Indian Oil

345
1 Q.B. Reg. v. Judicial Committee, Ex p. Vijayatunga (D.C.) Simon Brown J.
A application that, in regard to each petition, the committee did indeed

both recognise the full width of their visitatorial jurisdiction and
approach its exercise entirely properly.
Application dismissed.
Order for costs in favour of univer-
sity, not to be enforced without
leave of court.
Legal aid taxation of applicant's
costs.
Solicitors: Wray Smith & Co. for Davis Walker & Co., Chalfont St.
Peter; Treasury Solicitor; Coward Chance.
C
[Reported by Miss GERALDINE FAINER, Barrister-at-Law]
[QUEEN'S BENCH DIVISION]
INDIAN OIL CORPORATION LTD. v. GREENSTONE SHIPPING

E S.A. (PANAMA)
1987 March 4, 5; 18 Staughton J.
Shipping—Bill of lading—Cargo, intermixture of—Crude oil mixed

with shipowners' crude oil already on board vessel—Mixture of
oils not separable—Shipowners' liability to receivers for short
p delivery of oil —Whether receivers entitled to entire mixture of oil
Ships' Names—Ypatianna
The owners of a vessel which was chartered to transport a
quantity of Russian crude oil, the property of the receivers,
from a Russian port to India, mixed the Russian oil with crude
oil, which was their own property, already on board the vessel.
p The mixture of oils could not be separated for practical purposes
and the owners claimed delivery of all the oil on board when
the vessel discharged her cargo at the Indian port. The receivers
obtained a quantity of oil less than the figure endorsed on the
bill of lading. On the receivers' claims in an arbitration that
they were entitled, inter alia, to delivery of the whole of the
pumpable oil on board the vessel at the port of discharge and
damages, accordingly, in the sum of U.S. $388,000, the
H arbitrators awarded them $46,014.90 only for damages for short
delivery.
On the receivers' appeal from the award on the ground,
inter alia, that they were entitled to all the oil on board the
vessel:—
346
Indian Oil Corpn. v. Greenstone Shipping S.A. [1988]
Held, dismissing the appeal, that where a party wrongfully .
A
mixed the goods of another with his own goods which were
substantially of the same nature and quality, and they could not
be separated for practical purposes, the mixture was held in
common and the innocent party was entitled to receive from it a
quantity equal to that of his goods which had gone into the
mixture; that, if doubt remained as to either quantity or quality,
the matter should be resolved in the innocent party's favour and
he was entitled to claim damages from the wrongdoer for losses B
suffered, in respect of quality or otherwise, as a result of the
admixture; and that, since the quantity of the receivers' crude
oil could be ascertained with sufficient precision, the arbitrators
were right to award damages for short delivery only (post,
pp. 370F-G, G—371B).
Armory v. Delamirie (1722) 1 Str. 505 applied.
Stock v. Stock (1594) Poph. 37; Lupton v. White (1808) 15
Ves. Jun. 432 and dictum of Lord Moulton in Sandeman & C
Sons v. Tyzack and Branfoot Steamship Co. Ltd. [1913] A.C.
680, 694-695, H.L.(Sc) considered.
The following cases are referred to in the judgment:

Amoco Oil Co. v. Parpada Shipping Co. Ltd. [1987] 2 Lloyd's Rep. 69
Armory v. Delamirie (1722) 1 Str. 505 n
u
Colwill v. Reeves (1811) 2 Camp. 575
Cook v. Addison (1869) L.R. 7 Eq. 466
Giacomo Costa Fu Andrea v. British Italian Trading Co. Ltd. [1963] 1 Q.B.
201; [1962] 3 W.L.R. 512; [1962] 2 All E.R. 53, C.A.
Jones v. De Marchant (1916) 28 D.L.R. 561
Lupton v. White (1808) 15 Ves. Jun. 432
Oatway, In re [1903] 2 Ch. 356
St. John Shipping Corporation v. Joseph Rank Ltd. [1957] 1 Q.B. 267; E
[1956] 3 W.L.R. 870; [1956] 3 All E.R. 683
Sandeman & Sons v. Tyzack and Branfoot Steamship Co. Ltd. [1913] A.C.
680, H.L.(Sc)
Spence v. Union Marine Insurance Co. Ltd. (1868) L.R. 3 C.P. 427
Stock v. Stock (1594) Poph. 37
Warde v. Aeyre (1615) 2 Bulst. 323
F
The following additional case was cited in argument:
Portunus Navigation Co. Inc. v. Avin Chartering S.A. [1982] 1 Lloyd's Rep.
60
ORIGINATING SUMMONS.
By notice of motion dated 31 July 1986, the applicant, Indian Oil
Corporation Ltd., who were the receivers of a quantity of crude oil G
shipped on board the vessel Ypatianna, owned by the respondents,
Greenstone Shipping S.A. (Panama), appealed against the arbitration
award, dated 9 July 1986, of Mr. Donald Davies, Mr. E. J. T. Newcomb
and Captain D. Spon, whereby it was found and held that the receivers'
claims succeeded only in the sum of U.S. $46,014.90 together with
interest. The receivers applied for an order that so much of the award as
dismissed the balance of their counterclaims should be set aside, varied
or reversed and/or that the award should be remitted for the
reconsideration of the arbitrators together with the court's opinion on
the question of law.
347
1 Q.B. Indian Oil Corpn. v. Greenstone Shipping S.A.
A The grounds of the appeal were, inter alia, that (1) the arbitrators
had held that the mixing of cargo on board the Ypatianna took place by
reason of the owners' breaches of contract and conversion. (2) In the
light of those findings the arbitrators should have held that the property
in all the cargo so mixed became vested in the receivers. (3) Accordingly,
the arbitrators erred in law and/or in principle and/or misdirected
themselves in failing so to hold and/or to award damages for 1,300 tons
B of crude oil remaining on board the vessel which the owners refused to
discharge. (4) Further or alternatively, the arbitrators held that the
cargo remaining on board the vessel, which was not discharged, included
Russian crude oil, which was the property of the receivers. (5) In the
light of those findings, the arbitrators erred in law and/or in principle
and/or misdirected themselves in failing to hold that such Russian crude
Q oil should have been delivered to the receivers and they were entitled to
damages for failing to deliver it.
The facts are stated in the judgment.
Kenneth Rokison Q.C. and Peter Gross for the receivers. On the
question as to who was entitled to the oil on board the vessel before
PJ discharge at Madras, the arbitrators chose to follow Roman law principles
rather than English law as set out in obiter dicta of the House of Lords
in Sandeman & Sons v. Tyzack and Branfoot Steamship Co. Ltd. [1913]
A.C. 680. This is a short point and can be set out in the question, where
A wrongfully mixed the goods of B with goods of his own so that the
original goods, the property of B and A, cannot be identified or
separated from the whole, does the whole of the mixture become the
E property of B, or is he only entitled to a proportionate share of the
mixture? As a matter of English law the whole mixture becomes the
property of B. The principle is well-established, of considerable antiquity,
is stated and applied in a number of cases and is still recognised as good
law in modern times. In Blackstone's Commentaries, 17th ed. (1830),
vol. 2, pp. 404-405, the reason for the rule is said to be "to guard
F against fraud" but the principle does not depend on there being fraud in
the particular case. The starting point is Stock v. Stock (1594) Poph. 37.
In Warde v. Aeyre (1615) 2 Bulst. 323, the basis of the decision is that
since one cannot identify which part of the mixture is the innocent
party's, then he would be a trespasser against his will of his own
property. In Colwill v. Reeves (1811) 2 Camp. 575 it was possible to
identify whose property belonged to whom; although it is strictly obiter
G the principle is clear. Lupton v. White (1808) 15 Ves. Jun. 432 is an
example of a case where there is no misconduct or fraud. Reference is
made to Armory v. Delamirie (1722) 1 Str. 505, and approval of the
statement in Blackstone's Commentaries which is part of the judgment.
In Spence v. Union Marine Insurance Co. Ltd. (1868) L.R. 3 C.P.
427 the principle was not directly applicable but the judgment of Bovill
C.J. in the Court of Common Pleas was the judgment of the court. The
relevant obiter dicta are at pp. 437^38, where it is said that if the
mixture was caused by the wrongful act of one party English law holds
that that party was not entitled to recover. A distinction is made there
of the position where the mixture is accidental and where it is wilful.
348
Cook v. Addison (1869) L.R. 7 Eq. 466 is again quite a long way from A
the facts of the present case, but the statement of Sir John Stuart V.-C,
at p. 470, is clear and supports the receivers' proposition. In Sandeman
& Sons v. Tyzack and Branfoot Steamship Co. Ltd. [1913] A.C. 680,
694-695, Lord Moulton went out of his way to set out the relevant
principles of English law, referring to cases of accidental mixture. At
p. 696, having dealt with proprietary interests, he deals with the
contractual position. ^
The receivers' case is also put on the basis of bailment, in that so far
as the oil remaining on board is concerned the owners were bailees of
the receivers' oil and the receivers are entitled to require them to deliver
it up; if they cannot do so without handing over their oil that is their
misfortune. Therefore, (1) all the oil on board, or its value, as a matter
of law belonged to the receivers, and the owners made a conversion of Q
it. (2) The receivers' oil was mixed with the owners' and could not be
separated. The receivers can require the owners to deliver the receivers'
oil on a basis of the contract, and it is their misfortune if their oil has to
be handed over as well. The receivers do not give credit to them of the
value of their oil mixed in. Thus, the ratio in the Sandeman case is also
relevant; it is quite clear that the receivers can claim from the carrier all
of the oil just as the claimant in that case could claim all his bales of D
jute.
For further examples of a statement of the principle, see Smith's
Leading Cases, 13th ed. (1929), vol. 1, p. 396; Holdsworth, A History of
English Law, 2nd ed., vol. VII, (1937) pp. 501-502; Goff and Jones,
The Law of Restitution, 3rd ed. (1986), pp. 65-66; Halsbury's Laws of
England, 4th ed., vol. 35 (1981), para. 1139; the substantial article with E
much citation of authority of Paul Matthews in Current Legal Problems ,
vol. 34 (1981), p. 159 and Jones v. De Marchant (1916) 28 D.L.R. 561.
The authorities clearly state the principle, and the only exception
referred to is where the innocent party's contribution is a very small
proportion of the mixture, which is quite the reverse of the present case
where 97 per cent, of the oil belonged to the receivers.
In the context of bailment, the principle is stated in Story on F
Bailments, 9th ed. (1878), pp. 41-44. In the present case there is no
question of negligent or inadvertent mixture; it was a deliberate and
wilful act which the arbitrators held to be a conversion. It was an
admixture of three different cargoes. In this context, see also Halsbury's
Laws of England, 4th ed., vol. 2 (1973), para. 1537 which also mentions
wilful admixture. The result is that the owners, as bailees, should deliver Q
up the whole mixture to the receivers, or they were liable under the
Torts (Interference with Goods) Act 1977; see sections 2 and 3.
Accordingly, either the mixture was not inadvertent and the receivers
are entitled to demand the whole from the owners as bailees, or else the
receivers are entitled to the value of all the oil on board the vessel
which was theirs, 97 per cent, of the cargo.
The arbitrators found that there was a breach of contract when the H
cargoes became mixed, and they acknowledge that there was a wrongful
act. The law draws a distinction between the act that was wrongful and
the act which was inadvertent. If the strict rule is applied it will
discourage potential fraud by carriers or shipowners. The bailee is
349
A obliged to keep the goods separate unless there is express or implied

