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ThTfrUiahPetroleumCo., Lid., v.The
negligence. This case, however, is distinguished from The Burling-ton (supra) by the fact that in the case of a ship in ColomboHarbour the- Crown is exempted from all liability in respect of“ any loss or damage occasioned by the fault or incapacity of anypilot acting in charge of that ship ” in the harbour (see section 11of the Pilots Ordinance, No. 4. of 1899). There appears to be noquestion that in Colombo harbour a pilot remains in charge of theship until she is berthed.
Mr. Elliott, howevet, raises .the contention that section 11, ifrightly understood, is not capable of this interpretation. He pointsout that the section is based upon a provision in English legislation,how represented by section 638 of the Merchant Shipping Act, 1894.The object, of that section is to. exempt the shipowner, while his.ship is under compulsory pilotage, horn any damage which may becaused through the negligence of the pilot, either to any other shipwith which the piloted ship may come into collision, or to any goodson board the piloted ship in respect of which a* shipowner would beotherwise liable to the owner of the goods. He maintains thatwhen our own legislature associated the Governor, with the ship-owner for this purpose, the exemption was intended to apply onlywithin the same limits, that is .to say, that the Governor was onlyto be exempted in respect of any damage done to other intereststhan the ship-itself, and that he was not exempted when the negli-gence of the pilot caused damage to the ship which the pilot wasconducting. 1 am not able to import any such limitation into thesection. I think that the. section was* intended to exempt theGovernment from liability altogether. The words themselves donot imply any such limitation, nor do I think such limitation couldbe implied from the nature of the case. Certainly the limitation ofthe pilot's own personal liability in section 10 is not subject to anysuch qualification, and both the exemption of the Government andthe limitation of the pilot's liability seem) to me on the same footing.It is not necessary to discuss another point in* this connectionnamely,' whether the section is intended only to exempt the Governorfor the time being from any personal liability. It is admitted that
in this context the “Governor" means the “Government."
Note in.this connection the Interpretation Ordinance, No. 21 of 1901,section 3 (5). If then an action in tort would lie against the Govern-ment! such an action would be excluded in the present instance inso far as it was based on the negligence of Pilot SorCnsen.
The position is the same if we regard' the case from point of viewof contract. Assuming that there was . a contractual relationshipbetween the Government and the shipowners, then (but- for thesame statutory exemption) there would be most reasonably annexedto the contract an implied warranty that the berth in which the shipwould be placed would be in fact safe for that ship, subject to thisqualification that the Government would not be responsible, for any
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.hidden danger which could not be discovered by reasonable care.One must be on one’s guard here against a confusion in using theword “ berth. " The word “ berth " here may have two meanings :It may mean what is conventionally known as “ berth 21 ", that isto say, the space between and within reasonable range of thetwo buoys Nos. 33 and 43, or it may mean the actual position inwhich the ship was placed by Pilot Sorensen. I think that in the^circumstances supposed, the implied warrantly must extent to“ berth " in the latter meaning, that is to say, that the Governmentwould impliedly warrant that the ship was in fact safely placedwhere she was moored. Bui in either case the same exemptionapplies. If she was not safely placed this was due to the negligenceof Pilot Sorensen, and the Government is not responsible for .thatnegligence, whether K is sought to fix it with responsibility on thebasis of tort or on the basis' of contract. The supposed impliedwarranty is in fact inconsistent with the statutory exemption.I cannot conceive any distinction between a warranty that the shipshall be safely berthed, and a warranty that when she is berthedthe berth in which she is placed shall be safe. It seems to me thatin whichever way the supposed warranty is phrased, the statutoryexemption is inconsistent with it.
But the action might be considered from a wider point of view,independent of the negligence of any particular pilot. It appearsto be, on the face' of it, a grave* circumstance that an oil tank steamerberthed by a Government pilot in a recognized berth in the Colomboharbour sustained serious injuries through grounding in that berthupon a dangerous rock, within the very ambit of the berth itself,the existence of which was unknown to the harbour authority.Nevertheless, striking though this circumstance appears, it must besubmitted to a detailed examination. The questions which ariseappear to be these : (1) Was the ignorance of* the existence of thisrock negligent ignorance on the part of the harbour authority ?and (2) did the damage to the ship occur in consequence of thisignorance ?
