Lord Shaw. -

This is an appeal from a judgment of the Full Court of the Supreme Court of Nigeria reversing, on the 8th March 1926, and by a majority, the judgment of the Divisional Court, dated the 21st December 1925. The Divisional Court had given judgment in favour of the appellants for £2,376 5s. 2d. with interest and costs.

The substance of the claim was for the value of a lighter which became a total loss in circumstances about to be mentioned. The facts are very simple Both parties are ship-owners, and according to the requirements of their trade the one is in the habit of letting lighters to the other. In June, 1925, the appellants let on hire to the respondents a lighter. There was no written agreement of hiring. Part of the agreement was that the lighter should be, as is usual, manned by two lighter-boys that is coloured labourers. The lighter was transferred on the 2nd June, and the mischance sued for occurred upon the night of the 5th June. The coloured labourers were, from the moment of the transfer, out of the control of the appellants, and subject to the orders and under the control of the defendants.

The use to which the defendants put the lighter was for the purpose of loading groundnuts on to their steamship "Rijnland" She was lying in the harbour of Lagos, and on the evening of the 5th June a strong ebb tide was running. Among the duties to be performed by the labourers was, of course, the obedience to all orders regarding the attachment of the lighter to the "Rijnland" ; and it was a necessity of the case that they, or one of them, should be on board to do for themselves, or to obey orders to do what was required should the ropes be unable to stand the strain of the current. The simplest of all things would have been to catch a rope if thrown from the "Rijnland," and the boatswain of the "Rijnland" explains that if one of the boys had been there he would have thrown a rope.

Unfortunataly both of the labourers had decamped ; and they had forsaken the duties which they were bound to perform both of taking charge of the barge, and of giving obedience to the orders of the officers of the "Rijnland." The consequence was that the barge, having parted her moorings, drifted with the current out of the harbour of Lagos, and subsequently ran ashore at a point about six miles distant therefrom and broke up before she could be salved.

These are substantially the relevant facts as found in the judgment pronounced by the learned Judge, Mr. Justice Tew. Their Lordships think it right to say in a word, with regard to that judgment, that in their opinion the learned Judge not only came to a right conclusion upon the facts, but that his review of this part of the law, and the decided cases thereon, meets with the Board's entire approval.

The Full Court (Maxwell J. dissenting) reversed this judgment : in particular upon the ground that there was no evidence that the lighter boys were at any time necessary except when the craft was under weigh or in active use. One of the plaintiffs' witnesses had said :

I do not think it advisable as a precaution for one lighter boy to remain on board all night. I don't think it could do any good.

Upon this the learned Chief Justice observes :

I can find nowhere in the other evidence before the Court an expression of an opinion to the contrary of that held and expressed by the plaintiffs' representative.

Their Lordships have some difficulty in understanding this opinion which seems to be quite out of accord, not only with the defendants' evidence but with the admissions made in the Court below.

Fontein, the defendants' agents, swore : When a lighter is alongside a ship at night my boys have orders to remain on board the lighter all night.

Brunt, the Master of the "Rijnland" says :

There was nobody on board that lighter. If there had been anybody to throw a line to, lighter would have been saved,

and on the special point in issue Van Duyn, the boatswain of the "Rijnland" says plainly :

In my opinion all ligh