164
that the destruction of the person or thing shall excuse the performance; but that exense is by law implied, because, from the nature of the contract, it is apparent that the parties con- tracted on the basis of the continued existence of the particular person or chattel." That judgment has been followed and approved up to the present day from the case of Appleby v. Myers, L. R. 2 Common Pleas, page 651, to Elliott Cratobley, decided last June and reported in the Times Law Reports, vol. 19 page 548. In the case I am deciding, a particular lorcha was to be at the disposal of the charterer for three months. If that lorcha did not continue to exist, the contract became impossible of performance. The parties, in my opinion, contracted on the basis of the continued existence of the lorchs. Without any negligence on the part of anyone, the vessel cessed to exist, and it seems to me that there is an implied condition that, the des- truction of the vessel excused the further performance of the contract. It was, how ever, arged upon me that admitting that the doctrine to which I have referred held good as regards ordinary contracts, it did not hold good in the case of a shipowner and charterer. Undoubtedly, special liabilities have been imposed on carriers both by land and sea. If the carrier by sea wishes to exonerate himself from liability for loss of the goods entrusted to him he usually provides against certain con- tingencies by the "exceptions" contained in the bill of lading or the charter party, as the case may be. One can understand that, in the early days, when the law of ootumon carriers was established, it was necessary to protect the public against fraud. In delivering judgment in Riley v. Horne, 5 Bingham, page 217, C. J. Best said (A.D. 1828):—“ When goods are delivered to a carrier they are usual.y no longer under the eye of the owner; he seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants or stolen by them or thieves in collusion with them, the owner would be unable to prove either of these causes of loss his witnesses must be the carrier's servants, and they, knowing that they could not be contradicted, would excuse their master and themselves To give due security to property the law has added to that responsibility of a carrier which immediately arises out of his contract to osrry for a reward, namely, that of taking all reasonable care of it, the his insurer. From responsibility of an liability as an insurer the carrier is only to be relieved by two things, both so well known to all the country when they happen that no person would be so rash as to attempt to prove that they had happened when they had not, namely, the act of God and the King's enemies." It is true that the responsibility placed on a common carrier by land, that is on a person engaged in the trade of carrying goods as a regular business and who holds himself out as ready to carry for any who may wish to employ him," has been extended to public carriers by water, such as bargemen, lightermen, and others. The Liver Alkali Company v. Johnson, Liw Reports, Exchequer, p. 338, shows that a barga-owner who used to let out his vessels for the conveyanos of goods to any customers who applied to him, and who let one under the care of his own servants to carry a particular customer's goods on a particular journey, incurred a similiar liability to that of a common carrier in the absense of some- thing to limit his liability. Indeed, in giving his judgement, Brett J went farther than the other judges in the case, and, although it was not necessary for that particular decision, said I think by a recognised custom of England every ship-owner who carries goods for hire in his ship whether by inland naviga- tion, or coastwise, or abroad, undertakes to carry them at his own absolute risk, the act of God or of the King's enemies alone excepted, unless by agreement between himself and a particular freighter, on a particular voyage or voyages, he limits his liability by further excep- tions. Of course in ordinary charter parties the shipowner is protected agai st an unfair burden being imposed on him as a carrier by the exceptions contained in the charter party one of which exempta him from liability in ‚case at loss by “accident of the sea and naviga.
45
Angust 29, 1903.
be for the owner in the counter claim with costs.
Mr. Morgan Phillips, barrister-at-law (in- struoted by Mr. J. tisys, of Messrs. Johnson, Stokes & Master, solicitors), appeared for the owner, and Mr. M. W. Slade. barrister-at- law (instructed by Mr. N. H. Beavis, of Messrs. Wilkinson & Grist, solicitors), for charterer.
the
On the application of Mr. Slade, His Lord- ship agreed to stay execution on the original judgment for $1,339.21 for three weeks, on condition that the defendant in the action paid into Conrt within one week what was now due on that judgment,
The stay was granted in order that the charterer may appeal, if he wishes to do so.
The Court adjourned sine die.
Tuesday, 25th August.
IN ORIGINAL JurisdictION,
BEFORE HIS HONOUR SIR WILLIAM M. GOODMAN (CHIEF JUSTICE).