consent. Apart from the reason of guarding against fraud, there is the
point that unless B owns the whole admixture he may become
involuntarily a trespasser over his own goods. The arbitrators shrank
from applying English law because of the presence of the other 3 per
cent, of the cargo in the other tanks. But there cannot be any difference
in principle and the distinction drawn by them was illogical. If the
° admixture was made without consent there is a stronger case for saying
that the receivers were entitled to the whole.
Gordon Pollock Q.C. and Peregrine Simon for the owners. The
receivers will only succeed if the answer "Yes" is given to the question
whether they have title to all the oil on board when the vessel arrived at
Madras. There is no difference in the way the receivers put their case; if
C they succeed on the question of title the argument on bailment is
unnecessary. The proposition has always been either giving the whole
mass to the innocent party or whether a joint interest is created in the
whole. If there is ownership in common there will not be any problem in
relation to trespass. If the court finds that the proper rule is that where
there is a wilful intermixture without consent a joint interest is created
j-) in the whole, the innocent party is entitled to his full contribution, i.e.
his proportion, in the whole. In such a case, the innocent party has a
right to take priority, so he is entitled to the whole of his contribution as
a matter of justice: see the American Law Institute's Restatement of the
Law of Restitution (1937), paras. 209-214. The innocent party is given
charge over the whole to secure his contribution in the mixture. Courts
should try to produce a rule that does substantial justice between the
E parties. The innocent party will not suffer, so that if, for example, there
was a bankruptcy he would be in a privileged position and his interest is
protected. Thus, the receivers' argument on bailment depends on the
answer to the question of title.
There is no authority binding on this court on the rule propounded
by the receivers. Although it is relevant to look at the old authorities,
F and give them their due weight, this court is entitled to reach such a
decision as seems right. There are no modern cases dealing with the
matter and the early cases are somewhat scant. This is a problem arising
in shipping circles over and over again. There is an overwhelming
inference that there must have been a survey of the cargo tanks before
the vessel was loaded and it is inconceivable that this did not happen.
„ There are two areas where the problem arises; in the shipment of
bulk grain it is commonplace that where one ship's grain which comes
from the same source and is of the same quality, the bulk carrier does
not distinguish between the cargoes destined for the various receivers.
Exactly the same can happen in oil unless there is express provision in
favour of separation. Of course, there is separation where there are
different grades of oil. In the present case, unless there was express
H consent there was no breach of contract when the mixture occurred.
On the point raised by the court that one should not examine awards
of arbitrators with a fine-toothed comb, see Giacomo Costa Fu Andrea
v. British Italian Trading Co. Ltd. [1963] 1 Q.B. 201, 218.
350
It is commonplace for vessels to lift part cargoes so that one is bound ^
to have mixtures unless there is express agreement otherwise. All that
the arbitrators committed themselves to in their fact-finding was the
knowledge and state of mind of the receivers, and not that of the
shippers. It is rare that receivers could be expected to consent to what
was going on at the port of loading. An analysis of the authorities shows
that it is unnecessary for this court to adopt such a narrow and strict
rule as is contended for. The origins of the rule, whatever it is, are B
found in cases where the innocent party is given the whole mixture
because of two features: (1) the admixture was deliberately brought
about to deprive the innocent party of his rights, or to make it difficult
for the innocent party to enforce his rights; and (2) as a result of the
admixture, it is impossible to tell with any certainty what the proportions
had been. In such a situation there is justification for such a rule, and Q
justice results. But it is wrong to extend such a rule to deliberate and
negligent intermixture where the motives were not improper and where
the innocent party will be put back in the position he had been before
the mixture had taken place.
In Stock v. Stock, Poph. 37, there is no satisfactory reconciliation of
the situation where either the plaintiff or defendant has the mixture
after the intermixture has occurred (the reports of Popham C.J. were D
written in French and the collection was preserved and translated a
considerable time after his death so that as an authority it cannot be
wholly accepted: see Wallace, The Reporters, 4th ed. (1882)). The case
therefore was not concerned with title to the mixed pile of hay, but
simply as to who was in possession; and whoever had possession could
not legitimately be deprived of the whole. If the plaintiff had it the p
defendant could not get it back; he had a cause of action for his hay
which had been interfered with and taken away. The case is not
authority for transfer of title but as to who had possession.
Warde v. Aeyre, 2 Bulst. 323, does not contain a sufficient
consideration of the question of joint ownership. In the 16th and early
17th centuries when one had heaps of grain or corn, it was likely that
people did not know the weights of the quantities; it was therefore F
impossible to tell what was the innocent party's share. The case
emphasises the point that the admixture was a trick to deprive the other
party of his share.
In Colwill v. Reeves, 2 Camp. 575, again there was the idea of a trick
and Lord Ellenborough C.J. says that where it is impossible to distinguish
what each party's contribution was then the innocent party has the ^
whole. These three cases do not establish the principle contended for by
the receivers. Blackstone's Commentaries (1830), 17th ed., vol. 2, at
pp. 404-405, simply relies on them for the purposes of his statement. In
the present case it is impossible to say that there was consent to render
uncertain the quantity stated in the bill of lading clause.
Lupton v. White, 15 Ves. Jun. 432, contains the fullest discussion in
any case. It was expressly found that the wrongdoers' intention was to H
render it impossible for an account to be taken as to whose ore came
from which source. There was a deliberate intermingling to defeat the
plaintiff's rights as to his property; see the argument of counsel, Sir
351
A Samuel Romilly, at pp. 434-435, where there is reference to Armory v.

Delamirie, 1 Str. 505, Lord Eldon L.C. draws a distinction between the
situation where the intermixture occurs and it is impossible to tell what
the parties' contributions were, and the situation where it was possible
and the quantities could be satisfactorily distinguished. The whole
approach of the judgment would be otiose if the proposition was so
simple that the plaintiff should have the whole mixture if there was an
" intermixture. The proposition that the whole goes to the innocent party
when his portion could not be distinguished is the result when all else
fails and is the only just solution. The "given quantity" referred to, at
p. 442, must refer to the amount that went in; the distinction is drawn
between the "whole" and the "given." The reference to Blackstone is to
the situation where the whole is given to the innocent party. Lord Eldon
Q L.C. gives no support to the simple rule that whenever there is any
intermixture the innocent party gets the whole, otherwise the bulk of his
judgment becomes irrelevant.
Spence v. Union Marine Insurance Co. Ltd., L.R. 3 C.P. 427, 437-
438, is simply a comment made obiter. It is quite clear that Joyce J. in
In re Oatway [1903] 2 Ch. 356, 359, supports the owners' propositions.
This case was not referred to the House of Lords in Sandeman's case
D [1913] A.C. 680. A wholly rational solution to the problem which
supports the owners' propositions and should be adopted by the court is
provided in Stephen's Commentaries on the Laws of England, 12th ed.
(1895), vol. 2, pp. 21-22; and support is found for it in Story on
Bailments, 9th ed. (1878), para. 40, pp. 41^4.
Paton, Bailment in the Common Law (1952), pp. 156-158 supports
£ the owners' argument; he refers to Lord Moulton in the Sandeman case
[1913] A.C. 680 as approving the principles, as proposed by the owners,
and his statement that the position is far from settled law.
In the light of the authorities, (1) there is no authority binding on
this court to the effect that in the case of a non-fraudulent mixture
where the quality of the mixed lots is known, the innocent owner
obtains title of the whole. (2) Any such rule would, on the merits, be
F contrary to common sense and justice. (3) In the case of deliberate non-
fraudulent mixture, the interests of the innocent party can be entirely
protected by a rule which entitles him to receive back the same quality
of his goods as went into the mixture. Only in the cases where it is
impossible to establish the proportions does one need a more draconian
rule. (4) The rule in (3) is a fair and just principle. (5) There was
Q nothing in the evidence to suggest the owners acted fraudulently or
dishonourably. (6) The quantity of oil put in was always known and it
was always intended that the receivers would get back the quantity
loaded. The reason they did not receive it all back was because of a
misapprehension at the discharge port. (7) Therefore, the receivers have
no claim as regards title. (8) Alternatively, if the receivers are right as to
the existence of a strict rule, the court has a discretion not to apply it
" where substantial injustice would result: see Lord Moulton's dictum in
the Sandeman case [1913] A.C. 680, 695. Given that such a discretion
exists, the arbitrators must be taken to have accepted that this is such a
case. In the facts found there was no suggestion that there was any
352
intention to steal any cargo. On the basis of the arbitrators' conclusions A

