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of replacing the machinery. The judgment will therefore be entered for 3911. 15. 6d.

Judgment accordingly. Solicitors for the plaintiff, Lowless, Nelson, and Jones.

Solicitors for the defendants, Thomas and Hollams.

COMMON PLEAS DIVISION. Reported by A. H. BITTLESTON and J. A. FOOTE, Esqrs., Barristers-at-Law.

Friday, Dec. 7, 1877.

(Before GROVE and LINDLEY, JJ.)
STEEL v. LESTER and LILEE.

APPEAL FROM INFERIOR COURT.

Master and servant-Partnership-Negligence— Ship-Owner and captain-Transfer of control over-Share in profits-Registration "Managing owner "-38 & 34 Vict. c. 88, 8. 4, sub-sect. 4. The owner of a ship, who, by a verbal agreement, gives up all control over her to the captain, but retains a right to one-third of the net profits, and is subsequently to the agreement registered as "managing owner" under the Merchant Shipping Act 1875, is liable for the negligent management of the vessel by the captain, although occurring during her employment under a charter-party of which the owner knew nothing. (a) Fraser v. Marsh (13 East, 238) distinguished. SPECIAL CASE stated by a County Court judge.

This was an action brought by the plaintiffs, who are millers at Spalding, against the defendant Lester, as the owner, and the defendant Lilee as the master, of a sloop called the Anne of Goole, for damage amounting to the sum of 50l. occasioned to the plaintiffs' wharf by the sloop breaking loose from her moorings under circumstances which, in my opinion, showed negligence by the defendant Lilee in the management of the vessel, and evidence being given that damage to 501. had been suffered by the plaintiffs in conse quence, I gave judgment against both the defendants to that amount with costs. From this judgment there is no appeal on the part of the defendant Lilee, but the defendant Lester alleges that he is not liable for the negligence of Lilee.

The facts bearing upon this point proved before me were as follows:

The defendant Lester, who is a merchant living and carrying on business at Stoke-upon-Trent, in the county of Stafford, purchased, in the month of May 1873, the sloop Anne, which was duly transferred to him, and registered in his name as the owner. He was afterwards registered as the "managing owner," under the provisions of the Merchant Shipping Act 1875.

For about three months after the defendant Lester purchased the vessel, he traded with her on his own account, employing the defendant Lilee as skipper, paying him standing wages. At the end of three months from his purchase of the sloop, he agreed verbally with the defendant Lilee

(a) This case turns upon the facts which are held to show that the owner had not given up all his right and control to the master, but intended to preserve his right and position as managing owner. In the United States it seems to be held that where a master has the control of a vessel sailing her on shares, and no other facts appear, this constitutes the master owner pro hac vice, and the owners are not liable for his negligence or the negligence of a crew engaged by him. (See Somer v. White, 65 Maine Rep. 542; 20 Amer. Rep. 718.)-ED.

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that he should take the ship wherever he chose, on condition that he (Lester) should have a third of the net profits. Lilee was to be at liberty to go to any port, and to take in any cargo he chose, and to refuse any cargo. He was also to engage the men, and Lester had no control over the vessel. Lilee was to render to Lester accounts of his profits from time to time, and this state of things centinued till after the collision, Lester selling the vessel in 1876. Lester, on crossexamination, could not say what his profit was on this particular voyage. He said the account given him by Lilee was somewhere, but he had not got it with him. In the month of March 1876 the defendant Lilee entered into a charterparty, a copy of which is set out in the Appendix hereto (No. 1).

The sloop arrived at Spalding in due course, and after partially discharging the cargo the vessel remained several days at the said port, and whilst so remaining the damage was occasioned to tho plaintiffs' wharf, by reason of the negligence of the defendant Lilee.

