[1861.] DUTTON V. POWLES. to one Kellick, who was then the agent employed by the plaintiffs at Liverpool, to make out such consular manifest in respect of the goods shipped upon The Panuco: But the defendant, well knowing the premises, and before the said ship sailed from Liverpool on the voyage mentioned in the said charter party, negligently, improperly and carelessly only handed over to the said Kellick, then being the agent employed at Liverpool to make out such consular manifest in respect of the goods shipped on board The Panuco, copies of six out of the eight bills of lading as and for the whole of the bills of lading applicable or relating to the goods, and no other bills of lading or copies of bills of lading whatsoever; whereby, and by reason of such negligence, improper conduct and carelessness, the said Kellick was led to believe that the said copies of the bills of lading so handed to him were copies of all the bills of lading applicable and relating to the said cargo, and was induced to make out an incomplete and inaccurate consular manifest, and had no means of making out a complete and accurate consular manifest in respect of the goods shipped on board The Panuco, and whereby in fact an incomplete and inaccurate consular manifest in respect of the goods was made out, containing only an account and description of part of the goods mentioned in the six bills of lading, of which copies were furnished by the defendant, and not containing an account or description of a certain number of bales or packages then shipped on board the said vessel, to wit, fourteen bales or packages, not mentioned in the six bills of lading, but mentioned in the two other bills of lading of which the defendant did not furnish the originals or copies to the said Kellick. The declaration then averred that, after the making out of such consular manifest, the vessel sailed on the voyage with the goods on board, and arrived at Puerto Cabello, in South America; and there, by reason of the said negligence, improper conduct and carelessness of the defendant in that behalf, and of the consular manifest being imperfect, inaccurate and incomplete, certain bales and packages, to wit, the said fourteen bales not mentioned or entered in the manifest, were seized and confiscated by the proper custom house authorities at that place, according to the custom house laws of that place then in force, on account of their not being specified or entered in the manifest, and the plaintiffs were unable to obtain a redelivery to them of the goods so seized and confiscated; and by reason of the premises, the plaintiffs' vessel was detained a long time by legal authority abroad, and the plaintiffs were put to great expenses in respect to the detention of the vessel at Puerto Cabello, and in respect of the payments to and keep of the master and crew of the vessel during such detention, and became liable to, and were obliged to pay there, double duties in respect of and upon the goods so seized and confiscated, amounting altogether to a large sum, to wit, 2007.; and whereby also, when the ship afterwards proceeded from Puerto Cabello on her voyage in the charter party mentioned, and arrived at Curaçoa, the plaintiff's were unable to deliver there the goods, to wit, the fourteen bales or packages to the consignees thereof at that place, though required so to do, and were forced and obliged to pay to the consignees the value of the goods, amounting to a large sum, to wit, 473/. 15s. 10d., and incurred other divers expenses, amounting, to wit, N 2 [1861.] DUTTON V. POWLES. [1861.] DUTTON V. POWLES. to 7007. in respect of the same, and in respect of the detention of the vessel at Curaçoa, and in respect of payments to and the keep of the master and crew of the said vessel during such detention and otherwise. The defendant pleaded not guilty, and other pleas traversing some of the averments in the declaration; upon which the plaintiffs took issue. There was also a demurrer to the declaration, and joinder therein. The demurrer was argued in Hilary Term, 1861, January 22nd and 25th. Mellish (with him Edward James), for the defendant. -Actions for carelessness, except where direct damage has accrued, are founded on breach of duty. But in this case the alleged duty in the defendant is not imposed by any clauses in the charter party, nor does it arise from any facts stated in the declaration. The real cause of action is the handing copies of six bills of lading as and for eight which had been delivered to the defendant, that is, representing that the six were the eight; but a careless representation without fraud or warranty is not a cause of action. In Boorman v. Brown (a) the question was, whether there was a duty in the defendant, as the broker employed by the plaintiffs to sell oil, not to deliver it without the price being paid to him according to the contract which he had made for the plaintiffs with the purchaser; and the Court of Exchequer Chamber, reversing the judgment of this Court, held that the duty arose by necessary inference from the terms of the contract between the plaintiffs and the defendant, as set (a) 3 Q. B. 511; in Exch. Ch. Id. 516; in H. L., 11 C. & F. 1. forth in the declaration; and the judgment of the Exchequer Chamber was affirmed in the House of Lords. [Crompton J. In that case there was direct privity between the plaintiffs and the defendant.] In this case no contract, undertaking, or retainer imposing the alleged duty is alleged in the declaration. There is no right of action in the plaintiffs on the ground of bailment, for the delivery of the documents to the defendant was by the shippers, not by the plaintiffs. Milward (with him H. T. Holland), contrà.-This was not an ordinary charter party, by which a ship is chartered by a merchant to put his goods on board, but an agreement that the charterers might put up the ship as a general ship. In such a case the goods are loaded for the benefit of the charterer; and he deals with the actual shippers of the goods, who pay him, and he pays the shipowner a lump sum for the voyage: in short it is like a demise of the ship. There is privity between the plaintiffs and the defendant: he is interested, together with the plaintiffs, in the performance of the voyage. Schuster v. McKellar (a) shews the position which the captain of a ship under such circumstances occupies in relation to the goods: the last placitum in the marginal note is, "Semble: that under such a charter party the shipowner, though perhaps not liable on the contracts made for carriage of goods in the ship as a general ship, is still liable for the misdelivery of the goods by the captain, who for many purposes remains his servant. Sed quære." The plaintiffs, as shipowners, were bound to deliver the goods to the consignees at the foreign (a) 7 E. & B. 704. [1861.] DUTTON V. POWLES. [1861.] DUTTON V. POWLES, port, according to the documents; and the consular manifest was essential to enable the plaintiffs to perform their contract. Also the consular manifest should describe all the goods on board, as any such not described are liable to confiscation; and it is part of the duty of the charterer to furnish the materials from which the consular manifest is to be made out. 1 First. Suppose the allegation of duty were not in the declaration, the alleged duty would arise from the facts stated in it. It is averred that the shippers of the cargo made out copies of the eight bills of lading "for the captain," and delivered them to the defendant "for the said captain," which means that they were to be handed to the shipowner. [Crompton J. It means that they delivered them to the defendant for the ship. Hill J. The shippers should have given them to the captain.] They had nothing to do with the captain: it is stipulated that he should attend at the broker's office, that is, the broker of the defendant, twice each day, for the purpose of signing the bills of lading. Then it is averred that the plaintiffs could not obtain copies of the bills of lading except from the defendant, which shews that the defendant was the only person who could enable the plaintiffs to perform their contract with the owners of the goods. [Hill J. The custom in Liverpool for the shippers of goods to make out a correct copy of each bill of lading did not impose any duty as between the plaintiffs and the defendant.] The plaintiffs would have no communication with the shippers, nor any right to interfere with them as to the goods put on board. The captain had no right to insist on the shippers giving him bills of lading; |