Cornell University Library The original of tiiis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017856281 Cornell University Library KD 1832.A4 1868 Reports of cases decided in the High Cou 3 1924 017 856 281 REPOETS^OF CASES DECIDED IN THE HIGH COURT OF ADMIEALTT OF ENGLAND, AND ON 1863-1865. BY EENST BROWNIT^a AND YERNON LUSHINGTON, OF THE INNER TEMPLE, BARRISTERS AT LAW. LONDON : BUTTERWORTHS, 7, FLEET STREET, aato lluiliBjcrs to tfie ©ueen's most ricellent iHajesle. HODGES, SMITH AND CO., GRAFTON STREET, DUBLIN. 1868. LONDON : PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. SuUge of tfie HtgTj Court of ^mtraltg. RIGHT HON. STEPHEN LUSHINGTON, D.C.L. . .XX ©men's ^Hbocate. Sir Robert Phillimore, D.C.L. aumivaltg ^bocate. Dr. Travers Twiss, Q.C. aumiraltg J^cgiiStrar. Henry Cadogan Rothery. CASES REPORTED. -*- PAGE Alhambra. Collision — Pleading— Amendment at Hearing . 286 Amalia. (In the Privy Council.) Collision between British and Foreign Vessel — Limitation of Liabilitg— 25 Sj- 26 Vict. c. 63, s. 64 ]51 (In the Privy Coimcil.) Collision— Pleading — Evidence — Allegata et probata 311 Andrew Wilson. Salvage — Appeal from Award of Justices — "Sum in dispute"— n ^18 Vict. c. 104, s. 464 . , 56 Bahia. 24 Vict. c. 10, s. 7— Goods "carried into any Port in England " 61 JBill of Lading — Duty to carry on, trans-ship or deliver — Reasonable Time allowed to the Master — Conflict of Laws — Law of France as to Abandonment of Ship to the Lnsurers ........ 292 Beta. (In the Privy Council.) Pilot's Licence — Renewal of —17 Sr 18 Vict. c. 104, s. 374 328 Brig, Name Unknown. Slave Bounties — Joint Capture — 1 Sr 2 Vict. c. 47, s. 2—2 Sr 3 Vict. c. 73 . . . 370 Cargo ex Galam. (In the Privy Council.) Lien for Freight and General Average — Reasonable Time to repair or trans-ship — Respondentia Bond — Precedence of Liens — Practice as to Underwriters being Parties in the Admi- ralty Court . . ...... 167 Carrier Dove. (In the Privy Council.) Collision — Defence of Licensed Pilot — Burden and Degree of Proof — 17 Sr 18 Vict.c. 104,5.388 113 Champion. Salvage-^ Derelict — Possessory Right of Salvors —Right of Master 69 Cheshire Witch. Arrest — Wrongful Detention — Damages . 362 Chieftain. Master's Wages and Disbursements — Wages "earned on Board"— 24 Vict. c. 10, s. 10— Right of Mortgagee . 104 VI CASES REPORTED. PAGE Chieftain. Master's Wages — Laches — Release of Owner not release of Ship — Secret Liens — 4 Anne, c. 16, s. 17 — 17 §• 18 Vict. c. 104, ». 191 212 City of Carlisle. (In the Privy Council.) Collision— Lights — Position of — Admiralty Regulations, 1858 . 363 Constitution. (In the Privy Council.) Practice of the Judicial Committee in reviewing Judgments of the Admiralty Court upon questions of Fact . . • 324 Corner. Bail-bond ty Sureties— Communication by Tele- graph — Second Arrest — Admiralty Court Rules, 42, 43, 51, 54 161 Danzig. Jurisdiction — Short Delivery — " Goods carried into any Part in England or Wales" — 24 Vict. c. 10, s. 6 . 102 Earl of Leicester. Collision — Practice as to which Party shall begin ......... 188 Edwin. Master's Wages and Disbursements — Fraudulent Pos- session of Ship— 24: Vict. c. 10, s. 10— Bill of Ex- change ......... 281 ELioNORE. Illegal Arrest— Salvage Services to Property of less Value than 1,000/. — Costs and Damcyes — Appear- ance under Protest — Reference to Registrar — 17 ^18 Vict. c. 104, s. 468, and 26 ^ 26 Vict. c. 63, ss. 49, 60 . 185 Ella A. Clark. Necessaries — Foreign Ship — Transfer to British Owner — 3 4r 4 Vict. c. 65, s. 6 — ^24 Vict. c. 10, s. 5 32 EunoPA- (In the Privy CounciL) Collision — Maritime Lien — Reasonable LHligence ...... 89 Collision — Limitation of LiaMlity — Proceedings in Rem — Possession Fees — Interest . , . . . .210 Falkland — Navigator. (In the Privy CounciL) Collision — Rules of Navigation — Wearing — Tacking . . 204 Florence Nightingale. See MjEandeh. Flying Fish. (In the Privy CounciL) Collision — Appeal from Registrar's Report of Damages — Fresh Evidence — Rule of Consequential Damages ..... 436 Fusilier. (In the Privy CounciL) Life Salvage — Liability of Cargo— n Sr 18 Vict. c. 104, ss. 468, *5Q—" Persons belonging to such Ship" — Passengers — Measure of Sal- vage — Apportionment of Salvage ..... 341 Gem of the Nith. Bottomry — Proceedings ty Default Cargo sold Abroad by Master — Frdght — Bight to de- mand Reference •.-•.... 72 Glenburn. Bottomry — Rescinding a Decree made by Consent 62 CA»iiH ui:i">iin:i>. vii I'AiiB (naiA'v hAwnuiN. (In the I'rivy CimncW.j CoUkwn at Night Ihdww.n HU;am-»liJ.j) and SaUiwf HIdp — BaUing Rules (IHO':i), ArUdm 16, Ifj, 18, \\)—"ModeruU;lipeed"— *' / mmcdialc. iJunrjcr" ...,.., 287 llAMUuitn. (In thr; Privy ^Council.) Jioll,omry Bond on Ship, l''ri:i(ilil, and ('arf/u^-Ohlujalion of Maiiter to trans-ship — Duly to r.ommunicatf, wUh Owners of Cargo — Validity of Jiond l.ri,i;d by Law MarUima — 7'Ae Bonaparte, H Moo. r. 244 Constancia 174,183 Cook V. Jennings . . ' . ■ . . 175 Cope I). Doherty .. 152, 154, 157 Copenhagen .. •- .• .. 174 Coppell t). Smith 86 Coromandel 70, 71 Corporation of London, Attorney- General V 21, 22 Couch, Nelson «. . . . . . . 214 Courier 217 Cowper, Bright v. . . . . . . 393 Coxeo. Harden .. .. 431,449 Cuming t>. Brown •• .. .. 459 Dakin v. Oxiey Dantzic Packet . . . . Danzig Darling, Heathorn v. Davies v. Jenkins Davis V. Garrett Davison t>. Mekibben . . Delamainer v. Winteringham De la Tour, Hochster v. De Lovio v. Boit Dent, Tronson v. De Neve, Flay v. ,. 394 ,. 70 . 237 ,. 270 . 221 . 393 . 360 . 110 . 237 . 132 .. 432 . 142 Deslandes, Kern v. •• • • . ■ 237 De Vaux ». Salvador . . . . 134 Diana 332 Dickinson v. Kitchen . . . ■ 245 Dickson, Wilson v. .. . . . . 339 Doherty, Cope v. .. 152, 151, 157 Don Francisco .. .. .. 103 Douglas, Laurie e. . . . . . . 405 Dowie, PuBt V. 390 Draco 175 Dresser, Meyer v 394, 405 Drie Gebroeders . . . . ■ • 373 Druid 9.96 Duke of Sussex .. .. 21,23,25 Duncan «. Benson .. 258,268,270,271 Dundee .. •• •• ..211 Dunlop «. Higgins 12 Dyer v. Pearson . . . . 457, 463 Dyke «. Barton . . . . 22, 26 Earl of Ashburnham, The Attorney- General » 21,22,24 PAGE Earl of Auckland .. .. 201,202 Earl of Stair and Others, OflScers of State in Scotland, Smith v. .. 23 East India Company, Freeman D. .. 270 East Lothian 252,313 Ebenezer .• .. .. •• 82 El^onore 219 Eliza Cornish .. 193,258,270 Elmes, Hunt t; 96 Enchantress .. 209 England 82 Essays and Reviews . . . . . . 224 Europa .. 214 Evangelismos 187, 219, 221, 323, 362 Evans, Legg v. . . . . . . 174 Exchange 131 . 445 . 325 . 43 42,44 . 53 . 96 . 96 Faith, Knight v Falkland Fearon v. Bowers Feise v. Wray Fenix .• Finch, Colyer e. Finch V. Shaw Flay D.De Neve 142 Fleming, Campbell v. .. .. 457 Fletcher, Blasco v. . . . . . . 305 Florence Nightingale . . 30, 87 Foord, Smeed ». . . . . . . 12 Ford, Sack I) 431 Foster ». Colby . . 237, 420, 432 Fragano v. Long . . . . . . 431 Franz et Elise 217 Freeman v. East India Company . . 270 Galen 373 Gananoque . . . . . . . . 67 Garden, White o 457 Garrett, Davis B ..393 Garrick, Swainston V. .. .. 11 Gathercole, Hawkins v. . . . . 9 Gatliffe v. Bourne . . . . . . 401 General Iron Screw Collier Company, Grill » 430 General Iron Screw Collier Company, Lloyd w... 393 General Iron Screw Collier Company f. Schurmanns .. .. .. 157 Gibbs, Grey ». . . . , . . 257 Gibbs, Matthews «... . . . . 257 Gillespie ti. Thompson . . . . 420 Glascott V. Lang . , . . . , 264 Glenmanna 192, 4,42 Glentanner 106,108 Graoey, Brown v, . . . . . . 298 Gratitudine . . 173, 257, 258, 259, 263, 266, 268, 270 Great Eastern, Towle ». . . . , 343 CASES CITED. xin PAGE Green, Load v. 457 Grey v. Gibbs 257 Grill v. General Iron Screw Collier Company .. .. .. 430 Guibert, Lloyd v. . . 253, 298, 299, 301 Guion, Hutchinson v. .. 420, 424 Gurney v. Behrend .. 41, 42, 45, 284, 449, 453, 462 Gustaf 33,174 Hadley v. Baxendale Hadley v. Clarke . . Hall, Siordet «. Hamburg . . . • Hamilton, Robertson v. 10,12 173,305 ..393 63, 64, 298, 305 ..180 Hammond v. Blake . . . . . . 332 Hanmer, Attorney-General «. . . 25 Harden, Coxe D 431,449 Hasnell 313 Hawkins v. Gatbercole . . . . 9 Hay V, Le Neve . . ■ ■ • • 446 Heathorn v. Darling . • . . . . 270 Helgoland 175 Herring, Alston B. .. .. •. 431 Hersey 319 Herzogin Marie .. .. .• 217 Higgins, Dunlop V. .. .. .. 12 Hillu. Audus.. ... .. 155,157 Hochster v. De la Tour . . . . 237 Hoffnung 173 Hood, Pilmore v 237 Hovill I). Stephenson . . . . 430 Hunt V. Elmes •• .. .. 96 Hunter «. Prinsep .. •• .. 305 Hutchinson v. Guion 420, 424, 432 Hyde v. Trent and Mersey Naviga- tion Company . . . . . . 401 Ida 59 Illeanon Pirates .. 21, 22, 23, 25 Indian Chief . . . . • . . . 144 Inflexible 21,23,290 Ironsides .. .. 2,67,103,104 Irvine, Josling t). .. .. 10,18 Itinerant 82,83 James v. Jones . . . . . . 8 James, Wright v. .. . . . . 457 Jenkins, Davies «... . . . . 221 Jennings, Cook a. .. .. .. 175 Johannes Christoph .. .. .. 175 Johannes .. •• •• ..157 Johann Friedrich .. .. •■ 157 John 53 John Dunn 87,211 Jonathan Goodhue .. .. .. 214 Jones, James v. . . . . . • 8 PAGE Josling u. Irvine 10,18 Julia 100, 206,325,327 Justices of Leicester, R. ». .. .. 53 Kalamazoo . . . . . . 86, 87, 447 Kane v. Reynolds . . . . 21, 23, 25 Kasan 61, 103 Kemp «). Clark .. .. .. 11 Kerford v. Mondel 396 Kern v. Deslandes . . . . . . 237 Kingsford v. Merry . . 449, 457, 463 Kirchner v. Venus . . . . 237, 432 Kitchen, Dickenson v. . . . . 245 Knight V. Faith 445 La Constancia La Flore La Ysabel Lampleigh v. Braithwait 174, 176 .. 373 258,270 .. 284 Lang, Glascott v. . . . . . . 264 Langridge v. Levy . . . . 237, 238 Laurie 1). Douglas •• .. .. 405 Lawford v. Partridge. . . . 219, 220 Leda 52,187 Lee, Sisted v 63 Legg 0. Evans .. .. .. 174 Le Louis . . . . . . . . 157 Levy, Langridge ii 237, 238 Lewis, Christie v. .. .. .. 10 Lickbarrow v. Mason 41, 42, 43, 452 Linda . . . . . . . . . . 443 Lloyd V. The General Iron Screw Collier Company , . 393, 430 Lloyd V. Guibert . . 253, 298, 299, 301 Load w. Green .. .. .. 457 Long, Fragano ii. .. .. .. 431 Lord Advocate ». Lord Dunglas .. 24 Lord Cochrane . . . . 74, 257, 258 Lord Dunglas, Lord Advocate V. .. 24 McKellar, Schuster v. .. 8,15 Mackenzie v. Rowe . . 8 Maeander .. 447 Major 0. White 11,431 Malvina .. 100 Maria . . 332 Maria Luisa 52 Marquand !). Banner.. .. .. 8 Martha 173 Mason, Lickbarrow v. 41, 42, 43, 452 Matthews v. Gibbs 257 Mekibben, Davison v. .. ■• 360 Merry, Kingsford v. .. •• . • 457 Meyer ». Dresser .. .• 394,405 Milan 446 Miles, R.« 22 Minnehaha 29,80,206 XIV CASES CITED. PAGE Mondel, Kerford v 396 Morgan, Scarfe v. ,. .. .. 405 Nelson v. Couch N. R. Gosfabrick Neptune .. Nestor. N ewberry v. Colvin . . Newnham, Stevenson ». Newport . . . . .. 214 .. 319 245, 253 .. 95 8,11,15 .. 457 .. 173 Newsom v. Thornton . . . . • . 458 Nightwatch 100 North American .. .. .. 211 North Star .. .. 174,175,183 Norway 420 Nostra Signora de los Dolores 156, 338 Nymph 95,214 Ocean Queen Olivier Oriental Osmanli Oxley, Dakin v. .. 34 258, 268 258, 319 193,319 .. 394 Parker ». Patrick 457 Partridge, Lawford ». .. 219,220 Patrick, Parker v. .. . . . . 457 Patten v. Thompson . . . . . . 453 Pattison, Tinniswobd V. •• •• 219 Paxton t). Popham .. .. •• 223 Pearson, Dyer v. . • . . . ■ 457 Peninsular and Oriental Company o. Shand 253 Perla 244 Peterson ». Ayre .. •. ■. 18 Phillips «. Clark .. .. 420,430 Pilmore v. Hood 237 Pompe, Suse u. .. .. .. 405 Popham, Paxton v 223 Prince George .. 103,298,319 Prinsep, Hunter o. . . • • ■ • 305 Pust V. Dowie 390 Queen v. Belcher Queen v. Stanton 22,25 . 202 Randall v. Raper Raper, Randall v R. V. Miles Reg. V. Beadle . . • . R. V. The Justices of Leicester Repulse Reynolds, Kane v Roberts v. Shaw Robertson v. Hamilton Rose, Black ». Rowe, Mackenzie v. . . Royal Arch . . • . 106, 107 106, 107 22 25,26 53 95,96 21,23,25 .. 432 .. 180 .. 405 8 96,214 Re Westzinthus Ruding, Spalding v. PAGE 452, 456 .. 453 Sack t). Ford *31 Salacia .. 73,74,108,214,241,394 Salvador, De Vaux o. •• •• 134 Sanders, Bloxam B 41,241,431 Santos 1). Brice . . . . • • 237 Saville D. Campion .. •■ .• 10 Saxonia 153,157 Scaife ». Tobin 174 Scarfe v. Morgan . . . • . • 405 Schooner Volunteer 11 Schurmanns, The General Iron Screw Colliery Company v. .. . . 157 Schuster ». McKellar .. ..8,15 Schwalbe 114,325 Seekamp, Webster v. .. ,. 244 Sewell, Cammell D 193 Shand, Peninsular and Oriental Com- pany V. ,. • . ■ . . . 253 Shaw, Finch v 96 Shaw, Roberts v 432 Sheffer, Vaux v. . . . . . . 445 Shipton V. Thornton . . . . 173, 257 Sieveking, Smith v 236, 237 Sillem, Attorney-General i^. . . 223 Simonds 1). White 174 Siordet v. Hall 393 Sir George Seymour . . . . . • 442 Sir J. Hanmer and others, Attorney- General V. ., •• . . 26 Sisted i>. Lee . . ,. . . . ■ 63 Skipwith 244,247 Smalwood, Cannon V. .. .. 219 Smeed V. Foord .. .. .. 12 Smith, Allen v, 405 Smith, Coppell v 86 Smith V. The Earl of Stair and others. Officers of State in Scotland . . 23 Smith t). Sieveking ,. .. 236,237 Smith, Wegener » 237, 240 Smurthwaite v. Wilkins . . . . 430 Sooiedade Felix . . . . 373, 374 Somes V. British Empire Shipping Company , . . . . . 405 Spalding v. Ruding .. ..452, 453, 459 Spirit of the Age . . . . , . 209 St. Cloud .. .. 34,236,238,380 Stanton, Queen «. ., .. .. 202 Stembridge, Blaikie v. . . 8, 420, 424 Stephenson, Hovill o. , . , . 430 Stevenson v. Newnham . . . . 457 Storey, Worms n. .. ,. .. 405 Suse V. Pompe . . . . , . 4Qg Swainston D. Garrick .. .. \\ Swallow 21,23,25 CASES CITED. XV Taylor, Cock v. Taylor, Tindall v. . . Temiscouata . . Thompson, Beale v. . . Thompson, Campbell v. Thompson, Castellain v. Thompson, Gillespie c. Thompson, Patten v. Thompson v. Trail . . Thornley Thornton, Ashford v. Thornton, Newsom v. Thornton, Shipton v. Tindal v. BeU Tindall v. Taylor Tinniswood v. Pattison Tobin, Scaife ii. • . Towers, Waters v. Towle V. The Great Eastern Trail, Thompson v. . . Trent and Mersey Navigation Com- pany, Hyde v. . . Tronson v. Dent Ulster , Van Casteel v. Booker Vaux V. Sheffer Venus, Kirchner v. . . Vibilia PAGE 11 299,305 447 110 73 284 420 453 42 82,83 224 458 173,257 443 299, 305 219,220 174 12 348 42 401 432 53 454 445 237, 432 193, 268 PAGE Victor 219,323 Vlierboom o. Chapman .. .. 175 Vortigern . . . . . . . . 290 Vrede . . 348 Vryheid .. .. .. .. 373 Wainwright, Ashmole v. Wait V. Baker Wataga Waters v. Towers .. 397 . . 432 .. 244 .. 12 Webster v. Seekamp . . . . . . 244 Wegener v. Smith . . . . 237, 240 West Friesland 34 White ». Garden 457 White, Major J) 431 White, Simonds w .. 174 Wild Ranger.. ,. .. 157,447 Wilkins, Smurthwaite v. .. .. 430 Wilkinson, Brown w. . . .. .. 211 William and John .. ..59,186,219 William Money 216 Williams v. AUsup . . . . . . 244 Wilson V. Anderton . . . . . . 45 Wilson V. Dickson 339 Winteringham, Delamainer 1/. .. 110 Worms ». Storey .. .. •• 405 Wray, Feise v. .. . . 42, 44 Wright V. James •• .. .. 457 ZoUverein 9,153,157 CASES DECIDED IN THE HIGH COURT OF ADMIRALTY OF ENGLAl^D, AND ON APPEAL TO THE PEIYY COUNCIL. THE KASAN. 24 Vict. c. 10, s. 6 — " AnT/ Breach of Duty, or Breach of Contract." A foreign vessel was chartered to carry coals on charterers' account to a foreign port, and bring home to England a return cargo of timber; the charterers sued the ship under the 6th section of "The Admiralty Court Act, 1861," claiming damages — 1st, for non-delivery of certain coals on the outward voyage : 2ndly, for the improper delivery of the timber on the return voyage. Held, that they were not intitled to sue in respect of the non-delivery of the coals abroad, as the statute did not give the Court such jurisdiction. ... 18^3- THIS was an action brought against the Russian ship Kasan January is xinder the 6th section of the Admiralty Court Act, 1861, by Thomas Dunlop, Finlay & Co., of Glasgow, the charterers of the ship and also holders of the bills of lading for the home- ward cargo. The petition set out a charter to the plaintiffs whereby the vessel was engaged to proceed from Cardiff to Port Isabella, in the island of Basilan, with a cargo of coals on charterers' account, to be delivered freight free; thence to proceed to Moulmein, or other Indian port, and load a cargo of timber, to be delivered in England according to order. The petition then charged that certain coals, shipped at Cardiff under bills of lading, by Pinto, Perez & Co. (third parties), to be delivered to order or assigns at Port Isabella, were not delivered, whereby the plaintiffs had suffered great damage; and also that certain '^t,. B 2 THE KASAN. 1863. timber shipped on account of charterers at Moulmein, under January 13. fciUs of lading to be delivered in England, was not duly deli- vered. The question was now raised on motion, whether the plaintiffs were, under the jurisdiction created by the 6th section of the Admiralty Court Act, 1861, intitled to sue in respect of the non-delivery of the coals on the outward voyage. The material part of that section is as follows : — " The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales." Twiss, Q.C., and LusMngton, for the defendants, the owners of the Kasan. — The Court has no jurisdiction. The whole sec- tion applies only to claims in respect of goods imported ; it does not apply to goods exported. The words " for any breach of duty or breach of contract" &c., must, by reasonable interpreta- tion, be taken to refer to what has gone before, so as to make " contract" mean contract in respect of the goods carried into England : otherwise " any breach of contract" will mean breach of any contract whatever ; it might even mean breach of pro- mise to marry. ■ In the Ironsides (a) the Court put a strict inter- pretation on this very sentence, and confined the words " owner, ■ master, or crew of the ship," to refer to the ship previously indicated, namely, the ship in which the goods had been actually carried into England. Deane, Q.C., and Clarhson, for the plaintiffs. — The claim comes within the terms of the statute. The plaintiffs are owners of the timber, "goods carried into England" in the Kasan ; and they are suing " for a breach of contract on the part of the owner or master of the ship." These latter terms are general, and independent of the terms that precede, and ought to be held to extend to a real grievance like this of which the plaintiff's complain. The defendants would read the word " for" as if it were " by." Here, moreover, there was but one (a) Lusliington's R. pp. 458, 466. THE KASAN. ; contract, which extended to the outward and the homeward 1863. voyage, to the timber and the coals, and the Court has therefore ^""""^"J ^^- jurisdiction. Dr. Lushington : — If the difficulty of deciding this case Judgment, corresponded at all to the importance of the question raised, I should take time to consider ; but, in truth, I see no difficulty at all. The meaning of the section is quite plain. It is con- fined to the case of goods carried into England or Wales; even Scotland and Ireland are not included. It has nothing to do with goods exported and by contract deliverable abroad. There is but one sentence ; and, upon reading it in a simple, plain way, the words " for any breach of duty or breach of contract" clearly relate to the foregoing " goods carried into England or Wales." Another argument might be founded upon the proviso which follows, requiring that the owner of the ship shall not be domiciled in England or Wales. For, in many cases of goods exported in a foreign ship, the owner of the ship might be resi- dent in the place vvhere the cargo was to be delivered, — at hand to answer for any alleged breach of the contract. I have no doubt that I cannot pronounce for the extended jurisdiction claimed. I do not however condemn in costs, as this is a novel question on the interpretation of a statute. Rothery, proctor for the plaintiffs. Clarhson for the defendants. h2 THE ST. CLOUD. 1863. January 13. THE ST. CLOUD. Damage to Cargo— Liability of chartered Ship to Holder of Bill of Lading -Notice of Charter to Shipper— Nude Assignee of Bill of Lading— Measure of Damages — 24 Vict. c. 10, ss. b", 35, A ship-owner who charters his vessel to another, but not so as to give up posses- sion, is liable for a breach of the contract contained in a bill of lading signed by the master, such as injury to the goods by improper stowage, if it is not proved that at the time of shipment the shipper had notice of the charter. In the same circumstances (the owner of the ship not being domiciled in England or Wales), the ship is liable under the 6th and 35th sections of "The Admiralty Court Act, 1861." By the 6th section, notwithstanding the words " any assignee of a bill of lading," a bare assignee, to whom the property in the goods has not passed, and who cannot therefore sue at common law under 18 & 19 Vict. c. Ill, is not intitled to sue in the Admiralty Court. In cases brought under the 6th section of the Act, the damages will be referred to the Registrar and Merchants, with instructions to follow the rules of the Courts of common law as to the measure of damages. In case of injury to goods by improper stowage, loss upon a contract of resale entered into before delivery, and of which the defendant had no notice at the time of making the original contract, is not to be allowed. DAMAGE to cargo. This was a cause instituted by Messrs. Bardgett, Picard & Co., under the 6th sec- tion of the Admiralty Court Act, 1861 (24 Vict. c. 10), against the St. Cloud, a Genoese vessel, to recover damages for the injury occasioned to certain wheat by improper stowage. The defendant, the owner of the ship, in his answer to the plaintiffs' petition simply denied the improper stowage, but afterwards obtained leave to plead that the ship was under charter, to which the plaintiffs replied that they had had no notice of such charter. The charter-party was as follows : — " This charter-party, made the 6th day of June, in the year 1861, between Jean Baptiste Profumo, master of the ship St. Cloud, of Genoa, of the burthen of 814 tons, or thereabouts, re- gister measurement, now lying in the harbour of New York, of the first part ; and Archibald Baxter, of the second part : Wit- nesseth that the said party of the first part, for and in conside- ration of the covenants and agreements hereinafter mentioned to be kept and performed by the said party of the second part, doth covenant and agree on the freighting and chartering of the said vessel unto the said party of the second part, for a voyage THE ST. CLOUD. from New York to London, on the terms following, that is to 1863, say ; — January 13. First. The said party of the first part doth engage that the said vessel, in and during the said voyage, shall be kept tight, staunch, well-fitted, tackled, and provided with every requisite, and with men and provisions necessary for such a voyage. Second. The said party of the first part doth further engage that the whole of the said vessel (with the exception of the cabin, the deck, and the necessary room for the accommodation of the crew and the stowage of the sails, cables, and provisions) shall be at the sole use and disposal of the said party of the second part during the voyage aforesaid ; and that no goods or merchandise whatever shall be laden on board otherwise than from the said party of the second part, or his agent, without his consent, on pain of forfeiture of the amount of freight agreed upon for the same. Third. The said party of the first part doth further engage to receive and take on board the said vessel, during the afore- said voyage, all such lawful goods and merchandise as the said party of the second part, or his agents, may think proper to ship. Fourth. The said party of the first part doth further engage to consign the vessel at the port of discharge to such person or firm as may be designated by the party of the second part, who shall be intitled to the usual commission of 2| per cent, on the amount of freight earned under this charter. And the said party of the second part, for and in considera- tion of the covenants and agreements to be kept and performed by the said party of the first part, doth covenant and agree with the said party of the first part to charter and hire the said vessel, as aforesaid, on the terms following, that is to say : — First. The said party of the second part doth engage to provide and furnish to the said vessel a full cargo of legal mer- chandise. Grain, if any, in shipper's bags. Second. The said party of the second part doth further engage to pay to the said party of the first part or his agent, for the charter or freight of the said vessel during the voyage aforesaid, in manner following, that is to say : — Grain %^d. per bushel of 601bs. Flour 2s. lid. per barrel. Measurement, 25s. per ton of 40 cubic feet. Weight, 27s. Qd. per ton of 2,240 lbs. gross, all in British sterling, with 5 per cent, primage, payable in cash, without dis- count or allowance, on due delivery of the cargo. It is further agreed between the parties to this instrument 6 THE ST. CLOUD. 1863. that the said party of the second part shall be allowed for the January 13. loading and discharging of the vessel at the respective ports aforesaid, lay days as follows, that is to say : — Thirty running days to load at New York, to be discharged according to the custom of the port for prompt dispatch ; and in case the vessel is longer detained, the said party of the second part agrees to pay to the said party of the first part demurrage at the rate of twenty pounds sterling per day, day by day for every day so detained, provided such detention shall happen by default of the said party of the second part, or his agent. It is also further understood and agreed that the cargo or cargoes shall be received and delivered alongside of the vessel, within reach of her tackles. It is also further understood and agreed that this charter shall commence when the vessel is ready to receive cargo at her place of loading, and notice thereof is given to the party of the second part, or to his agent. It is also understood and agreed that the vessel is to be loaded in accordance with the regulations of the New York underwriters. To the true performance of all and every of the foregoing covenants and agreements, the said parties, each to the other, do hereby bind themselves, their heirs, executors, administrators, and assigns (especially the said party of the first part, the said vessel, her freight, tackle, and appurte- nances, and the said party of the second part, the merchandise to be laden on board), each to the other, in the penal sum of seventeen hundred pounds sterling. In witness whereof, the said parties have hereunto inter- changeably set their hands and seals the day and year above written, at New York, Sealed and delivered in G. Bta. Phofdmo. (l.s.) the presence of Aech. Baxter. (l.s.) E. Otero. Wm. Muedock," Shortly after the making of the charter-party, the vessel was laid on at the port of New York for the conveyance of goods to London, and one Thomas Rigney shipped two parcels of wheat, consisting respectively of 1,170 bags and of 943 bags. For each of these parcels Profumo, the master, signed bills of lading, by which the wheat was deliverable " unto order or assigns he or they paying freight for the said wheat tenpence-halfpenny sterling per bushel of 601bs. delivered." These were indorsed by Rigney in blank, and came into the plaintiffs' hands. The vessel arrived in London on the 29th July, and the wheat THE ST. CLOUD. was delivered to the plaintiffs. Before its delivery they had sold 1863, it, in bond, for transhipment to France. It was however found •^"""'"'^ '^- so heated and in such a condition as to be unfit for delivery for transhipment, and to require warehousing. For the expenses thus incurred, amounting to 14:21. 19s. 6d., and for 18Z. 45. Id., the difference between the price for which they had contracted to sell the wheat and the price at which they afterwards sold it, the plaintifis now sued. It further appeared that the plaintiffs were pifrchasers of only the second parcel of the wheat, the bill of lading of the first parcel having been indorsed in blank by Rigney merely for the purpose of enabling the plaintiffs to sell it on account of third parties. The bills of lading contained no reference to the charter- party, neither was there any evidence to show that Rigney knew of its existence at the time when he shipped the wheat. On the hearing, 25th November, 1862, the Court pronounced in favour of the plaintiffs on the facts, the evidence showing that the wheat had been improperly stowed. The questions of law involved now came on for argument. The 6th and 35th sections of the "Admiralty Court Act, 1861" (24 Vict, c. 10), provide as follows:— Section 6, " The High Court of Admiralty shall have jurisdic- tion over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales." Section 35. " The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam." The Bills of Lading Act, 18 & 19 Vict. c. Ill, after reciting " Whereas by the custom of merchants a bill of lading of goods being transferable by indorsement, the property of the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the. original shipper or owner, and it is expedient that such rights should pass with the property" — enacts, section 1, that " Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such con- 8 THE ST. CLOUD. 1863. signment or indorsement, shall have transferred to and vested in January 13. him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." Brett, Q.C., and LmUngton, for the defendants,— First. The ship is not responsible, because at common law^ the ship- owner would not be responsible, but the charterer. This action is in effect an action for a breach of the contract contained in the bills of lading. The cases of Colvin v. Newberry (a), affirmed in the House of Lords (i) ; James v. Jones (c); and Mackenzie V. Rowe (d) ; are authorities to the effect that where a person hires the whole of a ship, and lays her on as a general ship, the contract created by the bills of lading, signed by the master, is between the charterer and the shipper of goods. In Schuster v. McKellar (e). Lord Campbell, after stating the different kinds of hiring of ships, says, " Notwithstanding some early decisions, it seems now settled by a numerous class of cases from Newierry V. Colvin to Marquand v. Banner (/), that where there is a hiring of the ship according to the second form above specified, with the intention that the charterer shall employ the ship for his own profit, when the master signs bills of lading he does so as the agent of the charterer, not of the owner. But still, the owner being in possession of the ship by his master and crewj he has rights in respect of this possession, as to claim a lien on goods on board for freight due to him ; and he is liable for the acts and negligence of the master irrespective of the contracts entered into by the master with the shipper of goods as agent for the charterer. Thus the owner, although the ship be so chartered, is clearly liable for a collision arising fi-om the improper management of the ship, and for what the master does within the scope o£ his general authority as master, which cannot be ascribed to his agency for the charterer. Here the plamtiffs do not claim under any bill of lading, &c." It is immaterial that there is no evidence to show that Rioney the shipper, had notice of the charter-party ; he had the means of knowing, and probably did know; but if he did not think fit to inquire for his own interest, as any prudent shipper would have done, the plaintiffs who claim through him cannot avail themselves of the want of such knowledge : Broadhent v. Bar- low {g). As in the case of Blaikie v. Stembridge {h), it is expressly (a) 7 Bing. 209. (e) 7 Ell. & B. 701, 724. (6) 1 CI. & F. 283. (/) 6 Ell. & B. 232. (c) 3 Esp. 27. (g) 7 Jur., N. S. 479, 480. (d) 2 Camp. 482. (A) 6 C. B., N. S. 894, 911. Till-: ST. CLOUD. '9 Mil id that a sliippcr of goods on board a general ship is not \H63, inUtli'd to conchido witliout inquiry that goods are to bestowed ■fanuary 13. by tlio inaslfM' rather than by the stevedore; so here, coiiHJdoring Imw coiiitiioii iH thi! custom of" chartering ships, tlio shipper had no ri^^hl, to aHHuiiu; tliat the ship was not chartered. Upon the cliuiU'r hciii^ proved, it ought to lin with the plaintiffs to show th;i(. th(i shipfjer liiid not notice oC it. Thi'r(; l)(:ing then no hiihility on the defendant at common law, w(! Huhniit tin: Admiralty Court Act does not make his ship h;ihl(!. 'I'Ik; intention of IIk; logishilurf; was clearly to give a more ('(li(;ii;nt remedy iiguiriHt od'ending shipowners; but it does not iMolcHH to riiiiki; thcrn answer for breaches of contract, or brciU'hdH of duty, for which they would not have been responsilile by proceedings in (leiHoniim previously to the passing of the Act. 'I'lie ',V)[\\ section of the Act gives the Court jurisdiction in rem ill general tt;riiiH ; but the res proceeded iigiiinat must surely be the rcn of sill od'eiidiiig party. Proceedings in rem are always liiihle to the control cd' e(|uitid)le considerations, for tlie proposi- lioii tliiit the ship is in default is a llclion, and must therefore not, be Htniiiied : IJioom's Maxims, piige I'JO. in iha Druid {a), the (yourt Haid, "'^I'lio llahility of the Hhip and the responsibility of the owners ate (lonveitihlo terms," and dismissed the suit on the ground that no aelion would have lain against the owners at comtnoii law. So iiynkershoek says in his work De Foro Legaloriiin, (Jhapter II., " I'onim competens unde testimari oporteat.— ( 'iir bona dotineniiiH, nisi tpiod subsint imperio ejus, (|iii iiijec:(,A, manii, del.iiieri! jubcl, sive niobilia, sive immobilia HJnt'^ (!iir ea ihstentio jurisdictioiiijui tribuit, nisi quod judex boiiii r(!i, a K(! daniiiati, possit cxcjciilionem dare ? " Moreover, if tli(! shipowner is now compelled to pay, he cannot recover over from the chaiterer ; or, at least, his only remedy is in a foreign tribunal, ho that the plaiiitillis an; endeavouring to impose on iIk! deleiidaiit the gri(!vancc of which they themselves are com- pliiining. I Dii. LimiiiNOTON : — Do you not thus frustrato the object of the Act of I'arliamont in all cases of chartered ships /] We say that if a vcsssol is cliartorcMl as here, the Act did not intend to giv(!, and does not give, a remedy in rem. Many cases may be cited to sliow how geiuiral words in a statute may be c'oiiHtrned to have a limitcid meaning only; ./Inw/uns v. Gather- cok [h) ; none, more romarkablc than the case of the Zollverein (c), dec'idiul in this Court. Wocondly. As to the first parcel of wheat, the plaintiffs, being («) 1 w. Rob. :m. (ft) Do o., M. & a. i. (o) Swttbey, 90. 10 THE ST. CLOUD. 1863. bare assignees of the bill of lading for the purpose of resale, January 13. cannot sue for damage done to that parcel, as they had no pro- perty in the wheat. At common law, no indorsee of a bill of lading could sue thereon. The right to sue is derived from the Bills of Lading Act, 18 & 19 Vict. c. 111. But the first section of that Act expressly limits its operation to the assignee or indorsee to whom the property in the goods therein mentioned shall pass. Moreover, if the defendant be held liable to the plaintiffs with respect to this parcel, he may have to pay twice over. He may be sued by the real owner of the goods. What answer would he have to sjich an action ? He could not plead the judgment recovered here; for the true owner is not a party, neither is he privy, to this suit. Besides, there may be many defences against the true owner of the goods which are not available as against the present plaintiffs. "Any claim" in the section, we submit, means " any legal claim." Thirdly. As to damages. — The defendant has nothing to do either with the expenses incurred in and about warehousing the wheat, or with the contract of resale. The true measure of damages is the difference between the value of the damaged goods and the market price at the time of their delivery : Josling v. Irvine (a). This arises out of the general rule laid down in HadUy v. JBaxendale(b). Even were it otherwise, there is in the present instance no sufficient contract to satisfy the 17th section of the Statute of Frauds (c). Twiss, Q.C., and ClarTison, for the plaintiffs. — In this case the owner has not parted with possession of the vessel by the terms of the charter-party, which do not amount to a demise of the ship : Christie v. Lewis i^d). The cases quoted by the other side, in support of a contrary doctrine, are cases in which the vessels were let for lump sums, and do not therefore apply. The case of Saville v. Campion{e) is an illustration of the general proposition, that where the owner does not demise the ship, and give up entire possession to the charterer, he shall have a lien upon the cargo for his freight ; and if he have a lien- such a lien as the common law will infer from the contract — it is clear that he must answer for damage to the cargo, otherwise there would be no mutuality. The principle of mutuality between the shipowner and the assignee of the bills of lading is recog- (o) 6 H. & N. 512, 516, 518. (d) 2 Brod. & B. 410. (6) 9 Exch. 341. (e) 2 B. & Aid. 503. ' (c) 29 Car. 2, c. 3. THE ST. CLOUD. 11 nized in the old cases of Cock v. Taylor (a), Kemp v. Clark (b). 1863. But we go further. We contend that the " Admiralty Court J<"»"'ry 13. Act, 1861," gives the Court power to enforce, by procedure in rem, another kind of lien unknown to the common law, viz., the maritime li«n thus described in Kent's Commentaries on American Law (c) : " The ship itself in specie is considered as a security to the merchant who lades goods on board of her, and it makes no difference whether the vessel be in the employment of the owner directly, or be let by a charter-party to a hirer who was to have the whole control of her. By custom, says Cleirac, the ship is bound to the merchandise, and the merchandise to the ship." A maritime lien is a charge on the property, and procedure in rem to enforce it is not a mere means of bringing a defendant into Court : JBold BuccleugJi (d). A maritime lien existed in such cases as the present independently of the Act of Parliament ; but there was no means of enforcing it. Formerly, as appears from 32 Hen. 8, c. 14, and Mr. Justice Story's judg- ment in The Schooner Volunteer (e), the Court of Admiralty had jurisdiction over charter-parties. The Act has now given this Court the power in these cases to enforce this maritime lien against the ship. Then again, in the cases cited to show that the charterer and not the owner is responsible, there was evidence of notice to the shipper of the charter of the vessel, which is not the case here. Notice is material : the case oi Major v. White (/) is an autho- rity that, in order to get rid of his primS, facie liability to consignees of cargo, the shipowner must prove that the charter was within the knowledge of the shipper ; and in Swainston v. Garrich {g), Lord Lyndhurst and the Court of Exchequer held that, notwithstanding a charter to a third party, the shipowner remains liable to the consignees for damage to cargo. In New- berry V. Calvin (h), it was expressly found that the charter had been communicated to the shippers. Secondly. As to the right of the plaintiffs to sue. — We rely upon the very comprehensive wording of the 6th section of the " Admiralty Court Act, 1861," as intitling a bare assignee of a bill of lading to sue for damage done to goods therein men- ■ tioned. The words are : — " The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried," &c. Had it been intended to limit its operation to assignees of bills of (a) 13 East, 399. (e) 1 Sumner, p. 555. (6) 12 Q. B. 647. (/) 7 Carr. & P. 41. (c) 10th ed., vol. iii., p. 304. (g) 2 L. J., N. S,, Exoh. 255. (d) 1 Moore, P. C. 267, 284. (ft) 7 Bing. 206. 12 THE ST. CLOUD. 1863. lading to whom the property in the goods passes by the assign- Jamuiry 13. ment, the legislature would have taken care to impose such limitation by express words, as it has done in the Bills of Lading Act. We submit that the Court cannot import the words " to whom the property in the goods therein mentioned shall pass" from the Bills of Lading Act into the 6th section of the Admiralty Court Act. Were this done, it would render the word " assignee" in that 6th section altogether unmeaning and superfluous, because everything intended would then be expressed by the word " owner." Thirdly. The plaintiffs are intitled to the whole amount of damages claimed. They fall within the rule laid down in Hadky v. Baxendale (a), that the proper measure of damages must be taken to be such damages as might reasonably have been anticipated by both parties as a natural consequence of a breach of the contract. Smeed v. Foordifi), where a farmer was allowed to recover for damage to his com arising from non-delivery of a threshing-machine on the stipulated day, is in point, and in the plaintiffs' favour. In Dunlop v. Higgins (c) it was held, that in Scotland the measure of damages on breach of a contract for the sale of goods is not merely the amount of the difference between the contract price and the market price at the time of the breach ; but an additional compensation may be allowed for such profit as might have been made by the pur- chaser had the contract been performed. Waters v. Towers (d) is a decision to the same effect, applicable to England. It also disposes of the objection raised by the other side under the Statute of Frauds : one of the points decided being that a plaintiff may recover damages in respect of profits arising out of a contract with a third person, although that contract be void by the Statute of Frauds. Liishington replied. On the 13th of January, 1863, De. Lushington gave judg- ment. Judgment The St. Cloud is a vessel owned by the defendant, Leonardo Gnstaldi by name, and a resident at Genoa. In the month of June, 1861, the vessel was lying at New York, under the com- mand of Baptista Profumo, as master. On the 6th day of June a charter-party under seal was entered into by Profumo therein called master, of the one part, and Archibald Baxter of the other (a) 9 Exch. 341. (c) 1 H. of Lords, 381, 403. (6) 1 Ellis & Ellis, 602, 613. (d) 8 Exch. 401. THE ST. CLOUD. 13 part, whereby the St. Cloud was chartered to Baxter for a 1863. voyage from New York to London. On the 17th day of June Jantiary 13. one Thomas Rigney shipped on board 943 bags of wheat, Facts of the whether with or without notice of the charter-party does not '^^^^' appear. The bill of lading contains no reference to the charter- party ; it does not state to whom freight is payable, and it is simply signed by Profumo as master. On the 24th day of June a further parcel of wheat, consisting of 1,170 bags, was shipped, and a similar bill of lading executed. Both bills of lading were alike assigned to the plaintiffs, Messrs. Bardgett, Picard & Co.; but, as appears from the evidence of Mr. Picard himself, only one of the bills of lading — that whicii comprised the second parcel of 1,170 bags — was assigned to them as purchasers; the other was assigned to the plaintiffs to enable them to receive the goods and sell them for third parties. On the 29th of July the St. Cloud arrived at the Victoria Docks, and Profumo delivered to the plaintiffs the two parcels of wheat, and received the freight. Before the arrival of the vessel, the plaintiffs sold the two parcels of wheat to Messrs. Dressier, at the rate of 49s. 6c?. per 496 lbs. ; but upon examina- tion, after arrival, they found the wheat in such heated condi- tion as to render delivery under the sub-contract impossible. The wheat was then landed and warehoused, and divers expenses incurred, amounting to 142Z. 19s. 6d. The wheat was finally sold, and comparing the price actually obtained with the price which would have been reahsed if the contract with Messrs. Dressier had been carried out, the loss was upon the parcel of 1,170 bags, IIZ. ; upon the parcel of 943 bags, 71. 4s. Id.; in all, 18Z. 4s. Id. In September, 1861, the plaintiffs, Messrs. Bardgett, Picard & Co., instituted a suit in this Court against the St. Cloud, alleging that the injury to the corn had been caused by bad stowage, and claiming for expenses 142Z. 19s. 6d, ; for loss on sale of corn, 18Z. 4s. Id.; total, 161 Z. 3s. 7d. The defendant in the first instance simply pleaded in effect a denial that the bad condition of the corn was owing to improper stowage ; but in March, 1862, the pleadings were amended, and the defendant further pleaded that at the time when the bills of lading and contracts mentioned in the petition were entered into by Profumo the master, the St. Cloud had been chartered to certain persons in New York for the voyage. The plaintiffs, in their reply, denied the fact of such charter, and pleaded further that if in fact the St. Cloud had been so chartered at the time alleged, the plaintiffs had not then any notice thereof. On 14 THE ST. CLOUD. 1863. the trial, the Court found the facts to be that the damaged state January 13. of the com had been occasioned by improper stowage; but all legal questions of the liability of the defendant to the plaintiffs were left open. 24 Vict. c. 10, The questions now raised are of infinitely greater importance tion! '" ^"" than the pecuniary interests at stake. The Court is required to pronounce an opinion upon the construction in several points of the 6th section of the Admiralty Court Act, 1861. The material portion of that section, which is one of the most im- ■ portant enactments contained in the statute, is in the following words : — " The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales." The general intention of the Legislature cannot be doubtful. The statute is remedial. The short delivery of goods brought to this country in foreign ships, or their delivery in a damaged state, was frequently a grievous injury for which there was no practical remedy ; for, the owners of such vessels being resident abroad, no action could be successfully brought against them in a British tribunal. To send the merchant who had sustained a. loss to commence a suit in a foreign tribunal, and probably in a distant country, could not be deemed a practical or effec- tual remedy. With a view to obviate a grievance so oppressive to British merchants, the enactment contained in the 6th section was passed. It was intended to operate by enabling the party aggrieved to arrest the ship in cases where, from the absence of the shipowner in foreign parts, the common law tribunals could afford effectual redress. Such being the obvious intention of the statute, I will now pro- ceed to consider the questions which have been discussed at the Here the ship bar. In the first place, then, it is contended on the part of the butMtsoaf ' defendant, the shipowner, that, by reason of the charter-party tL'rane"er ^"*^ ^^^ "^^'"'^ °!" ^''^ ^''*'°°' ^"^^ charterer alone, and not the the temporary owuer of the ship, would be liable at common law for the owner: damage done to the goods; and that this Court ought there- fore to hold, as the true construction of this statute that the plaintiff cannot maintain his suit against the ship. It is obvious THE ST. CLOUD: 15 that if the first of these two propositions be not founded in law, 1 863. it is unnecessary to consider the second. I regret that I should January 13. have to pronounce an opinion upon a question of purely common law ; but I have no alternative. I therefore proceed to form the best judgment I can upon the question, whether, consider- ing the form of the charter-party, coupled with the fact that there is no evidence that the shipper had notice of the charter, an action at common law would lie against the charterer exclu- sively. When goods have been shipped in good condition on board a vessel, and, by the misconduct or neglect of those in charge of her, loss occurs, some one must be responsible. I apprehend that prima facie the owner of the vessel is the person responsible ; but the cases decided at common law show that there are cir- cumstances under which the owner will be divested of such responsibility, and that responsibility will be cast upon another. Such is the case of a vessel demised by charter to another, so as to divest the owner altogether of possession, when the charterer is, pro hac vice, the owner ; Colvin v. Newherry (a). The present charter-party I apprehend to be clearly not one of this description. There is no demise of the vessel. The owner through his master retairis possession. There is a covenant to consign the vessel as the charterer may designate. There is a reservation of the cabin and deck ; and for the goods shipped the charterer is to pay the owner certain rates of freight mentioned in the charter-party. This appears to me to be clearly distinguished from a charter-party demising and giving up possession of the vessel. It is contended, however, that the contract contained in the and there being bill of lading was made by the master as agent of the charterer, that the and not as agent of the owner ; and, in support of this position, shipper had is cited the case of Schuster v. McKellair (b). But there is an charter, the important distinction in this case. The shipper is not proved ^afnTuable^' to have had notice of tlie charter-party. Until he had such for a breach notice, he would be justified in supposing that in dealing with °^ ^-^^ ^jn „{ the master for the carriage of his goods, he was deahng with the lading; and TH • A ,. ■ , . , . therefore his owners agent. ror prima lacie, the, master is the agent or ship is also lia- the owner of the ship. I cannot think that it is consistent with ^^^' justice, or according to ordinary mercantile practice, that a shipper of goods on board a ship put up in the usual way should lose his right to sue the owner for damage, on account of a charter of this description, of which he has no notice. 1 think the burthen of proof must fall upon the shipowner claim- («) I CI. & F. 283. (6) 7 Ell. & B. 704. 16 THE ST. CLOUD. 1863. January 13. The plaintiffs, being nude assignees of one of the bills of lading, could not sue upon the eon- tract in a court of common law ; can they sue the ship by virtue of the Admiralty Court Act? Reasons con- sidered. ing exemption from liability; he must show that the shipper had notice of the charter, and was aware that in making the contract, the master was agent for the charterer. For these reasons I have come to the conclusion that it is not satisfactorily shown that in this case an action might not have been maintained in a common law tribunal against the present defendant, had he been in this country, and amenable to the jurisdiction. 1 need not go further ,• for, unless this were established to my satisfaction, the second question cannot arise ; the shipowner being liable, his ship is liable by the statute. The next objection is the following : — The defendant contends that the plaintiffs cannot maintain an action for the damage occasioned to the first of these two parcels of wheat, because of the bill of lading of that parcel they were merely nude assignees, having no property in the wheat. As to the fact, it certainly appears from the evidence in this case that the plaintiffs were no more than nude assignees as to the parcel of wheat con- sisting of 943 bags. As to the law, prior to the Bills of Lading Act (a) no assignee could sue upon bills of lading. The first section of that Act is in these words : — " Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein men- tioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods, as if the contract contained in the bill of lading had been made with himself." It is clear then, I apprehend, that the assignment to the plaintiffs of the bill of lading for the 943 bags had not the effect of enabling them to maintain an action in a Court of Common Law for the damage done to the wheat; for, before the Bills of Lading Act, they would not have had a right to sue at all ; and by that statute they would acquire no such right, not being indorsees of the bill of lading, to whom the property in the goods had passed. The sole remaining question, therefore, upon this part of the case is, whether by the Admiralty Court Act this action can be maintained, no such action being maintainable in a Court of Common Law. The position assumed by the defendant is that the Legislature did not intend to create a new right of action • but merely, where an action could not, by reason of the absence of the defendant, be successfully prosecuted at common law to render the Court of Admiralty auxiliary by giving this Court (a) 18 & 19 Vict. c. 111. THE ST. CLOUD. 17 jurisdiction to proceed and arrest his property. Tiiis argument, 1863. founded upon the Bills of Lading Act, deserves grave conside- J«"»'"'y 13 - ration ; though it is not necessarily conclusive, because, if there be a practical grievance, it must be quite open to the Legislature to create a new right of action, if need be. In fact, it appears to me that the present question is simply one of construction, involving, however, consideration of the whole enactment and the subject-matter with which it deals. Ill attempting to construe a statute, I must declare my strong predilection for adhering to the plain words of the Act of Parliament, wherever it is possible. Verbis plane expressis omnino standum est; I have a great dislike to that which I must call judicial legislation; and though there are other autho- rities whicli F am bound to respect, 1 concur rather with those judges who in times past have lamented departing from the words of a statute. Now, prima facie, the words of the 6th section of the Admiralty Court Act would give every assignee, whether for viiluo or not, a right to sue in this Court, the words being " any owner, consignee, or assignee of any bill of lading." But the defendant contends that, though there is no qualitication attached to the word "assignee" in this statute, still it must be read so as to bring it into unison with the first section of the Bills of Lading Act. At fwst sight, it is certainly rather a strong proposition, that the Court is to insert the words " to whom the property in the goods shall pass." Let me con- sider what reasons there are for and against this proposition. I'irst, the words of the section. It has been said, and I think truly, that the words used in the section being " owner or consignee or assignee," the Court must give a distinct meaning to caeli ; and it is then argued that if I interpret " assignee" to mean only an assignee " to whom the property in the goods shall pass," there is no clear distinction between such assignee and the " owner j" but this is not quite so. The " owner," I conceive, is the person originally possessed of the goods ; the " assignee" spoken of is the person to whom the bill of lading is assigned. I think this is the answer to the argument just stated, but it does not remove the chief difficulty, namely, engrafting on the word " assignee " a qualification not to be found in any terms expressed. Again : the preamble says, " Whereas it is expedient to ex- tend the jurisdiction, and improve the practice of the High Court of Admiralty." T think the inference to be drawn from this preamble somewhat doubtful, but rather in favour of the defendant's position. He contends that the true inference is (hat the Act intends to confer jurisdiction where the right ot L. c 18 THE ST. CLOUD. 1863. action already exists, not to create a new right of action. January 13. The preamble, I think, throws but little light upon the question. Then, returning to the 6th section. It declares that the Court " shall haoe jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods." What is the true construction of the term " any claim" ? I think that the true construction of the words " any claim" is "any claim lawfully existing independently of this act." It may be said, I think with some force, that if it was intended to create any new right of action, the Legislature would have expressed such intention in clearer and more intelligible terms. Moreover, the whole of this section must be considered, and especially the proviso which prohibits the exercise of the jurisdiction conferred, if at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales. Now observe the consequence of adopting the plaintiffs' interpretation. A nude assignee would, if the owners of the ship were out of the country, have a right of action in the Admiralty Court, and in that alone ; but if the owners of the ship were in this country, such nude assignee would have no right of action, either in the Admiralty Court or in one of the Courts of Common Law. Such a consequence is so inconsistent with reason that I cannot believe it was the intention of the Legislature. There is another consequence that might possibly happen, which I will briefly mention. If a bare assignee were permitted to sue, the ship might be sold, and the proceeds paid to him. The owner of the goods, if resident abroad, might lose all his remedy against the ship. Upon consideration of all these matters, I have come to the conclusion that a nude assignee is not, by virtue of this statute, intitled to sue in the Admiralty Court. The claim must there- fore be confined to the one parcel of wheat of which the plaintiffs were owners by purchase. The damages to be referred to the Regis- trar, with di- rection that the plaintiffs shall not re- cover for loss on the sub- contract. The last question necessary to be determined relates to the amount of damages which the Court under these circumstances ought to decree. The Court is not accustomed to assess damages in the first instance; and I am not disposed in this case to depart from the ordinary course. I shall refer the amount of the damages to the Registrar and Merchants. The Registrar will bear in mind the cases of Josling v. Irvine (a) and Peterson V. Ayre (J). Those are cases similar to, but not the same as, (o) 6 H. & N. 512. (S) 13 C. B.353. THE ST. CLOUD. 