern the said ship and the remainder of the cargo, the price to be paid over to them and used for the purpose of covering the advances made or to be made, and the surplus paid over to whom it might by justice be commanded; and upon the 11th July, 1866, after service of the last mentioned summons, Captain Lucovich issued a summons to the underwriters, and the then unknown holder of the bill of lading of the cargo, in order to their becoming parties to the suit commenced by the summons of the 21st of June, and submitting such conclusions and arguments as they might think proper, and to hear it declared that the judgment to be pronounced was to be common to and binding upon all the parties.

The summons of the 21st of June came on for hearing on the 14th of Sept. 1866, in the absence of the defendants or any person appearing on their behalf, when the Tribunal ordered the sale of the ship Unico, and a statement of general and particular average of the ship and her cargo to be drawn up, which was accordingly done.

On the 22nd Oct. Messrs. Michel et fils, having on behalf of the plaintiffs, made a claim for payment of 3780 francs for the advance freight paid to Captain Lucovich, and the captain inferring from this that the plaintiffs were the holders of the bill of lading for the cargo, then served upon them a notice of the judgment of the 14th Sept. 1866, and a summons to attend on all subsequent proceedings.

The plaintiffs had not, prior to the 23rd Oct., informed the master of the Unico that they were the holders of the bill of lading, and had not been summoned to attend any of the proceedings before the Tribunal of Commerce, and had not made themselves parties to any of the proceedings.

On the 21st Dec. 1866, the Tribunal of Commerce remanded to the 25th Jan. then next the decreeing respecting the statement of average; but nevertheless, on several grounds, among others that the state of the weather was unfavourable to its preservation, ordered the sale of the remainder of the cargo of the Unico, and the purchase-money was ordered to be paid over to Messrs. Admyrault and Seignette, to cover the advances made by them, which included expenses incurred in and about the unsold portion of the rye down to the date of the decree, together with the charges required by the law-the costs to be costs of average. This last mentioned judgment was given in the absence of any person representing the defendants. On the 10th Jan., under the said order, the remainder of the cargo was sold by public sale at La Rochelle, and realised a net sum of 27,830fr. 30c.

[C.P. Div.

The total agreed freight of the cargo from Enos to Schiedam was 16,695fr. 95c. Of this 3780fr. (1507. sterling) was, as already stated, advanced at Enos, leaving 12.915fr. 95c. unpaid.

On the 25th Jan. the Tribunal of Commerce, by its judgment, declared that the freight for conveyance of the cargo from Enos to Schiedam was due in its entirety (including freight on the 300 hectolitres jettisoned), and that the advance to the captain on account of freight at Enos must contribute to general average, and referred back the statement to the average stater for the purpose of modifying the calculations therein; keeping in view, first the said judgment, secondly the sum realised by the sale of the rye, thirdly the various costs in the suit. The Tribunal also said that the average staters were at the same time to establish the net amount of the freight to be received by the captain out of the sum realised by the sale of the cargo.

The plaintiffs in this action were summoned through their agents, Messrs. P. Michel et fils, to appear in these proceedings, but they made default, and the judgment of the 25th Jan. was rendered without any opposition. The defendants in this action were not summoned to appear or defend the proceedings of the Tribunal of Commerce otherwise than by a summons left at the bar of the Procureur Impérial, according to French procedure, but not received by the defendants.

On the 24th May 1867, the Tribunal of Commerce confirmed an amended statement of general and particular average which had meanwhile been made, and condemned the plaintiffs to pay the sum of 12,915fr. 95c. remaining due on account of freight, with interest from the 11th July 1866, to the time of payment, and ordered that sum, being, as stated in the judgment, secured on the cargo, should be paid to Captain Lucovich by Messrs. Admyrault and Seignette as consignees. The said sum, together with 1000 francs damages and interest thereon from the 28th June 1867, together with an additional sum for costs subsequent to that date, was paid ultimately at La Rochelle to Captain Lucovich, after divers proceedings taken by him against the plaintiffs, out of the proceeds of the cargo. Such payment was made under and in pursuance of a judgment of the Civil Tribunal of La Rochelle of the first instance, dated the 7th Aug. 1867.

It is stated in paragraph 52 of the special case that, by the Law of France, the Tribunal of Commerce had jurisdiction to order the said various surveys of the ship and cargo and statements of average, and to make the said various orders, judgments, and decrees, but that it is a court of first instance of inferior jurisdiction, and its judgments, orders, and decrees are subject to appeal to the Imperial Court at Poitiers, which, if made, is usually decided in four or five weeks, and that no appeal was taken on the part of the plaintiffs.

It was admitted also in the case that the damages referred to in paragraphs 8, 11, and 13 were caused by the perils insured against. It is also found that the rye which was sold on the 10th Jan. 1867, was in March 1866 and in Jan. 1867, merchantable rye, and such as, if it had been carried on to Schiedam at any time between the time of its landing at La Rochelle and the time of its sale, would have fetched at Schiedam, a price considerably more than the total of all the extra expenses properly incurred in respect of it, and consequent upon the