HIGH COURT.

Q. B. Div. (Commercial Court.) (Bigham, J.).

March 15, 16, 22.

FIELD STEAMSHIP Co. (LIMITED) v. BURR. (a.) Insurance-Marine-Policy-Perils to the hurt of ship — Damaged cargo-Liability of ship's underwriters. A ship was insured by her owners, the plaintiffs, under a time policy, and the perils insured against were, among others," of the sea, and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said ship or any part thereof."

The vessel was laden with cotton seed, and, while proceeding up the Thames, was run into and so damaged that she had to be run aground to save her from sinking in deep water. After having undergone some temporary repairs, she was floated and taken into dock, but her cargo was so damaged with mud and water that the cargo owners abandoned it, and neither they nor their underwriters would pay freight or take delivery. In dock the damaged cargo became a nuisance, and had to be discharged and got rid of by the plaintiffs, who sought to recover from the ship's underwriters the costs of so doing.

Held, that the expense so incurred by the plaintiffs was not covered by the policy.

Commercial cause.

This was an action brought by the owners of the steamship Elmfield, to recover a partial loss under a time policy of marine insurance upon that vessel in the circumstances that are fully stated in the judgment.

The short point was whether the ship's underwriters are liable under a policy in ordinary form to pay expenses incurred by the shipowner in discharging and disposing of her cargo, which had been so aged in a a collision that it became worthless and was rejected by the cargo owner.

HIGH COURT.

During the currency of the policy the vessel was carrying a cargo of cotton seed on a voyage from Alexandria to London under a charter-party made by the plaintiffs with Messrs. Barnett Bros., acting for the charterers. On the 20th of December, 1896, she arrived in the Thames, when a vessel called The Derwent came into collision with her, and caused such serious damage to her hull below the waterline that it became necessary to run her ashore in order to prevent her from sinking in deep water. During the next ten days part of her cargo was put into lighters, and by this means she was sufficiently lightened to enable her to be towed to the Tilbury Dry Dock, where she was temporarily patched. On the 5th of January, 1897, she was towed to Millwall Dock, where it was intended that the remainder of her cargo should be discharged. It was proved, however, that, by the action of the water and mud which had found their way into the ship in consequence of the casualty, the cargo had become rotten of the Public Health (London) Act, 1891, ordered and offensive, and was a nuisance, and thereupon the sanitary authorities, acting under the powers the ship to abate the nuisance and to remove the cotton seed. In the meantime the owners of the and neither the cargo owners nor their underwriters cargo had abandoned the cargo to their underwriters, would pay freight or take delivery, alleging, as the and had become worthless. The cargo owners and fact was, that the cargo had ceased to be cotton seed their underwriters were justified in taking up this position: see Asfar v. Blundell, 44 W. R. 130. In these circumstances the plaintiffs made a contract with a firm of Samuel Williams & Sons, who are the owners of a pier at Dagenham, near the mouth of the river, to discharge the cargo and to spread it out on some land at a short distance from the pier at a charge of 58. per ton, and so to get rid of it. The ship accordingly left the Millwall Dock for Dagenham Pier, and was there discharged by Messrs. Samuel Williams & Sons. The claim against the defendant and his co-underwriters on the hull was a very large one, amounting to many thousands of pounds, but all disputes in connection with it have been settled between the parties, except as to items amounting in the aggregate to £1,046 12s. 10d. These items may be divided into two classes-(1) the charges incurred in dealing with the cargo between the date of the casualty and its arrival at Dagenham, amounting to £287 2s. 10d.; and (2) the charges of Messrs. Williams & Sons amounting to £759 10s. for discharging and disposing of the cargo at Dagenham. The question is whether the defendant and his co-underwriters are under any liability to recoup the plaintiffs any, and if so what, part of this expenditure. The matter in the first instance passed into the hands of Messrs. Robert Lindley, Sons, &

Carver, Q.C., and Scrutton, for the defendant. At the conclusion of the argument judgment was reserved.

was

BIGHAM, J., read the following judgment: This was an action brought to recover a partial loss alleged to be due by the defendant under a time policy on the plaintiffs' ship Elmfield. The policy on hull and materials, on machinery and boilers," valued at £10,000, and the perils insured against were, amongst others, "of the seas and of all other perils, losses, and misfortunes that have or shall come to the hurt, detriment, or damage of the said ship, &c., or any part thereof." (a.) Reported by ERSKINE REID, Esq., Barrister

at-Law.

