the requirements of the 130th rule. The Judge allowed the objection, and adjourned the hearing till the 14th of August, on which day another notice was produced, but which was in the same form as the one already set out above. A like objection was taken, and the hearing further adjourned until the 16th of September, the claimants being ordered to pay the costs of the day. No further particular was delivered; and on the said 16th of September the Judge, the same objection having been again taken, gave judgment for the plaintiff, with costs, although the claimants insisted they had a right to avail themselves of the protection afforded by the deed.

Prentice shewed cause against the rule.— It must be admitted that the decision of the Judge as to the particulars being insufficient, can hardly be supported; but the latter part of the rule must be discharged, as this Court has no power to deal with the orders made for the payment of costs. The Judge had jurisdiction to make those orders, and the 43rd section of 19 & 20 Vict. c. 108. does not apply to such costs (3).

J. Brown, in support of the rule. This rule ought to be made absolute altogether. The propositions contended for, as to the latter part of the rule, cannot be supported since the decision of In re Whitehead v. Procter (1), where the Court of Exchequer discharged the claimant from the costs in the county court.

COCKBURN, C.J.-That case is in point, but no cause was shewn against the rule,

(3) 19 & 20 Vict. c. 108. s. 43. "No writ of mandamus shall henceforth issue to a Judge or an officer of the county court for refusing to do any act relating to the duties of his office; but any party requiring such act to be done may apply to any superior Court or a Judge thereof, upon an affidavit of the facts, for a rule or summons calling upon such Judge or officer of a county court, and also the party to be affected by such act, to shew cause why such act should not be done; and if after the service of such rule or summons good cause shall not be shewn, the superior Court or Judge thereof may by rule or order direct the act to be done, and the Judge or officer of the county court, upon being served with such rule or order, shall obey the same upon pain of attachment; and in any event the superior Court or the Judge thereof may make such order with respect to costs as to such Court or Judge shall seem fit."

By section 4. of 21 & 22 Vict. c. 74, the Court alone, and not a Judge thereof, has power to make such rules and orders.

Ship and Shipping-Improper Stowage Liability of Shipowner-Goods shipped without Notice of Charter-Party.

The plaintiffs shipped goods on board a vessel of which the defendants were owners, without knowing that she was sailing under a charter-party. By this charter-party the vessel was to load, at the port where the plaintiffs' goods were shipped, a full cargo from the factors of the affreighters. The freight was to be 188. per tun of 252 gallons; should other goods than wine be shipped, the freight to be at the same rate on the quantity of wine the vessel would have carried, the quantity to be ascertained by a stevedore to be appointed by the charterer's agents and the master. The cargo to be brought to and taken from alongside the vessel at the merchant's risk and expense; the captain to sign bills of lading at any rate of freight without prejudice to the charter, and the ship to be addressed to the charterers at the port of loading on the usual terms. The charterer's agents put up the vessel as a general ship, and the plaintiffs shipped goods on board of it and received bills of lading from the master, without notice of the charter-party. These goods, which were stowed by stevedores appointed and paid by the charterer's agent, who received back the amount so paid from the master, were damaged from improper stowage -Held, without deciding as to what might be the liability of the charterer, that there was no demise of the ship to him, but

that it continued in possession of the owners, through the master and crew, who remained their servants. That so long as the master remained in the service of the owners, he might reasonably be presumed by those who shipped goods in ignorance of the arrangements as to the charter of the vessel, to possess the ordinary authority to sign bills of lading as agent of the owners, who were therefore responsible to such shippers for improper stowage.

Declaration-That the plaintiffs delivered to the defendants, and the defendants received from the plaintiffs, certain goods of the plaintiffs, to be by the defendants safely and securely shipped, stowed and carried in the ship Village Belle, on a voyage from the river Douro, in Portugal, in parts beyond seas, to London (the dangers of the seas only excepted), and there to be delivered to the plaintiffs for freight payable by the plaintiffs to the defendants; yet the defendants did not safely and securely ship, stow and carry the goods on the voyage (although not prevented from so doing by the danger aforesaid), but so negligently shipped, stowed and carried the same that by reason thereof, and not by reason of the dangers excepted, the goods were lost, damaged and deteriorated in value.

Pleas-First, a denial of the delivery and receipt of the goods for the purpose and on the terms alleged; secondly, not guilty; thirdly, that the defendants were prevented from fulfilling the terms of the bailment by the dangers of the seas, and that the loss, damage and deterioration in the declaration complained of were occasioned by the dangers of the seas, as so excepted as in the declaration mentioned.

