J.C. 1873 Ballacorkish Silver, Lead, and Copper Mining Co. v. Harrison. Percolation of water into mines to some extent is an almost necessary incident of mining. And if the grant of the surface carries with it a right to be protected from any loss of surface water by this percolation, the owner of the surface would hold the owner of the mines at his mercy, for he would be entitled by injunction to inhibit the working of the mines at all. It is not at variance with this view that the case of Whitehead v. Parks (') was decided, because in that case there was a lease and a distinct grant of the injured springs eo nomine, and the *injury was the act of one who claimed under the [64 lessor, so that the question resolved itself into the meaning and construction of the words used in the lease, and did not depend on the rights to be assigned by the law to persons standing in certain relations of title to one another, the court holding that by the terms of the lease the lessor had so far assured to the lessee the continuance of the springs in question that he could not lawfully, by any act of his own, diminish them. There remains the question of custom. This is a question of fact. It was argued that the custom proved was wide enough to include the damages done to the springs of water, and that damage to the springs was in fact damage done to the surface of the land at or near which the springs were found, or if not, then that the custom was really a custom to compensate for damage generally, and that proof of compensation made for damage to springs was only wanting because that particular form of damage had not previously arisen. Their lordships cannot concur with either contention. The court below has found as the result of the evidence that a custom existed "to compensate for surface damage that may be done to the land," but that "no custom to compensate for damage by interference with rights of water has been proved." No further definition is given of what is intended by "surface damage done to the land," but the words are plainly used in contradistinction to "damage by interference with rights of water," in respect of which it was said no custom was proved. It is therefore impossible, their lordships think, to hold that the court below intended, when speaking of "surface damage," to include damage done to the springs. Nor would the evidence justify such a conclusion. (1) 2 H. & N., 870. 1873 MAT: J.C. Ballacorkish Silver, Lead, and Copper Mining Co. v. Harrison. For there is not a single witness who even alludes to a claim ever having been made in respect of such damages, .still-less acceded to-although it can hardly be the case that mining should have been carried on to any extent in the island without giving rise to damage of this description. Be this as it may, their lordships are of opinion that a 65] custom *to compensate for a species of damage which does not fall within the ordinary definition of legal damage, and which is not ejusdem generis with that of which proof was given, needs for its establishment at least some direct proof of its existence, and ought not to be inferred from the fact of ordinary damage to the surface of the land in the legal sense of the words having been always paid for. In the result, therefore, their lordships will humbly advise Her Majesty, that this appeal should be allowed; that the decree of the 8th of July, 1872, should be varied by omitting so much of the same as declares that in the opinion of the court the defendants are also liable to make compensation to the complainants for the damage caused to the aforesaid lands by the defendants sinking and working mines on the lands of complainants, and thereby interfering with the rights of water as complained of in this bill, and as directs the jury to estimate and assess the amount of damage (if any) done by interference with water; and by declaring that the plaintiffs are not entitled to compensation for such lastmentioned damage. And that the order of the court for an injunction should be reversed as not being justified by any established practice of the courts in the Isle of Man, and contrary to the practice of the courts in England; but that the bond, which appears to have taken the place of the arrested goods, should remain in force, and that the appellants are entitled to their costs. Solicitor for the appellants: Horace Watson. Solicitor for the respondents: Thomas Johnson. [Law Reports, 5 Privy Council Cases, 134.] J.C.,(1) Dec. 6, 7, 10, 1872. Feb. 18; May 2, 3, 30, 1873. *GAUDET, Appellant, and BROWN, Respondent. [134 BROWN, Appellant, and GAUDET, Respondent. GEIPEL and others, Appellants, and CORNFORTH and another, Respondents. CARGO ex "ARGOS." THE "HEWSONS." ON APPEAL FROM THE HIGH COURT OF ADMIRALTY OF ENGLAND (2). Admiralty Jurisdiction of County Courts-The County Courts Admiralty Jurisdiction Amendment Act, 1869 (32 & 33 Vict. c. 51), s. 2-Ship and Shipping-Charterparty -Bill of Lading-Freight, when earned-Duty of Master or Shipowner, where he is unable to land a Cargo. 1. By 32 & 33 Vict. c. 51, s. 2, it is enacted that "Any county court appointed, or to be appointed, to have admiralty jurisdiction, shall have jurisdiction, and all powers and authorities relating thereto, to try and determine the following causes: 1. As to any claim arising out of any agreement made in relation to the use or hire of any ship, or in relation to the carriage of any goods in any ship . . . provided the amount claimed does not exceed £300": Held, that this section gives the County Court jurisdiction in cases of claims arising out of charterparties or other agreements for the use or hire of ships, although the Court of Admiralty may have no original jurisdiction in such cases. 