v. Melhuish, 2 W. R. 518, 10 Exch. 117; The Cockrane v. Fisher, 2 Cr. & M. 581; Phillips on Insurance, 8. 772.] So, too, the compulsory pilotage rate, fixed by the Act of 1858, to be paid in the case of vessels bound "inwards" (section 128), only includes the piloting of vessels over the bar from sea into one of the wet docks in the port of Liverpool (The Annapolis, Lush 295, 9 W. R. Adm. Dig. 19; The Princeton, 3 P. D. 90, 26 W. R. Dig. 217; The Woburn Abbey, 38 L. J. Adm. 28, 17 W. R. Adm. Dig. 20), and extra remuneration would have to be paid for taking a vessel elsewhere than to dock. The section of the Act of 1858 under which, in certain cases, five shillings a day is payable for attendance of pilots on the river (section 138), has reference merely to a charge by the pilots when attending on board a vessel at anchor waiting to go into dock or to sea. "Attendance " does not mean "pilotage."

Boyd, Q.C., and Maurice Hill, for the defendants. -All the services in respect of which the plaintiffs claim in this action have been paid for by the defendants in the pilotage dues charged in respect of the pilotage of The Servia outwards, and The Carinthia inwards. The calling of The Servia at the Prince's landing-stage was only an incident in her proceeding to sea, and her pilot was bound to perform the duty of navigating her alongside that stage as part of the outward pilotage to sea. She was then just as much "proceeding to sea as if her passengers had been put on board her by means of a tender in the river on her way to sea, or as if she had then stopped to take cargo on board. As to The Carinthia, she was compelled by the regulations and practice as to discharging cattle and sheep to take them to the Woodside and Wallasey stages, and the service of piloting her in from sea to such stage and into dock was one continuous service for which the pilot in charge of her, has properly received the "inward " pilotage rate. Whilst being piloted to the landingstages she was still under compulsory pilotage and her owners would have escaped liability for any collision caused by the wrongful act of the pilot alone: The General Steam Navigation Co. v. The British and Colonial Steam Navigation Co., 17 W. R. 741, L. R. 4 Ex. 238; The Charlton, 73 L. T. Rep. 49.

Cur. adv. vult.

Jan. 24.-BARNES, J.-This is a test action brought to try the right of the Liverpool pilots to certain extra remuneration for piloting outward-bound steamers to the Prince's landing-stage for the purpose of embarking passengers, and for piloting inward-bound cattle steamers to the Wallasey and Woodside stages before taking them into dock. Pilotage is compulsory in the port of Liverpool for the vessels in question, and the point in the case is whether the alleged extra services are covered by the compulsory pilotage rates or are to be paid for in addition to such rates.

The pilotage of the port is regulated by the Mersey Docks Acts Consolidation Act, 1858 (21 & 22 Vict. c. xcii.), under which the Mersey Docks and Harbour Board is constituted the pilotage authority, with power to licence pilots. The Mersey Docks and Harbour Board is merely a formal party to these proceedings. The other plaintiffs are pilots licensed by the board. One of them, Mr. Gore, was in charge of the defendants' steamship Servia on her outward voyage in August last, and the other, Mr. Durrant, was in charge of the defendants' steamship Carinthia on her inward voyage in the same month.

The following facts are taken from the evidence given, and admissions made at the hearing before me. First, with regard to outward-bound passenger

HIGH COURT.

steamers. Prior to the year 1895 large passenger steamers sailing from the port of Liverpool for foreign ports, loaded their cargoes in one of the wet docks of the port, and embarked their passengers in the dock or from tenders after the steamers left dock, and whilst lying in the River Mersey; but in that year the approach to the Prince's landing-stage in the river was improved so as to enable steamers after leaving dock to come alongside the stage, and there embark their passengers, and at the same time a station was connected by a line of rails with the London and North-Western Railway system, and special trains have since that time conveyed passengers direct to the riverside station.