The defendant Lester was not consulted by the defendant Lilee as to the contract for taking the said cargo, and never saw or heard of the charterparty till after the commencement of the action; be was not present at the port of Spalding when the vessel arrived there, or at any time thereafter during her stay at the said port, and he did not take any part in the management of the said vessel during her voyage to, or whilst she remained at the said port. The men employed in navigating the said vessel (as on all previous voyages during the existence of the agreement between the two defendants) were hired and paid by the defendant Lilee, who found all stores required for the said ship, and paid to the defendant Lester onethird of the profit realised by the voyage.

I gave judgment on the 5th July 1877, and a copy of such judgment will be found in the appendix (see Appendix No. 2).

The question for the consideration of the court is whether, under the circumstances above stated, the defendant Lester is legally liable for the negligence of the defendant Lilee in the management of the said ship whilst lying at the port of Spalding, which occasioned the damage to the plaintiffs' wharf for which this action was brought. If he is so liable my judgment is to stand; but if he is not, then the judgment is to be against Lilee only, and judgment is to be entered for the defendant Lester, with costs.

8th Aug. 1877.

JAMES STEPHEN, Judge.

APPENDIX No. 1. COPY CHARTER
PARTY.

London, 21st March 1876. It is this day mutually agreed between Lilee, master, for and in behalf of the owner of the good ship or vessel called the Anne of Goole, burthen per register 44 tons, now at London, and Lawes Chemical Manure Company (Limited), 59, Mark-lane, London, that the said ship, now being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed sail and proceed to whart or dock as directed by shipper, free of dock dues to vessel and there load in regular turn with other sea-going vessels (barges not to be termed sea-going ships) from the factors of the said merchants a full and complete cargo of manure in bags and or bulk at merchants' option, about 80 tons, the cargo to be brought to and taken from alongside the vessel at merchants' risk and expense, notwithstanding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and

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furniture, and being so loaded shall therewith proceed to Spalding or Gainsboro' as ordered on signing bill of lading and deliver the same on being paid freight at the rate of 68. 6d. per ton of 20cwt. and 21s. gratuity. Merchant paying Welland dues on cargo. If cargo be shipped in bulk the bags to be carried free of freight (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature and kind soever during the said voyage always excepted); the freight to be paid on unloading and right delivery of the cargo in cash, Four working days are to be allowed the said merchants (if the ship is not sooner despatched) for discharging the said ship, and all days on demurrage over and above the said lying days at 30s. per day.

Penalty for nonperformance of this agreement, estimated amount of freight.

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APPENDIX No. 2. COPY JUDGMENT.

In the case of Steele v. Lester and Lilee, which was heard at the last court, the action was against Lester the owner and Lilee the master of the ship Anne, which, having broken from her moorings in the river at Spalding in April last, damaged a wharf belonging to the plaintiffs to the extent of fifty-seven pounds six shillings and threepence, and the action was brought to recover the sum of fifty pounds, the residue being abandoned in order to bring the case within the jurisdiction of this

court.

In order that either of the defendants should be liable in this action, it must be shown that there was negligence on the part of the defendant Lilee, who had the control of the vessel. And I am of opinion, on the evidence, that he was guilty of negligence in the way in which he fastened the ship after he had removed her from her first moorings, and also because he left the ship under the charge of an incompetent man, who might have avoided the accident if he had attended to what was said to him by the witness Mitchell.

No serious opposition was made to the amount of the damage alleged to have been caused by the ship, and I have therefore no difficulty in giving judgment in the action for the amount claimed.

With regard to the other defendant, the owner of the vessel, it was urged in his behalf that, though he was at the time of the transaction the registered "managing owner" of the vessel, that the relationship of master and servant did not then exist between him and Lilee so as to make him liable for his misconduct, and I was pressed with the case of Fraser v. Marshall (13 East, 238) as supporting that view. That decision, however, when I had the opportunity of reading it over carefully, I found to have been given in reference to a state of facts widely differing from those before me. In that case the owner had actually by a charter-party demised the ship for a time certain to the master at a certain rent, but here there was nothing of the kind a verbal arrangement at the most, and that very loosely proved. And it is clear to me that the owner must be held liable in this case either as standing in the position of Lilee's master or else as his partner under the peculiar arrangement he said he made with him. And, for the purposes of the present action, it is of no importance which position he filled, as in either case he would be responsible for Lilee's acts while in conduct of the vessel.

