But our difficulty is, that in this case there is positive evidence, in our opinion, that the Plaintiff had resolved not to tender the amount unquestionably due; for his proposal was [267] to pay a certain amount of the freight claimed, and to deposit the residue with a Banker, as being a disputed portion. Now, this residue was an amount to cover the whole of the alleged short delivery of 300 tons at Rangoon, where 2700 tons had been shipped instead of 3000 tons; whereas, the learned Judge below was of opinion that the Plaintiff had no claim for deduction in respect of even so much as 100 tons, and against this part of the judgment there is no appeal. Consequently, it appears that the Plaintiff meant that his tender of money to the Master should not cover a portion of the claim which has turned out to be due. However, we are not prepared to hold that this varies the ordinary rule which we have stated, as to dispensing with the tender altogether, by announcing that it will be useless to tender anything less than the wrongfully large amount insisted on. That the sum insisted upon in this case was wrongfully large, we think is plain; for without entering into the question, whether the Defendant was wrong in claiming the full lump sum, the claim of £1000 for general average was altogether unfounded, as will appear when the estimate on which this claim is based is narrowly examined. The amounts which, according to the Master's estimate, formed the subject of general average, were— For expenses incurred by him at the Mauritius For loss on the cargo jettisoned and sold Making a total loss, as the subject general average of . £1530 1200 . £2730 [268] This amount had, consequently, to be apportioned between the ship, freight, and cargo. Then the Master values the ship at £10,000, and the freight he takes at £7000 then due. The cargo he estimates at £10,000, which seems reasonable, for although the cargo sold for £20,000, yet deducting the freight, and the landing charges and assorting charges, etc., the balance would probably not be much more than £10,000. Assuming, therefore, the values to be correct, there is a total of £27,000, on which has to be apportioned the total of the losses, forming the subject of general average, viz., £2730. By the rule of three, this will give the proportions payable by the ship, freight, and cargo as follows: Ship Freight Total . £1011 708 1011 . £2730 In other words, the owner of the ship, who is also the owner of the freight, has to pay as his proportion towards general average: For the ship freight . £1011 708 £1719 But his losses, which form the subject of general average, are only £1530, so that the amount payable by the owner of the ship and freight as his contribution to On the other general average, is the difference between the two sums, or £189. hand, the owner of the cargo has to pay as his proportion £1011, but his losses have been £1200, so that he [269] has to receive £189, to make up the losses on account of general average sustained by him. The general average account would then be balanced by the owner of the ship paying to the owner of the cargo the sum of £189. If this be so, then, upon the Master's own estimate of general average, there was nothing due to him by the owner of the cargo on account of general average; but, on the contrary, he owed the owner of the cargo a sum of £189 on this account. Being, then, of opinion that the peremptory claim for general average brings the case within the rule as to dispensation with the tender, it is unnecessary to consider the other ground on which the Judge of the Court below came to the conclusion that the conduct of the Master had exempted the Plaintiff from the obligation of making a tender. It remains to be considered whether the Plaintiff has a right to deduct "address commission from the freight. The contest in the Court below appears to have been confined to the question whether, by custom, the holder of a Bill of lading comprising the whole of the cargo has a right to deduct the address commission from the freight, and the learned Judge referred this question to the Registrar and Merchants. But, in the argument before us, the contention was that, assuming the custom to be so, the address commission was never earned, inasmuch as Bushby and Co., to whom the ship was addressed as the Agents of the shipper, refused to accept the ship as Agents, and never acted for the ship at all; but that Taylor and Co. acted as Agents of the ship for the Defendants who will have to pay them for so doing. Under these circumstances, we think the reference to the [270] Registrar and Merchants ought to be enlarged by leaving it to them to inquire whether the Plaintiff, by his Agents, so acted on the