Issues thereon.

At the trial, before Cockburn, C.J., at the London Sittings, after Trinity Term, 1865, it appeared that the action was brought to recover 231. 118. 8d., the value of some port wine laden on board the ship Village Belle, of which the defendants were owners, by the plaintiffs. The master, as agent for the owners, had entered into the following charter-party :

"London, 15th October, 1863. "It is this day mutually agreed between Captain Bowden, of the good ship or vessel called the Village Belle, of the measure

ment of 182 tons or thereabouts, master, now in London, with leave to take an outward cargo from the north, and C. H. Hodgson, Esq., of London, merchants, that the said ship being tight, staunch and strong, and every way fitted for the voyage, shall, with all convenient speed, sail and proceed to Oporto, or so near thereto as she can safely get, and there load from the factors of the said affreighters a full and complete cargo of wine, in pipes, hogsheads and quarter-casks, and other lawful merchandise. The cargo to be brought to and taken from alongside the vessel at the merchants' risk and expense, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions and furniture; and being so loaded, shall therewith proceed to a safe port in the United Kingdom, as ordered on signing bills of lading, or so near thereunto as she can safely get, and deliver the same, on being paid freight as follows, viz., 188. per tun of 252 gallons net wine delivered, and the captain to receive testoon money at Oporto on all wines shipped in lieu of gratuity. Should other goods than wine be shipped, the freight to be paid at the above rate on the quantity of wine the vessel would have carried, which quantity is to be stated by a competent stevedore at Oporto, such to be agreed upon by the charterer's agents and the captain, in full of all port charges and pilotage (restraint of princes and rulers, 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, less one month's discount. Thirty working days are to be allowed the said merchants (if the ship is not sooner despatched) for loading the ship, and to be discharged with all despatch, as customary in any dock ordered by the charterer's agents, and ten days on demurrage over and above the said laying days at 47. per day. Penalty for non-performance of this agreement estimated amount of freight. The captain to sign bills of lading if required at any rate of freight, without prejudice to this charter. The ship to be addressed to charterer's agents at Oporto

on usual terms. Sufficient cash to be allowed the captain at the port of loading for ship's ordinary disbursements. If ordered to London, the vessel is not to enter the Victoria Dock unless ordered to do so by the merchants. (Signed)

"Chas Bowden. "p.p. C. H. Hodgson. W. Bibbens."

The vessel proceeded on her voyage, and arrived at Oporto on the 6th of December, 1863, where the outward cargo was discharged, and the vessel was put up as a general ship by the charterer's agents, Coverley & Co., to whom she was consigned. The plaintiffs shipped a quantity of port wine on board, knowing nothing of the ship having been. chartered. Bills of lading for the wine were signed, of which the following is a copy:

(Mark) conditioned, by Sandeman & Co., "Shipped in good order and well in and upon the good ship called the Village Belle, whereof is master for the present voyage C. Bowden, and now riding in the river Douro and bound for London, one pipe red port wine, being marked and numbered as in the margin, and to be delivered in the like good order and well conditioned at the aforesaid port of London, the dangers of the seas only excepted, unto order or to assigns, he or they paying freight for the said goods 22s. 6d. sterling per ton, with primage and average accustomed. In witness whereof the master of the said ship hath affirmed to four bills of lading all of this tenor and date, one of which bills being accomplished the others to stand void.

"Oporto, 27th January, 1864.

"To be delivered from the ship's side in the London Docks."

The stevedore who stowed the cargo was nominated by Messrs. Coverley, and received no directions from the captain, who repaid the charterers the amount paid to the stevedore. The wine sustained damage on the voyage, as the plaintiffs alleged, from improper stowage. It was proved that the master had received a portion of the freight from the plaintiffs. It was objected by the plaintiffs that the charter-party was not admissible in evidence, as it was an arrangement between the defendants and a third person, with which the plaintiffs had nothing to do. The Chief

Justice inclined to this opinion, but reserved the point, with power for the Court to draw inferences of fact. The case then went to the jury upon the question whether the damage was caused by bad stowage, and they found a verdict for the plaintiffs

for 227. 19s.