Judgment, therefore, for fifty pounds and costs must be entered against the defendants.

F. T. Streeten for the appellant. The agree

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ment between Lester and Lilee does not show a partnership, a mere sharing of profits is not enough (Ross v. Parkyn, 44 L.J. 616, Ch.) There is nothing here to show a partnership. Then, further, there is here no relationship of master and servant, or employer and employed, or principal and agent. [LINDLEY, J. cited Pooley v. Driver (L. Rep. 5 Ch. D. 45; 46 L. J. 466, Ch.) GROVE, J. cited Lock v. Fowler (L. Rep. 7 C.P, 292; 41 L. J. 99, Ch.] If a person is injured by the negligence of another, a third person is not liable unless the relationship of servant and master can be shown to exist between the third person and the person doing the injury, or unless the act from which the mischief arises is done by the express authority of the third person: (Venables v. Smith 46 L. J. 470, Q. B.) Here nothing of the sort is shown. The case finds that Lester knew nothing of the charter-party. [LINDLEY, J.-He may have left everything in Lilee's hands, and yet Lilee only be the captain.] In Milligan v. Wedge (12 Ad. & Ell. 737) the buyer of a bullock employed a licensed drover to drive it from Smithfield; the drover employed a boy to drive it, and mischief was occasioned to the bullock through the careless driving of the boy. There the licensed drover was held to be liable, if anyone. That case shows that you can only go one step beyond the person who does the injury. [GROVE, J.-In Milligan v. Wedge (ubi sup.) Lord Denman says: .. The party sued has not done the act complained of, but bas employed another who is recognised by the law as exercising a distinct calling."] It is not disputed here that Lester was owner of the vessel; but it is found by the case that he had no control over it. Lilee had the possession and entire use of the vessel; but not the whole profit. Although there is no letting here, there is a parting with the use of the vessel, and therefore the case of Fraser v. Marsh (13 East, 238) is in point. The case of Fowler v. Lock (L. Rep. 7 C. P. 272; 9 C. P. 751, n. 10 C. P. 90) is also in point. GROVE, J.-My decision in that case went on the fact that the owner gave up the use of the cab for the day, and therefore the cabman was the bailee of the cab, and not the servant of the owner, at all events inter se. And I distinguished the case of Powles v. Hider (6 E. & B. 207; 25 L. J. 331, Q. B.), on the ground that the judgment in that case proceeded on the relation and responsibility of the cab proprietor to the outside public.] Byles, J., in his judgment in Fowler v. Lock (ubi sup.), says. "Suppose that in a country town,

in the time of Charles I., the owner of a horse and cart contracted to allow another man to have the entire and exclusive personal use and control of them, at so much a week or so much a day, for the purpose of carrying, for the driver's profit, passengers or goods within the limits of the town, but without reserving to himself (the owner) any right to direct where the horse and cart should go, provided they were used within the prescribed limits and were returned within the agreed time; what in that case would have been the nature of the relation between the parties? I should have thought it would not have been that of master and servant, but would have been that of bailor and bailee." Here there is an absolute parting with the control of the vessel to Lilee. Lilee hired the sailors, paid them, dismissed them, and could go wherever he pleased. [LINdley, J.—

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That is so in all cases of partnership, where there is a dormant partner.] He cited also

Reedie v. The London and North-Western Railway
Company (4 Exch. 244.)