ship's behalf as to entitle him to the address commission. The last question to be considered is whether the claim for damages for nonassortment can be supported. An objection to this claim was taken on behalf of the Appellants, that there is no mention of it in the petition. The answer made to this objection is that this cause of complaint did not arise till after the petition was filed-an answer by no means satisfactory. But upon the merits of this question we think the Plaintiff fails. We do not understand why he did not avail himself of the power conferred by the Statute 25th and 26th Vict., c. 63, s. 67, to enter and land the goods himself. If he does not, but allows the Master to do so, is the Master bound to take steps to have the goods assorted, if the owner of the goods requires him so to do? If the Master were to give orders for it, he would, we apprehend, render himself liable for the expenses of the assortment. No doubt the law is that such a bailee is bound to take as good care of the cargo as a prudent owner would have taken; but we have never heard of any case where the bailee was held to be bound to incur a pecuniary liability to procure an advantage for the subject of the bailment. His duty, we think, does not go beyond safe custody and protection from injury or damage. We, therefore, think that this claim cannot be sustained. According to our opinions on the various points [271] arising in this case, the freight due to the owners of the Norway is the sum contracted for by the charter less the following deductions : First, the advances; Second, address commission (if found in favour of the Plaintiff by the Registrar and Merchants); Third, the proportion of freight forfeited for breach of the guarantee in the Charter-party as to the capacity and draught of the vessel. It should then be referred to the Registrar and Merchants to take an account and ascertain the nett payment due on the principles we have stated, taking into account the amount which has been paid on account of freight, by the Plaintiff during the progress of the cause. On the other hand, in our opinion, the Plaintiff under the provisions of the Admiralty Court Act, 1861, is entitled to be indemnified for the loss of interest in respect of the wrongful withholding of the cargo, and to the claim for insurance and interest, but to nothing more. Therefore, the Registrar, with the assistance of the Merchants, will have to ascertain the balance due, and to report to the Court whether any interest, and if so what, is properly due on such balance; and we shall humbly recommend Her Majesty that judgment should be given for the balance and interest thus ascertained; and that there shall be no costs on either side, either in the Court of Admiralty or here. [Mews' Dig. tit. LIEN, A. 4; tit. SHIPPING, A. XII. BILL OF LADING, 2. d. 4. f. XIII. FREIGHT, 2. f. 3 g. 4 a. c.; tit. TENDER, B. 2. S.C. Br. and L. 404; 11 Jur. (N.S.) 892; 13 L.T. 50; 13 W.R. 1085. See the Figlia Maggiore, 1868, L.R. 2 Ad. and E. 113; the Felix, 1868, L.R. 2 Ad. and E. 277; the Xantho, 1886, 11 P.D. 174; the Princess Royal, 1870, L.R. 3 Ad. and E. 45; Robinson v. Knights, 1873, L.R. 8 C.P. 467; Merchant Shipp. Co. v. Armitage, 1873, L.R. 9 Q.B. 99. As to Admiralty jurisdiction of Privy Council, see note to the Helene, 1865, 3 Moo. P.C. (N.S.) 244.] [272] ON APPEAL FROM THE SUPREME COURT AT MAURITIUS. THE PENINSULAR AND ORIENTAL STEAM NAVIGATION COMPANY,-Appellants; The Hon. FARQUHAR SHAND,-Respondent* [June 22 and 23, 1865]. The rule governing the interpretation of a contract made in one country to be It is immaterial that such agreement so to be ruled by the lex loci contractus is First, that it was a contract to be interpreted by the law of England, the place Secondly, that (as neither the Carriers' Act, 11th Geo. IV. and 1 Will. IV. c. 68, or the Railway and Canal Act, 17th and 18th Vict. c. 81, applied) the Company, as carriers, at Common Law, had power to limit their Common law liability by special agreement, and that the limitation imposed by the stipulations endorsed on the ticket with respect to any loss, exempted the Company from responsibility for the loss of the baggage [3 Moo. P.C. (N.S.) 293-4]. This was an action brought by the Respondent in the Supreme Court at Mauritius against the Appellants for damages for the non-delivery by them at Mauritius of certain articles of baggage. [273] The plaint, in substance, stated, that the Appellants, being common carriers of goods for hire from Southampton to the Mauritius, the Respondent and his family became passengers from Southampton to Mauritius, together with * Present: The Lord Justice Knight Bruce, the Lord Justice Turner, and Sir John Taylor Coleridge. their