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of his statutory immunities and increase his responsibilities by express agreement, but this does not affect the conclusion already drawn. This substitution may lead to an unfortunate consequence that is not at first sight apparent. As the law stood prior to the Act, if it appeared that an exception in a charter-party or bill of lading was bad or ineffective, the relations of parties fell to be determined by the rules of common law. But the common law, so far as the Act applies, is now swept away. How will the relations of parties be regulated now, should part of a bill of lading or the whole bill be proved bad?

Before we pass from this topic there is one subsidiary but interesting point which calls for notice. In questions of unseaworthiness, upon whom will the burden of proof be laid? As the law stood, it lay upon the shipper or cargo owner to prove unseaworthiness. It is suggested that the onus of proof is now shifted, that it is now laid upon the shipowner to prove that he had exercised due diligence to provide a seaworthy ship. In England, at least, it would appear to be settled law that where a contract of carriage incorporates the provisions of the Harter Act as to seaworthiness-which are, as we have seen, similar to those of the present Act-then it is for the shipowner to prove that his ship is seaworthy, or that he has exercised due care to make her so.1

One of the foundations of the common-law contract of carriage was the implied undertaking to carry direct to the agreed destination. Commercial practice qualified this by the use of exceptions which usually provided for liberty to deviate to save life or property, and sometimes for purposes of towage. Such exceptions, however, were scrutinised by the courts with a jealous eye, and the carrier convicted of deviation uncovered by the exceptions in his contract, was liable to make good all the loss sustained by the other party in consequence thereof. He could only escape by shewing that the loss suffered must inevitably have occurred, whether he had deviated or not.2

The Harter Act, to which reference has already been made, relieves the carrier from liability for "loss arising from

saving or

attempting to save life or property at sea, or from any deviation in rendering such service.” з In one leading American case on this point, the facts were that one steamer towed another off certain rocks and into a harbour where she lay safe. The position of the injured vessel was potentially dangerous; the salving vessel took her in tow again and towed her to San Francisco,

although there were tugs present which could have done so. In spite of the wide wording of the last phrase of the deviation clause the salving vessel was held to have deviated without justification in towing the salved ship to San Francisco.1

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But the new British Act goes further: deviation to save or attempt to save life or property at sea, or any reasonable deviation shall not be " an infringement either of the Rules in the schedule or of the contract to which they apply. There can be no doubt that this Act sanctions a greater measure of deviation than was permitted either by the Harter Act, or by the former law of this country. The fact of its doing so is another proof that it is intended entirely to sweep away the old rules of the common law. It will be seen that the words

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any reasonable deviation" are not qualified or governed by the preceding permission to deviate in saving or attempting to save life or property at sea. Therefore "reasonable deviation” is additional deviation. Clearly also deviation is something more than a mere variation upon the normal course of a normal voyage. It must in consequence be appreciable, it must also be reasonable. What is to be the criterion of what is "reasonable"? The shipper's interest or the carrier's convenience ? As to this the Act is silent. The Act is also silent as to the incidence of the onus of proof in this matter. It would appear reasonable, however, that in this too the burden should be laid upon the carrier.

Finally, the carrier is freed from liability for any loss or damage resulting from a deviation falling within the terms of the statute, In other words, once the carrier establishes that the loss in question "resulted from his permitted deviation, he can snap his fingers at the shipper or owner of the cargo.

While dangerous goods are not placed in any special category by this Act, in the case of shipments "where the character or condition of the property to be carried or the circumstances, terms, and conditions under which the carriage is to be performed, are such as reasonably to justify a special agreement," in that case, provided no bill of lading is issued, "it shall be competent for the carrier and the shipper to enter into a free agreement." 3 But parties obtain no guidance as to the circumstances or goods which justify such an agreement; and, further, there is nothing to indicate the principles to regulate their relations should the special agreement turn out to be bad. But there is an additional stone of offence. It is provided

1 Moore v. Lunn, C.A., 1923, 39 T.L.R. 526.

2 Morrison v. Shaw Savill & Albion Co., [1916] 2 Κ.Β. 783 at pp. 796 and 800.

3 Harter Act, section 3.

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1 The "Emily," 1896, 74 Fed. Rep. 881.