In considering the obligation of the Ceylon Government towardsthe public with respect to rocks in the Colombo harbour, it isnecessary to bear in mind the nature of that harbour. Colombo is aharbour where ships are intended to ride always afloat. It is notcontemplated that they will ever touch the bottom except byaccident. Moreover, it is not a place in which ships can any longernavigate at the will of their Captains. From the time when theyenter Colombo harbour t:ll Anytime when they leave it, in all theirmovements, they are in charge of a pilot. IB is not necessary forthe Captains of these ships to know either the depth of the soundingsin the harbour, or the existence of such rocks as may exist, or thenature of the bottom of the harbour. Such information as may bepublished in Admiralty Charts on these matters is not intended
. 26/6
The BritishPetroleumCo*, Ltdv.The
( 22 )
The BritishPetroleumCo., Ltd,, v.The
for the use of these navigating officers. The persons whom theGovernment is under an obligation to keep informed are their ownpilots. They are the persons who berth and unberth all steamers,and it is certainly in the highest degree essential that they should befurnished with all information necessary for the discharge oi theirfunction. This is, undoubtedly, a duty which lies on the Government.’
Further, the existence of a rock on the bottom of Colombo harbouris not necessarily a breach of duty by the Government. Whetherit is such a breach of duty depends on the place where it is situatedand on the depth at which it lies. A rock situated in a channel inthe harbour, a few feet below the surface, so that it might constitutea standing danger to navigation, is obviously m a different positionfrom a rock situated elsewhere at a depth beyond the draught of •any ordinary steamer. The rock in the present instance lies some25 feet below the surface. Whether the existence of such a rock isdangerous to any steamer moored in the berth must depend partlyon the draught of that steamer and partly upon the position inwhich she is berthed.
Let us consider then what was the information with which theGovernment in fact supplied its pilots for the purpose of the berthingof steamers. It exhibited at the Pilot’s House periodically correctedcharts. On these charts it displayed a series of contourlines showing*depths of 36, 33, and 80 feet. Outside these contour lines it showedsoundings taken at regular intervals of 200 feet horizontally and 50feet vertically. On these charts, the berths were conspicuouslymarked by means of numbered buoys. Any pilot looking at thischart would see that many of these berths lay wholly within the33-foot contour line, that others lay within the 30-foot contour line,,while others, again (like the berth now in question), lay partlywithin the 30-foot contour line and partly outside it, and that finallyother berths lay outside it altogether. Any pilot who had studiedthis chart and was berthing a ship in this berth would know thatunless he took particular care in the way he placed it, part of the shipmight lie within the contour line and part of it outside it. Todetermine whether it might safely so lie he must have regard to thesoundings exhibited on the chart. This contour line and theregularly marked soundings outside it were in effect a warning tothe pilot that, in berthing any ship of any considerable draught inthis berth, he must have special regard to the soundings shown.The soundings in the region of the lower buoy of this berth, buoyNo. 43, were in themselves a warning. They showed across theberth a depth varying from 23 feet 3 inches and 29 feet. A pilotwould see that the depth of the bottom under this berth at that endmight be anything from 23 to 29 feet, and that it would be unsafefor him to assume any greater depth than 23 feet. With this warn-ing before him it would clearly be an act of gross negligence for apilot to place a ship, which on departure would require a draught
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of 27 feet 9 inches, in the position in which we have found thess. British Ensign " was placed.
Was the harbour authority bound to provide its pilots with anyfurther information ? No doubt a rock marked in the actual berthamid a region 9f shallow soundings would bring home to the mindof the pilot in a very striking manner the dangers he would incur ifbe disregarded these soundings. So far as the berthing of such asteamer is concerned, I think that the Government had supplied itspilots with all necessary information. Its ignorance of the existenceof the rock was not negligent ignorance. The ship did not groundupon the rock because of such ignorance, but because of-the negligenceof the pilot in disregarding the warnings of the soundings.
