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as though the collision caused the loss. So it did in a sense. It was a causa sine quâ non, but it was not the causa causans. It was causa remota, but not causa proximа. The causa proxima of the loss was foundering. It would be strange if a plank started, and the vessel went to the bottom in consequence, that it should be held, "Oh, the loss is not by perils of the seas, but by bad carpentering." Let there be no doubt. I do not say that in such case the freighter might not complain that his goods were carried in an unseaworthy ship: all I say is, that the loss would be by perils of the seas. It is only necessary for this House to say that if the foundering was occasioned by a collision, with no blame on the defendants, they ought to have succeeded. For this is what they offered to prove, and were told that it was useless to do so. Mr. Hollams argued that they ought to have insisted on their right to prove their case. I am clearly of a different opinion. I think when the judge says, "I shall decide against you, though you prove what you say," the party must acquiesce for the time, and seek his remedy by appeal. I think that the judge might properly refuse to hear the evidence, for he might truly say that in his opinion this evidence is irrelevant to any issue on the record; no one giving it would be liable to the penalty of perjury. The practice in my experience has always been in conformity with what I am now saying. The judgment, then, must be set aside. The Attorney-General contended that it should be entered for the defendants. That also is impossible. It could not have been done before the Judicature Act, and that Act does not authorise it. It would be most unjust to the plaintiffs. They, relying on the law as it had been laid down, proved what was a sufficient case, and did not give what would have been irrelevant evidence if the law had been rightly laid down. I say nothing about burthen of proof. All I say is, that if the collision was in no way the fault of the defendants' crew, they are entitled to judgment. As to costs, I do not remember whether my noble and learned friend made any mention of costs, but I will merely read what I have written, namely, that as to costs it seems to me that neither party is to blame, and that consequently the costs of the former trial, of the appeal in the court below, and in this House, should be costs in the cause for either party. I do not know whether that will meet your Lordships' view in the matter, but that can be settled afterwards.

Lord MACNAGHTEN.-My Lords: In this case the bill of lading on which the question arises is in common form. In the usual terms it states the engagement on the part of the shipowner to deliver the goods intrusted to his care. At the same time it specifies, by way of exception, certain cases in which failure to deliver those goods may be excused. So much for the express terms of the bill of lading. But the shipowner's obligations are not limited and exhausted by what appears on the face of the instrument underlying the contract, implied and involved in it there is a warranty by the shipowner that his vessel is seaworthy, and there is also an engagement on his part to use due care and skill in navigating the vessel and carrying the goods. Having regard to the duties thus cast upon the shipowner, it seems to follow as a necessary con

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sequence, that, even in cases within the very terms of the exception in the bill of lading, the shipowner is not protected if any default or negligence on his part has caused or contributed to the loss. Turning now to the facts of the case, we find that it was admitted at the trial that the vessel with the goods on board foundered at sea in consequence of a collision. The exception in the bill of lading includes "dangers and accidents of the sea." Is shipwreck by collision a danger or accident of the sea? I should say undoubtedly it is. Then comes the question, how was the collision brought about? Of that we know nothing, except that it was not due to inevitable accident. So much was admitted. It follows from that admission that one or both of the vessels that came into collision must have been to blame. In that state of things, I should have thought that the issue between the parties was reduced to this question, Was the carrying vessel in fault? If it was not, the shipowner is protected. If it was, though the loss occurred through one of the excepted perils, the shipowner cannot rely on the exception. Unfortunately that simple issue was obscured, and the trial of the action was rendered abortive by reason of the decision in Woodley v. Michell. In the face of that decision it would have been idle for the parties to have gone into the facts at the trial. It would have been a work of supererogation on the part of the plaintiffs to have proved that the carrying vessel was in fault. The defendants would have been no nearer winning if they had established by the clearest evidence that up to the moment of collision they had performed every duty cast upon them. Under these circumstances the parties have been compelled to come to your Lordships' House, appealing in form against the judgment of the Court of Appeal in the present case, but in reality against the decision in Woodley v. Michell. Your Lordships are therefore called upon to determine whether the rule laid down in Woodley v. Michell can be supported on principle or authority. Authority in its favour there is none. industry of counsel could not produce any passage from any recognised treatise or from any reported judgment countenancing the doctrine, except one observation in Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Company (48 L. T. Rep. N. S. 546; 5 Asp. Mar. Law Cas. 65; 10 Q. B. Div. 521), which was not necessary for the decision. It seems to me to be equally difficult to support the rule in Woodley v. Michell on principle. If the accident is brought about by the negligence of the owner of the carrying vessel or his servants, it would be contrary to common sense and against all sound principle to allow one who was the author of the mischief to avail himself of his own wrong. But, if the carrying shipowner is free from all blame, why should he suffer for the errors or misconduct of those over whom he has no control? As far as he and his vessel are concerned, what difference can it make in that case whether the collision is caused by a sunken rock, or by an iceberg, or by another vessel, or whether that other vessel is or is not in fault? It seems to me, if I may say so with all deference, that the error of the Court of Appeal in the present case is to be found in this: They start with the assumption that the same words have different meanings when used in policies of assurance, and