baggage, and that the Respondent delivered to the Appellants, who received the same from the Respondent, a certain bale or package, consisting of articles belonging to the Respondent-viz., great coats, plaids, cloaks, shawls, and similar articleswell and firmly put up and bound together in one package, and legibly and properly addressed with the name of the Respondent as passenger to Mauritius aforesaid, and to be safely conveyed by the Appellants from Southampton to Mauritius, and to be delivered there to the Respondent; yet the Appellants, not regarding their duty as common carriers, did not safely carry the package from Southampton to Mauritius, nor deliver the same to the Respondent; but, on the contrary, so negligently and carelessly conducted themselves, that by their negligence, carelessness, and default, the package or bale and its contents were wholly lost to the Respondent, who thereby sustained damages to the amount of ninety pounds sterling. The Appellants appeared to the action and generally disputed their liability. No other pleadings was had on either side. [274] The action was tried in the Bail Court of the Island of Mauritius, a branch of the Supreme Court, before the Hon. Mr. Justice Bestel. The facts as they appeared in evidence, about which there was no controversy, were as follows:-The Appellants, the Peninsular and Oriental Steam Navigation Company, were an Incorporated Company for carriage of passengers and their baggage, and also merchandise to and from England and India, Australia and China, and the adjacent parts, including the Island of Mauritius, having their headquarters or place of business in London. The course of the entire passage to Mauritius was, that passengers embark at Southampton with their baggage upon one of the Company's steam-ships, and proceed therein to Alexandria; there they disembark, and proceed by Railway across the desert to Suez, from which place they proceed in a small steam-boat to join and embark on another of the Company's steam-ships waiting for them in the Red Sea, and in which they proceed to their destination. In the passage from Suez to the steam-ship, the baggage was conveyed in a separate boat from the passengers. In the month of October, 1860, the Respondent having been appointed Chief Judge at Mauritius, took a passage at Southampton by the Company's ordinary line for himself and family from Southampton to Mauritius, and embarked on board the Company's steam-ship Ceylon, for Alexandria, taking with him a quantity of baggage, consisting of twenty-one packages, and for which the Respondent paid according to the rate ordinarily charged to passengers. Amongst this baggage was a certain package containing cloaks, shawls, and other personal luggage, the loss of which [275] was the subject of the action. Upon taking his passage, the Respondent signed the ticket ordinarily issued to passengers by the Company, having certain conditions and regulations endorsed thereon, amongst which was the following clause:-"The insurance of baggage can be effected on moderate terms. Notice. All parties are requested to take notice that the Company do not hold themselves liable for detention or delay of passengers, arising from accident or from extraordinary or unavoidable circumstances, or from circumstances arising out of or connected with the employment of the Company's vessels in Her Majesty's Mail Service; and that the Company do not hold themselves liable for damage to or loss or detention of passengers' baggage, or for any consequences arising from the restrictions of quarantine wheresoever imposed." The Respondent and his family proceeded in the Ceylon to Alexandria, where they disembarked, and were conveyed by the Railway through Egypt to Suez in the ordinary course, and there embarked on board a small steamer belonging to the Company to join the Company's steamer the Norna, in which they proceeded to Mauritius. The Company's servants took possession of the baggage during the land transit from Alexandria to Suez. The package was last seen by the Respondent's servant on board the small steamer in which they were conveyed from the Railway at Suez to the steamer Norna; it was then in charge of the Company's servants. The Respondent's servant wanted to have the keeping of the package, but the Company's servants refused to allow it. Upon the arrival of the Norna at Mauritius the package was missing, and was lost. No evi-[276]-dence was given of negligence on the part of the Company or any of their servants beyond what might be implied from the fact of the loss. Upon these facts it was insisted in the Court below by the Respondent that the Appellants, as common carriers, were responsible for the loss of the goods; that the contract