19 the present ; because in them there was no delivery at all. 1863. From consideration of those two cases, I am led to conclude "^""""''^ ^^' that, at common law, in assessing damages for breach of con- tract under circumstances like the present, no regard would be paid to the existence of a sub-contract ; but the damages awarded would be such a sum as, at the time of the breach, would be required to put the plaintiffs in the same position as if no breach had been committed. This mode of assessing the damages may be different from that usually adopted in this Court ; but the only cases of damage to be found on the records of this Court are cases arising from collision ; and those, it must be remembered, are cases of tort, whilst the present is one of breach of contract. I must order the reference ; but I would fain hope the matter may be settled between the parties without the order being carried into execution. I deeply regret that this action should have produced so long and so expensive a litiga- tion. The truth, however, is that in the first instance neither party took a clear view of their own case. Clarkson and Son, proctors for the plaintiffs. Deacon, proctor for the defendant. THE LEDA. Practice — Costs against the Crown — 18 8f 19 Vict. c. 90 — Co-plaintiffs severally liable for costs. In a cause of damage instituted on behalf of Her Majesty in her oiBce of Ad- miralty, and of the commander and crew of one of Her Majesty's ships, against a private shipowner, the Court, on a finding for the defendant, declined to condemn the Crown in costs, but condemned the commander and crew to pay the whole of the costs. The 18 & 19 Vict. c. 90, authorizing costs to be given to or against the Crown, applies only to proceedings in which the Attorney-General or Lord Advocate is a party. Co-plaintiffs are severally liable to the whole of the costs. THIS cause was instituted on behalf of Her Majesty in her January 20. office of Admiralty, and also on behalf of George Bones, commanding Her Majesty's cutter Badger, and of the crew of the said cutter, against the steamship Leda, for damages occasioned by a coUisiou in the Bay of Dubhn, by which the Badger c2 20 THE LEDA. 1863. January 20. " In all Crown suits, &c., where the Crown is suc- cessful, costs to be recovered as between subject and subject. " Defendant intitled to costs, if suc- cessful against the Crown. was sunk. The owners of the Leda, Messrs. Thompson & Co., defended the action. On the hearing, on the 27th November, 1862, the Court pro- nounced against the claim, but reserved the question of costs, which now came on for argument. The statute 18 & 19 Vict. c. 90 provides as follows :— " An Act for the Payment of Costs in Proceedings instituted on behalf of the Crown in matters relating to the Revenue, and for the amendment of the Procedure and Practice in Crown Suits in the Court of Exchequer. [14th August, 1855.] "Whereas in divers proceedings instituted by or on behalf of the Crown against the Queen's subjects in respect of matters relating to the revenue no costs are recovered by the Crown, except in certain cases, and no costs are paid by the Crown to the subject : And whereas it is expedient to assimilate the law as to the recovery of costs in such proceedings by or on behalf of the Crown to that in force as to proceedings between subject and subject : Be it therefore enacted : — " I. In all informations, actions, suits, and other legal proceed- ings to be hereafter instituted before any court or tribunal whatever in the United Kingdom of Great Britain and Ireland, by or on behalf of the Crown, against any corporation, or person or persons, in respect of any lands, tenements or hereditaments, or of any goods or chattels, belonging or accruing to the Crown, the proceeds whereof, or the rents or profits of which said lands, tenements, or hereditaments, by any Act now in force or here- after to be passed are to be carried to the Consolidated Fund of Great Britain and Ireland, or in respect of any sum or sums of money due and owing to Her Majesty by virtue of any vote of Parliament for the service of the Crown, or of any Act of Par- liament relating to the public revenue. Her Majesty's Attorney- General, or in Scotland the Lord Advocate, shall be intitled to recover costs for and on behalf of Her Majesty, where judgment shall be given for the Crown, in the same manner, and under the same rules, regulations, and provisions, as are or may be in force touching the payment or receipt of costs in proceedings between subject and subject,and such costs shall be paid into the Exchequer, and shall become part of the Consolidated Fund. " II. If in any such information, action, suit, or other proceed- ing, judgment shall be given against the Crown, the defendant or defendants shall be intitled to recover costs, in like manner and subject to the same rules and provisions, as thouo-h such proceeding had been had between subject and subject • and it THE LEDA. 21 shall be lawful for the Commissioners of Her Majesty's Treasury 1863. and they are hereby required to pay such costs out of any monies J"«"°'» 20. which may be hereafter voted by Parliament for that purpose." Deane, Q.C. [Lushington with him), for the defendants. — The defendants are intitled to their costs, by the statute 18 & 19 Vict. c. 90, and also by the practice of the Court. In the case of Her Majesty's ship Swallow (a), that vessel having been held solely to blame for a collision, costs were given to the plaintiff by this Court. So, in the case of Her Majesty's ship Inflexible (b). The Courts of Equity do not recognize any such principle as that the Crown shall neither receive nor pay costs. Sir John Leach, in delivering judgment in The Attorney- General V. The Earl of Ashbiirnham (c), after remarking that he could find no such general principle in the Courts of Equity as that the Crown can neither receive nor pay costs, proceeds to say, " The Attorney-General constantly receives costs where he is made a defendant in respect of legacies given to charities, and even where he is made a defendant in respect of the immediate rights of the Crown in cases of intestacy ;" and accordingly the defendant was condemned in the costs. This case was recog- nized by Vice-Chancellor Stuart in Kane v. Reynolds {d). Again, in the case of the Attorney- General v. The Corporation of London (e). Lord Langdale refused to recognize any general rule that the Crown should neither receive nor pay costs ; and in the same case on appeal (/), Lord Cottenham said : — " This case stood over for the purpose of my making some inquiries as to the course of proceeding with regard to costs where the Attorney-General is a party. I have had an opportunity of looking at a variety of instances, which clearly show that although there may be and has been a generally received opinion, a sort of saying, that the Attorney-General neither pays nor receives costs, yet that it is open to a variety of exceptions, and that there are very many cases to be found in which that rule has not been acted upon. There does not, however^ appear to have been a very general practice or understanding upon the subject." It is true that in the case of the Duke of Sussex (g), this Court refused to give costs against the Crown, observing that, " although there had been much wavering upon the subject, the true principle was that the Crown neither gave nor took costs." But that case was decided without argument. On the other (fl) Swabey, 30. (e) 12 Beavan, 171, 178. (6) Swabey, 32. (/) 2 Mac. & G. 247, 269. (c) 1 Sim. & S. 394, 397. (g) 1 W. Rob. 270, 274. (d) 2 Sm. & Gif. 334. ' 22 THE LEDA. 1863. hand, in the Queen v. Belcher— Illeanon Pirates (a), where the January 20. Lorjg of ^^g Admiralty had appealed to the Privy Council against a decision of this Court, their appeal was dismissed with costs ; and in Dyke v. Barton {b), the Privy Council gave costs against the Procurator-General, as nominee of the Crown con- testing the validity of a will. At all events, the defendants are intitled to costs against the commander and crew of the Badger, the co-plaintiffs in this cause. Sir B. PMUimore (Queen's Advocate), and I>r. Twiss (Admiralty Advocate), contra. — The Court has no power to condemn the Crown in costs, save by statute : R. v. Miles (c). Blackstone says : — " The king, and any person suing to his use, shall neither pay nor receive costs; for besides that he is not in- cluded under the general words of these statutes, as it is his pre- rogative not to pay them to a subject, so it is beneath his dignity to receive them"(rf). The 18 & 19 Vict. c. 90 does not apply to the present case — First, Because this is not such a proceeding as any of "those enumerated in the first section of the Act. Secondly, Because, if this action were in its nature similar to any of the proceedings mentioned in the Act, still no costs could be given against the Crown, the Attorney-General not being a party to the suit. The cases in the Court of Equity, relied on by the defendants, were before the passing of the Act, and are not authorities in favour of condemning the Crown in costs. In the Attorney- General v. Lord Ashburnham (e), and the Attorney- General v. The Corporation of London (/), the question was not whether the Crown should be condemned in costs, but whether it should receive costs. In the former case Sir John Leach refused to recognize the principle that the Crown neither receives nor pays costs, giving as a reason the fact that " the Attorney-General constantly receives costs in certain cases." And in the case of the Attorney- General v. The Corporation of London (g), Lord Cottenham expressly restricts that principle by the following observations : — " I have consulted with the best authorities upon the subject, and we are all of opinion that it would be well to consider, not as a rule without exception (because it is always matter of discussion to a certain extent), but as a general rule, that the principle that the Attorney- General never receives nor pays costs, may be modified in this way, namely, that the Attorney-General never receives costs (o) 6 Moore, P. C. C. 471, 484. (e) 1 Sim. & S. 394. (6) 10 Moore, P. C.C. 458. (/I 12 Beav. 171. (c) 7 Term Eep. 367. (g) 2 Mac, & G, 247, 273. i w.KBfccass.a»i. (e) i-asUasiMt. 4«s. I, » 34 THE ELLA A. CLARK- 1 863. But at all events that enactment is controlled by the 5th section frtraory 14. of the 24 Vict c. 10. This section speaks of " any ship,"— [Db. LusHiNGTOiv : — In the St. Claud (a), I pat a restricted meaninar on the term " my assignee of a bill of lading."]— There were special reasons for that construction ; and sections 9 and 12, which speak specifically of British ships, show that the words " any ship " in the Act include a foreign ship ; and in the .S<. Cloud {a), the same words in section 6 were held to inclnde a foreign ship. The present case then falls within the proviso of section 5 of the later statute, because at the time of the institation of the cause the owner of the ship was domiciled in England. We therefore submit that this Court has no jurisdiction. Milward and Lushingtmi, contra. — ^We contend that the Court has jurisdiction under the 3 & 4 Vict. c. 65, s. 6, That statute revived the ancient maritime lien, and the lien follows the ship into the hands of a bona, fide purchaser. The observations cited from the Alexander (b), which was the first case on the statnte, were alio intuitu, namely, as to vested interests before the pass- ing of the Act. The law is now settled by the Bold BmceleMgk{e). — [Dr. Lushisgton: — That was a daniage cause.] — ^The case of the West Friesland {d) was one of necessaries, and it was there held that the lien followed the ship into the Ij^nds of a purchaser. That was a suit institoted under the section on which we rely. Bat it is said that the oth section of the Admiralty Court Act, 1861 •24 Vict. c. 10), limits the oj^ratiou of the former Act. We submit not. Both the title and the preamMe of the Admiralty Coort Act show that the intention at the l^islature was to extend, not to abridge, the jarisdiction of the Court. The 5th section of the Admiralty Court Act, 1861, does not apply to foreign ships. There were cases to which the 6th section of the 3 & 4 Vict. c. 65 did not apfAj: for mf^jflV^, the case of ships r^'stered here whose owners were resideot abroad, or colonial ships : Ocean Queen (c). It was to pro- vide a remedy for persons who supplied neces^uies to sndi vessels that the 5th section of the Admiralty Conrt Act, 1861, was framed. Bnt if that section does apply to fordgn siofS, then the Court has jurisdiction to entertain tbk cause there- under. The proviso as to domicile does not exclude the jurb- diction of the Court from this case, because the words "any owner or part-owner of the ship," mean any owner or j^rt- owner at the time of the iupfij of tiie iKce^arie^ and m* Ca) Ante, p. t (^ Swahey, 4*4. (S) I W. Kot 294. («) 1 w. E^b. 457, 4glL (e) 7 Mooe, P. C. C 267. THE ELLA A. OLAIIK. 3fi at the time of the iuititution of the caiue; iu point of fact, an 1863. owner who can be nued on the original contract. Otherwise, '^'^''"'"'^ ^*' if tlte ihip wEiM originally foreign, there would be an unreaaon- ftblo distinction between u British and a foreign purchaser ; and if the ship, originally British, was sold to a foreigner, an action in rem might obtain, although the former owner, the principal to the contract, were domiciled here. Brett, Q.O., replied. On the Uth of February Dn. Lusiiinotok gave judgment. Judgment. [A iter stating the facts as above.] The question in this case is whether the plaintiff, who furnished necessaries to a foreign ship, can pursue his remedy against the •hip at1;er she hus been purchased by a British subject domiciled here ; purohnsed, I will assume, bon& 6de and without notice. Before entering with the necessary minuteness into the parti- The Intentlnn oular enactments of the statutes referred to, 1 will state what uturowMta appears to me to have been the intention of the Legislature in b1v« « w"efly ... ..... . „ » A 1 . , . , - by tho lalzure oonfcrrnig jurisdiction on the Court of AdnnraUy m the case of ohiio veiul necessaries furnished to foreign ships. It was, I apprehend, to ^]j^^J a?eom. render the power of the Court of Aiimlralty auxiliary to the moniawUnot Courts of Comnioti Law : in other words, to give a remedy by *^* " *' •the leiiura of the ship, when an action at common law would not bo available by reason of the absence fiom British juris- diction of the shipowner on whose behalf the necessaries were supplied. It is contended that Parliament neither did nor could create a maritime lien; and that, upon a transfer of the ship, no proceed- ing save for u maritime lien could be had in rem. Now I am aware that m the Courts of the United States a distinction pravails between a maritime lien, strictly so called, and the arrest of the ship for the purpose of compelling an appearance ; for instance, those Courts hold that seamen's wages constitute a maritime lien, adhering to the ship; that masters' wages do not consti- tute a lien, but yet may be sued for in the Court of Admiralty. It is very difficult to ascertain with certainty what were the itistanoe proceedings of our own Court of Admiralty in ancient times, fbr there were no reports till the present century ; and though years back I looked at the Court books, I am not pre- , pared to say that I collected satisfactory information on this •ubjeot. Latterly the Court of Admiralty was occupied almost, if not entirely, with causes where the subject-matter constituted, without doubt, a nmritimo lien, as causes of damage, salvage, and d2 36 THE ELLA A. CLARK. 1863. bottomry. When the Legislature thought fit to put masters' February 14. ^a,ges On the Same footing as seamen's wages (a), they did, as When the relates to this Court, constitute masters' wages a maritime lien ; givtn a remedy ^"d looking through the several recent statutes, I am led to the itirem, it con- general conclusion that when the Legislature has appointed the StltUtCS SI 1 J maritime lien, proceeduig in rem, they intended to give the same remedy as heretofore was in use in this Court in the administration of justice in cases of maritime lien, though no express words may be used to that effect. I am not concerned to say whether the ' Courts of foreign states would recognize such transactions as the present as carrying a maritime lien : it is sufficient for my judg- ment if the Legislature has directed me to proceed as in the case of such a lien. It is true that in the case of the Alexander {b) I am reported to have said that the Act of 3 & 4 Vict, did not create a lien, though it gave a remedy against the ship. I intended to state that there might be a distinction between a provision for proceedings by arrest of the ship and the express creation of a lien, and to leave all such questions open. The case of the Bold Buccleuyh (c), however, renders the discussion of this matter useless. .5; 3 & 4 Vict. c. The 6th section of the statute 3 & 4 Vict. c. 65 enacts, that the Courriuris- ^^^ Court shall have jurisdiction to decide all claims and de- diction, unless mands whatsoever for necessaries supphed to any foreiga ship, 24 Vict. 1. 10, ^"*^ t° enforce the payment thereof, whether the ship at the time when the necessaries were furnished may have been within the body of a county or upon the high seas. After what I have said, if the present case is to be governed by this statute, it is free from difficulty : the Court has jurisdiction. The argument against the jurisdiction of the Court is, however, mainly founded on the provisions of section .5 of the Admiralty Court Act, 1861, which enacts tliat the Court shall have juris- diction over any claim for necessaries supplied to any ship else- where than in the port to which the ship belongs, unless it is shown to the satisfaction of the Court that at the time of the but it is not so institution of the cause any owner or part-owner of the ship is domiciled in England or Wales. The defendant contends that the words " any owner or part-owner" relate to the words pre- ceding, and mean the owner or part-owner at the time of the institution of the cause, and that the proviso therefore excludes the jurisdiction of the Court from this case ; in other words, that the transfer to a British owner now domiciled here ousts the jurisdiction. In construing this enactment, I must bear in min controlled. («) 17 & 18 Vict. c. 104, s. 191. (b) 1 W. Rob. 288, 294. (c) 7 Moore, P. C. C. 267. THE ELLA A. CLARK. 37 that the case of foreign ships had been already provided for by 1863. the 3 & 4 Vict. c. 65, and that the sale to a British owner by ^^''"'"'•^ '^- the foreign owner would not have taken away the remedy thereby given to the person who had furnished the necessaries. Did then the later statute intend to work that effect? I am of opinion that it did not, and for divers reasons. Istly. The 24 Vict. c. 10 is an enabling statute. 2nd!y. I do not find any words directly purporting to alter the provisions of the 3 & 4 Vict. c. 65, as to necessaries furnished to foreign ships. 3rdly. It is not to be presumed that the Legislature, having given a remedy tantamount to the creation of a maritime lien, would, without some strong apparent reason, pass an enactment most materially impairing the efficacy of that remedy, 4thly. I can discover no reason for the distinction between a British and a foreign purchaser. There would be a sound distinction if a personal action would lie against the British purchaser ; but it is manifest that there would be no privity between him and the person who furnished the necessaries, to support such an action. Sthly. The construction contended for on the part of the defend- ant would be against the spirit of the enactment, which is to give a remedy in rem for a just claim where no personal action can be brought. 6thly. The words of the 5th section of the 24 Vict. ^. lo, 24 Vict. c. 10 are unfavourable to its application to ships foreign- ^ p'ly "o^ ""' owned when the necessaries were furnished. The words " owner foreign sliijis. or part-owner domiciled in England or Wales " appear to me to refer manifestly to ships not foreign-owned when the debt was contracted : for it is improbable that the owner of a ship foreign- owned when the necessaries were supplied should at the time of the institution of the suit be domiciled in England or Wales. Moreover, there is a class of ships upon which the words can with good reason operate, namely, colonial vessels, and vessels regis- tered in Great Britain, whose owners are not resident in England or Wales. I am satisfied that the intention of the Legislature will be best carried out by the interpretation I put on this statute; whereas if I adopted the contrary construction, the just demand of the merchant or trader who furnished necessaries to a foreign ship would at once be defeated by the transfer to an English purchaser domiciled in England. It is no real hardship on the purchaser. Caveat emptor is the true principle; and there is no real reason why this claim for necessaries should not stand on the same footing as a claim for wages or salvage. I overrule protest over- the protest with costs. Rothery, proctor for the plaintiff. Marshall, solicitor for the defendant. 38 THE TIGRESS. 1863. February 17. THE TIGRESS. Stoppage in Transitu — Liability of Ship for Non-delivery of Cargo — Vendor and Vendee — Conflicting Claims under two Bills of Lading— " Breach of Duty " 24 Vict. c. 10, s. 6. A merchant who purchases goods on his own credit for another, to whom he indorses a bill of lading of the goods, stands, for the purpose of stoppage in transitu, in the position of vendor ; and the indorsement by him of one bill of lading to the vendee does not, of itself, defeat his right to stop in transitu. The vendor claiming to stop need not represent to the master that the bill of lading is still in the hands of his vendee. Upon the vendor asserting his right to stop in transitu, the master, unless aware of some legal defeasance of such right, is bound to deliver the goods to him ; and his refusal so to deliver constitutes a "breach of duty" within the 6th section of the Admiralty Court Act, 1861, for which the ship will be liable. A master is justified in delivering goods to the holder of the first bill of lading presented. February 17. TN this cause the plaintiffs, Messrs. Lucy & Son, of Liverpool, -*- claimed damages for the refusal by the master of the American ship Tigress to deliver to them a cargo of wheat shipped at New York and carried to Bristol. The cause was instituted, and the ship arrested under the Admiralty Court Act, 1861 (a), of which the following are the material provisions: — Section 6. "The High Court of Admiralty shall have jurisdic- tion over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part-owner of the ship is domiciled in England or Wales." Section 35. "The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by pro- ceedings in rem or by proceedings in personam." The petition set forth the following facts : — On the 3rd July, 1862, the plaintiffs, Liverpool merchants trading under the style of William Lucy & Son, received a letter from one Frederick James, a corn-broker at Bristol, containing the following amongst other orders : — (a) 24 Vict, 0. 10. THE TIGRESS. 39 " John Bush — Bristol — 500 quarters Milwaukie dub, or other 1863. equally good wheat, if at or under 43s. per 480 lbs., including ^^'"''""V '7. cost and freight. — Shipment to Bristol." In the letter to the plaintiffs Mr. James wrote : — " I shall be glad if you will submit these orders per next mail to New York, subject to my commission as customary." The hmit of 43s. was afterwards extended to 45s. 6d. The custom of the trade in such transactions is for the Liver- pool merchant to forward a corresponding order to his agent at New York, who thereupon executes the same on the best terms he can, charging the Liverpool merchant the cost price and five per cent, commission ; but of this five per cent, the Liverpool merchant takes three per cent, for himself in his account with the New York agent, paying thereout one per cent, to the Bristol broker. The Bristol broker's principal pays the Liver- pool merchant the cost price of the wheat, the five per cent, commission, and other charges. The plaintiffs accordingly gave an order to one Power, their agent at New York, for wheat corresponding in quality and price with the order received by them; and Power, in com- pliance with the order, caused 4,000 bushels of Illinois wheat to be shipped on board the Tigress. Three bills of lading, by which the wheat was made deliverable at Bristol, " unto order or its assigns," were signed on behalf of the master of the Tigress on the 2nd October. The bills of lading contained the usual proviso, " one being accomplished, the others to stand void." Power indorsed two of these bills of lading, " Deliver to order of Messrs. William Lucy & Son — Wm. H. Power," and sent them to the plaintifTs. He also sent to the plaintiffs an invoice of the wheat as " shipped by order of Messrs. William Lucy & Son, of Liver- pool," and an account wherein the plaintiffs were debited with the wheat. Throughout the transaction Power dealt with the plaintiffs only. On receipt of the bills of lading, on or about the 15th of October, the plaintiffs sent to Bush an invoice of the wheat, " shipped to Bristol from New York per ship Tigress, by order of William Lucy & Son, Liverpool, for account and risk of J. Bush, Esq., Bristol," and also an account for the same. For the amount of this account, 8931. 18s., they at the same time drew on Bush at two months. The bill was accepted by him and returned to the plaintiffs, who thereupon, on the 21st of October forwarded to Bush one of the bills of lading indorsed, " Deliver to John Bush, Esq., or order. — William Lucy & Son." The Tigfess arrived at Bristol on or about the 1 8th of Novem- ber. On the 2nd of December the plaintiffs received a circular, 40 THE TIGRESS. 1863. calling a meeting of the creditors of Bush, who was then insol- February 17. yg^t. Thereupon the plaintiffs indorsed the bill of lading remaining in their hands in blank, and gave it to one Dyson, whom they sent to Bristol to receive the wheat in their name. Whilst the wheat was still in transitu, and before any other bill of lading in respect of the same had been presented to the master of the Tigress, Dyson, on the 3rd of December, presented to the master the bill of lading in his possession, and demanded dehvery of the wheat, offering at the same time to pay the freight. He also presented to the master a paper, signed by the plaintiffs, giving him notice that they were the owners of the wheat; that they claimed delivery thereof; that they thereby cancelled any delivery order, actual or constructive, previously given by them ; and that he was not to deliver the wheat or any part thereof to any person except Dyson, whose receipt should be a vaHd dis- charge for the wheat. The master refused to deliver the wheat to Dyson. Some negotiations ensued, in the course of which the plaintiffs offered to indemnify the master and owners of the Tigress against claims by third persons if the former would deliver the wheat to Dyson. An agreement to this effect was drawn up and tendered to the master. Jt recited amongst other things that Bush was the holder of one bill of lading, and that he claimed to have and be intitled to the said wheat thereunder. The master neverthe- less refused delivery, and this cause was therefore instituted. On the 18th of December, after the commencement of proceedings, the bill of exchange became due, but was not presented for pay- ment by reason of the insolvency of Bush. The defendant, the managing owner of the Tigress, gave notice of motion to reject the petition. The motion now came on for argument. 'I'he two first sections of the Bills of Lading Act (18 & 19 Vict. c. Ill) are as follows : — Section 1. "Every consignee of goods named in a bill of lading, and every indorsee of a bill of lading, to whom the property in the goods therein' mentioned shall pass upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabihties in respect of such goods as if the contract contained in the bill of lading had been made with himself." Section 2. "Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the THE TIGRESS. 41 consignee or indorsee by reason or in consequence of his being 1863. such consignee or indorsee, or of his receipt of the goods by ^^'"'""''i/ '• reason or in consequence of such consignment or indorsement." Cleashy, Q.C., and Warribey for the defendant. — In order to maintain this action, which is instituted under the Admiralty Court Act, 1861 (a), the plaintiffs must show that the master of the ship had a duty to deliver the wheat to them. The plain- tiffs had no right to delivery in virtue of the bill of lading which they presented ; for they themselves had indorsed one of the bills of lading to Bush ; and an indorsement of one is an indorsement of all. By such indorsement the contract contained in the bill of lading passed to Bush; 18 & 19 Vict. c. Ill ; and the presentment of any other bill of lading- was inoperative on the master. Secondly ; If the plaintiffs rely on a right of stoppage in transitu, then we say that their right to stop in transitu had been defeated by the negotiation of the bill of lading : Lickbarrow v. Mason{b) ; Gurney v. £ehrend{c) ; Smith's Mercantile Law, 6th ed. 532. It is no answer to the defendant that the bill of lading negotiated is still with Bush. And if it were, the petition is defective for not averring that Bush was still, on tlie 3rd of December, the holder of the bill of lading indorsed to him, and that the plaintiffs then informed the master of that fact. The master, it appears, knew that one bill of lading had been indorsed to Bush : he knew therefore that Bush might assign, and in all probabihty had assigned it to third persons. Under these circumstances it would have been a breach of duty on his part to have delivered the cargo to the plaintiffs without the bill of lading which had been indorsed to Bush being accounted for. The plaintiffs could not maintain trover at common law ; because, having by their own act created an uncertainty as to the person to whom the master ought to deliver the wheat, his holding it until he should be able to ascertain the right person cannot amount to a con- version. He only wanted to do his duty. A difficulty in assessing damages in a case of this kind ought also to be pointed out. Assuming that the plaintiffs had a right to the wheat, the possessory action of trover remains to them with damages to the full value of the property. Brett, Q.C., and Lusldngton, in support of the petition. — In the 6th section of the Admiralty Court Act the word " owner " means the owner of the goods. As owners of the goods the plaintiffs have a remedy given them by the Act for a breach («) 24 Vict. c. 10. (c) 3 E. & B. 622, 637. [b) 1 Smith's L. C, 5th ed. 681, 729. 42 THE TIGRESS. 1863, of duty, or a breach of contract, by the master. It is not neces- ehruary 17. ^^^^ ^^^^ ^^^ plaintiffs should show a duty on the part of the master to deliver to them arising out of the contract contained in the bill of lading. There may be a breach of duty on the part of the defendant without a contract, or at all events without a contract by bill of lading. The plaintiffs claim as unpaid vendors to stop the wheat in transitu. As against Bush it is clear that they had this right. In the case of Feisev. Wray (a), it was held, that a correspondent who purchases for a merchant on his own credit is so far a vendor that he may stop the goods in transitu. The case of Bloxam v. Sanders (b) also shows clearly the principle on which the right to stop is founded. Then, on the demand of delivery by the plaintiffs and the master's refusal, a cause of action accrued to the plaintiffs : Thompson v. Trail {c). The defendant complains that he was placed in a difficulty as to the delivery of the cargo ; but the difficulty is one common to all carriers, in return for which they have certain common law privileges accorded them. As to the plaintiffs' right to stop in transitu being defeated by the indorsement of one bill of lading to Bush, there is no authority for such an assertion. In the note to Lickbarrow v. Mason (d), the words are " The right to stop in transitu may be defeated by negotiating the bill of lading with a boni fide indorsee." But negotiation there means negotiation by the vendee to a third party. No doubt the plaintiffs' right to stop in transitu would have been defeated had Bush indorsed the bill of lading over to a third person for value ; but this he had not done. The case of Gurney v. JBehrend (e) is beside the question, for in that case there was negotiation by the vendee to a third party. The Bills of Lading Act {f) does not help the defendant, because section 2 expressly provides that the Act shall not affect the right of stoppage in transitu. The plaintiffs also claim as presenters of the only bill of lading presented to the master. They were indorsees of the bill of lading and owners of the cargo, and as such might have brought trover, or any action simply depending on their rights as owners of the cargo, before the passing of the Bills of Lading Act. Cleashy, Q.C., replied. Cur. adv. vult. (a) 3 East, 93. (d) 1 Smith's L. C, 5th ed. 729 (i) 4 B. & C. 941. («) 3 Ell. & B. 622. (c) 6 B. & C. 36. (/) 18 & 19 Vict. c. 1] 1 TPIE TIGRESS. 43 On the 17th of February Dr. Lushington gave judgment, 1863. February 17. This case comes before the Court on motion to reject the judgment, petition filed by the plaintiffs. — [Tiie learned Judge then recited the principal statements in the petition.] — It is in truth a demurrer ; and the statement of facts in the petition must there- fore, for the present purpose, be taken as true ; and the Court must determine whether they disclose a good cause of action. There can, I think, be no doubt that, by the 6th section of The action is the Admiralty Court Act, 1861, this action is maintainable in ™nder24!Vict. the Court of Admiralty if it appear that the master had a duty <=. lo, ». 6, if to deliver the wheat as claimed by the plaintiffs. a duty to deliver to plaintiffs. The defendant objects that whether the plaintiffs found their claim to the wheat on the bill of lading indorsed by themselves in blank, and presented to the master by their agent Dyson, or on their asserted right of stoppage in transitu as unpaid vendors, the master had no duty to deliver to them, and the petition accordingly does not disclose a good cause of action. On the first ground The indorse- of objection the defendant says that the plaintiffs could not bill ofladino- claim the wheat under the bill of lading presented by Dyson, ^y '''^ vendor to the vendee because they had previously indorsed another of the bills of does not neces- lading to Bush. An indorsement of one bill of lading is, it is ^^"'^ render & _ o ' a subsequent contended, an indorsement of all ; and therefore the subsequent indorsement of indorsement of the duplicate bill of lading under which Dyson iaijin„ by the claimed delivery was ineffectual. I think this argument of the vendor defendant is opposed to the law as laid down in the case of Fearon v. Sowers (a). That case is cited with approbation in Lichharrow v. Mason, alike by Lord Loughborough in the Exchequer Chamber, and by Mr. Justice Buller in the House of Lords (b), and in no way infringes the doctrine that the indorsement of a bill of lading may pass the property. There the consignor indorsed one of the bills of lading to the vendee, and another to his own partner with instructions to present it in case the vendee were not solvent. On the arrival of the vessel the consignor's partner did present his bill of lading, and at the same time an indorsee for value of the vendee presented his bill of lading. The master delivered the cargo to the consignor's partner, and thereupon the indorsee for value sued him in detinue. It was held by Chief Justice Lee, that by the usage of trade the master was not bound to inquire into the comparative merit of claims under different bills of lading; but only to deliver the goods upon one of the bills of lading ; and he therefore directed (a) 1 H. Blackstone, 364, in notis; (J) 1 Smith's L. C, 5th ed. pp. 705, 1 Smith's L. C, 5th ed. p. 705. 714. 44 THE TIGRESS. 1863. a verdict for the defendant. This case is a stronger one than the February 17. preggnt^ f^j. j,gpg j^. appears that there had been no presentmeni at all by the vendee of his bill of lading. It is clear therefore that the master would at least have been justified in delivering to the plaintiffs as holders of the first bill of lading presented ; and it must be remembered that the bills of lading contain a proviso that the first being accomplished, the others shall stand void. Whether he would, on the same ground, have been bound to deliver to the plaintiffs it is not necessary for me to decidej for it is clear that the use they made of the bill of lading was merely auxiliary to the right, claimed by them, of stoppage in transitu. PkintifFs' right Then as to the plaintiffs' right to stop in transitu, the defendant transitu." Contends that they had no such right. It was said at the bar that the plaintiffs lost their right from the moment they indorsed the bill of lading to Bush ; for " the right to stop is defeated by negotiating the bill of lading with a bona fide indorsee." But in my opinion the indorsement to Bush was no such negotiation The mere in- as is meant in this passage from Mr. Smith's note {a). If the one bill of bill of lading had been indorsed over by Bush to a third party lading by the fo,- value, tiiat would have been such a negotiation ; but to give vendor to the % cr • i vendee does the Same effect to a mere indorsement by the vendor to the vendor^s^right '^^"'^^^ would be, in a large number of cases, to preclude the to stop. exercise of the right altogether. The case of Feise v. Wray{b) A vendor ex- seems to me quite inconsistent with the argument of the ercising his j r j xt t i • • right to stop in defendant. Nor can I accede to the objection, urged by the not"represent defendant, that it is necessary for the vendor, in order to exercise to the master his right to stop in transitu, to represent to the master that the lading indoised ^''^ ^^ lading is Still in the hands of the vendee, and that the to the vendee petition is bad for not containing an averment to this effect. IS still in the ah ,i ^ • • r- i i vendee's AH that IS necessary is tor the vendor to assert his claim as vendor hands. and owner. Were the vendor, before he could exercise his right of stoppage in transitu, obliged formally to prove his title, that right would be worthless. The validity of a stoppage in transitu depends upon several conditions : — (1) The vendor must be unpaid. (2) The vendee must be insolvent. (3) The vendee must not have indorsed over for value. But for the vendor to prove to the master that all these conditions have been fulfilled would be always difficult, often impossible. For instance, whether the vendor is or is not unpaid may depend upon the balance of a current account ; whether the vendee is insolvent (a) Leading Cases, 5th ed. vol. i. p. (6) 3 East, 93. 729. , THE TIGRESS. 45 may not transpire till afterwards (for it is, I conceive, clear law 1863. that the right to stop in transitu does not depend upon the ^^'"'""''^ ' ^' vendee having been found insolvent) ; and lastly, whether the vendee has or has not indorsed the bill of lading over is a matter not within the cognizance of the vendor. The vendor exercises his right of stoppage in transitu at his own peril ; and it is incumbent upon the master to give effect to that right so soon as he is satisfied that it is the vendor who claims the goods, unless he (the master) is aware of a legal defeasance of the vendor's claim. The law is thus laid down by Lord Campbell in Gurney V. Behrend {a) : — "Prima facie the defendants had a right to stop the wheat on the 2nd of February, for it was still in transitu, and they were unpaid vendors. The onus lies on the plaintiffs to prove that they had become the owners, and that the right to stop in transitu was gone." Moreover, I find that the indemnity offered by the plaintiffs to the master of the vessel, a copy of which is annexed to the petition, recites that Bush is the holder of the bill of lading, and claims the wheat under it; so that in fact the master had full knowledge of the cir- cumstances. Neither can I attach any weight to the further objection of the Upon tlie ven- defendant, that, assuming that the plaintiffs had a right to stop in gtoVth ™mafter transitu, and that they duly asserted that right, yet the master is not intitled was guilty of no breach of duty in refusing to deliver to them, custody of the inasmuch as he was simply retaining the custody of the wheat cargo until he ..,,.,.,,, , ascertain who for the person intitled until it should appear who that person is intitled to was. An abundance of cases shows that the right to stop in 'i^''^^"')'! transitu means the right not only to countermand dehvery to the vendee, but to order delivery to the vendor. Were it otherwise, the right to stop would be useless, and trade would be impeded. The refusal of the master to deliver upon demand is, in a case like the present, sufficient evidence of conversion : Wilson v. AndertonQi). The master may indeed sometimes suffer for an innocent mistake; but he can always protect himself by filing a but may pro- bill of interpleader in Chancery. This step it is his duty to take by''in'',e"pi1Ler if he have any reasonable doubt : Abbott on Shipping (c), and bill in Chan- the case of Wilson v. Anderton cited above. And if the master '^^^^' was bound to deliver the wheat to the plaintiffs, I think his refusal so to do is a breach of his duty within the meaning of the Admiralty Court Act, 1861. I am therefore satisfied that the petition shows such a prima facie case of breach of duty as to (o) 3 Ell. & B. 622, 633. (r) 10th ed. p. 414. (6) 1 B. & Ad. 450, 456. 46 1863. February 17, Motion re- jected, with costs. THE TIGRESS. render the vessel liable in this Court under the 6th and 35th sections of the statute. The motion to reject the petition must be rejected, with costs. French, proctor for the plaintiffs. Thomas and Capes, proctors for the defendant. THE ROYALIST. Removal of Master for Fraudulent Breach of Trust- Vict. c. 104,.s. 240. -17 Sr 18 By the 240th section of the Merchant Shipping Act, 1854, the Court of Admiralty has power, on application by owner or part-owner, &c., to remove the master of a ship, if the Court is satisfied that the removal is necessary. Held, that the removal is "necessary," if the master has committed a fraudulent breach of trust against the owners, such as making a payment of 51. on ship's account, and fraudulently claiming 251. of the owners ; and the Court will make the order of removal on the application of one part-owner only, not- withstanding another part-owner (the ship's husband) being dissentient. February 24. rflHlS was an action brought against Adamson Burnicle, the J- master of the British barque Royalist, by John Baird, a part- owner of the barque ; and the decision here reported arose upon a motion on behalf of the defendant, praying the Court to reject the petition filed by the plaintiff. The petition stated that John Baird, the plaintiff, was the owner of thirty-two sixty-fourth shares of the British barque Royahst ; that sixteen other shares were owned by William Thompson; that the remaining sixteen shares were owned by Adamson Burnicle, the defendant ; and that it had been agreed by deed between the part-owners that Thompson should be ship's husband, and Burnicle should continue master so long as he conducted him- self in a steady, sober and upright manner. The petition then stated that in October, 1862, the barque, whilst on a voyage from Cronstadt to London, got ashore near Donevig, in the kingdom of Norway, and was assisted off by one Christian Hirstondag ; that the defendant paid Hirstondag 51. for his services, on condition of obtaining from him a receipt for 251. • and also stated in a letter to the managing owner and in a letter or report to the North Star Insurance Club, in which the vessel was insured, and again in a protest which he executed THE ROYALIST. 47 on his return to England, that he had paid 25Z. for Hirstondag's 1863. services ; that these statements were false, and were made in Fefa"'""y ^4. order to defraud his co-owners and others. The petition then alleged that Thompson was aware of the misconduct of the defendant, but had refused to discharge him as master ; and that by reason of the premises, the removal of Burnicle from being master of the barque was necessary. The prayer was that the Court would remove Burnicle from being master, pursuant to the statute, and condemn him in costs. The 239th and 240th sections of the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), are as follows :— Section 239. "Any master of or any seaman or apprentice be- longing to any British ship, who by wilful breach of duty, or by neglect of duty, or by reason of drunkenness, does any act tend- ing to the immediate loss, destruction, or serious damage of such ship, or tending immediately to endanger the life or limb of any person belonging to or on board of such ship, or who by wilful breach of duty, or by neglect of duty, or by reason of drunken- ness, refuses or omits to do any lawful act proper and requisite to be done by him for preserving such ship from immediate loss, destruction, or serious damage, or for preserving any person belonging to or on board of such ship from immediate danger to life or hmb, shall for every such offence be deemed guilty of a misdemeanour." Section 240. "Anj-^ Court having Admiralty jurisdiction in any of Her Majesty's dominions may, upon application by the owner • of any ship being within the jurisdiction of such Court, or by the part-owner or consignee, or by the agent of the owner, or by any certificated mate, or by one-third or more of the crew of such ship, and upon proof on oath to the satisfaction of such Court that the removal of the master of such ship is necessary, remove him accordingly ; and may also, with the consent of the owner or his agent, or the consignee of the ship, or, if there is no owner or agent of the owner or consignee of the ship within the jurisdiction of the Court, then without such consent, appoint a new master in his stead ; and may also make such order, and may require such security in respect of costs in the matter, as it thinks fit." Middleton in support of the motion. — The Court has power under the 240th section to remove the master, but only if such removal is " necessary." What is " necessary " appears from the preceding section, s. 239 ; there must be misconduct. 48 THE ROYALIST. 1863. endangering ship or life or limb; which is not alleged here, February 24. rjpj^^ 263rd section, which prescribes the power of Naval Courts abroad, only gives the Naval Court authority to supersede the master, " if unanimous that the safety of the ship or crew, ot the interest of the owner, absolutely requires it." Deane, Q.C., contra. — Where the master is guilty of such fraud as we allege, his removal is " necessary." Judgment. Dr. Lushington. — The question for the consideration of the Court is, whether this petition ought to be rejected. The petition is preferred at the instance of the owner of one-half of the barque, and prays the Court to remove the master (who is also part-owner), on account of a fraudulent breach of trust com- mitted by him. The fraudulent breach of trust alleged against the master is, that whereas he had for certain salvage services rendered in Norway paid the sum of 51. only, he wrote to the managing owner and stated in his protest that he had paid 25/., thereby intending to defraud his co-owners. The question is whether that is sufficient ground for the removal of the master. This depends on the 240th section of the Merchant Shipping Act, which gives the Court authority to remove the master upon proof to the satisfaction of the Court that the removal is necessary. Now assuming, as I must assume, that the master committed the fraud alleged, I have no doubt that his removal is necessary; as, if he continued in command of the ship, he would be able to keep on committing fraud. It has been con- tended that the Court is not at liberty to remove the master, unless he has been guilty of such misconduct as is described in the 239th section. I am, however, clearly of opinion that the section does not fetter the Court at all, and that the petition shows sufficient cause for the removal of the master. I reject the motion. Burchett, proctor for the plaintiff. Duncan, solicitor for the defendant. THE WILLIAM AND JOHN. 49 1863. February 24. THE WILLIAM AND JOHN. Salvage — Agreement — Jurisdiction of Justices of the Peace — 17 8r 18 Vict. c. 104, s. 460—25 ^ 26 Vict. c. 63, s. 49. The Merchant Shipping Act, 1854;, and the Merchant Shipping Act Amendment Act, 1862, combined, give exclusive jurisdiction to justices of the peace in all cases of salvage, whether rendered within the limits of the United Kingdom or not, in which the sum claimed does not exceed 200/., or in which the value of the property saved does not exceed 1,000/. The words " sum claimed," in s. 460 of the Merchant Shipping Act, 1854, mean sum claimed by the salvors before any legal proceedings are taken. An agreement between the salvors and ship-owner as to remuneration does not give the Court of Admiralty jurisdiction ; but may induce the Court to grant a certificate for costs where the suit is duly brought for an amount exceeding 200/., and a smaller sum is decreed to the salvors. SALVAGE. This case arose upon a protest to the juris- diction of the Court. On the 20th October, 1862, the brig William and John was in distress off Great Yarmouth. The life-boat Rescuer, manned by the plaintiiFs, put off to her assistance. The plaintiffs at . first demanded 200Z. for any service they might render. This the master of the brig refused to pay. After some discussion, the following paper was signed by him : — " October 20th. — I hereby agree to pay Charles Salmon the sum of 140^., and his crew of the Hfe-boat, to take the brig Wil- liam and John into Yarmouth harbour. " John Nunn. " James Head, witness, the mate." The plaintiffs performed the service, and on the following day demanded the 140/. under the contract. Payment was refused. On the same day (21st October) the defendants, the owners of the ship, gave notice to the clerk of the justices of the borough of Great Yarmouth and to the plaintiffs, that proceedings were about to be taken by the defendants according to the provisions of the Merchant Shipping Act Amendment Act, 1862. They also by a writing, addressed to the justices' clerk of the borough of Great Yarmouth, named one justice, and gave notice to the plaintiffs to name another, to hear and adjudicate upon the dis- pute pursuant to the Act of Parliament. The plaintiffs did not name a justice. On the 25th of October, at the instance of the L. B 50 THE WILLIAM AND JOHN. 1863, defendants, a summons was issued and duly served, calling upo FeU-uary 24. jj^g plaintiffs to appear before the justices on the 29th. Th plaintiffs did not appear on the day thus appointed, and a award was then made in due form, by which the justices foum that the value of the property saved was 4081., and that th 1401. named in the agreement was an exorbitant sum. The; awarded 701. salvage, and 41. 14s. Id. costs to the present plain tiffs, the salvors. In the meantime the plaintiffs on the 22nd of October insti tuted this suit in the Admiralty Court in the sum of 350Z., anc obtained a warrant, which was executed on the 25th. The defendants appeared under protest and filed their petition stating the facts, and alleging that the value of the propertj saved did not amount to 1,000^. ; and they submitted that b) the operation of the Merchant Shipping Act, 1864 (17 & ij Vict. c. 104), and of the Merchant Shipping Act Amendmeni Act, 1862 (25 &26 Vict. c. 63), the Admiralty Court had not jurisdiction. Section 460 of the Merchant Shipping Act is as follows : — " Disputes with respect to salvage arising within the boundaries of the Cinque Ports shall be determined in the manner in which the same have been hitherto determined; but whenever any dispute arises elsewhere in the United Kingdom between the owners of any such ship, boat, cargo, apparel, or wreck as afore- said, and the salvors, as to the amount of salvage, and the parties to the dispute cannot agree as to the settlement thereof by arbi- tration or otherwise, "Then, if the sum claimed does not exceed two hundred pounds, such dispute shall be referred to the arbitration of any two justices of the peace resident as follows ; (that is to say) " In case of wreck, resident at or near the place where such wreck is found : " In case of services rendered to any ship or boat, or to the persons, cargo, or apparel belonging thereto, resident at or near the place where such ship or boat is lying, or at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident by reason whereof the claim to salvage arises : " But if the sum claimed exceeds two hundred pounds, such dispute may, with the consent of the parties, be referred to the arbitration of such justices as aforesaid, but if they do not consent shall in England be decided by the High Court of Admiralty of England, in Ireland by the THE WILLIAM AND JOHN. 51 High Court of Admiralty of Ireland, and in Scotland by 1868. the Court of Session; subject to this proviso, that if the J^^'"'"'"-?' ^^- claimants in such dispute do not recover in such Court of Admiralty or Court of Session a greater sum than two hundred pounds, they shall not, unless the Court certifies that the case is a fit one to be tried in a Superior Court, recover any costs, charges or expenses incurred by them in the prosecution of their claim : " And every dispute with respect to salvage may be heard and adjudicated upon on the application either of the salvor or of the owner of the property salved, or of their respective agents." The jurisdiction thus given to the justices is extended by the 49th section of the Merchant Shipping Act Amendment Act, 1862, the material parts of which section are : — " 49. The provisions contained in the 8th part of the principal Act for giving summary jurisdiction to two justices in salvage cases, and for preventing unnecessary appeals and litigation in such cases, shall be amended as follows ; (that is to say), " (1.) Such provision shall extend to all cases in which the value of the property saved does not exceed one thou- sand pounds, as well as to the cases provided for by the principal Act : " (2.) Such provisions shall be held to apply whether the sal- vage service has been rendered within the limits of the United Kingdom or not : " (8.) All the provisions of the principal Act relating to sum- mary proceedings in salvage cases, and to the pre- vention of unnecessary appeals in such cases, shall, except so far as the same are altered by this Act, extend and apply to all such proceedings, whether under the principal Act or this Act, or both of such Acts." The Queen! s Advocate (Sir R. Phillimore') and Lushington, in support of the protest. The jurisdiction of this Court is taken away by the 460th section of the Merchant Shipping Act ; for this is a case in which the sum claimed did not exceed 2001. The only demand that had been made upon the defendants at the time when they apphed to the justices was for 140Z. That the salvors' suit in this Court for a larger sum than 2001. should under such circumstances oust the magistrates of their juris- diction cannot be seriously maintained. To hold this would be to allow salvors to defeat the object of the Legislature at any time by entering an action for an amount to which they can have e2 52 THE WILLIAM AND JOHN. 1863. no pretension. [Dr. Lushington : — This action is entered Tebruaryii. gjQ^^ ^j^^^ j^ ^^^ meaning of the words in the statute "st claimed 1" Do you say, that when parties have been negoci ing beforehand, I am to fish out what the amount of the cla really was?] The words "sum claimed" perhaps found th way into the statute in consequence of the provision in 9 & Vict. c. 99, s. 21, that the salvors should deliver to the mas or owner a statement in writing of the amount of salva claimed. This was repealed by the Merchant Shipping Repi Act (17 & 18 Vict. c. 120, s. 4); and it is now for the Coi in such cases to discover, upon the evidence, what the "si claimed" really was, that is to say, the sum claimed befc reference to the magistrates or proceedings in this Court. He the sum claimed was 1401. only. This being so, the Coi of Admiralty has no jurisdiction. The case of the Leda{( determined that in such cases the jurisdiction of this Court w taken away by the statute. That decision was recognised in t subsequent cases of the Maria Luisa (b) and the Argo (c). T phrase used in the section is " shall be referred ;" and throug out the statute " shall" and " may" are used in distinct sense as forcibly appears in the latter part of this very section. The defendants also rely on the 49th section of the Mercha Shipping Act Amendment Act, 1862, by which the provisio; contained in the principal Act for giving summary jurisdiction salvage cases to justices are extended " to all cases in which tl value of the property saved does not exceed 1,000/." He the award shows tKat value to have been only 408/. The juri diction thus conferred must be exclusive, like the exclusr jurisdiction conferred by the principal Act. To decide that th extended jurisdiction is not also exclusive and compulsory ontl parties, would render the Amendment Act nugatory: becaus even under the principal Act, any dispute, whatever the amoui claimed, might by consent of the parties be referred to tl justices. The only point then remaining is, does the agreemei make any difference ? We submit not. The agreement does n convert the case from being one of salvage into something els The result of all the cases in this Court is, that the Court dea with such agreements in an equitable manner. The jurisdictic of the magistrates is ejusdem generis. And as there are r words in either statute excluding their jurisdiction in cases whe an agreement has been entered into between the parties, th« have only to exercise that jurisdiction in accordance with tl principles recognised in this Court. In wages cases whe (a) Swabey, 43. (c) Swabey, 112. (6) Swabey, 67. THE WILLIAM AND JOHN. 53 difficult questions on the law of contracts often arise, the magis- 1863. trates have jurisdiction. ^''^'y ^^- Deane, Q. C, and W. G Harrison, contra. — Thp Court can only adopt one interpretation of the words " sum claimed," viz., the sum claimed in foro. If that be not the meaning to be attached to those words, what force can they have in this case ? There is only one other sum to which it is possible to apply those words, and that is the 140Z. mentioned in the agreement. But both parties repudiate this amount. Our opponents refuse to pay it; and we, by inslituting the present suit for 350/., have asserted that it is not the amount of our claim. It is true we demanded that sum on the day after the services were rendered; but that was to avoid the necessity of proceedings of any sort ; and no person is bound by an offer of peace ; The Ulster (a). Even if the defendants could be allowed to set up the agreement which they have refused to recognise, the magistrates would in that case have no jurisdiction. The terms of the statutes give them no jurisdiction where an agree- ment exists. The words " dispute as to the amount of salvage" indicate, with sufficient precision, the duty of the justices, which is to assess and award a reasonable amount of salvage in ordinary cases, not to interpret or decide on the effect of a written contract. This Court has already, in the cases of the Fenix (b) and the John (c), drawn a broad distinction between ordinary cases, and those in which express agreements are entered into between the parties. We admit that in a simple case, where the claim is under 200Z. and in which no agreement exists, the salvors cannot sue in this Court; but there is no analogy between such a case and the present. Then as to the defendants' contention which would make the value of the pro- perty saved the simple test of exclusive jurisdiction. The interpretation of the 49th section of the Amendment Act con- tended for by the defendants is irreconcilable with that part of the 460th section of the principal Act, which provides for pro- ceedings in cases where the sum claimed is over 200/., and for depriving the salvors of costs, if they recover a less amount in the Court of Admiralty. The jurisdiction of a Court can only be taken away by express terms ; the affirmative terms in the section should be read as directory only : R. v. The Justices of Leicester (d). The Queen's Advocate replied. (a) Lushington, 424. (c) Lushington, 11. (6) Sivabey, 13. (d) 7 B. & C. 6, 12. 54 THE WILLIAM AND JOHN. 1863. On the 24th of February, Db. Lushington gave judgment, February 24. j-^ftgr stating the facts as above.] Judgment. Prima facie it would appear that this Court has jurisdiction : because it had originally jurisdiction over all claims for salvage, and because the suit is brought for a larger sum than 200/., which is the limit of the amount of claim which the magistrates are by virtue of the Merchant Shipping Act authorized to enter- tain, except by consent of both parties. To oust the jurisdiction of this Court under these circum- stances the defendants must show that by the provisions of some statute the Court is prohibited from entertaining the suit ; and accordingly they undertake so to do by reference to the 460th section of the Merchant Shipping Act, 1854, and also the 49th section of the Amendment Act, 1862. It is not alleged that the jurisdiction is taken away by any direct and express enactment, but that the necessary inference from the provisions of the Acts 17 & 18 Vict, leads to that conclusion. The question mainly turns upon the "■ ' "■ ■ construction to be put upon the 460th section of the Merchant Shipping Act, 1854. I must admit that I did entertain considerable doubt as to the proper meaning to be attached to the words " if the sum claimed does not exceed 200Z." My doubt was, whether the claim must be a demand made by salvors antecedently to any suit or pro- ceedings, or whether it must be a claim preferred in some legal proceedings. I was pressed by this difficulty, that in the various loose negociations which take place in the first instance between salvors and owners or their agents, it would be extremely diffi- cult to ascertain what was the sum really claimed. It is a difficulty inherent in the nature of these transactions — different sums are asked at different times. The words Admitting this difficulty, however, I have, upon consideration "sumclaimed" of the words of the section, come to the conclusion that the claim mean sum demanded be- meant must be a claim antecedent to the proceedings, for the ceedinfs! ^'°' statute enacts that the dispute shall be referred to the justices. In substance this is a direction to refer to a tribunal after a claim. The claim must exist before the reference. It could not be made in any Court, for the proceedings are to follow, not to precede. The "sum claimed" must therefore mean the sum asked before proceedings. Whatever may be the difficulty of ascertaining what is the "sum claimed" in some cases, there is none in this. The demand was for 140/., as specified in the agreement. Where the sum This being SO, the next question will be— is the statute impera- not excted^' t'^®' ^° ^^^^ *^® dispute must be referred to the justices when 200«., the juris- the claim does not exceed 200Z. I really think that this question diction of the " THE WILLIAM AND JOHN. 55 is too clear for argument. I have no doubt that the statute is 1863. imperative. And if it be imperative to proceed before the jus- ^^'""'"^y ^*- tices, this Court is necessarily ousted of its jurisdiction. Admiralty I have already said enough to dispose of this case ; but it may away. be expedient to add that by the statute of 1862, jurisdiction is Further, by given to the magistrates when the value of the property saved ^'g* ^read'"'" does not exceed 1,000Z. This is confessedly the case here. Not with the prin- only is jurisdiction given to the justices under such circum- JusticesVave^ stances, but a jurisdiction exclusive of that formerly exercised fxclusive 1 1 • Vi mi II jurisdiction, tt by this Court. The two statutes are now to be read as one, and the property read thus .