The

when used in bills of lading. For that assumption there is not, I venture to think, any foundation. Different considerations, no doubt, apply to the two contracts, a contract of indemnity and a contract of carriage, and the same event may have a different result in the one case from what it would have in the other; but in mercantile contracts so closely connected the same words must have the same meaning. Whatever the expression" perils of the sea means in a policy of assurance, it means neither more nor less in a bill of lading. The result, in my opinion, is that the appeal must be allowed, and the litigant parties must begin over again.

Orders appealed from reversed; and a new trial ordered; the costs of the trial already had to be costs in the cause; and the costs in the Court of Appeal and in this House to be defendants' costs in the cause. Solicitors for appellants, Lowless and Co. Solicitors for respondents, Hollams, Son, and Coward.

May 12, 13, and July 14, 1887.

(Before the LORD CHANCELLOR (Halsbury), Lords WATSON, BRAMWELL, FITZGERALD, HERSCHELL, and MACNAGHTEN.)

HAMILTON V. PANDORF. (a)

ON APPEAL FROM THE COURT OF APPEAL IN ENGLAND.

Charter-party- Bill of lading - Exceptions Dangers and accidents of the seas Damage caused by rats.

A cargo of rice was shipped under a charter-party and bills of lading, which excepted "dangers and accidents of the seas of whatever

nature and kind." During the voyage the cargo was damaged by sea-water entering through a pipe which had been gnawed by rats. It was admitted that the ship was seaworthy, and that there was no negligence.

Held (reversing the judgment of the court below), that the damage was within the exception, and that the shipowner was not liable.

THIS was an appeal from a judgment of the Court of Appeal (Lord Esher, M.R., Bowen, and Fry, L.JJ.) reported in 55 L. T. Rep. N. S. 499, 6 Asp. Mar. Law Cas. 44, and 17 Q. B. Div. 670, who had reversed a judgment of Lopes, L.J., upon further consideration of an action tried before him at the Liverpool Summer Assizes 1885.

It ap

The appellants were the owners of the steamship Inchrhona, and the respondents were merchants in London and the rice ports. The question for decision was, whether the respondents were entitled to recover from the appellants the sum of 1000l. by way of damages for breach of contract contained in certain bills of lading dated the 26th March 1884, on a cargo of rice shipped by the respondents at Akyab, on board the Inchrhona, and delivered in a damaged condition. peared that the damage to the rice was occasioned by sea-water which had got into the hold through a hole which had been made in a pipe by rats. The appellants relied on the exceptions in the bills of lading as freeing them from liability for the damage so occasioned. The perils excepted in the bills of lading were "the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and (a) Reported by C. E. MALDEN, Esq., Barrister-at-Law.

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steam navigation of whatever nature and kind soever excepted." There was a dispute at the trial as to whether the rats had been allowed to come on board by the shippers in the course of shipping the rice at Akyab. The jury found as to this, that the rats that caused the damage were not brought on board by the shippers in the course of shipping the rice. A second question was left to the jury-namely, whether those on board the vessel took reasonable precautions to prevent rats coming on board during the shipping of the rice. This question the jury did not answer, as the appellants' counsel at the trial admitted that it became immaterial, having regard to the finding on the first question. There was no dispute at the trial as to the fact of damage or the amount thereof, and it was further agreed that the damage was caused during the voyage home, after the ship had left Akyab, by sea-water passing through a hole made by rats in a leaden discharge pipe connected with a bathroom in the vessel. It was admitted that the effect of the finding of the jury, having regard to the evidence was, that the rats which ate the pipe were in the ship before the cargo was loaded. The appellants did not offer any evidence to show that it was impossible to exclude rats altogether from the ship, or that it was not possible by reasonable care and skill to prevent rats when on board from doing the mischief which caused the damage in this case.