the owners are entitled to succeed. (9) Alternatively, on the question as
to who had title to the cargo when it was loaded, if the rule contended
for by the receivers exists, they have to show either (a) they were the
owners of the shipped cargo at the time of shipment, and (b) they did
not consent to or have knowledge of the mixing; or (c) if they were not
the owners at that time, that the shippers did not consent and have
knowledge; and (d) the shippers conveyed the whole cargo to the
receivers. It is accepted that this point was not raised before the
arbitrators.
In the present case, if the property loaded on board became that of
the shippers they purported to transfer 97 per cent, to the receiver/buyer
and retain the balance. There could be no title to the receivers until
delivery. Such a construction is not fanciful because some clauses in C
charterparties provide for the charterers becoming the owners of the
slops; this only arises on the assumption that the shippers did not
consent to the mixture. No facts were found in the present case that
the shippers did not consent or did not have knowledge as regards the
unconventional loading procedure adopted. It is difficult to see how the
arbitrators could have concluded there was a breach of contract. In Q
the shipment of a bulk cargo there can be no breach if the cargo is
mixed provided that there is no contamination. There must, therefore,
be an implied right to mix. There was clearly no conversion.
Rokison Q.C. in reply. The receivers' argument on bailment is
separate from that on title. The owners were in breach of their obligation
as bailees when they refused to give any part of the cargo remaining on
board at Madras. It is not enough for bailees to offer an equivalent E
amount. The bailor is entitled to require the return of his goods. The
amount left on board was the product of the mixture.
The American Law Institute's Restatement of the Law of Restitution
is not English law and is of no help. There is nothing in the authorities
to support its formulation. The owners' propounded principle does not
satisfy the reason for the strict rule, trie guarding against fraud, for p
example in a situation where an owner mixes cargo loaded with slops
already on board with a view to taking part of the cargo himself or
simply to up-grade the slops to the quality of the crude oil. Secondly, it
does not deal with the situation where the innocent party might become
unwillingly a trespasser of his own goods. If the result is common
ownership he owns none of it. If a shipper does not consent to the r
mixture, he cannot pass property in an unascertained part of generic
goods; if he did he would be committing a conversion.
Although there is no binding authority on the court, it should not
override or ignore a considerable weight of authority. Lord Moulton in
the Sandeman case [1913] A.C. 680, 695, does not say that it is a matter
for the court's discretion to apply the law as it thinks fit, nor did the
arbitrators conclude that they had a discretion. The problem in the H
present case does not arise over and over again; the mixing of grain
cargoes is very rare, and also the mixture between the cargo of a
shipper/charterer and the cargo of a shipowner. In the oil trade, if there
353
A is a charter of the vessel for a part cargo, it is normally identified by
being segregated.
If there is any qualification to the strict rule, it only applies where
there is an identity of quality and value. In the present case there was
no such description of the value and quality; it was an admixture of the
receivers' Russian crude with Iranian crude and the residues from other
cargoes. If the owner used the shipper's cargo to up-grade the quality of
B his slops that would be a fraud.
The distinction drawn in Stock v. Stock, Poph. 37, is as to the nature
of the wrong-doing, and not as to which party had title to the admixture
at the end of the day. There was no qualification as to whether there
was trickery or fraud. The principle is stated in very clear and unqualified
terms at the beginning of Coke C.J.'s judgment in Warde v. Aeyre, 2
Q Bulst. 323, again, it does not depend on whether there was fraud or
trickery or whether it was possible to divide up the whole. In Lupton v.
White, 15 Ves. Jun. 432, 436-437, Lord Eldon L.C. is dealing with a
bailment situation: the whole belongs to the innocent party if the
mixture cannot be distinguished.
Of course the dictum relied on in Spence v. Union Marine Insurance
Co. Ltd., L.R. 3 C.P. 427, 437-438, is obiter but it is a judgment of the
D court and it is clear and its terms unqualified. It is not a question
whether at the end of the day one has an homogeneous mixture as in In
re Oatway [1903] 2 Ch. 356, 359-360; it depends on the quality and
value of what was put into the mixture. In the instant case the cargoes
are of different kinds. The quantity put in by or on behalf of the
receivers was not known.
£ As to the question who had title to the goods when loaded, the
owners are not entitled to raise this now as it was not raised before the
arbitrators. In any event, the absence of consent is shown in the facts as
found.
Cur. adv. vult.
F 18 March. STAUGHTON J. read the following judgment. Confusio is

the Latin word for the mixing of goods belonging to two different
owners, so that they cannot be separated. Where they can be separated
it is commixtio: see Buckland, Text-Book of Roman Law, 3rd ed.
(1963), pp. 208-209. The effect in English law was decided as long ago
as 1594 in Stock v. Stock (1594) Poph. 37 (sometimes called Anon).
Q There, the decision of Popham C.J. and the Court of King's Bench was
this, at p. 38:
"the plaintiff pretending title to certain hay which the defendant
had standing in certain land, to be more sure to have the action
pass for him, took other hay of his own, (to wit, the plaintiff) and
mixed it with the defendant's hay, after which the defendant took
and carried away both the one and the other that was intermixed,
" upon which the action was brought, and by all the court clearly the
defendant shall not be guilty for any part of the hay, for by the
intermixture (which was his own act) the defendant shall not be
prejudiced as the case is, in taking the hay. And now the plaintiff
Q.B. 1988—17
354
Staughton J. Indian Oil Corpn. v. Greenstone Shipping S.A. [1988]
cannot say which part of the hay is his, because the one cannot be A
known from the other, and therefore the whole shall go to him who
hath the property in it with which it is intermixed."
In the present case the owners mixed crude oil loaded on their vessel
at Novorossisk in the Soviet Union with crude oil which was their own
property. At least for practical purposes the mixture could not be
separated, so it was a case of confusio. When the vessel came to B
discharge at Madras the owners claimed delivery of the whole. Hence
this dispute. Although the transfer of title to moveable things is in
general governed by the laws of the place where they are at the time
(Dicey & Morris, The Conflict of Laws, 10th ed. (1980), p. 555), which
in this case would be the Soviet Union, or a Greek ship on the high
seas, or the Union of India, it is agreed that I must decide this case in r
accordance with English law, having regard to the decisions of
Popham C.J. and of other judges since 1594.
On 29 November 1980 the owners chartered their vessel Ypatianna to
the Shipping Corporation of India Ltd. for the carriage of a part cargo
of 75,000 long tons of crude oil from Russia to India. The reason for the
restriction to 75,000 tons appears to have been the vessel's draft in the
Suez Canal. A bill of lading dated 26 December 1980 recorded that D
69,276 metric tons of Soviet export blend had been shipped by V/O
Sojuzneftexport at Novorossisk for carriage to one or more Indian ports.
The applicants, Indian Oil Corporation Ltd., were as the award finds the
receivers of the oil at Madras. Presumably the bill of lading was
endorsed to them and (subject to the issues in this case) the title to the
crude oil shipped then passed to them, if it was not their property
already (as may have been the case). I shall call them the "receivers."
On any view there was short delivery at Madras, compared with the
bill of lading quantity. For that the arbitrators have awarded the
receivers damages in the sum of U.S. $46,014.90. But the receivers'
contention is that they are entitled to a much greater sum as damages,
that is to say U.S. $388,000 or thereabouts, on the basis that all the
pumpable oil on board the vessel at Madras was their property and p
should have been delivered to them. They also complain that the
arbitrators applied a conventional tolerance in calculating the amount of
the shortage which was not supported by the facts found.
In point of form it was the owners who were claimants in the
arbitration. The remedy which they sought was U.S. $38,000 in respect
of over-delivery of crude oil. Even if that claim had been supported by
the facts, it is not clear to me how it would have been justified in law; G
but the point has not been argued, for the owners' claim failed and
there has been no appeal by them. This appeal is from the decision of
the arbitrators upon the receivers' counterclaims, pursuant to leave
granted by Leggatt J.
The figures H
The quantity loaded, as found in the award, was about 508,000
barrels. The bill of lading quantity is found to have been the equivalent
of 507,977 barrels. Crude oil on board before loading: (i) in the cargo
355
1 Q.B. Indian Oil Corpn. v. Greenstone Shipping S.A. Staughton J.
A tanks no more than 13,262 barrels. This may have included some ballast
water. Otherwise it comprised about 5,528 barrels of Iranian crude oil
from the immediately preceding voyage and the remainder was in part at
any rate Indonesian crude oil from the third previous voyage, (ii) In the
deep tanks 2,371 barrels.
The total quantity on board before loading was thus 15,633 barrels,
and the total after loading 523,610 barrels; each figure may have
" included some water.
Crude oil discharged was 503,896 barrels. Water discharged from the
cargo tanks was 6,229 barrels. Pumpable oil remaining on board after
discharge was 9,545 barrels. (There are two different figures in the
award for the quantity of crude oil remaining on board in terms of
weight but somewhat surprisingly they are both said to equal this
Q volume.)
The last three figures add up to 519,670. That is somewhat less than
the total quantity on board after loading. So far as I can tell the
difference can be explained only by evaporation, or because some
residues were unpumpable, or more probably in part by one of those
causes and in part by the other.
The receivers' smaller claim was for the shortage revealed by
D comparing the bill of lading quantity (507,977 barrels) with the quantity
of crude oil discharged (503,896 barrels). The arbitrators allowed that
claim in principle, but deducted a tolerance of 0.55 per cent, from the
bill of lading figure, or 2,793.87 barrels. Accordingly, they awarded
damages for a shortage of 1,287.13 barrels only. That deduction forms
the basis of one of the receivers' grounds of appeal.
£ The larger claim made by the receivers was based on the proposition
that all the pumpable oil remaining on board the vessel, 9,545 barrels,
had become their property and should have been delivered to them. I
assume, although the point was not discussed, that if this larger claim
succeeded the smaller claim would merge into it. However, the
arbitrators held that the larger claim failed; and that gives rise to the
receivers' other grounds of appeal.
F
Further facts
The bill of lading incorporated all the terms of the charterparty,
including the arbitration clause. The carriage was accordingly subject to
the Hague Rules for the carriage of goods by sea.
„ Four topics need further consideration. The first is the nature and
quality of the crude oil on board before loading. To the extent that it
comprised Iranian or Indonesian or other crude oils, I would infer that
its specification was not exactly the same as that of Soviet export blend.
But there is no finding that it was either better or worse. The furthest
that the award goes is this finding:
"There were no complaints at the time, neither have there been
" since, in respect of the quality of the crude oil discharged from the
vessel at Madras; therefore it has been assumed that the owners
discharged their primary obligation to deliver the bill of lading
cargo subject to a conventional shortage of 1,287.13 barrels."
356
Later it is said that there was no contamination of the receivers' crude A