But a distinction must be drawn. The whole duty of the pilotas not limited to berthing the ships; he has also to unberth them.There is always the possibility that by accident or miscalculation, aship may go aground. If it does go aground, or, at any rate, if it goesagrdtad through the original mistake of a pilot, and if it is foundaground when it requires to leave the harbour, it is the business ofthe pilot sent to unberth the ship to get her off. I do not see thatsuch a probability can prudently be left out of account. It isessential that any one undertaking such a task should know thenature of the bottom on which the 3hip is lying. If a pilot knowsthat a ship is resting on rock, his measures might be very differentfrom what they would be if he knew it was resting on mud. I donot think that it is the business of the Government to supply a flatbottom for ships to lie on, but I do think it was its duty to undertakesuch a general examination of the bottom as would disclose anyrocky protuberances which a pilot would take into account in takingmeasures to float a ship which had gone aground, and I think it wasthe duty of the Government to bring any such circumstances to thenotice of the pilots.
I have already expressed the opinion that the substantial damagecaused to the ship was caused through the ill-advised measures ofPilots Hamilton and Green, and that these measures were not dueto any negligence on their part, but to the ignorance in which theywere left by the harbour authority. If, therefore, an action liesagainst the Crown in respect of a tort, the Government would, Ithink, be liable in such an action. The same considerations applyfrom the point of view of a contract. If it is the case (which in myopinion it is not) that the harbour is a commercial enterprise carriedon by the Government, and that the Government, as part of thatenterprise, undertakes to see to the berthing and unberthing of allsteamers with which it deals, then I think there is an impliedwarranty on its part that its pilots are supplied with all informationnecessary to enable them to deal with any emergency which mayarise in the course of such berthing and unberthing. On that supposi-tion there would be a breach of that warranty in the present case.
The BritishPetroleumCo., Ltd., v.The
( 24 )
The BritishPetroleumCoLtd., 0.
There id one other aspect of the case which was considered in the -argument, and to which I must allude. It was suggested that even *though there might be no general contractual relationship betweenthe shipowners and the Government, there might be a special con-tract with regard to pilotage and implied obligations arisingout of that oontract. I am disposed to think that in the case ofvessels whose stay exceeds 96 hours, there is a contract for pilotage.The Pilots Ordinance enforces compulsory pilotage. The Captain,therefore, is bound to engage the services of a pilot. The Govern-ment has in fact secured to itself the monopoly of the pilotageservice. The position is much the same as if the Government hadgranted this monopoly to a local company and had regulated the -rates which the company was entitled to charge. The ship wouldbe bound to employ a pilot belonging to the company, and would bebound to pay the regulation charges. Under such conditions therewould clearly be a contract between the shipowners and the company,and in the case of ships not entitled to pay the consolidated specialrate there would, on the same reasoning, be a contract with theGovernment. But in the case of ships paying the consolidated rate,there is no special charge for pilotage. Pilotage for such ships isa public service granted free, and the ss. “ British Ensign ” must, Ithink, be treated on this footing. I am not satisfied, therefore, thatthere was any special pilotage contract with regard to the ss. “ BritishEnsign/*
The Solicitor-General in his argument before us raised feertaincontentions as to the rate of exchange on which any damages heldto be due should be calculated, and cited to us the cases of TheSteamship Celia v. The Steamship Voltumo 1 and In re British-American Continental Bank, Ltd.2 We were, however, not dis-posed to go into these considerations, inasmuch as that point wasnot taken in the Court below and additional evidence would benecessary to enable us to determine it. It is sufficient to note thatthe point was taken in this Court.
For the reasons I have given, I am of opinion that the appealshould be allowed, with costs, both in this Court and in the Courtbelow.
Ennis J.—
In this case the question whether the Government of Ceylon canbe sued in tort has been raised again. The point was decided inthe case of The Colombo Electric Tramway Co. v. The Attorney-General (.supra), and I would adopt the decision there given, and holdthat the Government of Ceylon cannot be sued in tort.
'(1921) 2 A. C. 544.
* (1922) 2 Ch. 57$.
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The claim in this case has, however, been pressed on the groundthat there was a breach of an implied warranty, arising out of acontractual relation between the two parlies. The learned District•Judge has found in favour of the plaintiff on this ground, and thedefendant appeals.
It seems to me that some of the facts of the case have not beenfully appreciated, and that, on the facts, the plaintiffs, respondents,cannot succeed, in view of the express provision of section 11 ofthe Pilots Ordinance, No. 4 of 1899, which says :—
“ The Governor or the owner or the master of a ship shall not beanswerable tb any person whatsoever for any loss ordamage occasioned by the fault or incapacity of any piiotacting in charge of that ship within the limits of any portbrought under the operation of this Ordinance.
