Volume IX. 1846. TAYLOR V. CLAY. ment and improper conduct of the said master and crew in that behalf, then, to wit on &c., became greatly broken, damaged &c., and rendered wholly unfit to receive any cargo therein according to the terms of the said charter-party, and so remained for a long time, to wit the whole time in the declaration mentioned, during which the said ship remained unloaded: whereby, and by reason of the premises, and on no other account whatsoever, defendants could not, although they were during all the time last aforesaid ready and willing so to do, safely or securely load on board the said ship in turn from their said factors at Port Talbot aforesaid a full and complete cargo of coals, or coal and coke, at their option, or any part thereof, according to the terms of the said charter-party. Verification. Replication: De injuriâ. Issue thereon. On the trial, before Coltman J., at the Glamorganshire Summer assizes, 1845, it appeared that, the charterparty being as above stated, the Jane, on 13th March, 1843, arrived at the lock gates at the entrance of Port Talbot, having a proper pilot on board. The harbour-master (a) ordered the Jane, and another vessel, the Thames, which was astern of her, to pass into the lock. In so doing, the Thames hauled up faster than the Jane; and they came into contact. The harbourmaster's attention was called to the circumstance; and he ordered the Jane to heave briskly ahead: but the ships became jammed together; and, the tide ebbing, the Jane was suspended between the side of the lock till the next morning. sary to remove her ballast; and she (a) See p. 719, note (a), post. Thames and the It was It was necessustained some 1846. TAYLOR V. CLAY. injury and, in consequence of the accident, she lost Queen's Bench. the turn of loading which she would otherwise have been entitled to, and was detained several days before she received her cargo: but it did not appear that, when ready, she met with any undue delay in loading. For the plaintiff it was contended that the mischief resulted unavoidably from the harbour-master permitting the Thames to follow the Jane too closely into the lock. The defendants called several witnesses to shew that the accident would not have happened if the crew of the Jane had obeyed directions which the harbourmaster gave, and had "heaved" the ship by the winch instead of "hauling," as it appeared they did, by hand. Coltman J. was of opinion that, on the first two issues, taken by themselves, the defendants were entitled to a verdict, if they had loaded the cargo within a reasonable time after the ship was ready to take her turn; but that the general result of the cause must depend upon the question which, in his view, arose upon the third issue, namely, whether the mischief was occasioned by fault in the crew, or by misconduct of the harbour-master in sending the Thames forward before the Jane had gained a proper berth. He left this question to the jury, and directed a verdict for the defendants on the first and second issues, reserving leave, however, to move to enter a verdict on these for the plaintiff, if the Court should dissent from his ruling. Damages were assessed conditionally on these issues; and the jury found for the defendants on all. Chilton, in Michaelmas term, 1845, obtained a rule to shew cause why a verdict should not be entered for the plaintiff on the first and second issues. As to these he contended that, the vessel having arrived at Port Talbot, 1846. TAYLOR CLAY. Volume IX. the freighters were answerable for any delay in the loading, or at all events were bound to shew the excuse by plea: and he cited Abbott on Shipping, 306, 307 (8th ed.), where it is said that, when, in a charter-party, the time is "expressly ascertained and limited by the terms of the contract, the merchant will be liable to an action. for damages if the thing be not done within the time, although this may not be attributable to any fault or omission on his part; for he has engaged that it shali be done." He also moved for a new trial on the grounds that the jury were misdirected on the third issue, and that the verdict was against the evidence; contending that no misconduct in the crew was proved, and that, at all events, when the accident happened, they were under the controul of the harbour-master, and therefore the ship was not under the "care, direction and management" of the plaintiff (a). A rule nisi was granted. Martin and Benson now shewed cause. First, as to the third issue: although the local act and by-laws gave an authority and right of superintendence to the harbour-master and pilot, the vessel was under the actual and immediate "care, direction and management" of the master and crew as stated in the third plea; and the owner is responsible for the misconduct on their part which, in point of fact, caused the mis (a) It was also urged, on the argument in support of the rule, that the learned Judge, in summing up, put the case too unfavourably to the plaintiff, in point of law, on the question whether or not the master and crew had contributed to the accident by their own mismanagement: and Davies v. Mann (10 M. & W. 546.) was cited. But the Court thought that the case had been well left to the jury, and that their decision on the fact was conclusive. And Lord Denman C. J. observed that, in such an action as this, the fact of the plaintiff having contributed to the injury was quite sufficient to prevent the defendant's being held liable on the contract. 