began only in England and ended in Mauritius, and, consequently, was to be governed by the French law in force at Mauritius; and that, according to that law, the clause of the ticket qualifying the general Common law liability of the Appellants, as common carriers, was void, as being against the policy of the law, Code de Commerce, Art. 113; and it was further argued for the Respondent, that the contract, as to its validity, nature, obligation, and interpretaton, was to be governed by the law of the place of performance, viz., by the law of Mauritius. Story's Conf. of Laws, s. 283, p. 375 [Ed. 1841]. That the law of that Island rendered a Carrier by land, or by water, liable, except in case of force majeure, Arts. 98 and 103, Code de Commerce, and Arts. 1788 and 1784, Code Civil, the onus of proving which devolved upon the carrier, and without which proof he was necessarily liable to the owner of the goods for the loss thereof, or for damage done to the goods shipped. Pardessus, Tom. II., No. 545. That whatsoever might be the legal distinction arising from the insertion in the Bills of Lading in France and England of certain notices for the purpose either of a party freeing himself from all liabilty, or of limiting the extent of his responsibility, the ruling of the Courts in England, in presence of such notices, could in nowise affect the decision of the case under the Colonial legal enactments, [277] the decrees of French Courts and of the concurrence of the French Commentators on the several articles of the Codes above referred to. Pardessus, Droit. Com. Tom. II. No. 542 [Ed. 1825], comments on Art. 1783 of the Civil Code. Marcade, Explic. Code Napoleon, Tom. VI., p. 532, and authorities, cited in note I., p. 534. Moreover, that the law having laid it down as a rule that the carrier shall be liable, except in cases of "force majeure," the contract between bailor and bailee, releasing the latter from all responsibility on any other ground, was null and void to all intents and purposes, as contrary to the policy of the rule, and, therefore, that the notice on the back of the passage ticket, signed by the Respondent, whereby it was stipulated, that the Company do not hold themselves liable for damage to or loss of passengers' baggage, though thus brought home to Respondent's knowledge, could not relieve the Appellants from their liability. On behalf of the Appellants it was contended that they were not liable. It was not disputed that the liability of common carriers at Common Law was that stated on the part of the Respondent; but it was insisted, that the special contract placed them in a different position from that of common carriers, and that under it they were not responsible for a loss under the above circumstances, and that this was so according to the law of Mauritius; and further that the contract having been entered into in England, and by parties both domiciled in England, the construction of the contract must be determined according to English Law, and that according to that law, it was quite competent for the Appellants as common carriers to limit their responsibility in the [278] manner contended for. Pardessus, p. 103, and Arts. 1133 and 1134 of the Code Civil were cited. Mr. Justice Bestel held that the case was governed by the law in force at Mauritius, and gave judgment in favour of the Respondent for £60 damages and costs, upon the following grounds. The point to be examined, he observed, was, whether the Appellants were liable, in spite of the notice given to the Respondent that they did not hold themselves responsible for damages to, or loss, or detention of passengers' baggage, and he referred to Art. 103 of the Code de Commerce:- Le voiturier est garant de la perte des objets à transporter, hors le cas de la force majeure.' 'La responsabilité du voiturier cesse et ses obligations sont modifiés par la force majeure, mais il ne suffit pas d'alléguer cette excuse. La présomption est toujours en faveur de la responsabilité, et la force majeure n'est qu'une exception que le voiturier doit prouver. Pardessus, Droit Com. [Ed. 1825], No. 545, p. 590; Com. on Art. 1784, Code Civil; Arts. 103, 104, Code de Commerce; Art. 1325, Civil Code; and to Story on Bailments, [Ed. 1839], s. 528, p. 338. That the reason by the English law was stated by Holt, C. J., in Coggs v. Bernard, (Lord Ray. 909), Smith's Leading Cases, vol. i., p. 92 [Ed. 1841], 5th note, pages 101, 102. That Story in his Treatise on Bailments, sec. 549, p. 359, speaking of special contracts between Bailor and bailee, says:Still, however, it is to be understood that common carriers cannot, by any special agreement, exempt themselves from all responsibility, so as to evade, alto105 P.C. v. 4a |