— " If the sum claimed does not exceed 2001, or if g^^gg/j'ooor the property saved does not exceed 1,000Z., such dispute shall be referred to the justices." It may be convenient to state further how the exclusive juris- The exclusive diction of the justices stood under the Merchant Shipping Act, {heiustice"" 1854, and how it stands now, with respect to the locality of now obtains t • • wli6r6vcr tn6 salvage services. Under the 460th section of the Act of 1854, salvage service the justices had exclusive jurisdiction only if the claim did not >f rendered, if •' . . . . the property exceed 200Z., and the salvage service was performed within the saved does not United Kingdom, or within three miles from the shore. Now, ^^"^^ ' by the Act of 1862, they have exclusive jurisdiction where- ever the service is performed, if the value of the property saved does not exceed 1,000Z. There is one argument which I ought to notice, viz., that, in An agreement r J. J.T- • a' i i A J. •!_ 1 does not oust cases 01 agreement, the justices are not a competent tribunal, the iurisdiction Such is not the case. The effect of an agreement is this of justices, or only, that where the suit has been rightly commenced in this tion to the Court (by reason of the claim being over 200Z., and the value of '^?"^' °f ^^' the property saved being over 1,000Z.), and the Court has awarded less than 200Z., the fact of the agreement may induce but may induce the Court to certify that the case was a proper one for a superior certify°for " tribunal, and to give the salvors costs of which they would costs, otherwise be deprived by the statute. Lawrie, proctor for the plaintiiFs. Skipwith for the defendants. 56 THE ANDREW WILSON. 1863. April 1. THE ANDREW WILSON. Salvage— Appeal from Award of Justices — " Sum in dispute" — 17 ^ 18 Vict. c. 104, s. 464. The words " sum in dispute " in the 464th section of the Merchant Shipping Act, 1854, do not mean the sum awarded by the justices and appealed against; and where the only evidence of the sum in dispute is that the salvors claimed before the justices " a certain amount of salvage not exceed- ing 2002." an appeal from the award of the justices lies to the Admiralty Court. IN this case two justices at Lowestoft had awarded to certain salvors the sum of 24/. for services rendered by them on the 21st of December, 1862. From this award the salvors appealed to the Admiralty Court under the provisions of the Merchant Shipping Act, 1854; the 464th section of which is as follows : — " If any person is aggrieved by the award made by such justices or such umpire as aforesaid, he may in England appeal to the High Court of Admiralty of England, in Ireland to the High Court of Admiralty of Ireland, and in Scotland to the Court of Session; but no such appeal shall be allowed unless the sum in dispute exceeds 501., nor unless within ten days after the date of the award the appellant gives notice to the justices to whom the matter was referred of his intention to appeal, nor unless the appellant proceeds to take out a monition, or to take such other proceedings as, according to the practice of the Court of Appeal, is necessary for the institution of an appeal, within twenty days from the date of the award." The proceedings before the magistrates did not disclose that any precise sum had ever been demanded by the salvors. The award recited that services had been rendered, that the salvors "claimed a certain amount of salvage not exceeding 2001.," that a dispute had arisen between the parties, and had been re- ferred to the justices, &c. The action in the Admiralty Court was entered in the sura of 250/. The Queen's Advocate {Sir R. Phillimore), on the part of the respondents, submitted that " the sum in dispute" was 24/., the amount awarded ; and therefore that the Court had not juris- diction. Beane, Q.C., for the appellants.—" The sum in dispute" is THE ANDREW WILSON. 57 not the amount awarded; otherwise the greater the wrong, 1863. the less the chance of remedy. The sum in dispute may be "^^"^ ^' taken to be 2001., the extreme sum which the salvors would have recovered before the magistrates, under section 460. Db. Lushington : — The first question which the Court must Judgment, decide is, whether the Court has any jurisdiction under the 464th section of the Merchant Shipping Act, 1854, inasmuch as the sum awarded by the justices is only 241. The material words of the section are, " If any person is aggrieved by the award made by such justices or such umpire as aforesaid, he may in England appeal to the High Court of Admiralty of England, but no such appeal shall be allowed unless the sum in dispute exceeds 501." There undoubtedly is some obscurity in these words, " the sum in dispute;" but I am of opinion that they do not mean the sum awarded by the justices. If the Legislature had so intended merely to refer to the sum awarded by the justices, I cannot but think that the section would have been differently worded, as that no such appeal should be allowed unless the sum awarded should exceed 501. I am of opinion therefore that I am at liberty to review the decision of the magistrates in this case. I am fully sensible of the inconvenience of allowing appeals of this nature ; and that it is the duty of the Court not to interfere with the awards of justices, except in extreme cases. Looking, however, to all the circumstances, I am of opinion that the sum of 24Z. was inadequate ; and I shall allow the salvors a further sum of 20/. The salvors are intitled to their costs. in ti)t 33"6S Council, Present — Sir Edward Ryan. The Master of the Rolls. Sir John Taylor Coleridge. THE MALVINA. Collision — Damage to Barge in Body of a County — Jurisdiction —24 Vict. c. 10, s. 7. By the 24 Vict. c. 10, the utmost extent of jurisdiction in causes of collision is given to the High Court of Admiralty. The Court of Admiralty has by that statute jurisdiction in a case of damage done by a sea-going vessel to a barge within the body of a county. THE argument and judgment in the Court of Admiralty on ^pril 13. the point here decided are reported in Lushington's Re- ports, page 493. The case was appealed on the question of law and also on the facts. 58 THE MALVINA. 1863. April IS. Judgment. Aspinall and Lushington for the appellants argued as in th Court below. Brett, Q. C, and Pritchard for the respondent were no called upon to argue the point of law. On the 13th of April the Master of the Rolls gave judgment. In this case the Malvina, a screw steamer of between 300 aw 400 tons burthen, at about half-past 7 o'clock on the evening o the 6th of December, 1861, struck the Mystery, a barge ladei with sugar, in Blackwall Reach, and sank her. The proceedings were instituted by the owner of the Myster against the owners of the Malvina, on the ground that the col lision was occasioned solely by the default of those on board thi Malvina, for the purpose of obtaining payment of the damage sustained by reason thereof. It was determined by the Higl Court of Admiralty that the steamer was solely to blame for thi collision, that the pilot was to blame, and that those who navi gated the steamer were also to blame. In the course of th( argument two questions were raised, one of law and one of fact The point of law, raised by the appellants, was that the Court o Admiralty had no jurisdiction to take cognizance of such a case but the learned Judge of that Court overruled this objection anc held that the 7th section of the 24 Vict. c. 10, which gives th< High Court of Admiralty jurisdiction over any claim for damagi done by any ship, put an end to the difficulties which migh have arisen from the words of the statute 13 Rich. II. c. 5 Their Lordships concurred in this view at the hearing of th( case, and did not call on the counsel for the respondent tc argue the point, being then, as they now are, clearly of opinioi that the words of the 7th section of the 34 Vict, do by express words confer the jurisdiction on the High Court of Admiralty diction in"cases and that it was the intention of the Legislature, to be gatherec give°ntothe^ from the words and the whole scope of the statute, to givf the utmost extent of jurisdiction to that Court in cases of col lision. The judgment of their Lordships also affirmed the judgmen of the Court below on the question of fact, and the appeal wai dismissed with costs. By 21 Vict. c. 10, the utmost extent of juris. Court of Ad' miralty, Rothery, proctor for the appellants. Pritchard for the respondent. THE LOUISA. 59 1863. Jpril 14. in iiit Itgl) Court ol atrmiraltg. THE LOUISA. Salvage — Jurisdiction — 17 ^18 Vict. c. 104, s. 460 — "Owners" — 25 & 26 Vict, c. 63, s. 49 — Absolute Appearance. Where the value of the property saved does not exceed 1,000?., the Court will, not- withstanding an absolute appearance is given by the defendant, refuse to proceed in the salvage suit, on the ground that the 460th section of the Mer- chant Shipping Act, and the 49th section of the Amendment Act, prohibit the Court to exercise jurisdiction. It is immaterial to this question that the party defending is the mortgagee, not the owner of the ship : the word " owners" in 17 & 18 Vict. c. 104, s. 460, if ne- cessary, extends to .all persons interested in the property. rpHIS was a cause of salvage instituted by certain Hull boat- -*- men against the Louisa, to which an absolute appearance had been entered on behalf of William Martin Hare, the mort- gagee of the vessel. In answer to the plaintiffs' petition the defendant pleaded that the property saved did not exceed 1 ,0001. To this a reply was given, alleging no new fact, but submitting that in the cir- cumstances the Court had jurisdiction. Notice of motion was thereupon given to reject the reply. The question turned upon the construction of 17 & 18 Vict. c. 104, s. 460, and 25 & 26 Vict. c. 63, s. 49, which are printed ante (a). Pritchard, in support of the motion. — The Court has decided in the William and John (h), that where the value of the pro- perty saved does not exceed 1,000Z. this Court has not jurisdic- tion. The appearance being absolute makes no difference : Ida (c) ; Bilbao (d). Tristram, contra. — After absolute appearance the Court will not take cognizance of an objection to the jurisdiction. But here, moreover, the Court has jurisdiction and the magistrates had none ; for this is not a dispute between salvors and " the owners" of the property, as described in 17 & 18 Vict. c. 104, s. 460 ; but a dispute between salvors and a mortgagee ; nor would the present defendant have had power under the con- (a) Page 50. (c) Lushington, 6. (6) Ante, p. 49. (d) Lushington, 149. 60 THE LOUISA. 1863. eluding words of the section to make the application to the jprii 14. magistrates, as " owner of the property." Pritchard replied. Judgment. Dr. LusHiNGTON : — The reply does not deny the fact that the value of the property saved does not exceed 1,000Z. ; but it is contended on behalf of the plaintiffs, that after an absolute appearance, the objection to the jurisdiction comes too late, and further that in fact the Court has jurisdiction, because the de- fendant is not the owner but the mortgagee of the ship. Now it is true that in former days, when application was made to a Court of common law for a prohibition to this Court on the ground that it had not jurisdiction, it was sometimes said, Your application comes too late ; in fact many nice distinctions were taken at that time, which it is not necessary to enter into now. But here there is a statute regulating the jurisdiction of this Court in salvage cases, and I am of opinion that whether the appearance is under protest or absolute, I am bound to take notice of the statute, and if the statute forbids me to proceed then I have no discretion. Now I have already decided that the effect of the statute is to forbid the exercise of jurisdiction by this Court in all cases of salvage where the value of the property saved does not exceed 1,000Z. I do not think this position at all altered by the fact that the party defending this cause is not the owner of the ship, but the mortgagee. If it is necessary to put an interpretation upon the word "owners" in the 460th section of the Merchant Shipping Act, I think it extends to all interested in the property. The reply must be rejected. Jones, solicitor for the plaintiffs. Pritchard and Sons, proctors for the defendants. THE BAHIA. 61 1863. April 2\. THE BAHIA. 24 Vict. c. 1 0, s. 7 — Goods " carried into any Port in England." In the Sth section of the Admiralty Court Act the words "goods carried into any port in England " do not mean " goods imported into England" exclusively. Where therefore the master of a foreign ship having a cargo consigned from New York to Dunkirk in France, put into Ramsgate and landed the cargo, and refused either to carry it on to Dunkirk or to give delivery to the owners at Ramsgate : Held, that for such breach of duty by the master the ship could be sued in the Admiralty Court. THIS was an action by Dumas, Hankey & Co. against the French ship Bahia, under the 6th section of the Admiralty Court Act, 1861. The petition stated that the plaintiffs were the owners of cer- tain corn which was laden on board the Bahia at New York under a bill of lading to be delivered at Dunkirk in France ; that on the voyage the master put into Ramsgate, and landed the cargo, and refused either to carry on to Dunkirk or to give delivery at Ramsgate. Notice of motion in objection to this petition was given by the defendant. The 6th section of the Act 24 Vict. c. 1 0, is as follows : — " The High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part- owner of the ship is domiciled in England or Wales." Lushington, in support of the motion. — The Court has not jurisdiction. The Kasan (a) decides that the words " any breach of duty" relate back to " goods carried into any port in England or Wales." Then the words "carried into any port in England or Wales" mean so carried under a contract to that effect; thus the marginal note is, " As to claims for damage to cargo im- pwrted." The statute does not apply, where the goods are only incidentally brought into England, as for instance, if a ship out- ward bound with cargo put back into a British port. The plaintiffs' proper remedy is in a French Court. (a) Ante, p. 1. 62 THE BAHIA. 1863. Clarkson, contra. — The case is evidently within the spirit of ^ the statute ; it is also within the letter of the statute reasonably construed. The goods have been " carried into " a British port. The marginal note is no part of the statute. Judgment. Dr. Lushington : — The Court is bound to assume the state- ments in the petition to be true. Here then is a cargo originally destined to be imported into the port of Dunkirk ; in consequence of accident the ship puts into the port of Ramsgate, and the master refuses to carry on the cargo to Dunkirk or to give de- livery at Ramsgate. That this is a great grievance cannot be denied, and the Court ought to give, if necessary, great latitude to the construction of the Act of Parliament in order to extend the remedy to this case. However it appears to me that this section was carefully worded to give the utmost jurisdiction in the matter. It uses the words " carried into any port in Eng- land," and does not use the word " import." I apprehend the phrase "carried into" was advisedly used instead of the word " import." Then it goes on, " or for any breach of duty or breach of contract." Here there is a clear breach of contract and breach of duty. I am of opinion that without any violence of construction the statute applies to this case. I reject the motion with costs. Clarkson, proctor for the plaintiffs. Rothery, proctor for the defendant THE GLENBURN. Bottomry — Rescinding a Decree made by Consent. Where the defendant in adequate possession of the facts has given his consent to a decree of the Court, pronouncing for the validity of a bottomry bond, the Court will not rescind the decree, though the facts might possibly raise a valid defence, according to a decision pronounced subsequently to the decree. IN this case the plaintiffs, Barnckson & Son, sued upon a bottomry bond on the ship Glenburn, her freight and cargo. The bond, which was given at Rio de Janeiro, bore date 29th September, 1862. The date of the institution of the cause was 19th December, 1862. On the 22nd of December an appear- ance was entered on behalf of the cargo by the owners, and on the 10th of February, 1863, the plaintiffs' petition was filed. THE GLENBURN. 63 Some correspondence then ensued between Messrs. Pritchard, 1863. the proctors for the plaintiflPs, and Messrs. Cotterill & Sons, the ■^P''*' ^^' soUcitors for the defendants, the result of which was that on the 2nd of March, 1863, Messrs. Cotterill wrote to Messrs. Pritchard the following letter : — " 32, Throgmorton Street, "2 March, 1863. " Dear Sirs,— " The Glenburn. " Although there are, we think, circumstances which would justify us in disputing the validity of the bond, yet having regard to the expense which a commission to Rio would involve, we have decided to admit its validity, and to dispute the items in the usual manner before the Registrar. " Yours truly, " Cotterill & Sons. "To Messrs. Pritchard & Son." Thereupon, by consent of the defendants, a decree passed on the 18th of March for the validity of the bond and a reference to the Registrar. The defendants were thereupon furnished with copies of the accounts. Upon the 31st of March judgment was given in the Admiralty Court in the case of the Hamburg (a). Notice of motion was now given on the part of the defendants to rescind the decree of the 18th of March, and an affidavit was filed by Mr. Cotterill containing the following paragraph : — " Since the 18th of March, 1863, 1 have obtained and perused copies of the accounts, and from such perusal, and from the small amount realized by the ship and the very large proportion of the money payable under the said bond, which the defendants, the owners of cargo, would have to contribute, and from the fact of tlie owners of the cargo not having been communicated with before the bond was made, I am advised and believe that the defendants, the owners of cargo, have a good defence to the cause on the merits." Clarkson, in support of the motion. — The decree was a decree by consent only, and it was immediately followed by the judg- ment in the Hamburg (a), which went further in favour of owners of cargo hypothecated than any earlier decision. The consent was therefore given in ignorance of the law, but in ignorance which was excusable, and indeed necessary. The Court has the power to set aside the decree : Sisted v. Lee (&). (a) 3 New Rep. 136. (6) 1 Salk. 402. 64 THE GLENBURN. 1863. Pritchard, contr^. — The defendants ought not to be allowec ■^P""^ 2t- to withdraw from their consent made deliberately and wit! knowledge of the facts. A decree once made is not alterabl( because the law alters. But the Hamburg is expressly foundec on the case of the Bonaparte (a), decided by the Privy Council Judgment. De. Ldshington : — This is an application to the Court tc direct that the decree of the Court pronouncing for the validit} of this bond, which was given with the consent of the owners oi the cargo, should be vacated, and that the owners of the cargc should be at liberty to oppose the bond. Now, whether the Court has a right or has not a right to rescind any judgment ol this description it will be time to discuss when the Court thinks it expedient that the judgment should be rescinded. Therefore the first consideration is whether the facts and circumstances oi the case are such as would induce the Court to desire to recall its decree. Now, if the consent to this judgment in favour oi the validity of the bond had been given in excusable ignorance of the facts ; if it could be fairly said that the defendants had been misled, the Court, if it had the power to rescind the judg- ment, would, in the interests of justice, be anxious to do so ; but on the present occasion it appears that the plaintiffs filed their petition on the 1 0th of February, and that the consent of the defendants was given on the 18th March. There was, there- fore, ample time for the owners of the cargo to investigate the contents of the bond itself, and to consider the other facts of the case, and they ought to have opposed the bond if they thought fit. They gave their deliberate consent to the bond being pro- nounced valid, and now, on the statements in this affidavit, I am desired to annul that consent. But the facts appear to me to be such that every one of them might have been known to the defendants before they gave their consent, and that being so, I consider I should be pursuing a very dangerous course indeed if I rescinded this decree. I refuse this motion, and with costs. Pritchard Sf Sons, proctors for the plaintiffs. Cotterill Sf Sons, solicitors to the defendants. (a) 8 Moore, P. C. 459. THE IDAS. 65 1863. April 21. THE IDAS. Action for an Account between Co-Owners — Ship lost before Action brought — 24 Vict. c. 10, s. 8 — Retrospective Opera- tion of Statute. Under the 8th section of the Admiralty Court Act, 1861, the Admiralty Court may order an account to be taken between co-owners relating to matters which took place before the date assigned for the Act to come into operation, and relating to a ship lost before the institution of the cause. rpmS was a motion (by way of demurrer) to reject the follow- J- ing petition : — "1. In the year 1858, the plaintiff Daniel Bloxsome Wadley was owner of ^f shares in the barque Idas, which was registered in the port of Bristol. John Gouldar, of Bristol, was the owner of sixteen other shares ; and the remaining thirty-two shares were held by the defendant Edward Leader Kendall, shipbroker, of Gloucester. 2. During the years 1858, 1859, 1860 and 1861, the defend- ant acted as managing owner, and received the earnings and paid the disbursements of the said barque. 3. In the month of January, 1861, the Idas was lost at sea, and the defendant afterwards received the monies payable under certain policies of insurance effected on the ship and the monies payable under a certain policy of insurance for 300/. for freight and outfit .effected specially to cover the share of the plaintiff and the share of the said John Gouldar. 4. The defendant has rendered to the plaintiff certain accounts of the earnings and disbursements of the Idas during the years aforesaid, and of the application of the proceeds of the said policies of insurance j but the said accounts are incorrect and false. 5. The defendant, though often applied to, has refused to render to the plaintiff true and just accounts relating to the matters aforesaid, and a large sum of money in respect of the same is due and owing from the defendant to the plaintiff. The plaintiff prays the Right Honourable the Judge to order that an account shall be taken before the Registrar and Mer- chants of the earnings and disbursements of the said barque during the years aforesaid, and of the application by the de- B.L. F 66 THE IDAS. 1863, fendant of the proceeds of the said policies of insurance, and ( "^^"^ ^'' condemn the defendant in the sum found to be due from him t the plaintiff, and in the costs of these proceedings." The Admiralty Court Act, 1861, 24 Vict. c. 10, "An Act t extend the Jurisdiction and improve the Practice of the Hig Court of Admiralty," enacts : — Section 3. " This Act shall come into operation on the 1st da of June, 1861." Section 8. " The High Court of Admiralty shall have juris diction to decide ail questions arising between the co-owners, o any of them, touching the ownership, possession, employmen and earnings of any ship registered at any port in England oi Wales, or any share thereof, and may settle all accounts out standing and unsettled between the parties in relation thereto, and may direct the said ship or any share thereof to be sold, and may make such order in the premises as to it shall seem fit." Section 35. "The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam." Clarkson, against the petition. — The case is not within the eighth section of the Act, because there is no question between the parties " touching the ownership, possession, employment and earnings" of the ship. And the power to settle accounts is given just as the power to order the sale of the ship, only where such a question arises, and in order to carry out the judg- ment of the Court on such question. This appears from the language used. Th^ section says, " the Court shall have juris- diction," &c., and then afterwards " may settle all accounts," &c. The Court has not power to order an account to be taken simpliciter, as here prayed for. That is for the Court of Chan- cery. But the case also fails because all the matters occurred, and because the ship had ceased to exist, before the date fixed for the Act to come into operation. The section speaks of a " ship registered." Lushington, contra.— The case is within the terms and the intention of the eighth section of the statute. Those terms evi- dently purpose to give a large jurisdiction, with all the necessary discretionary powers. Here there are questions touching the ownership and earnings of the ship, which will appear more distinctly when the account is rendered by the defendant. THE IDAS. 67 The plaintiff prays such an account, which is absolutely 1863. necessary to do justice between the parties. Such an account ^f '"^ ^^- may very properly be taken before the Registrar and Merchants, as in cases of bottomry, wages, &c. With respect to other sections, the Court has held that the statute being remedial is so far retrospective as to operate upon all cases brought before it subsequent to the date assigned fo(' the Act coming into opera- tion. Thus the sixth section, Ironsides (a) ; the thirty-fourth section, Cameo (b); the tenth section, Oananoque (c). The same reasons apply to the eighth section. ClarJtson replied. On the 21st of April Dr. Lushington gave judgment: — This is a question as to the construction of the eighth section Judgment, of the Admiralty Court Act, 1861. The Court will be careful not to exceed the jurisdiction conferred upon it; and, on the other hand, the Court is bound not to decline any duty which the legislature may have imposed. The question arises upon the following facts as stated in the petition : — There were several part-owners of the vessel ; the plaintiff was part-owner, so also was the defendant, and the de- fendant was ship's husband. The ship was lost in January, 1 86 1 . Certain accounts were rendered, but the plaintiff alleges that those accounts were incorrect and false ; and he claims the aid of this Court to obtain an investigation and settlement of the accounts. On the part of the defendant several arguments have been The eighth sec- offered against the right of the Court to exercise jurisdiction in ^'irah 'c^urt this case. In the first place it is said that the section is not Act applies to ,. 1 , ,. i i- I.- 1 matters which retrospective, and has no operation upon any transaction which (ooi^ pi^^g ^,3. took place before the 1st of June, 1861, the date appointed for fore the time 14 • -mi 1 • • 1 1 appointed for the Act to come into operation. Ihe same objection has been the Act to come urged against the Court proceeding upon several other sections of '"'° <'P«''^t'°"- this statute, — unsuccessfully, and I think it cannot be maintained as to the section now under consideration ; but it is unnecessary to repeat the reasons which I have given on former occasions, beyond saying that I consider this statute to be remedial and intended to supply an existing want of effectual jurisdiction. The next objection is founded upon the fact that the ship was The loss of the lost in January, 1861. It is said that the section applies only to ?•>'?. M<""e *« . .... institution of phips registered in England or Wales, and this ship having been the cause is (a) Lushington, 458. (c) Lushington, 448. (i) Lushington, 408. f2 68 THE IDAS. 1863. 'ost, was not a ship so registered at the time of the institution c ^P"' 21- the cause. I consider, however, that the words " registered ii immaterial any port in England or Wales" are intended to designate th of \irisdfc-^°" description of the vessel, not to import its existence at the tim tion. of legal proceedings. It is true that in a subsequent part o the section it is provided that the Court may direct the ship o any share of it to be sold, and that such provision taken aloni might seem to point to a ship in existence, but this is qualifie( by what follows, " and may make such order in the premises ai shall to it seem fit." I am of opinion, therefore, that the exist ence of the vessel is not essential to give the Court jurisdiction The last section of the Act gives power to the Court to proceec either in rem or personam, which provision meets this case as well as many others. The Court will Thirdly, it is contended that the section does not confer on for'an^account" *^® Court any jurisdiction to entertain a suit for an account only only. The words of the section are these : — " The High Court of Ad- miralty shall have jurisdiction to decide all questions arising between the co-owners, or any of them, touching the ownership, possession, employment and earnings of any ship registered a( any port in England or Wales, or any share thereof, and may settle all accounts outstanding and unsettled between the parties in relation thereto, and may direct the said ship or any share thereof to be sold, and may make such order in the premises as to it shall seem fit." In construing this section little assistance can be obtained from a consideration of the jurisdiction formerly exercised by this Court; Whatever may have been the original jurisdiction of the Court, it had long ceased to entertain questions of mere title to ships ; but in cases of possession questions of title were con- tinually involved, and, since the 3 & 4 Vict. c. 65, were disposed of by the express authority of that statute. With respect to the employment of ships, all that this Court could do was, if the majority of the owners determined to send the ship to sea, to require them to give security to the minority to the extent of their shares for its safe return. As to the earnings of the ship taken simply, the Court had no jurisdiction at all. Such was the former state of the law ; but I repeat that it furnishes no guide for the interpretation of this section. If, however, I rightly under- stand the argument of the defendant for a limited construction, it is this, that the Court has not by virtue of the section autho- rity to take any accounts save in cases of disputed ownership, possession or employment. Now this construction, arbitrarily and without reasonj strikes out of the statute the word " earn- ings," and there is no explanation suggested how the Court THE IDAS. 69 could deal with the earnings of the ship without taking an 1863. account. The defendant then objects that by the more exten- ^" sive construction this Court would be exercising a jurisdiction belonging to a Court of Equity. The fact is true, but it is equally true of the limited construction, as, for instance, if an account were taken in a cause of possession. It is not and can- not be denied that, to a certain extent, authority to take accounts has been conferred : the only question is to what extent ? I am of opinion that I have jurisdiction by the Act to order this ac- count. Reasons might be given in support of this construction, but I need not look for motives when the words of the Act are plain. I reject the motion, with costs. Cotterill and Sons, solicitors for the plaintiff. Clarkson and Son, proctors for the defendant. THE CHAMPION. Salvage — Derelict — Possessory Right of Salvors — Might of Master. In the case of a derelict, the salvors have a right to exclusive possession of the vessel ; but unless the vessel has been utterly abandoned, and is in contem- plation of law a derelict, the occupying salvors are bound to give up charge to the master, on his appearing and claiming charge ; and the master may then refuse to continue to employ them, and may employ others, and may take what measures he thinks fit for the preservation of the vessel. A vessel having run on shore, and been got off water-logged and disabled, was anchored, and the master then quitted with all his crew, to obtain steam assist- ance. On the next day he returned with a steamer, and found that salvors had just taken possession. Held, that the vessel was not a derelict, and that the master was intitled to resume full authority. SALVAGE. This was a cause of salvage brought against April 29. the brig Champion on behalf of the owners, master and crew of the Prince of Wales steam-tug. The circumstances of the case were as follow : — On the 19th of December, 1862, the Champion, then on a voyage from Miramichi with deals to Liverpool, struck on the Skerweather Sands in Swansea Bay. She lay on the sands, striking heavily, till the morning of the 20th, when she was got off, water-logged. Her two anchors were then let go, and her foremast-was cut away, to prevent her driving. About 10 a.m. of that day the Porthcawl lifeboat came alongside and took the 70 THE CHAMPION. 1863. master and all the crew of the Champion on shore to Porthcai ^P"'' ^^' The intention of the master was to procure a steam-tug as so as possible and return, arid he accordingly procured a horse a cart and went to Port Talbot, and there engaged the steam-t Donna to go out as soon as practicable and take the briganti into Swansea. About 6.15 a.m. of the next day, the 2 1st of E cember, the Donna started with the master of the Champion board. On nearing the brigantine, arid about twenty minuj before reaching her, they observed the steam-tug Prince of Wal approaching her, and thereupon hoisted a burgee indicating thi number. The Prince of Wales was on a voyage from Bris'tol Swansea, and was making f6r the Champion, which they h observed to be a vessel in distress, in order to render assistant The Prince of Wales reached the Champion first, and sent sor men on board. In a few minutes afterwards the master of i Champion himself boarded from the Donna, and claimed to ta] possession as master, saying that the Donna, and not the Prin of Wales, was to tow the vessel to Swansea. The master ai crew of the Prince of Wales refused to accede to this, and i sisted that the vessel was in their possession and their charg The master of the Champion thereupon ordered the Donna go and bring off the crew frorii the shore. The Donna we accordingly. On the way she met the crew and some piio and coastguardmen coming off, and returned with them to tl Champion. The crew of the Prince of Wales, who had mea while begun to weigh the anchors, were then compelled by fon to give up charge, and they all, except the mate and two me returried to their own vessel. The Donna towed the 'briga'ntii into Swansea, and on the 3rd of March the Coiirt awarded i her owners and crew the sum of 260Z. as salvage. The present action was instituted in the sum of 2,000Z. Tl value of the property was only 1,300Z. Deane, Q.C., and Tristram for the plaintiffs, argued that tl plaintiffs were in lawful possesSidn, as salvors of a derelict ; thi they had a right to ''exclusive possession, and were unlawful deprived of their chalrge. They referred to The Dante Packet (a) ; arid Coroniandel (b). Tfie Queen's Advocate (Sir R. PMllimore) and Clarlson fi the defendants, argued that the vessel never was derelict ; thi the master'^s charge was never divested, and that the plaintlf were altogether wrong in refusing to Submit to him. (a) 3 Hag. 885. (i) Swabey, 205. THE CHAMPION. 71 Dr. Lushington. — The services which are stated to have 1863. been actually performed by the plaintiffs are so very slight that it is exceedingly difficult to describe them, and the only ground " S"^"'* on which this action can be supported is, that the crew of the Prince of Wales were illegally dispossessed of the vessel, being salvors in possession. Now, if this be true, then the plaintiff's might be intitled to say, " Though the salvage service was in fact performed by others, yet, but for your wrong, it would have been performed by us, and we are intitled to remuneration." The question resolves itself into this, whether the brigantine was or was not a legal derelict. In the case of a derelict the salvor who gets possession may have a right to keep exclusive possession, and if he can to carry the vessel into port ; but Unless the unless the vessel has been utterly abandoned, and is according J^^l]y derelict. to the legal meaning of the word a derehct, the occupying salvor the master may is bound to submit to the orders of the master, when the master rjty, and the appears and claims his authority. I do not mean to dispute at ?^'^°j^ ^'® all the doctrine which has so often been laid down, that where mit. there is a set of salvors who are in actual possession of a vessel found derelict, or who are with the consent of the master hold- ing actual possession of a vessel, they cannot be extruded by other persons strangers to the vessel. That is indisputable ; but as between the master and salvors, unless the vessel is absolutely derelict, and the master's authority at an end, he is intitled to resume charge of the ship, to employ whom he pleases, and to take what measures he thinks proper for the preservation of the ship. The occupying salvors are intitled to reward for the ser- vices they have actually rendered, but no more. Was then this vessel a legal derelict ? It was not. Admit Here the ves- the vessel to have been in great danger ; still the master left if^^^^ °°' ^^' with the distinct intention and purpose to obtain steam assist- ance and return to the ship. This forms a great distinction between this case and the Coromandel (a). There the master quitted the vessel for his life, having only a vague general inten- tion "If I have opportunity, I shall of course procure a tug;" which it is true he afterwards did ; but here the very object of the master in quitting the vessel was that he might go to a spe- cified port, and obtain a steam-tug to renderthe necessary assist- ance ; and he states, with respect to the crew, that their departure was not caused by any immediate danger, but because he thought that, danger apart, it was prudent they should leave, as the vessel was water-logged, and in a condition of utter discomfort. This vessel then was no derelict; the master leftanimo revertendi (a) Swabey, 208. 72 THE CHAMPION, ] 863. et recuperandi ; and this purpose he did his best to fulfil ; the ^P"' ^^' delay in his return was purely accidental. Now, no doubt the master of the Prince of Wales is intitled to credit for going out of his course to assist a ship in distress, and for sending his men on board. Their possession was lawful possession in one sense, I admit; but it was not possession, suet as to exclude the master from returning to his duties and his powers; it was not such as to intitle the plaintiffs, when he came on board, to defy his authority. It would be a dangerous doc- trine, and one quite unfounded in law, that where the actual possession of the ship by the true owner is intermitted, the first comer may seize possession and say " I am salvor in possession of the vessel, and I will have charge." Yet it is clear that the plaintiffs in this case acted on this mistaken notion of the law. The result is that their conduct in resisting the master was wholly Action dis- unjustifiable. Further, they rendered no services to the ship; missed, with and further I must agree with the Queen's Advocate that to enter this action in the sum of 2,0001. was an abase of the power oi this Court. I pronounce against the claim, with costs. Fielder, proctor for the plaintiffs. Stokes, proctor for the defendants. costs. THE GEM OF THE NITH. Bottomry — Proceedings by Default — Cargo sold Abroad by Master — Freight — Right to demand Reference. The holder of a bottomry bond on ship, freight and cargo, is, upon the conclusioc of proceedings by default against ship and freight, intitled as of course tc have the full freight due upon delivery of the cargo paid to him, to satisfy the sum secured by the bond with costs ; and the owner of the cargo who has paid the freight into Court is not intitled to a reference of the amount due on the bond, notwithstanding that before the execution of the bond part of hii cargo was sold by the master, and the proceeds applied to ship's expenses. May 12. rPHIS was a cause of bottomry against the ship Gem of the -L Nith, her freight and cargo. Proceedings went against the ship by default, and the Court accordingly made the usua decree for the validity of the bond against ship and freight. The ship was sold, and the net proceeds, amounting to 2,578Z. 2«.8d. were paid out to the bondholder in part satisfaction of the bond leaving a balance due, according to the tenor of the bond, o 489Z. 1 Is. Qd., which, with interest and costs, would exceed the THE GEM OF THE NITH. 73 sum of 5211. 4s. lOd. hereinafter mentioned. The cargo, which 1863. had been arrested, was released on a bail-bond to answer judg- '"^"^ ^^' ment as against the cargo, and upon payment into Court of 627Z. 4s. lOd., the net freight due for the transportation of the cargo actually delivered. Upon the plaintiff making application to have this sum paid out to him, objection was made by Mr. Hamilton, the owner of the cargo, who was thereupon ordered to bring in a petition. The petition stated that during the voyage, and before giving the bond, the master had sold a portion of the cargo, and had applied the proceeds, 535/. 1 6s. 2d., to the benefit of the owners of the ship, and prayed the Court to refer the bottomry bond, with the accounts and vouchers, to the Registrar and Merchants, to report the amount due thereon. The answer brought in by the bondholder set out the facts as above, including the sale of part cargo by the master, and prayed the Court to order the sum of 527/. 4s. \0d., lying in the registry, , to be paid out to the plaintiff. The defendants gave notice of motion to reject this answer. Manisty, Q.C., and Wambey, in support of the demurrer. — It may be doubtful whether the owner of the cargo may deduct from freight the value of that portion of the cargo which was sold abroad : Campbell v. Thomson (a) ; Salacia (6) : he would certainly, however, have a right of action against the shipowner; and we ask, as a simple matter of equity, that this sum in the registry should not be paid out to the bondholder until he has proved that he is intitled to receive it, on a reference of the accounts to the Registrar. The shipowner might, if he chose, pray such a reference, which would be granted in ordinary course ; and the owner of the cargo ought to stand, for this pur- pose, in the like position. Brett, Q.C., and Lushington, contra. — The Court has already pronounced for the validity of the bond against the freight, and as the shipowner, who alone has an interest in the freight, does not oppose, the bondholder is intitled, as in ordinary course, to receive it without further proof. The owner of the cargo has no right or interest in the freight lying in the registry. Without paying it absolutely he could not have got his cargo. His claim in respect of cargo sold by the master gives him a right of action against the shipowner, but it does not reduce the amount of freight. That has been decided in the Salacia (b), which over- ruled Campbell v. Thomson (a). The owner of the cargo has (o) 1 Starkie, 400. (i) Lushington's Rep. 578. 74 THE GEM OF THE NITH. 1863. therefore no locus standi to pray a reference. In the case ^"y ^^' the Lord Cochrane (a), where the owners of the cargo W( opposing the validity of the bond altogether, the Court order the payment of the freight to the bondholder, and as a matter course. Martisty replied. Judgment. Dr. Lurhington. — The real question arising on this derauri is whether the bondholder is intitled to have the freight nc lying in the registry paid out to him immedialtely, or wheth 'Mr. Hamilton, as owner of the cargo and payer of the freigl has a right to insist upon reference of the bond, with the a counts, to the Registrar and Merchants 4 -^oSl 3lhe bondho]d( whose bond has been decreed valid against freight, has a rig! . and a right as of course, to the freight, unless some persi showing an interest in the freight prays a reference. I cann grant a reference on the application of any one who has not < interest in the fund itself. It is quite clear that a mere person creditor of the shipowner has no right to intervene. The claim for a reference put forward by the owner of carj appears to rest upon the fact that the master sold part of tl cargo, and applied the proceeds to the ship's use. Now, th may give a right of action against the shipowner, or a right set-off against an action for the freight ; but it does not for a deduction from the freight. The owner of the cargo is n intitled to delivery without payment of the full freight withoi deduction, and the bondholder, as decided in the Salacia {I has for his security the entire freight which is due 'upon sue delivery. The owner of the cargo has paid the freight inl Court, and obtained possession of his cargo, and he has now r right or interest remaining in the freight ; and I am therefore ( opinion that he is ^not intitled to demand a reference of tl bond. I consider that the answter is good, and the petition fel de se. The motion must be rejected with costs. 'Mariisty applied for leave to appeal. Br. Lushington. — ^I have the power, but I do not.give leavi Jennings &; Son, proctors for the bondholder. Deacow, proctor for the owner of cargo. (a) 1 W. Rob. 315. (J) Lushington, 578. THE PRINCESS CHARLOTTE. 75 1863. Mau 13. THE PRINCESS CHARLOTTE. Proof of Ship's Nationalily— Register— \1 ^ 18 Vict. c. 104, s. 107. A ship's register, containing a statement of Britisli ownership, even if l)y the 107th section of the Merchant Shipping Act, 1854;, ihade primd facie proof of such ownership, may be outweighed by circumstantial evidence to the contrary. Semble^— The section does Hot make the register primd facie proof of disputed British nationality. THE plaintiffs, Thomson, Watson & Co., merchants of Cape Town, at the Cape of Good Hope, sued the ship Princess Charlotte for necessaries supphed to that ship at Cape Town, in February, 1859. The cause was instituted on the 29th of Oc- tober, 1861. The defendant, Jonathan Doming, a shipowner of Liverpool, entered an appearance to the cause under protest to the jurisdic- tion of the Court, and filed a petition, wherein he alleged, that at the date of the necessaries being supplied, the Princess Charlotte was duly registered in a British port, in the name of Arthur Smith Owen, as sole owner, and was sailing under the British flag; and that at the date of the institution of the cause the de- fendant, the then sole owner of the ship, was domiciled in Eng- land. The answer of the plaintiffs to this petition alleged that at the date of the necessaries being supplied the true aind beneficial owners of the Princess Charlotte were a certain foreign company called the Belgian Transatlantic Steam Navigation Company, and that the ship had been colourably registered- with the name of Owen as owner, in order to obtain a charter to carry British troops to India. The petition then alleged that the Court of Ad- miralty had jurisdiction over the case by the 6th section of the 3 & 4 Vict. c. 65. Upon the hearing of the cause on protest witnesses were called on behalf of the defendant, and upon their evidence and the ad- missions in the pleadings, the following facts appeared : — The ship was originally built at Amsterdam, was the property of the Belgian Company and was then called the Constitution. Shortly before the 18th of September, 1857, the ship was tendered, apparently under the British name of the Princess Charlotte, to the East India Company in London, for a charter to carry British troops to India. Some objection was made on behalf of the 76 THE PRINCESS CHARLOTTE. 1863. East India Company that the ship was not British, but belongi — — '- — to a Belgian company; but the "ship was finally accepted as British ship, apparently on the faith of Lloyd's Register, and ( the 18th of September, 1857, was chartered to the East Ind Company. At the same time two other ships, called the Soijt ampton and the Leopold, were, after a similar diflSculty had arigf and been disposed of in the same way, also taken up by tl East India Company for the same purpose. On the 10th of October, 1857, the Princess Charlotte wi registered in the port of London in the name of Arthur Smil Owen, as sole owner. On the 14th of October, 1857, the shi was mortgaged in the sum of 55,000/. to Bernard Joseph Posmi of Antwerp, who was a large shareholder in the Belgian con pany. This mortgage, which was registered the same day a made, was, on the 22nd of December, 1857, discharged, and th same day the ship was mortgaged for 45,000Z. to Jacob Fuchi merchant, and Charles Verhoustracten, both of Antwerp, wh( in fact, represented the Bank of Antwerp, who were the credi tors of the Belgian company. On the 24th of December, 186/ the ship was re-mortgaged for 65,000Z. to Bernard Posmo afore said, and Francois Emile Vander Elst, of Brussels, who was on of the directors of the Belgian company. No further alteratioi took place in the register until the register was closed on the 5tl of March, 1859, when the ship was on her voyage from the Capi of Good Hope to England. The following was the entry on thi register, copy of which was put in by the defendant : — "Registry closed on advice, dated 5th March, 1859, fron owner to persons not qualified to own British shipping. Certi ficate of registry at sea with vessel, and to be given up on return " G. Evans, " P. Registrar of Ships." 5/3/59. The Princess Charlotte, so chartered, sailed to India under thf command of Captain Pougin, an Antwerp man, and in the month of February, 1 859, being then on a return voyage from China to England with British troops, put into the port of Cape Town, and the plaintiff's then supplied the ship with coals and necessaries to the amount of 1,210/. Os. 5d. To pay for these necessaries. Captain Pougin, the master of the Princess Char- lotte, gave the plaintiffs a draft for the said sum of 1,210/. Os. bd, upon the Belgian company, "the amount to be placed with oi without further advice to account of the S. S. Princess Char- lotte." And on the 30th March, 1859, this draft was accepted on behalf of the company, payable at sixty days. THE PRINCESS CHARLOTTE. 77 In April, 1859, the ship arrived in England from the Cape of 1863. Good Hope, and the port charges, wages of the crew and other ^"^ '^' disbursements of the ship to the extent of 3,9 18Z. were met by the Belgian company, by means of a credit on their behalf issued to that effect by the Bank of Antwerp upon Messrs. N. M. Rothschild and Sons, London. The ship then returned to Ant- werp. The draft, on due presentment for payment on the 1st of June, 1859, was dishonoured. The ship, having returned to Antwerp, remained in dock there from the 16th of May, 1869, to the 15th of September, 1861, owing to the bankruptcy of the Belgian company. On the 24th of August, 1861, the ship was sold, together with the ships hereinbefore mentioned, the Leopold and the Southampton, by the liquidators of the Belgian company to the defendant, who was then told by them that the Princess Charlotte had been working for some years for the Belgian com- pany, and had carried troops to India for the East India Com- pany during the mutiny. It was obtained from one of the witnesses for the defendant, on cross-examination, that Mr. Arthur Smith Owen, in whose name the ship had been registered, was in Court. He was not, however, called as a witness. The 107th section of the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), is as follows :— " Every register of, or declaration made in pursuance of the second part of this Act in respect of, any British ship may be proved in any court of justice, or before any person having by law, or by consent of parties, authority to receive evidence, either by the production of the original, or by an examined copy thereof, or by a copy thereof, purporting to be certified under the hand of the registrar or other person having the charge of the original ; which certified copies he is hereby required to furnish to any person applying at a reasonable time for the same, upon pay- ment of one shilling for each such certified copy ; and every such register or copy of a register, and also every certificate of registry of any British ship, purporting to be signed by the registrar or other proper officer, shall be received in evidence in any court of justice, or before any person having by law, or by consent of parties, authority to receive evidence, as primS, facie proof of all the matters contained or recited in such register when the regis- ter or such copy is produced, and of all the matters contained in or endorsed on such certificate of registry, and purporting to be authenticated by the signature of a registrar, when such certifi- cate is produced." 78 THE PRINCESS CHARLOTTE. 1863. Deane, Q. C. ( Wamhey with him), in support of the protest.- Moy 13. We rely on the register, which is made by the statute prim^ facie proof of ownership, and there is no evidence directl) contradicting it. The Court will not presume that a fraud was committed upon the East India Company, and upon the statute: that Mr. Owen was guilty of a misdemeanor, and ths^t thp ship was liable to be forfeited, 17 & 18 Vict. c. 104, s. 103; Brett, Q.C.{Lushington with him).— Section 107 dops nol apply at all. It expressly applies only to registers in respect ol '* British ships ;" before it can be applied there must be an admis- sion, or else some satisfactory evidence must be giv^n, that the ship is British. The register may prove everything but nationality, But at any rate the register is only prima facie proof, and any in- ference from the statement in this register of British ownership is entirely displaced by the other evidence. Judgment Db. Lushington, in the course of his judgment, said :— The question for me now to decide is, whether this vessel at the time of the necessaries being furnished was a British or a foreign ship. The defendant relies on the British register. The plain- tiffs say that the register was improperly obtained, and that the ship was really the property of the Belgian Company. Now it is proper to observe that provisions are made by the legislatpre in the second part of the Merchant Shipping Act for the purpose of preventing ships, which are the property of foreigners, from being registered as British ships. Thus the 18th section begins, " No ship sh^Jl be deemed to be a British ship unless she be- longs wholly to owners of the following description, that is to say, &c." Unless therefore this ship belonged at the time in question to owners falling within the limitation which follows in this section, the register obtained is both false and fraudulent, and is no better than waste paper. It has frequently happened in my experience that both registers and ships' papers have been used for the purpose of claiming a particular national character for a ship. The principle upon which we always proceeded was to endeavour by every description of legitimate evidence to ascertain whether the ship was truly intitled to that national character, or whether it was a mere pretence, carried out by the adoption of a piece of bunting the vessel was not intitled to, and by papers which did not contain the truth. We never considered, in all the cases I remember, that all question of the ship's nationality was set at rest merely because the papers and the bunting were primS. facie evidence of national character. I apprehend therefore that I ought, in the first instance, to be THE PRINCESS CHARLOTTE. 79 satisfied in my own mind that the ship was one of those vessels 1863. to which it was intended to apply the regulations contained in ^"^ ^^' the Act, including section 107 : and if I should be of opinion that in point of fact, from the circumstances which appear here in evidence, the ship was not a British ship, then I should come to the conclusion that that section, on which so much rehance has been placed, could not apply at all to the present case. The register would not be a register " made in pursuance of " the Act, nor would it be made " in respect of a British ship." I do not, however, mean to found my judgment on that, but to accept the register as prima facie proof of the matters recited in it. This register states the name, residence and description of the owner, " Arthur Smith Owen, of 16, St. Mary Axe, in the City of London ; sixty- four shares ;" and of these facts I accept it as primS, facie proof. But if prim^ facie proof of these facts, it is also primS, facie proof of that which is stated on the other side of the register, of the fact that on the 14th of October, 1857, this vessel was mortgaged for 55,000Z., and interest at five per cent. Now if there was that mortgage for 65,000Z., it is the strongest evidence to me that the transfer was colourable ; that the vessel was nominally transferred into the name of Arthur Smith Owen for the purpose of carrying out the charter, whilst the mortgage was taken for the purpose of controlling the power placed in his hands. All the other circumstances of the case, and especially the not calling of Mr. Owen, point to the same conclusion, and leave no doubt on my mind that the true owners of the ship were the Belgian company. I am not bound to take that as proof conclusive which the statute only says shall be primS, facie proof. I decide that the defendant has failed to establish his protest, and I overi'ule the protest, with costs. Rothery, proctor for the plaintiffs. Holt, proctor for the defendant. 80 THE PERICLES. 1863. May 13. THE PERICLES. Salvage — Contract to tow — Risk to Tug. A tug engaged under the ordinary contract to tow, may, by the performance of substantial salvage services in saving the ship towed from supervening danger, earn salvage reward, though not herself incurring risk. THIS was a cause of salvage instituted by the Liverpool Steam Tug Company for services rendered to the ship Pericles by two steam-tugs, called the Blazer and the Scout. The circumstances were as follow: — About 2 p.m. of the 13th October, 1862, the Blazer was engaged under the ordi- nary contract to tow the Pericles, a large inward-bound ship, up the Mersey and dock her, for \5l., provided she docked that tide ; if not that tide, then 3Z. extra was to be paid. Shortly before the turn of high water of the same tide, the Blazer brought the Pericles into the entrance to the Canning basin, but the vessel stuck in the entrance, and it became necessary to tow her out again. In the attempt to do so, the Blazer's rope broke, and as the tide was falling, and the ship was jammed in the entrance of the dock, the ship was in a condition of considerable danger. Several tugs made fast to the ship. Eventually the Blazer, with her own hawser, assisted and held in position by the Scout, succeeded in towing the ship out. Brett, Q. C. {Lushington with him), for the plaintiffs. — The ship was in great danger, and was rescued by the tugs. As to the Blazer, the towage was converted into salvage ; the service of the Scout was wholly salvage. Milward {Clarhson with him) for the defendants. — ^The ser- vices of the Blazer were within the towage contract. The tug incurred no risk, and risk to the tug herself is, according to the judgment of the Privy Council in the Minnehaha (a), a condition necessary to the conversion of towage into salvage. Lord Kingsdown there laid down the law in these terms : " The steam-tug does not become relieved from her obligations because unforeseen diflSculties occur in the completion of her task; be- cause the performance of the task is interrupted, or cannot be completed in the mode in which it was originally intended, as by the breaking of the ship's hawser. But if in the discharge of (a) Lushington, 335, 347. THE PERICLES. 