By the Interpretation Ordinance, No. 21 of 1901, the term** Government ’* means the Governor, and the term “ Governor ”includes the officer for the time being administering the Government.So the term “ Governor ” used in the Pilots Ordinance is practicallyequivalent to the term '* Government. ”
Briefly the facts are as follows : On September 10, 1919, thess. '* British Ensign ” entered Colombo harbour shortly after9 a.m. piloted by Pilot Sorensen, who took, her .to berth No. 21,between the buoys Nos. 38 and 48 marked on the pilot plan D 1,•which had been allotted by Pilot Hamilton acting on behalf of theMaster Attendant. The berth appears to have been selected inpursuance of a request by the agents of the plaintiffs to berth theships, for their convenience, as near the petroleum jetty as possible.There was a conflict of evidence as to. the manner iu which the shipwas moored. The pilot explained that he had moored the shipwith her bows abreast of buoy No. 88 towards and on a line withbuoy No. 32 >; that she was held there by her anchor and a mooringattached to buoy No. 38, with two long moorings attached to buoyNo. 48. In this position the ship could ride safely in no.t less than80 feet of water. The ship's officers, on the other hand,, say thatthe ship was moored evenly between the two buoys. The nextmorning, after the ship had bunkered, she was found fast agroundin a position well to the right of a line drawn from buoy No. 43 tobuoy No. 38. No question appears to have, been put to any ofthe witnesses to explain how she could get there. If moored, asPilot Sorensen said he moored her, she could not get into thisposition unless the anchor had dragged or the anQhor chain hadbeen let out. If moored, as the ship’s officers say, evenly betweenthe two buoys with moorings taut, there would not be sufficientlateral play for the ship to have moved so far fpom the line betweenthe two buoys unless the moorings had slackened. The learned
Bhhis J.
TheBriHthPetroleumCo., Ltd., v.The
( 26 )
Ennis J.
The BritishPetroleumCo., Ltd., v.The
Judge has accepted the version given by the ship’s officers, and-inasmuch as the log book shows a sounding of 28 feet astern taken,at 10.80 a.m., i.e., within half an hour of the mooring, it is impossible,in tiie absence of any explanation, to say that the view taken by the-learned Judge is wrong. This sounding is apparently inconsistentwith Sorensen's story that the ship was moored within the 30-footcontour line shown on D 1. The fact which is certain is that theship was found aground, and that a sounding then taken near thegalley showed 24 feet 6 inches. Subsequent investigations of thebed of the harbour disclosed that the ship was on the rock depictedin the plan P 15.
The Judge has found that the ship was damaged ** while lying. .at berth No. 21, and the damage was caused by the insufficiency ofwater and the nature of the harbour bottom in .the said berth, ’and there is no reason to think that the finding is wrong, but thelearned Judge has gone further and said:“ The size of the rock
makes it obvious that the dangerous character of the berth might-have been discovered with reasonable care, ” and he holds thedefendant responsible because of this absence of reasonable care.The learned Judge has not discussed the evidence showing the care,or absence of care, but has based his conclusion on the size of therock.
It appears that a chart is issued for the information of the pilots-from time to time as new soundings are taken of the harbour.D 1 was the chart in use when the ss. British Ensign ” was moored.It shows lines of soundings 200 feet apart wherever the harbour isless than 80 feet deep. D 1 shows that there is room in berth No. 21to moor a ship of the size of .the ss. “ British Ensign ” if moored welltowards buoy No. 33, so that she can ride in 30 feet of water insafety. It also shows that) towards buoy No. 43 there is not 30 feetof water. It gives soundings of 23 feet 9 inches, 23 feet 3 inches,.24 feet 3 inches along the line of soundings to the right of the buoy.*These soundings, in fact, are soundings to the rock. In other words-the pilot chart discloses that no ship drawing more than 23 feet canride safely nearbuoy No. 43, but' it is a safe mooring for ships drawing;less than 23 feet. There is nothing in the evidence to show that anyportion of the rock is above the safe riding line indicated by the chart.The defendant, therefore, appears to have taken reasonable care toshow the safe riding line for ships. I am unable to see that itwas necessary to show the nature of the harbour bed below the saferiding line, as the object of the information is to indicate how muchwater there is for ships to ride in, it is noti for beaching purposes,,so there is no occasion to indicate a mud, or gravel, or rock bed.As I read the charFT> 1 it is a notice that the position is dangerousfor ships drawing more than 23 feet) of water, and it would not bereasonable to expect further notice.