oil. It does not necessarily follow that the quantity on board before
loading was, in point of quality, as good as or better than, Soviet export
blend. It would have comprised on average no more than 3 per cent, of
the cargo discharged, so that a quality claim might well have been
difficult to prove or trivial in amount. But there remains a possibility
that the owners may have wished to improve the quality of the oil which
they already had on board, and for that reason deliberately mixed it
with the cargo loaded at Novorossisk.
In passing I should mention that the crude oil on board before
loading was the property of the owners, either because they had paid for
it by way of penalties to previous consignees, or because it had been
abandoned to them by the true owners. The award describes the
quantity on board before delivery as "slops." I am not confident as to C
the precise meaning of that term—whether it can comprise simply crude
oil residues, or necessarily means crude oil mixed with water. The
arbitrators say that the slops "could have included some ballast water."
In the end, I do not think that the water content of the slops matters,
for this reason: it is recorded that a quantity of water was discharged—
6,229 barrels. That is not directly credited to the owners in the ^
calculation of the shortage claim: the claim starts by comparing the bill
of lading quantity with the quantity of crude oil discharged. But the
arbitrators make an allowance of 0.3 per cent, for water and sediment,
as part of their total allowance of 0.55 per cent. So far as water is
concerned, the notion is that it was entrained in the crude oil loaded but
settled out of it during the voyage. That would account for 1,524
barrels. The balance of the water discharged must have come from the E
slops. There is no reason to believe that they must have contained any
greater quantity of water. So I conclude that although the owners may
possibly have wished to improve the quality of their crude oil by mixing
it with the cargo loaded, there is no evidence that in fact they had that
objective or that they achieved it. The inference which I think it fair to
draw is that the crude oil loaded, and that already on board, were F
substantially of the same nature and quality.
The second topic is the conduct of the owners. The award finds that
there was interconnection between the vessel's cargo, ballast and fuel oil
systems which was a breach of the International Maritime Organisation
and Classification Societies rules. I am aware that a number of cases
have recently occurred where there has been the transfer of cargo to a „
vessel's fuel tanks for use on the voyage, thus constituting theft as well
as giving rise to danger of fire on board. So there is a hint here that
these owners were going equipped for theft; but it is no more than a
hint.
The awards finds that "during the voyage from Novorossisk to
Madras there were many deliberate inter-tank transfers and there were
also inter-tank leakages." That too is a hint, but no more than a hint, of H
wrong-doing on the part of the owners. It is sometimes appropriate and
necessary to make inter-tank transfers during a voyage, for example to
correct the trim of a vessel as bunker fuel is consumed. I decline to infer
357
A that deliberate wrong-doing on the part of the owners in that respect is

proved. As to events before loading, there is this passage in the award:
"The owners wanted to segregate out the crude oil remaining on
board the vessel before she arrived at Novorossisk and were quite
open in respect of this. There did not appear to be anything furtive
in their approach. They were commercially sensible or so one would
g think. They wanted to separate the relatively large quantity of crude
oil for which some payment had been made, so that it did not
become mixed with the other cargo. Their failure to segregate the
crude oil does not to our mind affect the issues in this case albeit
that the matter would be much different if contamination of cargo
had taken place."
C In the light of that finding, I should be slow to conclude that the owners
by their master deliberately mixed the cargo with their own oil for some
commercial motive.
Thirdly, I must say something about a procedure called load on top.
This has been devised in order to avoid pollution from tank washing and
ballast water. After successively washing some tanks and ballasting
others, the vessel ends up with all oil residues in one tank, no doubt
intermingled in some degree with water. New cargo is then loaded on
top in the slop tank, as well as in the other cargo spaces which are
empty. The effect is described by the arbitrators:
"The load on top procedure is widely used in the tanker business
and had been for many years prior to the voyage in question. It is
common usage or commonly understood in the bulk oil trade that
E charterers/receivers are entitled to all pumpable oil remaining in the
vessel's cargo tanks after discharge when the conventional load on
top procedure has been adopted. This may result in there being a
delivery from the vessel of more oil than the bill of lading quantity
loaded into the vessel although experience suggests that over
delivery is not common. There is no common usage or common
p understanding as far as we are aware in respect of what is the
practice in circumstances such as those now before us which were of
an unusual nature."
The usual load on top procedure was not employed in this case. The
existing residues were distributed among all or some of the vessel's
cargo tanks as well as in the deep tanks, rather than in one cargo tank
G only. Although this point featured in the owners' skeleton argument, at
the hearing it was not contended that the usage found in relation to the
load on top procedure is directly applicable here. However, Mr. Rokison
for the receivers seeks to derive some support from that usage. If
receivers are entitled to all pumpable oil when that procedure is
adopted, he argues that a fortiori they should be entitled to pumpable
residues when it is not. But the arbitrators^ finding does not, in my
** judgment, form a sufficient foundation for any binding custom or
practice when the pumpable oil exceeds the quantity loaded by a
substantial amount. It seems that the arbitrators recognised this, for they
said later in their award: "We also shrink from deciding that the
358
conventional 'load on top' procedure gives title to pumpable oil in the A

vessel in all circumstances. I agree with the arbitrators that their finding
does not establish any custom or practice which would be binding in this
case.
Fourthly, there is the question whether the cargo interests consented
to the mixing of the crude oil loaded with that already on board. The
award finds:
B
"There was no question of the receivers expressly assenting to the
mixing of the crude oils at the time of loading and/or during the
voyage to Madras. . . . there was no consent between the parties,
expressed or implied, to the mixing of the crude oil at the loading
port."
Those findings are conclusive that the receivers themselves did not C
consent. But may there have been consent on the part of the shippers,
or of whoever owned the cargo as it went into the vessel?
At first sight it seems to me surprising that anyone loading 69,000
tons of crude oil should not sound the ship's tanks first to see what was
in them already. But equally it is surprising that the arbitrators did not
intend to make any finding as to the knowledge or consent of the
shippers or those who owned the oil as it was loaded, since absence of
consent was a fundamental premise of the receivers' legal argument. Mr.
Pollock for the owners observes that there may have been some
confusion as to the status of the parties to the arbitration. In the
heading of the award Indian Oil Corporation Ltd. are described as
"respondents (charterers)" and in paragraph 3 it is recited that "the
charterers" appointed Mr. Newcomb as arbitrator on their behalf. But E
according to the charterparty, which has been put before me by consent,
the charterers were the Shipping Corporation of India Ltd. There is,
moreover, a dispute between counsel as to the extent to which the point
was raised in the arbitration. Mr. Rokison for the receivers asserts that
the case was treated before the arbitrators as one of admixture without
consent. If that be right I should not allow the owners now to raise the
question whether the shippers or the owners of the oil at the time of ^
loading consented. But Mr. Simon, who represented the owners at the
time of the arbitration, says that documents showed and it was common
ground that the shippers knew about the oil already on board the vessel.
Mr. Gross, who represented the receivers, disputes that.
The point may be of crucial importance. It is essential to the
receivers' argument that admixture took place without consent; and that Q
must mean, in my judgment, without consent of those who owned the
oil at the time of loading, or of any agent acting on their behalf. It is for
consideration whether the award should be remitted to the arbitrators
for them to state: (1) whether the case was, as Mr. Rokison says,
treated by all as one of admixture without consent; if not, (2)(a)
whether it was common ground that the shippers knew of the oil already
on board the vessel; and if yes, (b) whether the shippers owned the oil H
at the time, or were acting as agents for those who owned it; if not, (3)
whether in fact those who owned the oil at the time of loading or any
agent acting on their behalf consented to the admixture.
359
A The arbitrators may well be able to answer those questions sufficiently

without difficulty; and if the answers are important that seems to me the
best way to proceed. Perhaps there never was a snail in the ginger beer
bottle. But for the present I assume that there was no relevant consent
by anybody.
Whilst on the subject of what was and was not argued in the
arbitration, Mr. Pollock sought to put forward a case which it is
° admitted was not before the arbitrators. This was that the receivers must
show either that they owned the oil at the time of loading or that the
title to the whole contents of the vessel passed to them by some means
such as endorsement and delivery of the bill of lading. Seeing that this
point might well have been met by further evidence from the receivers,
was not raised at the time, and does not have any conspicuous merit
Q about it, I decline to allow it to be raised now.
(1) The tolerance of 0.55 per cent.