2. Plaintiff's ship with a general cargo sailed from London for Havre with some. petroleum on board. Under the bill of lading the plaintiff was to deliver the petroleum at Havre, and it was to be taken out by the defendant within twenty-four hours after arriving at Havre, or ten guineas a day was to be paid for demurrage. On the ship's arriving at Havre, the authorities of the port made the captain take [135 her away in consequence of the petroleum being on board. Thereupon he went to neighboring ports, but was not allowed to stay there. Returning to Havre, he discharged his general cargo, and no bill of lading having been presented to him, and no application having been made to him for the delivery of the petroleum, he brought it back to London. On the shipowner claiming freight, back-freight, demurrage, and expenses, it was Held, that he was entitled to freight, back-freight, and expenses. Freight is earned by the carriage and arrival of the goods ready to be delivered to the merchant. And although the petroleum could not be landed at Havre, it was in the port a reasonable time, during which the owner might have received it; and the freight was accordingly earned. In a case where no application for delivery is made, the captain may land and warehouse the cargo at the expense of the merchant; and where that is forbidden by the authorities of the port, he is not justified in destroying the cargo; but in the absence of advices he may take it to such a place as in his judgment is most convenient for the merchant, and may charge to the merchant all expenses properly incurred; consequently, here the shipowner was entitled to back-freight and expenses. The demurrage and the expenses incurred in the ineffectual attempt to land at the neigh(1) Present: SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERT P. COLLIER. (2) The MS. notes of the late Mr. Moore, Q.C., have been used in the preparation of this report. 1872-3 Cargo ex " 'Argos." Gaudet v. Brown. J.C. boring ports were not allowed, but were looked on as part of the expenses of the voyage. Simpson v. Blues (1) disapproved of. THE case of Cargo ex Argos involved two questions; first, as to the admiralty jurisdiction of county courts; and, secondly, as to claims by a shipowner for freight, &c., where he had been unable to deliver the goods. The plaintiff, Jules Gaudet, who traded under the name of Gaudet Freres, was, in the month of November, 1870, the owner of the British steamer Argos, and of other steamers which were frequent traders between London and Havre, and other ports in the north of France. The defendant, Walter Horner Brown, was a merchant in London, dealing in petroleum, oils, chemicals, and other articles, trading under the name of Walter H. Brown & Co.; and on the 25th of November he received an order from Messrs. Tuffieré & Prudhon, of Rouen, for 200 barrels of petroleum, to be delivered free on board, in London, and to be sent to Havre as soon as possible. In consequence of this the defendant, on the same day, sent his clerk to the plaintiff's London brokers (Messrs. Rowell & Racine), to inquire the freight of petroleum from 136] London to Havre, and the *probable date of sailing of the next steamer, and was informed that the freight would be 15s. to 20s. per ton, and that the steamer would sail about the end of the week. The defendant thereupon arranged to send 147 barrels of petroleum by the steamer, and the same was shipped on board the Argos on the 5th of December, 1870, and the captain gave the defendant the following bill of lading: "Shipped in good order, and well conditioned, by W. Horner, in and upon the good steamship called the Argos, whereof is master for the present voyage, Richardson, and now riding at anchor in the river, and bound for Havre, 147 barrels of petroleum. "The goods to be taken out within twenty-four hours after arrival, or Cwts. qrs. lbs. pay £10 10s. a day demurrage . . 421 0 9 Being marked and numbered as in the margin, and are to be delivered in the like good order, and well-conditioned, at the aforesaid port of Havre, the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, machinery, boilers, steam and steam navigation, of whatever nature or kind soever, excepted, unto order or to their assigns, on paying freight for the said (1) Law Rep., 7 C. P., 290. goods at the rate of 20s. and 15 per cent. primage per ton gross, with primage and average accustomed. In witness whereof the master or purser of the said ship hath affirmed to two bills of lading all of this tenor and date, the one of which bills being accomplished the others to stand void. "Dated in London, 30th November, 1870. "Weight and contents unknown. Not accountable for leakage. And in the margin was: "Freight "W. J. Richardson." "Washington, *"All goods are subject to a landing charge of 5 per [137 cent. on the amount of freight and primage payable au change de f. 25-40." The bill of lading was by direction of the defendant made out in the name of W. Horner, his first two names. On the 6th of December, 1870, the defendant applied to the plaintiff's brokers for the name of the ship's broker at Havre, and was informed it was M. Genestal, Rue d'Orleans, Havre. Defendant thereupon wrote him the following letter, which was duly received by Genestal, but of which the plaintiff had no notice: "Monsieur H. Genestal, "73 Rue d'Orleans, "Havre. "11 Billiter Square, "We beg to inform you that we have shipped upon the steamship Argos, Washington, 147 barrels of spirit of petroleum, 21,392 kilogrammes, to order. These spirits are to be sent to Messrs. Tuffieré & Prudhon, at Rouen, and you must not deliver them to any person, unless they present the regular bill of lading indorsed by us. "The freight and other expenses are to be charged on the goods. "Accept, Monsieur, our salutations. "W. H. Brown & Co." |