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nor any of the cases then decided upon the strength of the doctrine now in question were cited in the argument in the House of Lords, in Ranger's case.
The court of Appeal in New Zealand, from whose decision the appeal came in "Lodder v. Blowey," thought that all that had been decided in Ranger's case was that the appel- lant had no claim to equitable relief. The agreement of the Privy Council with the con. olusion of the Court of Appeal must include this or more would have been said about it for it was practically passed by the decision of the House of Lorde; and further they adopted the principles deduced from "Cutter v. Powell" in Smith's Leading Cases, and I think the Privy Council agreed with this too: for the conclusion with which the Privy Council agreed begins with 'accordingly.'
I must take it therefore that the doctrine for which the plaintiff contende, based on the notes to "Cutter v. Powell," has received the approval of the Privy Council, and the only thing which remains for me to do is to see whether there are any circumstances which differentiate this case from the facts in "Lodder v. Slowey." Mr. Pollock in order to show the difference between that case and this, dwelt on the fact that the jury had found that the principals themselves were reponsible for the lack of expedition which was the reason for the plaintiff's wrongful ejectment: that they had unwarrantably put forward as the ground for turning the plaintiff off, his lack of expedition: and that the case turned not on the actual fact of turning off, but on the case alleged for the turning off. The case requires very careful reading on account of the confusion of the parties: the Borough Council and the appellants collectively, and Ward staad in the place of the defendants and Mr. Danby, the respondent is of course the plaintiff in this case. Lord Davey says at the ad of the judgment "a party to a contract for execution of works cannot justify the exercise of a power of re-entry and seizure of the works in progress when the alleged default or delay of the contractor has been brought about by the acts or default of the party himself or his agent ("Robert v. Bury," Improvement com- missioners). That is to say what the party to the contract in that case did was wrongful, and as it amounted to an improper seizure of the works, that is to say to a wrongful termination of the contract; the measure of damages, or (more accurately) the right of the responden was to treat the contract as at an end, sue for work and labour done, instead of suing for damages for breach of contract "—the doctrine which has been reared on the decision of "Cutter v. Powell. "
Here there has been a finding that the ter. mination of the contract for quite other reasons than in the New Zealand case was wrongful, but the measure of the damages, or (more accurately) the right of the respondent with regard to the contract must be the same, for according to that decision that is the fall extent of the remedy for a wrongful termination of the contract, I am therefore of opinion that the letter from plaintiff to defendants of 7th February was in fact written in the exercise of the option which the wrongful not of the defendants by their agents gave him, either to treat the contract at an end and sue on & quantum meruit, or to sue for damages for breach of the contract, in favour of the first alternative.
I must therefore answer the question in the special case in the following way :-
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The latter of the plaintiff's solicitor to the defendants of the 7th February 1907 had the effect of rescinding the contract between the plaintiffs and defendante referred to in that
letter as from the date of such contract.
If the plaintiff does not succeed on the quan- tum meruit then this special case need not have been argued. The costs of the special oise must therefore abide the event and be costs in the
'cause. -
INSURANON CASE.
In the case of the Hip On Marine Insurance Company, Ltd. against the Hang On Marine Insurance Company, his Honour delivered judgment as follows:
THE HONGKONG WEEKLY PRESS AND
The plaintiff Co. having paid an insurance claim which they had re-insured with the defendant Co., bring this action to recover the
the 8.5.
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The insurance was effected on sagar which came up from Sourabaya to Hongk ng on board "Tholma," consigned to the Kwong Sang Choi. The steamer arrived in port on Saturday the 8th September, and was not completely unloaded on 18th September, the day | of the great Typhoon last year. The consigness took steps to get delivery of their sagar on Monday 10th, but apparently did not get any. On 14th they got delivery of one cargo-boat load, 414 bigs and 153 baskets. On the 15th they could get none because the remainder was at the bottom of the hold. The 16th way Sunday. On they 17th they got 443 baskets. On this day, for the first time the ship worked at night, knocking off at midnight, when there were some 43 baskets still to be got out of the hold. The cargo boat thereupon tied up to the ship to wait for the completion of the delivery. On the morning of the 18th the typhoon | suddenly burst on the Colony, the cargo boat | went astern of the steamer tied up by four ropes, all of which broke, and the boat went down and the sugar was lost, the men on board
narrowly escaping drowning.
A
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[August 5, 1907. amount so paid. The defendant Co. in effect, this concession must also cover the tying up to say the claim should not have been paid, and the steamer at night. The question appears to resist it on the gronads on which practically be a somewhat nice one, and I therefore feel it they say the plaintiff should have resisted the necessary to deal with it with some particularity. original claim of the assured. The notion may I do no think this could be included in the therefore be treated as if it were the cisim by the practice of the port, so as to be of necessity in- assured against the defendants.