Edward James having in Easter Term, 1866, obtained a rule to enter a nonsuit or a verdict for the defendants, on the ground that the contract to stow and carry the goods was not made with the defendants,

Brett and Garth shewed cause.--The plaintiffs are entitled to the verdict. They had no knowledge of the charter-party when they shipped their goods, and the bill of lading makes no reference to any such instrument. As between shippers and shipowners, it cannot matter whether the owner has given up possession of the ship to a charterer or not. Secondly, it must be remembered that there are two sorts of charter-parties. In some cases possession of the whole ship is given up to the charterer, who appoints the captain and pays the crew. In others, the shipowner merely agrees to take a cargo upon a certain voyage. In the latter case, the owner has a lien for the charter freight, and is answerable as a carrier to the charterer for any damage to the cargo. The present charterparty belongs to this class. The object of the clause, "the captain to sign bills of lading at any rate of freight, without prejudice to the charter-party," is to enable the shipowner to preserve his lien as against the charterer for the charter freight, though this lien could not be maintained against shippers who had no notice of the charter.

[SHEE, J.-This clause enables the charterer to use the master as his ostensible servant.]

If the master retains his lien, he is in possession of the cargo as agent of the shipowners. If the shipowners were not privy to the bills of lading through their agent, the master, it is difficult to see why they should not be entitled to retain the cargo even against the shippers to secure the charter freight. All persons who are not aware of any limitation of the authority of the captain have a right to conclude that he possesses all the powers of his class.

[COCKBURN, C.J.-Do you contend that no action would lie against the charterer?]

Yes; though it is not necessary for the plaintiffs to maintain this position. In Blaikie v. Stembridge (1), where the shippers sued the master for damage to their goods while they were being hoisted on board from the lighter, and the charter-party provided that a stevedore for the outward cargo should be appointed by the charterer, but to be paid by and act under the captain's orders, it was held that the defendant was not liable, and that the clause did not make him liable for the acts of the stevedore not done in pursuance of his orders. But that case decided only that as no bill of lading had been signed, and the master could only be liable on his bill of lading contract, or for the negligence or misfeasance of any of the crew over whom he had control, and the stevedore did not happen to be his servant, the action could not be maintained. It did not decide that shipowners are not responsible for the negligence of one who is actually or constructively in their service. In Sack v. Ford (2), a question as to the liability for improper stowage arose between the charterer and the shipowner, the charter-party providing that the charterer should be at liberty to appoint stevedores, under the control of the master, but that they should not in any case be responsible to the owner for damage or improper stowage. It was held, that for such damage the owners were responsible, and that there was nothing in the charter to protect the shipowner from his ordinary liability for stowage. This case, so far as it goes, is an authority for the plaintiffs. The defendants have received the freight under the bills of lading, and are therefore estopped from saying that the master was not their agent in signing these documents.

Edward James and Dowdeswell, in support of the rule. The defendants are entitled to the verdict. It is admitted that according to the ordinary maritime law the captain in stowing the cargo acts as agent of the shipowner and not of the charterer. It is true that for damage from collision the owner and not the charterer is responsible;

(1) 6 Com. B. Rep. N.S. 894; s. c. 28 Law J. Rep. (N.S.) C.P. 329: in error, 29 Law J. Rep. (N.S.) C.P. 212.

(2) 13 Com. B. Rep. N.S. 90; s. c. 32 Law J. Rep. (N.8.) C.P. 12.

but it would be going very far to say that because the captain for the purposes of navigation is agent to the owner, he cannot in any case be presumed to be the agent of the charterer. The principle of those cases where it has been held that a secret limitation of the authority of an agent by his ostensible principal does not bind third persons, does not apply here. The registered owner cannot be always made liable for the repairs of the ship. There may be a mortgagee in possession, or the vessel may have been demised. The question always is, by whose authority have the repairs been executed? In Swainston v. Garrick (3) the shipowners sued the master for damage to the cargo from improper stowage. It was shewn that the vessel had been chartered to P, who had employed his own stower. The Court decided in favour of the defendant, Lord Lyndhurst, C.B., saying, “The master, as servant of the owner, is bound to superintend the stowage, and if in consequence of improper stowage the owner has been called upon and has satisfied any claim for damage the master is liable to him. But where the master is told by the owner, some one will come to superintend and do that which would otherwise be his duty, he is exonerated"; and Bayley, B. says, "Prima facie there is an obligation to stow, but it may be superseded." In Sack v. Ford (2) the Court thought that in the absence of express stipulation the charterer would have been liable. If the charterer, by bill of lading, sublets his rights in the vessel, he cannot put the shippers in a better position than himself. The bill of lading was signed after the stowage had been completed, and this duty was not therefore included in the contract.

[COCKBURN, C.J.-But it was involved in the contract of carriage.]