81 this task, by sudden violence of wind or waves, or other acci- 1863. dents, the ship in tow is placed in danger, and the towing vessel -^ ' incurs risks and performs duties which were not within the scope of her original engagement, she is entitled to additional remuneration for additional services if the ship be saved, and may claim as a salvor, instead of being restricted to the sum stipulated to be paid for mere towage." This disposes of the main claim, for the Blazer did the principal work. The danger of the ship, moreover, is much exaggerated. Brett, Q. C, in reply. — The judgment of the Privy Council does not exclude the inferior case from salvage, where the tug, performing extraordinary duties, does not incur risk: it only insists upon the salvage character of the superior case, where both risks are incurred and extraordinary duties performed. In the Minnehaha, the tugs did incur risk. Dr. Lushington, in the course of his summing-up to the Judgment. Trinity Masters, said : — If you are of opinion that the ship was in great danger, that she could only be delivered from that danger by steam power, and that she was so delivered by the services of the Blazer, I shall come to the conclusion that the services rendered were beyond the scope of the contract to tow. 1 am not disposed for petty services to consider the steam-tugs relieved from the obligation of the towage contract ; but I do not understand it to be law that a tug under a contract to tow can under no circumstances earn salvage reward, unless she herself incurs risk in the performance of the superior service of saving. I do not gather such to be the law from the judgment of the Privy Council; nor is it in accordance with the rules of salvage pre- vailing in this Court. Risk to the salvor is not a necessary element of salvage, though it does, as we all know, enhance the merit of the service, and earn a higher reward. Upon the Trinity Masters advising the Court that the ship was in a position of danger, and was extricated by the Blazer and Scout, whose services were necessary for that purpose, the learned Judge awarded the plaintiffs the sum of 500/. Toller, proctor for the plaintiffs. Rothery, proctor for the defendants. B. L. 82 THE LONDON. 1863. June 2. r^ (A I •• ' ■'' ^"'^" THE LONDON. Collision — Inevitable Accident — Practice as to Costs, In causes of collision, where the Court finds inevitable accident, the general ri is, that each party pays his own costs ; but the Court still holds, and will < occasion exercise, a discretionary power to condemn the plaintiflF in costs. THIS was a cause brought by the owner of the late bri Hugh against the owner of the schooner London, to recovi damages for the loss of his ship occasioned by a collision on tt 19th of October, 1862. The collision took place in Aldboroug Roads at night, during a storm which drove ashore and wrecke several vessels. The defence pleaded was inevitable accident and on the hearing the Court so found. The question of cosl was reserved for argument. The Queen's Advocate and Deane, Q. C, for the plaintiff.- The practice in these cases of inevitable accident is that there i no order as to costs : it was so stated by the Court in the cas of the Itinerant (a), and the rule was there acted upon. A simi lar decree passed in the Ebenezer (b), and also, apparently a least, in the Bolina (c). In the England {d), the plaintiffs wer condemned in costs, but no reason was given, and the decre might have gone per incuriam. There is nothing in the circum stances of this case to deprive the plaintiff of the benefit of thi general rule. Brett, Q. C, and Clarkson, contra. — It must be admitted tha it is a good general rule that costs should follow the event; thi plaintiff takes his chance of winning; if he fails, should he no Jose, or rather, why should not the defendant recover the cost! he has been put to by the injudicious act of the plaintiff? Ever if there be a peculiar rule in this Court that absolves the plaintif from the ordinary penalty, if the collision prove to be occasionec by pure accident, it is admitted not to be an unbending rule Besides the case of the England, there is the case of the Thorn- ley (e). The Court there said, on the counsel for the defendant asking for costs: "Yes; in my judgment, this collision was purely and clearly accidental. I do not think there was suffi- cient ground for bringing the action." The circumstances o this case also show rash litigation on the part of the plaintiff. (a) 2 W. Rob. 236. (<;) 5 N. of C. 170, 176. (i) 2 W. Rob. 206. - (,) 7 juHst, 660. (c) 3 N. of C. 208,210. THE LONDON. 83 Dr. Lushington. — In this case the Court has found that the 1863. collision was an inevitable accident, and pronounced against the "^""^ ^' damages, and the only question now is whether the plaintiff J"'lg">ent. ought to be condemned in costs. I quite agree with Mr. Brett, that, on principle, costs ought to follow the event; but if there is any settled rule of practice, it is necessary to abide by that. I have caused inquiry to be made, and I find that in these cases of inevitable accident, the usual practice, the general rule I may call it, has been to make no order as to costs : as I had occasion to state in the Itinerant (a). But looking to all the cases, it is clear that the Court still holds, and will on occasion exercise, a discretionary power to condemn in costs. Thus in the Thorn- ley (b), I ordered the plaintiff to pay costs, saying that he had no sufficient ground for bringing his action, I deem myself therefore free to consider the circumstances of the case, and I must say that, considering the collision took place in a most tempestuous night, a night in which, in this one place, eight vessels were wrecked, the plaintiff had good reason to think the collision was a mere accident, which could not have been avoided, and that he was unduly rash in bringing his action. I therefore condemn him in the costs. The costs of the motion will follow. Deacon, proctor for the plaintiff. Clarkson, proctor for the defendant. (a) 2 W. Rob. 2ii. (i) 7 Jurist, 660. g2 84 THE WILD RANGER. 1863. June 23. THE WILD RANGER. Collision — Bail— Judgment— Proceeds in Court — 24 Vict. 10, s. 15-1 8r 2 Vict. c. 110, s. 12-17 ^ 18 Vict. c. 12 s. 61. In a cause of collision, the ship having been released from arrest upon bail giv in the full sura in which the cause was instituted, cannot be re-arrested the plaintiff to answer his damages, if, after the ordinary decree and refe ence, they prove to exceed that sum : and if the ship has been sold by tl Court in another action brought by other parties, the Court cannot under i general authority, or under the 15th section of the Admiralty Court Act, 186 order the proceeds of the ship to be applied to satisfy such damages interest or costs in the first action. Where a ship has been sold by order of the Court, and the proceeds are in tl registry, such proceeds are not "money belonging to the owners of the ship (1 & 2 Vict. u. 110, 5. 12), nor a "debt owing" to them (17 & 18 Vic c. 125, s. 61). y ON the 3rd of January, 1862, a collision took place on tli high seas beyond British jurisdiction, between the Wil Ranger, an American vessel, and the Coleroon, a British vesse On the 9th of January, 1862, the Wild Ranger was arrested o behalf of the owners of the Coleroon in the sum of 3,500/. Th owner of the Wild Ranger entered an appearance, and on the 14tl of January the ship was released on bail, in the ordinary form the bail consenting, that " if he the said defendant shall not pa; what may be adjudged against him in the said cause with costs execution may issue forth against us, our heirs, executors an( administrators, goods and chattels for a sum not exceeding 3,500/." On the 18th of January in the same year, the ship wai arrested on behalf of the owners of the cargo, which had beet laden on board the Coleroon, for a claim of 9,000/., and in tbii latter action she was sold under order of the Court, and the pro ceeds brought into the registry. On the 27th of February, 1862 judgment in both actions was delivered ujjon the merits, anc the Wild Ranger found to blame for the colHsion. On the 2nc of December, 1862, the question was argued, whether, on behal of the Wild Ranger, a claim could be sustained for limited liabi- lity under the 504th section of the Merchant Shipping Act The Court pronounced against such a claim (a), and the amouni of the damage in both actions was referred to the Registrar anc Merchants for assessment. On the 24th of April, 1863, the Registrar delivered his report, and found that the damage sus- (a) Lushington, 553. THE WILD RANGER. 86 tained by the owners of the Colerooa was 3,592Z., and that that 1863. sum was due to them, together with interest, as from the I5th ""^ " — of April, 1862, and costs. This sum of 3,592Z. exceeded by 921. the amount in which bail had been given. Consequently after the bail had been exhausted, there still, according to the Regis- trar's report, remained due to the owners of the Coleroon 92/., and interest and costs. In the meantime the reference in the other cause had gone on, and the claim of the owners of the cargo on board of the Coleroon, which proved to be much less than was anticipated, was satisfied out of the proceeds from the sale of the Wild Ranger; and, after it had been satisfied, there remained in the registry surplus proceeds to the amount of 1,498/. 12s. 5c?. It was with respect to the disposal of these surplus proceeds that the question now arose. The owners of the Coleroon made a motion in the first cause that the fund should be paid out to them in satisfaction of what remained due on their judgment, whilst the owners of the Wild Ranger made a counter motion in the second cause that the fund should be paid to themselves. The 15th section of the Admiralty Court Act, 1861 (24 Vict, c. 10), is as follows : — " All decrees and orders of the High Court of Admiralty, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the same effect as judgments in the Superior Courts of Common Law, and the per- sons to whom any such monies, or costs, charges, or expenses, shall be payable, shall be deemed judgment creditors, and all powers of enforcing judgments possessed by the Superior Courts of Common Law, or any Judge thereof, with respect to matters depending in the same Courts, as well against the ships and goods arrested as against the person of the judgment debtor, shall be possessed by the said Court of Admiralty with respect to matters therein depending ; and all remedies at common law possessed by judgment creditors shall be in hke manner pos- sessed by persons to whom any monies, costs, charges, or ex- penses are by such orders or decrees of the said Court of Admiralty directed to be paid. The 61st section of the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), enacts.— " It shall be lawful for a judge upon the ex parte application of such judgment creditor, either before or after such oral examination, and upon affidavit by himself or his attorney stating that judgment has been recovered, and that it is still un- satisfied, and to what amount, and that any other person is 86 THE WILD RANGER. 1863. indebted to the judgment debtor, and is within the jurisdiction June 23. to Order that all debts owing or accruing from such thii-d perso; (hereinafter called the garnishee) to the judgment debtor shall bi attached to answer the judgment debt; and by the same or ani subsequent order it may be ordered that the garnishee shal appear before the Judge or a Master of the Court, as such Judg( shall appoint, to show cause why he should not pay the judg ment creditor the debt due from him to the judgment debtor, oi so much thereof as may be sufficient to satisfy the judgnieni debt." Cleasby, Q. C, for the owners of the Wild Ranger. — The owners of the Wild Ranger are intitled to receive from the Court the residue of the proceeds of their own ship. The owners of the Coleroon have no right to this money at all. They are bound by the amount in which they instituted their cause ; and the Kalmazoo{a) is an express authority that a ship cannot be arrested a second time to supplement the first action. The judgment of the plaintiffs must be considered as entirely satis- fied by the payment by the bail to them of 3,500^., the amount of their action. But, assuming that they are judgment creditors for the residue of their loss, they cannot touch these proceeds. This is money in the hand of the Court : the Court holds the money in trust for my clients: execution cannot go against it; for it is not " money belonging to" the defendants within 1 & 2 Vict. c. 1 10, s. 12. Nor can it be attached under the garnishee clauses of the Common Law Procedure Act. In Archbold's Practice (6) is a catalogue of debts that cannot be attached ; amongst them is money in the hands of the sheriff, the produce of an execution at the suit of the debtor ; money ordered to be paid by a rule of Court, for which the case of Coppell v. Smith (c) is cited ; and money in the hands of the government or its agents, unless where the. latter have made themselves personally responsible. This money is not a " debt owing " to the defendants. Lushington for the owners of the Coleroon.— The fund in Court is in the equitable discretion of the Court. The owners of the Coleroon have a judgment against the defendant for the residue of their damages, interest, and costs ; and they have at least an equitable lien upon the fund, which represents the ship, the offending ship. They ought not to be barred by the amount in which their action was instituted : that amount, it is decided (o) 15 Jur. 885. (c) -l T. R. 312. (J)) 11th Ed., p. 701, THE WILD RANGER. 87 {Florence Nightingale {a)), may be increased at any time before 1863. the hearing, and there is no reason why it should not be allowed ''""" ^^' to be increased after the hearing : were it otherwise, plaintiffs would be tempted to arrest ships in immoderate sums. The defendants ought at any rate to be liable for costs over and above the amount of the action, costs caused by their unjusti- fiable litigation : John Dunn (b). There is no reason either why the present plaintiffs should be prejudiced by the fact that they took bail in lieu of the ship in their action ; for the baihng was purely for the benefit of the defendants. The case should be considered, as if the ship itself was still under arrest in the plaintiffs' action. It is submitted therefore that apart from the statute the plaintiffs are intitled to have their judgment satisfied out of these proceeds, upon the ground that the Court has an equitable control over the funds in its own possession^ No second warrant is taken out here, as in the Kalmazoo ; and the principle that an action in rem cannot be supplemented by pro- ceedings in personam is now overruled by the Admiralty Court Act, sect. 15. But, secondly, the Court now has by that section the like powers to enforce its judgments as a Court of Common Law. If therefore those proceeds are the property of the defendants, the Court may issue execution upon them ; this money is, subject to any overruling claim allowed by the Court, " money belonging to" the defendants. But, if this money is to be considered as a debt owing to the defendants, the Court, it is submitted, may attach the debt under the garnishee clauses of the Common Law Procedure Act, 1854. Cleashy, Q. C, replied. Dr. Lushington [after stating the facts as above] : — Out of this fund now in Court, the balance of the proceeds of Judgment, the Wild Ranger, the owners of the Coleroon demand payment for three separate sums, for the balance of damage, for interest, and for costs. The damage and interest are in the same category, the costs in some respects subject to a different con- sideration. Now bail given for a ship in any action is a substitute for the Bail once ship; and whenever bail is given, the ship is wholly released fs^holly re- '^ fiom the cause of action, and cannot be arrested again for that leased from cause of action. Also if the ship is sold in another action, the action ; proceeds, save by the operation of some Act of Parliament, are (o) Ante, p. 29. (6) 1 W. Rob. 159. THE WILD RANGER. 1863. June 23. and the pro- ceeds of the ship likewise. The proceeds in Court are not " money belonging to" the defendants, nor a " debt owing to them." liable only to the payment of liens. In this case, then, aftei bail was taken the ship herself never could have been made liable to the plaintiffs for damage or interest; and I am ol opinion that the proceeds of the ship sold in another action are, in legal consideration, as the ship itself, and therefore cannot be made available to answer this demand. Costs stand in some respects differently. It is settled law that costs may be given over and above the value of the ship proceeded against. A decree for costs may be a decree against the defendant personally, and I will consider such to be the case here. But a decree in personam for costs is no lien on tlie fund now in Court ; and, unless by the operation of some statute, I am of opinion that I could not order the costs to be paid out of these proceeds any more than I could order any other debt due from the defendant to be so paid. Then the only remaining question is whether by virtue of the recent statute, which has conferred so large an additional power on the Court, I can direct such payment. It was contended on the part of the owner of the ship that the powers conferred on this Court were only the same as those possessed by Courts of Common Law, and that according to their decisions this particular fund could not be resorted to by the Court to satisfy any judgment debt against the defendant. The fund in question is a part of the proceeds of a ship sold by the Court to answer a legal demand ; it is in the hand of the Court, which holds it in trust; the owner is in one sense intitled to it, but he cannot obtain it save by order of the Court. It is not money belonging to the owners of the ship, so as to be capable of being seized under the 1 & 2 Vict. c. 110, s. 12(a). Then is it a debt owing to the defendants so as to be liable to be attached under the garnishee clauses of the Common Law Pro- cedure Act? It resembles money ordered to be paid by a rule of Court, and it appears from Archbold's Practice, Prentice's Edition, pp. 701, 702, cited by Mr. Cleasby, that such monies cannot be attached. I think it unnecessary to say more, because the Court being now invested, by the statute of 1861, with an authority such as the Courts of Common Law possess, must in exercising that authority be guided by their decisions. The money must be paid out to the owners of the Wild Ranger. Rothery, proctor for the owners of the Coleroon. Thomas and Capes, proctors for the owners of the Wild Ranker. (o) Chitty's Archbold, 11th ed., p. 63i. THE EUROPA. 89 1863. July J 7. Iv. tl)t SPribg Council. Present — Lord Kingsdown. Lord Chelmsford. Lord Wensleydale. THE EUROPA. Collision — Maritime Lien — Reasonable Diligence. A maritime lien follows the ship into whosesoever hands she may pass, and may be enforced after a considerable lapse of time ; but, to affect tlie rights of third persons, reasonable diligence in its enforcement must be used, otherwise the lien may be lost. Reasonable diligence means not the doing of everything possible, but of that which, having regard to all the circumstances, including considerations of expense and difficulty, can be reasonably required. COLLISION. This was an action brought by the owners of the schooner Integrity against the brig Europa to recover damages occasioned by a colhsion between the two vessels off Cape St. Vincent, on the 13th of December, 1859, whereby the Integrity was sunk. The cause was instituted on the 13th of February, I860, but the vessel was not arrested until the 14th of January, 1863. The owners of the Europa, Philip Henry Dean, George Beaumont Dean, Maria Griffiths, and William Lang Page Cox filed their answer, in which the following facts were averred : — In November, 1861, the Europa, then in the port of Liver- pool, was advertised for sale in the Liverpool Telegraph on several consecutive days, and was purchased by Philip Henry Dean, one of the defendants, for the sum of 785Z. from Alexan- der M'Dougall, shipowner, of Maitland in Nova Scotia, who at the time of such purchase was in Liverpool. The vessel was transferred to Philip Henry Dean by a bill of sale, dated the 28th of November, 1861, and on the same day was also regis- tered in his name. On the 23rd of December following, the defendant Philip Henry Dean sold certain shares in the ship to the defendant George Beaumont Dean, to the defendant Maria Griffiths, and to the defendant Cox, retaining thirty-two sixty-fourth shares for himself. The defendants were respec- tively owners of such shares in the vessel at the time of her arrest in this suit. On the following day, the 24th of December, 1861, the Europa, having since her purchase by the defend- 90 THE EUROPA. 1863. ant Philip Henry Dean undergone extensive repairs, sailed fi July 17. Lagos, on the coast of Africa. She returned to Liverpool c the 22nd of June, 1862, and having discharged her cargo, too on board a general cargo for Vera Cruz, for which place si: sailed on the 22nd of July. On the 10th of January, 1863, sli returned to Liverpool, and on the 14th she was arrested at th suit of the plaintiffs. At the time of the purchase of th Europa by Philip Henry Dean, and at the time of the purchas of their several shares as aforesaid by the other defendanti neither he the said Philip Henry Dean nor tliey the othe defendants had any notice of the plaintiffs' claim, nor had the at any time any knowledge of the circumstances stated in th plaintiffs' petition, nor could they ascertain the truth of the sara in consequence of the laches and delay of the plaintiffs. Th answer continued as follows: — "Under these circumstances th defendants allege that, had the plaintiffs used due and reason able diligence in that behalf, they could have arrested the sai( vessel and prosecuted proceedings in this Court in the months o November and December, 1861, or in the months of June o July, 1862 ; and the defendants further say that, upon the faitl of there being no such maritime lien as is now set up in the sai( petition attaching to the said vessel, they the defendants havi from time to time expended large sums of money in and upoi alterations and additions to the said vessel, and have enterec into binding engagements for the employment of the saic vessel." In their replication the plaintiffs alleged that, on the 27th o December, 1859, Messrs. Pritchard and Sons, their proctors were instructed to take proceedings against the Europa to re' cover the damages occasioned by the collision, and a correspon' dence between those gentlemen and a number of persons was sei out showing the efforts that had been made to arrest the vessel The material facts bearing upon the amount of diligence used bj the plaintiffs and their agents sufficiently appear from the argU' ments of counsel and from thejudgment. The rejoinder, afler tra- versing many of the articles of the replication, and especially the 15th article, which alleged that, during the years 1861 and 1862; search had from time to time been made on behalf of the plain- tiffs in the Shipping and Mercantile Gazette, went on to allege that the arrival of the Europa at Liverpool on the 8th ol November, 1861, and her departure from that port for Lagos or the 23rd of the following month, were duly notified in the Ship- ping and Mercantile Gazette, in the Times, and in other Lon' don papers ; and that her arrival at Liverpool on the 22nd ol June, 1862, and her departure on the 22nd of July following foi THE EUROPA. 91 Vera Cruz, were duly notified in the Shipping and Mercantile 1863. Gazette and in other London papers. juiy 17. At the hearing of the cause, on the 16th of April, 1863, two witnesses on behalf of the plaintiffs were examined before Dr. Lushington and Trinity Masters upon the circumstances of the collision, whereupon, the defendants calling no witnesses and offering no observations upon that part of the case, the Court pronounced the Europa solely to blame. Both parties then proceeded to call and examine witnesses on the question of laches and counsel were heard thereupon. Milward and Pritchard for the plaintiffs. Brett, Q. C, and Potter, for the defendants. On the 13th of May Dr. Lushington gave judgment. — The collision, which is the subject-matter of this cause, took place on the 13th of December, 1859, off Cape St. Vincent. The action was originally entered in February, 1860, but the arrest was not executed till January, 1863. With regard to the collision itself there is no defence. On ex parte evidence the Court necessarily came to the conclusion that the Europa was to blame. The question to be now decided is whether or no the plaintiffs, by any negligence or laches on their part, have lost their lien upon the ship in the hands of her present owners. It is settled law that a just claim for damage constitutes a lien against the ship doing the damage, and that the lien may be enforced where there has been no improper delay or laches. The law is thus laid down by the Judicial Committee of the Privy Council in the case of the Bold Buccleugh (a). " This rule, which is simple and intelligible, is in our opinion applicable to all cases. It is not necessary to say that the Hen is indelible, and may not be lost by negligence or delay, where the rights of third parties may be compromised; but, where reasonable diligence is used, and the proceedings are had in good faith, the lien may be en- forced into whosesoever possession the thing may come." That this claim has been pursued by the plaintiffs in good faith I see no reason to doubt. The sole question therefore is, have they exercised reasonable diligence ? Now it appears that as soon as Mr. Richards, the principal owner of the Integrity, heard of the accident, he communicated with the underwriters — those most interested in discovering the aggressor and in obtaining payment for the loss. By them the (o) 7 Moore, P. C. C. 285. 92 THE EUROPA. 1863. matter was placed in the hands of Messrs. Pritchard, the pr ■'."^y '^' tors. These gentlemen were resident in London, and had c sequently ample means of making the necessary inquiries ; i Mr. Barrow, the secretary to the insurance company, had a ri to rely upon their experience in such matters. I must say t those gentlemen fully justified the confidence reposed in thi Inquiries were made at Glasgow because the ship had sai from a Scotch port ; there was a correspondence with respecl proceeding against the Europa at Gibraltar, as she was expec to pass through the Straits ; warrants' were taken out to served at Plymouth and Falmouth when there was reason believe the ship would touch there ; and measures were adop to detain her if she should come to Ireland. With respect inquiries in London, I have no hesitation in expressing opinion that Messrs. Pritchard did much more than co reasonably be required of them. I refer especially to their f sonal attendance at Lloyd's, and to the services of Mr. Chai Pritchard. To ensure the attainment of the object in view i reasonable expense, Messrs. Pritchard employed Mr. PaddL clerk at the Jerusalem Coffee House, whose duty it is to insp the lists of shipping in the Shipping Gazette and other shipp lists. In fact, great efforts were made to discover the vessel. In answer to this case the defendants say that there are mi circumstances which show that reasonable diligence was used. In the first place, it is said that nothing was done at N( Scotia, the country to which the vessel belonged. The alle tion is true, but I think the inference attempted to be dra from it erroneous. Certainly it was not incumbent on the pla tiflFs to send the witnesses over to Nova Scotia and to sue owners personally. There is no evidence that the ship her: was there; and the question, as stated by the Judicial CommitI is, whether there was reasonable diligence in enforcing the liet not whether a personal action might not be brought, as it c lainly could have been, and indeed as it was in Scotland in the case of the Bold Bucdeugh. But, even if the Europa 1 been in Nova Scotia, and if the plaintiffs knew she was there could attribute very little weight to the objection. But then defendants say that this vessel has, during the time which 1 elapsed since the collision, been twice in Liverpool ; and it contended that by due diligence these facts might have been asc tained, and the vessel arrested. It certainly is possible that the employment of an agent at Liverpool the vessel might h been discovered ; it is possible that by a more accurate exami tion of Lloyd's Lists the same discovery might have been ma notwithstanding that the name Europa is. a common name ( THE EUROPA. 93 less than six vessels bearing that same appellation), and notwith- 1863. standing too the change of master. All this is true, but the real "-1 — '. — . question is, whether, in order to preserve the lien on the ship, it was incumbent on the plaintiffs to have an agent in several of the principal ports in this country, and to incur the expenses consequent thereon. It must be admitted that something more might have been done, but in almost every possible case this must be so. What I have to decide is, whether what has been done constitutes reasonable diligence; and the meaning of that expression is not the doing of everything possible, but the doing of that which, having regard to all the circumstances, including considerations of expense and difficulty, could be reasonably re- quired. I am of opinion that the acts done by the plaintiffs and their agents do constitute reasonable diligence. I regret that the loss should fall upon innocent parties. The maxim is caveat emptor as to all legal liens. I must pronounce in favour of the maritime lien of the plaintiffs, and with costs, which always follow the judgment in cases of damage. From this judgment the defendants appealed. The appeal was argued on the 17th July. Sir Hugh Cairns, Q. C, and Brett, Q. C. (Potter with them), for the appellants. — The proposition for which the plaintiffs con- tend in this case is a large one. If they are right it follows that in the event of a collision between a British and a foreign ship the latter might stay away for twenty years and then be arrested here, no matter through how many hands she had passed in the interim. No doubt the case of the Bold Buccleugh (a) is not to be questioned, but the defendants, the present appellants, contend that the doctrine of indelibility of a maritime lien ought not to be carried any further against an innocent purchaser. In order to bring themselves within the decision the respondents must show that there was no want of due diligence in the enforcement of their claim. But their own pleadings and evidence show that they were guilty of laches. In the first place, although they were aware that the Europa belonged to Maitland, in Nova Scotia, they take no steps for enforcing their lien there, nor do they even write to that place to make inquiries. Then again, having ascertained that the Europa was trading with Mexico, they must have known Liverpool to be the port at which she would call in (a) 7 Moore, P. C. C. 267. 94 THE EUROPA. 1863. the event of her coining to this country, and yet no steps \ J"'!/ ^^- taken by them to ensure their being advised of her arrival shi she put in there. The admitted facts of the case prove this, vessel was twice allowed to leave Liverpool, after being in port a considerable length of time. On the first occasion arrived there on the 8th of November, 1861. On the 19th, 2 21st, and 22nd days of that month she was advertized for in the Liverpool Telegraph. She was sold, and then underv extensive repairs there, and it was not until the 24 th of Dec ber that she sailed for Lagos. More than this, both her arr and departure were announced in the Shipping Gazette, in Times, and in other London papers, and yet the plaintiffs ki nothing about her. Again, she came to Liverpool on the 2 of June, 1862, and remained there for a month ; her arrival departure were again announced in the Shipping and Mercar, Gazette and other papers, and yet the plaintiffs knew noth about her. The case of the Bold Buccleugh (a) is a very ferent one. There all diligence was used by the plaintiffs ; oti wise, it is manifest from the terms of the judgment of the Pi Council, they would have lost their lien. The judgment of Privy Council in the case of the ^ws ii» »- In a bill of lading, where freight is made " payable as per charter-party," this reference incorporates into the bill of lading all the clauses in the charter-party which relate to the amount of freight, but only for the purpose of computing » the amount of freight, not for the purpose of transferring to the holder of the bill of lading the benefit of covenants found in the same clauses of the charter- party, but not affecting the amount of freight. Where a charter-party stipulated for lump freight, " the master guaranteeing the ship to carry 3,000 tons on a draft of 26 feet water, or to forfeit freight in proportion to the deficiency," and the ship could not, and in fact did not, carry a cargo of 3,000 tons: Held, that an assignee of a bill of lading for such cargo, making freight "payable as per charter-party," had no cause of action against the ship in respect of the master fraudulently guaranteeing, &c. Jan. 26, 29. fT^HlS was a suit brought by George Ashburner, an assignee Feb. 12. J_ of certain bills of lading, against the ship Norway, under the 6th section of the Admiralty Court Act, 1861. THE NORWAY. 227 24 Vict. c. 10, s. 6:— "The High Court of Admiralty 1864. shall have jurisdiction over any claim by the owner or con- -^an 26, 29. signee or assignee of any bill of lading of any goods carried '- — '- — into any port in England or Wales in any ship for damage done to the goods or any part thereof, by the negHgence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master or crew of the ship, unless it is shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales," &c. The defendants, owners of the Norway, moved that the peti- tion should be rejected. The petition, so far as it is material to this report, was in the following terms ; — 1. The Norway is an American ship. No owner or part- owner was, at the time of the institution of this cause, domiciled in England or Wales. 2. On the 2nd of November, 1861, a charter-party was exe- cuted in London between Captain H. B. Major, master of the Norway, of the one part, and W, N. De Mattos, Esquire, of London, of the other part. The said charter-party was as fol- lows : — " London, 2nd November, 1861. " It is this day mutually agreed between Captain H. B. Major, of the good ship or vessel called the Norway, A 1, of the burthen of 2,078 tons per register, or thereabouts, now lying in the port of Liverpool, whereof he is at present master, of the one part, and W. N. De Mattos, Esquire, of London, merchant and freighter, of the other part : that the said ship being tight, staunch and strong, and every way fitted for the voyage, shall with all convenient speed, be made ready and load at Liverpool a cargo of salt not exceeding 2,200 tons, and therewith proceed to Calcutta, and after the discharge of the outward cargo reload (or at the freighter's option proceed to Rangoon, Akvab or Bassein) a. full and complete cargo of lawful merchandise, not exceeding what she can reasonably stow and carry over and above her cabin, tackle, apparel, provisions and furniture, and being so loaded shall therewith proceed to Cowes, Queenstown, or Falmouth, at master's option, for orders to proceed lo London, Liverpool, Bordeaux, Havre, Antwerp or Marseilles, or so near thereunto as she may safely get, and deliver the same agreeably to bills of lading, and so end the voyage (restraints of princes and rulers, the dangers of the seas and navigation, fire, pirates and ene- mies during the said voyage always excepted). Ninety days are 228 THE NORWAY, 1864. to be allowed the said aierchant (if the ship be not sooner dis- Jan.26, 29. patched) for discharging the outward cargo of salt and loading — — '- — at Calcutta or the Rice ports, and the vessel to be unloaded at port of discharge according to the custom of the port, the freighter having the option of keeping the said vessel on demur- rage to the extent of ten days over and above the said laying days, if so required. In consideration whereof and everything before-mentioned the said merchant does hereby promise and agree to load and receive or cause to be laden and received in the manner and within the time herein mentioned for these pur- poses, and pay or cause to be paid as freight for the use and hire of the said vessel 11,250Z. lump sum if ordered to the United Kingdom, Havre or Bordeaux, 11,625Z. sterling if ordered to Antwerp or Marseilles, the master guaranteeing to Carry 3,000 tons dead weight of cargo upon a draft of twenty- six feet of water, or to forfeit freig lit in proportion to deficiency. The vessel to be loaded at port of lading to such a draft of water as the freighter or his agents may in connexion with the Pilot Commissioners consider safe to proceed to sea, lighterage, if any, to fill up the ship below the flats, to be at freighter's expense, payment whereof to become due and to be paid as follows ; viz. — 2,000/. to be advanced on the vessel clearing at Liverpool, subject to insurance only, say 1,000Z. by freighter's acceptance at four months, and 1,OOOZ at six months, sufficient cash for ship's disbursements, not exceeding 2,500/., to be ad- vanced at Calcutta, and the necessary disbursements if ordered to the Rice ports, subject to interest and insurance only, all at current rate of exchange for six months' bills on London against the captain's receipts. Such advances to be made on account of chartered freight, and the balance as follows, viz.— one third in cash on arrival at port of delivery, and the remainder on true and final delivery of the cargo at the said port of discharge, by good and approved bills payable in London or cash, equal to three months' date from the delivery, if discharged in the United Kingdom, or in cash at current rate of exchange if discharged on the Continent, less three months' interest. And also to pay for each and every day the vessel is detained beyond the times hereinbefore mentioned demurrage at the rate of 30/. per day, to be paid day by day, or as the owner or captain may agree- for it otherwise. The master shall sign bills of lading as ten- dered, without prejudice to this charter-party. The vessel, if ordered from Calcutta to load at the Rice ports, to proceed within forty-eight hours, wind and weather permitting, after receiving her dispatches to sail. The customary port charges THE NORWAY. 229 Feb. 12. and towage at the Rice ports to be borne by the freighter as ] 864. well as the actual cost of ballasting required for the ship at Jan. 26, 29. Calcutta. The cargo to be brought to and taken from alongside . at merchant's risk and expense. The vessel to be addressed at all ports to freighter's agent, paying one commission only on the charter not exceeding five per cent. And for the true per- formance hereof the said parties hereunto bind themselves, their respective heirs, executors, assigns, tlie said vessel, her freight and appurtenances, and the said freighter the cargo to be laden on board the said vessel, each unto the other in the said penal sum of 12,000/. of good and lawful money of Great Britain, it being agreed that, for the payment of all freight, dead freight, demur- rage or other charges, the said master or owners shall have an absolute lien and charge on the said cargo or goods laden on board. The brokerage on this charter-party, five per cent., is due by the ship on perfecting this agreement to Pilkington Brothers. " In witness, &c." 3. At the time of entering into the said charter, Captain Major, who was also part-owner as well as master of the ship, well knew that the Norway could not carry 3,000 tons dead weight of cargo upon a draft of twenty-six feet of water, as sti- pulated in the charter-party, the ship not being in fact, as he well knew, of sufficient capacity for that purpose. 4. Subsequently to the making of the charter-party, and before the arrival of the Norway at Calcutta as hereinafter men- tioned, it was agreed between De Mattos the charterer, and the firm of Ashburner & Co., of Calcutta, that the homeward shipment on board the Norway under the charter should be on joint account, each a moiety; the firm of Ashburner & Co. to purchase tlie cargo and to manage the matter of the shipment. 5. In pursuance of the charter-party, the Norway proceeded to Calcutta and discharged her outward cargo. On arrival thereon or about the 15th day of May, i8fci2, it was agreed between Ashburner & Co. and the master of the Norway that the Norway might go an intermediate voyage to Bombay with- out prejudice to the charter-party, and thence proceed to the port of loading according to the order of Ashburner & Co., tiiere to load homeward according to the charter-party; and it was further agreed between them that Ashburner & Co. should advance moneys for the disbursements of the ship at Bombay, and that the same should be considered as advances of freight in pursuance of the charter-party, and should be deducted from 230 THE NORWAY. 1864. the charter freight, provided the said advances at Calcutta Jan. 26, 29. should not exceed the sum of 2,600Z. mentioned in the charter- Feb. 12. . ' party. 6. The Norway accordingly went to Bombay and thence in ballast by order of Ashburner & Co. to Rangoon, there to load rice in pursuance of the charter-party from the Burmah Company (limited), who were the agents of Ashburner & Co. at that place. 7. In or about the beginning of March, 1863, the Norway having arrived at the port of Rangoon, commenced to load rice there from the Burmah Company, who furnished the rice on ac- count of Ashburner & Co. Having taken a certain quantity of rice on board in the anchorage off Rangoon, the ship then pro- ceeded to below the Hastings Sand, which lies a few miles lower down the river than Rangoon, and, having there anchored, took on board, from boats hired by the Burmah Company, a further quantity of rice. The total quantity of rice shipped was 36,200 bags. 8. On the 10th, 13th, and 18th of March, 1863, the master of • the Norway signed four sets of bills of landing in respect of the said 36,200 bags of rice, which consisted of four parcels. The bill of lading for the first parcel (to which the bills of lading for the other parcels mutatis mutandis correspond) was in the follow- ing form. B.c.L. / " Shipped in good order and well R. /=\ZflWBacis. 1- • 1 , IT. . /-, conditioned by the Burmah Company Limited in and upon the good ship called the Norway whereof is master for this present voyage H. B. Major and now riding at anchor in the Rangoon River and bound for Cowes Queenstown or Falmouth for orders as per charter- party thirteen thousand bags of cargo rice being marked and numbered as in the margin are to be delivered in the like good order and well conditioned at the port of discharge the act of God the Queen's enemies fire and all and every other dangers and accidents of the seas rivers and naviga- tion of whatever nature and kind soever excepted unto order or to assigns freight, for the said goods payable as ■per charter-party with primage and average accustomed. In witness, &c. '' Dated in Rangoon, 10th March, 1863. " H. B. Major." 9. The said bills of lading were indorsed by the Burmah Company and Mr Cator, their agent at Rangoon, and were Feb. 12. THE NORWAY. 231 subsequently assigned to the plaintiflP, who at the time of the in- 1864. stitution of this cause was also the owner of all the rice covered Jan. 26, S9. by the said bills of lading.. 10. The said 36,200 bags of rice were in dead weight several hundred tons short of the three thousand tons mentioned in the charter-party, and the Norway, loaded with the said 36,200 bags, drew less than 26 feet of. water. The depth of water in the channel between Rangoon and the sea, and more especially in the channel between the place where the ship was anchored below the Hastings Sand and the sea, was throughout enough to enable a ship of larger draft than 26 feet to proceed safely to sea. All matters and things were done on behalf of De Mattos the charterer, and Ashburner & Co., and the Burmah Company, to entitle them to a performance of the charter-party by the master of the Norway, but the master of the Norway, without lawful excuse, broke the said charter, and without loading his ship at the port of Rangoon or elsewhere in the river Irawaddy to such a draft of water as the freighter's agent in connexion with the Pilot Commissioners considered safe to proceed to sea, and with- out waiting for or requesting any opinion on the said matter from the freighter's agent or the Pilot Commissioners, caused his ship, on the 27th of March, 1863, to be towed from the anchorage below Hastings Sand aforesaid and proceeded forth- with on his voyage to Europe with the 36,200 bags of rice on board and no more. 11. On the voyage to Europe the master of the Norway threw overboard part of the rice shipped, and sold a further part of the rice at Mauritius, and also hypothecated at the Mauritius the ship, freight and cargo by a bottomry bond made payable twenty days after arrival of the ship at her port of discharge ; but of all these circumstances no advice was given or account rendered to the plaintiff or the charterer by the master of the Norway. 12. On or about the 10th of November, 1863, the Norway ar- rived at Falmouth, one of the order ports mentioned in the charter-party, and on or about the 13th of November De Mat- tos the charterer duly gave orders to the master to proceed to Liverpool, there to discharge in either the Albert, Stanley or Wapping Dock ; the cargo to be addressed at Liverpool to the frrm of Bushby and Co. The said Albert, Stanley and Wapping Docks are closed docks, with warehouses convenient for ware- housing, sorting and re-exporting rice cargoes, and are the docks customarily used in Liverpool for the discharge of rice- laden ships. 13. On or about the 17th November the Norway arrived at B.L. R 232 THE NORWAY. 1864. Liverpool, and anchored in the liver Mersey. The state of the """peb^^^' ^^^^^ ^^^ ''^^'^ nearly spring, and the Norway, which was not '- — '- — drawing 23 feet of water, might have safely been taken into any one of the three docks to which the charterer had directed her ; but the master alleged to Bushby & Co. that for this purpose it would be necessary to lighten the ship of about 160 tons of cargo in the river, and further said that he would insist on pay- ment of full freight before delivery of any part of the cargo. 14. The plaintiff thereupon made application to the firm of Baring Brothers, who were the holders of the bottomry bond hereinbefore mentioned, and on the 23rd November gave the said firm his undertaking to pay in due course the proportion of the bottomry bond which would fall upon cargo, and thereupon Baring Brothers consented that the ship might be lightened in the river. 15. The said consent of Baring Brothers was, on or about the 24th November, duly, notified by Bushby & Co. to the master of the Norway ; but on the same day the master wrongfully de- manded to be paid 6,500Z. as freight, and a further sum of 1,000Z. by way of general average contribution as a condition precedent to delivery of any part of the cargo, and refused to deliver the cargo on any other terms, and on the same day caused his ship to be taken into the Canada Dock without being lightened. 16. The Canada Dock is an open dock situate at the extreme north end of Liverpool, customarily used for discharging timber ships, and is without convenient warehouses for warehousing, sorting, and re-exporting rice cargoes or cargoes of the like nature. Leading out of the Canada Dock is the Stanley Dock, into which the Norway might, on the said 24th November, have been safely taken. 17. The plaintiff was at all times and is ready, upon delivery of the cargo, to pay to the master of the Norway ail sums due to him as freight and general average, and expressly offered the master to pay into the hands of a third party the full amount in dispute to await the final result, which the master refused. The , plaintiff refused to pay the sum of 7,500/. demanded, as being ex- cessive, and on account of the refusal of the master to deliver on any other terms the plaintiff did not make the usual Customs entry of the cargo provided for by the Customs Act Consolida- tion Act, 1853 (16 & 17 Vict. c. 107, s. 55, et seq.) 18. On the 7th of December the master of the Norway took up the bottomry bond, and on or about the 8th of December made entry of the cargo in his own name under the provisions of the Merchant Shipping Act Amendment Act, 1862, (25 & 26 THE NORWAY. 233 Vict. c. 63, s. 67, et seq.) On or about the same day, 8th De- 1864. cember, Mr. De Mattos the charterer stopped payment. •''"'• 26,^29. 19. Various interviews and letters relating to the delivery of —^ — the cargo having passed between Bushby & Co., the agents for the cargo, and Messrs. A. Taylor & Co., the brokers acting for the ship, and between Messrs. Bateson & Robinson, solicitors, of Liverpool, acting on behalf of the plaintiff, and Mr. John Yates, solicitor, of Liverpool, who was acting as solicitor to the ship, on the 10th December Messrs. Bateson & Robinson wrote and delivered to Mr. Yates the following letter : — " Dear Sir—Norway — We send you a notice for your clients, Messrs. A. Taylor & Co., the receipt for which please to acknow- ledge. The money will be sent down in the morning. " Yours truly, " John Yates, Esq. Bateson & Robinson." "26, Castle Street, Liverpool, 10th December, 1863. " Sir — On behalf of the holders of the bills of lading and owners of the cargo of rice per your vessel the Norway, we give you notice that they protest against your taking charge of the cargo of that vessel when landed from the ship, and that Messrs. Bushby & Co., their agents here, are ready and willing to take delivery as customary, and that they hold you and the ship, and also Messrs. A. Taylor & Co., as master porters, liable for all loss, damage, or expense, sustained by reason of the cargo not having been properly sampled, marked and classified on landing. And we give you notice that Messrs. Bushby & Co. intend to enter the cargo first thing to-morrow morning and claim the delivery to them, and that, as we before advised your solicitor, they are ready to pay you in cash one-third balance of freight as per charty-party, and also to make you a payment on account of general average. " To cover these sums we are desired to say that Messrs. Bushby will pay you 3,100/. (which exceeds the amount now due), and the balance of freight, they instruct us to say, they will pay on the true and final delivery of the cargo as per charter. " Yours respectfully, " Bateson & Robinson. " Captain H. B. Major, ship Norway, " Care of Messrs. A. Taylor & Co." 20. In reply to this letter and notice, A. Taylor & Co. on the same day, wrote and deHvered to Messrs. Bateson & Robinson a letter, the material terms of which were as follows : — " Liverpool, 10th December, 1863. " Gentlemen— We have just received yours of this date 234 THE NORWAY. 1864. through Mr. Yates. Messrs, Bushby & Co. may protest as Jon. 26, 29. much as they please, but Captain Major will not deliver one bag '- — '- — of rice till the whole of his freight and other claims on the cargo are satisfied. " We are, gentlemen, " Most respectfully yours, " A. Taylor & Co." On the 12th of December Mr. Yates, solicitor to the master of the Norway, waived any tender on the part of the plaintiff of any sum of money short of the 7,5Q.0Z. hereinbefore mentioned, and the actual production of the bills of lading, and the said Mr. Yates, on the part of the Norway, now continues to insist on the payment of 7,500Z. as a condition precedent to the delivery of any part of the cargo. 21. The rice of the plaintiff has been and is now being dis- charged by the master of the Norway, in the Canada Dock, and has been and is being placed by the master on and in wharfs and warehouses on and in which goods of a like nature are not usually placed, contrary to the provisions of the 67th section of the Merchant Shipping Act Amendment Act, whereby great damage has been and is being done to the said rice, and the sale of the said rice is necessarily prejudiced ; and whensoever the same shall be delivered to the plaintiff great expenses will necessarily be incurred by the plaintiff in carting the said rice to convenient and proper warehouses, and otherwise. 22. The master of the Norway has persisted in refusing to give the plaintiff particulars concerning the weight of cargo shipped at Rangoon, the alleged jettison and sale of part cargo, and other matters necessary for the right calculation of the amount of freight and general average due from the cargo to the ship. 23. [Commenced with a list of sums advanced by the char- terer, or his agents, to the master, on account of freight, and continued thus] : — The plaintiff claims that, in order to ascertain the balance of freight now due from the plaintiff to the defendants, in respect of which the defendants have a lien on the-plaintiff's cargo, the said sums are to be deducted from the gross suifl of 11,260Z., the lump freight mentioned in the charter. The plaintiff further claims to deduct the commission as per charter-party due from the ship to the freighter's agent. The plaintiff further claims to deduct the value of his goods thrown overboard by the master of the Norway, and the value of his goods sold by the master as aforesaid. THE NORWAY. 236 The plaintiflF further claims that inasmuch as the Norway 1864. could not carry 3,000 tons dead weight of cargo and did not '^"'p'?'\P' carry the said 3,000 tons as stipulated in the charter, part of the freight otherwise secured by the charter-party was and is forfeited, namely, in proportion to the deficiency from the said 3,000 tons. The plaintiff further claims that in respect of the one-third balance by the charter-party to be paid on arrival of the ship at port of delivery the defendants had no lien, inasmuch as the said sum being payable before delivery of the cargo is not freight. 24. The plaintiff contends that by reason of the premises, the master of the Norway has committed breaches of duty and breaches of contract, for which the ship and freight are respon- sible to the plaintiff, by the provisions of the Admiralty Court Act, 1861, in respect of, amongst others, the following matters, namely : — (a). In wrongfully guaranteeing in the charter-party that the Norway could carry 3,000 tons dead weight of cargo, he the said master well knowing that the said ship could not carry the said 3,000 tons as provided in the said charter. (b). In not loading the ship at the port of loading to such a draft of water as the freighter's agent, in connexion with the Pilot Commissioners, considered safe to proceed to sea, as provided for in the charter, and in not asking and waiting for such an opinion from them. (c). In not carrying 3,000 tons dead weight of cargo, as provided for in the charter. (d ). In throwing overboard part of the plaintiff's cargo on the voyage. (e). In selling part of the plaintiff's cargo on the voyage. ( f ). In refusing to discharge in either the Stanley, Albert or Wapping Dock, as lawfully directed by the charterer, and in persisting without lawful excuse in such refusal. (g). In not unloading the ship at Liverpool, the port of discharge, according to the custom of the port, as provided for by the charter-party. (h). In placing the rice of the plaintiff on and in wharfs and warehouses, on and in which goods of a like nature are not usually placed ; thereby violating the requirements of the Merchant Shipping Act Amendment Act, 1862. (i). In wrongfully claiming from the plaintiff for alleged freight and general average contribution a larger sum than was due to him the said master for the same, and in 236 THE NORWAY. 1864. wrongfully detaining the plaintiff's cargo by way of lien ^"pb^i^' ^°^ ^^^^ excessive sum. '- — '- — (k). In wrongfully withholding from the plaintiff parti- culars of the weight of cargo shipped, of the jettison and sale of part cargo, and of other matters necessary for the right calculation of the amount of freight and general average contribution due from the cargo to the ship. (1). In not delivering the rice of the plaintiff according to the contract contained in the bills of lading. (m). In breaking tlie contracts contained in the said charter-party and bills of lading. The prayer was for the Court to pronounce for all damages occasioned to the plaintiff by the said breaches of duty and breaches of contract mentioned in the petition, and to condemn the Norway and her freight in the same and in the costs of the cause. Brett, Q.C., and Cohen, in support of the motion to reject the petition. — As to claims (a), (b), (c), they are put forward as claims under the charter-party. But the plaintiff was a stranger to the charter. He, therefore, would have no right of action at common law, and obtains none in the Admiralty Court under the statute: St. Cloud {a). Nor are these covenants in the charter-party incorporated in the bill of lading by the reference " payment of freight as per charter-party:" Smith v. Sieveking(b); Chappel v. Comfort (c). The plaintiff suffered no damage by breach of the guarantee as to the amount of cargo. There is nothing to show that he or the shipper ever speculated upon dealing with a larger quantity of rice than that specified in the bills of lading. As to (a), (b), (c), (d), (e), the claim is made for goods not carried into Eng- land, and therefore not within the terms of the 6th section of the Act. As to (d), (e), it is pleaded that the goods were thrown over- board or sold, but not that they were so done wrongfully. As to ( f ), neither charter-party nor bill of lading refers to any particular dock. As to (k), the master is under no legal obligation to communicate particulars. The assignee of the bills of lading must tender what is due. As to (d), (e), (g), (I), (m), the plaintiff cannot sue for damage to his goods, or for breach of contract, whilst the master has his lien for freight, and he had a lien for one-third of the balance of 1 • . legal sense. owner be only temporarily absent from this country ammo re- vertendi, no action by the material man will lie against the ship. Then, as to the second question, the order of priority between the mortgagee and the material man, I think I shall be able to deal with it most satisfactorily, if, in the first instance, I con- sider the position of each separately. The essential element of a mortgage is the security. The mortgagee may take the covenant of the mortgagor, but this is only as collateral security; what he mainly relies on is the ship as the security. As soon as the deed is registered, his right to his security is fixed, and no subsequent act of any third person can displace it, except a lien entitled to precedence. Whether a material man has a maritime lien shall be presently considered. This position of the mortgagee of a ship, that of a secured creditor, has been always recognized in the Courts of Common Law, as was pointed out in the argument ; it is now fully established in the Admiralty Court also, for by the llth section of the Admiralty Court Act, 1861, the Court has jurisdiction (to be exercised in rem or in personam) over any claim of any mortgagee duly registered. The material man, by the law of some countries, has a lien upon the ship, and in very early times he could maintain a suit against the ship in the Admiralty Court. But the decision of the Privy Council, in the case of the Neptune (b), given in the year 1835, took away the last vestige of Admiralty jurisdiction in the case of necessaries; and from that date till the recent statutes, the material man had no locus standi whatever in the Admiralty Court. His only remedy was in the Common Law Courts ; and there, unlike the mortgagee, he could proceed only against the shipowner, not against the ship. This state of things was altered by the 3 & 4 (o) 8 Ell. & BI. 789. (6) 3 Knapp, 94. 246 THE PACIFIC. 