Thompson and Another v Castellain and Others
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1862 |
| Date | 21 November 1862 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 41
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
S. C. 32 L. J. C. P. 79; 7 L. T. 424; 11 W. R. 147. Distinguished, Hingston v. Wendt, 1876, 1 Q. B. D. 373. Applied, The Solway Prince, [1896] P. 127.
[105] castellain and others /ò. thompson and another. thompson and another ò. castellain and others. Nov. 21st, 186'2. [S. C. 32 L. J. C. P, 79; 7 L. T. 424; 11 W. R. 147. Distinguished, Hi-ngxkm v. Wtiwltt 1876, 1 (J. B. D. 37:$. Applied, The tiolway Priwxt, [1896] P. 127.J T. & Co., the owners of flats or barges at Liverpool, were employed by H. & Co. to carry certain copper-ore to one L., the owner of crushing-mills at Birkeuhead, who, C. P. XXI.-2* 42 CASTELLAIN V.THOMPSON 13 C. B. (N. 3.) 106. in consideration of being employed to crush the ore, agreed to indemnify H. & Co. against all risk in the transit. Whilst ou its way to Birkenhead, the barge with the ore on board foundered in the river. T. & Co. thereupon gave notice of the loss to H. & Co., and requested to be employed to raise the cargo, to which a clerk in the employ of H. & Co. replied,-" We have nothing to do with it: you had ;better see Mr. L. He has the management of it." T. Sc Co. then went to L,, who said,-" Oh : I am all right. I am insured with M.;" and, in answer to a suggestion of T. & Co. as to the necessity for prompt action, he added: " You had better prepare for getting it up ; but you must go to M. for orders." T. & Co. then went to M., who said : "You had better go on with it, and do the best you can for us." T. & Co. thereupon proceeded with the work, and, after incurring great labour and expense, succeeded in recovering the ore.-H. & Co. afterwards tendered the sum agreed to be paid for the carriage of the ore to Birkeuhead, and demanded it: but T. & Co. refused to part with it, claiming a lien upon it for the expenses incurred in raising it from the bottom of the river:-Held, that there was no contract for the work done, as between T. & Co. and H. & Co., in respect of which such claim of lien could be sustained.-And held, that T. & Co. could not under the circumstances set up a claim for either general average or for salvage.-Qucere, under what circumstances a man is entitled to sue or to assent a lien for work bestowed upon a chattel, whereby its value is increased 1 This was a special case stated for the opinion of this court, without pleadings, pursuant to a. judge's order under the Common Law Procedure Act, 1852 : - 1. The first of these actions is brought by the plaintiffs therein against the defendants for the recovery of damages for the detention of a cargo of copper-ore. 2. The second action is brought by the plaintiffs against the defendants for the reeovery of tie sum of 10751. 3s. 2d., for work and labour and expenses, under the circumstances hereinafter mentioned. 3. Alfred Castellain, Frederick Huth, Louis Gruning, John Frederick Griming, Charles Frederick Huth, Daniel Meinertzhagen, Henry Huth, and Louis Huth, have for several years carried ou and do still carry on the business of merchants in co-partnership together under the firm of Frederick Huth & Co.; and John Thompson arid George Paull have for several years carried on and do still carry on business under the firm of Thompson & Co., at Liverpool, and are the owners of flats and barges; and part of their business consists in conveying on the said barges and flats, foL1 reward [106] in that behalf, the goods and merchandize of other persons from dock to dock in the port of Liverpool and Birkenhead, or to adjacent places on the river Mersey, upon such terms as they may from time to time agree upon when so employed. 4. In the month of July, 1861, Huth & Co. were the owners of a large quantity of copper-ore which had then arrived from New York in a vessel called the "Bridge- water "; and the said vessel, with the said copper-ore on board of her, w;is afterwards moored and lay at anchor close to the Harrington Quay, in the port of Liverpool. Whilst the said vessel with the said copper-ore on board of her was lying near the Harrington Dock Quay as aforesaid, Messrs. Huth & Co. sent a message to Thompson & Co,, requesting thorn to send a flat alongside the said vessel " Bridgewater " to receive therefrom tht said copper-ore, and to convey the same to Birkenhead, and there deljver the sa^ae to one Lewis, who was the proprietor of certain crushing-mills at Biijkenhead, a£d who, being desirous of crushing the said ore, had agreed, upon consideration of Ijeiug employed to do so, to indemnify Messrs. Huth & Co. against all rial to the aaid ore in the transit from Liverpool to Birkenhead. The exact relation of Lewis to Messrs. Huth & Co., and to the said owners, was unknown to the said Messrs. Thompson & Co. until long after the several transactions in the case mentioned. 