1846. carriage in question. The clauses of stat. 4 & 5 W. 4. Queen's Bench. c. xliii. (a), giving certain authority to the harbour-master and pilot, do not exclude the controul of the ship's (a) Stat. 4 & 5 W. 4. c. xliii., local and personal, public, "for im. proving the port and harbour of Aberavon in the county of Glamorgan," incorporates, by sect. 1, a company for making &c. and improving the port and harbour of Aberavon (called in the above reported case Port Talbot), and the entrance or channel thereof, and the river Avon, in the county of Glamorgan. Sect. 51 enacts: "That it shall be lawful for any person appointed in pursuance of this act" (by the company, under sect. 48) "to act as harbour master within the said port and harbour of Aberavon to direct any person having the command of any vessel entering into or being within the said port and harbour to moor, anchor, and place the same in such situation within the said port and harbour as the said harbour master shall direct; and in case the master of such vessel shall refuse or neglect to remove the same as soon as may be after being required, and to moor, anchor, and place the same as the said harbour master shall direct, he shall for every such offence forfeit and pay any sum not exceeding 107.; and it shall be lawful for the said harbour master and such other persons as he shall call to his assistance to remove or cause to be removed the said vessel in such manner as he shall deem necessary; and such master shall pay all the charges and expences attending the removing such vessel after such direction, refusal, or neglect as aforesaid, such charges and expenses to be recovered" &c. (as directed by sect. 87); "and if any person shall prevent or impede the removal of any such vessel, such person shall forfeit " &c. as above. Sect. 72 enacts: "That it shall be lawful for the said company to appoint and license fit and proper persons to act as pilots and hoblers for the purpose of conducting into and out of the said port and harbour ships and vessels resorting thereto, by annual warrant or license," which they may revoke at their pleasure, and imposes a penalty on any person taking upon himself to act as a pilot or hobler to any ship or vessel entering into or going out of the said port and harbour without having authority so to do by such annual warrant or license. Sect 73 imposes a penalty if the master, owner, &c. of any vessel inward or outward bound shall refuse to take on board and employ a licensed pilot who shall offer his services (except such vessel shall be laden with limestone) &c. There were also by-laws, made by the Company for the regulation of pilots and hoblers, and vessels, using Port Talbot, and of the masters &c. belonging to such vessels. Among them were the following. "3. Any pilot or hobler disobeying or disregarding the orders of the TAYLOR V. CLAY Volume IX. 1846. TAYLOR V. CLAY. master and crew; nor, indeed, do the duties on one part and the other conflict; for the harbour-master's business is only to direct the placing of a ship in the port and harbour, and the pilot is only to guide her course: a fault in working the ship cannot be imputed to either. At all events, if the harbour master gives orders which are disregarded, the owner cannot excuse himself by an authority which the master and crew have rejected. The learned Judge's direction, therefore, was right. Then, as to the first and second issues: the ship was loaded in reasonable time, and loaded in turn, within the meaning of the charter-party. Reasonable time would commence when the ship was brought to the place of loading (which is distinct from the port generally; Brereton v. Chapman (a), Brown v. Johnson (b);) in a proper state for receiving a cargo. It was a condition precedent that the ship should present herself, ready to be loaded. And the turn would be the ship's proper turn, after she had appeared in such readiness. Such being the rules, no negligence ap harbour master while approaching or passing through the lock, or with respect to the berthing of any vessel in the port, will be liable on conviction to a fine not exceeding 40s." "5. Every master of a vessel above 25 tons register burden bound inwards, except such vessel shall be laden with limestone, shall employ a licensed pilot" (by rule 7, the first who offers) "provided the vessel be boarded outside the outer buoy:" (Excuse, in case there should not be a sufficient number of pilots, &c.; penalty in other cases.) “10. Every pilot in charge of a vessel inward bound shall conduct such vessel to whatever berth she may have orders to proceed without quitting her, unless he shall have permission from the master; and any pilot refusing to conduct a vessel under his charge beyond the lock, when required to do so by the harbour master or the master of such vessel, shall be liable to forfeit such pilotage." (a) 7 Bing. 559. (b) 10 M. & W. 331. |