ANDREW YULE AND CO Vs. ARDESHIR BOMANJI DUBASH

JUDGEMENT

(1.) Assuming the agreement of the 22nd November 1911, to charter the S 6\ Gymeric to the plaintiffs for twelve consecutive voyages, to be in all respects good, there is still a question to be answered in limine, whether a charter-party of such a character will support the injunction prayed for.

(2.) If not then it follows that the suit would immediately be restricted to an ordinary suit for damages against the defendant No. 3, Ghulam Hussaiu Issaji. Section 57 of the Specific Relief Act is no doubt intended to give legislative effect to a group of English cases, of which, in the domain of personal service Lumley v. Wagner (1852) 1 De G.M. & G. 604 is the best known, and in the domain of shipping law De Mattos v. Gibson (1858) 4 De G. & J. 276 and Collins v. Lamport (1864) 34 L.J. Ch. 196 are good examples.

(3.) I have gone over all the authorities, to which my attention has been drawn, very carefully, and I doubt whether anyone of-them has gone the length I am now asked to go. It is interesting to note, how in subsequent decisions the cautiously worded and designedly very restricted judgment of Lord St. Leonards in Lumley v. Wagner (1852) 1 De G.M. & G. 604 has at times been overstated, if not actually misrepresented. There the case was of the simplest. As inter agreed to sing for a certain impressario, for a given time, and not to sing for any other impressario, during that period. Specific performance of the affirmative part of the agreement obviously could not be decreed, but Lord St. Leonards thought that he might safely give effect to the expressed negative undertaking. He is careful to add that he would not have done so had it not been expressed. Upon this decision, followed cases which extended it to the length of taking in every case in which while the Courts could not decree specific performance of the affirmative agreement, they tried to bring about the same result indirectly by enforcing by injunction, what was taken to be an implied (not as in Lumley v. Wagner (1852) 1 De G.M. & G. 604) an expressed) negative agreement. That is why "implied" is used in Section 57. The section as a whole provides that where there is coupled with an affirmative agreement to do a certain act, a negative agreement express or implied not to do a certain act, the Court is not precluded from enforcing the negative agreement by injunction, although it cannot enforce the affirmative agreement by way of specific performance. It might be thought a pity, in the interests of a straightforward and intelligible administration of the law, to have engrafted an exception involving such nice distinctions and difficult determinations, upon the salutary general rule laid down in Section 56. One obvious objection is that where an agreement contains no more than a simple affirmative, it always must imply a negative agreement not to do anything else at the same time and place. This was pointed out by Lindley L. J. in Whit-wood Chemical Co. v. Hanuman [1891] 2 Ch. 416. So that in strict logic, every affirmative agreement ever yet made in the world, standing alone and unqualified, would seemingly fall within the scope of the section and give ground for an injunction restraining the party in breach from doing anything else, till he had performed it. No one has supposed that the law was meant to be carried that length. But little help can be gained from the actual words of the section, when read with the illustrations. It is only too plain whence those illustrations are drawn, and that the words "not to do a certain act", need to be much widened to meet all the cases contemplated. A man, who engages himself to be the skilled manager of a certain business, may be held to have impliedly agreed not to be the skilled manager of any other business. But it could hardly be said that he had impliedly agreed not to do anything else at all, say, ship as a common seaman before the must; yet in effect the latter is really as much implied as the former agreement if the Court is only looking at the enforcement of the affirmative agreement. And all the decisions which have given support to the rule will be found, I think, on careful analysis to have that aim in view. Little practical difficulty is occasioned by cases of personal service; but that can hardly be said of the decisions upon shipping contracts. This is no doubt partly due to the special character always attaching to ships in the English law, and the resultant ambiguity of thought and conception which seem often enough to obscure arguments about the legal obligations and true legal relations arising out of shipping contracts.