Finlay for the respondent. This is really a question of fact, upon which the decision of the County Court judge is equivalent to the verdict of a jury. He decides upon the evidence that there was not here an absolute demise of the ship, as there was in (Fraser v. Marsh (ubi sup.). [LINDLEY, J.-Have not we to decide whether his conclusion was right, on the facts found? GROVE, J.-Here the evidence is unquestioned, aud we have to decide what is the proper legal inference to be drawn from these unquestioned facts.] Then, Lester is registered as the managing owner, under 38 & 39 Vict. c. 88, s. 4, sub-scct. 4. If the contention of the appellant was right, Lilee, and not Lester, would be so registered. [GROVE, J.-This is an action brought, not by Lilee against Lester, but by a third person, and is therefore distinguishable from Fowler v. Lock (ubi sup.)] That is so. The registration of Lester as managing owner is an admission of the strongest kind that the vessel was under his control. GROVE, J.-The case finds that he had no control over the vessel, But that may be in the same way as a master exercises no direct control over his coachman.] He was stopped by the Court.

Streeten in reply.

GROVE, J,—I am of opinion that the County Court judge was right, and that his decision must be affirmed. The action was commenced against Lilee and Lester for injury occasioned by the negligence of Lilee in the conduct of a ship of which Lilee was the master and Lester the registered owner. The question we have to decide is, whether the relationship of master and servant existed between Lester and Lilee, or, to put it more widely, whether Lester had or had not divested himself of his responsibility for the acts of Lilee.

The case that seemed most in favour of the appellants' contention was Fraser v. Marsh (13 East, 238). There it was held that the regis tered owner of a ship having chartered her to the then captain at a rent for a certain number of voyages, is not liable for stores furnished to the ship by order of the charterer during the charter-party. But there was there an absolute demise and parting with the vessel; nor was the registration there of the same kind as the registration of the managing owner under the Merchant Shipping Act 1875, which has for its object that there shall be someone responsible for the seaworthiness and proper management of the vessel. There are, therefore, two distinctions between Fraser v. Marsh and the present case; and I draw the same inference as the County Court judge did, that there was here no absolute parting with the vessel, but that Lester still in a certain sense retained the management of the vessel through the captain.

Another case cited was that of Fowler v. Lock (ubi sup.) There the plaintiff, a cab-driver, obtained from the defendant, a cab proprietor, a horse and cab upon the usual terms-viz., that the driver on bringing them back at the end of the day, should hand over to the proprietor a fixed sum, retaining for himself all the day's earnings over that sum, the day's food for the horse being supplied by the owner, and the latter having

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no control over the driver after leaving the yard. The majority of the Court of Common Pleas held that the relationship between the defendant and the plaintiff was not that of a master and servant, but that of bailor and bailee, and consequently that the defendant was under a legal obligation to furnish the plaintiff with a horse that was reasonably fit to be driven in a cab. The Exchequer Chamber, being divided in opinion, and considering the statement of facts upon which they had to decide imperfect, ordered a new trial. Upon the action again being tried, in answer to questions put to them by the judge, the jury found that the horse was not reasonably fit to be driven in a cab; that the plaintiff did not take upon himself the risk of its being reasonably fit to be so driven; that the defendant did not take reasonable precautions to supply the plaintiff with a reasonably fit horse; and that the horse and cab were intrusted to the plaintiff as bailee, and not as servant. A verdict having been thereupon entered for the plaintiff, the Court refused to disturb it. If the present action had been one by Lilee against Lester, by the master of the vessel against the owner, Fowler v. Lock might have had a very strong application, but that is not so. The action here is brought by one of the public, and is consequently within the express distinction taken in Fowler v. Lock between that case, which involved the nature of the contract between the cabowner and the cabman only, and a case involving the relation and responsibility of the cab proprietor to the public, a distinction supported by the previous decision in Powles v. Hider (6 E. & B. 207; 25 L.J. 331, Q. B.) Assuming, therefore, Fowler v. Lock to be rightly decided, it does not govern this

case.

