« PreviousContinue »
negligence in bringing about excepted loss or damage other than loss or damage caused in navigating the ship, and therefore that the shipowner was not liable.-Norman v. Binnington, L.R. 25 Q.B.D. 475 ;
59 L.J. Q.B. 490; 63 L.T. 108; 38 W.R. 702. (i.) Q. B. D.- Charter-party — Bill of Lading — Exceptions — "Baltic
Clause.”—By a bill of lading goods were made deliverable to order or assigps "paying freight for the goods, and all other conditions as per charter-party.' Held, that this did not import into the bill of lading an exception in the charter-party as to loss occasioned by negligence of pilot, master, or mariners, &c., "as per Baltic Bill of Lading, 1885.”
Serraino v. Campbell, 59 L.J. Q.B. 452 ; 63 L.T. 107. (ii.) C. A. & P. D.-Collision-Compulsory Pilotage—Port of Llanelly
Merchant Shipping Act, 1854, 8. 353.—Pilotage for vessels trading to Llanelly was compulsory before the Merchant Shipping Act, 1854, and therefore continues compulsory. In an action for damage by collision the Court found the defendant's vessel alone to blame, but that it was exempt owing to compulsory pilotage, and the claim was accordingly dismissed without costs. The defendant had counter-claimed. Held, that the plaintiff was entitled to have the counter-claim dismissed with
costs.-The Ruby, L.R. 15 P.D. 139 & 164. (ii.) P. D.--Collision-Fishing Smacks- Both to Blame-Costs.- A fishing
smack ought to have two hands on deck, and where she collides with another smack owing primarily to the wrongful maneuvre of such smack, she will also be held to blame if it appears that had she had the hands on deck they might have taken means to avoid a collision. In a collision case where both ships are held to blame, the plaintiff is entitled to costs if he admits in his statement of claim that he is to
blame.-The General Gordon, 63 L.T. 117. (iv.) P. D.-Collision-Stern-light.-A ship which carries a fixed white light
at the stern does not infringe the regulation which orders a ship which is being overtaken by another to “shew from her stern to such last. mentioned ship a white light or a flare-up light.”—The Stakesby,
L.R. 15 P.D. 166; 63 L.T. 115. (v.) P. D.-Collision-Steamship and Sailing-Ship.-Where a steamsbip
neglects to keep out of the way of a sailing-ship, it is not the duty of the sailing-ship, except under very exceptional circumstances, to take measures to avoid a collision, because any action on her part might
increase the risk of collision.—The Highgate, 62 L.T, 841. (vi.) P. D. — Damages— Repairs-Bankruptcy.—Where in the registrar's
report in a collision action it appears that the claimant claims as part of his damages the cost of repairing his ship, but has not paid the shipwright, and has become insolvent since the repairs were executed, and the registrar allows the item, the Court can do nothing to insure the money being paid over by the claimant to the shipwright, and will not retain the money in the registry until the claimant proves that he has
paid the shipwright.—The Endeavour, 62 L.T. 840. (vii.) P.D.-Damage to Cargo-Charter-party-Excepted Perils—Negligence.
-A provision in a charter-party exempting owners from liability for damage to cargo caused by the “act, neglect, or default of the master or crew in the navigation of the said vessel in the ordinary course of the voyage," does not relieve them from liability for damage caused by the joint negligence of one of the crew and shore engineers employed to repair the ship's machinery. Semble, that negligence on the part of the ship's engineer in connection with such repairs was not " in the navigation of the vessel in the ordinary course of the voyage."--The Accomac, 63 L.T. 118.
(i.) Q. B. D.-Demurrage-Strike-Liability of Consignee.- Cargo wag
shipped under a bill of lading which incorporated a clause in a charter. party fixing a certain nomber of lay days for unloading and allowing other days for demurrage. There was no exception of strikes. By the custom of the port of discharge the unloading was the joint act of the shipowner and the consignee. During the lay days a strike took place among the shipowner's labourers and those of the consignee, and the discharge of cargo was stopped until after the expiration of the Jay days. Held, that the consignee was liable for demarrage, although the shipowner had been unable to do his part in the unloading.