The practice of the defendants since 1895 with their steamers carrying passengers outwards is typical of that of most of the large lines with their outward-bound passenger steamers, though some lines do not use the stage. This practice, stated as accurately as the materials before me allow, is as follows: The defendants load their steamers in the Canada Dock, some distance below the Prince's landing-stage, and after a steamer's lading is completed she is generally taken out of dock on the high water preceding the afternoon of the day fixed for her departure, and, according to the state of the tide, then proceeds to an anchor, and thence to the Prince's landingstage, or direct to the stage. Sometimes on account of neap tides it is necessary for the vessel to leave the dock earlier and moor at the defendants' buoy in the Sloyne, further up river than the stage, before proceeding to the stage. The defendants are the only company possessing a mooring buoy in the lone. The vessel reaches the stage shortly before the hour fixed for her departure, usually about 4 p.m. She is assisted alongside by a tug or tugs, and after making fast to the stage she embarks her saloon passengers and their baggage, and the mails, and sometimes receives on board some fine goods. From the stage she proceeds to sea. The time occupied at the stage is sometimes as long as four hours, and on the average about two hours. The steerage passengers generally embark by tender while the vessel is in the river at anchor or at the buoy, but sometimes in dock if the vessel goes direct to the stage. About seven steamers per week belonging to different lines use the stage for the purpose of embarking their passengers, and about the same number use the stage for the purpose of disembarking passengers on their inward voyages. The case does not directly raise any question as to the pilot's remuneration for bringing inward-bound vessels to this stage, though I understand that this question is practically involved in that before the court as to outward-bound steamers.

It is always a difficult operation to bring these large steamers alongside the stage, owing to vessels going in and out of dock and the other traffic in the river, and especially on strong flood or ebb tides. The steamers must always leave dock at high water, but they come alongside the stage at all times of the tide.

In the particular case of The Servia she left the Canada Dock on the 10th of August last, on the morning tide, in charge of the plaintiff Gore, and anchored about abreast of the Prince's stage. Shortly before 4.30 p.m. ber anchor was weighed, and she was brought alongside the stage under Mr. Gore's charge. There she embarked her saloon passengers, their baggage, and the mails, and thence she proceeded to sea on the same evening, through the Queen's Channel, bound for New York. Mr. Gore piloted the vessel to the outward compulsory pilotage limit at the North-West Buoy. The defendants have paid the outward compulsory pilotage

HIGH COURT.

"THE SERVIA "" rate for Mr. Gore's service, and contend that such payment covers his service for taking The Servia to the stage. On the other hand, the plaintiff Gore claims £1 for extra remuneration for the last-mentioned service. This sum has been fixed by the plaintiff board as a regular charge to be made by pilots for bringing vessels to the stage for the purpose of embarking and disembarking passengers, on the footing that their services in so doing are not covered by the compulsory pilotage rate. The charge has been paid in respect of all steamers using the stage in manner aforesaid in and since 1895. It is now disputed.

Secondly, with regard to inward-bound cattle steamers. For a number of years a very large trade has been carried on in the importation of live cattle and sheep into the port of Liverpool. The cattle and sheep are landed from the steamers by which they arrive at the Wallasey and Woodside landing-stages, on the Birkenhead side of the Mersey, under the provisions of the Diseases of Animals Act, 1894 (57 & 58 Vict. c. 57), and the orders made in pursuance thereof fixing these stages for the purpose. There are rules made by the plaintiff board for regulating the time, order, and manner for berthing vessels at the stages. These stages and a part of the Alfred Dock, Birkenhead, near the Wallasey stage, are the only places in the port where the landing of live stock imported from abroad is permitted. The practice of the defendants, which is similar to that of other lines with regard to cattle steamers, is as follows: A pilot is taken off the port, and when the steamer enters the river orders are sent off to her as to berthing at the stages or the Alfred Dock. If the tide suits, and there are no steamers in the way at the stages, the vessel proceeds direct to the stage. If the tide does not suit, or there is no available berth at the stage, the vessel is anchored. If the vessel has both sheep and cattle she generally goes both to Wallasey and Woodside stages, landing sheep at the one and cattle at the other, though sometimes both are discharged at the former stage. If she has only cattle she goes to the Woodside or Wallasey stage, or in some cases to the Alfred Dock, Birkenhead, where there is accommodation for both sheep and cattle. The arrangements depend on the room in the lairages. After landing the live stock, the vessel is taken direct into a dock if the tide serves, or to anchor, and then docked as soon as possible, and the rest of her cargo is discharged in dock.

