REVIEW OF CURRENT ENGLISH CASES. SHIP CHARTER-PARTY-BILL OF LADING CONCLUSIVE EVIDENCE OF QUANTITY DELIVERED AS STATED THEREIN-ESTOPPEL. Crossfield v. Kyle Shipping Co. (1916) 2 K.B. 885. In this case the plaintiffs were the holders of a bill of lading of timber, and sued the shipowners for shortage in delivery. The charterparty of the vessel by which the timber was shipped provided that the captain should sign bills of lading as per surveyors' return for the cargo, and that the bills of lading should be conclusive evidence of the quantity delivered to the ship as stated therein. The cargo was brought to the ship in lighters and owing to rough weather some of it was washed overboard from the lighters and lost. The captain's agent signed bills of lading nevertheless for the full quantity, as per surveyors' return. All the timber actually placed on board was delivered to the plaintiffs as indorsees of, the bill of lading: and the question therefore was whether or not the defendants, in the circumstances, were liable for the shortage; and Bailhache, J., who tried the action, held that they were estopped by the bill of lading from denying that the full amount mentioned in the bill of lading had been received. ADMIRALTY SHIP FORFEITURE BRITISH COMPANY CONTROLLED IN GERMANY-PRINCIPAL PLACE OF BUSINESS OF COMPANY BRITISH SHAREHOLDERS IN GERMAN CONTROLLED COMPANY-MERCHANT SHIPPING ACT 1906 (6 EDW. 7 c. 48) s. 51. The Polzeath (1916) P. 241. This was a proceeding under the Merchant Shipping Act 1906 to determine whether a ship owned by a British Company, which had its principal place of business in Hamburg, and whose proceedings and business were controlled in Germany by a naturalized British subject of German origin who held the majority of the shares, was entitled to be registered as a British ship. Deane, J., held (1916) P. 117 that it was not, and that it was forfeited to the Crown, and the Court of Appeal (Eady, Phillimore, and Bankes, L.JJ.) affirmed his decision. The Court of Appeal rejected the claim of the British shareholders to relief, and held that their only resource was to appeal to the merciful consideration of the Crown. SHIP SEAWORTHINESS SHIP FIT TO CARRY CARGO-IMPROPER STOWAGE-BILL OF LADING-EXCEPTED PERILS. The Thorsa (1916) P. 257. This was an action by the consignees of a quantity of chocolate, for damages arising from its having been stowed in proximity to a number of gorgonzola cheeses whereby it had become tainted. The defendants relied on an exception in the bill of lading from liability for negligent stowage. The plaintiffs replied that the defendants could not rely on the exception because the ship was unseaworthy for carrying the chocolate, in that it was carried where it was liable to become tainted. Deane, J., who tried the action, held on the evidence that the ship was not unseaworthy, and that the damage in question was caused by negligent stowage, which was within the exception, and with this conclusion the Court of Appeal (Eady, Phillimore, and Bankes, L.JJ.) concurred. ATION PRIZE COURT-NEUTRAL VESSEL-CONTRABAND CARGO-DESTINNEUTRAL PORT-ULTIMATE ENEMY DESTINATION CONDEMNATION OF VESSEL-ORDER IN COUNCIL ADOPTING ART. 40 OF DECLARATION OF LONDON. The Hakan (1916) P. 266. This was a proceeding before the Prize Court for the condemnation of two neutral vessels captured with contraband cargoes ultimately destined for the enemy. Evans, P.P.D., held that it is now part of the law of nations that a vessel carrying contraband may be condemned if the contraband reckoned either by value, weight, or volume of freight, forms more than half of the cargo. He also held that where such a proportion of cargo is being carried it is not necessary to prove knowledge on the part of the owner or master that the cargo is intended for the enemy. He also held that the Order in Council adopting Art. 40 of the Declaration of London, which is a limitation of the rights of the Crown, is valid, and, under that Article, he held that a neutral vessel carrying a full cargo of conditional contraband to an enemy base of supply was subject to condemnation, and that the like penalty was incurred by a neutral vessel carrying to a neutral port a full cargo of contraband ultimately destined for the enemy. PRIZE COURT SHIP REGISTERED AS BRITISH SHIP-SEIZURE AS PRIZE SHIP OWNED BY BRITISH COMPANY CONTROLLED BY ENEMY-MERCHANT SHIPPING ACT, 1894 (57-58 Vict. c. 60) s. 1. The St. Tudno (1916) P. 291. The vessel in question in this case was used as a tender for the vessels of the Hamburg-Amerika Line coming to Southampton, and was nominally owned by a British company. The Hamburg-Amerika Line appointed the directors, and paid for their qualification shares, took from them an agreement to conform to their directions, received the profits, and in the person of its nominees owned the entire share capital of the company. Evans, P.P.D., held that the real owners of the vessel were the Hamburg Amerika Line, and that the vessel was enemy property, and as such liable to be treated as any other enemy ship in port at the outbreak of hostilities; and an order for its detention was made. PRIZE COURT-PRIZE BOUNTY-DESTRUCTION OF ENEMY WARSHIP-NAVAL PRIZE ACT, 1864 (27-28 VICT. c. 25), s. 42ORDER IN COUNCIL, MAR. 2, 1915. The Sydney (1916) P. 300. By an Order in Council it was provided in pursuance of the Naval Prize Act, 1864, s. 42, that a bounty should be paid to the officers and crew of H.M.A S. Sydney for the destruction of the