Then Venables v. Smith (L. Rep. 2 Q.B. Div. 279) is, as far as it goes, in favour of the decision of the County Court judge. It may be distinguishable from the present case, but at all events, it supports the contention of the respondents rather than of the appellants.

There was one part of the case which at first seemed to me to be very strongly in favour of the appellants' contention-namely, the finding that Lester had parted with all control over the vessel. Because it seemed that, if that was so, the case was brought within Fraser v, Marsh (ubi sup.) But though it is true in a certain sense to say that Lester had no control over the vessel, he still remained the responsible owner and manager of her as regards the outside public. There are two important matters that lead me to this conclusion. The first is that by sect, 4, sub-sect. 4, of the Merchant Shipping Act 1875, it is provided that "the owner of every British ship shall from time to time register at the custom-house of the port in the United Kingdom at which such ship is registered the name of the managing owner of such ship, and, if there be no managing owner, then of the person to whom the management of the ship is intrusted by and on behalf of the owner; and in case the owner fail or neglect to register the name of such managing owner or uanager as aforesaid he shall be liable, or, if there be more owners than one, each one shall be liable in proportion to his interest in the ship, to a penalty not exceeding in the whole 5001. each time that the said ship leaves any port in the United Kingdom, after Nov. 1, 1875, without the name being duly registered as aforesaid." Now it is found by this

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case that Lester was registered as owner of the vessel. If he had demised the ship so as to part with the management of her, he might have had Lilee inserted in the register as the managing Owner. He did not do so, however, and, in consequence, remains the responsible owner of the vessel. The second matter is, that he never gives up his interest in the adventure; so that he not only avows to the public through the register that he is the responsible owner, but he retains an interest in common with Lester to the extent of onethird of the profits. Whether that constitutes him a partner for all purposes it is unnecessary now to decide; it is sufficient for the present purpose that he would suffer by the failure of an adventure, and benefit by its success.

On these grounds, I am of opinion that Lester is liable for the negligent conduct of the vessel by Lilee.

:

LINDLEY, J.-I am of the same opinion. The question we have to decide is, whether on the facts stated the defendant Lester is liable. The facts are shortly these: Up to July 1873 Lester employed Lilee as skipper. Then that arrange. ment was altered, and the altered arrangement was this instead of Lilee being master of the vessel, Lester allowed Lilee to have the management of it, on condition of paying a certain proportion of the profits to him. What is the true effect of that agreement? We are asked to say that it amounts to a demise of the ship from the owner to the master, so as to shift the responsibility for negligent management from the one to the other. I do not think that that is so. It seems to me that this agreement may be looked upon as having for its object one of two things. It may be either a mode of paying the master of the ship, Lester still retaining the management of her; or a taking of the master into partnership. Which of these views is the correct one it is unnecessary to decide. I think the former is the most probable. But the vessel was being managed for the joint profit of Lester and Lilee. Lilee was therefore either Lester's partner or Lester's agent. I do not think the facts show anything like a demise of the ship.

This is how I treat the matter independent of the Merchant Shipping Act 1875, but I think it important that Lester does not register Lilee as managing owner of the vessel, under the provisions of the Merchant Shipping Act, but himself. I do not say that that is conclusive. Looking at the purposes of that provision, it may sometimes, in cases of this kind, be necessary to go behind the register in order to discover the true relation of the parties. But the fact of a man going and registering himself as managing owner is certainly very strong evidence that he is so. Then Lilee himself takes that view, as he enters into a charter-party on behalf of the owner. That is a very good ground for our taking the same view.

Appeal dismissed with costs. Solicitors for the appellant, Wedlake and Son, for Keary and Marshall, Stoke-upon-Trent. Solicitors for the respondent, Routh and Stacey, for Maples and Son, Spalding.

Nov. 7 and Dec. 21, 1877.

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(Before Lord COLERIDGE, C.J., and DENMAN, J.) PALMER V. ZARIFI BROTHERs.

Bill of lading-Charter party-Demurrage-Contract by indorsee of bill of lading.