1 864. Vict. c. 65, s. 6, which gave the Court jurisdiction over claims for "" . ' ' necessaries supplied to a /oreigrw ship; but that statute not ap- plying to British ships, the 24 Vict. c. 10, s. 5, gave jurisdiction over claims for necessaries supplied to any ship, subject to two provisoes — that the supply should have been made elsewhere than in the port to which the ship belongs, and that at the date of the institution of the suit the shipowner should not be domiciled in this country. These enactments may seem diverse, but the reason for them is plain and uniform. Against the foreign vessel, a real action is given to the material man in all cases, because the owner is assumed to be beyond the jurisdic- tion. And it is also denied against a British vessel, in case the necessaries have been supplied in the home port, because the presumption is that the supply was made upon the personal credit of the owner, who would there be known and trusted. The 5th section In short, the remedy against the ship is given only where a per- fers no n^ari-"" sonal action against the owner would be fruitless ; and not even time lien, but then, where the supply is to be assumed to have been made on (under condi- his personal credit. The material man, therefore, by the mere tiong}tosuethe f^gj q( jjjg supplying necessaries, in no case obtains the ship as The merchant ^ security Until he institutes his suit in this Court ; and, in the suing the ship, case of a British ship (like the present), he may never obtain it subject to any ^t all, if, by reason of the owner having a doraicil in this country, registered jhe Suit cannot be instituted. This, I think, shows that the mortgage. . ... material man has not a maritime lien ; for a maritime lien ac- crues from the instant of the circumstances creating it, and not from the date of the intervention of the Court. Applying these observations to the present case : on the 12th of December, 1861, the defendants, by registering their mort- gage, acquired the ship as a security; and at that time the plaintiffs, though they had supplied necessaries, had not insti- tuted a suit, and therefore had no lien upon the ship. On the 4th of February, 1864, the plaintiffs arrest the ship and thereby acquire the res as a security ; but this res was then subject to the mortgage of the defendants. Under these circumstances, the plaintiffs must take the ship subject to the incumbrance upon it, unless the Act clearly prescribes that the claim of the mate- rial man shall override that of the mortgagee. But of this there is no trace in the Act. It was urged that the Court will follow equitable principles in determining the priority of incumbrances, and that the mort- gagee, if he has had the benefit of the supply of necessaries, must be postponed to the material man, in the same way as in bottomry the first bondholder ranks after the secctt. jf his argument is not without weight ; for in ^effacmeeJiMihia Irin- THE PACIFIC. 247 ciple, the law of several countries gives to the material man a 1864. lien upon the vessel. But the answer is, that this was not the ifarchU/22. view of the British Legislature as expressed in this Act. The Act, as I have before stated, gives no lien to the material man, but only a right to proceed against the ship. For these reasons, I must hold that in this case the mortgagee is entitled to be paid in preference to the material man. I should add, that I dissent from any observations in my judgment in the Skip- with (a) which may not be reconcilable with this judgment. Burchett, proctor for the plaintiffs. Cotterill Sf Sons, solicitors for the defendants. in ti)e =|3ri6g Countil. Present— -Lord Kingsdown. Lord Justice Kxight Bruce. Lord Justice Turner. THE HASWELL. Collision — Pleading — Evidence — Allegata et probata. In a cause of collision the plaintiff is only entitled to recover secundum allegata et probata. Where the plaintiffs pleaded that the collision was caused by the defendants' vessel having " suddenly put her helm a starboard ;" and the evidence given in support of the petition was, that the collision was caused by the defendant's vessel having ported, instead of continuing her course under a starboard helm : Held, by the Court of Appeal, affirming the judgment of the Court below, that the evidence could not be applied to the statement in the petition, and that the plaintiffs therefore were not entitled to recover. Appeal dismissed, but without costs, THIS was an action brought by the owners of the steamship February 18. Stockton against the steamship Haswell in respect of a collision which occurred between the two vessels oflF Coal House Point, in the River Thames, about 11.30 p.m. on the 22nd of January, 1863. Both vessels were on a voyage from the North to London. (o) 10 Jur., N. S. 445. B.L. 248 THE HASWELL. 1864. The petition was as follows: — February 18. 1. The Said ship or vessel, Stockton, is an iron screw steamer ~ of the burthen of 450 tons, belonging to the port of Stockton, in the county of Durham, and at the time of the collision herein- after mentioned was manned by a crew of fourteen hands exclu- sive of her master. 2. That on the 21st day of January, 1863, the Stockton left the port of Stockton aforesaid, bound for the port of London, laden with a cargo of iron, lead and other merchandise. 3. That about 11.30 p.m. of the 22nd day of January, 1863, the Stockton in the prosecution of her said voyage while off the Lower Hope Point in the River Thames passed the said steam ship Haswell, which was also bound for the port of London, 4. That the night was dark and cloudy, and the Stockton's proper lights, to wit, a bright light at the mast head, a green light on the starboard side, and a red light on the port side, were burning brightly, and so continued until the time of the collision hereafter mentioned. 5. That when the Stockton had arrived abreast of Coal House Point in the River Thames, the wind at the time blowing a fresh breeze from the west-south-west, and the tide being half flood, her engines were at half-speed and her helm was put hard a-port for the purpose of bringing her up on the north side of the river, below Coal House Point. 6. That when the helm of the Stockton was put hard a-port she was heading south-west, and she continued at half-speed, until her head came round to north-north-west, when her engines were stopped, she having suiEcient way on her to take her to the north shore. 7. That when the Stockton's helm was put hard a-port, the three lights of the Haswell were plainly seen by those on board the Stockton about a quarter of a mile below the Stockton, but when the engines were stopped, the starboard light of the Haswell disappeared, and as she was fast nearing the Stockton, the master of the Stockton when she was about 200 or 300 yards distant hailed her to reverse her engines, but she nevertheless continued her course, until she came to about 50 yards from the Stockton, .when she suddenly put her helm a-starboard, and im- mediately after ran into the starboard side of the Stockton, which at the time was motionless, and without any way upon her, about 65 feet from her taffrail, cutting through three plates of her side, her covering board and three planks of her main deck, carrying away her starboard main rigging and doing her other considerable damage. 8. That the master of the Stockton, finding that she was THE HASWELL. 249 making water fast, ran her ashore on the south side of the Lower 1864. Hope, and having stopped the leak as well as he could and got February 18. her afloat again he proceeded towards Gravesend, where the Stockton arrived at about 2 a.m. of the 23rd day of January, 1863, and shortly afterwards proceeded up the river, and arrived at her discharging berth at 2 p.m. of the same day. 9. That the aforesaid collision, and the loss and damage con- sequent thereon, were occasioned solely by want of skill or the neg- ligence or other misconduct on the part of those on board and in charge of the Haswell, and especially in their not having kept out of the way of the Stockton, as they ought to have done, and no blame whatever in respect thereto is imputable to the master or to any of the crew of the Stockton. The answer on behalf of the Haswell alleged in substance, that about a quarter past eleven p.m. of the said 22nd of January, when abreast of Lower Hope Point, going at half-speed only, she was overtaken and passed on her (the Haswell's) port side by the Stockton, both vessels then heading about S.W. ; that there was a great number of vessels at anchor along the north side of the Lower Hope Reach, which rendered it necessary for all vessels passing either way to keep towards the south shore ; that both the vessels continued the same course for about a mile after the Stockton had passed the Haswell, in the course of which the Stockton was carefully watched by those on board the Haswell, and was observed to have slackened her speed, as she did not continue to gain on the Haswell as she had done before ; that in consequence thereof, the master of the Haswell caused her engines to be stopped once or twice to let the Stockton get well a-head, in order that no mischief might happen if the latter vessel should have to port her helm ; that as the Haswell got nearly abrea.st of Coal House Point she altered her course two points, viz., to W.S.W., so as to turn the point before making her course through Gravesend Reach. That after this alteration the Stockton was about four points on the port bow of the Haswell, and about 150 yards distant from her. That the helm of the Haswell was then steadied, and about a minute or two afterwards the helm of the Stockton was also put to port. That those on board the Haswell at first thought that the Stockton was also making a course for the Gravesend Reach ; but finding that-she continued under a port helm until her green light opened, and she was two points on the port bow of the Haswell, at a distance of fifty yards, they immediately stopped her engines, and put her helm to starboard in order to pass astern of the Stockton ; but that almost immediately afterwards, perceiving s2 250 THE HASWELL. 1864. that she would not pass clear (in consequence, as it now appears, February 18. of the Stockton having suddenly stopped her engines), those on board the Haswell reversed her engines full-speed and put her helm hard a- port. That, nevertheless, before stern way could be got on her against the flood-tide, the stem of the Haswell struck the starboard side of the Stockton a little abaft the midships, and the Stockton, apparently under her port helm, came down the starboard side of the Haswell, went under her stern, and ran aground on the south shore. At the hearing of the cause in the Admiralty Court on the 9th July, 1863, Andrew Spence, the master of the Haswell, was called in support of the petition, and in the course of his exami- nation in effect stated, — that after the Haswell had starboarded her helm (as alleged in the seventh article of the petition), she ported when at a distance of about twenty or thirty yards from the Stockton, and that, iri his opinion, it was this that caused the collision ; and that had the Haswell continued under the influ- ence of her starboard helm, she would have avoided the Stockton and gone astern of her. No other witnesses were called, and Brett, Q.C. (Dr. Spinks with him), for the defendants, sub- mitted that the case of the plaintiffs, .as made out by such evidence, was entirely at variance with that set up in the petition ; and that unless it was intended by further evidence to alter the state of facts deposed to by Andrew Spence, the plaintiffs could not recover, as their proofs were not secundum allegata. Dr. Deane, Q.C, and Dr. Wamhet/, for the plaintiffs, contr^. Judgment. Dr. Lushington. — I never remember in the course of my experience an objection of this kind having been raised at this stage of the cause; but there is no reason, if the objection, can be supported on legal grounds, why it should not be urged upon the Court at the close of the plaintiffs' case. The question, I apprehend, which I now have to decide is this : assuming the case of the Stockton to be that given in evidence by her master, whether it be good, or whether it be bad, is this case covered by the seventh and ninth articles of the plaintiffs' petition, for these are the only two articles which now require consideration. Now as I understand the case made by the master of the Stockton, it is this, — that he purporting to cross over from the south to the north shore, and to anchor his vessel just below the Coal House Point, and perceiving the Haswell to be dead astern of him, proceeded to port his helm and to go across ; and the fault that he finds with the Haswell most explicitly is this,— that THE HASWELL. 251 either she did not keep her course, or that she did not starboard 1864. her hehii, 1 think that the fault he imputes to the Haswell is February 1 8. in substance, — that she ported her helm, but still he says that she might have escaped the collision if she had simply kept her course ; on the other hand, so far from attributing the collision to the Haswell having starboarded her helm, he distinctly states the contrary, for he says that that was the measure which she ought to have taken, and which would have avoided the col- lision altogether. Now that is the plaintiffs' case on the evi- dence. Now let us see what is the case as stated in ihe seventh article of the petition. 1 must admit in these matters a very consider- able degree of elasticity has generally been allowed in plead- ing, because of the difficulty from time to time of professional gentlemen getting, or distinctly understanding, all the fucts which are requisite to make out the* case ; and 1 should be most reluctant to put an end to a plaintiff's case if there were merely common and ordinary errors in the petition ; but at the same time I should not be at liberty to allow a case to go on if the plaintiff's evidence is utterly irreconcilable with the case stated in his pleading. Now what is the substance of his pleading ? why, that when the Stockton's helm was put hard a-port the three lights of the Haswell were plainly seen by those on board the Stockton about a quarter of a mile below the Stockton ; but when the engines were stopped — that appears to have been done shortly afterwards — the starboard light of the Haswell disappeared, and as she was fast nearing the Stockton, the master of the Stockton, when she was about 200 or 300 yards distant, hailed her to reverse her engines, but she never- theless continued her course until she came to about fifty yards fi'om the Stockton, when she suddenly put her helm a-starboard, and immediately after ran into the staiboard side of the Stock- ton. Now it is abundantly clear here, that the fault attributed to the Haswell is not that of having ported her helm. I think I can draw no other conclusion from this statement, but that it was intended to charge the Haswell with having continued her course, and having suddenly- put her helm to starboard. Now, I am of opinion, though I say it with considerable reluctance, that the evidence cannot be made to fit with this article by any ingenuity. With respect to the ninth article, it is simply the article alleging general negligence on the part of those on board the Haswell, especially in their not having kept out of the way of the Stockton ; and this is too general a charge for the point I am now considering. I am under the necessity, therefore, of saying, that the evidence is irreconcilable with 252 THE HASWELL. .1864. the petition; upon this evidence, I cannot say that the Has- Fehruary 18. well has Occasioned the collision in the manner stated in the petition. I must pronounce accordingly against the plaintiffs. From this decision the owners of the Stockton appealed. Dr. Deane, Q.C., and Dr. Wamhey, for the Stockton, endea- voured to distinguish the case from the^«n(a); East Lothian (b). Judgment, Judgment affirmed, but without costs. Brett, Q.C., and Dr. Spinks, for the Haswell. Lord Kingsdown, in delivering the judgment of the Com- mittee, said: — It is not without regret that their Lordships feel themselves compelled to affirm the judgment which the Court below pronounced, but they feel it necessary to adhere to the rules of pleading which have been established, and which appear to them to be essential to the due administration of justice. They feel it impossible, as the learned judge of the Court below stated, by any ingenuity to reconcile the evidence given in the case with the statement contained in the petition ; and they must, therefoie, affirm the judgment. At the same time, as the effect of it may be, though their Lordships do not say that it is, to shut out the real justice of the case, they will advise Her Majesty to affirm the judgment, but not give any costs of this appeal. Preston Sc Ley, solicitors for the appellants. Deacon ^ Son, proctors for the respondents. (a) Lushington, S5. (i) Lushington, 241. THE HAMBURG. 253 1864. March 16. hx t||c 33rib8 Council. Present — Lord Chelmsford. Lord Kingsdown. Sir John Coleridge. THE HAMBURG. Bottomry-bond on Ship, Freight and Cargo — Obligation of Master to trans-ship — Duty to communicate with Owners of Cargo — Validity of Bond tried by Law Maritime — The Bonaparte, 8 Moo. P. C. 459, explained. Where a bottomry-bond is made payable upon arrival at the ship's port of desti- nation in England, the validity of the bond is triable by the general maritime law as administered in England, and not by the law of the ship's flag, or the law of the place where the bond was executed (a). If there are means of repairing the ship at the port of distress, the master has no obligation to trans-ship the cargo. The character of agent for the owners of the cargo is imposed upon the master solely by the necessity of the case. The master of a ship, therefore, has not authority to hypothecate the cargo, if in the circumstances of the case it is reasonably practicable for him to communicate with the owners before doing so ; and if he hypothecates the cargo in such circumstances without so com- municating, the bond, though given and taken bon^ fide, is not binding upon the cargo. BOTTOMRY. This cause was instituted in the Admiralty Court by the holder of a bottomry-bond, granted by the master of the Hamburg, upon ship, freight and cargo, under the circumstances hereinafter stated. The cause went by default against ship and freight ; but the owners of the cargo appeared, and contested the validity of the bond. The Hamburg, a schooner, belonging to the port of Hamburg, in the Hanseatic League, was, while lying in the port of Grey- town, Nicaragua, by a charter-party there made on the 15th of July, 1861, chartered for a voyage from Grey Town to Liver- pool, the master to sign bills of lading as presented to him. On the voyage the ves^sel was forced to put into the island of St. Thomas to repair sea-damage. The cargo consisted of 90 tons of Brazil wood, 3 bales, 2 barrels, and 24 cases of India-rubber, 9 seroons of indigo, and 1 case of turtleshell. The vessel arrived at St. Thomas on the 25th of April, 1861. The master imme- diately reported himself to the Hanseatic Consul, and in all the subsequent transactions (survey, repairs and bottomry) acted under his directions, and with his public official sanction. On the day of arrival (the 25th April) the Consul appointed three (a) See Lloyd v. Guibert, Law Rep., jiany v. Shand, 3 Moore, P. C, N. S. 1 Q. B. 115; Neptune, 3 Knapp, 115,et 272. seq. ; also Peninsular and Oriental Com- 254 THE HAMBURG. 1864. surveyors, who, after survey of the ship, recommended the cargo March 16. to be discharged, in order to examine the extent of the danoages the ship had received. The cargo was accordingly discharged, and on the 6th of May, after a further survey, the surveyors recommended extensive repairs to the ship, estimating the same at 4,820 Spanish dollars, not including " extra work which might be found necessary after repairs had commenced." On the same date the surveyors estimated the vessel, with tackle and apparel, in her then state, to be worth 2,000 Spanish dollars, and no more. The master meanwhile had applied for advances to the firm of Z. T. Levy & Co , of St. Thomas, by whom the ship had been chartered, on account of the owners, for the outward voy- age ; but they declined to have anything to do with the ship, and he then constituted the firm of Paulsen & Co. agents for the ship. The repairs ordered by the survey of the 6th May were set in hand immediately, and were completed on the 6th of July. The master then again applied to Levy & Co. to advance him money upon drafts on the owner of the ship, and also to other merchants, but without success; and on the 9th of July he advertised for the loan of 6,000 dollars on bottomry of ship, freight and cargo. The only tender made was by Bartholomei Lange, which was accordingly accepted, and eventually, on the 24th of July, Mr._Lange advanced 7,592 dollars at a premium of 33| per cent,, upon a bond of that date, on ship, freight and cargo, executed by the master, and made payable ten days after arrival at Liverpool. The bond contained the following clause : — " For the due fulfilment of the foregoing, I bottomry and hypothecate my said ship Hamburg, with her appurtenances, freight, and the cargo on board ; and I confer on my said cre- ditor all rights and privileges which the laws and customs of the sea impart to a bottomry creditor; and I submit myself, as also my said ship, with her appurtenances, freight and cargo, to the laws, statutes and usages of the sea, in truth and good faith." The ship having re-shipped her cargo, then sailed to Liver- pool, and arrived there on the 13th of August. An action was then instituted by the plaintiff, Alexander Duranty, of Liverpool, the indorsee of the bottomry bond, and the ship and cargo were arrested. Proceedings went against the ship and freight by de- fault. The owners of cargo appeared, and became defendants in the cause. The ship was sold, and the net proceeds amounted to 503/. The net freight was 201 Z. The total amount of the bond, including premium, was 2,154Z., leaving therefore, after application of the proceeds of ship and freight, a balance of 1,449/. unpaid. The cargo was valued at Liverpool at 895/. only. THE HAMBURG. 265 The bond accordingly exceeded the entire value of the property 1864. hypothecated. " March 16. The defendants, in their answer alleged, that, under the cir- cumstances (of the market value of the ship, freight and cargo being so much less than the amount for which the bond was given), the master ought not to have hypothecated the cargo ; but that he ought to have trans-shipped it for the purpose of conveyance to England, or to have unshipped it at St. Thomas's, or to have awaited the orders of the defendants. They further alleged that though the owners of the cargo all resided in Lon- don, and a mail steamer ran between St. Thomas's and England regularly twice a month, yet that the master did not commu- nicate with the defendants, or any of them, before hypothecating the cargo, as he was bound to and might easily have done. The plaintiff', in his reply, alleged that the master, immediately on the ship's putting into St. Thomas's, placed himself in com- munication with the Hamburg Consul, as he was by the law of Hamburg required to do, and all proceedings respecting the vessel were under the sanction of the said Consul ; that by the law prevailing at St. Thomas's there was a lien on the Hamburg for her repairs and other necessaries supplied to the vessel, and the Hamburg could not have sailed from St. Thomas's without duly paying for the same ; that, by the law of Hamburg, the master of a Hamburg vessel is not allowed to trans-ship his cargo, unless his vessel cannot be repaired ; that neither by the law prevailing at St. Thomas's, nor by the British law, nor by the law mari- time, was the master, in the circumstances of this case, bound to have trans-shipped his cargo, or to have unshipped it and left it at St. Thomas's ; and that neither by the law of Hamburg, nor by the law prevailing at St. Thomas's, nor by the British law, nor by the law maritime, was the master of the Hamburg, in the circumstances of this case, bound to have communicated with the owners or consignees of the cargo before hypothecating the same. These allegations were put in issue by the defendants in their rejoinder. From the evidence in the cause it appeared that, during the stay of the vessel at St. Thomas's (25th April — 24th July), the master had not made any attempt to communicate with any of the consignees of the cargo. In his examination he deposed that he was not aware of any such obligation, and that he had done as the Consul had directed him, and that he did not in fact know the addresses of all the consignees. The owners of the cargo (the present defendants), it appeared, were three firms ; viz., Jndah Hart & Co., J. C. White & Son, and Friihling & Goschen, ail of London. There were in all seven different bills of lading for the cargo. All made the property deliverable in 256 THE HAMBURG. 1864. Liverpool ; five (Juan de Mesnier and Miguel Cordeirolo, ship- March 16. pars) made the property named, Brazil wood, &c., deliverable to J. Hart & Co. or assigns; one (De Barruel, shipper), made thir- teen cases of India-rubber deliverable " to Messrs. J. C. White & Sons or their assigns;" and one (Julius Wolf, shipper) made 830 sticks Brazil wood deliverable " unto order or assigns ;" this last bill of lading was subsequently, and without the know- ledge of the master, indorsed to Friihling & Goschen. Of each of these bills of lading the master had a duplicate on board in his possession. The average length of the passage for mail steamers between St. Thomas and England is fourteen days. While the Ham- burg was at the island, the mail steamers left St. Thomas for England, on the 29th April, 14th May, 29th May, 13th June, 29th June, 15th July; the mails were due in London on the 14th and 29th of each month ; and the return mails were made up in London on the 2nd and 17th of each month. From an affidavit of a Mi-. Cameron, of St. Thomas, filed on behalf of the defendants, it appeared that, " in the month of May, 1861," a ship called the Pioneer was lying at St. Thomas bound for England, partly laden with timber ; that she was un- able to fill up her cargo at St. Thomas, and on the 11th of July, 1861, sailed for Santo Domingo for the sole purpose of com- pleting her cargo there ; and that she could have carried the ninety tons Brazil wood from the Hamburg. Also, that the remainder of the cargo of the Hamburg, viz., the India rubber, indigo and turtleshelJ, might have been sent on by the mail steamer. On the part of the plaintiff it was proved, that the money was advanced in good faith on the current rate of bottomry, and was in fact expended on the repairs and other necessary dis- bursements in respect of ship and cargo. They also produ<:ed evidence that, by the law of Hamburg, the master of a Hamburg vessel arriving in distress in a foreign port, is bound to place himself in communication with his Consul, and to act in all things by his directions; that by the same law, the master had in the circumstances no right to trans-ship, and no obligation to communicate with the owners of cargo ; and that the under- writers on ship in Hamburg always require the directions of the official surveyors to be followed, -Evidence was also given that, by the Danish law, which prevails at St. Thomas, there was a lien on the ship for the repairs done. The defendants on the other side produced in evidence an affi- davit of Dr. Dumenberg, of Hamburg, councillor at law and jurisconsult, in which he declared his opinion to be that, by the THE HAMBURG. 257 Hamburg law, the master is bound to correspond with the 1864. owners or consignees of cargo before bottomry, if he has an March 16. opportunity to do so. It was also therein stated, that by the Hamburg Statute Law (Art. 3, 4, stat. p. ii. tit. 18) it was de- clared, that a master who wilfully takes bottomry for an amount exceeding the value of objects hypothecated without urgent necessity is to be punished, and that the owners are not liable on such a bottomry bond to a further extent than the value of the property hypothecated. But it was further enacted by the same law (Art. 3, stat. ii. 14), that in case a ship suffers damage on the course of her voyage, so as to be compelled to put into a port of distress, it is to be decided by the master, after due communication held with the owners of the cargo, whether the vessel has to be repaired and the cargo forwarded with the same, or whether the cargo has to be trans-shipped or laid up at the port of distress. The inference drawn by the deponent from these enactments of the Hamburg law was, " that the master who repaired the vessel and hypothecated the cargo for a sum which, as he doubtless knew, would nearly double the value of the cargo when arrived at her port of destination, when the agent for the owners had refused to advance funds for the repairs, so that the master must have been aware of the sale of the vessel becoming unavoidable, notwithstanding the bottomry, and also, besides, neglected to communicate with the owners of the cargo, acted clearly contrary to the interests of the cargo and thereby vio- lated his duty as agent of the consignees of the cargo, which would have been to trans-ship the cargo, or, if this could be done with less expenses to the cargo than by hypothecating the same, to warehouse it at St. Thomas's, or at least to commmu- nicate on the subject with the consignees." The cause came on for hearing in the Admiralty Court on the 24 th March, 1863. Milward and Lushington for the plaintiffs. — Upon the survey of the 6th, May, the master had to make up his mind what to do. There is no proof that at that date there was opportunity to trans-ship. But in no case is there an obligation on the master to trans-ship: Gratitudine {a) ; Shipton v. Thornton (h); Lord Cochrane (c) ; Bonaparte {d) ; Grey v. Gibbs (e) ; Matthews v. Gihls (/). The master on that date (6th May) elected to repair, and the repairs were immediately begun. Looking to the date (o) 3 C. Rob. 262. (rf) 3 W. Rob. 308. (6) 9 Ad. & Ell. 314, 332. (c) 2 H. & N. 22. (c) 2 W. Rob. 334. (/) 3 Ell. & Ell. 282. 258 THE HAMBURG. 1864. and all the circumstances, there was no duty cast upon him to March 16. communicate with the owners of the cargo, before so commencing to repair. The Bonaparte (a) only decides that a bond would be bad against cargo, if before the repairs were in point of fact commenced, there was time to communicate with the owners of cargo, and the master did not so communicate. In no case has a bond been pronounced void against cargo for want of «onnmi-« nication with the owners ; the cases decided are all in favour of the bond : Gratitudine (b) ; La Ysabel (c) ; Lord Cochrane (d) ; Cargo ex Sultan (e); Olivier (f). The master knew the names of the consignees, but not their addresses ; and he did not know that the consignees were the owners of the cargo. The Ori- ental (g) is the only reported case in which a bond on ship has been held bad for want of communication with the ship-owner; and the relation of the master to the ship-owner is very different from his relation to the owners of cargo. Neither is there proof that at the time of executing the bond the master, as a reason- able man, must have known that the bond would exhaust ship, freight and cargo ; and the subsequent event ought not to in- validate the bond : Gratitudine (A). The master was bound by the Hamburg law to obey his Consul ; and he did so. In all the circumstances of the case it would be inequitable that the bondholder should lose his money, which had been advanced in good faith. The Queen's Advocate (Sir R. Phillimore, Q. C.) and Dr. Tristram, for the defendants. — The general duty of the master to communicate, or to attempt to communicate, with the owners of cargo before subjecting it to a bottomry bond is settled by the decision of the Privy Council in the Bonaparte (J,). Here all the circumstances of the case pointed to the duty of such communication ; the values of the property, the extent of the repairs, the facility of communicating by regular mails. The authority of the master of the ship to act as agent for the cargo in a port of distress is limited by the necessity of the case, and it is only to be exercised for the benefit of cargo. The bond is bad because when made there was no reasonable pro- spect of benefit to arise therefrom to the owners of the cargo : Gratitudine (^k) ; Duncan v. Benson {I). The case is governed by the law maritime : Eliza Cornish {m). The point still seems (a) 8 Moore, P. C. 472. (g) 7 Moore, P. C. 398. (6) 3 C. Rob. 240. (ft) 3 C. llob. 265. (c) 1 Doilson, 275. (i) 8 Moore, P. C. 473. (rf) 2 W. P.ob;334. (A) 3 C. Rob. 258, 261. (e) Swabey, 504. (t) 1 Exch. 557. (/) Lushington, 484. (n.) 1 Spinks, Eccl. & Adtn. 45. THE HAMBURG. 259 open, whether there may not be circumstances in which the 1864. master is bound to trans-ship ; if in any case certainly in this. March m. [They also commented on the cases cited by the other side.J Lushington replied. Cur, adv. vult. On the 31st March, 1863, Dr. Litshington gave judg- Judgment. ment. — This is a cause of bottomry, and the facts necessary to be stated are the following: — The Hamburg was a schooner of 50 Hamburg commercial lasts. Siie was pro- ceeding from Nicaragua to Liverpool with a cargo of Brazil wood, indigo and India-rubber, and in the month of April, 1861, she put into St. Thomas for the purpose of repairing the damage she had sustained on the voyage. On the 24th July, 1861, the master executed a bottomry-bond to a person of the name of Bartholomei Lange, whereby he hypothecated the ship, her cargo and her freight for the sum of 7,692 dollars, and the bond further stipulated for a maritime interest of 33| per cent. ; the total amount of the bottomry-bond therefore, in English money, was 2,154/. The ship having arrived at Liverpool in August, 1861, in the September following proceedings were commenced in this Court against the ship, freight and cargo. As relates to the ship and freight there was no defence, and the bottomry- bond holder became entitled to the proceeds, amounting to 704Z. 17s.; there therefore was a deficiency amounting to about 1,400Z., that being the difference between the amount of the bond and the sum recovered from the ship and freight. For this difference the bottomry-bond holder seeks to render the cargo responsible. The owners of the cargo deny the validity of the bond, and they set forth various circumstances upon which they rely as proving that in law the bond cannot be sustained. ^ Before I commence a consideration of those circumstances, I think' it expedient to state that I shall govern my judgment by reference to the ordinary maritime law. I am well aware that much has been said upon this subject, and that many questions have been discussed, whether the law of the country of the vessel ought or ought not to prevail, and also whether the lex loci contractus ought not to be the governing principle. I ab- stain, however, from going into these questions, and for the following reasons : — In the cage of the Gratitudine (a), an imperial vessel, in that celebrated judgment where Lord Stowell exhausted all the authorities, not a word is said, nor any authority cited, to show that any law should be applied to the case save the (a) 8 C. Rob. 210. 260 THE HAMBURG. 1864. ordinary maritime law. Th?re is nothing mentioned of the lex ^""^ ^^' ioci contractus, nor of the law of the country to which the ship belonged. The same observation applies to the case of the Bonaparte {a), a Swedish vessel, and to many other cases. In this case, therefore, and . for the present, I must take as my guide the ordinary maritime law. The state of the pleading also is so vague, and the evidence so loose and unsatisfactory, that I can take no oth^ course. Whenever any specific law is averred to be the governing law, with sufficient distinctness, and proper evidence produced, I shall be ready to consider the question. I now come to examine the facts alleged by the owners of the cargo as reasons for the invalidity of the bond : I may dis- pose of some of them in a very few words. It is quite clear that the firm of Levy and Company refused to interfere in the con- cerns of the vessel, and left the master to his own resources. I think, also, that there is no reason to conclude that the sum men- tioned in the bond was not expended. These objections cannot be maintained. The two main objections to the bond are as follow: — The first objection is, that considering the value of the entire property, it was wholly inexpedient and improper to have incurred the ex- penses which led to the bond : that the master ought to have trans-shipped the cargo to England, or to have unshipped it at St. Thomas, and to have awaited the orders of the owners. The second point, upon which the main reliance has been placed, is, that considering the values gf the ship, cargo and freight, the master, before incurring those expenses, and signing a bottomry- bond, which bound the cargo as well as ship and freight, ought to have communicated with the owners of the cargo in England, or, at least, attempted so to do. The reply to these averments on the part of the owners of the cargo is, that the master acted under the advice and control of the Consul of Hamburg, and that he was bound by the law of Hamburg so to do ; that by the law of St. Thomas's there was a lien on the ship for the sums ex- pended ; that the cargo belonged to various parties in England, of some of whom the master was ignorant ; that neither by the law prevailing at St. Thomas's, nor by the law of Hamburg, nor by the British law, nor by the law maritime, was the master bound to have communicated with the owners or consignees of the cargo before hypothecating the same. This recital I have made includes matters which I consider I have already dis- posed of. I think it is not necessary to expend much time upon the (a) 8 Moore, P. C. 459. THE HAMBURG. 261 question of trans-shipment, because I am not aware that either 1864. by the law of England, or by any other law applicable to this March 16. case, was the master bound to trans-ship. I think there is suffi- cient to satisfy my mind that the master might have trans- shipped ; but the only effect to be attributed to that evidence is, that it was inexpedient as regards the interest of the owners of the cargo, that the master, having an opportunity to trans-ship, should sacrifice the interest of the owners of the cargo by expending such large sums on the repairs of the ship. Then as to the further facts of this case, it is not alleged on behalf of the bondholder that the master attempted to hold any communication with the owners of the cargo, or that the mer- chant who took the bond made any inquiry on the subject ; indeed, if the master had made or attempted to make such com- munication, the advance of the money upon bottomry would not be prejudiced by reason of the merchant's neglect to make such inquiry. I have already said I must take the law which ought to be applied to this case to be the maritime law as administered in England; it is now my duty to inquire what the law is as re- gards the present case, and one of the chief objections offered to this bond. I apprehend that the leading authority is the case of the Bonaparte, to which I have already referred. It is use- less to go back to prior cases, or to inquire what the law was supposed to be before that decision. Suffice it to say, that the judgment in the case of the Bonaparte, having emanated from the highest tribunal, must be held to have settled the law, and that the only inquiry open to this Court is to ascertain the true meaning of that decision, and then to examine whether the cir- cumstances of this case bring it within that decision. Their Lordships state in substance that before the master executes a bottomry bond binding the cargo it is in general his duty to com- municate with the owners of the cargo, or to attempt to do so. They state that this is not a universal rule but a general rule. The consequence of this judgment is, that in all cases where the owners of the cargo contest the validity of the bond, upon the ground that the master did not communicate with them, this Court must determine whether the circumstances constitute an exception to this general rule. It is not denied in the present case that there was no such communication, or attempt at communication. In considering what can constitute an exception, extreme diffi- culty and uncertainty, rendering the success of the attempt to communicate almost hopeless, must, I conceive, have that eflFect; also the urgency of the occasion not admitting of any delay. There may, no doubt, be many other circumstances which ought 262 THE HAMBURG. 1864. *o operate on the mind of the master when he has to determine March 16. whether he will execute a bottomry-bond binding the cargo, and what circumstances may render a communication with the owners more or less necessary. I am exceedingly anxious in applying that rule to take as correct a view as possible of the facts which will constitute an exception, for it is obvious that by undue rigour in enforcing the rule, great loss may without blame arise to him who advances the money on bottomry, and the general validity of bottomry-bonds may be to a certain extent affected to the injury of commerce. The rule by which the Court must now be guided is certainly not generally known in the various countries where bottomry-bonds are most usually taken. The ancient rule was that the person who advanced money on bot- tomry was only bound to inquire into the apparent necessity of the case, and to ascertain that the money could not be had on personal security ; indeed, a large proportion of the bonds were granted in consequence of advertisements, and the lender under such circumstances made no more than the usual inquiries. In the great majority of cases the lender had no opportunity of knowing more than what the master told him. It is most de- sirable therefore, as the lender will now lose his security on the cargo, if notice has not been given to the owner of the cargo before the bottomry-bond is executed, that he should know what information to require from the master on that head. It is im- possible to define what information the person who intends to advance money upon the security of the cargo must require be- yond this, — that he must ask whether communication has been had or attempted with the owners of the cargo, and if not, why not? And he must govern his conduct as well as he can by the information he receives. Upon this state of facts the non-communication, or absence of attempt at communication being admitted, what is there in this case to amount to a justification ? Here perhaps it may be con- venient to state, according to the evidence of a gentleman who has made an affidavit in this case, what is the course of the post. The Hamburg arrived at St. Thomas on the 25th April, 1861, There was a mail to England every fortnight, occupying fourteen days each way. The mails left St. Thomas April 29th, May 14th, 29th, June 13th, 29th, and arrived at various dates which I need not specify, but they left London on May 2nd, i7th, June 2nd, 17th, and the bond was granted July the 24th. Now the evidence shows therefore that the vessel arrived be- fore the 29th April, when the mail left. Indeed, on or about the 25th April, the master very properly resorted to the house of Levy and Company, who had formerly chartered the ship. They THE HAMBURG. 263 refused altogether to render him any assistance ; from them he 1864. could expect no advance of money, neither had he any credit with March 16. any other house. All this he must have known very soon after his arrival at St. Thomas. He knew therefore that for repstirs and expenses he must obtain money on bottomry, and though he might not know the precise extent of the damage done to the vessel, he must have been aware that he could not raise sufficient money to pay for repairs and expenses without subjecting to bottomry the cargo as well as the ship. He must have known the ship was of small value. Now, what is said in excuse ? It was argued, and very fairly argued, that if the master attempted to communicate with the owners of the cargo, still it would be very doubtful if he could in any reasonable time have received an answer. This is true; but what says the judgment of the Judicial Committee ? — that there should be, if practicable, an attempt to communicate. Certainly, looking at the dates, this was not impracticable. As to the alleged ignorance of the master as to who were the owners of the cargo, I am of opinion that, with the bills of lading before him, that with inquiry of Messrs. Levy and Company, or of the British consul or Lloyd's agent, he would not have experienced any difficulty in ascertaining the addresses of at least some of them. With regard to any urgency to commence or finish the repairs, no doubt it was most desirable to complete the voyage ; but looking at the nature of the cargo or principal part of it — wood — not of a perishable nature ; it is, I think, im- possible to say that there was any extraordinary urgency. It is true that the master was not bound to trans-ship the cargo according to the principles laid down in the Gratitudine{a). The distress of the adventure constituted the master to a certain ex- tent agent for the cargo. Though this is undoubtedly true, yet I think it is qualified by imposing upon the master the duty of protecting the interests of the owners of the cargo, and this con- sideration brings me to direct my attention to the argument so strongly urged by her Majesty's advocate. Quoting from the judgment of Lord Stowell, in the case of the Gratitudine, he contended that the master had no right to hypothecate the cargo in cases where there was no benefit or prospect of benefit to arise to the owners of the cargo from such hypothecation. That propo- sition is no doubt true, but it is a case which will not often occur. It is therefore my duty to examine the facts of the present case, in order to discover whether there was any, and what, prospect of benefit from the execution of this bond likely to arise to the owners of the cargo. The bond, including interest, is (a) 3 C. Rob. 262. B. L. T 264 THE HAMBURG. 18C4, for 2,154/. Qs 2d. The value of the ship, after the repairs, was March 16. 660/.,— that is the sum for which it is sold here ; before the ' ' repairs, therefore, it was much less, — it could not have exceeded 300Z. The freight is 201/. l-2s. lOd. The master must have known, though perhaps not with absolute precision, what was the value of the ship, but taking the value of the ship as re- paired, and the amount of freight together, the whole sum total is about 761/. 125. lOd. The master must have known that the whole remainder of the amount secured by the bond, viz., about 1,400/., must fall upon the cargo. But the cargo has sold for 895/. It might be that the master had not any accurate know- ledge of the value of the cargo. This may be so, but I think it also true that by a very little inquiry he might have arrived at an approximate value of the cargo, so as to have formed some judgment as to the effect of the bottomry-bond- on the owners of the cargo. Now here was a very large margin, and even if the cargo had been estimated at half as much again as it sold for, still the whole would have been exhausted, and nothing left for the owner. In this state of circumstances, surely the master, acting for the interests of the owners of the cargo, should have paused before he consigned their property to total destruction. It is impossible to conceive a stronger case requiring communication with the owners of the cargo, or at least an attempt to have such communication. On a review of all these circumstances, and looking to the rule laid down by the Judicial Committee, I cannot come to the conclusion that the facts of this case form any exception, such as was contemplated by their Lordships, and as might under an extraordinary combination of facts occur. I must, therefore, adhere to the rule, and hold that this bond is invalid as relates to the cargo. I have entered more at length into the facts of this case and the principles upon which it ought to be decided, because I believe that the rule applicable to these cases has not been generally known. I must admit my own ignorance of it, though I had searched every reported case, and I was not ig- norant alone ; for Lord Cottenham, after time had been allowed, and strict examination made for every inquiry, declared he was not satisfied that any such rule ever existed. That was his judgment in the case of Glascott v. Lang (a). But the necessity of communication, or attempt at communication, is now the established law by which this Court must be governed, and it is of the last importance that this rule should be generally known, for the government of masters in subjecting a cargo to bottomry, (a) 2 Phillips, 310. THE HAMBURG. 265 and for the purpose also of warning those who advance money 1864. upon bottomry of the vital importance of making due inquiries. March 16. I must pronounce against the bond, so far as it regards the cargo, with costs. This judgment was appealed against. Milward and Vernon Lushington for the appellant. — There 1863. were three objections to the validity of the bond as against the ""'" "^ cargo made by the respondents in the Court below. (1) That considering the total value of the ship, freight and cargo, compared with the amount of the money required" for the expenses at St. Thomas's, the master was not justified in subjecting the cargo to the bond. (2) That the master of the ship had not communicated, or attempted to communicate, with the respondents before hypothecating their cargo. (3) That the master had had opportunity of trans-shipping the cargo at St. Thomas's. As to (1) we say that the conduct of the master at St. Thomas's, at the time he ordered the repairs (6th of May, 1861, or at the time he gave the bond, 25th July, 1861), cannot be fairly tested by the results of a forced sale of the property at Liverpool in August following. Again, the fact of the appellant accepting the property as his only security for the repayment of the money advanced by him is strong evidence that the value of the property did not appear manifestly inadequate to meet the bond. And if this be the case, as we say it is, is the security of the appellant who ad- vanced his money bon^ fide to be destroyed 1 Further, the doctrine cannot be sound that a bottomry-bond cannot be enforced against the property of the principal, whe- ther owner of ship or owner of cargo, merely because, looking to the value of the property and the amount of the bond, the agent, the shipmaster, exercised an unreasonable discretion in hypothecating. The doctrine, if true, must apply to the owner of the ship as well as to the owner of cargo, for the master is the agent of either to hypothecate by the policy of the law arising out of the circumstances. Yet there are from time to time many cases in the Admiralty Court of bottomry-bonds on ship, freight and cargo, in which the bond not only does ex- haust the ship and freight, but must have been contemplated from the first as likely to exhaust them ; and these bonds are enforced against the ship and freight and against the cargo. If t2 ' 266 THE HAMBURG. 1864. the alleged doctrine were true, the owner of cargo, appealing to March 16 . the law, that ship and freight must be exhausted before the cargo can be resorted to, might repudiate it also. As to the 2nd objection, we say, that under the circumstances of the case there was no obligation on the master to communi- cate with the owners of cargo. The duplicate bills of lading in his possession gave him no sufficient information as to who were owners. On the other hand, the respondents had notice of the ship having put into a port of distress, and gave no evidence that if applied to they would have advanced money to assist in forwarding the cargo. Nor could an answer to a communica- tion have been obtained in any reasonable time. The survey on which the repairs were ordered took place on the 6th of May, 1S61, and the earliest possible reply to any communication about that survey would have been on the 15th of June. Again, we have express evidence that under the law of Hamburg there was no such obligation upon the master. The counter-evidence contained in the affidavit of Dr. Donnenberg is unsatisfactory, and moreover does not even purport to prove that by the law of Hamburg the lender's security could be void. Article 3, Part II. Title 14, of the Hamburg Statute Law (a.d. 1771), to which Dr. Donnenberg refers as enacting that it is the duty of the master to communicate with the owners of the cargo, is correctly translated as follows : — " In case a ship should suffer damage, and the merchants, the helmsman, and the greater part of the crew should be of opinion that it might be repaired, the captain is bound to get the ship repaired and mended in the very same place, and to bring the merchandise of the merchants to the places unto which he has promised to take it, if God preserves him from misfortune. But, in case the ship may not be mended, the captain then shall transfer the goods to other ships lying at the place, for account and risk of the merchant, in which case he is entitled to the whole of his freight. If, however, the captain cannot find any other vessel, or if he is prevented by other legal reasons, by bad weather and contrary wind, he shall store the goods safely, for account and risk of the mer- chant, and shall receive his freight in the same place, pro rata itineris." The merchants herein mentioned, it is submitted, mean the merchants being actually on board the ship with their goods, such being the custom according to the simplicity of ancient commerce {Oratitudine (a) ), and provision being made in many (o) 3 C. Rob. 267. THE HAMBURG. 267 codes for their consultation in emergencies, as jettison and the 1S64. like. Marchie. The case of the Bonaparte («), on which the judgment in the Court below is founded, proves, on careful examination of the circumstances, only to decide positively that a bond may be invalid against cargo if the master has a considerable interval to communicate with the consignees of the cargo between the time of the vessel arriving in the port of repairs and the time when the repairs are actually commenced. In the present case no such interval occurred. The relation of the master of a ship to the consignees or owners of the cargo is very different from his relation to the shipowner, more especially as concerns the duty of communica- tion before granting a bottomry bond. The shipowner is the master's proper constituent and correspondent ; the master knows his address, is bound to follow his instructions, and at all conve- nient opportunities to furnish him with full information, and seek his advice. The shipowner is also bound by his contract with the freighters to furnish the master with all necessary supplies to enable the ship to accomplish the voyage. On the other hand, the fundamental duty of the master towards the consignees of cargo is to carry on the cargo to destination as soon as possible, in the ship in which it was laden. Of the value of the cargo the master is imperfectly informed, still less does he know the measure of importance of an early arrival, in any particular case, but he knows the general importance of an early arrival, and that delay may lose a market, or cause a breach of contract. Above all, the master has in general no duty to correspond with the owners or consignees of the cargo. Bills of lading, from which he derives his information, are often to " shipper's orders," naming no consignees ; but if consignees are named, their places of abode and business, and other cir- cumstances, are generally unknown to the masters. The con- signees may be many in number, and they may be bare con- signees, having no property in the goods consigned to them, and no authority save to receive them : in any case, they have no duty to advance money to the shipowner or the master (save by s|)ecial contract), and if applied to by the master for that pur- pose, or for directions, they may send no directions and nd sup- plies, or insufficient directions and insufficient supplies, or may send conflicting directions as to selling, trans-shipping or hypo- thecating the goods, or leaving them at the port of distress. Moreover, any mere attempt to communicate with distant con- (ffl) 8 Moore, P. C. C. 459. 26^ THE HAMBURG. 1864. signees not ending in actual and satisfactory communication has ^'"•'^^' ^^- for a result simple waste of time. These circumstances, which are commented upon by Lord Stowell in the Gratitudine (a), and by the present learned Judge of the Admiralty Court in the Vibilia{b) and the Olivier {c), together with the fact, that if cargo is hypothecated in part for ship's expenses, and freed to pay such part of a bond, the owners of the cargo are entitled to recover all monies so paid from the shipowner {Duncan v. Benson {d) ), it is submitted, ought to limit, and in fact do limit by the maritime law of all civilized states, the actual duty of the master to communicate with the consignees of cargo to a few rare and peculiar cases ; and upon such conception of the law bottomry transactions have hitherto been founded. To these considerations it is to be added, that a lender on bottomry secu- rity, who is an entire stranger to the owners of cargo, has no means of ascertaining that the master has had means of com- municating with the owners of cargo, or has neglected or availed himself of the same, except by inquiry of the master, and that such inquiry is futile when the advertisement for bottomry is issued (as in the present case) after all the expenses in respiect of ship and cargo have been incurred, and when neither ship nor cargo can leave the port of distress until such expenses are paid. In the present case it was proved that by the law of St. Thomas there was a lien on the ship for all ship's expenses ; and a lien upon cargo for warehouse rent obtains by general custom in all known jurisprudence. As to the third objection, that the master might and ought to have trans-shipped, the only evidence adduced to show any opportunity to trans-ship the cargo was the passage (e) from tiie affidavit of Mr. Cameron. This statement as to the Pioneer, into the truth of which the appellant had no opportunity to inquire, may well apply to the end of May, 1861, long after the repairs of the Hamburg had actually commenced. The plaintiff had, moreover, alleged in his reply, that by the law of Hamburg the master of a Hamburg vessel is not allowed to trans-ship his cargo unless his vessel cannot be repaired, and that neither by the law prevailing at St. Thomas, nor by the British law, nor by the law maritime, was the master, in the circumstances of this case, bound to have trans-shipped his cargo, or to have unshipped and left it at St. Thomas. (a) S C. Rob. 241. (d) 1 Exch. 5.37 ; 3 Exch. 644. (6) 1 Wm. Rob. 10. (e) Ante, page 256. (c) Lushington, 487. THE HAMBURG. 269 The plaintitf gave evidence of tlie lawr of Hamburg on this 1864. point, and the learned Judge of the Court below held, in his March 16. judgment, that there was not, by the law of England or other- wise, any obligation on the part of the master to trans-ship. We therefore submit, that no reasonable opportunity of trans- shipping the cargo, or wilful negligence of such opportunity, was proved ; that there was no obligation on the part of the master to trans-ship ; and that in any case the appellant, who ad- vanced his money in good faith on the 24th of July, 1861, can- not have his security of that date aflPected by any default on the part of the master in not trans-shipping in the May previous. It is also shown by the evidence, uncontradicted on the part of the respondents, that by the law of Hamburg the master of a Hamburg ship, putting into a foreign port in distress, is bound to obey the directions of the Hanseatic Consul in respect of all extraordinary measures touching ship and cargo. It is evident that not only the master of the Hamburg, but the lender of the money, acted in reliance upon such obligation. The appellant also gave evidence, that by the law of Ham- burg the master of a ship is bound, on putting into a port of distress, to follow the direction of the official surveyors, and that, if they recommend the ship to be repaired, and the master, contrary to such recommendation, sells the ship, the shipowner cannot recover against his underwriters. The respondents, therefore, having taken indorsements of bills of lading of cargo carried by a Hamburg ship had implied notice of such law, and are bound thereby in respect of the bottomry bond. On this ground also, therefore, the master acted rightly in repairing the ship, and in executing the bottomry bond, which should there- fore be held valid. Lastly, the general equity of the case requires that the bond should be upheld. The appellant advanced his money in good faith, in the ordinary course of mercantile transactions, and with ordinary and reasonable care ; by means of that money considerable expenses attaching solely to the cargo of the re- spondents, as well as general average expenses, were defrayed, and also the cargo was brought finally to destination. The Queen's Advocate and Dr. Tristram for the respondents, contra. — First, the Court below was right in refusing to enforce this bond against the owners of cargo, as it was invalidated by the want of communication or attempted communication with them before it was given. It is the master's duty, in the ab- sence of special circumstances to make the case an exception, before hypothecating the cargo, to communicate or attempt to 270 THE HAMBURG. 