corporated in the insurer's risk. The question is rather this whether the tying up wit a reason- able way of carrying out the landing of a cargo of sugar. Of course the Court must not be wisa after the event: but this outs bɔth ways. I must not consider the fact that the result of tying up was disastrous: nor must I oɔnsider the fact that if she had gone in shore and anchored among the jauks the result would have been equally disastrous. The question really is, did the cargo boatman take a risk by lying out in the harbour at night during the typhoon season, such a risk as cannot be said to be included in the risk undertaken by the insurer? and this, must be considered not merely of a sudden typhoon, bat of any heavy weather which might damage a cargo such as sugar. The first step in the consideration is the unloading at night. I think I am bound to hold that this as well as the legitimate consequences ensuing therefrom mast ba included in the insurer's risk. Then the question resolves itself into this : ought the con- signee to have made arrangements to land his cargo after midnight? Although I strongly incline to the defendant's view of the oise, on the whole, I have come to the opinion that the evidence as to the facilities for storing cargo late at night is not so strong as to indu e me to say it was the consignes's daty to do this. He could have obtained a police permit, I have no doubt, without much difficulty: but I am not clear that he could have founda godown willing to keep open all night to take his sugar: he certainly could not have got the Hongkong and Kowloon Godown Co, tɔ do so as he was not a regular customer. It is clear however that when there is night work some gʊdown keepers will keep open if reasonable notice is given: Messrs Batterfield & Swire's godown keeper said that their godowas are open up to midaight about 10 times a month. I cannot, even now, en- tirely free my mind from the impression that the cargo boat does run a risk by not taking her cargo on shore as soon as she osu : that the desire to avoid an extra journey to and from the shore is not sufficient reason for not doing so. On the whole I am not prepared without mora expert assistance to hold that what happened in this 0 180 was so unreasonable as to relieve the underwriters from their risk. The conse queues of my so holding might rǝnot pre- judicially on the shipping operations of the port. I feel fairly certain however that a littlə longer delay in unloading as for example, tying up for the night, if there had been no night work on the steamer; or a little longer delay in bringing the oirgo to the godown, would have taken the oise out of the risk insured against. With very great hesitation therefore I soms to the conclusion that what the cargo boss did on this ocos- sion was a ligitimate cons quз003 of the night work on the steamır, sad therefore that on this part of the case the defen·lant must fail.
The main question of law which has to b decided is whether the policy covers risk of oraft from the ship to the shore. Bat on the facts 8.3 I have narrated them a preliminary question arises which may render the determination of the legal question unnecessary. It was said that there was delay in unloading : such a delay as was not contemplated in the policy. The case Was put in this way that there was an implied condition in the contract that the goods should remain on board the ship in harbour for a reasonable time only; and that the consignee's cargo boatman did not not reasonably in not landing the sugar which he had on board his boat after midnight. I agree as to the implied condition, and also with the general proposition that delay is equivalent to deviation; but with regard to this I think that none of the cas IS referred to in Arnould refer to so small a matter as the delay of a few days, but rather to such delays as might in strictness be comparable with deviations from the voyage. However, whether the authorities include such a case of delay as is suggested to have occurred in the present case, or not, I feel sure that it is cover- ed by principle, and if proved, that it would relieve the under-writers: subject however to this, that should I find the delay unreasonable, there would then come the further question whether the consignee is responsible for a delay which was manifestly the fault of the ship.
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The determination of the question of fact has given me much difficulty and has delayed my giving judgment. In the first place it cannot be denied that the unloading of the "Tholms" proceeded in very leisurely fashion: that there was a final spurt on the night of the 17th, most unfortunately as it fell out. But I have no materials before me to come to the conclusion that the unloading was 8ɔ unreasonably delayed as to relieve the insurers of their risk, and I cannot so hold on my own views. I shou'd have had evidence as to the amount of cargo on board, sud. if no evidence was procurable as to the rate at which the unloading in fact proceed. ed, some expert evidence as to the time which it ought to have taken. There is on the other side the evidence of Lee Chung, the cargo bɔat- man, who says that the people on the ship were all busy all day, except meals. when he went off to the ship, which was, apparently, every day. But I do not think the continusacs of the risk while the veess was in harbour depends on the unloading being conducted in the quickest time possible: but that it continues so long as the unloading is not unreasonably delayed. Next as to the cargo boat. The practice of the port is to unload by means of Chinese cargo boats: and however unweildy these boats may by, or unsafe compared with ordinary lighters, I think it must be conceded that if the policy covers risk of craft, it covers any risk occasioned in this port by the faulty construa- tion or navigation of the craft generally made use of for landing. It was pressed on me that
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The question which next arises is whether "risk of craft is covered by this policy: in other words whether the clause comm in to policies in the English form “including risk of busts until safely lauded” is incorporated in this policy.
The Hong On Co. have thres forms of policy: (A) one in Chiasse with English at the back; (B) one in English alone; (C) one in Chiness alone.
The English in (A) is the same as the English in (B) bat the Chinese in (A) diff sea from the Chinese in (C). The olsuse in question as to risk of craft is in the English of (A) and (B). The Chinese form of (&) contains this clause "All insurance matters will satirely be carried out and dealt with socording to the rules and regulations in the form of our Company's English insuranos policy. These rules and regulatiout are treated as contained in this policy. This is proof." Therefore the risk of craft olause is incorporated in the Chinese form of (A).
The expression 'Rules and Regulations” in both places in this saatenes is the translation of the Chinese “ Kwai tia.”
The Chinese form (C) contains the following clause “All insurance matters will be onrried,