Budgett & Co. v. Binnington & Co., L.R. 25 Q.B.D. 320. (ii.) C. A.-Insurance—Proximate Cause of Loss-Damage Consequent on
Collision.-Cargo was insured against damage" consequent on collision.” The ship met with a collision, and had to put into port for repairs. Some of the cargo insured had to be discharged for the purpose of such repairs, and being perishable was damaged by the handling and delay. Held, that the collision was not the proximate cause of the loss,
and that the insurer was not liable.-Pink v. Fleming, L.R. 25 Q.B.D. 396. (iii.) Q. B. D.-Mortgage of—Articles Passing to Mortgagee.-A mortgage of
a ship passes to the mortgagee under the word "ship” articles neces. sary to the navigation of the ship or the prosecution of the adventure which were on board at the date of the mortgage, and articles subse. quently brought on board in substitution for them. — Coltman v.
Chamberlain, L.R. 25 Q.B.D. 328. (iv.) P. C.-Pilot—Negligence- Harbour Board.-A harbour board was
empowered by statute to license pilots for their district. Pilotage was not compulsory within the district. The harbour master, who was a licensed pilot, was acting as pilot for a ship, being engaged by the owners, when she was lost through his negligence. Held, that the barbour board was not liable.-Shaw, Savill & Albion Co. v. Timaru
Harbour Board, 62 L.T. 913. (v.) P. D.-Salvage—Towage-Action in Personam.—The plaintiff, the
owner of a steam-tag, agreed to tow five barges for the defendant from C. to P. During the towage the tug rendered services of the nature of salvage services to the barges. At the end of the towage two of the barges were delivered to the Government, to whom the defendant had agreed to deliver the barges. The plaintiff brought an action of salvage in personam against the defendant in respect of these two barges, and in rem in respect of the other three. Held, that he was entitled to salvage, and that an action in personam would lie against the defendant.
-Five Steel Barges, L.R. 15 P.D. 142. (vi.) P. D.-Salvage—Inequitable Agreement-Costs.-The C. fell in with
the M. in the Atlantic. The M. was leaking and could not use her engines. The masters of the two ships signed an agreement that the owners of the M. should pay £5,000 to be towed to Halifax. This was more than one-fifth of the total value of the M., her cargo, and freight. The master of the C. would not take less, and the master of the M. believed, with reasonable grounds, that his vessel would be abandoned if he did not sigo. The service was performed. Held, that the agreement was made under compulsion, and could not be enforced, the sum stipulated for being exorbitant. The salvors were awarded £3,000 as a fair remuneration and allowed the costs of the action.—The Mark Lane,
L.R. 15 P.D. 135. (vii.) Q. B. D.—Thamas By-Law- Navigating-Towing Barges.—A by-law
made in pursuance of the Watermen's and Lightermen's Amendment Act, 1859, provides that any person who, when navigating any steamboat
on the Thames between Vauxhall Bridge and the entrance to the Victoria Docks, shall at the same time tow more than six barges exceeding ten tons each attached thereto, shall incur a penalty. X. in charge of a steamboat towed thirty-one such barges into the Victoria Docks from a dolphin situate about 100 yards above the entrance. Held, that he was not navigating a steamboat on the river within the meaning of the by-law, and had not incurred the penalty.—Rolles v. Newell, L.R. 25 Q.B.D. 335; 59 L.J. Q.B. 423.