Emden, to be calculated at the rate of £5 for every person on board the Emden at the beginning of the engagement. It appeared that part of the Emden's crew was on board a captured British ship which was being compulsorily used by the Emden as a collier, and the question was whether these members of the crew were to be included in the computation. Evans, P.P.D., held that all who were active members of the Emden's crew should be included, though some in the discharge of their duty might not actually be on board. PARTNERSHIP-INSOLVENCY-DEATH OF PARTNER-WILL-TRUST TO PAY DEBTS-SURVIVING PARTNER RESIDUARY LEGATEE- Pearce v. Bulteel (1916) 2 Ch. 544. The facts in this case were somewhat complicated, but all that appears to be material for the present note may be briefly stated thus. A banking partnership existed between three persons, A. B. and C. A. was the owner of all the capital. Part of the capital consisted of real estate. The partnership deed provided that on the death of a partner the surviving partners might purchase the deceased's net share in the business, after providing for the debts A. died leaving a will, whereby, after providing for payment of his debts, he devised his residue to C., and appointed B. and C. his executors. B. and C. elected to purchase A.'s interest in the partnership, and by deed, reciting that A.'s debts were paid, as executors of A. conveyed the lands above referred to C., the residuary legatee, who mortgaged the land to the defendant to raise money for carrying on the business, which, at the time of A.'s death, was in fact insolvent. The firm subsequently became bankrupt, and the trustee in bankruptcy attacked the mortgage to the defendant as being void under the statute of 13 Elizabeth, c. 5 (R.S.O. c. 134, s. 5), but Neville, J., held that the defendants were holders of the legal estate as purchasers for value without notice, and therefore were not bound by any antecedent equities of creditors of the bank, and the mortgage was not impeachable under the statute because it was not made for the purpose of defeating creditors, but with the intention of carrying on the business and paying them by that means. INSURANCE (LIFE)-DEPOSIT SALE OF BUSINESS BY COMPANY DISSOLUTION OF VENDOR COMPANY-DEPOSIT-ASSURANCE In re City of Glasgow Life Assurance Co. (1916) 2 Ch. 557. in this case a life assurance company had sold its business to another company and had been dissolved, and the question Sargant, J., had to determine was as to the proper disposition of the government deposit made by the vendor company. It appeared that there were outstanding claims in the nature of paid-up policies of the vendor company, the holders of which had not novated their claims with the vendee company. In these circumstances Sargant, J., held that the proper order to be made was to direct the deposit to be carried to a separate account "In respect of the life assurance of the" vendor company "now dissolved. WILL-CONSTRUCTION-ANNUITY PAYABLE OUT OF INCOME OF SETTLED SHARE-RIGHT OF TRUSTEES TO RETAIN SURPLUS INCOME TO MEET POSSIBLE DEFICIENCY IN FUTURE. In re Platt, Sykes v. Dawson (1916) 2 Ch 563. This was a case of construction of a will whereby the testator bequeathed a sixth share of his residuary estate to trustees upon trust out of the income to pay to his widow an annuity for life of £1,000, and "subject thereto to permit the same share and the income thereof" to devolve under trusts therein declared or referred to, in favour of the testator's son and daughter and their issue respec tively. A summary application was made by the trustees for the opinion of the Court as to whether they were entitled to retain the surplus in question, to provide for a possible deficiency in future years; a possible deficiency being immediately possible. Sargant, J., held that, although by the terms of the gift, the annuity was not dependent on the amount of the income, but was cumulative so that the deficiencies in any one year would have to be made good out of the surplus of any succeeding year, that did not entitle the trustees to retain surplus income from past years to meet possible deficiencies in future years. WILL CONSTRUCTION-TRUST FOR MAINTENANCE OF DAUGHTER -ACCUMULATION OF SURPLUS INCOME FOR TWENTY-ONE YEARS SURPLUS INCOME AFTER TWENTY-ONE YEARS TO FALL INTO RESIDUE-THELLUSSON ACT (39-40 GEO. III. c. 98)-(R.S.O. c. 110). In re Hawkins, White v. White (1916) 2 Ch. 570. By the will in question in this case the testator bequeathed two sums of £10,000 to trustees on trust out of the income to provide for the maintenance of his two daughters, and he directed the surplus income of each sum to be accumulated for a period of twenty-one years after his death, and at the end of that period the accumulations were to fall into the residue as capital and be disposed of as such. This was a summary application to determine what was the legal effect of this disposition, and Sargant, J., held that the direction that the surplus should fall into the residue as capital was an attempt to accumulate beyond the period permitted, and therefore that this disposition was null and void under the Thellusson Act (see R.S.O. c. 110, s. 2), and the will must be read as if it contained no such disposition, and that being so the surplus income after the expiration of twenty-one years, and also the income of the accumulations made during the term, were not undisposed of, but were properly payable to the tenants for life of the residuary estate. |