2 Statute, Schedule, Article IV. 4.

3 Statute, Schedule, Article VI.

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before Parliament from such authorities as the learned editors of the seventh edition of Scrutton's "Charter-parties and Bills of Lading "1 [Lord Justice Scrutton and Mr

that any such agreement between the parties
shall be embodied in a receipt which shall be
non-negotiable.1 Such a document will be a
most awkward and clumsy instrument of
commerce. It may even be doubted whether | Justice Mackinnon].

this agreement comes within the definition of

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"contract of carriage as laid down by the Act. The Act says "'contract of carriage' applies only to contracts of carriage covered by a bill of lading or any similar document of title." Can it be considered that this non-negotiable receipt contract is a "similar document of title" to a bill of lading? There is much to be said for the view that it cannot, and that it is really a contract sui generis, the malformed offspring of the unhallowed union of Westminster and Brussels.

There is yet another point in Article VI. which is worthy of comment. In any "special agreement" parties are given complete freedom of contract, though any stipulation as to seaworthiness must be consistent with "public policy." We have travelled far from the common law and its absolute warranty when we find ourselves in the treacherous bogs of public policy.

One may suspect, however, that the "special agreement" with its many pitfalls will not find favour with either shippers or carriers. For the same reasons it is unlikely that the coasting trade will avail itself of the privilege given by the Acts to make "free agreements," in terms of the rules, without restriction upon the nature of the goods or the circumstances of the carriage. There is one final matter which requires at least brief notice. The Act does not apply to charter-party contracts; consequently, bills of lading issued under charter-parties can be in any form, but so soon as the bill of lading so issued becomes a substantive contract between the carrier and a third party it must conform to the requirements of the Act. The Act does not give the carrier the opportunity of knowing when his statutory liabilities commence. This article places the carrier almost inevitably upon the horns of the following dilemma. He must either make his charter-party conform to the rules, i.e. exclude his common-law warranty of seaworthiness, or be prepared to have himself held liable to several parties in different degrees of liability, without his consent or actual knowledge, for any possible loss arising out of one transaction. His only alternative is to refuse to permit the issue of binding bills of lading in connection with the chartered voyage. This provision, it should be noted, has already received severe criticism while the bill was still

1 Statute, Schedule, Article VI.

2 Statute, Schedule, Article I. (a).

3 Statute, section 4.

• Statute, Schedule, Article V.

From the foregoing comments it is clear that this Act makes important changes in the law of bills of lading, some of them changes which its framers do not appear to have contemplated. It has been designed to secure uniformity and assist commercial convenience. It seems unlikely that it will do either. The series of castiron rules contained in its schedule appear to be a poor substitute for the flexible instrument forged by the old common law. But in this there is one substantial consolation to the lawyer, it seems admirably designed to provide a healthy and steady stream of well-contested litigation. E tenebris lux.

CONSTRUCTIVE NOTICE.

Nelson put his telescope to his blind eye at the battle of Copenhagen and was rewarded by a viscountcy. History does not record what favours are conferred on food inspectors who purchase from shopkeepers articles of food, or drink, without reading notices exhibited by the shopkeepers with reference to the goods sold in their shops. The shopkeeper at any rate will be wise who does not rely on the exhibition of a notice alone to excuse himself from selling to a purchaser articles of food or drugs which are not of the nature, substance, and quality demanded by the purchaser. Such a sale is an offence against section 6 of the Sale of Food and Drugs Act, 1875, where it is made "to the prejudice of the purchaser." It seems to have been assumed for some time past that the publication, by notice in a shop, of some qualification of the nature, substance, or quality of goods sold in the shop prevented a sale of such goods being regarded as a sale to the prejudice of the purchaser. In Preston v. Grant (1924, 41 T.L.R. 90), an inspector under the Food and Drugs Acts had purchased half a pint of whisky at the bar of a public-house for the purpose of analysis. In the bar over the fireplace, and also in a room at the back of the bar, there was exhibited a notice, "All spirits sold in this establishment are diluted, and no alcoholic strength is guaranteed." At the time he made the purchase the inspector did not see the notice, his attention was not drawn to it, and he was not told that the spirits sold to him were sold as diluted spirits. A quarter of an hour after the sale, before the inspector left the premises, he observed and read the notice both