Slander:(i.) Q. B. D.-Privilege-Words spoken honestly but "carelessly.”—In an
action for slander against a member of a board of guardians by the clerk to the board for defamatory words spoken at a meeting of the board, the jury found “that the words were spoken honestly in the discbarge of a public duty, without malice, but carelessly;" and found a verdict for the plaintiff for 40s. Held, that the occasion was privileged, that the word " carelessly" did not take away the privilege, and that the verdict oaght to be entered for the defendant.-Pittard v. Oliver, 63 L.T. 247.
Solicitor :(ii.) Q. B. D.-Negligence-Action Commenced in Superior Court-County
Court Action.—The plaintiff, the defendants' solicitor, commenced on their behalf an action in the Palatine Court which might have been tried in the County Court. The action was dismissed, and the defendants refused to pay the plaintiff's costs, on the ground that he was guilty of negligence in having commenced the action in the Palatine Court. Held, that the plaintiff had not been guilty of actionable negligence in not advising that the action should be brought in the County Court.–Barker v. Fleetwood Improvement Commissioners, 62 L.T. 831.
Patents, &C., Act, 1883, s. 90.—The A. Company had agreements with
Hanyadi Lazlo.” The A. Company disclaimed, shortly before the hearing of the motion, the use of the words “ Hunyadi" and "Janos," except in combination. Held, that the V. Company were persons aggrieved, but that the grievance being removed, the mark ought not to be expunged; the A. Company to pay the costs.— Re Apollinaris Company's Trade Marks “ Apollinaris » « Friederichshall" and "Hunyadi Janos," 63 L.T. 162.
(i.) H. L.-Prior User—Patents, &c., Act, 1883, s. 73.- Decision of C. A.
(see Vol. 14, p. 130, iv.) reversed.—Eno v. Dunn, L.R. 15 App. Cas. 252 ;
63 L.T. 6. (ii.) Ch. D.-Similarity-Mode of Comparison.-Where an application for
the registration of a trade mark is opposed by the proprietor of an older mark already registered, on the ground of similarity between the old and the new mark, regard must be had to the way in which the new mark will be fairly used in the ordinary course of trade ; and if, when so used, the mark will be likely to produce deception, registration will be refused. An application by F. to register the device of a charging bison to be used on wrappers on tins of mustard, was opposed by C., the owner of a registered device of a bull's head, which was also used on wrappers on similar tins of mustard ; the general style and colouring of the wrappers of both C. and F. and some of the details thereon being in common use in the trade. Held, that F.'s mark, as it would be used, would be calculated to deceive, and that registration must be refused.-In re Farrow's Application, 63 L.T. 233.
See Practice, p. 20, iii. Trade Name :(iii.) Ch. D.-Imitation-Joint Stock Company.-W. E. R. carried on a glass.
roofing business under the name of W. E. R. & Company. His son, J. E. R., having failed in his own business, was taken into his father's business, and entered into an agreement not to carry on any opposition business. The father died, having given his son by will an interest in the business. The son then started business on his own account under the name of J. E. R. & Company. He made an assignment of his business and all his property in favour of his creditors. A company, of which he was the promoter and manager, was registered under the name of J. E. R. & Co., Limited, to carry on business in opposition to the father's business. Held, on the application of the trustees of the father's will, that the son had no right to lend his name to a company, which name, from its similarity to that already attached to an established business, was calculated to mislead the public, and that the company must be restrained from using a name calculated to mislead the publio into a belief that it had succeeded to, or was carrying on the business
of, W. E. R. & Co.-Rendle v. J. Edgcumbe Rendle & Co., 63 L.T. 94. Tramway :(iv.) C. A.–Paving-Road Authority-Reference—Tramways Act, 1870,
85. 33, 60.-A road authority proposed to alter the paving of a road, apon which a tramway had been constructed, by substituting wood for granite pavement. The tramway company objected to the alteration, and claimed to refer the matter as being a difference within sect. 33 of the Tramways Act, 1870, to a referee appointed by the Board of Trade. Held, that the difference was not with respect to any interference or control claimed to be exercised by the road authority "by virtue of the Act or to “any subject or thing regulated by or comprised in the Act” but with respect to a power which belonged to the road authority independently of the Act, and which was preserved by sect. 60, and was, therefore, not within sect. 33.— Bristol Trams and Carriage Co. v. Mayor, &c., of Bristol, L.R. 25 Q.B.D. 427; 59 L.J. Q.B. 441;
63 L.T. 177; 38 W.R. 693. Vendor and Purchaser :(v.) Ch. D.-Specific Performance--Letters–Subsequent Correspondence.-
A. wrote to X. offering to purchase an estate from him. X. accepted the offer by letter. X. then sent to A. a formal contract containing new
terms. A. struck ont the new terms, and after some correspondence declined to go on with the negotiations. Held, that the two letters constituted a contract which X. was entitled to enforce, and that the subsequent negotiations did not affect it.—Bellamy V. Debenham, 63 L.T. 220.