186k communicate with the owners of it, where there are means of ^°''''*'^- communication, and he knows or can ascertain who they are, and where they are to be found. This is distinctly recognized to be the rule in the Gratitudine (a), a case acknowledged at common law as the leading case on bottomry : Freeman v. F^ast India Company (b) ; Duncan v. Benson (c). There, Lord Stoweil says (p. 273), "the Court would, undoubtedly, be very unwilling to relax the general obligation of masters to correspond with the proprietors (of cargo) where it is practicable." The same rule is also involved in La Ysabel(d), decided by the same Judge. The feasibleness of the rule appears from the conside- rations that the master is not known to the consignee ; he is but the latter's general agent in respect of cargo, and has no power over it except in cases of absolute necessity. And, again, the owner of cargo should have a right to check accounts affecting and payments made out of what is in fact his own money. The rule is also confirmed by the judicial committee in the Bona- parte {e), a decision carefully considered, and which has ever since been acted upon. The appellant now wants to reverse this rule, or that at all events it should be held inapplicable to the circumstances of this case. There is, however, nothing in them to take the case out of the general rule as laid down above. The evidence in the cause shows abundant means of communi- cation, and the master .nowhere says that he could not have learned the addresses of the owners. But it is said, that the money having been advanced bonR fide, it is hard that the lender should lose his security. But before he advanced the money he should have satisfied himself by inquiry that the master was in a position to give a valid bond. Mere bona fides in the lender is not sufficient to make a bond valid : Heathorn v. Darling (/). We also contend, that the law applicable to this case is not the law of Hamburg, but the English maritime law : Tlie Eliza Cornish (g). There is a further ground on which the bond is invalid. A master has no authority to bottomry the cargo unless where there is a prospect of benefit to the owners of the cargo. In the Gratitudine {A) Lord Stoweil says, "In all cases it is the prospect of benefit to the proprietor that is the foundation of the authority of the master. It is therefore true, that if the repairs of the ship produce no benefit or prospect of benefit to the cargo, the master cannot bind the cargo for such repairs." This rule was approved (o) 3 C. Rpb. 240. (e) 8 Moo. P. C. 459. (6) SB.Sc Aid. 617. (/) 1 Moore, P. C. 5. (c) 1 Exch. 537. (g) 1 Spinks, 36. (d) I Dods. 273. (A) 3 C. Rob. 261. THE HAMBURG. 271 by the Lord Chief Baron in Duncan v. Benson{a). There was 1864. no such prospect here at any period of the transaction. March 16. Milward replied. On the 16th of March, Lord Kingsdown delivered the judg- ment of the Committee prepared by Sir John Coleridge. — This was an appeal from the judgment of the High Court of Ad- miralty, which has been pronounced for the invalidity of a bot- tomry bond,j in so far as it applied to the cargo of the ship Hamburg ; and the question arose under the following circum- stances : — The Hamburg was a schooner of fifty Hamburg commer- Facts of the cial lasts. She was proceeding from Nicaragua to Liverpool ^''^^^' with a cargo of Brazil wood, gum, indigo and India-rubber, and on the 26th April, 1861, she put into St. Thomas for the pur- pose of repairing the damage she had sustained on the voyage. On the 9th July the master advertised for tenders for a loan to defray the expenses incurred for the repairs, landing and reship- ping the cargo; and on the 24th July, 1861, executed the bot- tomry bond in question, whereby he hypothecated the ship, freight and cargo for the sura of 7,592 dollars, with a maritime interest of 33^ per cent, the total amount of the bond in Eng- lish money being 2,154/. The ship arrived at Liverpool on the 13th August, 1861 ; in September proceedings were commenced on the bond ; as to the ship and freight no defence was offered, and the bondholder became entitled to the proceed.s of these, amounting to 704Z. 17s. ; this left a deficiency of 1,449/. 3s., for which it was sought to make the cargo responsible, and that has sold for 895/. This sum was the matter in contest ; the learned Judge decided against the claim, and the decision is now appealed against. Two objections were made in the Court below to the claim of the bondholder, and were relied on in the argument on the appeal. It was urged, in the first place, that looking to the small value of the ship, even when repaired, together with the freight, the master was not justified in incurring expenses which led to the necessity of borrowing so large a sum, but ought to have trans-shipped the cargo ; in the second place, it was con- tended, that considering the circumstances just stated, and some which will presently be added, it was, at all events, the duty of the master, before he incurred these expenses and signed a bond which was to bind the cargo, to communicate, or at least (o) 1 Exeh. 557. 272 THE HAMBURG. 1864. attempt to communicate, with the owners of the cargo in Eng- '^'"'''' 1^- land, and to have waited at least a reasonable time for their instructions. The facts now to be stated, which in some measure apply to both objections, but principally to the last, are these : The cargo consisted, as has been stated, of Brazil wood, gum, indigo, and India-rubber, articles not of a rapidly perishable nature ; it was consigned in differeut proportions to three separate houses in London; and their Lordships are not prepared to differ from the learned Judge's opinion that the master, if he were ignorant of the addresses of these firms, had the means at St, Thomas of ascertaining them, or one or more of them, or of procuring a letter to be forwarded to one or more of them. 'I'lie means of postal communication between St. Tiiomas and England are fortnightly; the Hamburg arrived at St. Thomas on the 25th April, and the bond was executed on the 24th July. Mail steamers left St. Thomas for England on the 29th April, 14th and 29th May, I3th and 29th June, and 15th July, and mails for St. Thomas from London were made up on the 2nd and 17th of each of the months of May, June, and July. Had the master, even if he passed over the mail of the 29th April, written by that of the 14th May (which for anything that appears he certainly might have done), he would probably have had an answer by the mail which left England on the 13th June, and might have been expected to arrive at the latter end of that month ; and it appears that the negotiation for the bottomry loan did not commence until the 11th July. It may be added that although the master's conduct is severely reflected on as unauthorized, and wanting in good sense and consideration, no fraud or collusion is imputed to him; indeed, he seems to have acted under advice which by the law of his country he deemed himself bound to be governed 'The case is to \)y a circumstance not entirely without significance as a fact, be decided by /,' , , • t i i • • i ■ , , ■ , t , the general although their Lordships entirely agree with the learned Judge mantune law ^f fjjg Admiralty that the case is to be decided by the general asaditiinistered ■' j o ill England. maritime law as administered in England. Lastly, no fraud is imputed to the lender of the money on the bond. Upon this statement of facts their Lordships have to consider the propriety of the judgment. The first objection was disposed of by the learned Judge very shortly and without difficulty, and, as The master had their Lordships think, quite correctly. The master was certainly no obligation to ^ bound to trans-ship his cargo ; indeed, his first duty was to tians-ship. ■ j ■ ■ ■ i carry his cargo to its destination in the same bottom, unless under the greatest difficulty. The learned Judge rightly thought that the true force of this objection was not as an independent one, but that the circumstances on which it was rested might Bonaparte, THE HAMBURG. 2T3 It have their weight in the consideration of the second; on which, 1864. indeed, the judgment itself, and the argument on the Appeal AJarchia. mainly turned. This brings their Lordships to the consideration of that objec- tion, and it is impossible for them not to perceive that, in dealing with it in the Court below, it has been considered that it derived whatever weight it was entitled to from the decision of this Com- mittee, in the case of the Bonaparte, reported in 8 Moore, P. Case of tlie C. C. 459, which it was supposed had introduced a new rule of decision into this branch of maritime Ihw. Whether this sup- position be correct or not, undoubtedly if in itself that decision was both rightly understood below, and also rightly applied to the circumstances of this case, the learned Judge could only de- termine the case before him as he has done. The important sentence in that judgment is to be found in page 473, and is as follows: — "That it is an universal rule that the master, if in a state of distress or pressure, before hypothecating the cargo, must communicate, or even endeavour to communicate, with the owner of the cargo, has not been alleged, and is a posi- tion that could not be maintained; but it may safely, both on authority and on principle, be said, that, in general, it is his duty to do so, or it is his duty, in general, to attempt to do so." This sentence is followed by one which in the report is printed as follows : — " If, according to the circumstances in which he is placed, it is reasonable that he should, it was rational to expect that he might obtain an answer within a time not inconvenient with reference to the circumstances of the case ; it must be taken therefore, upon authority and principle, that it is the duty of the master to do so, or at least to make the attempt." This passage is obviously inaccurate. The judgment was not written, but appears to have been printed from a shorthand writer's note. It is not, however, difficult to collect what really was said by the learned Judge, and with a slight correction of the text it would stand thus : " If according to the circumstances in which he is placed it be reasonable that he should — if it be lational to expect that he may obtain an answer within a time not inconvenient with reference to the circumstances of the case, then it must be taken upon authority and principle that it is the duty of the master to do so, or at least to make the attempt." That this is the true wording of the passage we have ascer- tained by communicating with the Lord Justice Knight Bruce, who delivered the judgment. It is a most important passage, and the complement and explanation of what goes before. The 274 THE HAMBURG. 1864. March 16. The charRcter of agent for the owners of the cargo is im^ posed upon the master solely by the neces- sity of the case. The master of a ship, there- fore, has not authority to hypothecate the cargo, if in the circum- stances of the case it is rea- sonably prac- ticable for him to communi- cate with the owners before doing so ; and if he hypothe- cates the cargo in such circum- stances, with- out so commu- nicating, the bond, though given and taken boni fide, is not binding upon the cargo. preceding sentence states that it is the duty of the master in cer- tain circumstances to make or attempt to make the communica- tion, and this sentence explains what the circumstances are in which this duty is imposed upon him. It shows what the learned Judge understood by the expression " in general," if such words were used by him. The reporter has accurately stated in his mar- ginal note the general rule established by the decision, though he has unfortunately omitted to correct the press in that portion of the judgment in which it is expressed. In the rule thus enunciated their Lordships are unable to dis- cern any novelty, either in the principle on which it rests or in its application to the case of the hypothecation of the cargo of a ship by the master. The character of agent for the owners of the cargo is imposed upon the master by the necessity of the case, and by that alone. In the circumstances supposed something must be done, and there is nobody present who has authority to decide what shall be done. The master is invested by presumption of law with authority to give directions on this ground — that the owners have no means of expressing their wishes. But when such means exist, when communication can be made to the owners, and they can give their own orders, the character of agent is not imposed upon the master, because the necessity which creates it does not arise. It is clear that the rule as to communication must be either that, in no case and under no circumstances, is it incumbent on the master to communicate with the owners of the cargo; or that, in some cases, and under some circumstances, it is incum- bent on him so to do : either the universal negative or the par- ticular affirmative proposition must hold, and both cannot be true, although one must be. But it has not been contended, and cannot reasonably be argued, that the first proposition is true. Where the cargo belongs to a single individual, known to the master, the ship in a port in the same country, or near to it, in which that owner is resident, the means of communication sure and speedy, the probable delay inconsiderable, the cargo not of a perishable kind, the money to be borrowed so large as to be sure to bring it within the operation of the bond, it could not be contended that the master could properly hypothe- cate it for the repairs of the vessel without first communicating with the owner. Equally clear it is that, where all these cir- cumstances were reversed, no such duty would be incumbent on him. But if the first proposition be false, and the latter true, what is in effect the practical conclusion, but that the question whe- ther a master must communicate or not, is one which can only THE HAMBURG. 275 be decided by the circumstances in each particular case? And 1864. this, which certainly seems consistent with the principle on Marchie. which, as we have already observed, the maritime law makes the master, under certain circumstances, an agent for the owner in respect of the cargo, their Lordships believe to have been recognized by Lord Stowell in the case of the Gratitudine. This was not the precise point for decision in that case ; but no one can read that admirable judgment attentively without per- ceiving that the duty of communication with the owner of the cargo before hypothecation under circumstances, and dependent on circumstances, was familiar to the mind of the great Judge who decided it. Thus in 3 Ch. Robinson, p. 259, " There are other cases also in port in which the master has the same authority forced on him. Suppose the case of a ship driven into port with a perish- able cargo, where the master could hold no correspondence with the proprietor ; suppose the vessel unable to proceed, or to stand in need of repairs to enable her to proceed in time." Again, page 261, "Suppose the cargo to be not instantly perishable, but that it can await the repair of the ship, what is the master to do in the situation before described, being a stranger in a foreign port, in a state of distress without an op- portunity of communication with the owners or their agent — what is his duty under such circumstances?" Again, page 262, " It cannot be said that he is in all cases to wait till he hears from a distant country. The repairs may be immediately necessary ; it may be hoped that the repairs will be far advanced before he can hear from the consignees ; the master may not know the proprietors at all, but only the con- signees ; they may be mere consignees and have no power to direct him, but in the single case of an actual delivery to them ; if owners, they may be very numerous, for in a carrier ship there may be a hundred owners of the cargo, and the master may be in danger of receiving a hundred different opinions, supposing it were possible for him to apply to all : what does the necessity of such a case offer to be done ?" Again, page 266, he answers an extreme case, put at the bar, of a valuable ship with a cargo of a considerable value belong- ing to Dover, being in distress at Calais, and says, " undoubtedly the master should use his utmost endeavours to correspond with the consignees or proprietors ; but a case of instant necessity might occur even so near • the master might not be able to re- ceive their directions; all communication might be interrupted, as it is sometimes for a fortnight or three weeks," &c. THE HAMBURG. 186*. JbnAlS. sans, the Inad m ih^^ c^% is inTaKd Jadsnent That die rale laid do«ni in the case of the Bcmaparte was piopaly applied in that cas^ do person who attends to the &cts can entertain any doubt. There may be uHxe doabt in the (Mesent case, bat die kained Judge has examined ifae evi^nce widi great caie, and appears to as to have arrived at a r^ht con- chision. As to die supposed inconvenience of the rule, their Loid^ps do not forget diat the lender of die money if the party interested in the event of the soif, and not the master. Bat there is no hardship in requiring fiom one who is about to advance a large sum of money under s:ich drcumstaiices, that he should inquire of the mast» whether he bas communicated or made an attem|A to communicate widi die c^r.rrs the circumstances erf' his d^ tress, and what he proposes to do in regard to their goods. And it must be remembered, on the odier hand, tint the owDos of the goods are equally interested, and, unless comma- nicated with, have not the same rreas^ of piotecdi^ their own interests, whidi the lender undoubtedfy Ins. If it be said that a dec'is;e:i in their fdvoor nill tend to increase the difiScuIty o ' proauii^ loans in fiwe^n ports for the n^nir erf" vess^ in dk- tress, it may also be said, on the otho' land, that it fdll tend very mndh to the bmefit of commerce in general, to discourage im|xovident or firaudulent advances. Their Lordships will humbly recommend to Her Majesty that diis judgment be afiBrmed, and the appeal dismissed with costs. Ttibs X Somy proctors for the ajqidlanL Brooks S' OiAoiSf fHtictors for the re^mndents. THE SERAFINA. 277 18C4. THE SERAFINA. Bottomry for I tisurnnce---- Necessity — Maritime Rish. TIk' tnnstev of « ship putting into a foreign port of distress lins not autlioiity to insure tho ship or IVeight for performing tlie residue of the voyage i and hns no authority, thevel'oro, to grant a bottomry bond on the ship to pay for tlie |ireiiiiunis of such insurunoe. A boltonny bond, to cover payment of premiums fur such insurniioe, stipulated that, in ciise of averiige or loss of the ship, the lender slmuld obtain reim- bursement IVoni the underwriters, and should thence repay himself the premiums of insurance, with interest, commission and costs, holding the remainder at the disposal of the master or his principal: — Semblv, that such a bond was also invalid, as not being conditioned to bear maritime risk. BOITORI RY. The (ollowing petition was filed on behalf May lO, 2+. of the piuintifF, Vital Joseph Verbracken, a merchant of liiverpool, iind agent to Messrs. P. Dasse & Co. of Ilavanna : — I. In October, 1863, the Prussian barque Serafina, whilst on a voyage from IVlinititlan to Liverpool with a cargo of general produce, was compelltHl to put into the port of Havanna for repairs. Jacob Hanson, the master, being without fimds or credit, the repairs were effected by money borrowed by him on bottomry security of the firm of P. Dasse & Co., merchants, of Havanna; and, as it was further necessary that the ship and freiajht should bo insured for the said voyage to England, a second bottomry bond was entered into between him and P. Dasse & Co. : translation whereof is as follows : — Ccrtijicatc. " Before us, consul of his Majesty the King of Prussia at Ilavanna, appeared Rlessrs. P. Dasse & Co., merchants, of this town, and Mr. Jacob Hanson, captain of the three-masted Prus- sian vessel Serafina, and declared as follows : — " 1. Mr. Jacob Hanson charges Messrs. P. Dasse & Co. to procure the maritime insurance on the said three-masted vessel Serafina, for the voya^o from Ilavanna to Liverpool direct, for the sum of 3,000/. sterling, representing the value of the hull, keel, apparel and outfit of the said ship. " '2. Mr. Jacob Hanson further charges Messrs. P. Dasse Sc Co. to procure the nuiritime insmance for the amount of 1,050/. sterling, value of the freight of his cargo. "3. Mr. Jacob Hunson binds himself to pay, fifteen days after the safe arrival of the threc-niastod vessel Serafina at the 278 THE SERAFINA. 1864. port of Liverpool, on production of the documents proving that May 10, 24. the above sums have been properly insured to Messrs. P. Dasse & Co., or their order, the premium disbursed by them in pounds sterling, and likewise the profit of said premium, at the rate of I9| per cent. " 4. In case of average or loss of the ship, Messrs. P. Dasse & Co. bind themselves to take the necessary steps to obtain from the underwriters the reimbursement of the insured sums, or cor- responding indemnities, out of which they are to take the amount of premium paid by them, their charges, interest, commission, profits and costs, holding the remainder at the disposal of Capt. Jacob Hanson, or any one else having the right to claim it in his name, lieu and place. " Mr. Jacob Hanson binds himself to pay the amount of the premium and the stipulated profit of 19| per cent, immediately after the extinction of the bottomry bond advanced to the same Capt. Jacob Hanson by Messrs. P. Dasse & Co., and pledges, as he declares by the present, all his goods and personal pro- perty, and the block and the keel of the above-mentioned ship Serafina. " Done in triplicate at Havanna the lltli December, 1863. "Jacob Hanson, " P. Dasse & Co. " The preceding declaration has been written in our presence, and has been read over to the contracting parties, in presence of Monsr. C. E. Reutter and Monsr. Otto Merier, acting as wit- nesses, whose signatures and persons are known to us. " Done at Havanna the 1 1th December of the year 1863. " Chas. E. Reutter, " The Consul of his Majesty " Otto Merier. " the King of Prussia, " Louis Will." 2. In pursuance of this agreement, Messrs. P. Dasse & Co., by their agents in Paris, caused the ship and freight to be in- sured, and paid as premiums the sum of 2,602f. 75c., which, with interest at the rate of 19| per cent., amounts to 124Z. 16s. 2d. 3. The Serafina safely arrived in Liverpool on the 24th day of January, 1864, and on the expiration of fifteen days after ar- rival the plaintiff, being the legal holder of the bond herein sued upon, presented the policies of insurance to the said Jacob Han- son, and required payment of the said sum 124Z. 16,«. 2d., accord- ing to the terms of the said bottomry bond, and ail other condi- tions precedent for the payment of the said money have been performed, but no part of the said sum has been paid to the THE SERAFINA. 279 plaintiff by Jacob Hanson, and the whole of the said sum still 1864. remains due and unpaid to the plaintiff. May 10, 24. 4. The Serafina has been sold by order of the Court, and the gross proceeds amount to 1,220Z. The freight is in the registry, and amounts to 614Z. 3s. 4""■»=*> "•" ° _ 1 • 1 1 n • ■ 1 1 ij of local law or miplied ? Judged by this test alone the critish law would not, procedure. I think, be applicable ; for neither of the parties to this con- tract, which was evidenced by the bill of lading, contemplated (o) 6 B. & S. 100; S. C. Law Rep. (h) Ante, p. 167. IQ. B. 115. (c) 4 Ell. & Bl. 219. ^^^ THE BAHIA. 1864'. the application of British law. Neither of the parties was a A°c" 13' ^'■"'s'^ subject, nor was the port where the contract was made ^- a British port, nor was it intended that the vessel should go to a British port. If then British law be applicable it must be that It was brought in by after-circumstances, irrespective of the original contract. As to this, it was said that though the shippers were American, the indorsees of the bill of lading were British subjects. But this was a mere accident and may be disregarded. Then it was said that the place where the alleged wrong was committed by the master was a British port, and that the lex fori, which has to adjudicate upon this alleged wrong, is British law. Now there is no doubt that in the case of a foreign ship coming from distress of weather within local British juris- diction, both ship and cargo are in many respects subject to British law. They would be so, e. g., in respect of pilot dues, port dues, quarantine regulations and other matters of that de- scription, and also as to any particular enactments whichj by the law of the land, are expressly applicable to ships in general ; but it does not, therefore, follow that the terms of a contract of affreightment of the cargo should be governed by English law. For were this the rule, then if a British ship were found in a French port, her owners would have to submit to French law, and all charter-parties and bills of lading would be governed accordingly. Save therefore so far as the lex loci is applicable ratione loci or ratione fori, I cannot hold that British law is applicable to this case; and I think that a British Court, having to adjudicate with respect to the contract, should adopt the foreign law which had from the beginning been contemplated as binding between the contracting parties. The law of the In the present case, this must be either the French law or the ouglu to prl- New York law, for it was not contended that the law of St. vail. Thomas,' where the charter was made, governed the contract between the master and the shipper. Which then of these two laws ought to prevail ? The facts, on which reliance is placed in order to prove the New York law to be applicable, are, that the bill of lading was made at New York, and in English, that is, the language of New York, and in terms not unusual in American contracts of affreightment. On the other hand, the circumstances in favour of the applicability of the French law are, that the vessel was a French vessel owned by a resident in France, and that the contract was to be finally executed in France, for the port of destination was Dunkirk. Now, if the Court were to pronounce in favour of the law of New York as the lex loci contractus, the practical effect would be that a master of a ship touching at ports of different countries, and taking goods THE BAH I A. 301 from thence, would on his arrival at any intermediate port, or at 1864. the port of destination, find himself and his ship subject at the ^""^ '"■ same time to the different laws of several foreign countries — a '- — '- — ■ result nothing short of confusion. Again, it is to be remembered that the master was but an agent, acting for an absent principal, that principal beirig a domiciled native of France. If therefore the law of the flag of the vessel be adopted, but not otherwise, the shipowner would be able to measure beforehand the character of his duties and liabilities as a carrier, and all the con- tracts of the same nature entered into by his agent abroad would be regulated by a uniform principle. Nor could the shipper have any reason to complain ; for the flag of the vessel would be sufficient notice to him of the law by which his contract of affreightment, if he chose to enter into one, would be governed. The case of Lloyd v. Guibert (a) is a direct authority for this position. Accordingly in the present case, the Baliia being a French vessel, I incline to consider that, so far from inserting by implication into this bill of lading any agreement to accept the law of New York as to the ftS^JBo frights of masters and consignees of cargo as to trans-shipment, &c., the master had no authority to bind the ship-owner to accept the law of New York, and that the shipper must be taken to have known beforehand that, if circumstances like the present should arise, the dispute would have to be settled by French law. I should add that if I were to decide this case by the law of the State of New York, I could not hastily come to the conclu- sion that it was the same as that of England, without some direct proof. However, although my opinion is strongly in favour of the applicability of the French law exclusively, I think it will be more satisfactory if I consider, not only what would be the results according to French law, but what would be the re- sults according to New York law, supposing that to be the same as British law. The laws of both countries (France and England) as to con- tracts of affreightment, however they may differ in particulars, have one object : to do justice to both parties, the master and the owner of the goods ; to secure to each the full benefit of the con- tract, so far as it is not unfair to the other. Suppose, then, a ship, through injuries occasioned by perils of the seas, is forced during her voyage to put into an intermediate port, it would be unjust to the owner of the goods that his goods should be de- tained there an indefinite time ; but, on the other hand, it would be unjust to the master that he should forthwith be prevented from earning his freight. (o) 6 B. & S. p. 100; S. C. Law Rep. 1 Q. B. 115. 302 THE BAHIA, 1864. The question is, within what limits of time, or other conditions, Nov. lo; the laws of the two countries allow to the master the option of Dec. 13. . . , . , . . , ,. • , repau'ing and carrymo- on, or trans-slnppmg or dehvering i French law as Fu'st, then, as to French law. The materials on which the to the duty of ri^i <- ■••i ,ii -i -^i the master to- ^ou't lias to lound its judgment are, (1) the articles in the wards the cargo Code de Commerce: (2) the opinions of the French lawyers on putting into . aportofdis- which have been produced in evidence ; and (3) the decrees of ''^^^" the French Courts in this particular case. As to this last, it is perfectly true that the judgments of the Tribunal of Commerce at Marseilles, the Imperial Court of Aix, and the Court of Cassation (ail given in the action between the underwriters and the shipowners) may not be binding upon the plaintiffs, who are the owners of the cargo, and were not parties. But it is not to be forgotten that the plaintiffs would have been allowed to intervene, and had notice of this liberty in M. Bonnefoi's letter to them of the 4th of March. So, too, it is true that the judgment of the Tribunal of Commerce at Dun- kirk, though given between the parties, is not absolutely conclu- sive in the present case j for it is conceivable that in an action for freight the shipowner may be entitled to full freight, and yet that a cross-action may lie against him by the owner of the goods for damages. I apprehend, however, that the declarations of the French tribunals in each of these several judgments are admissi- ble as evidence to show what the French law is. By the French law, in the event of the ship being forced to put into an intermediate port from injuries received, there is, in the first place, no absolute obligation to re-ship and carry on. That, indeed, is often impossible; the ship may have been lost, or have received irreparable injuries;- 2ndly. There is no abso- lute obligation to trans-ship; the obligation arises only in the event of the ship having been declared innavigable by competent authoiiiy* Code art. 296, 390, 391. 3rdly. There is no uncon- ditional obligation to deliver. The master may, if he think proper, insist on delivering, and then he is entitled to freight pro rati itineris. Code art. 296. In the present case the master did offer to deliver, but only upon terras of his receiving full freight, without even any deduction for freight already paid in advance. This clearly was a demand for more than the master was en- titled to, as was admitted at the bar. On the other hand, the French law allows the owner of the goods, if he think proper, to demand delivery, but in that case requires him to pay the full freight due. Code art. 293, 296. This entire freight the plain- tiffs never offered to pay. They only offered to deposit it with a bank. No French authority was produced to show that an offer to deposit is equivalent to a tender of payment, so as to entitle THE BAHIA. 303 the owner of the cargo to deUvery. The plaintiffs, however, did 1864. also make an offer of payment ; but that so far from being an -^oo- lo. offer to pay the whole freight, less the advances, was not even an ' offer to pay the freight pro ratS, itineris. It was an offer to pay the whole freight, less the expenses of carrying on the cargo from Ramsgate to Dunkirk. A pro ratS, freight is quite a differ- Pro rati ent thing, being calculated upon the distance actually accom- "^"^ '" plished of the whole voyage, and independent of the considera- tion of the expense required to complete the remainder. The plaintiffs therefore were by French law never entitled to delivery. It is true that the master made an exorbitant demand ; but of ^^ff^ neve^"" this the plaintiffs cannot complain, if they were never willing to tendered full pay what was legally due from them. The plaintiffs had in their never entitled possession all the knowledge necessary to enable them to ascer- *™selves to ' _ . delivery at taiu what was the amount of the freight due. Ramsgate. The negotiations for delivery having thus failed, the master Whilst the had still the option either to repair and carry on, or to trans-ship, abandonment The plaintiffs contended that the master did decHne either to wasinabey- T1T1-11-- 111 anoe, the carry on or to trans-ship. But 1 think this is not proved by the master could evidence. It is true that the defendant never offered to trans- neither repair nor trans-snip i ship ; but the question of trans-shipment nevep arose : it could not, in fact, arise whilst the question of abandonment was still in abeyance; and beyond all doubt it was in abeyance. The master, indeed, was desirous to abandon, and had executed a deed of abandonment ; but this was ineffectual until he had obtained a certificate of innavigability from the authorities. For this cer- tificate he applied, but was prevented from obtaining it by the action of the underwriters in the French Courts; indeed, so far was the master from having finally abandoned his vessel, that if the Dunkirk surveyors had reported unfavourably to the right of abandonment, it is fair to conclude he would have had the vessel repaired. The fact was the question of abandonment was a question, to use the French phrase, " awaiting solution," and, till it was settled, the master could neither abandon nor trans- ship. Then I think it clear that the French law will allow the and by the master reasonable time to determine whether he will carry on, the plaintiffs and, in the event of his determining not to carry on, a further were bound to II- -111- 1 m w^"' 'he settle- reasonable time, whether he will trans-ship or deliver. The only mentoftuis question is whether the delay required to settle the litigation in l"^^"""- France between the shipowner and the underwriters can be con- sidered a reasonable delay as between the master and the owners of cargo. A consideration of the 296th art. of the Code, of the opinions of the French lawyers given in evidence, and of the 304 THE BAH I A. 1864. judgment of the Tribunal of Commerce at Dunkirk, leads me to fl™. 13* ^^^ conclusion that, according to French law, the plaintiffs, as owners of cargo, were bound to await the solution of the ques- tions pending between the shipowner and his underwriters. This may seem hard upon the plaintiffs, seeing that the litigation did not finally close until the judgment of the Court of Cassation on the 22nd of March, 1864, after the lapse, that is, of more than a year from the date of the vessel putting into Ramsgate, and that this final judgment, like its precursors in the inferior tribunals, was against the shipowner, and is conclusive that the shipowner was, by French law, not justified against the underwriters in resisting their application. But, as against this must be set several considerations : first, the plaintiffs are estopped from denying the right of the defendant to resist (at all events, in the first instance) the application of the underwriters, inasmuch as the plaintiffs have admitted the accuracy of the Ramsgate sur- veyors, showing that the repairs of the vessel would exceed her value. Second, that though the final sentence by the Court of Cassation was not delivered for fourteen months, the date of the first sentence in the Marseilles Court was on the 4th of March, 1863, a little more than a month after the date of the Ramsgate survey, and that the sentence, being "executoire sans appel," might have been enforced immediately, and that by the plain- tiffs themselves, to whom liberty to intervene was exp-essly re- served. Third, that on the 14th of March, 1863, the plaintiffs arrested the vessel, and took possession of the cargo, partly on the 23rd of March, partly in the following month of April. These acts of the plaintiffs reduce the total delay to a period of a few weeks only, and during this period, assuming that the sur- veyors were right, as admitted by the plaintiffs, the defendant was not idle : he sought to abandon the vessel, he exerted him- self to procure the certificate of innavigability, and, with this view, resisted the application of the undei writers to have tlie vessel removed to Dunkirk. Under these circumstances, I must hold that, if the case be judged by French law, the plaintiffs are not entitled to recover from the defendant. But in holding this, I do not decide that a master of a vessel would not be answerable to owners of goods for a long and unreasonable delay, caused by litigation improperly carried on by himself with his underwriters. But that is not the present case. Now as to the law of the State of New York. Assuming it to be the same as the English law, it will be found in many important respects to coincide with the French law. The chief THE BAHIA. 305 authorities on the subject are collected in Mr. Brett's argument 1864. in the case of Blasco v. Fletcher {a), to which the Court is much Nm. lo. indebted. The result may be stated as follows: — First. There _^ — '- — . is and can be no absolute obligation on the part of the master The English towards the owner of goods to forward them m the origmal rights and vessel; although, of course, it is the duty of the master, in his dufesof the _' => ' '_ •' _ ' master putting capacity of agent to the shipowner, to do so if he can : Benson itito a port of V. Chapman (b). Second. It has never yet been decided that the master in any case is bound to trans-ship ; all that has been decided is, that he is at liberty to trans-ship : The Hamburg (c), and cases there cited. Third. There is no absolute obligation to deliver at the intermediate port, unless full freight be paid; and, in the present case, as I have previously stated, full freight was never offered by the plaintiffs : Tyndall v. Taylor (d). The only exception to this rule is, where the master declines either to carry on or to trans-ship — in short, abandons his contract altogether ; in that case, the consignee is entitled to his goods without payment of any freight at all : Hunter v. Prinsep (e). In the present instance I have already held that the defendant The defendant ... , ,. .', . , . 1 • T 1 I did not aban- did not declme either to carry on or to trans-ship. Indeed, donthevoy- supposing: the defendant to have declined to carry on, the Court age; andcon- .. ., /.iri'i-i sidering the could not, without positive evidence of the fact (which is here French law wanting;) conclude that the defendant had declined to trans-ship, "'''"VlT.l'^ O' * UT)On TElc IllaS" because, looking to his own interest, he would have preferred ter, thisrea- to trans-ship from Ramsgate to Dunkirk, rather than pay the aUowedhim penalty under British law of forfeiting the whole of his freight, for his decision -' 1-1 , T-i 11 11 had not ex- Fourth. British law, like the trench law, allows to the master pired. a reasonable time within which he may exercise his option : Cargo ex Galam(f). And by " reasonable," I think, must be meant that which is reasonable, all circumstances being con- sidered, and amongst these circumstances would be the vis major of the decree of a judicial tribunal : Hadley v. Clarke (g). Nor does it make any difference that the tribunal was a French one. Because it is for the British law to determine the rights of the owner of the goods against the master (as, for the purpose of the argument, I am now assuming), that is no reason that the British law should overlook the fact that the relations of the shipowner, the master and the underwriters were all governed by French law ; and the consequences of that fact, viz., that the master could not abandon or sell the vessel without having obtained a formal certificate of innavigability, and that if the (a) 14 C. B., N. S. 147. (e) 10 East, 394. (i) 2 H. of L. Ca. 720. (/) Ante, p. 167. (c) Ante, p. 253. (g) 8 Term Rep. 259. {d) 4E1. Se B1.227. 306 1864. Nov. 10. Dec. 13. THE BAHIA. shipowner intended to insist on abandonment, it was necessary for him to oppose the application of the underwriters. In short, in estimating what is a reasonable delay, the British law would practically take into consideration the same circumstances as the French law would. And I have already held that by the French law, as it appears to me, the plaintiffs are not in a position to complain of the delay, so far as it was occasioned by French litigation. fo^ZlL '^^^ '='^™ °*" ^^^ plaintiflFs, then, fails equally whether tried fendants, with ^Y French law or by New York law, and I must pronounce "°='^- against it, with costs. Clarkson Sf Son, for the plaintiffs. Rothery Sf Co., for the defendants. THE PENSACOLA. Salvage of Life — Agreement between Tug Companies and Dock Board— n Sf 18 Vict. c. 104, ss. 458, 459. The Mersey Docks and Harbour Board, acting in pursuance of enabling powers given them by their Dock Act (21 & 22 Vict. c. xcii. s. 109), entered into an agreement with certain steam- tug companies at Liverpool, whereby the com- panies undertook that at all times in day and night one of certain specified steam-tugs should always be in readiness to proceed, and should on signal given proceed with one of the Liverpool lifeboats to any ship in distress within certain limits ; the Board contracting to pay fifteen guineas for each occasion. The agreement contained a proviso that nothing contained in the agreement sliould prejudice or affect the rights of the steam-tug companies in regard to services in saving ships or other property to be rendered by their steamers. One of the steam-tugs specified, belonging to one of the companies, in pursuance of a direction received from the mate of the landing-stage, who was a servant of the Dock Board, towed out a lifeboat to a vessel in distress, and brought the master and crew into Liverpool : then returned and brought the ship and cargo in also. In an action for salvage against ship and cargo instituted by the owners, master and crew of the tug -.—Held, that the agreement between the Dock Board and the tug companies did not bar or affect the plaintiffs' claim to reward for salvage of life. July 15. rpHIS was a suit of salvage instituted by the owners and -L crew of the steam-tug Brother Jonathan against the ship • THE PENSACOLA. 307 Pensacola, freight and cargo for services rendered on the 4th of 1864. December, 1863. J^'y 15- The Pensacola was a ship of 1,421 tons, timber laden ; on the 3rd of December, she was caught in a hurricane, and driven on shore upon the Great Burbo Bank at the mouth of the river Mersey; her masts were cut away, and she otherwise sustained great damage. On the next morning, when the weather had partially mode- rated, the Brother Jonathan, upon orders received fiom the mate of the landing-stage at Liverpool, took a lifeboat in tow, and proceeded to the Pensacola, whose crew, to the number of fourteen, were then removed in the lifeboat and put on board the Brother Jonathan and conveyed to Liverpool. In the afternoon the Brother Jonathan again went to the ship, and with the assistance of another steamer called the Slasher succeeded in bringing her into Liverpool. The value of the property salved was 3,339Z. The defendants paid into Court 150/. by way of tender. The defendants, the owners of the ship and cargo, put in evidence an agreement dated the 4th of August, 1858, between the Mersey Docks and Harbour Board and certain steam-tug companies of Liverpool (including the company owning the Brother Jonathan), whereby the companies undertook that at all times in day and night one of certain specified steam-lugs should always be in readiness to proceed, and should on signal given proceed with one of the Liverpool lifeboats to any ship in distress within certain limits, Sec; the Board contracting to pay fifteen guineas for each occasion. The agreement contained a proviso that nothing contained in the agreement should prejudice or affect the rights of the steam-tug companies in regard to services in saving ships or other property to be rendered by their steamers. The 109th section of the Mersey Dock Acts Consolidation Act, 1858 (21 & 22 Vict. c. xcii.), passed 12th July, 1858, is as follows : — " The Board shall provide and maintain such and so many lifeboats or other vessels to be used and established for the purpose of rendering assistance to vessels in distress as they may from time to time think necessary or expedient, and may purchase by agreement, either within the limits of the said port or on the coast adjoining the said port or elsewhere, sites for and build houses and landing-places for the accommodation of such boats, their crews and stores, and also for the shelter and safety of pilot boats, when driven by stress of weather from their stations, as they may think proper." 308 THE PENSACOLA. 1864, Tlie following sections of the Merchant Shipping Act, 1854, ■^"'y ^^ and the Amendment Act, 1862, were also referred to: — 17 & 18 Vict. c. 101. (Merchant Shipping Act, 1854). Part VIII. Salvage in the United Kingdom. Sect. 458, " In the following cases, (that is to say,) Whenever any ship or boat is stranded or otherwise in distress on the shore of any sea or tidal water situate within the limits of the United Kingdom, and services are rendered by any person, (1) In assisting such ship or boat; (2) In saving the lives of the persons belonging to such ship or boat; (3) In saving the cargo or apparel of such ship or boat or any portion thereof; And whenever any wreck is saved by any person other than a receiver within the United Kingdom ; There shall be payable by the owners of such ship or boat, cargo, apparel or wreck, to the person by whom such services or any of them are rendered, or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses pro- perly incurred by him in the performance of such services or the saving of such wreck." Sect. 459. " Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship or boat as aforesaid shall be payable by the owners of the ship or boat in priority to all other claims for salvage; and in cases where such ship or boat is destroyed, or where the value thereof is insufficient, after payment of the actual expenses incurred, to pay the amount of salvage due in respect of any life or lives, the Board of Trade may in its discretion award to the salvors of such life or lives out of the Mercantile Marine Fund such sum or sums as it deems fit, in whole or part satisfaction of any amount of salvage so left unpaid in respect of such life or lives." In Part III. Masters and Seamen. Sect. 182. " Every stipulation by which any seaman consents to abandon his right to wages in the case of the loss of the ship or to abandon any right which he may have or obtain in the nature of salvage, shall be wholly inoperative." 25 & 26 Vict. c. 63 (Merchant Shipping Act Amendment Act, 1862). Musters and Seamen {Part III. of Merchant Shipping Act, 1854). Sect 18. "It is hereby declared that the 182nd section of the THE PENSACOLA. 309 Principal Act does not apply to the case of any stipulation made 1864, by the seamen belonging to any ship, which according to the -^"^^ ^^- terms of the agreement is to be employed on salvage service, with respect to the remuneration to be paid to them for salvage services to be rendered by such ship to any other ship or ships." Aspinall, Q. C. [Cohen with him). — The plaintiffs are not en- titled to life salvage. They acted as the hired servants of the Mersey Docks and Harbour Board, who were performing a statutory duty in entering into the contract with the tug com- j)anies. The remuneration provided by the agreement must be taken to be fair and adequate. The reason of public policy which is usually put forward for granting salvage, namely, the encouragement of services, does not apply here, as the perform- ance of the services is secured by the operation of the Harbour Board acting in obedience to the legislature. Brett, Q. C. {Lushington with him), for the plaintiffs. — The plaintiffs have a statutory right to life salvage by the Merchant Shipping Act. The agreement is immaterial. It does not alter the peril of the men whose lives are saved, nor the value of their lives, nor does it alter the difficulty and peril of the service of the salvors. The merits of the service remain as before. Se- condly. The parties who have to pay salvage are strangers to the agreement, which is between the Dock Board and the tug companies. Thirdly. The actual salvors, the master and crew of the tug, are strangers to the agreement. The agreement provides no reward for them, though they may have to risk their lives in the service. The arrangement should not be con- strued as intending to reduce or take away the reward that may be payable by law for salvage of life : its purpose is rather to supplement that, for in services of life salvage it must often happen that there is no property, or insufficient property, to afford due remuneration, and that even the further reward given by the Board of Trade out of the Mercantile Marine Fund is quite inadequate to encourage such services. Dr. LusHiNGTON. — The Court has to consider whether in judgment, this case the plaintiffs are entitled to receive reward for saving life as well as for saving property, and whether the tender which has been made is sufficient. The action is brought on behalf of the owners, master and crew of the tug Brother Jonathan. This tug towed a lifeboat from the landing-stage in the river Mersey to the ship Pensacola, which was stranded on the Burbo Bank outside, and removed 310 THE PENSACOLA. 1864. lier crew, fourteen in number, and brought them safely into July ^5- Liverpool. In a second trip the tug brought in the ship also. Now that these fourteen men of the Pensacola were saved by the Brother Jonathan from a position of considerable peril cannot be disputed. The property has also been saved. In these circum- stances, by the ancient law of this Court, the plaintiffs are en- titled to sue the ship and cargo for their services, and the Court would in its award take into consideration the services rendered to life as well as the services rendered to property. This was well established. The Merchant Shipping Act leaves that law untouched, or rather confirms it, and goes beyond it; for in express terms it makes the owners of ship and cargo liable to pay salvage for services rendered in saving the lives of the persons belonging to the ship. But I decide this case upon the ancient law of the Court. It has been argued, however, that the plaintiffs' claim, so far as it relates to life salvage, is barred, because there was an agreement between the Mersey Dock Board and certain tug- companies, of whom the owners of the Brother Jonathan was one. The Dock Board, it seems, are empowered by their Act to maintain lifeboats, and they have made this agreement, whereby the tug companies contract that a tug shall be at all times ready to proceed, and shall proceed, on signal given, with a lifeboat to any ship in distress ; and the Board contracts to pay fifteen guineas for each occasion. Now how does this agreement alter the mutual rights of the parties before the Court; the right of these salvors, and the obligalion of the owners of ship and cargo? How can it alter the law which otherwise creates this right and that obligation ? It is an agreement to which the owners of the ship and cargo are in no way privy, for which they have paid no consideration, and it is one to which the actual salvors, the master and crew of the tug, are equally strangers. It is an agreement, moreover, which does not purport to bar or in any way to affect the claims of the salvors against the property. When examined, it proves to be an arrangement whereby the Dock Board secure proper assistance to their lifeboats, and limit the reward which they, the Dock Board, are to pay: that is the true meaning of it. The right of the salvors against the' property given to them by law remains unabridged. But I ought to add, as a further reason for this conclusion, that it has been the practice of this Court not to allow agreements barring salvage, in order that the spirit of enterprise should not be interfered with. It is at all times important— for this is the very foundation of the law of salvao-e — that salvors should be stimulated by hope of liberal reward to THE PENSACOLA. 311 brave difficulty and danger, and go forth to the succour of 1864. vessels in distress. This principle applies with the highest force July 15. to those cases in which there is not only property but also life to be saved. Acting upon the well-established law of the Court, I have no hesitation in deciding^ that this agreement forms no bar to the claim for life salvage, and that I should make my award as if this agreement was not in existence. [The learned Judge then considered the facts of the case in detail, and overruhng the tender awarded 300Z.] Nethersole ^ Speechly, solicitors for the plaintiffs. Pritchard 8f Sons, proctors for the defendants. Ifn ti)e J^riO^ Council. Present — Lord Kinqsdown. Lord Justice Knight Bruce. The Master of the Rolls. THE AMALIA. Collision — Pleading — Evidence — Allegata et probata. The plaintiffs, in a cause of collision, alleged in their petition, in two separate articles, that the helm of the defendants' vessel was not duly ported, and was improperly starboarded. They also produced witnesses who deposed that the defendants' vessel had starboarded, and that the collision was thereby occa- sioned. The finding of the Court was that the collision was occasioned by the helm of the defendants' vessel not having been duly put to port. Held, that the plaintiffs were not barred from recovering by the rule confining the plaintiffs' right to recover secundum allegata et probata. THIS was an appeal from a decision of the High Court of My I2i 23. Admiralty in a cause of collision between the Amalia and the Marie de Brabant. The present report is upon one point only, viz., the rule confining the right of a plaintiff to recover secundum allegata et probata. The allegations in the petition, so far as are material to this point, were as follows : — "Third. Shortly before 2.30 a.m. of the 15th day of May, B.L. Y 312 THE AMALIA. 1864. 1863, the Marie de Brabant was by computation about twenty- Juiy 12, 23. four miles oflF the town and port of Bougie, on the coast of Algiers. The weather at such time was clear and starlight, with a slight haze on the water ; it was dead calm, what wind there was being easterly, and there was no tide, and the Marie de Brabant was proceeding under steam alone, at the rate of about eight knots an hour, and steering about S.E. by E. " Fourth. At such time, and whilst the Marie de Brabant was so proceeding, the mast-head light of a steam-vessel, which afterwards proved to be the above-named screw steam-ship Amalia, was made out at the distance of about four miles from the Marie de Brabant, and about two points on her port bow. The said light was watched from the Marie de Brabant, and as the bearing of such light continued to be about the same, the helm of the Marie de Brabant was ported to give the vessel carrying the said light a wider berth, and the said light was brought to bear about three points on her port bow, when the helm was steadied. The said light was still watched, and got rather broader on the port bow, but no coloured light could be seen until the Amalia had approached to about the distance of half a mile, when her green light came into view, and thereupon the helm of the Marie de Brabant was immediately put hard a-port, and she went oflF under such hard-a-port helm, notwith- standing which the Amalia ran into and, with her stem and starboard bow, struck the Marie de Brabant a violent blow on her port side, between the main rigging and the funnel. " Fifth. Whilst the Amalia was approaching the Marie de Brabant as aforesaid, the helm of the Amalia was not duly and properly put to port as it ought to have been. "Sixth. Whilst the Amalia was approaching the Marie de Brabant as aforesaid, the helm of the Amalia was improperly put to starboard. "Seventh. The said collision, and the damages and losses consequent thereon, were occasioned by the neglect, default, and want of skill of those on board the Amalia, and no blame with , respect thereto is to be attributed to the Marie de Brabant, or any of those on board her." The witnesses for the Marie de Brabant deposed in their evi- dence that the Amalia had starboarded, and that the collision had thereby been occasioned. The case for the Amaha in plea and evidence was that her helm had been ported, and ported only. The finding of the Court below was in these terms : — " That the collision was caused by the want of adequate care in the THE AMALIA. 313 navigation of the Amalia. She did not port as she ought to 1864. have done. No blame attaches to the Marie de Brabant." "^"'^ ^^' ^^' Mr. ^re<^, counsel for the defendants, then took the objection that the plaintiffs' case had throughout been that the collision had been caused by the Amalia starboarding ; that they had failed to prove that ; and that they were consequently not en- titled to the judgment of the Court by the rule which limits the plaintiffs' right to recover secundum allegata et probata. The learned Judge, Dr. Lushington, overruled this objection, and gave judgment for the plaintiffs. Brett, Q. C, and Lushington for the appellants, referred to JuiyU. The Ann (a); The East Lothian (b); The Haswell(c). The Queen's Advocate and Dr. Deane, Q. C, for the re- spondents. Cur. adv. vult. On the 23rd July Lord Kingsdown delivered the judgment of the Committee. This case arises out of a collision which took place in the Mediterranean between the Marie de Brabant and the Amalia on the 12th of May, 1863. They were both screw-steamers, the former of 564 tons and the latter of 1,284 tons. The Amalia was coming from Malta on her voyage to Gibraltar and Liverpool. The Marie de Brabant had sailed from Antwerp bound to the East, and having called at Gibraltar was proceeding to Malta. There were actions in the Admiralty Court, where it was decided that the Amalia was solely to blame, from which judgment the present appeal was brought. Two points were urged by the appellants' counsel. They contended : — 1. That, supposing the evidence to justify the finding that the Amalia was alone to blame, it did not make out the case alleged in the original petition of the owners of the Marie de Brabant, and that they were not therefore entitled to recover. 