1 Scrutton's "Charter-parties and Bills of Lading," (7th ed.), p. vi,

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in the room at the back of the bar and in the bar itself. The whisky was subsequently analysed and found to be 42.26 degrees under proof, whereas the statutory minimum strength at which it is permissible to sell without raising a presumption that the customer has been prejudiced is 35 degrees under proof. The low strength of the whisky, of course, was due to the addition of an excess of water. The Court (King's Bench Division) held that an offence had been committed against section 6 of the Sale of Food and Drugs Act, 1875, and that the seller was not protected by the exhibition in his premises of notices which the purchaser did not see and to which his attention was not directed. The decision seems a salutary one. As Mr Justice Shearman pointed out, a general notice could never be held to protect a seller where a blind man purchased an article to his prejudice. But even where a purchaser reads a notice, the notice must be such as clearly to instruct his mind as to what it is he is buying. The seller cannot rely on some obscure or badly worded notice, even when read, to override the presumption that a purchaser who has asked for whisky and has been supplied with whisky and water has been prejudiced. Notices similar in terms to that quoted above seem to have had a vogue for about half a century, and to have been regarded as giving adequate protection against a charge of selling to the prejudice of a customer. The form of notice certainly seemed to have stood the test of time, and it was thought had even received judicial sanction. A recent decision in the High Court of Justiciary in Scotland, however, decided that such a notice was not sufficient intimation to a purchaser of the fact that he was being supplied with whisky and water, and this decision has now been followed in England in the case of Rodbourn v. Hudson (1924 W.N. 312). The moral seems to be, explain to your customer what he is getting and see that he understands your explanation. The alternative is, supply your customer with what he orders and dispense with notices..

NOTES FROM PARLIAMENT HOUSE.

Reform of Scots legal procedure seems to be in the air. The late Lord Advocate indicated that the subject is one which would have had his early attention, and suggested that his successor might have something to say on the subject. Meantime, there have been renewed expressions of opinion, coming from the most divergent quarters, that Scotland should have a Court of Criminal Appeal, or rather, that our Court of Criminal Appeal, which exists for one extremely limited purpose, should be made

a real one. It needed a Beck case in England to produce such a Court there; a repetition of such a case would, in these days of fingerprints and improved methods of identification, be as impossible in Scotland as in England. But it is worth pondering that, in the first 843 appeals heard by the Court in England, 150 convictions were varied and 141 quashed. Considering that the establishment of such a Court unquestionably leads to a more careful administration of the law in indictable cases by all concerned, it is particularly striking that such a large number of persons should be found to have been wrongly convicted. Not even the most perfervid Scot will suggest that our High Court judges are more infallible than those of England; as the establishment of the Court has been abundantly justified there, it seems at least probable that it would be similarly useful here.

The present House of Commons should be tolerably well able to deal with legal questions. According to the "Solicitors' Journal," it comprises no fewer than eighty-six members of the legal profession, from which it should derive a large amount of valuable and gratuitous advice on the law. The number is probably rather greater than is indicated in that paper, for it omits from its list the names of two of our Scots seniors, and two of our juniors, while the name of a Glasgow member recently called to the English Bar is also omitted.

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That information in English papers on questions of Scots law is not always impeccable was illustrated some time ago in these columns ("Scots Law through English Eyes"). It must now be added that information about Scots lawyers should be accepted with certain degree of caution. Witness this, which recently appeared in the columns of an esteemed contemporary : Sir Robert Horne, who did not return to the Scots Bar on his retirement from office in 1922, but went into the city instead, where he holds all the blue-ribbon directorships which a successful business man can possess, has not accepted junior office in the Cabinet. There is a persistent rumour in Parliament House, Edinburgh, that the Lord President of the Court of Session will shortly retire, and Sir Robert, it is believed, has been promised the reversion of this great judicial appointment by the Premier." "Pro-di-gi-ous!"