This is a short point. The arbitrators say in their award:
"In assessing this conventional shortage we have, based upon the
documentation and expert evidence produced before us, allowed
D the owners 0.30 per cent, in respect of water and sediment in the
crude oil cargo and 0.25 per cent, in respect of vapour losses while
the cargo was being loaded and discharged. The owners might in
other circumstances have been allowed more than a total tolerance
of 0.55 per cent., but the inter-tank transfers and leakages during
the ocean passage militated for a minimum allowance for the
owners. The arithmetic regarding the shortage is as follows: Bill of
E
lading quantity 507,977 barrels. Tolerance of 0.55 per cent. 2,793.87.
The difference 505,183.13. Received in store tanks"—which
presumably means shore tanks—"503,896.00. Shortage 1287.13
barrels."
The receivers complain that no tolerance should have been allowed
- and that they should have been awarded damages on their first claim
based on the total shortage of 4,081 barrels. That in money terms would
have come to U.S. $145,895.75 instead of the sum of U.S. $46,014.90
which they were in fact awarded by the arbitrators. The receivers
contend that there is no finding of any custom which justifies a tolerance
of 0.55 per cent, or any other figure; and as there was still crude oil on
board when the vessel sailed, it cannot be assumed that 0.55 per cent, of
G the oil loaded was lost as water and sediment or by evaporation.
I agree that there is no finding of custom. But despite their use of
the word "conventional" I do not think that the arbitrators were treating
the point as governed by custom. It was said as long ago as Giacomo
Costa Fu Andrea v. British Italian Trading Co. Ltd. [1963] 1 Q.B. 201,
218, and has been repeated since, that awards of commercial arbitrators
are not to be examined with a fine-toothed comb. What the arbitrators
" were finding, as seems clear to me, is that crude oil cargoes usually lose
0.25 per cent, by evaporation on an ocean voyage and that 0.3 per cent.
of the crude oil loaded was likely to have settled out as water and
sediment. I see no reason why they should not have made those findings
360
if they were justified by the documents and expert evidence before A

them. Only two months ago, in Amoco Oil Co. v. Parpada Shipping Co.
Ltd. [1987] 2 Lloyd's Rep. 69, I arrived at a figure of 0.2 per cent, for
evaporation on the evidence that was then before me. For all practical
purposes it is impossible to measure what loss in fact occurs by
evaporation on every tanker voyage. The obvious solution is to act on
the evidence of experts as to what loss is likely to have occurred. The
difficulty is rather less with water and sediment, which can be measured **
in a sample of the oil before loading. But I see no ground for rejecting
the arbitrators' finding of an apparent loss of 0.3 per cent, by water and
sediment, settling out of the cargo. The fact that crude oil remained on
board after discharge seems to me immaterial on this point. No doubt
there was evaporation from the owners' oil as well; and it is plain from
the figures that water settled out of it to a much greater extent than Q
from the crude oil loaded.
The owners are not liable for the inevitable loss by evaporation,
under the Hague Rules. And the apparent loss by settling out of water
and sediment is not a loss of cargo at all, or at any rate not a loss of
anything of value. Hence I uphold the arbitrators' conclusion on the
tolerance point. The receivers' appeal in respect of their smaller claim
fails. D
(2) The admixture claim

Mr. Rokison's submission is as follows: where B wrongfully mixes
the goods of A with goods of his own, so that the original goods cannot
be separated or identified, the whole of the mixture becomes the
property of A. So it is a case of "happy undeserving A," if not also of E
"wretched meritorious B."
Mr. Pollock's submission is this: where a wilful admixture occurs
without consent, both parties have a joint interest in the whole and the
innocent party is entitled to receive his full contribution from the
mixture even if it has been diminished by subsequent accidental loss.
Alternatively, he submits that the general rule is as above, but that the „
innocent party is entitled to the whole if (1) the admixture was
deliberately brought about for the purpose of depriving the innocent
party of his rights, or making them difficult of enforcement, and (2) it is
impossible to tell with any certainty what the contributing proportions
had been.
There are numerous and very distinguished authorities. But it is
agreed on both sides that none of them is binding on me. In the G
circumstances, I do not see that I can refrain from citing all those which
were put before me, even if the result is an inordinately long judgment
for a case where the argument lasted rather less than two days.
Stock v. Stock (1594) Poph. 37, 38 has already been quoted in part.
Even as a record of Tudor law I consider the case to be of very little
authority. The reports of Popham have been described as a "mangled
and ill-translated edition": Wallace, The Reporters, 4th ed. (1882), H
p. 207. And if one accepts that the report of this case is accurate, there
is a degree of confusion in it which is not easy to resolve.
Warde v. Aeyre (1615) 2 Bulst. 323 is reported as follows:
361
A "In an action of trespasse for an assault and battery, & quod

cumulum pecuniae, containing five markes, cepit. The case appeared
to be this, the plaintiffe and the defendant, being at play, the
plaintiffe thrust his money into the defendant's heape, and so
intermingled them together: the defendant kept all, and upon this,
being striving together for the money, for this the plaintiffe brings
his action.
° "Coke C.J. In this case, the law is, that if I.S. have a heape of
corn, and I.D. will intermingle his corne with the corne of I.S. he
shall here have all the corne, because this was so done by I.D. of
his own wrong, and so it was adjudged in a case between Shordish
and Moore, and so it is in case of money, if two being at play, and
the one of them will intermingle his money in the others heap of
Q money, he shall now have all, for this is so done by him of his own
wrong, and this we have so adjudged in one Sir Richard Martins
case, for that his own proper money, or corn cannot now be known,
and therefore by this his intermingling, being his own act, and of his
own wrong, by the law he shall lose all, for this is so used and done
by him, onely as a trick, thinking thereby to deceive the other, and
so to gain something by this to himself, but by this his so doing, he
D hath deceived himself, and shall now by this his tortious act, lose
all; and if this should be otherwise, a man should be made to be a
trespasser, volens nolens, by the taking him of his goods again, and
for the avoiding of this inconvenience, the law in such a case is, that
he shall now retein all; the whole court agreed with him herein
against the plaintiffe, and for the reason aforesaid, and so the rule
g of the court was, quod querens nil capiat per billam."
That case is consistent both with Mr. Rokison's argument and also
with Mr. Pollock's qualified proposition. The admixture was brought
about by a trick in order to deceive, and it seems likely that the
proportion which each part had contributed to the mixture could no
longer be determined.
F In Colwill v. Reeves (1811) 2 Camp. 575 the headnote reads:
"A shopkeeper may maintain trespass for taking goods sent to him
on sale or return. If A for a fraudulent purpose mixes his goods
with B's; still, if they can be distinguished, he retains the property
in them; and he may maintain trespass against a person who, having
a right to take B's goods, ignorantly takes these goods of A as part
G of B's."
Lord Ellenbrough C.J. said, at pp. 576-577:
"If a man puts corn into my bag, in which there is before some
corn, the whole is mine; because it is impossible to distinguish what
was mine from what was his. But it is impossible that articles of
furniture can be blended together so as to create the same difficulty.
The goods in question remained distinct, and the messenger might
have discovered that they belonged to the plaintiff. He took them at
his peril. Whatever fraud there might be in the case, the property
was not divested from the plaintiff, and the stratagem described is
362
no defence on the general issue to an action at his suit for taking A

and converting the goods."
That case cannot be said to be inconsistent with Mr. Pollock's
qualified proposition.
Meanwhile the subject had received much fuller treatment in Lupton
v. White (1808) 15 Ves. Jun. 432. There a dispute had arisen between
the owners of adjoining lead mines and an injunction had been granted. B
It was dissolved upon the defendant undertaking to keep a distinct
account of the ore which he might take from the plaintiff's mine. Later
it was shown that the ore had been mixed by the defendant, at p. 433,
"for the purpose of preventing a discovery of the ore got" from the
plaintiff's mine; that the accounts and books had been, "so kept or
contrived as to prevent a true discovery;" and that no true estimate ^
could be formed of the quantity of ore got from the plaintiffs mine.
Lord Eldon L.C. said, at p. 436:
"If the result is, that the master cannot take the account, it is
clearly not for him, without a farther direction, to apply the great
principle, familiar both at law and in equity, that, if a man, having
undertaken to keep the property of another distinct, mixes it with
his own, the whole must both at law and in equity be taken to be ^
the property of the other, until the former puts the subject under
such circumstances, that it may be distinguished as satisfactorily, as
it might have been before that unauthorised mixture upon his part."
The case was reargued. On that occasion Lord Eldon L.C. said, at
pp. 439-441: E
"If a man by his own tortious act makes it impossible for another to
ascertain the value of his property, and that in a transaction, in
which the former was, not merely under an implied moral obligation,
but pledged by a solemn undertaking in a court of justice, that such
should not be the state of things between them, by those means
preventing the guard which the court would have effectually „
interposed, is the argument to be endured, that, as the party, so
injured, cannot distinguish his property, therefore he shall have
nothing? That is not the law of this country; as administered in
courts either of law or equity. The case (Armory v. Delamirie
(1722) 1 Str. 505) of the diamond ring, found by a poor boy, proves
the contrary. He had not the means of showing the value. The
person who took it from him, by wrong, prevented the jury from G
ascertaining the value by production of the ring, or other evidence.
Therefore, as it was proved, that the plaintiff's evidence had been
destroyed by the act of that person, who ought to have refrained
from placing the transaction in that state, the Lord Chief Justice
directed the jury to find, that the stone was of the utmost value
they could find; upon this principle, that it was the defendant's own
fault, by his own dishonest act, that the jury could not find the real
value. The case of Panton v. Panton (in the Court of Exchequer)
applies to this. A clerk in a banking-house at Chester remitted his
own money, with that of his employer, to an agent in London, to
363
A be laid out upon security; and by management the securities were