Lopes, L.J. gave judgment for the defendants (the present appellants), but his judgment was reversed, as above mentioned.

Bigham, Q.C. and Barnes appeared for the appellants, and argued that any incursion of sea-water from natural causes which might be guarded against by ordinary care is an "accident of the sea. This loss was within the exception, being sea damage to cargo without negligence; and there is no difference in the construction of the words "dangers or perils of the seas" in policies of insurance, or in charter-parties and bills of lading, except that under the two latter the shipowner is bound to exercise reasonable The case is not covered by authority. Damage to a ship's bottom by vermin at sea is not within the exception:

care.

Dale v. Hall, 1 Wils. 281. See also

Pickering v. Barkley, 2 Roll. Abr. 248; Style, 132;
Rohl v. Parr, 1 Esp. 445;

Hunter v. Potts, 4 Camp. 203;

Hazard v. New England Marine Insurance Company, 8 Pet. 557;

The Reeside, 2 Sum. 571, per Story, J.

Laverori v. Drury (8 Ex. 166; 22 L. J. 2, Ex.) was a case of damage by rats, not by water, and is no authority in this case. So also was Kay v. Wheeler (16 L. T. Rep. N. S. 66; 2 Mar. Law Cas. O. S. 466; L. Rep. 2 C. P. 302). The latest cases are Chartered Mercantile Bank v. Netherlands India Steam Navigation Company (48 L. T. Rep. N. S. 546; 5 Asp. Mar. Law Cas. 65; 10 Q. B. Div. 521) and Woodley v. Michell (48 L. T. Rep. N. S. 599; 5 Asp. Mar. Law Cas. 71; 11 Q. B. Div. 47), which is distinguished in Sailing Ship Garston Company v. Hickie (55 L. T. Rep. N. S. 879; 6 Asp. Mar. Law Cas. 71; 18 Q. B. Div. 17). (a)

(a) Woodley v. Michell has since been overruled by the decision of this House in Wilson v. Owners of the Cargo of the Xantho (57 L. T. Rep. N. S. 701; 6 Asp. Mar. Law Cas. 207; 12 App. Cas. 503).

Busk v. Royal Exchange Assurance Company, 2 B. & Ald. 73;

Laurie v. Douglas, 15 M. & W. 746;

Grill v. General Screw Collier Company, 18 L. T. Rep. N. S. 362; 3 Mar. Law Cas. O. S. 77; L. Rep. 3 C. P. 476;

Davidson v. Burnand, 19 L. T. Rep. N. S. 782; 3 Mar. Law Cas. O. S. 207; L. Rep. 4 C. P. 117; Garrigues v. Core, 1 Binney Pens. 592;

Carver on Carriage, 92; Parsons on Shipping, 258;

Parsons on Insurance, 545.

Sir C. Russell, Q.C. and J. Walton, for the respondents, contended that the proposition was laid down too widely on the other side. See

Merchants' Trading Company v. Universal Marine Insurance Company, 2 Asp. Mar. Law Cas. 431, n.;

Dudgeon v. Pembroke, 31 L. T. Rep. N. S. 31; 2 Asp. Mar. Law Cas. 323; L. Rep. 9 Q. B. 581; It confuses cause and consequence. There must be a peril of the sea causing an incursion of seawater. The exception would not apply to barratrous scuttling by one of the crew. See

Woodley v. Michell (ubi sup.).

If water was let in by a loose plate which injured a pipe without negligence it would not be a peril of the sea. Hamilton v. Thames and Mersey Marine Insurance Company (17 Q. B. Div. 195) is distinguishable on the special wording of the policy in that case. (a) Damage by a stowaway would not be a sea peril, though it caused an incursion of sea-water. Where a ship was strained by lying on a mud-bank in the ordinary course of navigation, it was held that there was no remedy on a policy, as it was loss by ordinary wear and tear:

Magnus v. Buttemer, 11 C. B. 876. See
Arnould, 6th edit. 755.

It is not the mere incursion of sea-water, or the fact of damage to a ship at sea which constitutes the liability. It must be shown that the damage arises from a "peril of the sea," a fortuitous or accidental thing:

The Chasca, 32 L. T. Rep. N. S. 838; 2 Asp.
Mar. Law Cas. 600; L. Rep. 4 A. & E. 446;
Cullen v. Butler, 5 M. & S. 461;
Taylor v. Curtis, 6 Taunt. 608.