5. Messrs. Thompson & Co. assented to the said request; but there was no written agreement come to as to such conveyance of the copper-ore to Birkenhead. It was, however, understood and agreed that Messrs. Thompson & Co. should convey the said copper-ore at the same rate as that at which they had previously conveyed ore for Messrs. Huth & Co., viz. at Is. per ton. 6. In compliance with the aforesaid request, Messrs. Thompson & Co. sent a flat or barge called the "Venus" to the said vessel the "Bridgewater"; and, having 13 C. *. (H. 3.) 107. OASTELLAIN V. THOMPSON 43 re-[lQ7]-ceived the said copper-ore upon the "Venus," proceeded to. convey the same on the " Venus " to Birkenhead. 7. Whilst the " Venus" was proceeding as aforesaid to Birkenhead with the said cargo of copper-ore on board of her, she foundered, by reason of foul weather, and without ujiy fault of Messrs. Thompson & Co., and went, together with her said cargo, to the bottom of the river Mersey on the night of the 22nd of July, 1N61. 8. On the 2.3rd of July, 186L, Mr. Paull (Thompson's partner) called at the office of Messrs Huth & Co., and told one of their clerks that the " Venus " and her cargo of copper-ore had sunk in the river Mersey, and requested to be employed for the purpose of raising the said cargo; whereupon the said clerk, being a person having authority to anawer the inquiry, replied, -" We have nothing to do with it. You had better see Mr. Lewis. He has the management of it." Thereupon 1'aull waited upon the said Mr. Lewis, and made the same .statement to hint; and Mr. Lewis said to him: "Oh; I am all right. I am insured with Langton for 65001." The said Mr. Paull said : " We ought to go on with the work without delay, if we are to do it: ; and Mr. Lewis replied : ò' You had better prepare for getting it up; but you must go to Mr. Langton for orders." Paull having accordingly called upon the said Mr. Langton (who is an insurance-broker at Liverpool), made the same statement and request to him; and, having also told him that his firm had groat experience in such jobs, received the following answer from Mr. Langton, that is to say, "Well: yon had better go on with it, and do the best you can for us : " whereupon Messrs. Thompson & Co. proceeded to attempt to raise the said flat and copper-ore, and, after the lapse of some weeks, succeeded in so doing, and conveyed the said copper-ore afterwards to Birkenhead. Alter the said copper-ore had been so [108] raised and conveyed to Birkenhead aforesaid, Messrs. Huth & Co, tendered to Messrs. Thomp son & Co. the amount due to the latter for the carriage of the said ore to I3irkenhead, and then demanded the said ore from Messrs. Thompson & Co. But Messrs. Thomp son & Co. refused to give up to Messrs. Hnth & Co. the possession of the said copper- ore, and claimed a lien on it for the expenses incurred by them, and for money due to them, for work done and materials provided by them in and about raising the said copper-ore, and detained the copper-ore from Messrs. Huth & Co. for a long time under such alleged claim of lien. 9. Messrs. Thompson & Co. did not ever give any notice according to the 45()th section of the Merchant Shipping Act, 1584 (17 & LS Viet. c. 104), to a receiver of wrecks, of their having found or taken possession of the " Venus" and her cargo of...
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The Plaintiff Brought Error on This Judgment, and, The Defendant Having Joined
...ed,] At all events, the action can only be maintained for the sum for which the salvor has a lien on the hip; Castellain v. Thompson (13 C. B. N. S. 105). Third. If there was a constructive total loss the notice of abandonment was too late: it should be given in reasonable time, 2 Avn. Ins.......
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