so changed, that the property could not be distinguished. The Court
of Exchequer held, that, the confusion being occasioned by him,
who so dealt with the property, the distinction lay upon him; and, if
he could not distinguish, what was his own, the whole must be
considered as belonging to the other. A principle, not dissimilar,
though not precisely the same, governed me in the case of Mr.
" Jackson's executors (White v. Lady Lincoln, The Duke of Newcastle
v. Kinderley (1803) 8 Ves. Jun. 363). There was no more duty
imposed upon him than upon these individuals. He had kept the
account, and, as it appeared to me, not incorrectly, upon his own
side: but, having kept it only upon his own, though bound to keep
it upon the other, side, it was held, that he could not maintain a
Q demand, to which under other circumstances he would have been
fairly entitled. The decision was made, not upon the notion, that
strict justice was done, but upon this; that it was the only justice,
that could be done; and that no more could be done was the fault
of Jackson himself; who, if he did not enable those parties to know,
what demand they had upon him, could not be heard to say, he had
any demand upon them."
D
Then, at p. 441:
"What are the cases in the old law of a mixture of corn or flour? If
one man mixes his corn or flour with that of another, and they were
of equal value, the latter must have the given quantity: but, if
articles of different value are mixed, producing a third value, the
E aggregate of both, and through the fault of the person, mixing
them, the other party cannot tell, what was the original value of his
property, he must have the whole and the principle goes to the full
extent of what is now contended."
The analogy with Armory v. Delamirie (1722) 1 Str. 505 is striking. If
the wrongdoer prevents the innocent party proving how much of his
F property has been taken, then the wrongdoer is liable to the greatest
extent that is possible in the circumstances. That is consistent with Mr.
Pollock's qualified proposition, or at any rate with the second part of it.
So too are Lord Eldon L.C.'s remarks about corn or flour. If the
components are proved to be of equal value, the innocent party is
entitled only to the given quantity, which I take to be that which he
P contributed. It is only if the innocent party cannot tell what was the
original value of his property that he is entitled to the whole.
A footnote to the report of Lupton v. White (1808) 15 Ves. Jun. 432
refers to Blackstone's Commentaries, 17th ed. (1830), vol. 2, pp. 404-
405:
"But in the case of confusion of goods, where those of two persons
are so intermixed that the several portions can be no longer
distinguished, the English law partly agrees with, and partly differs
from, the civil. If the intermixture be by consent, I apprehend that
in both laws the proprietors have an interest in common, in
proportion to their respective shares. But if one wilfully intermixes
364
his money, corn, or hay, with that of another man, without his A
approbation or knowledge, or casts gold in like manner into
another's melting pot or crucible, the civil law, though it gives the
sole property of the whole to him who has not interfered in the
mixture, yet allows a satisfaction to the other for what he has so
improvidently lost. But our law, to guard against fraud, gives the
entire property, without any account, to him whose original
dominion is invaded, and endeavoured to be rendered uncertain, ^
without his own consent."
The arbitrators in the present case expressed a preference for the
Roman law, in plain terms. For my part I am not convinced that either
Blackstone or the arbitrators correctly summarised the Roman law. In
the Institutes of Justinian II.1.28, dealing with the case of corn mixed by
accident or deliberately by one party, it is said that C
"the corn is no more made common property than there would be a
common herd if Titius' cattle were mixed with yours. And if either
of you holds the whole of the corn, the other will have an action in
rem for the amount of his grain, it being a matter for the judge to
estimate which grain is whose (in rem quidem actio pro modo
frumenti cuiusque competat, arbitrio autem judicis continetur, ut is D
aestimet, quale cuiusque frumentum fuerit)."*
The effect, however, is in economic terms the same.
It is to be noted that the motive ascribed by Blackstone is, "to guard
against fraud." And Mr. Pollock emphasises the words "and endeavoured
to be rendered uncertain," as indicating an intention to conceal the
innocent party's property. E
Before returning to the cases, I refer to another respected
commentator. Stephen's Commentaries on the Laws of England, 12th ed.
(1895), vol. 2, pp. 21-22, after citing Blackstone almost verbatim,
continues:
"However, this rule of the English law applies only to cases where
the confusion is such as to render it impossible to subsequently p
apportion the respective shares; for if the goods continue to be
distinguishable, as in the instance of articles of furniture thrown
together, the confusion makes no alteration in the property (Colwill
v. Reeves 2 Camp. 576); or if the quality of the articles is uniform,
and the original quantities are known, as in the case of £500 of trust
money mixed with £300 of the trustee's own money, the party by
whose act the confusion took place would still be entitled to claim G
his proper quantity, subject only to the quantity of the other
proprietor being first made good out of the whole mass."
That, as it seems to me, entirely accords with Mr. Pollock's qualified
proposition, or at least with the second part of it.
In Spence v. Union Marine Insurance Co. Ltd. (1868) L.R. 3 C.P.
427, bales of cotton belonging to different owners had lost their marks H
owing to a casualty at sea. The case seems to have been treated as one
* Institutes of Justinian Text, Translation and Commentary, J. A. C Thomas (1975),
p. 69.
365
A of accidental mixture and is therefore not directly in point. Bovill C.J.