2. That the evidence did not warrant a finding that the Amalia was at all to blame, or at all events that she was solely to blame. The first objection rested upon this — that the petition of the Marie de Brabant alleged an injury which it was said could have happened only by the Amalia starboarding, and that it (a) Lushington, 55. (6) Lushington, 2tl. (c) Ante, p. 247. y2 314 THE AMALIA. 1864. alleged, in point of fact, that the helm of the Amalia was im- Juiy 12, 23. properly put to starboard, and it was pointed out that the Court below had refused to decide whether the Amalia had starboarded or not, and yet had given judgment against her. It is of great importance to the due administration of justice that parties who seek relief in the Court of Admiralty should state the injury of which they complain with sufficient clearness and accuracy to enable their adversaries to know the case which they have to meet, and to prepare their defence accordingly; and, when the plaintiff's allegations have been such as to mislead his opponent upon this essential matter, it has been held by this Committee that the plaintiff was not entitled to recover. As to matters which have taken place on board his own ship, he is enabled to speak, and is reasonably required to speak, with pre- cision and certainty ; with respect to what has been done on board his adversary's ship, he can in many cases, probably in most cases, speak of what was done only by inference. In this case the plaintiffs alleged that the Amalia star- boarded her helm improperly, but they also formally alleged that her helm was not duly and properly put to port as it ought to have been. The first charge, if proved, necessarily involves the second, but if the first be not proved, the second remains, and, if established in fact, is quite sufficient to sustain the judgment. The defendants have distinct notice of the charges which they have to meet : first, that they starboarded ; secondly, that, if they did not starboard, at all events they neglected to port as they ought to have done. We are clearly of opinion that this objection cannot be maintained. [The judgment then considered the evidence in detail, and concluded as follows] : — If it were necessary to decide the question, therefore, we must hold, upon the balance of evidence before us, that the Amalia starboarded her helm and thereby occasioned the accident ; but it is sufficient for disposing of this case to say that the appellants have failed to convince us that the judgment below is erroneous either as to the rules of law which were applied, or as to the effect of the evidence. We must humbly report to her Majesty that the appeal should be dismissed with costs. Rothery, proctor for the plaintiffs. Pritchard Sf Sons, proctors for the defendants. THE REGINA DEL MARE. 315 1864. August 2. THE REGINA DEL MARE. Proceedings in Rem — Right of Insurers to appear and defend. The former practice of the Court was to permit only the master or owners of a ship arrested to appear and defend. But the Court will allow the insurers of the ship to defend (on terms) if they show a substantial interest which may be prejudiced by the plaintiff proceeding to judgment. A ship having been arrested in a cause instituted in the Admiralty Court, and the owners not appearing, the foreign insurers then entered an appearance and applied for leave to defend, upon the ground that if the ship was sold by the Court, they might be made responsible to the owner for a total loss. The Court granted the application upon their giving security for costs. In another action brought for necessaries against the same ship, no appearance having been entered for the owner, the same insurers appeared and paid the amount of the claim into Court, making at the same time an offer to pay costs. The Court rejected a motion on behalf of the plaintiff to sell the ship as for want of appearance. rpHIS was a cause instituted against the Genoese barque Regina del Mare, on behalf of John Ferguson of Liver- pool, agent for the Buenos Ayres Gas Company, the consignees of the cargo laden on board the barque, for alleged breaches of the contract to carry from Liverpool to Buenos Ayres. The ship was arrested in Liverpool, whither she had put back, dis- masted, several months before. No appearance having been entered on behalf of the owner, an appearance was entered on behalf of " The Committee of Insurance Companies of Genoa, the insurers of the ship ;" and they filed notice of motion for leave to defend. In support of this motion they filed an affidavit by one Antonio Oneto, a person holding a power of attorney for the insurance companies, deposing tiiat they had insured the vessel for 3,000/. against total loss only (such total loss to be constituted by damage to the extent of seventy-five per cent.) ; that the owners had abandoned to the insurers, but that the insurers had refused to accept the abandonment; that the Court of Genoa had, in April, 1864, decided in favour of the insurers ; and that the case was under appeal. The affidavit also deposed that the insurers had been advised that if the vessel were sold by the decree of the Court they would be rendered liable to pay the insurance. Dr. Wamhey on behalf of the Genoese Insurance Companies. — The affidavits show that the insurance companies have an in- terest to defend this suit, and that the owneis have an interest not to defend it. Justice seems to require that these insurers 316 THE REGINA DEL MARE. 1864. should be admitted to defend. If they are not allowed to come ■August 2 . in and protect their interest, the Court may practically lend its assistance to the accomplishment of a fraud. Lushington for the plaintiffs.— It is contrary to the practice of the Court to admit underwriters to appear as defendants in actions brought against a ship : Cargo ex Galam (a). They would otherwise appear in almost every case. It is not anybody and every body that is entitled to come in and defend. The war- rant by which the ship is arrested calls upon those who " have any right, title or interest in the said ship " to appear. Here the insurers have refused to accept the abandonment. They have therefore no right, title or interest in the ship. They have only an interest in a contract connected with the ship, which, it is submitted, is not enough. Dr. Lushington [after stating the facts as above]. — The sole question is, whether the Genoese Insurance Companies, the in- surers of this ship, should be admitted as parties to defend this action. It is alleged that they ought not to be so admitted, because by the ancient practice of the Court the master and owners of the ship arrested were the only persons allowed to appear. It is true such was the ancient practice. But it was always in the power of the Court to accommodate the practice to the justice of the case. I have myself done so, in admitting mortgagees to defend. And now that the jurisdiction of the Court is so enlarged by Act of Parliament, grievous injustice might be done in many cases if insurers were excluded. I think it right, therefore, to declare that whenever there is a substantial interest which may be prejudiced by the Plaintiff proceeding to judgment, it will be the disposition of the Court to admit the interested party to protect his interest. In the present case good reason is shown that the insurance companies may be damnified by the event of this cause; and I therefore admit them as parties, upon their giving security for costs. In another action brought against the same ship by a ship- wright for necessaries supplied in Liverpool, the same insurers appeared and paid the amount of his claim into Courtj at the same time filing an offer also to pay costs. They then appeared by counsel to oppose a motion which was pending for the sale of the ship as for want of appearance. (a) Anlp, p. 167. THE REGINA DEL MARE. 317 The motion was heard at the same time as the other motion, 1864. and was argued by the same counsel. August 2. The learned Judge refused to order a sale of the ship. The suits did not afterwards proceed to judgment. Chester and Urquhart, solicitors for the consignees of cargo. J. T. Sf R. Gole, solicitors for the material man. Thomas Capes and Chadwick, proctors for the insurance com- panies. THE LAUREL. Bottomry — Excessive Charges — Advertisement — Maritime Interest. The master in a port of refuge consigned the vessel to a merchant to advance money for her repairs, the law of the country allowing a lien on the vessel for such advances ; no agreement was made at the time whether the advance was to be made on personal security or on bottomry ; and the merchant did not himself determine on having bottomry security until shortly before the ship sailed, when he demanded a bond, which the master executed. The Court upheld the bond. An excessive charge for commissions may be a reason for impeaching a bottomry bond on the ground of fraud, but cannot otherwise affect its validity. It is proper for the master to advertise previous to taking advances on bottomry j but a bottomry bond is not invalid if no advertisement has been made. A bottomry bond, if it expresses a maritime risk, is not invalidated by the absence of any provision for maritime interest. THE question at issue in this cause was the validity of a Dec. 6, 13. bottomry bond upon the Laurel and her freight, taken under the following circumstances. The Laurel belonged to Messrs, Willis, of London, and was returning from Shanghae to London with a very valuable cargo of tea and silk. On the 24th of October she struck upon a rock in the Java Sea : she was got off, but though she did not make much water, the crew refused to navigate her to Europe. The master telegraphed for advice and assistance to the British consul at Batavia, a Mr. Maclachlan, but he declined to inter- vene, unless the vessel was brought to Batavia and surveyed. Mr. Maclachlan was a partner of the firm of Maclaine, Watson & Co. in Batavia. Accordingly, on the 31st October, the vessel was brought to Batavia and surveyed : the cargo was then dis- charged, and the vessel put into dock for repairs. As the owner of the ship had no agents in Batavia, the master was in doubt to whom to consign the vessel. He chose the firm of Mac- 318 THE LAUREL. 186 4'. laine, Watson & Co,, who were Lloyd's agents at Batavia, chiefly Dec, 6, 13. on the ground that they were connected with Messrs. Mac- laine, Eraser & Co., of Singapore, who were the agents of the shipowner in that place, of which fact he informed Messrs. Mac- laine, Watson & Co. The arrangement between the master and Messrs. Maclaine, Watson & Co. was simply that the firm should advance the money for repairs at two and a half per cent., as the master understood, on the cost of the repairs, and five per cent, upon other disbursements. Whilst the repairs were in progress, the master became aware that Messrs. Maclaine, Wat- son & Co. meant to charge a commission of two and a half per cent, upon the value of the cargo, instead of two and a half per cent, upon the cost of the repairs: he protested against this, but received for answer that such a charge was usual. On the 28th of November, James Maclachlan wrote to one of his partners in England : — " I forgot to mention to you last mail, that the English ship Laurel, bound from Shanghai to London with tea and silk, put in here, having got ashore on Brewer's Reef, and has had to discharge all her cargo. Her owners are John Willis & Sons, 18, East India Chambers, Leadenhall Street, I believe highly respectable people. The captain places his ship in our hands, as Maclaine, Eraser & Co. are the owners' agents at Singapore. The cargo is a very valuable one, about 1,300,000 f., so that we will get a handsome commission. I am not yet sure if it will not be better to take a bottomry on the vessel, but have written Watson at Singapore, about the owner, and wait his answer before deciding anything." Again, on the 13th of December, another of the partners in Batavia wrote to the same partner in London : — " The Laurel has again her cargo on board and will sail to-morrow. We are new busy settling her account with Cap- tain Garrick, for which he is to give us a draft on his owners, John Willis & Sons, and a bottomry bond as collateral security. We remit said bill and bond to Finlay, Hodgson & Co., who we hope will have no difficulty in collecting said amount. Watson of Singapore wrote Maclachlan favourably about said owners, and he -would take the captain's bills on them for 1,000Z. more or less; but, as the expenses incurred amount to more than three times as much, I thought it would be better to take a bond." This statement was borne out by the master, who deposed that the first occasion of the subject of bottomry being men- tioned to him was on this 13th of December, when one of the partners told him that, besides the draft on the owners for the amount due, he must give a bottomry bond as additional secu- THE LAUREL. 319 rity; but that upon the bond no extra commission would be 1864. charged. A bond was accordingly on that date given on ship Dec. 6, 13. and freight for 4,088Z. 17s. 4d. (of wiiich only one-third was for ' expenses actually incurred, the remainder being made up of commissions). The bond specified no rate of interest, but in other respects was in the usual form. It appeared also that the law of Batavia gave a lien upon the ship for advances made for the purpose of repairs. Upon the arrival of the Laurel in London on the 7th of April, 1863, her owners refused to honour the draft of the master; and thereupon the holders of the bond, Messrs. Finlay, Hodgson and Co , arrested the vessel and insti- tuted the present suit for the enforcement of the bond. Dr. Deane, Q.C., and E. C. Clarhson, for the plaintiffs, argued that the bond was good upon the grounds stated in the judgment; and insisted in particular upon the fact that the advance was not made upon any agreement of personal credit, and that the law of Java gave the merchant a lien on the ship for his advances : The Alexander (a) ; The Prince George (J). Brett, Q.C, and Lushington, for the defendants, contended that there was an agreement for an advance on personal credit, and that the bond was really taken only to cover the extra- vagant commissions. At any rate there was no pre-agreement for bottomry, and such is necessary upon authority, and for reasons of fair dealing : The Hersey (c). There is no proof that the law of Java gave a hen for the commissions; and the power of arrest, or even actual arrest, will not support a bottomry bond : The Augusta (d) ; The Osmanli (e) ; 2'he Aurora (/).' As the advances were made without agreement, theie was no necessity for the subsequent bond: The N. R. Gosfairich{g); The Oriental ih). Dr. Deane, Q.C, rephed. Cur. adv. vult. Dr. Lushington. — One of the arguments against the bond Dec.lS. was the absence of advertisement. This is sometimes an in- JiK^gment, gredient in evidence of fraud, in cases where it is proved that the money might have been had on better terms. But this is not the present case, and though advertisement is always (a) 1 Dods. 278, 280. (e) 3 Wm. Rob. 198, 215. (ft) 4 Moore, P. C. 25. (/) 1 Wheaton, 104. (c) 3 Hagg. 412 J 3 Moo. P. C. 83. (g) Swab. 344. {d) 1 Dods. 283. (*) 7 Moore, P. C. 409. 320 THE LAUREL. 1864. expedient, I cannot say that it is indispensable. It is of im- Pgg- 6, 13. portance to consider what passed between the parties at the time when Maclaine, Watson & Co. accepted the consignment of the vessel. In my judgment, there was nothing beyond an arrangement (and that not a distinct one) as to the commission to be charged ; not a word was said by either party as to the security upon which the advance should be made, whether upon bottomry or upon the personal security of the owner. No men- tion of bottomry was made to the master until the repairs had been completed and the bond was presented for execution ; an omission for which, though it may not invalidate the bond, I think Messrs. Maclaine, Watson & Co. were, in fair dealing, greatly to blame. It is most desirable that both the merchant and master should, at an early stage in the proceedings, have a dis- tinct understanding whether the advances are to be made on personal credit or upon bottomry. Upon consideration of all the facts, I think that this case cannot be distinguished from that of the Alexander (a) : in both there is the absence of any agree- ment to advance on personal credit; and of waiver, direct or indirect, of the right by the lex loci to make the ship liable for her repairs. The fact that in the present case Messrs. Maclaine, Watson & Co. were doubtful, almost up to the last, whether they should take a bottomry bond or not, does not, I think, constitute a substantial difference. On the other hand, this case is distinguishable from that of the Augusta (J). There Lord Stowell refused to allow a bottomry bond, so far as it covered an advance which had been made upon personal credit ; here there was no agreement that the advance should be upon personal credit. Then, as to the terms of the bond itself, I do not think the absence of any provision for bottomry premium is material, in- asmuch as the maritime risk is clearly expressed. Lastly, the large amount of the commissions charged is no reason for invalidating a bottomry bond altogether, unless the bond is impeached on the ground of fraud, which is not the case here. I shall therefore pronounce for the validity of this bond and refer the accounts to the Registrar and Merchants in the usual way. I reserve the question of costs. Toller 6c Son, proctors for the plaintiffs. Cotterill Sf Sons, solicitors for the defendants. (o) 1 Dods. 278. (6) X Dods. 283. THE VOLANT. 321 1864. November 28. THE VOLANT. Mights of Second Mortgagee of Part of a Vessel, and Bights of the Owner of the Residue — Costs and Damages— 17 Sf 18 Vict. c. 104, s. 71 ; 24 Vict. c. 10, ss. 11, 35, The second mortgagee of 32-64th shares of a vessel instituted a cause under the 11th section of the Admiralty Court Act, 1861, and arrested the ship. He afterwards withdrew the suit. The owner of the remaining shares (who was not mortgagor to the plaintiff) thereupon applied to the Court to condemn the plaintiff in costs and damages. Held, that he was entitled to his costs of suit, but not to any damages occasioned by the arrest and detention of the vessel. ON the 24th October, 1864, a cause was instituted under the 11th section of the Admiralty Court Act, 1861 (24 Vict, c. 10), on behalf of John Taylor as registered mortgagee of 32-64th shares of the vessel Volant, and on the 29th October he caused the vessel to be arrested. The mortgage was dated the 4th July, 1864, and was registered on the 18th July. It was given to secure the payment of a bill of exchange for 137/. 8s. 3d., due 4th September, 1864, and of any renewal or renewals thereof, and of any bill or bills to be given in substitution thereof. The mortgagor, John Richard Davies, covenanted that the shares mortgaged were free from incumbrances, save as appeared by the registry of the said ship. The affidavit to lead the warrant stated that no portion of the amount secured by the mortgage had been paid. On the 5th November an appearance was entered on behalf of James Lee, as the first registered mortgagee. His mortgage was upon the whole vessel, and was registered on the 19th May, 1864. On the 8th November an appearance was entered on behalf of William Laugharne, the owner of the 32-64th shares, which were not mortgaged to the plaintiff. On the 24th of November notice of motion was filed on behalf of the defendant Laugharne, for an order to release the vessel and to condemn the plaintiff, John Taylor, in the costs and damages occasioned by the arrest and detention of the vessel. In support of this motion was filed on the same day an affidavit (to which was annexed a copy of the vessel's register) deposing that the prior mortgage to Lee was still outstanding; that by the terms of that mortgage the statutory power of sale was not to be exercised until the 9th of May, 1866 ; and that a good freight to 322 THE VOLANT. 1864. the West Indies had been lost by the arrest of the vessel. The November 28. record On the register of the mortgage to Lee did not state the postponement of the power of sale. On the same date, 24th November, notice of motion was filed on behalf of Lee, the first mortgagee, praying the Judge to fix a time for filing the petition on behalf of the plaintiff. On the 26th November, the plaintiff filed a notice that " the plaintiff proceeds no further herein, this cause having been settled." On the notice filed was indorsed a memorandum that copies had been served on both the adverse proctors. The plaintiff also extracted a release of the vessel. On the 29th November, the motion on behalf of the defendant, Laugharne, to condemn the plaintiff in costs and damages came on to be heard. No counsel appeared on behalf of Lee, the first mortgagee. No appearance had been entered on behalf of Davies, the mortgagor to the plaintiff. The following enactments were referred to : — 24 Vict. c. 10. Sect. 10. "The High Court of Admiralty shall have jurisdic- tion over any claim in respect of any mortgage duly registered according to the provisions of the Merchant Shipping Act, 1854, whether the ship or the proceeds thereof be under arrest of the said Court or not." Sect. 35. " The jurisdiction conferred by this Act on the High Court of Admiralty may be exercised either by proceed- ings in rem or by proceedings in personam." Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104). Sect. 71. " Every registered mortgagee shall have power ab- solutely to dispose of the ship or share in respect of which he is registered, and to give effectual receipts for the purchase- money; but if there are more persons than one registered as mortgagees of the same ship or share, no subsequent mortgagee shall, except under the order of some Court capable of taking cognisance of such matters, sell such ship or share without the concurrence of every prior mortgagee." Lushington in support of the motion. — The arrest of the ship was necessarily wrongful, for as to the 32-64th shares held by the defendant, the plaintiff had no claim. Neither could the plaintiff have obtained an order from the Court for a sale of the shares which were mortgaged to him, for they were subject to the prior mortgage. The alternative mode of proceeding in rem or in per- sonam given by 24 Vict. c. 10, did not justify the plaintiff in THE VOLANT. 323 arresting the ship. The defendant, who owed nothing to the 1864. plaintiff, ought, it is submitted, to be recouped the loss he has November 28. suffered by the conduct of the plaintiff: Victor {a). Clarkson, contra, for the plaintiflF. — The rule laid down by the Privy Council in the Svangelismos (b) shows that the de- fendant is not entitled to damages. The plaintiff was not a wrongdoer in arresting the ship. His mortgage money was due, and by the 24 Vict. c. 10, he was authorized to proceed in this Court in rem. If the case had proceeded, this Court might, if it so pleased, have granted a sale of the mortgaged shares. That the defendant should suflfer for the default of his co-owner is to be regretted ; but that is an incident of co-ownership, not the plaintiff's fault. The settlement of the cause is a boon to the defendant, of which he ought not to complain. Dr. Lushington. — The plaintiff having withdrawn his suit. Judgment. he is liable to pay the costs to which he has put the defendant. But the present motion goes further. The defendant asks that the plaintiff be condemned in the " costs and damages occa- sioned by the arrest and detention of the vessel." To this I cannot accede. It is a well-established rule in this Court that damages for arresting a ship are not given, except in cases where the arrest has been made in bad faith, or with crass negligence. One reason for this may be that the appointed mode of suing in this Court is by arresting the property : another that the property arrested may be released at once upon bail, and therefore the damages are usually inconsiderable. The cases, at any rate, are few in which an unsuccessful plaintiff has been condemned in damages; and the Court is reluctant to con- demn a plaintiff to that extent, except the circumstances show that justice requires it. The case of the Victor (a), which has been referred to, was one in which, in a cause of collision, the plaintiff endeavoured to make the cargo of the opposing ship liable for his loss — a mere experiment, and an experiment contrary to the long practice of the Court, and the elementary principles of law. But in this case I am not satisfied that the plaintiff, who was second mortgagee of 32-64th shares, had not right to proceed as he did, to arrest the vessel. It is admitted that he held this mortgage and that the mortgage money was due, and that the Court has jurisdiction over any claim in respect of any mortgage duly registered. It is clear also that, without the intervention of (a) Lushington, 72. (6) Swabey, 378. 324 THE VOLANT. 1864. the Coart, the plaiotiff could iK»t (withmti the conettiTefiee of y— CTiferM. the prior BiOrtgag*;/:; hare redizbip, f 'afhtiit, in the arrest of the whole ve««d for a claim which extead* tf> part of the veeed onlj. There might al«o bare been diffi' colty in uUitnately decreeing the eale of these dbare» at the prayer of a second mortgagee. These difficulties are inddeotal to the conflicting rights of the diffiereat parties. It is not neces- sary, howerer, that I should dwell on tbem fordier, becaose all I decide is thai this ca^ is not, in my opinion, one for ffmag damages for the arrest The defendant will bare the costs of the motion. ClarJuon, Son ^ Cooper, ptoetort for the plaint Deacon, Son (f Roger$, prodon tor the defeodaaL fn % 9rift$ Csama. PretetU—houD KixGcsowjr. LoBD Jl'stice ILntaat Bkvce. SiK Edwamd Byax. THE CONSTITUTION. Practice of the Jvdiaal Commtiee in remeamtg Jndgmeittt ef the Adndralty Cmtrt upon ([KestienM (f fact. In renewing s ja^giacitt «f die Uif^ Cvort «f AAMndtr <9i J i »a *g *«fe ai6f.tf wmA i e wi kt, imt »«€ htimg fanitttA Utat ike i tiM mt ft ibt Cmmt %dam wm tmmtmm, Om imitasi Ctmmiat* nKteautA Ae jaif- ■m r, fcnr x i i fhuw rim •^? »• fTIHIS was ao af^ieal from the dedskm t^the iearoed Jtidgf JL ctihe H^ Court of Admiralty in a eawe of eolfiiMM wbidi oeeorred between two British sMp^ die Geot]^ D«an and fbe ConstttotioD, oo fbe eremogof&e lltb of Vebrmry, l^M, near the Skerries, off die coast of Angiesea. Both were saiH^ ships. The George Heam was otAwatd boood from lir^pool, and it was adapted was dose>-faaal^ on the port tack; the Conrtftotion was inward boond, bat her THE CONSTITUTION. 325 course was disputed, her ovvq crew deposing that she was close- 1864. hauled on the starboard tack, whilst the witnesses on the other •'"'» 23. side deposed that she was running free: neither party acted until the last monaent. The sailing rules referred to in the arguments and judgment were the following : — Art. LI. If two sailing ships are meeting end-on or nearly end-on, so as to involve risk of collision, the helms of both shall be put to port, so that each may pass on the port side of the other. Art. 1'2. When two sailing vessels are crossing so as to involve risk of collision, then if they have the wind on different sides, the ship with the wind on the port side shall keep out of the way of the ship with the wind on the starboard side ; except in the case in which the ship with the wind on the port side is close-hauled and the other ship free ; in which case the latter ship shall keep out of the way : but if they have the wind on the same side, or if one of them has the wind aft, the ship which is to windward sivall keep out of the way of the ship which is to leeward. Art. IS. Where by the above rules one of two ships is to keep out of the way. the other shall keep her course, &c. The Court of Admiralty held, that the George Dean was ~o!eIv to blame for the collision. From this judgment the owners of the Geor^ Dean appealed. The principal point in dispute was the course which was being steered by the Constitution. Srrtt, Q. C, and Ln^agtom, £»- tl^ appellants. Dr. JJeoMe, Q. C, and £. C. ClarisoH, for the respondents. The fiJlowing cases were dted upon the treatment of appeals on masters of &ct: Tie Jmlia{a): ScAicalie(li): Araxa{e): FaUtioMd Kd). On the 23rd Joly, Lobd Kisgssowx ddivered the judgment of Jodgmcnt. the Conunhtee. The &rst point to be considered in this case is whether die qnestions of law which arose in it were properiy decided by die feazned Judge, and the questions of fact upon which the d^i^on 326 THE CONSTITUTION. 1864. depends were accurately stated in his summing-up to the Trinity July 23. Masters. Upon this subject we entertain no doubt whatever. We agree with the learned Judge that in the courses in which these vessels met, the 11th of the new Navigation Rules has no application, and that the 12th rule must determine the rights of the parties. The vessels were not meeting end-on, or nearly end-on> and the only question is, — which was bound to get out of the way ? Now the rule prescribes that when two sailing-vessels are cross- ing so as to involve risk of collision, then if they have the wind on opposite sides, the ship with the wind on the port side shall keep out of the way of the ship with the vvind on the starboard side, except in the case in which the ship with the wind on the port side is close-hauled, and the other ship free, in which case the latter ship shall keep out of the way. In this case there is no doubt that the ships were crossing; that they had the wind on opposite sides, the Constitution on the starboard side and the George Dean on the port side. It was therefore the duty of the George Dean to get out of the way, unless the Constitution had the wind free. This is stated by the learned Judge to the Trinity Masters to be the only question in the case, and we entirely agree with him. In dealing with the effect of the evidence we are involved in the greatest difficulty. It depends partly upon the credit due to the witnesses, of which we have but imperfect means of judging, and partly on the inferences which persons of nautical skill, of which we are necessarily destitute, may draw from facts which are established. The Court below saw the witnesses; the Trinity Masters, of whom one was Admiral Collinson, a seaman of the greatest distinction, personally examined the witnesses, and would be far better able to understand them, and to judge of the probability or improbability of their story, than it is possible for us to do even with the assistance which we receive from the able naval officers who are ordered to attend the Committee in these cases. It was argued by Mr. Brett that an appeal in the Judicial Committee is not like an application to a Court of Law for a new trial, where, if there be evidence to warrant the verdict, the Court will often not disturb the finding of the jury (to whom the decision of the fact belongs) though it may not entirely approve of it ; that here we are sitting not only as Judges but as a jury, from which it was inferred that in order to affirm we ought to be satisfied that the finding is that at which we should have arrived if the matter were res Integra. We dp not agree to that principle. We laid down in the case THE CONSTITUTION. 327 of the Julia (a), in the year 1861, the rules by which we must 1864. be guided.- The practice of the Court of Admiralty does not •'"'y ^^- allow of new trials ; and considering that from the pursuits and habits of life of seamen, on whose testimony the questions of fact usually depend, it would generally be impossible in such cases to collect them again for a second trial, as well as for other reasons, we think the rule a wise one. We must either affirm or alter a sentence on appeal, and those who call upon us to alter it must impress us with a reasonable conviction that it is wrong. We certainly are unable to arrive at that conviction in the present case. The evidence is entirely contradictory upon many points, but in some, where the contradiction is the strongest, there seems to us to be reasons for thinking that the error is rather on the side of the appellants than of the respondents. [His Lordship then examined the evidence in detail and concluded] : — Upon the whole, though we think the case one of much doubt, we cannot be satisfied that the decision below is erro- neous. We must humbly report to her Majesty our opinion that it ought to be affirmed, but without costs. Pritchard Sf Sons, proctors for the appellants* Rothery, proctor for the respondents. (a) Lushington, 224. B. L. 328 THE BETA. 1865. Feb. 9. In t^e 33nbs Countil. Present — Lord Chelmsford. Lord Justice Knight Bruce. Lord Justice Turner. THE BETA. Pilot's Licence — Renewal of— 17 8f 18 Vict. c. 104, s. 374. The 374th section of " The Merchant Shipping Act, 1854," provides that no licence granted by the Trinity House shall " continue in force beyond the 81st day of January next ensuing the date of such licence; but the same may, upon the application of the pilot holding such licence, be renewed on such 31st day of January in every year, or any subsequent day, by indorse- ment under the hand of the Secretary of the Trinity House, or such other person as may be appointed by them for that purpose." Held, that a pilot's licence, renewed by indorsement made on the 22nd of January, operated a renewal from the 31st of January, and was therefore in effect on the 6th of May following. THIS was an appeal from the judgment of the High Court of Admiralty in a cause of damage brought by the owners of the barque Fides against the owners of the screw steamship Beta, in respect of a collision which occurred between those vessels on the 6th May, 1864, in the River Thames. One of the defences pleaded by the owners of the Beta was that the collision was solely caused by the default of the pilot, who was employed by compulsion of law. The place of colli- sion was in the London district of the Trinity House, as defined by the 370th section of the Merchant Shipping Act. The Beta was at the time carrying passengers from London to Waterford, and by the 376th section the employment of a qualified, that is, a duly licensed pilot, was compulsory. The cause was heard before Dr. Lushington and Trinity Masters. It was proved at the trial that the pilot James Voss came on board the Beta in the usual manner at East Lane Tier and took charge, and was acting in charge of the ship at the time of the collision. On the production of his licence, an objection was taken to its sufficiency under the 374th section of the 17 & 18 Vict. c. 104. The certificate had been originally granted in 1855, and had been renewed on an early day in January in each year. Each renewal was indorsed and was in the same terms, the last one being — " Renewed, pursuant to the Merchant Shipping Act, on the 22nd day of January, 1864'." THE BETA. 329 A fee of three guineas had been paid by the pilot to the 1865. Trinity House upon each renewal. Feb. 9. The following sections of the statute (17 & 18 Vict. c. 104) were cited : — Sect. 2. " Qualified pilot shall mean any person duly licensed by any pilotage authority to conduct ships to which he does not belong." Sect. 374. " Subject to any alteration to be made by the Trinity House, no licence granted by them shall continue in force beyond the 31st day of January next ensuing the date of such licence ; but the same may, upon the application of the pilot holding such licence, be renewed on such 31st day of January in every year, or any subsequent day, by indorsement under the hand of the Secretary of the Trinity House, or such other person as may be appointed for that purpose." Sect. 376. " Subject to any alteration to be made by the Trinity House, and to the exemptions hereinafter contained, the pilotage districts of the Trinity House within which the em- ployment of pilots is compulsory, are the London district and the Trinity House outport districts, as hereinbefore defined : and the master of every ship navigating within any part of such dis- trict or districts, who, after a qualified pilot has offered to take charge of such ship, or has made a signal for that purpose, either himself pilots such ship without possessing a certificate enabling himself so to do, or employs or continues to employ an unqualified person to pilot her, shall for every such offence, in addition to the penalty hereinbefore specified, &c." Sect. 388. " No owner or master of any ship shall be answer- able to any person whatever for any loss or damage occasioned by the fault or incapacity of any qualified pilot acting in charge of such ship, within any district where the employment of such pilot is compulsory by law." No alteration had been made by the Trinity House under either the 374th or the 376th section. The Solicitor-General (Sir R. Collier) and Lushivgton, for the plaintiffs. — The licence is bad, and the employment of the pilot was therefore not compulsory. The 374th section appoints that all licences shall expire on the 31st of January in each year; that they may be renewed on that day or on any subse- quent day. Here the licence was renewed on a prior day. But if the renewal was good, and gave a new date to the licence, it would not continue in force " beyond the 31st day of January next ensuing." It had therefore expired before the date of this collision. z2 330 THE BETA. 1865. Dr. Deane, Q.C., and Clarkson, for the defendants. — It cannot ^'*' ^' have been the intention of the statute that all the pilots should come to the Trinity House on the 31st of January every year, to have their licences renewed. If so, either there could be no pilots at sea that day or for days previous, or, if any pilots were at sea that day, they would be without their licences, and have no lawful authority. It must have been intended that a pilot should be able to get the indorsement of renewal made before his licence expired : the renewal itself would operate from the 31st January. The indorsement is to be made "upon the ap- plication of the pilot holding such licence." The Court having found that the collision was occasioned solely by the fault of the pilot of the Beta, Dr. Lushington said : — It remains for me to determine whether the pilot was duly licensed within the terms of the 374th section of the Merchant Shipping Act. The licence which I hold in my hand was originally given in the year 1 855 ; and it conferred a licence from thenceforth up to the 31st January next ensuing and no longer. There have been several renewals of this licence, and the last of them was on the 22nd January, 1864. The collision took place on the 6th May, 1864. It has been contended by the Solicitor-General that this re- newed licence only lasted till the 31st January, 1864; that, con- sequently, at the time of the collision, there was no operative licence; that the pilot was not duly licensed ; that he was not employed by compulsion of law ; and that his employers are responsible for his act. On the other hand it is urged that the pilot was duly licensed according to the section. I am obliged to confess that both the proposed constructions of the section are unsatisfactory, though in different respects. If, however, very serious consequences to the beneficial and reasonable operation of the Act necessarily follow from one con- struction, I apprehend that, unless the words imperatively for- bid, it is the duty of the Court to prefer the construction ut res magis valeat quam pereat. It is argued by the counsel for the defendants, that, if the construction urged by the Solicitor-General be adopted, it will be next to impossible to get any licensed pilot in the month of January in every year; for all the pilots would be compelled to come to town with their licences for the purpose of getting them renewed. It must be recollected that a pilot cannot separate himself THE BETA. 331 from his licence ; because he is bound to have his licence with 1865. him, and to produce it when he boards a vessel and takes Feb.9. charge of her. That difficulty has been most rightly urged. It would be a matter of the greatest inconvenience to navigation that pilots should be without licences, or should be compelled to come in a body for the purpose of renewing them. On the other hand, I am aware that if I adopt the construc- tion of Dr. Deane, I declare that the licence may be renewed at any time during the year of its currency, whereas it would appear to be consonant both to the terms and the intention of the Act, that the licence should not be renewed until the ap- pointed time for its expiration, and when the conduct of the pilot has been such as to merit the renewal of such licence. The section begins with these words : — " Subject to any alteration to be made by the Trinity House, no licence granted by them shall continue in force beyond the 31st day of January next ensuing the date of such licence." This is plain enough as applied to an original licence ; but the question is, what is the meaning of the words " date of such licence," when applied to a renewed licence ? The section continues, — " but the same may, upon the application of the pilot holding such licence, be renewed on such 31st day of January in every year, or on any subsequent day, by indorsement under the hand of the Secretary of the Trinity House, or such other person as may be appointed by them for that purpose." These words admit of the interpre- tation that the indorsement of renewal is the renewal, and can- not be made except on the 31st of January, the day on which the licence would expire, or on some subsequent day. But as obvious mischief such as I have pointed out would ensue from this construction; as the section speaks of application by the pilot holding such licence, that is, during the currency of the licence, and contains nothing to forbid the indorsement operating from the expiration of the old licence, I consider myself justified in deciding, that as this application for a renewal was made while the licence was still in force, and the indorsement of renewal was made thereupon, such renewal operated from the 31st of January, the date upon which -the subsisting licence expired. I therefore hold this pilot to have been duly licensed, and dismiss the action of the plaintiffs ; but as usual in these cases without costs. The Queen's Advocate (Sir R. Phillimore) and the Admiralty Advocate (Dr. Twiss, Q.C.), for the appellants.— The exemption from responsibility claimed by the respondents does not apply unless the pilot was a qualified, that is, a duly licensed pilot. 332 THE BETA. 1865. We submit that this pilot was not duly licensed. The 374tli ^g*- ^- sectioti provides in effect that all licences original or renewed expire on the 31st of January in each year; and that a licence can be renewed on the date of its expiration or on any sub- sequent day. Here the licence was renewed before its expira- tion ; and if the renewal was then valid it operated only until the 31st January "next ensuing." The interpretation given in the judgment below to the word "renewed," separating the form of renewal from the effect 6f re- newal, is not justified by the language of the section or by the practice of the Trinity House. If this renewal dated " 22 January" takes effect from the ensuing 31st January, does a renewal dated "1 Feb." take effect from the 31st January of the following year? If the point be dojjbtful, the decision should be against the liability of the subject to a penalty, that is, against . the compulsory pilotage. Dr. Deane, Q. C. and Clarkson, contra. -^We submit that the judgment below was correct. There is nothing unreasonable in the indorsement taking place at one date, and the renewal taking effect at another ; and when the nature of the pilot service is considered, and especially the fact that the pilot when at sea must carry his licence with him as his authority, Hammond v. J3lake (a), nothing can be more reasonable, or even more necessary. The date it will be observed in the statute goes with " renewed," and not necessarily with the words " by indorse- ment." Whether the indorsement operates immediate renewal or not depends upon whether the original licence is subsisting or not. But, secondly, whether the pilot was duly licensed or not, he was employed under the belief, and the reasonable belief, that the law required itj he was not voluntarily employed by the respondents, he was not their servant, and they ought not to be responsible for his act. The express statutory exemption is founded upon this, that the pilot is imposed upon the ship with- out the will of the owners ; Diana {b) ; and the Judge of the Admiralty Court has held, that the statute only gives expression to the exemption which exists independently by the true doctrine of principal and agent; Maria{c); Annapolis {d); that exemption would apply here. Judgment. LoRD JUSTICE TuENER delivered the judgment of the Com- mittee. This case depends mainly, if not entirely, upon the construc- (o) 10 B. & C. 424. (c) 1 W. Rob. 107. (6) 4 Moore, P. C. 17. W Lushington's Rep. 812. THE BETA. 333 tion to be put upon the 374th section of the Merchant Shipping 1865. Act, 17 & 18 Vict. c. 104. The section is in. these terms (his feh. 9. Lordship read the section, ante, page 329). To say there is no difficulty in the construction of this section would be going perhaps a little too far; but their Lordships have arrived at a clear conclusion upon what is the right construction. It seems to their Lordships that the section admits of two constructions, at least that part of it which it is necessary to consider upon the present occasion, namely, that part which refers to the renewal of the licence. It may either mean that the act of renewal is to be done on the 31st of January next ensuing, or any subsequent day, or that the effect of the renewal when made is to be from the 31st January, or from the subsequent day on which the renewal may be made, and the question seems to their Lordships to depend upon whether the act of renewal, or the effect of renewal, was what the legislature was looking to at the time the statute was framed; and they are of opinion that what the legislature intended was the effect of the renewal, whether made on the 3 1st January or any subsequent day. That construction falls in with the provision of the 388th section of the Act, by which the owners of a ship are exonerated from liability by the fault or incapacity of any qualified pilot acting in charge of the ship. It never could, in their Lordships' estimation, have been the in- tention of the legislature that the master or shipowner's liability should depend upon the date when the pilot's licence should have been renewed by the Trinity House, whether it was renewed before or after the 31st January in any year; but it might well depend upon the circumstance of the renewal taking effect before or after the 31st January. Again, the construction of the 374th section which their Lordships are giving falls in with the general convenience and almost the necessity of the case, because it is obvious that the greatest possible inconvenience must result in all cases, if the construction contended for on the part of the appellants in this case could be maintained ; for the necessary consequence would be that from a certain period, certainly hours, probably days, and possibly weeks, there would be no qualified pilots within particular parts of the district to which the Act of Parliament applies. Looking, therefore, to the language of that section and the inconvenience that would result from the con- struction contended for by the appellants being maintained, their Lordships agree entirely with the leahied Judge of the Admiralty Court from whose decision this appeal has been 334 THE BETA. 1865. brought, and think that the appeal should be dismissed and Feb. 9. with costs. Stokes, proctor for the appellants. Clarkson, Son 8f Cooper, proctors for the respondents. THE MARY ANNE. Salvage — Jurisdiction on Appeal from Justices — " Sum in Dis- pute"— M Sf 18 Vict. c. 104, s. 464. The 464th section of the Merchant Shipping Act provides that no appeal shall be allowed from a salvage award of justices, " unless the sum in dispute exceeds SOI." Held, that the "sum in dispute" means the sum claimed by the salvors (a). Salvors sent in a formal demand in writing for 40Z. ; on this being refused, they claimed before the justices "a sum not exceeding 2002." The justices found no salvage was due ; the salvors appealed to the Admiralty Court. Held, that " the sum in dispute " was the Mil. thus claimed, and that therefore the Admiralty Court had no jurisdiction to entertain the appeal. March 3. TTIHIS was an appeal from the award of two justices of the J- peace at Southampton in an alleged cause of salvage, and the respondents questioned the jurisdiction of the Admiralty Court on the ground that " the sum in dispute" did not exceed 50^., and that therefore under the 464th section of the Merchant Shipping Act no appeal should be allowed. The facts were as follow : — ^_ A dispute arose between the master of the Mary Anne and the alleged salvors, as to whether anything or what was due for salvage : the salvors sent in a formal claim, as follows : — " Dock Chambers, Canute Road, Southampton, 1863. Captain and owners brig Mary Anne drs. to the Southampton Steam Towing Company (Limited). Dec. 31. To towing of ship's boat to brig, towing brig off Brambles, thence to Bri- tannia Wharf £40 : Os. Od." When the salvors came before the justices of the peace, they (a) See 9 & 10 Vict, c. 99, ss. 21, 23, repealed by 17 & 18 Vict. c. 120. THE MARY ANNE. 335 demanded no specific sum ; but as appeared from the award of 1865. the justices, they " claimed a sum not exceeding 200Z.," that ^"^'^ ^- sum 200Z. being the extreme sura that could be claimed before the justices under the 460th section of the Merchant Shipping Act. The justices were of opinion that no salvage was due, and awarded accordingly. The 464th section of the Merchant Shipping Act is as follows : — " If any person is aggrieved by the award of such justices or such umpire as aforesaid, he may in England appeal to the High Court of Admiralty of England, in Ireland to the High Court of Admiralty of Ireland, and in Scotland to the Court of Session ; but no such appeal shall be allowed unless the sum in dispute exceeds 50/." Dr. Deane, Q. C, and Lushington, for the salvors, argued that the " sum in dispute" was the sum claimed before the justices, which ought to be treated as 200Z., notwithstanding the previous claim for 40Z. The Admiralty Advocate and Clarkson, for the defendants, argued that the " sum in dispute" was the sum originally claimed, viz. 40Z. Dr. Lushington. — In the case of the Andrew Wilson (a), I Judgment, held that the " sum in dispute" was not the sum awarded by the justices but the sum claimed by the salvors. Now I lay out of my consideration all loose expressions which may have occurred in conversation between the master of the Mary Anne and the salvors; but it is clear that the salvors made a formal demand in writing for 40Z. The plaintiffs by making this demand may not absolutely have debarred themselves from suing for a larger sum ; but their demand from the justices was not for a sum exceeding 50Z., but for a sum not exceeding 200/. I think this must be taken to have reference to the previous claim of 40/., and there- fore to constitute "the sum in dispute." The Court accordingly cannot entertain this appeal. It has been contended that the objection to the jurisdiction has been taken too late; but I ap- prehend if at any time the Court discover it has no jurisdiction, it cannot proceed further : the delay of one or both parties cannot confer jurisdiction. The appeal must be dismissed with costs. Waddilove, proctor for the appellants. Clarkson, Son ^ Cooper, proctors for the respondent. (o) Ante, p. 58. 336 THE SPIRIT OF THE OCEAN. 1865. Jan. 31. March -3. THE SPIRIT OF THE OCEAN. Limited Liability — Registration — " Owners " — 25 Sf 26 Vict. c. 63, s. 64. The word "owners" in the 54th section of the 25 & 26 Vict. c. 63, which gives limited liability in certain cases to " the owners of any ship," includes un- registered as well as registered owners. If the loss is occasioned by the actual fault of one of several part-owners, his co-owners are not thereby precluded from a right to the limited liability given by the statute. On the 24th July, Cary junior, a registered part-owner of a vessel, transferred his shares, by bill of sale, to Cary senior. This bill of sale was not registered until after the 22nd November, on which day a collision took place, Cary junior being on board and in command of the vessel as master. It was not denied that he personally was in fault. On a cause for limited liability being instituted by Cary senior, and by all the registered owners of the vessel except Cary junior : Held, that they were all entitled to the privilege of limited liability given by the statute. A CAUSE (No. 2453) having been instituted on the 23rd November, 1864, by the owners of the Robin Hood against the Spirit of the Ocean to recover damages occasioned by a collision between those two vessels, this cause was instituted by the owners of the Spirit of the Ocean under the 12th section of the Admiralty Court Act, 24 Vict, c, 10, and the 614th section of the Merchant Shipping Act, 1854, for the purpose of limiting their hability for damage to ship and goods according to the 54th section of the Merchant Shipping Act Amendment Act, 1862, and distributing the fund amongst the various claimants. Roulle Cary jun., the master of the Spirit of the Ocean, had in the month of January, 1864, become the registered owner of six sixty-fourths of the ship. On the 24th of July following, he by bill of sale transferred his shares to his father, Cary sen. On the 22nd of November, 1864, the collision took place; at the time of the collision, Cary jun. was on board, and in command of the ship, and it was not denied that the collision was occasioned by his fault. The bill of sale of his shares to his father had not then been registered, and was not registered until the 30th of November. The cause for limited liability was instituted on the 2nd December by Roulle Cary sen. and by the registered owners of the remaining fifty- eight sixty-fourth shares. THE SPIRIT OF THE OCEAN. 337 Mareh 3. The sections of the statute 25 & 26 Vict, c, 63, material to the 1865. argument and judgment, are as follows : — Jm. Si. Sect. 1. " This Act may be cited as the Merchant Shipping Act Amendment Act^ 1862, and shall be construed with and as part of the Merchant Shipping Act, 1854, hereinafter termed the principal Act." Registry and Measurement of Tonnage. (Part II. of Merchant Shipping Act, 1854.) Sect. 3. " It is hereby declared that the expression ' beneficial interest ' whenever used in the second part of the principal Act includes interests arising under contract and Other equitable interests; and the intention of the said Act is that without pre- judice to the provisions contained in the said Act for preventing notice of trusts frdni being entered in the register book or re- ceived by the registrar, and without prejudice to the powers of disposition and of giving receipts conferred by the said Act on registered owners or mortgagees, and without prejudice to the provisions contained in the said Act relating to the exclusion of unqualified persons from the ownership of British ships, equities may be enforced against owners and mortgagees of ships in respect of their interest therein, in the same manner as equities may be enforced against them in respect of any other pergonal property," Limitation of Shipowners. (Part IX. of Merchant Shipping Act, 1854.) Sect. 64. " The owners of any ship, whether British or foreign, shall not ift cases where all or any of the following events OCcur without their actual fault or privity, that is to say,— (1) Where any loss of life or pergonal injury is caused to any person being carried in sUch ship ; (2) Where any damage or loSs is caused to any goods, merchandise, or other things whatsoever on board any such ship ; (3) Where any loss of life or personal injury is by reason of the improper navigation of such ship as aforesaid caused to any person carried in atiy other ship or boat; (4) Where any loss or damage is by reason of the improper navigation of such ship as aforesaid caused to any other ship or boat, or to any goods, merchandise, or other things whatsoever on board any other ship or boat; be answerable in damages in reSpect of loss of life or personal 338 THE SPIRIT OF THE OCEAN. 1865. injury, either alone or together with loss or damage to ships, i?"'A3 boats, goods, merchandise, or other things, to an aggregate amount exceeding fifteen pounds for each ton of their ship's tonnage; nor in respect of loss or damage to ships, goods, merchandise, or other things, whether there be in addition loss of life or personal injury or not, to an aggregate amount exceed- ing eight pounds for each ton of the ship's tonnage; such tonnage to be the registered tonnage in the case of sailing ships, and in the case of steam ships the gross tonnage without deduction on account of engine-room." Clarkson for the plaintiffs. Lushington for the defendants, the owners of the Robin Hood and her cargo. — Limited liability is given by the statute only, 25 & 26 Vict. c. 63, and here the statute does not apply. 1st. The word "owners" throughout the Merchant Shipping Act and the Amendment Act means "registered owners:" equitable ownei's are spoken of as persons " beneficially interested in ships" (17 & 18 Vict. c. 104, s. 100). The 3rd section of the Amend- ment Act only provides that " equities may be enforced against owners and mortgagees of ships." Gary the father is, therefore, not entitled to limited liability ; but is as responsible as if there were no such statute : Nostra Signora de los Dolores (a). 2ndly. Gary the son, being a registered part-owner, was one of the " owners of the ship " within the statute ; and the loss was occasioned by his fault. The other registered part-owners there- fore, it is submitted, are not entitled to limited liability. The statute says, "The owners of any ship shall not, in cases where loss occurs without their actual fault or privity, be answerable to an aggregate amount exceeding, &c." These terms point to a collective liability, especially when contrasted with the terras of former enactments respecting limited liability: 53 Geo. III. c. 159, s. 1 ; 17 & 18 Vict. c. 104, s. 504. E. C, Clarkson, in reply. — The word " owners " in the Mer- chant Shipping Act and Amendment Act means equitable as well as registered owners : sections 18, 38, 39, 42, 43, 44, 66, 68, 62, and 516 of the Merchant Shipping Act, 1854. Such at "any rate must be its meaning here ; for the section would otherwise be nugatory as applied to foreign ships, notwithstand- ing they are expressly included. Gary senior is therefore en- titled to the benefit of the statute. (a) 1 Dodson, 297. THE SPIRIT OF THE OCEAN. 339 In any case the other registered co-owners cannot be pre- 1865. judiced by the act of Gary junior, even if he is " owner." The Jan. 31. collision did not take place by " their actual fault ;" co-owners '■ — '- — of a ship are not a corporation nor are they partners. By the 13 & 14 Vict. c. 21, s. 4, the Act "for shortening the language used in Acts of Parliament," the plural includes the singular unless the contrary is expressly provided. Here the obvious intention of the statute is to give limited liability to each part-owner. This is established by the history of the privilege : Wilson v. Dicksonifl) ; 17 & 18 Vict. c. 104, s. 504. Cur. adv. vult. Dr. Lushington [after stating the facts]. — If the word "owners" in this section meant registered owners only, I should still hold that the fault of Gary the son, who was a re- gistered part-owner, could not deprive the absent co-owners of the right of limited liability. To hold otherwise would be contrary to the principle of this statute, and I may say all the other statutes conferring the right of hmited liability, for the only ground of exception to this right which is prescribed is " actual fault or privity." The very purpose of all these statutes has been to limit the responsibility of one man fcr the act of others. I think the judgment of Wilson v. Dickson{a) is applicable here, although given upon the words of an earlier statute. It is true that there is a difference in the phraseology of the statutes, as pointed out in the argument, yet it is impossible to infer there- from that the legislature intended to impose a new liability, and make one owner responsible for the default of another owner. The remaining question is whether the privilege of limited liability which is given in this statute to " owners " is given to equitable as well as to registered owners. Looking to the fact that but for the statute an equitable owner or part-owner might be liable to the full extent of all damage occasioned by the im- proper navigation of the ship ; and considering the obvious intention of the legislature to be to relieve ship-owners from such unlimited responsibility, I am of opinion that the word "owners" here is not confined to registered owners, but applies to what is called equitable owners, that is, owners who are not registered. All the reasons upon which limited liability is founded apply equally to unregistered as to registered owners : and I see nothing in the Act to prevent me giving that con- struction to the section. Mr. Gary senior therefore, as well as the other plaintiffs, is entitled to the benefit of the statute. (a) 2 B. & Aid. 10. 