This case does not differ from that of a passenger who leaves the cock turned on in the bath-room, and allows the water to overflow. The rats were not a peril of the sea, though they were on the sea. Some bills of lading contain an express exception of damage by rats, and the House is asked to introduce the clause into this bill of lading. [The LORD CHANCELLOR referred to Steel v. State Line Steamship Company, 37 L. T. Rep. N. S. 333; 3 Asp. Mar. Law Cas. 516; 3 App. Cas. 72.] It is not a peril of the sea if the loss arises from the sea in its ordinary state in the ordinary course of navigation, such as a ship foundering in calm weather from a latent defect. A peril is what may, not what must, happen: Fletcher v. Inglis, 2 B. & Ald. 315;

1 Phillips on Insurance, 6th edit. p. 678, s. 1132. Bigham, Q.C. in reply.-An accident which cannot be attributed to any act of man, wilful or negligent, is an accident of the sea, as it would not produce damage if the sea was not there.

(a) The decision has since been reversed by the House of Lords (57 L. T. Rep. N. S. 695; 6 Asp. Mar. Law Cas. 200; 12 App. Cas. 484).

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The damage is from the sea-water getting in from nobody's fault: (see Arnould, 748.)

At the conclusion of the arguments their Lordships took time to consider their judgment.

July 14.-Their Lordships gave judgment as follows:

:

With

The LORD CHANCELLOR (Halsbury).-My Lords: In this case the admissions made at the trial reduce the question to this-whether in a seaworthy ship the gnawing by rats of some part of the ship so as to cause sea-water to come in and cause damage is a danger and accident of the sea. That this happened without any negligence of the shipowner is material in determining the rights of the parties in this particular case, but in my judgment has no relevancy to the question whether the facts, as I have stated them, constituted a danger or accident of the seas. all respect to Bowen and Fry, L.JJ., they have not accepted the hypothesis of fact which the admissions at the trial render essential. It is admitted that the ship was seaworthy, and that there was no negligence, and these admissions are absolutely inconsistent with the reasoning of the Lords Justices, which suggests important difficulties in deciding those questions of fact to which I have referred, but seems beside the question if these facts are proved or admitted, as I think it is clear they were. The other question with which the Master of the Rolls dealt is one which must be determined upon the ordinary rules of cor.struction, whatever the document is the meaning of which is under debate; and it must be admitted that words may receive a limited meaning by reason of the other words with which they are associated, or by reason of the subject-matter with which they deal, or by reason of the mode in which they are commonly used. It is clear that the parties do not mean by such an instrument as we are construing to except all accidents of any kind or description whatsoever which may happen during the particular voyage which both parties are looking forward to. Some effect must be given to the words "perils of the sea." A rat eating a cheese in the hold of a vessel is not a peril of the sea; the sea, or the vessel being on the sea, has nothing to do with the destruction of the cheese. This was the decision of the Court of Exchequer in Laveroni v. Drury (8 Ex. 166; 22 L. J. 2, Éx.). In the Law Journal report of that case Pollock, C.B. and Alderson, B. distinctly point out, after the judgment of the court had been given, that the decision at which the court had arrived did not touch the question of whether the sea being let in by a hole made by a rat was an accident or danger of the sea. of the dangers which both parties to the contract would have in their mind would, I think, be the possibility of the water getting into the vessel from the sea upon which the vessel was to sail in accomplishing her voyage-it would not necessarily be by a storm; the parties have not so limited the language of their contract-it might be by striking on a rock, or by excessive heat, so as to open some of the upper timbers; these and many more contingencies that might be suggested would let the sea in; but what the parties, I think, contemplated was that if any accident (not wear and tear, or natural decay) should do damage by letting the sea into the vessel, that that should be one of the things contemplated by

One

the contract. A subtle analysis of all the events which lead up to and in that sense cause a thing may doubtless remove the first link in the chain so far that neither the law nor the ordinary business of mankind can permit it to be treated as a cause affecting the legal right of the parties to a suit. In this case the existence of the rats on board, their thirst, the hardness of their teeth, the law of gravitation, which caused the water to descend upon the rice, the ship being afloat, the pipe being lead, and its capacity of being gnawed each of these may be represented as the cause of the water entering; but I do not assent to the view that this contract can have a different meaning attached to it according as you regard each step in the chain of events as the origin out of which the damage ultimately arises.