Will: (i.) Ch.D.- Construction—Children-Illegitimate. -A testatrix bequeathed
stock in trust for her niece Martha M. (wife of John M.) for life, re. mainder to her children. Martha M., at the date of the will, had eight children by John M., who were all illegitimate, she having married Johu M. shortly before the date of the will. The testatrix always believed that her niece and her husband had been married before they co-habited. Martha M. was fifty years of age at the date of the will, and had had no child for six years. Held, that the children were not
entitled.-Penrose v. Manning, 63 L.T. 159. (ii.) Ch. D.-Construction-Illegitimate Child.—Testator appointed B.,
describing him as my son-in-law," an executor. He gave legacies to his daughters, describing them as " my daughter M., the wife of the said B.” and “my daughter A., the wife of W.” M. was illegitimate. Held, that she was entitled to share in the residue.- Walsh v. Browne,
62 L.T. 899. (iii.) Ch.D.--Construction—" Leaving Issue"-Annuity. -Gift of an annuity
to A. with a direction that after A.'s death the annuity should, during the existence of a certain lease,“ be payable and paid ” to her children, with a gift over in case A. should die“ without leaving any such child as aforesaid.” A. had one child who died in her lifetime. Held, that "leaving" could not be construed “having had,” in the case of a gift
of an annuity.-James v. Dawson, 63 L.T. 218. (iv.) C. A.-Construction-Implied Gift.—Testator devised houses in trast
to pay the rents to his niece for life for her separate use, and after her death, she leaving no child, he devised one house to A., and the others to B., and he gave his residuary estate to A. and B. equally. The niece died leaving children. Held, that there was no implied gift in favour
of the children.—In re Rawlins, 59 L.J. Ch. 599. (v.) C.A.- Construction - Investment—Public Company. -Decision of Ch. D.
(see Vol. 15, p. 144, ii.) affirmed.-Rickett v. Sharp, 62 L.T. 777. (vi.) Ch. D.-Construction—" Unmarried.”— Bequest of a fund in trust for
the testator's two daughters for their lives, with remainder, as to each share, for their respective children, and if there should be no child for the executors, administrators, and assigns of each of the daughters respectively; but in case of the death of either of the daughters "unmarried and without leaving lawful issue,” her share was bequeathed to the surviving daughters. One of the daughters was a widow over seventy years old, and had had no children. Held, that "
uumarried " meant not under coverture at her death, and that she was not absolutely
entitled to her share.-Salisbury v. Ridley, 62 L.T. 789. (vii.) Ch. D.-Construction - Power of Appointment-Death of Object
" Representatives."—Where a power is given by will to appoint amongst several objects a fund which, in default of appointment, is given to the objects nominatim and not as a class, and all the objects survive the testator, the death of one of them before the donee of the power will not affect the power, which will remain as to the whole. The word “representatives” in a will, in the absence of any context to the contrary, means the executors or administrators of the person represented.-Cumberlege v. Cumberlege-Ware, 63 L.T. 52; 38 W.R. 767.