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Lord to prove that he is not a wicked Tory; but one would have thought it hard for even a London journalist to make this particular mistake. That judicial titles should in any case be handled with care was once more illustrated, this time in the correspondence columns of the Scotsman," where a lady recently rushed into print with a howler on the subject.

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Several interesting points of jury practice were raised in a recent English case, which brought a large measure of unmerited disgrace on the first letter of the alphabet. In the first place, as regards payment, juniors seem to be worse off in England than they are here. They are sometimes inclined to grumble here with 10s. a day, although this is opulence contrasted with what the lieges of Glasgow have sometimes to endure-a fortnight in the High Court, and nothing at the end of it all but " a gratifying feeling that their duty has been done." But in England jurors apparently receive a guinea on the first day and nothing thereafter, unless by grace of the parties. They always have the satisfaction to be derived, of course, from the knowledge that they are listening to highly expensive counsel and witnesses-free, gratis, and for nothing. Next, the case has stimulated a number of letters in our papers protesting against the presence of women on such juries. Questions are involved, it is said, that no women should be asked to consider. But women are citizens as well as men, and must discharge their duties equally with men. Counsel who have been in such cases will probably agree that the attitude of women jurors to such questions is sensible and dignified; the average woman is no more put about by them than the average man who is called on to discharge an unpleasant duty. The last point raised by this particular case is that of putting questions to juries. It would seem that wherever this is done the result is to increase the chance of confusion, and in consequence to bring about a possible miscarriage of justice. The questions are often framed in such a way that the jury returns answers which result, after legal argument, in a conclusion quite different to that contemplated by the jury. There has been more than one instance of such anomalies in England in recent months. At least one of the judges pointed out that a similar result may have been entailed in the Scotch case of Adair v. David Colville & Sons Ltd. (1924, S.L.T. 698). Where juries award damages to a pursuer, they must at least prima facie be presumed to intend to mean that the pursuer has succeeded. Our Court of Session practice, with its simple issue, has great advantages when contrasted with a list of elaborate questions.

It is pleasant to be able to say one good thing about our Court of Session practice, for its interminable delays (coupled with the iniquitous and quite unjustifiable increase in Court fees) are more responsible than anything else for the attenuated trickle of work. It is small wonder that the business men of Glasgow agree to leave important commercial cases to the final judgment of the local sheriffs rather than come through to Edinburgh and finally secure what may be better law after losing the interest on their money for a couple of years. In England heavy shipping cases are sometimes heard and judgment delivered in them at a time when in Scotland parties would still be making desperate efforts to close the record, or beating the air about relevancy in the Procedure Roll. Even the way in which the new English judges were appointed is symptomatic of the more business-like attitude which prevails in London. Admittedly appointed in order to obviate delay in disposing of cases down for hearing, the two new judges were announced on Thursday, and were hearing cases, without "trials" or any other preliminary frivolities, on the following Monday. Some people think that the establishment of a commercial Court in Glasgow-part of the Court of Sessionwould help the situation; it would be interesting to know readers' views on this subject.

Meantime, to set against 121,209 High Court cases in England in 1923, the best we can do in the statistical line in Scotland is to air the number of our divorces in 1924, which amounted to 441. Decree was granted in 433 of these. The busiest divorce judge was again Lord Ashmore, who tried 211 actions. Lord Morison had 120 cases; Lord Blackburn, 48; Lord Constable, 32; and Lord Murray, 30. If in all other classes of legal work business were equally brisk, fewer complaints would be heard of the decaying condition of the Court of Session.

THE LEAGUE OF NATIONS IN 1924. On Saturday, 10th January, the League of Nations celebrated its fifth anniversary.