About fourteen steamers per week belonging to different lines arrive with sheep and cattle. It is difficult to manoeuvre vessels alongside the stages owing both to the traffic and tide. The assistance of a tug or tugs is required. The vessels are made fast to the stages and it takes ordinarily an hour or an hour and a-half to land the cattle and one to three hours to land the sheep, though it was stated that longer times are occasionally taken, and that cattle ships had been three tides at the stages and finished in the Alfred Dock.

In the case of The Carinthia, she was inward bound with cattle, sheep, and other cargo from America, and about 8.30 p.m. on the 21st of August last the plaintiff Durrant boarded her off Point Lynas, took charge, brought her into the river, and about 2 a.m. on the 22nd she proceeded in the usual way, first to the Wallasey stage, where she discharged her sheep, and then to the Woodside stage, where the cattle were landed. At 5 a.m. she was taken to the Canada Dock entrance, but, owing to her draught, was not permitted to enter, and was therefore anchored and lightened. She did not get into dock till the evening tide of the 23rd. The plaintiff Durrant was in charge throughout.

HIGH COURT.

The defendants have paid the inward compulsory pilotage rate for Durrant's services, and 10s. for two days' detention while at anchor at 5s. per day. They contend that such payments cover all his services, but he claims £2 for extra remuneration for taking the vessel to and from the two stages; £1 for each stage is the regular charge fixed by the Board, in a similar way to that in the outward cases. This charge, which is now disputed, has been paid in respect of all cattle steamers using the stages since the user began, about fifteen years ago.

The questions raised turn upon the construction to be placed upon certain sections of the Mersey Docks Acts Consolidation Act, 1858, which render pilotage compulsory for outward and inward-bound vessels, excepting coasting vessels in ballast or under the burthen of one hundred tons. Section 121 gives power to the board to licence persons to act as pilots "for the port of Liverpool." Section 123 imposes a penalty upon any person who shall pilot any vessel "into or out of the port of Liverpool" without a licence. Section 124 imposes penalties on any pilot who shall refuse to take charge of any inwardbound vessel upon a proper signal being made for a pilot, or of any outward-bound vessel upon the request of the master thereof." The sections dealing more particularly with outward-bound vessels are the 127th, 133rd, and 139th sections. Section 127, which is under a title "as to the duties of pilots," specifies the distances to which outward-bound vessels are to be piloted, but makes no mention of the point at which the pilot is to take charge. This point would ordinarily be the dock in which a vessel loaded, because, except in these cases of embarking passengers, a vessel would usually proceed from the dock to sea as fast as tide and weather would permit. Section 133 gives power to the board to fix rates of pilotage to be paid to pilots for piloting vessels within certain limits. The rate for "piloting a vessel out of the port of Liverpool" is to be "not less than 33. and not more than 48. per foot" draught of water. Section 139 provides that "in case the master of any vessel being outward bound," except the said coasters, "shall proceed to sea, and shall refuse to take on board or to employ a pilot," he shall still pay the full pilotage rate.

The material sections which relate to inward-bound vessels, in addition to the 124th, are the 125th, the 128th, the 130th, and the 133rd sections. Section 125 imposes a penalty on any pilot refusing to conduct an inward-bound vessel. Section 128 defines the duties of the pilot in charge of an inward-bound vessel. It provides that "the pilot in charge of any inward-bound vessel shall cause the same (if need be) to be properly moored at anchor in the River Mersey, and shall pilot the same into some one of the wet docks within the port of Liverpool, whether belonging to the board or not, without making any additional charge for so doing, unless his attendance shall be required on board such vessel while at anchor in the River Mersey and before going into dock, in which case he shall be entitled to receive 5s. per day for such attendance." There is nothing in any other section expressly extending those limited duties or preventing a pilot from making a charge for services performed beyond the limit, nor, on the other hand, imposing on the owners or masters of vessels any obligation to employ pilots to perform services other than the limited services specified in this section. Section 130 provides that in case the master" of any inward-bound vessel (except the said coasters) shall refuse to take on board or to employ a pilot, such pilot having offered his services for that purpose," he shall pay full pilotage rates as if the vessel had been piloted "into the port of Liverpool."