A charter-party stipulated that the agreed freight should be paid on right and true delivery of cargo, and that the discharge at the port of delivery should be done in accordance with the usage of the discharging port. The defendants were indorsees of the bills of lading, which were expressed to be subject to the conditions of the charter-party, and contained the following clause: "The goods to be taken from the ship by the con. signee immediately they come to hand in discharging the ship, otherwise they will be landed or put into croft by the master or ship's agent (at the merchant's risk and expense), and either or both to have a lien on such goods until the payment of all costs and charges so incurred.” In an action by the plaintif for damages for the detention of the ship by default of the defendants, the jury found that the ship was detained for two days beyond a reasonable time for unloading, and that 301. a day was a fair charge for the detention, and that the defendants held themselves out to the plaintiff as receivers of the cargo under the bill of lading, so as to lead the plaintiff to look to them as such. There was evidence that the defendants told the plaintiff's agent, before the ship arrived, that they had the cargo, and would pay the freight; and that during the unloading the plaintiff's agent complained daily to the defendants of their delay, telling them that there would be a claim for demurrage, without a repudiation by them of liability.

Held, that there was evidence that the defendants undertook to pay for any unreasonable delay, and that they took delivery under the provisions of the bill of lading.

ACTION by shipowners for damages for the detention of a ship beyond a reasonable time for taking delivery of a cargo of wheat.

The ship was chartered by merchants in Smyrna to take a full cargo of wheat to a safe port in England, to be named on signing bills of lading; freight of 58. a quarter to be paid on right and true delivery of cargo, "the discharge at the port of delivery to be done in accordance with the usage of the discharging port." The master signed bills of lading, expressed to be subject to the conditions of the charter-party; and the bills of lading were indorsed to the defendants, who had notice of the ship's arrival at the English port named.

The bill of lading referred to the charter-party for the amount of freight payable, and contained the following clause: "The goods to be taken from the ship by the consignee immediately they come to hand in discharging the ship, otherwise they will be landed or put into craft by the master or ship's agent (at the merchants risk and expense), and either or both to have a lien on such goods until the payment of all costs and charges so incurred."

There was evidence that the cargo might have been discharged in twenty-four hours, according to the usage of the discharging port, and that during the unloading remonstrances were made to the defendants by the ship's agent, and acknowledged by them, as to the delay The defendants alleged that they were only the nominal

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holders of the bill of lading, ard were acting for a firm in Liverpool.

The plaintiff sued for damages for three days' detention of the ship, at 301. a day. The jury found that the ship was detained two days beyond a reasonable time for unloading, and that 30l. a day was a reasonable claim; and further, that the defendants held themselves out to the plaintiff as receivers of the whole cargo under the bill of lading, so as to lead the plaintiff to believe that they were the persons to whom the plaintiff was to look as such.

The defendants had obtained a rule nisi for a new trial, on the ground that there was no evidence which should have been left to the jury, or to show any contract by the defendant to pay demurrage.

Nov. 7-Herschell, Q.C., for the plaintiff, showed cause. The defendants contended, first, that the holders of the bill of lading are not liable for this detention; and, secondly, that even if that were so, they are not, in that sense, the holders. As to the second point, even if the defendants were acting for other principals, and holding the bill of lading for them, the jury have found that they held themselves out as receivers of the cargo under the bill of lading, so as to induce the plaintiff to look to them as such. An actual holder of a bill of lading, giving no notice of any. one behind for whom he is acting, is personally liable under the conditions expressed in it. Here the shipowner waived his lien for freight by giving up the cargo, confiding in the ostensible holder of the bill of lading. And, if the defendants are to be regarded as holders of the bill of lading, they are clearly liable, for the bill of lading incorporates the conditions of the charter-party, and provides that the goods shall be taken from the ship immediately they come to hand in unloading. Miller v. Young (4 E. & B.); Chappel v. Comfort (31 L. J. 58 C. P.) decided that a promise might be implied by the holder of the bill of lading to pay freight.