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The pilots appear to have been well aware of the depths of waterat this point. Pilot Sorensen says—
“ I have known the water north of buoy No. 43 as the patch. Thatis a patch of shallow water ever since I became a pilot.The word * patch ’ is not used on the chart, but certainsoundings are shown indicating the patch. They are 42feet 3 inches, 23 feet 3 inches, 23 feet 9 indies, at distances of50 feet apart, and soundings 200 feet to northward are from24 feet 9 inches to 21 feet 6 inches. All these soundingsindicate that there is a shallow patch. That is. an areaof some size above the level of the bed/*'
The other pilots have given evidence in equally clear terms. Sofar then, as the Government is concerned, they appear to have takenreasonable precautions to keep pilots informed of the depth of waterwithin which it was safe for ships to ride* It would not be, in myopinion, reasonable to expect the Government to ascertain andgive information as to the nature of the danger below the sounding.This appears to have been the view of the ship's Captain, for hestated in his evidence that the important point to consider was thedraught of the vessel, and that the nature of the botom under theship did nob matter.
We then come to the next fact. The .berth was allotted tothe ss. “ British Ensign " by Pilot Hamilton acting for the MasterAttendant. Was there any negligence or want of care in this ?Pilot Sorensen said that he had berthed other big ships in berthNo. 21, and he mentioned the ss. “ Magna, ” a ship of 26 feet draughtand the same length as the ss. “ British Ensign. ” He said
" Ordinarily I would not hesitate to make use of berth No. 21,even for a ship of the size and depth of the ss. “ BritishEnsign. ”
Pilot Hamilton said :—
“ I know all about berth No. 21. I know the berth was capableof being occupied by the ss. “ British Ensign. " In mooringa ship like the ss. “ British Ensign ” in berth No. 21, I coulddrop the anchor sufficiently far ahead t-o enable her stem torest in the line of head buoys, and stem sufficiently far fromthe* stem buoys to avoid the water in the vicinity- of the sternbuoy, because there is not sufficient water round the sternbuoy to accommodate a deep draught ship. ”
The evidence of all the pilots amounts to this that berth No. 21can be used for a ship of the length and draught of the ss. “ British
Emus J.
The BritishPetroleumCo., Ltd., v,.The
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Emos J.
The BritishPetroleumCo., Ltd., V.The
Ensign ” if caution be used to avoid the shallow water to thenorth of buoy No. 48. This evidence is consistent with theinformation as to soundings given in chart D 1. The ss. "BritishEnsign ” was 440 feet long,and D 1 shows deep water for 460 feet frombuoy No. 33. Want of care was, therefore either by Pilot Sorensenor the ship’s officers, and in either event the defendant is not liable.
It is impossible to say that the learned Judge was wrong in acceptingthe evidence of the ship’s officers as to the method of mooring thess. “ British Ensign, " but it is to be observed that Pilot Sorensen leftthe ship at 10 a.m. At 10.80 a.m. the log shows that a soundingof 28 feet astern was registered, the evidence of the Captain of thess. “ British Ensign " shows that he was. aware that there was a laderise and fall in the harbour of 2 feet. The ss. “ British Ensign ’’ wasdrawing 24 feet 10 inches aft when she came in, and bunkering wasexpected to add 3 feet. It would seem, then, .that within half an*hour of the pilot’s departure, the Captain of the ss. “ British Ensign ”was in a position to know that .there would not? be enough waterfor his ship at low tide after bunkering, and he could have appliedfor another berth. As no 'Issue on this point was raised, this does-not affect the decision of the case.
In my view of the facts the plaintiffs’ case is met by section 11of the Pilots Ordinance, and the intricate points relating to theliability of the harbour authorities do not actually arise. As,however, they have been discussed at length, 1 will briefly set them
The Solicitor-General first argued that there could be no contract,as the Government was not the owner of the harbour, and he citedVoet 1, 8, 8, Nathan 308, and Maasdorp 10, and II, and Van derLinden 4, 2, 1 to show that in Boman-Dutch law the use of theharbour was common to all- The argument did not impress me,because, assuming that the'harbour belongs to the public and thatthe Government controls its use only, there remains the positionthat all public property is vested in the Government.