LAND COURT APPEAL CASES,
THE HONGKONG WEEKLY PRESS AND | tion" or "perils of the sea," as it is sometimes worded. If, therefore, instead of making a special Chinese agreement, an ordinary common form of charter party had been used, no ques ion of liability on the part of the ship- owner could have arisen in the present instance. Because, however such ordinary form containing that exception was not used, must I in this Was it case find the shipowner liable f intended by the parties to this contract that besides running the risk of losing $5,000 if his vessel was lost in this venture, the ship-
to was owner
the take upon himself risks of an insurer of all the apparatus and cargo put on board his vessel whatever their value might be? Was it intended that he should warrant that the loro a should "' during not be lost by "perils of the sea the three months for which she was hired? It appears to me, rather, that the ordinary form of charter party was not used because this was not an ordinary common agreement between a freighter and a carrier, but rather a special agreement for a particular and dangerous service on which the loroha was to be employed for three months in relation to the salvage operations contemplate by the charterer. He was the person to salve the wrecked cargo. The Attorney-General, Hon. Sir Henry 8. He was the person who got the two Berkeley, with Mr. E. H. Sharp, K.C, board and agreed to pay barrister-at-law, instructed by Mr. F. B. L. pilots pat on them, presumably to direct the course of the Bowley (Crown Solicitor), appeared in support vessel. He was the person who had liberty of an application for leave to appeal to the "to direct the vessel to sail or stop." Thore Full Court against two decisions of the Land was no express contract to carry the instra- Court. The Attorney-General said the first case was that in which Lam Tssung Fuk and Lam ments for raising the goods, that is to say the pulleys, blocks, cards, ropes, divers etc., to be Tak Luk claimed a tract of foreshore and sea- used for dredging the goods, which were to be bed extending from the old boundary of British supplied by the charterer. They might have Kowloon for a distance of 14 miles in front of been put on board at Mindoro, if they had been Kowloon City and the village of Chinwanand com. available there, though no doubt, as the char-pletely blooking the access to the sea over that dis
tance. In support of their claim the claimants terer was to have the use of the vessel for three months, he had a right to put those and other produced a deed and certain receipts for payment things on board where and when he liked. I of fishing taxes. The Land Court allowed the do not consider this to be a contract merely for claim for an area of 40.59 acres. The allowance the carriage of certain goods giving rise merely of the claim was reported to the Governor in to the relation of freighter and carrier.
due course and certain negotiations took place between the claimants and the Government with reference to the granting of a title. No terms were agreed upon. No title had been granted and in February last the Governor decided that it was inexpedient, having regard to the public interests of the Colony, to grant a title. Then the matter was referred back to the Land Court to decide what compensation was to be paid. Counsel was consulted, and an appeal advised against the decision of the Land Court Claimants stated the total value of the land to be $488,227. They paid for their right $100 and claimed absolute ownership in perpetuity. It appeared that the deed upon which they relied was a transfer of the beach, paying fishing taxes only, and that no reat strictly so called was included. He was informed by the British Consul at Canton that such deed referred only to the right of fishing and did not carry with it a claim to the land, and he was also informed that this deed What was a forgery, in the Consul's opinion. they claimed and what the Land Court allowed was property in certain sandbanks along the sea-beach in front of Kowloon City and Chinwau valued at $35,000, and in the judgment of the Land Court it was stated that the root of the title was a red fishing deed supported by tax receipts. In their claim the claimants did not ask for any fishing right.
It seems to me rather to be a charter of a special kind, and on the whole I have come to the conclusion that the principle set forth in Taylor v. Caldwell applies. This prin- ciple is fully recognised in the text-books dealing with the hire of ships, and I may fitly quote with approval Section 255 of Carver's work on carriage by sea. H says: "Where the obligation is to load specific goo's and the e are destroyed before the time for loading has arrived, without fault of the charterer, it may be that his obligation is at an end; or, if the contract were to loa 1 part of a pecific crop or part of the produce of a particular mine and the crop or mine failed, without default of the charterer, in such a case also he would probably The presumption be excused his failure to load. in such cases is that the parties intended their contract to depend upon the existence of the Where from contemplated subject matt.r. the nature of the contract, it appears that the parties mast, from the beginning, havs known that it could not be fulfilled unless some particular specified thing continued to exist, 80 that when entering into the contract they must have contemplated such continued existence as the foundation of what was to be done, then in the absence of any express or implied warranty that the thing shall exist, the contract is not to be construed as a positive contract, but as subject to an implied condition that the parties shall be excused in
case,
before breach, parforma ca becomes impossible from the perishing of the thing Mr Carver without default of the "contractor," refers iu a note to his authoritie: for this state- ment, the chief of which is Tayler v. Caldwell. He also points out earlier in his book that a charter party may be made for other par- poses than the mere carriage of goods, as, for instance, for salvage services, and in such cas, he says, the rules with regard to contraots of carriage may not be applicable. On the whole, having regard to the contract and the circumstances, I decide that the loss of the vessel exonerated both parties from further performance of the contract. According to the well-known principles of law (applied in the recent case of Hobson v. Pattenden & Co., 19 Law Times Reports, piga 186, and the cases therein cited) what was paid in advance cannot be recovered back. Judgement must, therefore,
His Lordship remarked that they paid $100 for it, then said it was worth $35,000, and when the Government wanted to pay compensation for it, they said it was worth $488;000 ? He did not out these trans- know how they worked formations. He noticed that
land the tax formerly paid to the Chinese Govern. ment for their right was equal to $1.5 From that it appeared prima facie that the claimants had no more than the fishing rights along these banks.
The Attorney-General agreed that there was no other construction to be put upon the deed. Then they said this red deed was a forgery. In the matter of law they would bring expert evidence to prove that a deed of that kind could confer fishing rights. but no right to sell. They had also expert evidence to the effect that it was not competent according to Chinese law and customs for any private individual to sell land covered by water, so that the red deed purported to do that which the parties had no power to do. They desired the Supreme Court
7