R. E. Webster, on the same side.-The question is, whether there was a condition in the bill of lading that the cargo should be cleared within a certain time. If so the owner is liable:

Steel v. Roberts, 17 L.J. 166, Q.B.;
Jesson v. Solly, 4 Taunt. 52;
Wegener v. Smith, 15 C. B. 729.

Cohen, QC. (J. C. Mathew with him) for the defendants. First, we say that under this bill of lading the shipper himself would not be liable for damages for detention. There is an express clause that, if the consignee does not, the master shall land the goods. He cannot refrain from doing so, and then sue for damages. Secondly, there was no lien for demurrage given by the charter-party, nor by the bill of lading. The law implies no such contract by the defendants as that alleged, and there was none in fact. There was no evidence of any refusal to deliver the cargo on the ground of a claim to demurrage; and therefore there was no contract to pay if the cargo was given up. The defendants were mere holders of the bill of lading, with no special property in the cargo.

Dec. 21.-The judgment of the court (Lord Coleridge, C.J., and Denman, J. was delivered by

DENMAN, J.- In this case the plaintiff, who was the owner of the steamship Greenwood, sued the defendants for damages for three days' detention of that ship beyond a reasonable time for taking delivery of a cargo of wheat. The state

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ment of claim set forth the terms of a charterparty, by which certain merchants of Smyrna agreed to give the ship a full cargo of wheat for a safe port in England, to be named on signing bills of lading, freight of 5s. per quarter to be paid on right and true delivery of the cargo, "the discharge at the port of delivery to be done in accordance with the usage of the discharging port." It was then stated that upon loading the cargo, the master signed bills of lading, which were expressed to be subject to the conditions of the charter-party, that the bills of lading were indorsed to the defendants, who had notice of the arrival of the ship; that according to the usage of the port, the cargo might have been discharged in twenty-fours, which it was not; and the plaintiff claimed three days' demurrage according to the contract, 301. per day. There was also a claim on the ground that the defendants were bound to take delivery within a reasonable time, which it was alleged they had not done. The bill of lading referred to the charter-party for the amount of freight, and contains the following clause, "The goods to be taken from the ship by the consignee immediately they come to hand in discharging the ship, otherwise they will be landed or put into craft by the master or ships' agent (at the merchant's risk and expense), and either or both to have lien on such goods until the payment of all costs and charges so incurred." According to the evidence for the plaintiff, the crew could have discharged more rapidly than they did, but for want of lighters. The jury found that the ship was detained for two days beyond a reasonable time for unloading, and that 301. a day was a fair charge for the detention. They also found "that the defendants held themselves out to the plaintiff as receivers of the whole cargo under the bill of lading, so as to lead the plaintiff to believe that they were the persons to whom the plaintiff was to look as such." A rule nisi was granted to show cause why there should not be a new trial on the ground of misdirection in not holding that there was no evidence to justify the jury in finding for the plaintiff. and in holding that there was evidence of a contract for the payment of demurrage.

We do not think that the finding of the jury is to be construed so critically as to authorise us to draw a distinction between demurrage in the strict sense and damages for unreasonable delay; but we consider the real question to be whether upon the evidence in the case, the learned judge was bound to have told the jury that there was no evidence upon which they could find that the defendants were liable for the two day's delay found by the jury. We are of opinion that there was evidence upon which the jury could properly find as they did, and that their finding, fairly construed, amounts to a finding that the defendants' took delivery of the cargo under the bills of lading, including that part of them which stipulated that the goods were to be taken from the ship immediately they came to hand in discharging the ship. It was proved that some time before the arrival of the ship the defendants announced to the plaintiff's agent that they had the cargo, and would pay the freight. This we understood to mean the freight stipulated for in the charterparty. This, of itself, would not be evidence of any agreement to pay demurrage as such, there

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