said, at pp. 437-438:
"In our own law there are not many authorities to be found upon
this subject; but, as far as they go, they are in favour of the view,
that, when goods of different owners become by accident so mixed
together as to be undistinguishable, the owners of the goods so
g mixed become tenants in common of the whole, in the proportions
which they have severally contributed to it. The passage cited from
the judgment of Blackburn J. in the case of the tallow which was
melted and flowed into the sewers, is to that effect: Buckley v.
Gross (1863) 3 B. & S. 574. And a similar view was adopted by
Lord Abinger in the case of the mixture of oil by leakage on board
ship in Jones v. Moore (1841) 4 Y. & C. Ex. 351. It has been long
C settled in our law, that, where goods are mixed so as to become
undistinguishable, by the wrongful act or default of one owner, he
cannot recover, and will not be entitled to his proportion, or any
part of the property, from the other owner: but no authority has
been cited to show that any such principle has ever been applied,
nor indeed could it be applied, to the case of an accidental mixing
p. of the goods of two owners; and there is no authority nor sound
reason for saying that the goods of several persons which are
accidentally mixed together thereby absolutely cease to be the
property of their several owners, and become bona vacantia."
The obiter dictum in that passage as to wrongful admixture is direct
support for Mr. Rokison's argument.
g Cook v. Addison (1869) L.R. 7 Eq. 466 was a case of mixture of
trust funds. Sir John Stuart V.-C. said, at p. 470:
"It is a well-established doctrine in this court, that if a trustee or
agent mixes and confuses the property which he holds in a fiduciary
character with his own property, so as that they cannot be separated
with perfect accuracy, he is liable for the whole. This doctrine was
explained by Lord Eldon in Lupton v. White (1808) 15 Ves. Jun.
432. In this case it is impossible to say how much of the £250
received by the defendant Addison from Fowler for repairs consisted
of what was due under the covenant to repair in the underlease.
The consequence is, that the whole £250 is liable to the demands of
the cestui que trust so far as necessary to make up, with the other
sums admitted to be part of the trust property, the full amount of
G the trust fund of £520, with interest at 5 per cent, per annum from
30 April 1865 . . ."
That does not, as I see it, amount to a decision that the whole of the
mixed fund belonged to the trust, but rather that it was available so far
as necessary to make good the amount lost by the trust.
In re Oatway [1903] 2 Ch. 356 was also a trust case. There is a
H significant passage in the judgment of Joyce J., at pp. 359-360:
"It is a principle settled as far back as the time of the Year Books
that, whatever alteration of form any property may undergo, the
true owner is entitled to seize it in its new shape if he can prove the
366
identity of the original material: see Blackstone, vol. ii, p. 405 and A
Lupton v. White (1808) 15 Ves. Jun. 432. But this rule is carried no
farther than necessity requires, and is applied only to cases where
the compound is such as to render it impossible to apportion the
respective shares of the parties. Thus, if the quality of the articles
that are mixed be uniform, and the original quantities known, as in
the case of so many pounds of trust money mixed with so many
pounds of the trustee's own money, the person by whose act the "
confusion took place is still entitled to claim his proper quantity,
but subject to the quantity of the other proprietor being first made
good out of the whole mass: 2 Stephen's Commentaries (13th ed.),
20. Trust money may be followed into land or any other property in
which it has been invested; and when a trustee has, in making any
purchase or investment, applied trust money together with his own, Q
the cestuis que trust are entitled to a charge on the property
purchased for the amount of the trust money laid out in the
purchase or investment."
That is support for Mr. Pollock's proposition, subject to the second part
of his qualification.
In Sandeman & Sons v. Tyzack and Branfoot Steamship Co. Ltd. D
[1913] A.C. 680 a consignee of bales of jute claimed that six of his bales
were missing. It was found that 14 bales, belonging either to that
consignee or to others, were missing; and that 11 bales were available
without any marks. It was held that the consignee was entitled to claim
for his six bales not delivered, and was not obliged to accept that any of
the unmarked bales belonged to him. The obiter dictum of Lord p
Moulton is directly in point, at pp. 694-695:
"My Lords, if we proceed upon the principles of English law, I do
not think it a matter of difficulty to define the legal consequences of
the goods of 'A' becoming indistinguishably and inseparably mixed
with the goods of 'B.' If the mixing has arisen from the fault of 'B,'
'A' can claim the goods. He is guilty of no wrongful act, and
therefore the possession by him of his own goods cannot be *
interfered with, and if by the wrongful act of 'B' that possession
necessarily implies the possession of the intruding goods of 'B,' he
is entitled to it (2 Kent's Commentaries, 10th ed., 465). But if the
mixing has taken place by accident or other cause, for which neither
of the owners is responsible, a different state of things arises.
Neither owner has done anything to forfeit his right to the possession Q
of his own property, and if neither party is willing to abandon that
right the only equitable solution of the difficulty, and the one
accepted by the law, is that 'A' and 'B' become owners in common
of the mixed property. Farther than this I do not think that it is safe
to go. That the whole matter is far from being within the domain of
settled law is shown by the divergence of opinions as to the relative
shares of the participating parties in the case of an accidental "
commixtio. Blackburn J. in Buckley v. Gross (1863) 3 B. & S. 566,
at p. 575 (following Kent's Commentaries) considers that they would
be tenants in common in equal shares. In Spence v. Union Marine
367
A Insurance Co. (1868) L.R. 3 C.P. 427 they were judged to possess
the mixed mass in proportion to the probable amounts of their
contributions to it. The fact is that the conclusions of the courts in
such cases, though influenced by certain fundamental principles,
have been little more than instances of cutting the Gordian knot—
reasonable adjustments of the rights of parties in cases where
complete justice was impracticable of attainment. I doubt whether
B even the fundamental principles enunciated above would be strictly
adhered to in extreme cases where they would lead to substantial
injustice. For instance, if a small portion of the goods of 'B' became
mixed with the goods of 'A' by a negligent act for which 'A' alone
was liable, I think it quite possible that the law would prefer to
view it as a conversion by 'A' of this small amount of 'B's' goods
Q rather than do the substantial injustice of treating 'B' as the owner
of the whole of the mixed mass."
Mr. Rokison relies on the first part of that passage, on the law as to
wrongful admixture. The difficulty that I feel is over the later observation,
that those principles might not be strictly adhered to if they would lead
to substantial injustice—for example, if the innocent party's contribution
D had been small. I have difficulty in understanding how a rule of law as
to rights of property can be subject to the qualification that it must not
cause substantial injustice. Rather than conclude that some rule of
equity prevails in such cases, I would suppose that Lord Moulton did
not intend to lay down rules of settled law, but instead to offer an
opinion as to what the law might turn out to be if such cases arose.
The last of the cases cited was Jones v. De Marchant (1916) 28
D.L.R. 561. The headnote in that case reads:
"Where beaver skins belonging to a wife have been wrongfully
taken from among her effects by her husband, who has them made
up into a fur coat which he makes a gift of to a third person, the
property in the coat is in the wife under the principle of 'accession,'
and the coat may be recovered by her in an action of replevin."
F
It seems that the coat was made up of 18 skins taken from the
plaintiff and another four provided by the husband. Nobody suggested
that the coat should be severed or dismantled. The case was one of
accessio. Apart from the fact that Richards J.A., at p. 563, cited
Blackstone's Commentaries, p. 405, with apparent approval, the decision
P is not of assistance in the present case.
Other authorities relied on were Smith's Leading Cases, 13th ed.
(1929), vol. 1, p. 396; Story on Bailments, 9th ed. (1878), pp. 41-44;
Holdsworth, A History of English Law, 2nd ed., vol. VII (1937),
pp. 501-502; Halsbury's Laws of England, 4th ed., vol. 35 (1981), para.
1139, and vol. 2 (1973), para. 1537. With the possible exception of
Holdsworth, those support Mr. Rokison's argument. In modern times
H there is Goff and Jones, The Law of Restitution, 3rd ed. (1986), pp. 65-
66:
"At law, as in equity, the plaintiff must be able to identify his
property in the hands of the defendant. Where the plaintiff is
368
claiming non-fungible chattels, this important practical limitation A

will create little difficulty. But the identity of fungibles may become
easily lost by their becoming mixed with other fungibles.
Consequently if grain has become mixed in a ship or in a warehouse,
the common law applies the special rules, akin to those developed
in Roman law, of commixtio and confusio. Where A's property has
become inseparably mixed with B's, the resultant mass will belong,
in proportion to their contributions, to A and B as tenants in °
common. But if the mixing has been due to the wrongful act of
either A or B, then English law appears to make a significant and
punitive departure from the Roman doctrine and to give the
property in the whole mass to the innocent party."
The arbitrators said of that passage: "The above erudition exemplifies
some uncertainty about the English law on the topic thus allowing us to ^
take our own course."
Paton, Bailment in the Common Law (1952), pp. 156-158, appears to
support Mr. Pollock's qualified argument, although one section, at
p. 157, has the heading "Present Law Uncertain." Birks, Introduction to
the Law of Restitution (1985), p. 368, refers to the maxim that everything
is presumed against a thief, and continues: D
"This is the spirit in which the exercise of identification has been
conducted against those who have been guilty of wrongful
misappropriation."
Matthews in Current Legal Problems, vol. 34 (1981), p. 159, supports
Mr. Rokison's argument.
Finally, I was referred to the American Law Institute's Restatement E
of the Law of Restitution (1937), para. 209:
"Where a person wrongfully mingles money of another with money
of his own, the other is entitled to obtain reimbursement out of the
fund."
Paragraph 214 provides: F
"The rules stated in paragraphs 209-213 are applicable where a
person wrongfully mingles things other than money.
"Comment: a. Mingling of fungible things. The rule stated in this
section is applicable where a person wrongfully mingles fungible
things, such as grain. If a person wrongfully mingles the grain of
another with grain of his own in a bin, the other is entitled to
receive from the grain in the bin the amount of his grain so G
mingled, even though a part of the grain has been withdrawn from
the bin (compare paragraph 211)."
Two points of significance in my view emerge from the authorities.
First, in some cases a decision had to be made "not upon the notion,
that strict justice was done, but upon this; that it was the only justice,
that could be done," per Lord Eldon L.C. in Lupton v. White, 15 Ves. "
Jun. 432, 440. Or as Lord Moulton put it, such cases "have been little
more than instances of cutting the Gordian knot—reasonable adjustments
of the rights of the parties in cases where complete justice was
369
A impracticable of attainment," in Sandeman & Sons v. Tyzack and

