J.C. The William Frederick. The Byfoged Christensen. 1879 The question raised by the cross-appeal arises upon the finding of the learned judge that both vessels were to blame, on the ground that although the duty of keeping out of the way lay upon the Christensen, those on board the William Frederick, when they found that the other vessel was not going to perform its duty, ought not to have pertinaciously adhered to the 18th rule of the road by keeping on their course, but should have adopted some manœuvre in order to avoid the collision which afterwards took place. The learned judge in so deciding, relied on the case of The Commerce (1), before Dr. Lushington. Their Lordships desire to remark that though the principle involved in that case may be in itself a sound one, it is one which should be applied very cautiously, and only where the circumstances are clearly exceptional. They conceive that to leave to masters of vessels a discretion as to obeying or departing from the sailing rules is dangerous to the public; and that to require them to exercise such discretion, except in a very clear case of necessity, is hard upon the masters themselves, inasmuch as the slightest departure from these rules is almost invariably relied upon as constituting a case of at least contributory negligence. In the present case, their Lordships think that the principle of the decision in the case of the Commerce is not applicable. There is no constat at what particular time the master of the William Frederick ought to have come to so distinct a conclusion that the other vessel was not about to obey the rule as to justify his departure from what was his prima facie duty. Their Lordships cannot infer from the facts proved in the case that he was bound to come *to such a conclusion before the moment at [673 which it appears he luffed up in the wind; and after consulting with the sailing masters, they have come to the conclusion that that was the best thing which, under the circumstances, he could have done; that if he had tried by any other manoeuvre actively to get out of the way of the other vessel, there would still have been a collision, and that the consequences of that collision might have been aggravated owing to the greater way which his vessel would have had upon it. Their Lordships therefore think that no case of contributory negligence has been made out against the William Frederick, and they must humbly advise Her Majesty to allow the cross-appeal, to reverse the decision of the court below, to pronounce that the By foged Christensen was alone to blame for the collision, to dismiss the suit of the owners (') 3 W. Rob., 287. Collins v. Locke. 1879 J.C. of that vessel, and to condemn them to bear and pay the whole amount of the damages sustained by the William Frederick, and further to pay the costs of both suits in the court below, and also the costs of these appeals. Solicitors for appellants: Stokes, Saunders & Stokes. [4 Appeal Cases, 674.] J.C.(*), July 5, 8, 26, 1879. [PRIVY COUNCIL.] 674] *JOHN KINDLAN COLLINS, Defendant; and JAMES ON APPEAL FROM THE LOCKE, Plaintiff. SUPREME COURT OF THE COLONY OF VICTORIA. Agreements in Restraint of Trade-Reasonableness of the Restraint—Arbitration Clause-Award not a Condition Precedent to Right of Action. Agreements in restraint of trade are against public policy and void, unless the restraint they impose is partial only, and reasonable in relation to the objects of the contract; and also unless they are made upon a real and bona fide consideration. Where the object of an agreement is to parcel out the stevedoring business of a particular port amongst the parties to it, and so to prevent competition, at least amongst themselves, and also, it may be, to keep up the price to be paid for the work: Held, that such agreement is not invalid, if carried into effect by provisions reasonably necessary for the purpose, though the effect of them might be to create a partial restraint upon the power of the parties to exercise their trade. A provision that if a particular merchant named in the agreement should refuse to allow the stevedoring of any ship to be done by the party entitled to it under the agreement, and should require one of the other parties to do it, such party so required should give an equivalent to the party who lost the stevedoring, is not unreasonable either as regards the party entitled or as regards the merchant. But a provision that in the case of ships passing out of the hands of merchants named in the contract into the hands of other merchants, who should not choose to employ the party entitled under the agreement, all the parties thereto are deprived of the work, cannot be justified. It is obviously detrimental to the public, is entirely beyond anything the legitimate interests of the parties required, and is utterly unprofitable and unnecessary, at least for any purpose which can be avowed. A clause which stipulates that all matters in difference which should arise touching the agreement should be submitted to arbitration, and prohibits any action being brought in respect of the matters actually submitted to arbitration, is a collateral and independent agreement, and an award thereunder is not a condition precedent to such action, except as regards such sums as under the agreement are not payable until the amount thereof has been ascertained by such award. APPEAL from two judgments of the Supreme Court (April 4, 1877), one discharging a rule nisi which had been obtained 675] for a new trial, and the other allowing a demurrer to two of the defendant's pleas. (*) Present :-SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, and SIR ROBERI P. COLLIER. Collins v. Locke. J.C. 1879 On the 7th of October, 1870, the appellant and the respondent, and other persons then carrying on the business of stevedores in the port of Melbourne, entered into an agreement under seal for the purpose of preventing competition. The effect of the agreement (the main provisions of which are set out in their Lordships' judgment) was as follows: The parties agreed that as between the parties thereto the appelfants should be absolutely entitled to the business of stevedoring all ships that should arrive at Melbourne consigned to the firm of J. H. White & Co., the respondents should be entitled to the business of stevedoring all ships that should arrive at Melbourne consigned to either of the three firms, Messrs. Holmes, White & Co., Messrs. R. Towns & Co., and Messrs. King, Meng & Co., and the other parties should