Undoubtedly the outstanding event of the year has been the elaboration of the "Protocol for the Pacific Settlement of International Disputes" by the Fifth Assembly. This document is an attempt to complete the system of arbitration laid down in the Covenant and to make all recourse to war illegitimate. It is hoped in this way to make a general simultaneous reduction of armaments possible; the coming into force of the Protocol depends upon the success of the International Conference for the reduction of armaments to be summoned on 15th June, to which Germany, Russia, and the United States, as well as the members of the League, would be invited. This conference, however, is not to take place unless and until three out of the four permanent members of the Council (viz. Great Britain, France, Italy, and Japan), and ten other members of the League have ratified the Protocol. So far, seventeen States, including France, have signed the Protocol, and one State, Czechoslovakia, has ratified it. Its future depends largely upon the eventual attitude towards it of the British Empire, which, as yet, has come to no decision on the subject.

In addition to the draft convention for the control of the traffic in arms and munitions drawn up with the collaboration of an official United States representative, which will be discussed at a special conference on 4th May, the competent League bodies are preparing a convention on the private manufacture of arms and munitions. The Council has drawn up a scheme for the exercise of the League's right of investigation, if and when required, into the armaments of the ex-enemy Powers, with a view to ascertaining whether they conform to the standards laid down in the Peace Treaties. All the political disputes dealt with by the League in the last year arose in one way or another out of the Peace Settlement, and most were in the nature of putting the finishing touches to that settlement. Thus a régime for the Port of Memel, under Lithuanian suzerainty, was established by the League, and the boundary between Czechoslovakia and Poland in the Jaworzina district fixed. A similar dispute between Jugoslavia and Albania over the Monastery of St Naoum was settled, and the League is at present dealing with the frontier dispute left over from the Lausanne Treaty Settlement between Great Britain and Turkey over the vilayet of Mosul. A neutral commission appointed by the Council, with a Swede as president, is at present investigating the circumstances, and will report to the Council on its decision, which both Great Britain and Turkey have undertaken beforehand to accept. A further group of semi-political questions

Further progress, in spite of certain financial and economic difficulties, with the Austrian settlement may be recorded, as well as the launching of the scheme for the financial reconstruction of Hungary and the Greek Refugee Settlement scheme. In each case international loans of £10,000,000 were raised, chiefly by Great Britain and the United States. The League's Commissioner-General in Hungary is Mr Jeremiah Smith, of Boston, U.S.A., and Mr Charles P. Howland, another American, is chairman of the Greek Refugee Settlement Commission.

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The financial and economic organisation is continuing its preliminary work on a number of questions, such as double taxation, fiscal evasion, protection against unfair competition, protection of consumers against worthless goods, the treatment of foreign nationals and enterprises, and preparations for a conference to remove export and import restrictions and prohibitions," which, it is hoped, will be a sequel to the conference on the simplification and standardisation of customs formalities. In due course all these activities should ripen into international conventions, which will do a good deal to facilitate and promote international trade.

The Transit Organisation is similarly engaged in work on matters concerning road traffic, inland and maritime navigation, telegraph, telephone, and wireless facilities, calendar reform, etc., which, together with the railways' and waterways' and free ports' conventions that have already been adopted, are laying the foundations for easy and rapid international transport and communications.

In the past year the Health Organisation has, in the words of the Fifth Assembly, "extended its sphere of action, improved, completed, and defined its technical equipment, and is thus carrying out with increasing success its special task, which is to give effective help to the various national administrations in their campaign against epidemics and their attempts to improve public health."

The committee on Intellectual Co-operation,

relating to the exchange of populations between to which Professor Einstein has returned, and

Greece and Turkey and Greece and Bulgaria, as well as minority disputes between Bulgaria and Greece and Germany and Poland, have all been dealt with. The Council induced Bulgaria and Greece to accept the appointment of two League Commissioners for mediating in disputes concerning national minorities. In the disputes between Poland and Germany, the former undertook to compensate a number of dispossessed German settlers in Poland, and the two countries reached an agreement on the categories of former German settlers in Poland who were entitled to acquire Polish nationality.

M. Lugones, a distinguished Argentine savant, has been added, is organising and developing its work on bibliography, exchange of publications, inter-university relations, and the pooling and distribution of scientific information.

A strong committee of jurists, including a German and an American, has been appointed by the Council to investigate what changes have already been made in international law through the existence and work of the League, how these changes can be progressively codified, and how a further development of international law may be promoted.

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