Branfoot Steamship Co. Ltd. [1913] A.C. 680, 695. Secondly, if the
wrongdoer has destroyed or impaired the evidence by which the innocent
party could show how much he has lost, the wrongdoer must suffer from
the resulting uncertainty. Thus the jury in Armory v. Delamirie, 1 Str.
505 were directed by Pratt C.J. to award the plaintiff the value of the
finest jewel which the socket would hold, not the finest jewel that had
° ever been known.
The combined effect of those principles would justify and require
that where it is totally unknown how much of the innocent party's goods
went into the mixture, the whole should belong to him. But I do not see
that they require or justify the same result where it is known how much
was contributed by the innocent party, or even what the maximum
C quantity is that he can have contributed, being something less than the
whole. That would not be the only justice that could be done; it would
be injustice.
As for the reason given by Blackstone—"to guard against fraud"—in
my opinion that will be sufficiently achieved if the principle in Armory
v. Delamirie, 1 Str. 505 is followed. I do not see that it is the function of
n civil justice to punish or discourage crime by awarding the victim more
than he has lost, unless it be in the special case of an award of
exemplary damages. There is the allied principle that the courts will not
enforce an illegal contract or one that is tainted with illegality. But that
has its limits. See the judgment of Devlin J. in St. John Shipping
Corporation v. Joseph Rank Ltd. [1957] 1 Q.B. 267, 279-280:
P "When the master of the plaintiffs ship St. John was prosecuted at
Birkenhead under the [Merchant Shipping (Safety and Loadline
Conventions) Act 1932] and, on 28 November 1955, found to have
overloaded his ship by more than 11 inches, he was fined the
maximum of £1,200; but the amount of cargo by which the ship was
overloaded was 427 tons and the extra freight earned was £2,295.
So the ship came very well out of this situation; and she and other
F ships will doubtless continue to come very well out of similar
situations until the Act of 1932 is amended. I can see that it is a
situation that must cause some concern to cargo owners whose
property is at risk. The ship was carrying a cargo of about 10,000
tons of grain from Mobile, Alabama, U.S.A., to Birkenhead. The
defendants held a bill of lading for about 3,500 tons of this quantity
Q on which the freight due was nearly £19,000. The defendants,
apparently in association with the charterers, decided that some
additional punishment should be inflicted on the plaintiffs, and that
it should take the form of withholding the £2,295 extra freight. The
defendants have withheld £2,000, for which sum they are being sued
in this action, and another cargo owner has withheld £295 and is
being sued for it in an action that depends on this one. This is the
" explanation of how this dispute has arisen. But I, of course, have
not got to decide whether the defendants are morally justified in
trying to make good deficiencies in the criminal law; nor is any
justification of that sort put forward in the case."
370
In the present case there is, as I have said, a hint that the owners A
were engaged in wrong doing, but on the award as a whole I do not
conclude that they mixed the cargo with their own oil for some
commercial motive. It would be a severe penalty to impose on them a
fine of U.S. $342,000 for their conduct (that being the difference
between the receivers' larger claim of U.S. $388,000 and the award in
respect of the shortage of some U.S. $46,000). The arbitrators, who
know a great deal about the business of carriage by sea, did not perceive "
justice in that; and neither do I. But in any event, the rule cannot,
unless Lord Moulton's qualification in the Sandeman & Sons case [1913]
A.C. 680, 695, represents the existing law, be altered to suit the
circumstances of each particular case. It must be one rule for all cases.
Those may vary between one where the shipowner deliberately mixes
property with a view to stealing it, to another where he does so purely Q
for convenience of carriage without any intention to harm anybody.
The other motive to be found in the cases is that of Coke C.J. in
Warde v. Aeyre, 2 Bulst. 323, 324, "otherwise, a man should be made to
be a trespasser, volens nolens, by the taking of his goods again . . . " In
theory there may still be cases where that reasoning is sound, for
example, if a farmer wished to retake his hay from a heap where it had
been wrongly mixed with that of somebody else. In practice, it is not D
likely to arise often and certainly not in the present case: the notion of
the Indian receivers boarding the owners' vessel after the conclusion of
discharge at Madras in order to retake their oil is implausible. I would
not regard that argument as justification for a rule which may work
substantial injustice.
In the days when corn and hay were to be found in heaps which g
could not be measured accurately, when such disputes were tried by jury
and witnesses might be illiterate or ignorant, a rough and ready rule
which Goff and Jones, p. 66, describe as punitive may have been the
best that the law could find. But a primitive rule is no longer appropriate
when modern and sophisticated methods of measurement are available.
The measurement of cargoes of oil is, as I learnt in Amoco Oil Co. v.
Parpada Shipping Co. Ltd. [1987] 2 Lloyd's Rep. 69, conducted with F
care and precision. It will not, of course, achieve absolute accuracy.
What method of measurement ever does? But for all practical purposes
the quantity of the innocent party's goods which have gone into the
mixture can often be ascertained with a sufficient degree of precision, as
it can be in this case. Similarly, there are methods of sampling and
analysis which should enable the quality of the innocent party's goods, Q
and of the mixture, to be assessed. If doubt remains as to either
quantity or quality, the principle of Armory v. Delamirie, 1 Str. 505
provides a solution.
Seeing that none of the authorities is binding on me, although many
are certainly persuasive, I consider that I am free to apply the rule
which justice requires. This is that, where B wrongfully mixes the goods
of A with goods of his own, which are substantially of the same nature ^
and quality, and they cannot in practice be separated, the mixture is
held in common and A is entitled to receive out of it a quantity equal to
that of his goods which went into the mixture, any doubt as to that
371
A quantity being resolved in favour of A. He is also entitled to claim

damages from B in respect of any loss he may have suffered, in respect
of quality or otherwise, by reason of the admixture.
Whether the same rule would apply when the goods of A and B are
not substantially of the same nature and quality must be left to another
case. It does not arise here. The claim based on a rule of law that the
R mixture became the property of the receivers fails.
(3) The bailment claim

Mr. Rokison's submission on this point is that where A is the bailee
of B's goods and A fails or refuses to deliver the same to B then B is
_ entitled to claim those goods or damages in respect of the value of the
same. The cause of action is said to be "in bailment." For my part I find
difficulty in distinguishing it from the cause of action relied on in section
(2) of this judgment; but one point of distinction became clear in the
course of the argument. Whilst the claim just considered was for the
whole of the pumpable oil on board the vessel, under this head the
receivers claim only 97 per cent., being that proportion of it which they
D say was their property. They give no credit for the fact that, amongst
the oil which was delivered to them, 3 per cent, was the property of the
owners.
The answer to this point is, as Mr. Pollock submits and I agree, that
the mixture was held in common by the receivers and the owners. The
receivers were entitled to an amount equal to their contribution to the
E mixture. That has been delivered to them, except for the small shortage
in respect of which the arbitrators awarded them damages. What
remained in the vessel became the property of the owners alone. I do
not consider that the decision in the Sandeman & Sons case [1913] A.C.
680, as opposed to Lord Moulton's observations, requires me to reach
any other conclusion.
p It might, I suppose, have been argued that the loss in transit of 0.55
per cent, should not have been deducted from the receiver's shortage
claim, on the ground that the owners' share is deemed to suffer from
accidental loss before the receivers' share. That argument was not put
forward, but paragraph 214 of the American Law Institute's Restatement
of the Law of Restitution might be said to support it, and Mr. Pollock's
r main proposition makes provision for accidental loss to be borne by the
wrongdoer. In fact, the argument would not apply to the 0.3 per cent.
apparent loss, by reason of water and sediment settling out of the crude
oil. That, as I have said, was not a loss at all, or at any rate, not a loss
of anything of value. As to the loss of 0.25 per cent, by evaporation,
that was not an accidental loss but one by natural wastage. No doubt the
oil loaded as cargo, the oil already on board, and the mixture all
H suffered equally from evaporation—or if there were differential rates the
oil loaded recently suffered most. If this small point had been raised, I
should not have held that the owners' share of the mixture must suffer
all loss by evaporation before any is attributed to the receiver's share.
372
In those circumstances, no purpose would be served in remitting the A
case to the arbitrators on the point about consent, at all events, unless
either party intends to appeal. This appeal fails and the award is upheld.
Appeal dismissed with costs, includ-

ing costs of application for leave
to appeal.
Certificate pursuant to section 1(7) °
of the Arbitration Act 1979 that
question of law whether the recei-
vers' claim that they were entitled
to all pumpable oil on board vessel
was correct was one of general
public importance. Q
Leave to appeal.
Solicitors: Ince & Co.; Williamson & Westlake.
[Reported by ROBERT RAJARATNAM, ESQ., Barrister-at-Law]
[QUEEN'S BENCH DIVISION]

E
ADAMS AND ANOTHER V. RILEY
[1985 A. No. 12]

1987 July 30; Hutchison J.
Oct. 7
F
Legal Aid—Costs—Successful unassisted party—Legally aided plain-
tiffs claim against individual—Financial hardship caused to
unassisted defendant—Relevance of spouse's income—Whether
"severe financial hardship" to defendant if costs not recouped—
Whether costs to be recovered from legal aid fund in whole or in
part-Legal Aid Act 1974 (c. 4), s. 13(l)(3)(b)
The legally aided plaintiff was unsuccessful in his action Q
alleging professional negligence against the unassisted defendant.
The defendant applied for an order, under section 13 of the
Legal Aid Act 1974,' for his costs, estimated at £12,600, to be
paid out of the legal aid fund. The judge, being satisfied that
1
Legal Aid Act 1974, s. 13: "(1) Where any party receives legal aid in connection with
any proceedings . . . and those proceedings are finally determined in favour of the u
unassisted party, the court may . . . make an order for the payment to the unassisted
party out of the legal aid fund of the whole or any part of the costs incurred by him . . .
(2) An order may be made . . . only if the court is satisfied that it is just and equitable
. . . (3) . . . no order shall be made . . . unless ...(b) the court is satisfied that the
unassisted party will suffer severe financial hardship unless the order is made."

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345

1 Q.B. Reg. v. Judicial Committee, Ex p. Vijayatunga (D.C.) Simon Brown J.

A application that, in regard to each petition, the committee did indeed

[QUEEN'S BENCH DIVISION]

INDIAN OIL CORPORATION LTD. v. GREENSTONE SHIPPING

1987 March 4, 5; 18 Staughton J.

Shipping—Bill of lading—Cargo, intermixture of—Crude oil mixed

The following cases are referred to in the judgment:

A obliged to keep the goods separate unless there is express or implied

A Samuel Romilly, at pp. 434-435, where there is reference to Armory v.

intention to steal any cargo. On the basis of the arbitrators' conclusions A

F 18 March. STAUGHTON J. read the following judgment. Confusio is

Later it is said that there was no contamination of the receivers' crude A

A that deliberate wrong-doing on the part of the owners in that respect is

conventional 'load on top' procedure gives title to pumpable oil in the A

A The arbitrators may well be able to answer those questions sufficiently

(1) The tolerance of 0.55 per cent.

if they were justified by the documents and expert evidence before A

(2) The admixture claim

A "In an action of trespasse for an assault and battery, & quod

no defence on the general issue to an action at his suit for taking A

A be laid out upon security; and by management the securities were

A of accidental mixture and is therefore not directly in point. Bovill C.J.

claiming non-fungible chattels, this important practical limitation A

A impracticable of attainment," in Sandeman & Sons v. Tyzack and

A quantity being resolved in favour of A. He is also entitled to claim

(3) The bailment claim

Appeal dismissed with costs, includ-

Solicitors: Ince & Co.; Williamson & Westlake.

[Reported by ROBERT RAJARATNAM, ESQ., Barrister-at-Law]

[QUEEN'S BENCH DIVISION]

[1985 A. No. 12]

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