cases an

In the class of contract where the shipowner's negligence or misconduct prevents perils of the sea being relied upon, it is not that perils of the sea are different, or that the words ought to have a different meaning attached to them, but because in those additional term exists in the contract, which makes the negligence of the shipowner, or of those for whom he is responsible, a material element; but it is also necessary to give effect to the words "dangers and accidents of the seas." Now, cases have been brought to your Lordships' attention in which the decision has turned, not, I think, upon the question of whether it was a sea peril or accident, but whether it was an accident at all. I think the idea of something fortuitous and unexpected is involved in both words, peril or accident; you could not speak of the danger of a ship's decay; you would know that it must decay; and the destruction of the ship's bottom by vermin is assumed to be one of the natural and certain effects of an unprotected wooden vessel sailing through certain seas. One ought, if it is possible, to give effect to all the words that the parties have used to express what this bargain is, and I think in this case it was a danger, accident, or peril, in the contemplation of both parties, that the sea might get in and spoil the rice. I cannot think it was less such a peril or accident because the hole through which the sea came was made by vermin from within the vessel, and not by a sword-fish from without-the seawater did get in. I am therefore of opinion that the judgment should be reversed, and I move your Lordships accordingly.

Lord WATSON.-My Lords: The respondents sue for damages in respect of injury sustained, during transit, by a cargo of rice, which was carried in the appellants' steamship Inchrhona from Akyab to Bremen. The appellants plead, in defence, that the injury was occasioned by a danger or accident of the sea, within the meaning of the exception in the charter-party and bills of lading, which are in the usual terms. In point of fact, the rice was damaged by sea-water, which found its way into the hold of the Inchrhona through a hole gnawed by a rat in a leaden pipe connected with the bath-room of the vessel. If the respondents were preferring a claim under a contract of marine insurance, expressed in ordinary terms, I should be clearly of opinion that they were entitled to recover, on the ground that their loss was occasioned by a peril of the sea within the meaning of the contract. When a cargo of rice is

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directly injured by rats or by the crew of the vessel, the sea has no share in producing the damage, which in that case is wholly due to a risk not peculiar to the sea, but incidental to the keeping of that class of goods, whether on shore or on board of a voyaging ship. But in the case where rats make a hole, or where one of the crew leaves a porthole open, through which the sea enters and injures the cargo, the sea is the immediate cause of mischief, and it would afford no answer to the claim of the insured to say that, had ordinary precaution been taken to keep down vermin, or had careful hands been employed, the sea would not have been admitted, and there would have been no consequent damage. Your Lordships have now disapproved of the novel doctrine that, in a contract of sea carriage, a meaning must be attached to the expression "dangers and accidents of the seas," different from that which it bears in a contract insuring cargo against sea risks; (a) that, in the case of a charter-party or bill of lading, the court ought to look to what has been termed the remote, as distinguished from the proximate, cause of damage, whereas, in the case of a policy, the proximate cause can alone be regarded. The expression has precisely the same significance in both cases; but there is this difference between them: that when a shipowner, who is bound, by the implied terms of his contract, to carry with ordinary care, claims the benefit of the exception, the court will, if necessary, go behind the proximate cause of damage, for the purpose of ascertaining whether that cause was brought into operation by the negligent act or default of the shipowner or of those for whom he is responsible. As Lord Blackburn said in Steel v. State Line Steamship Company (37 L. T. Rep. N. S. 333;

Asp. Mar. Law Cas. 516; 3 App. Cas. 72): "Although the things perished by a peril of the sea, still, inasmuch as it was the negligence of the shipowner and his servants that led to it, they cannot avail themselves of the exception." I am of opinion that the appellants must prevail, because it has not been shown that the peril which was the immediate and efficient cause of damage owed its existence to their negligence. In the course of the trial before Lopes, L.J. it does appear to have been, at one time, suggested that the appellants' servants failed to exercise due diligence in extirpating the rats, and also that the bath-room pipe ought not to have been of lead, but of some other material which a rat could not or would not gnaw. Neither of these points was submitted to the jury, who negatived the only charge of negligence which was ultimately insisted on by the respondents. I accordingly concur in the judgment which has been moved.

Lord BRAMWELL.-My Lords: I am of opinion that this judgment must be reversed. This is the third case in which this House has had to consider whether a peril of the sea or other peril within the general words was shown. The arguments and discussions in all three have been very useful in helping to a conclusion. As I have said elsewhere, I think the definition of Lopes, L.J. very good-"It is a sea damage occurring at sea, and nobody's fault." What is the "peril?" It

(a) In Wilson and Co. v. Owners of the Cargo of the Xantho (ubi sup.) decided immediately before the present

case.