be entitled to the business of stevedoring ships consigned to certain other firms therein mentioned; and that they would not undertake or be in any way concerned in or interfere in, in whole or in part, the stevedoring of any ship consigned to any of the firms therein mentioned except in accordance with the agreement. That if either of the firms refused to allow the stevedoring of any ship consigned to them to be done by the party entitled to it under the agreement, but should require any other of the parties to do it, the party doing it would give an equivalent to the persons so losing the stevedoring of an amount to be determined by arbitration. That the stevedoring of all ships not consigned to any of such firms should be undertaken by the parties (other than the respondents) in turn in the order of their arrival. That if any of the named firms should cease to do business, or the proportion of ships consigned to them should be materially altered, a readjustment should be made between the parties to the agreement, and in case of any firm having ceased to do business, the parties losing such firm should be entitled to select another carrying on business of equal importance. That in case of disagreement the matter should be referred to arbitration. *That the parties would not directly or indirectly aid [676 in the establishment of other firms of stevedores. That all disputes should be referred to arbitration, and that the parties should not be entitled to commence or maintain any action at law or suit in equity in respect of the matters so submitted as aforesaid, except for the amount or amounts by the said award determined to be paid by any one or more of the said parties to the other or others of them. 1879 Collins v. Locke." J.C. The facts are stated in the judgment of their Lordships. The respondent filed his declaration dated the 10th of February, 1877, and containing counts in effect as follows: 1. The stevedoring by the appellant of certain ships which arrived consigned to Holmes, White & Co., that firm not refusing to allow the respondent to work for them. 2. The refusal of the appellant to pay an equivalent to the respondent for the stevedoring of certain ships which arrived consigned as aforesaid, and which the said firm employed the appellant and refused to allow the respondent to stevedore. 3. The stevedoring by the appellant of ships which arrived consigned to Messrs. Stewart & Couch, a firm which the respondent had selected instead of Messrs. R. Towns & Co., on the latter ceasing to carry on business, although Messrs. Stewart & Couch did not refuse to allow the respondent to stevedore. The particulars of breaches gave the names of three ships, Jason, Clara, and Eastern Monarch, as those to the work of which the respondent claimed to be entitled under the said agreement. The appellant on the 15th of February, 1877, pleaded five pleas : 1. That the deed was not his deed. 2. A denial of the alleged breaches. 3. That the respondent had not referred the difference to arbitration in accordance with the terms of the agreement. 4. That there was no consideration to the appellant for the execution of the indenture of agreement save as appears therein. 5. As to the third count or breach, that the respondent had not pursuant to the terms of the agreement selected Messrs. Stewart & Couch to replace Messrs. R. Towns & Co. 677] *6. As to the same, that the other parties to the agreement had not agreed to such selection. The respondent took issue on the first, second, fifth, and sixth pleas, and demurred to the third and fourth. The jury found a verdict for the respondent for £280 in respect of the Clara and Eastern Monarch, and contingently for £75 in respect of the Jason. Leave was reserved to either party to move to enter the verdict, and to the defendant to reduce the damages. On the 23d of March, 1877, the appellant obtained a rule nisi to enter the verdict for the defendant, or reducing the damages to £20. J.C. Collins v. Locke. 1879 On the 4th of April, 1877, the rule nisi was discharged with costs; and final judgment was entered up as follows: Verdict for the plaintiff, on the first and third counts, damages £280, costs £140 5s. 10d., and verdict for defendant on the second count: Plaintiff's demurrers allowed. The following reasons were stated by the Supreme Court: Stawell, C.J.: "The question under this rule nisi is, as to the sound construction of the first covenant, considering the second only as far as it applies to the first. What is the meaning of 'arrive consigned?' does it continue to apply to the ship after she has left the hands of the firm to which she was consigned on that voyage, and while she remains in the port of Melbourne? It turns on the way in which the word 'consigned' is treated in the after part of the first covenant, not on the meaning of the word 'arrive'; I think that it is not limited to the time during which the ship remains in the hands of the firm to whom she was consigned. If a stevedore other than the one to whom this contract allotted her is employed, then the former is to give an equivalent to the latter. The rule must be discharged." Fellows, J.: "The meaning of the contract is that certain shipping firms in this port are to be divided into four sets, one set being allotted to each party to the agreement, and that every ship consigned to one of these firms is to be worked by the party to whom the set comprising that firm was allotted, if he can get her. It is possible that firm may not wish to give the ship to the *stevedore to whom [678 she has been allotted, or the person to whom the ship may afterwards be chartered, may be unwilling to do so. one of these events, one of the other parties may do the work, in the other case the others may not; and the ship is, so to speak, tabooed to them all. The jury took the latter view, and, though it was not a question for them, they have decided rightly, and the damages assessed must stand. Rule discharged.' In Upon the demurrers the court delivered judgment as follows: Stawell, C.J.: "The second breach is for not paying an equivalent for the stevedoring of a ship, which, by the request of the consignee, was stevedored by the defendant. The contract is, in effect, to pay an 'equivalent to be determined by arbitration.' Until, therefore, the equivalent has been so determined, no action can be brought for it, and the second breach is consequently bad. This indeed was almost conceded in the argument. "The other breaches are framed on the contract that the |