It was next argued that practically all the English cases, exceptThe Moorcock (14 P. D. 6&} were cases of tort. The Moorcock wasa case of a wharf and jetty by the river Thames, beside which therewas not sufficient water ati low tide for the ss. “ Moorcock ” to remainwithout grounding, and the Court held that in the contract betweenthe parties such an implication had to be made as would- give suchbusiness efficacy to the transaction as must have been intendedby both parties to it as business men, so the Court found that therewas an implied representation by the wharfinger that he had takenreasonable care to ascertain that the bottom of the river near thejetty was in such a condition as not to endanger the vessel,although the wharf owners had no control- over the bed of the riverNo question of pilotage arose in that case.
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In Liebig v. The Mersey Docks and Harbour Board 1 a distinction 1984.was drawn between an implied warranty as to safety arising out BranTj.of the contractual relation and an obligation under the common _ —law to take all reasonable care. The Solicitor-General argued that petroleumthe latter was a breach of duty, and hence a tort and not a matter I4d.t *»arising out of contract. The Solicitor-General then cited a series Attorney-of cases arsing out of County Court decisions to show that when Generalthere was a question as to whether the act complained of wasfounded on tort or founded on contract, and it transpired thatboth elements were present, the act was held to be a tort. Thesecases are not of great weight, as in them the Court wasdriven by the terms of the Act to fix for the purpose of costsone or other alternative as there was no provision for the dualposition.
It seems to me that harbour dues are payments made in returnfor services rendered; that pilot fees are more clearly such payments;and that the words of Martin B. in Francis v. Cockrell (supra);
“ I do not at all pretend to say whether the relation of the partiesraised a contract or a duty. It seems to me much the same thing ”are very much to the point. The extent to which such a contract orduty would give rise to a petition of right in England for damagesfor a breach of such contract or duty to take reasonable and propercare, as distinct from an implied warranty, has never been decided.
The authorities seem to show that it is a question of fact in eachcase, and in The Moorcock the guiding factor was found to bethe intention of both parties as business men. The essence of therelation between the master of a ship using a harbour and theharbour authority is, primarily, safe anchorage, …. anassurance that there is, somewhere in the harbour, a position wherethe particular ships can ride at anchor safely. In the case ofpilotage the essence of the relation between the ship master andthe pilot is an undertaking to guide the ship to such a position withdue regard to the soundings. This, in fact, is the origin of the word“ pilot.* ” The respective duties of the harbour authority andthe pilot thus become clear. The harbour authority must takereasonable, care to ascertain the soundings; the pilot. must takereasonable precautions having regard to the soundings and theparticular ship. It seems to me that business acumen in relationto the use of a harbour, which is free to all, does not go beyond this.
In my view of the facts in this case there was no want of reasonableand proper care on the part of the Government to ascertain anlmake known the soundings. Damage arose owing to some wantof care by the pilot, i.e., an insufficient precaution to moor the
1 (1918) 3 K. B. 381.
* From Annandalis Dictionary: Pijloot, a pilot, from pijlem, to sound the depth,and loot, the sounding lead.
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1984. particular ship in such a position that she could float above theEwhmTjhue indicated by the sounding, and section 11 of the Pilots
* Ordinance exempts the Government from liability in this respect.
^PeirJetm* The express provision exempting the Government found in the•Co., Ltd., v. Ceylon Ordinance, and not found in the equivalent section in theAttorney English Act (section 633, Merchant Shipping Act), seems to indicateGeneral that the rule that the, Government can be sued in contract only isnot to be extended beyond a clearly implied warranty, and thatno suit would lie for a breach of a duty or obligation not within theclear intention of the parties considered so far only as the mutualintention imports a purely business relation.
One other point was urged by the appellant, namely, that therate of the exchange should be calculated at the rate of the timeof the breach. In my opinion it is too late to urge this. The rateof exchange was clearly set out in the plaint, and an issue shouldhave been raised if it were desired to contest it. I would allow theappeal, with costs.
Appeal allowed.