At any rate, with regard to the main question, it was the duty of the plaintiffs, who were dealing with an agent, to ascertain by whom he was authorized.

[COCKBURN, C.J. The question is, whether, looking at the position of the captain with regard to the owner, the defendants had not so held out the captain as their agent as to leave it to the option of the plaintiffs to sue the charterer or the owners.]

(3) 2 Law J. Rep. (N.S.) Exch. 255.

In James v. Jones (4), an action against the owners for not delivering goods shipped on board, it was proved that the ship had been chartered, and Lord Kenyon nonsuited the plaintiff, saying that no express contract with the defendants was proved, and that the charterer would be owner for the voyage and the captain his agent. And in Mackenzie v. Rowe (5) it was held, that the registered owners of a vessel put up as a general ship by the charterer were not liable for the non-delivery of goods shipped on board by the plaintiffs.

[Brett referred to M'Lachlan on Shipping, p. 310, where it is stated that in James v. Jones (4) the bill of lading made the freight payable as per charter-party, and to p. 311, where it is said that Parish v. Crawford (6), which decided that the mere proof of a charter was no defence to an action against the owner on the contract of coveyance, can no longer be considered as overruled.]

[SHEE, J.-In my edition of Abbott on Shipping I endeavoured, in a note, to reconcile these three cases (7).]

In Sanders v. Vanzeller (8) it was held that a contract to pay freight to the shipowners could be inferred from the fact that the goods were delivered by him under the bill of lading. The simple question is, whether it is not the duty of the shipper to inquire by what authority the master is

(4) 3 Esp. 27.

(5) 2 Campb. 482. (6) 2 Stra. 1251.

(7) This note is as follows: The charter-parties in Mackenzie v. Rowe and James v. Jones are not set out in the reports of those cases. They probably, like the charter-party in Frazer v. Marsh, were such as to transfer the possession of the ship from the absolute owners to the charterers, so as to make the master and the crew the servants of the latter, and the contracts of the master the contracts of the charterers. This was plainly not the effect of the charter-party in Parish v. Crawford; for there the owner appointed the master, covenanted for his good behaviour, and reserved to himself the freight of the passengers. From the report of that case in 2 Strange, 1251, it also appears that bills of lading for the moidores were signed by the master. These bills, it is submitted, were evidence of an express contract between the shippers of the goods and Crawford, by whom the master was appointed and employed. If that be so, Parish v. Crawford does not appear to be inconsistent with principle or with other decided cases-Abbott on Shipping, 10th edit. by Shee, 34.

(8) 4 Q.B. Rep. 26; s.c. 12 Law J. Rep. (N.S.) Exch. 497.

acting. The judgment in Blaikie v. Stembridge (1) shews that the master does not make the stevedore his agent by paying him. Cur. adv. vult.

The judgment of the Court (9) was delivered on the 22nd of December by

COCKBURN, C.J.-This case was argued before my Brothers Mellor and Shee and myself. The action is brought against the defendants, the owners of the ship the Village Belle, for damage and loss occasioned by bad stowage to certain goods shipped in that vessel by the plaintiffs. The facts upon which the case turns are as follows: The Village Belle went to Oporto under a charter-party, entered into between her master, on behalf of the owners, and a Mr. Hodgson, by which the master contracted to load at Oporto, from the factors of the affreighter, a full cargo of wine or other merchandise, and to carry the same to a safe port in the United Kingdom. Should the cargo consist of wine, the freight was to be 188. per tun of 252 gallons; should other goods than wine be shipped, the freight was to be at the same rate on the quantity of wine the vessel would have carried, the quantity to be ascertained by a stevedore to be appointed by the charterer's agents and the master. The cargo was "to be brought to and taken from alongside the vessel at the merchants' risk and expense." The captain was "to sign bills of lading at any rate of freight, without prejudice to the charter"; and "the ship was to be addressed to the charterer's agents at Oporto on usual terms." The ship accordingly proceeded to Oporto, consigned to the agents of the charterer. She was by them put up as a general ship, but without its being at all made known that the vessel was under charter. The plaintiff's delivered their goods on board without any knowledge that the ship was not entirely at the disposition of the owner. Bills of lading for the goods in question were signed by the master in the usual form. The cargo was stowed by stevedores employed and paid by the charterer's agents, but the amount so paid by the latter was repaid to them by the master.

The goods having been damaged by reason of improper stowage, the plaintiffs have (9) Cockburn, C.J., Mellor, J. and Shee, J.