340 THE SPIRIT OF THE OCEAN. 1865. ^ pronounce for the prayer contained in the petition, together Jem. 31. with the costs of opposing it. March S. ~ The minute recorded was as follows : — " The Judge pronounced, That the owners of the vessel Spirit of the Ocean are entitled to limited liability according to the pro- visions of the Merchant Shipping Act, 1854, and the Merchant Shipping Act Amendment Act, 1862, and* that in respect of - loss or damage to ships, goods, merchandise, or other things, caused by reason of the improper navigation of the said vessel Spirit of the Ocean on the occasion of the collision between the said vessel Spirit of the Ocean and the vessel Robin Hood, on the 22nd day of November, 1864, the owners of the said vessel Spirit of the Ocean are answerable in damages to the amount of £4,624, and no more ; being at the rate of £8 per ton for each ton of the registered tonnage of the said vessel Spirit of the Ocean. "And ordered that upon payment info Court of the said sum of £4,624 with interest thereon at the rate £4 per cent, per annum until such payment into Court, and upon payment of the costs incurred in Cause No. 2453 on behalf of the plaintiffs therein, all further proceedings in said cause be stayed. "The Judge further ordered that three advertisements should be inserted at an interval of not less than a week between each advertisement in each of the following papers, viz., the Times, the Shipping and Mercantile Gazette, and a Liverpool daily paper of large circulation, intimating to all persons having any claim in respect of the loss or damage caused as aforesaid, that if they do not come in and enter their claims in this cause on or before the 31st day of May next ensuing, they will be excluded from sharing in the aforesaid amount j the last of such advertise- ments to be inserted on or before the 15th day of the said month of May. And he referred all claims brought in or to be brought in to the Registrar, assisted by merchants, to report the amount thereof The Judge further condemned the defendants in the costs occasioned by their opposition to the prayer of the plain- tiffs, but condemned the plaintiffs in all other costs of the cause." The time for filing claims was afterwards extended from time to time to the 14th December, 1865. The total loss proved before the Registrar by the various claimants amounted to £38,891 : 2s. 3c?. The Registrar reported the proportionate amounts respectively due to each claimant, adding " With interest thereon at four per cent, per annum from the 22nd November, 1864, until paid." THE SPIRIT OF THE OCEAN. Clarhson, Son ^ Cooper, proctors for the owners of the Spirit of the Ocean. Pritchard 8f Sons, proctors for the owners of the Robin Hood. 341 The Judge eventually decreed a monition against the plaintiffs 1865. for payment of some of the principal claims with interest as re- Jan. 31. ported by the Registrar, and taxed costs. MarchS. hx ii)t 33ribjj Countil. Present — Lord Chelmsford. Lord Justice Knight Bruce. Lord Justice Turner. THE FUSILIER. Life-salvage — Liability of Cargo — 17 i^ 18 Vict. c. 104, ss. 458, 459 — " Persons belonging to suck Ship " — Pas- sengers — Measure of Salvage — Apportionment of Salvage. The owners of the cargo of a vessel to which salvage services have been rendered are liable under the 458th section of " The Merchant Shipping Act, 1854," to contribute to that portion of the claim of the salvors which arises from the saving of the lives of persons belonging to the ship. The words " persons belonging to such ship" in the 458th section include pas- sengers. The value of the salvors' property endangered in the service does not limit their salvage remuneration to that sum. ON the 29th of November, 1863, the Fusilier, a British ship of 1088 tons, left London with a cargo of general mer- chandise and ninety-five passengers, bound to Port Philip in the colony of Victoria. On the 3rd of December, about 5.30 p.m., in a violent tempest the ship drove on the Girdler Sand off Mar- gate, struck heavily fore and aft and fell over on her bilge in the sand. She was undoubtedly in great danger, and continual signals of distress were made all night. The signals were ob- served from the light ships in the Pi'inces' Channel, and were by them repeated to Margate, whence information was taken to the harbour-master at Ramsgate. Under the harbour-master's directions the hfeboat Northum- berland was towed out by the steam-tug Aid to render assist- March 8. 342 THE FUSILIER. 1865. ance. The lifeboat was manned by a volunteer crew of twelve ^""^ ^- hands, and the steam-tug was manned by seven hands. They proceeded round the North Foreland into the Princes' Channel, and after some time found the Fusilier aground. The lifeboat was then dispatched to her assistance, and in three trips succeeded in taking all the passengers, including many women and children, from the ship to the tug. This was effected by about 7 a.m. With these passengers on board the tug then proceeded towards Ramsgate, taking also an order from the master of the Fusilier for an anchor and chain. The lifeboat returned to the Fusilier, but was shortly summoned by signals from the tug to assist in rescuing the crew of another vessel called the Demerara. The lifeboat then left the Fusilier and did not return again. The steam-tug Aid with the lifeboat in tow arrived in Ramsgate about noon on the 4th December. The anchor and chain which had been ordered were got on board two luggers, the Champion and Lotus, of about 500/. and 200Z. value respectively; they carried between them fifteen hands, among whom were the crew who had previously manned the lifeboat. They left Ramsgate about 6 p.m. on the 4th December, in tow of the Aid, and about midnight anchored off the Fusilier. On the following morning the Aid, with (wo other tugs employed by the ship, endeavoured unsuccessfully to tow the Fusilier off the sand. The Aid, after offering her services in taking out the cargo, which were refused, returned finally to Ramsgate. On the same day (the 6th of December) the luggers were ordered by the pilot of the Fusilier to proceed to the Nore and to wait there until the weather was finer. They arrived at the Nore on the evening of the 6th of December and remained there till the 10th. On that day they returned to the Fusilier, but were ordered back again to the Nore. The Fusilier was got oft" the sand on the 11th and was towed up to Blackwall, where the luggers followed her. After discharging the anchor and chain at Blackwall, the luggers returned to Ramsgate, arriving there on the 14th of December. The value of the ship was 2,500/., of the freight 2,581/., and of the cargo 52,000/., the value of the ship being taken when she came off the sands, and the freight being the gross freight to be earned on the intended voyage. On the 20th of January, 1864, a cause of salvage was insti- tuted in the High Court of Admiralty on behalf of the masters and crews of the steam-tug Aid and the lifeboat Northumber- land, and also on behalf of the owners, masters and crews of the luggers Champion and Lotus against the vessel Fusilier, her THE FUSILIER. 343 cargo and freight. James Baines & Co. of Liverpool, the owners 1865. of the Fusilier, and Bligh and others the owners of the cargo, ■"^""•"^ ^- instituted separate appearances. On the 22nd January, a cause of salvage was instituted on behalf of the owners of the steam-tug Aid and of the lifeboat Northumberland against the vessel Fusilier, her cargo and freight. James Baines & Co., of Liverpool, the owners of the Fusilier, and Bligh and others the owners of the cargo, instituted separate appearances. On the 2nd February the two causes were consolidated. The cause was heard before Dr. Lushington on the 8th of June. There was no dispute as to the facts of the case, but it was argued on behalf of both sets of defendants, that neither the ship, freight or cargo, nor the owners thereof, were liable in law to pay compensation for the saving the lives of the passengers. Considerations respecting the amount of salvage due to the plaintiffs for their services (whatsoever) were also submitted by the counsel for the defendants. The 458th and 459th sections of the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), are as follows:— Sect. 458. " In the following cases, (that is to say,) Whenever any ship or boat is stranded or otherwise in distress on the shore of any sea or tidal water situate within the limits of the United Kingdom, and services are rendered by any person, (1) In assisting such ship or boat; (2) In saving the lives of the persons belonging to such ship or boat ; (3) In saving the cargo or apparel of such ship or boat or any portion thereof; And whenever any wreck is saved by any person other than a Receiver within the United Kingdom ; There shall be payable by the owners of such ship or boat, cargo, apparel or wreck, to the person by whom such services or any of them are rendered, or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses pro- perly incurred by him in the performance of such services or the saving of such wreck, the amount of such salvage and ex- penses (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner herein- after mentioned." Sect. 459. " Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship or B.L. AA 344 THE FUSILIER. 1865. March 8. Judgment. boat as aforesaid shall be payable by the owners of the ship or boat in priority to all other claims for salvage; and in cases where such ship or boat is destroyed, or where the value thereof is insufficient, after payment of the actual expenses incurred, to pay the amount of salvage due in respect of any life or lives, the Board of Trade may in its discretion award to the salvors of such life or hves out of the Mercantile Marine Fund such sum or sums as it deems fit, in whole or part satisfaction of any amount of salvage so left unpaid in respect of such life or lives." On the 14th of June, Dr. Lushington delivered judgment. In this case important services have been rendered by the salvors. Those services consisted partly in saving the ship and cargo, but chiefly in saving the lives of ninety-five passengers. And the chief question is, whether in any shape the cargo is liable to contribute to this life salvage. I will begin by stating what was the law of the Court respect- ing hfe salvage before any statute was passed on the subject of salvage. Where no property had been saved, and life alone had been preserved from destruction, no suit for salvage reward could be maintained. One reason for this state of the law was, that no property could be arrested applicable to the purpose. There could be no proceeding in rem, the ancient foundation of a salvage suit. In some cases it happened that one set of persons exclusively saved life, and another wholly distinct set saved the ship and cargo; but in this case also the salvors of life could not render the property amenable to their claims. But where life and property had been saved by one set of salvors, it was the practice of the Court to give a larger amount of salvage than if the property only had been saved ; and this doctrine rests on high authority. The practice, too, was that all the property saved should be liable to pay such increased rate of salvage, the ship, the freight, and the cargo, each in proportion to its value. Such being the state of the law and practice of the Court, — what was the grievance which required the interposition of the legislature ? That grievance clearly was, that persons who at the risk of their own lives, perhaps, had saved life only, or with very little property, could not be justly compensated. The lead- ing motive, then, for a legislative enactment was to encourage the saving of life by providing a reward for it; but there was a subsidiary ground-'the encouragement of salvors generally, for such reward operates as a further incentive to salvage exer- THE FUSILIER. 345 tions. This being so, it would be reasonable to suppose that the 1865. remedy given by the legislature would supply what was wanting March 8. in the old law, but would make no other change. This brings me to the consideration of the 458th section of the Merchant Shipping Act, upon which the question now depends. That section begins by defining what constitutes a salvage service ; it states three special heads — salvage services to ship, life salvage, and salvage services to cargo, which, when occur- ring separately, or in any combination, are to be salvage services. The section then goes on to declare, that payment shall be made by the owner of the ship or cargo of a reasonable amount of salvage. If the statute ended here, I should say that the efiPect of it was simply to constitute the saving of life to be per se a salvage service, and to leave the mode of payment to be accord- ing to former practice; for I cannot find any words in this section adequate to effect so serious a change in the law as to introduce a new system of payment, in substitution of the ancient rule which, where life was saved together with ship and cargo by a single set of salvors, threw upon the cargo a part of the proportionate increase of the salvage reward. The existing grievance was not the mode of payment — charging the cargo in part — but the absence, in some cases, of all payment for Hfe salvage. I must resume this question when I come to the consideration of the 469th section, but I think it would be most convenient first to dispose of all matters in dispute arising with respect to the 458th section. It has been said that the words "in saving the lives of the persons belonging to the ship or boat" do not include passengers. If this argument be well founded, then it follows that the saving the lives of passengers is not to be paid for at all, either by the ship, or cargo or otherwise, or, in other words, that it does not constitute a salvage service; and that the legislature, in defining what constitutes a salvage service, has omitted it. Consider this in two ways : first, by simply refer- ring to the words of the section ; secondly, by looking to the reasons for inclusion or exclusion. If the master and crew alone were meant, why did not the legislature express their intention in plain terms? Nothing could have been more easy than to have said " master and crew," but these are not the words used. Then, as to the words " belonging to such ship" — "belonging" is certainly a word of ancipitis usus with reference to the subject- matter; but one of the rules of construing statutes, and a wise rule too, is, that they shall be construed loquitur ut vulgus, that is, according to the common understanding and acceptation of the terms ; and I think that nothing is more common than to A A 2 346 THE FUSILIER. 1865. say of passengers by a ship, that they are persons belonging March 8. to the ship. Upon these grounds alone I should hold that "persons belonging to the ship" included passengers. But looking to the reason of the thing, the lives of passengers are surely as valuable as those of the master and crew ; and it would be somewhat strange that the legislature, in providing for salvage for saving life, should exclude this class of persons. The object of the legislature must be, surely, to save all, and not only a particular designation of persons. The more extensive also the construction, the greater is the reward, and the greater the encouragement to encounter difficulty and danger. A con- trary construction would be, in effect, to say to the salvors, " Never mind the passengers ;" in other words, an inducement to abandon life and to save property instead, and this in direct opposition to all moral obligations, which I must consider, and am by law bound to consider, as the foundation of all legisla- tion. I have no doubt, therefore, that passengers are included in this section. I now come to consider the 459th section. I do not hesitate to say, that I have experienced doubt and difficulty in my en- deavours to ascertain the true meaning of this section. The word "cargo" is not to be found in it. It is by inference only that the law relating to the payment of life salvage by the cargo can be affected. That law must remain as it was, unless I can fairly arrive at the conclusion that the legislature has intended to alter it, and has done so. This section requires that the owner of the ship shall pay salvage for life in priority to all other claims ; and, in case the ship is destroyed, or is of too small a value, the Board of Trade may pay what is needful from the Mercantile Marine Fund. This enactment proves the anxiety of the legislature that salvage for saving life shall always be paid, but leaves a doubt whether it was intended to alter the old law, or only to supply what was wanting under the old law ; whether it was intended to throw the whole burden in all cases on the ship, or only to give priority of payment when the ship was the only fund to which recourse could be had. The construction that cargo should not contribute to life sal- vage would, as I have said, work a great change in the law, and go much beyond the grievance which existed — the want of reward for life Salvage alone. It has been said, what in- terest have the owners of the cargo in the saving of the lives of the master and crew, or the lives of the passengers ? why should they be taxed for the saving of life? is it not suflBcient for them to pay for the salvage of their own property ? This may appear to be a strong argument ; but is the payment of THE FUSILIER. 347 life salvage always founded upon the benefit reaped by the party 1865, who is called upon to pay ? Both by this statute, and by the ■"^"'■cA 8. law before the statute, the owner of the ship might pay for life salvage when he reaped little or no benefit therefrom. By this statute the owner of the ship must pay to the utmost extent of the little which may be saved. The salvors of life must be paid in priority, even where the salvors of the ship are different persons, and that, too, in cases where it might be very diflicult to affirm that the owner of the ship was benefited by the saving the lives of the master and crew, or the passengers. The ground, therefore, for charging the ship with the payment of salvage for life is not the actual benefit received by the shipowner in the particular case. The same reasoning applies to the cargo. It is true that when the master and crew are taken from the ship because of imminent danger, and the ship left without men to man her, such a proceeding cannot be held to be a direct benefit to the cargo, though, in some very exceptional cases, the removal of the passengers may be an advantage incidentally.. But direct benefit is not the sole principle upon which salvage reward is required to be paid. I am of opinion that the pay- ment of salvage depends upon more general principles; and, in saying this, I think I am supported both by Lord Stowell and Mr. Justice Story. Salvage is not governed by the ordinary rules which prevail in mercantile transactions on shore. Salvage is governed by a due regard to benefit received, combined with a just regard for the general interests of ships and marine com- merce. All owners of ships and cargoes and all underwriters are interested in the great principle of adequate remuneration being paid for salvage services ; and none are more interested than the underwriters of the cargo. For these reasons I shall decree the salvage payable to be borne by the ship, freight and cargo, as heretofore accustomed in similar cases. [The learned Judge then reviewed the facts of the case, and awarded 700/. to the Aid, 700/. to the lifeboat, and 800/. to the two luggers] From this decree the owners of^the cargo appealed, the re- spondents being the owners, masters and crews of the steam-tug Aid, of the lifeboat Northumberland, and of the luggers Cham- pion and Lotus, and the owners of the ship Fusilier. intervening. The owners of the Fusilier were content to abide by the decree, inasmuch as if the cargo contributed according to its value, the proportion of the sum of 2,200/. decreed which would fall upon the ship and freight would be about 220/. But as the owners 348 THE FUSILIER. 1865. of the cargo appealed, and as the result of that appeal might be March 8. to leave the entire sum of 2,200Z. to be satisfied out of the ship and freight, the owners of the ship were compelled to inter- vene. TTie Queens Advocate (Sir M. Phillimore, Q. C.) and Potter, for the appellants, the owners of the cargo. — The principal question is whether cargo is liable under the 458th section of the Merchant Shipping Act for life salvage, that is to say, whether the owners of cargo which is laden on board any particular ship are liable to pay salvors for saving the lives of persons belonging to that ship. Apart from the statute there is properly no liability to life salvage at all ; and there is no clear reason why cargo should pay for services from which it receives no benefit. The language of the 458th section is ambiguous ; but it is to be interpreted by the 459th section, which shows that the ship and the ship only is to be liable for life salvage. Secondly. Passengers, we submit, are not "persons belonging to the ship." This appears from the rule that in certain circum- stances they may earn salvage reward for rendering services to the ship : Vrede (a) ; Towle v. The Oreat Eastern {b). Thirdly. The amount awarded to the luggers was, we submit, excessive. Manisty, Q. C, and Lushington, for the owners of the Fusilier. — The whole of the property saved, cargo as well as ship, ought to pay the life salvage. There is no reason why the cargo should not contribute as well as the ship. This, it is submitted, is the reasonable meaning of the words of the 458th section ; and that interpretation is confirmed by the provisions in the earher statute 9 & 10 Vict. c. 99, ss. 19, 20, now repealed. The 459th section, which refers to the ship only, was probably framed per incuriam. Z>ea7ie, Q. C, and Clarkson, for the salvors. — We submit that the amount awarded was fully justified by the circumstances, and that the learned Judge in the Court below was right in making the cargo contribute to the life salvage. The intention of the legislature in the 458th section is clearly shown by the 468th and 469th sections, which make the cargo liable for life salvage whilst the' property is in the hands of the Receiver of wreck. No real distinction for purposes of life salvage can be made between passengers and other persons. (o) Lushington, 329. (S) 11 Law Times, N. S. 516. THE FUSILIER. 349 On the 8th of March, Lord Chelmsford delivered the judg- 1865. ment of the Committee. March 8. The principal question raised upon this appeal is, whether by The principal the 458th and 459th sections of the Merchant Shipping Act, f ''"" J?- irs' Is cargo liable 1854, the owners of the cargo of a vessel to which salvage to contribute to services have been rendered, are liable to contribute to that '^gsg^nggfj^. ° portion of the claim of the salvors which arises from the saving 'i^e^ ? the lives of the passengers on board the vessel. There was an- other subordinate question as to the amount of salvage awarded to some of the salvors, which will require a short notice. The facts of the case were all agreed to on both sides. The appellants, the owners of the cargo on board the Fusilier, the vessel salved, admitted that the owners, masters and crews of the different vessels to whom salvage was awarded were entitled to remuneration for their services. The value of the ship was 2,500^., of the freight 2,581/. 17s. 8d., and of the cargo 52,000/. The learned Judge of the Court of Admiralty pronounced "the sum of 2,200Z. to be due to the salvors for the salvage services rendered by them to the vessel Fusilier and her cargo, and for their services in saving the lives of tlie passengers on board the said vessel, namely, to the master, owners and crew of the steam-tug Aid the sum of 700Z. ; to the master, owners and crew of the life boat Northumberland the sum of 700/.; and to the masters, owners and crews of the luggers Champion and Lotus the sum of 800/., together with costs." The services rendered The nature of by the luggers were these :— On the 3rd of December, 1863, the 'enderJd!^^ Fusilier was aground on the Girdler Sand. The steam-tug Aid and the life boat Northumberland had been rendering assistance, and had succeeded in'taking all the passengers out of the Fusilier and placing them in safety on board the Aid, to be conveyed to Ramsgate. The. Aid received an order from the Fusilier to bring an anchor and chain from Ramsgate, to be used in getting her off the sand. The weight of the anchor and chain procured for this purpose was found to be too great for the Aid, and it was necessary to employ the two luggers, the Champion and the Lotus, to carry them off to the Fusilier. These vessels anchored near the Fusilier at midnight of the 4th of December, and re- mained by her the whole night. On the following day, unsuc- cessful attempts were made to tow the Fusilier off the sand. In the course of the afternoon of the 5th of December, the gale, which had been blowing from the westward, changed to the southward, thereby lessening the chance of the Fusilier being got off the sand, and the luggers were ordered to proceed to the Nora, and remain there till the weather moderated. They re- mained at the Nore from the 6th to the 10th of December; 350 THE FUSILIER. 1865. March 8. The Court of Appeal is extremely re- luctant to dis- turb a salvage award on the question of amount. then, according to instructions, they returned to the Fusilier, which not being sufficiently light to float, although part of her cargo had been removed, they were ordered back to the Nore, still with the anchor and chain on board; and the Fusilier hav- ing been got off the sand on the 11th of December, they followed her to the Blackwall Docks, and finally arrived at Ranisgate on the 14th of December. The Appellants objected that the amount of 800/., awarded to the Champion and the Lotus for their services, was excessive, and urged as proof of the excess, that it exceeded the value of the two vessels. Their Lordships would always be slow to disturb an award of salvage by the learned Judge of the Court of Admiralty on the ground of his having given too large a sum to the salvors, unless they were satisfied beyond all doubt that he had made an exor- bitant estimate of their services. The accident of the amount of salvage exceeding the value of the vessels is wholly immaterial. Undoubtedly the placing valuable property in peril may enhance the merit of salvage services, but it does not follow, on the con-? trary, that the trifling character of the property endangered will necessarily detract from the value of such services. It was not quite correctly said in argument at the bar that what is risked is the first thing to be regarded, and the next the services which are rendered. It would have been more accurate to have re- versed the order of these considerations, and to have said that the first thing to be regarded is the value of. the services with reference to the amount of property rescued from peril, and the next, how far the merit of these services is enhanced by the risk to life or property which has been involved in them. Taking the grounds of claim to salvage in this order, it is obvious that it never can be an argument against the amount awarded to the salvors, that it exceeds the value of their property put in peril by the service. And even if such an argument could ever be urged,, it hardly belongs to the appellants in this case. No complaint was made by thera of the total amount of salvage awarded to the salvors in one entire sum of 2,200/. It is only in the distri- bution of this sum amongst the different classes of salvors that there is any opening for their objection. Now the award of salvage is not of such a sum to one set of salvors, and such a sum to another, making a total of 2,200/., but of that sum as the whole value of the salvage services which is afterwards apportioned amongst them, according to their respective meritsi. The amount allotted to the Champion and the Lotus might be made the subject of dispute by the owners and crew of the other' vessels, but it can hardly be objected to by the appellants, wlio have never once suggested that, taking intb account the value of THE FUSILIER. 351 the property rescued from peril, and the number of lives saved, 1865 the sum of 2,200Z. was too great a reward for the whole of the J^'"'''' 8- services rendered. There is, therefore, no valid objection to the decree upon this ground. The principal question in the case is one of great importance, Before "The and of some difficulty. Prior to the passing of " The Merchant i^sj"!'*,",'/'''' Shipping Act, 1854," the Court of Admiralty, in a cause of Court of Ad- salvage where no property had been rescued from peril, but "eciVgave''' where life had been saved, had no power to award anything to reward for life the salvors. But where both property and life had been saved, allowing a it was the well-established practice of the Court to increase the '"s^er rate of ,,.,., - salvage against amount of salvage, and thus indirectly remunerate the salvors for the property, the merit due to their having saved life as well as property. Of '''"P ^"'* '^"So- course, as the salvage was awarded in one entire sum, the owners of the cargo, as well as of the ship and freight, contributed their proportion to the payment of this increased salvage, and so in a certain sense were rendered liable to the payment of what is called life salvage. Before the passing of "The Merchant Shipping Act, 1854," the legislature had provided for the payment of a reward or compensation by way of salvage for the saving of the life of any person on board a ship or vessel in distress, by the 19th and 21st sections of 9 & 10 Vict. c. 99, " An Act for consolidating and amending the laws relating to Wreck and Salvage." The provisions of these sections are substantially re-enacted in " The Merchant Shipping Act, 1854," and therefore need not be further noticed. In construing the 458th and 459th sections of the Act on The provisions which the principal question arises, the recognized practice of sects. 458, 459, the Court of Admiralty of indirectly rewarding salvors for the *^^\ f69. '° be saving of human life by giving an increased rate of salvage on light of the that account must always be borne in mind. The legislature in former practice, dealing with the subject of life salvage must be taken to have been aware of this practice, and to have intended to confer upon tlie Court of Admiralty a power of doing that directly which they had been so long in the habit of doing indirectly. And it must also be remembered that by the established practice of the Court the owners of cargo were always rendered virtually contributory to the reward and compensation given to salvors for the preser- vation of life. Under these circumstances the provisions in the sections in question were introduced. The 458th section is in these terms : " Whenever any ship or boat is stranded or otherwise in disfress on the shore of any sea or tidal water situate within the 352 THE FUSILIER. 1865. March 8. The terra "per. sons belonginjf to such ship" includes pas- sengers. The true con- struction of the Act is, that cargo as well as ship must contribute to the life sal- limits of the [Jnited Kingdom, and services are rendered by any person, — " 1. In assisting such ship or boat; " 2. In saving the lives of the persons belonging to such ship or boat; " 3. In saving the cargo or apparel of such ship or boat, or any portion thereof; " And whenever any wreck is saved by any person other than a Receiver within the United Kingdom ; " There shall be payable by the owners of such ship or boat, cargo, apparel, or wreck, to the person by whom such services, or any of them, are rendered, or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses properly incurred by liim in the performance of such services or the saving of such wreck, the amount of such salvage and ex- penses (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner herein- after mentioned." It is perhaps hardly necessary to advert to a point which was raised in the Court of Admiralty, but barely mentioned here, and certainly not insisted upon, that the persons saved being passengers on board the Fusilier, were not in the terms of the Act, " persons belonging to such ship." It would be strange indeed if an Act intended to encourage and reward the saving of life which is in peril in consequence of the distress and danger of the vessel in which it is embarked, should be construed so as to make a distinction between those who were on board in different capacities and different relations to the vessel. It is a sufficient answer to such an objection to say that nothing is more common in popular language than to speak of " the pas- sengers belonging to such a vessel." The salvors therefore are entitled to a reasonable amount of salvage for the services rendered in saving the lives of the passengers on board the Fusilier, and the only question to be considered is whether the owners of cargo are liable to contribute towards its payment. The general rule as to the parties liable to pay salvage is, that the property actually benefited is alone chargeable with the salvage recovered. But this rule is inapplicable in the case of life salvage, because it is difficult to imagine a case where the saving of the lives, either of the crew or of the passengers of a vessel in distress would be of any benefit, either to the vessel or to the cargo. The legislature therefore could not have intended that the benefit to property should be the criterion of the lia- bility to the payment of life salvage. All that seems to have THE FUSILIER. 353 been contemplated is, that there should be included in the entire 1865. sum payable for salvage of ship and cargo, a distinct reward for March 8. the preservation of human life. It was argued on behalf of the appellants that when the 458tli section, after describing the services to be rendered in assisting the ship or boat, in saviny; the lives of the persons belonging to the ship or boat, and in saving the cargo or apparel of the ship or boat, goes on to say, " there shall be payable by the owners of such ship or boat, cargo, apparel or wreck," a reasonable amount of salvage, the words must be read reddendo singula singulis. But, although this might very well be if the section had confined the claim to salvage to the saving of the ship and cargo and apparel, for then each species of property benefited would alone have been charge- able, yet, where amongst the other subjects of claim, the saving of human life is included, there is no reason why that should be referred to the ship any more than to the cargo, since the one dei'ives no more benefit than the other from the services rendered. The legislature seems merely to have had in view the rewarding at a higher rate persons whose services were more meritorious from having rescued human life as well as property from peril, and almost to have assumed that the liability to the salvage would attach, without any distinction, upon all the owners of property exposed to the common danger. And as the salvage is always awarded in a gross sum, and under this section is to be increased by the reward for the saving of life, the owners of cargo since the Act are liable exactly to the same extent as before, with this immaterial difference, that there now is a distinct and express item of claim toMncrease the amount of salvage to which they are contributory, instead of the whole being estimated upon a higher scale. But it is said that the 4.'>9th section of the Act shows that it must have been intended by the legislature that the owners of the ship should alone be liable to the payment of life salvage, for it enacts that " salvage in respect to the preservation of the life or lives of any person belonging to any such ship or boat shall be payable by the owners of the ship or boat in priority to all other claims for salvage, and in cases where such ship or boat is destroyed, or where the value thereof is insufficient, after payment of the actual expenses incurred, to pay the amount of salvage due in respect of any life or lives, the Board of Trade may in its discretion award to the salvors of such life or lives out of the Mercantile Marine Fund such sum or sums as it deems fit, in whole or part satisfaction of any amount of salvage so left unpaid in respect of such life or lives." There is no doubt that this section creates some difficulty as to whether the legislature 354 THE FUSILIER. 1865. intended that life salvage should be payable by any other persons March 8. than the owners of the ship, but if such was the intention it would have been easy to have expressed it, and the language of the section is capable of the construction that it merely fixes the. limit of the shipowner's liability, and does not mean to render him solely liable to the payment of this description of salvage. And whatever doubt may be thrown upon the subject by this section, there are two subsequent sections of the Act, the 468th and the 469th, which appear to be susceptible of no other inter- pretation than that the owners of cargo were intended to bear a proportion of the payment for life salvage. The 468th section enacts, " that whenever any salvage is due to any person under this Act, the Receiver shall act as follows (that is to say) : If the same is due in respect of services rendered in assisting any ship or boat, or in saving the lives of persons belonging to the same, or the cargo or apparel thereof, he shall detain such ship or boat, and the cargo and apparel belonging thereto, until payment is made, or process has been issued by some competent Court for the detention of such ship, boat, cargo, or apparel." It is thus expressly provided, that in the case of salvage being due for services rendered in saving the lives of persons belonging to the ship, the cargo shall be detained. And it is not intended that it shall be merely held as additional security with the ship for payment of the salvage, for the 469th section enacts, that " when- ever any ship, boat, cargo, apparel or wreck so detained by any Receiver for non-payment of any sums so due as aforesaid (that is, amongst others, for services rendered ' in saving the lives of persons belonging to the ship') ; the Receiver in certain cases may sell such ship, boat, cargo, apparel or wreck, and out of the proceeds of the sale defray all sums of money due in respect of salvage." Whatever difficulty, therefore, may be supposed to be created by the 459th section, it seems impossible to read the two last-mentioned sections without being satisfied that they proceed upon the ground of the owners of cargo being liable to the payment of life salvage. The object of the legislature in the different sections referred to seems to have been to give a legis- lative sanction to the practice of the Court of Admiralty of indi- rectly rewarding salvors for the preservation of human life, by allowing the value of their services to be made the subject of a distinct estimate, but without intending to fix the responsibility of payment upon one class of owners of property involved in the common peril, more than on another. Their Lordships after much consideration have arrived at the same conclusion with the learned Judge of the Court of Admiralty, and they will, there- THE FUSILIER. 355 fore, humbly recommend to her Majesty that the decree 1865. appealed from be affirmed, and that the appeal be dismissed ^""^^ ^- V\ith costs. Decree affirmed, with Waltons Sr Buhh, solicitors for the appellants. ''°*"- Rothery, proctor for the respondents. Marshall, solicitor for the owners of the Fusilier. THE NONPAREIL. Seaman's Contract — Meaning of the word " Dollar.^'' If there be a doubt as to the interpretation of a seaman's contract, the contract is July 12. to be interpreted favourably to the seaman. A seaman signed articles at New York to serve on board a British ship on a voy- age to terminate either in the United States or in the United Kingdom, " amount of wages per month" to be " 50 dollars." At the time of making this contract there was an inconvertible paper-dollar currency in the United States, and the actual exchange value of the paper dollar in English currency was then 2*. 8fd. It afterwards depreciated in value. The voyage terminated at Liverpool in the United Kingdom, and the seaman was there discharged. Upon evidence that for 25 years past seamen discharged from American ships in London or Liverpool received their wages at the rate of 4s. 2d. a dollar : Held, that the parties contracted subject to this usage, and that the seaman was entitled to have the dollar reckoned at the value of is. 2d. THIS was an action by Walter Mac Farland, chief mate of the British ship Nonpareil, for wages. On the 7th May, 1863, the plaintiff signed articles at New York to serve as chief mate of the Nonpareil for a voyage from New York to Shanghai, thence to one or more ports in China, and back to a final port of discharge either in the United States or in the United Kingdom : the voyage not to exceed two years. In the schedule annexed to the articles, the column headed " Amount of wages per month " was filled in thus, " $bQ "7 ;" and the column headed " Amount of wages advanced on entry" was filled in, "^75 °»/." On the back of the articles was the following indorsement : — " British Consulate, New York, May 9, 1863. " I hereby certify that I have sanctioned the engagement of Walter Mac Farland and twenty-seven others upon the terms 356 THE NONPAREIL. 1864. mentioned in the within agreement. The system of shipping •^"'y ^2- crews at this port does not allow of the above men appearing before me to sign or acknowledge the said agreement, but I have inquired and am satisfied that they fully understand the same. (l.s.) Pierrepoint Shoards, V. Consul." The plaintiff sailed in the ship to Shanghai, and thence to Liverpool, where the ship arrived on the 16th March, 1864, and the cargo was shortly afterwards discharged. The plaintiff on joining the ship had received seventy-five American paper dollars, commonly called greenbacks. At Shanghai he had received 1^105 : 50 cents, in Mexican silver. On the plaintiff being dis- charged at Liverpool, a dispute arose as to the amount at which the dollar should be reckoned in computing his wages. In the account which the master delivered to the plaintiff under the 171st section of the Merchant Shipping Act, 1854, he reckoned the dollar at 2s. 8id., which in consequence of the inconvertible paper-dollar currency in the United States was the rate of actual exchange of the dollar at the date when the articles were signed; the plaintiff, on the other hand, claimed that the dollar should be reckoned at 4s. 2c?. The plaintiff now brought his action. In the schedule. an- nexed to his petition he put his gross wages at 1121. 5s. lid., reckoning 4s. 2d, to the dollar, from which he allowed as de- ductions the seventy-five dollars advanced at New York, reckoning each of such dollars at 4s. 2d.; and the 103 dollars advanced at Shanghai, reckoning each of such dollars at 5s. Ud. His net wages, including ten' days double pay, thus amounted to 747. The defendant paid into Court the sum of 47Z. 17s. Id. This sum was arrived at by reckoning the dollar at 2s. 8|rf., both as to the stipulated wages and the advances in New York and Shanghai. At the hearing of the cause, it was admitted on the part of the plaintiff that the actual exchange value of the American dollar at the date of the signature of the articles was that stated by the defendant, and that such value was further depreciated at the date of the plaintiff's discharge. Also, that in the United States the paper dollar was a legal tender. On the other hand evidence was given by an American ship agent at Liverpool, and also by the American Vice-Consul in London, that during the last twenty-five years seamen paid off from American ships in this country had always been paid off at 4s. 2d. the dollar. THE NONPAREIL. 357 Brett, Q. C. (Lushington with him), for the plaintiff. — The 1864. real question is, at what value shall the dollar be reckoned, when July 12. the seaman is paid off in this country. If there is any doubt upon the contract, the decision should be in favour of the seaman. The contract was not that the plaintiff should be paid in green- backs or that the dollar should be less than 4s. 2d. The utmost that the defendant can say is, that if the plaintiff were paid off in New York, a tender of his wages in paper currency uould be a legal tender. Looking to the custom, the contract was, that if the plaintiff were paid off in this country, the dollar should be taken to be 4s. 2d. Milward {Clarkson with him) for the defendant. — This is a case where the lex loci contractus applies : Wheaton's In- ternational Law, page 179. The paper dollar was by law incon- vertible. There was, therefore, no other dollar than the paper dollar. The contract being made in the United States, the word dollar should have the meaning the word bore then and there ; and the value of the dollar in the contract should be. taken to be its value at that time and place : Story, Conflict of Laws, 6th ed., sections 308, 309. On that basis the plaintiff accepted seventy-five paper dollars on joining the ship. That construc- tion of the contract would give the plaintiff a certain rate of wages wherever the voyage terminated; but if the plaintiff's construction be true, he would receive one sum as wages if he were paid off here, and another sum if paid off in the United Slates. The alleged custom ought to have no weight, for the American greenbacks were not issued until 18fi2, so that the custom extends over a period of two years only. De. Lushington. — There is some difficulty in this case, but Judgment I have come to the conclusion that the plaintiff is entitled to the judgment of the Court. There is a well known principle, which has been acted on in many cases in this Court, that if a doubt arises upon the con- struction of a mariner's contract, the mariner is entitled to the benefit of the doubt. In this case the contract was entered into at New York, the voyage was to terminate either in the United States or in the United Kingdom, at the shipowner's option ; the rate of wages agreed upon was fifty dollars a month. The voyage has termi- nated here in Liverpool, and the question is, at what rate shall the dollar be taken ? at 4s. 2d,, which I may call its regular commercial value, or at 2s. 8|«?., the actual exchange value of 358 THE NONPAREIL. 1864. the American paper dollar at the time when the contract July 12. vvas made. Mr. Milward has argued that this question must be de- termined by the law of the United States, as the lex loci con- tractus, which law, as he says, has made this piece of green paper a dollar. It is so, no doubt, in the United States for the purpose of making a lawful tender in that country, but for that purpose only. The argument, therefore, can only amount to this, that at the time when the contract was made at New York a paper dollar there was worth to exchange against English money, 2s. 8fc?. and no more; and that if the seaman had been paid off in New York, he might have been paid off in paper dollars, none of which would have been worth more than that sum. Thus much may be true, but it is not only consistent with this that during the voyage there might be a return to cash payment, or that the exchange value in English coin of the paper currency might rise ; but the argument leaves out of sight alto- gether the fact that the articles gave the alternative that the seaman might be discharged, not in the United States but in this country, and that he has been discharged here, and that he is to be paid here. This is a most important fact; and I think that it compels me, in order to arrive at the true meaning of the con- tract, to look not so much to the law of the place where the contract was entered into, as to the law and custom of the place where the payment is to be made. Now we have had clear testimony that for a long time past all seamen belonging to American ships who have been discharged in this country have received their wages at the rate of 4s. 2d. a dollar. This is deposed to have been the practice both in Liverpool and in London ; and there is no evidence of any instance to the contrary since the establishment of the paper currency. This custom must have been well known in New York ; and if it had been intended to vary the rate of payment in this case, the shipowner's agent there should have inserted specific words for the purpose. I consider it proved that the customary rate of reckoning the dollar in paying seamen who have been engaged in the United States and are discharged in this country is 4s. 2d., and I hold that the parties in this case must be deemed to have contracted according to that usage. I therefore pronounce for the plaintiff's claim. Nethersole and SpeecJdy, solicitors to the plaintiff. Rothery, proctor for the defendant. THE LLOYDS, OR SEA QUEEN. 359 1863. July 11. THE LLOYDS, OR SEA QUEEN. Collision — Compulsory Pilotage — "Ship employed in the Coasting-trade of the United Kingdom" — 17 ^18 Vict. c. 104, ss. 376, 379. A vessel ordinarily occupied in the foreign trade, going from Liverpool to London in order to sail from London under advertisement for foreign parts, not carrying passengers, but having on board a cargo shipped at Liverpool and deliverable at London, is not " a ship employed in the coasting-trade of the United Kingdom," within the meaning of the 379th section of the Merchant Shipping Act, 18d4, and is compellable by the 376th section to take a pilot in the London District of the Trinity House. THIS was a cause brought by the owners of a brig called the John Mowlem, against the steamer Lloyds, subse- quently called Sea Queen, to recover damages for a colli- sion which took place in the London district of tiie Trinity House. The Court found that the collision was solely occa- sioned by the default of the pilot of the Sea Queen ; and the question then arose, whether the employment of the pilot was compulsory by law, and the owners consequently exempt from responsibility for the damages by the 388th section of the Mer- chant Shipping Act, 1854. It appeared that the Sea Queen, having been built at Hartlepool, brought a cargo to London; that she then went two foreign voyages; ultimately reached Liverpool ; that whilst at Liverpool, she was advertized to load in London on a voyage to Matamoras ; that some of the crew were hired at Liverpool to proceed to London, and thence to Matamoras; that she sailed from Liverpool with a cargo on board for London — not a full cargo, but as much as she could obtain, and with no passengers ; that on arriving off Dungeness she was boarded by a duly licensed Trinity House pilot, and that subsequently, while the pilot was in charge, she met with the collision. Under these circumstances, the substantial question was whether the Sea Queen was, at the time of the collision, "a ship employed in the coasting-trade of the United Kingdom" within the meaning of the 379th section of the Merchant Shipping Act, and therefore exempt from the general obligation imposed by the 376th section on all vessels navigating the London district of the Trinity House. The material portions of the sections of the Merchant Shipping Act (17 & 18 Vict. c. 104) referred to are as follows : — B. L. B B 360 THE LLOYDS, OR SEA QUEEN. 1863. Sect. 376, " Subject to any alteration to be made by the July 11. Trinity House, and to the exemptions hereinafter contained, the pilotage districts of the Trinity House, within which the employ- ment of pilots is compulsory, are the London district and the Trinity House outport districts, as hereinbefore defined." Sect. 379, " The following ships, when not carrying passen- gers, shall be exempted from compulsory pilotage in the London district, and in the Trinity House outport districts; (that is to say) (1.) Ships employed in the coasting -trade of the United Kingdom : (2.) Ships of not more than sixty tons burden : (3,) Ships trading to Boulogne, or to any place in Europe north of Boulogne : (4.) Ships from Guernsey, Jersey, Alderney, Sark, or Man, which are wholly laden with stone, being the pro- duce of those islands : (5,) Ships navigating within the limits of the port to which they belong : (6.) Ships passing through the limits of any pilotage dis- trict on their voyages between two places, both situate out of such limits, and not being bound to any place within such limits, nor anchoring therein." Brett, Q.C, and Clarkson, for the Sea Queen, contended that the exemption in the statute referred only to vessels engaged in the coasting-trade as their accustomed trade, and could not apply to a vessel making a casual voyage from one port in England to another. The policy of the statute was to require every ship to take a pilot, unless from the usual occupation of the ship, her master might be presumed to be familiar with the navigation of the coast : Preamble to 6 Geo. IV. c. 125. The 133rd section of the last Liverpool Act (21 & 22 Vict. cap. xcii.), whilst exempting coasting vessels from compulsory pilot- age, makes the exemption conditional upon the vessel having been engaged for six months in the coasting-trade. For the interpretation of the terms " employed in the coasting-trade," or " employed in foreign trade," they referred to the same or similar expressions in other Acts — 52 Geo. IIL c. 39, ss. 2 and 34; 7 & 8 Vict. c. 112, s. 27 ; 8 & 9 Vict, c. 88, s. 13; 12 & 13 Vict. c. 29, s. 2; 13 & 14 Vict. c. 93, s. 9 ; 14 & 15 Vict, c 96, s. 16; and they relied on the cases of The Agricola (a), Davison v. Mekibben (S). (a) 2 Wm, Rob, 10, (i) 3 Brod. & Bing. 112. THE LLOYDS, OR SEA QUEEN. 361 Dr. Deane, Q.C., and Lushington, for the John Mowlem. — 1863. On this particular voyage the Sea Queen was engaged in the Jnly U. coasting-trade, and the particular voyage is the only admissible criterion. The policy of the exemptions is matter for conjecture merely. Other of the exemptions named in the 379th section, viz., exemptions (3) and (4), apply only to a particular voyage. So do the provisions of the 364th section ; andthe definitions of " home-trade ship," and " foreign going ship," in sect. 2 of the same statute. Dr. Lushington. — The question is, whether a vessel ordi- Judgment, narily occupied in foreign trade, going from Liverpool to London in order to sail from London, under advertisement for a foreign voyage, not carrying passengers, but having on board a cargo shipped at Liverpool, and deliverable at London, is to be held " a ship employed in the coasting-trade of the United King- dom," within the meaning of the 379th section of the Merchant Shipping Act, and as such to be exempt from the rule of compul- sory pilotage. I have already decided in the Agricola (a), that a vessel making a similar voyage without a cargo, and in ballast, is not a ship employed in the coasting-trade. I do not see how the fact that a vessel has a cargo on board makes any substan- tial difference. I am of opinion, therefore, that the Sea Queen was not " a ship employed in the coasting-trade ;" that she was compellable to take a pilot, and that the owners cannot be made answerable for the damages occasioned by the fault of her pilot. Rothery, proctor for the plaintiffs. Cotterill Sf Sons, solicitors for the defendants. (a) 2 Wm. Rob. 10. B b2 362 THE CHESHIRE WITCH. 1864. Jan. 26. THE CHESHIRE WITCH. Arrest — Wrongful Detention — Damages. A vessel having been arrested in a cause of damage, and the suit having been dis- missed with costs, the plaintiff obtained leave to detain her for twelve days, that he might have time to consider whether he would appeal. On the thir- teenth day the vessel was released. Held, that the defendant was entitled to damages for the twelve days' detention. IN this case, the Cheshire Witch had been arrested in a cause of damage; arid, as bail could not be procured, she re- mained under arrest from the 15th of August till the 20th of November, when the cause was heard, and judgment was given for the defendant, with costs. No notice of appeal was given ; but, upon the application of the plaintiff, the Court ordered that the release should not issue for twelve days. Some correspond- ence took place on the eighth day, and on the thirteenth day, the plaintiff allowed the vessel to be released. \ Deane, Q.C, now moved the Cokrt to condemn the plaintiff in damages. — I admit that up to the 20th November, though the plaintiff has sustained a heavy loss, he cannot recover da- mages. But after that date, the vess^ was detained at the request of the plaintiff's proctor. The vessel was under a time charter. I ask for the expenses of the iwelve days' deten- tion. Clarhson, contra.— The Court dismissed the pMatiffs suit. An application was immediately made not to order the release^ until the plaintiff had time to consider if he would appeal. No objection was made, and nothing was said about time charter. If the plaintiff had immediately appealed, as he could have done, he would have incurred no damages, unless he had acted maliciously: The Evangelismos (a). Here there was no malice : no improper delay. Judgment. Dr- Lushington. — This case has operated very severely on the defendant. His ship was under arrest for some months; and then it turned out that the plaintiff had no cause of action. (o) Swabey, 378. THE CHESHIRE WITCH. 363 The plaintiff's application for time to consider whether he 1864. would appeal was for his own convenience only. ■^''"- ^^- I shall make the order with costs : the amount of damages to be referred to the Registrar. Jenner Sf Dyke, proctors for the plaintiffs. Deacon Sf Sort, proctors for the defendants. M tl}t Prtbj) Counttl. Present — Lord Kingsdown. The Master op the Rolls. Sir Edward Ryan. THE CITY OF CARLISLE. Collision — Lights — Position of — Admiralty Regulations, 1858. The Admiralty Regulations of 1858, with respect to the exhibition of side lights by sailing vessels, do not require that such lights should be placed on any particular part of the ship : Such lights may be carried inboard, provided that they are fairly visible in the appointed directions. Circumstances considered under which the regulations were sufficiently complied with. TTIHIS was a cause of damage brought by the owners of the July 23. J- bi'ig Thomas Snook against the barque City of Carlisle, ia respect of a collision which occurred between those vessels on the 30th June, 1862. The circumstances of the case are fully stated in their Lordships' judgment. The only question raised by this appeal was, whether the collision took place in conse- quence of the lights on board the brig not having been fixed in accordance with the Admiralty Regulations of 1858, respecting the exhibition of side lights by sea-going sailing vessels. The rules in question provide that — " All sea-going sailing vessels, when under way or being towed, shall, between sunset and sunrise, exhibit a green light on the starboard side and a red light on the port side of the vessel ; and such lights shall be so constructed as to be visible 364 THE CITY OF CARLISLE. 1 864. on a dark night with a clear atmosphere, at a distance of at ■^"^y 23- least two miles, and shall show an uniform and unbroken light over an arc of the horizon of ten points of the compass, from right ahead to two points abaft the beam on the starboard and on the port sides respectively. " The coloured lights shall be fixed wherever it is practicable so to exhibit them, and shall be fitted with inboard screens pro- jecting at least three feet forward from the light, so as to prevent the lights being seen across the bow." The learned Judge of the Admiralty Court held that the lights of the Thomas Snook had not been so fixed as to be fairly visible; that the Admiralty regulation above set out had not been complied with ; and that such noncompliance contributed to the colhsion ; he accordingly pronounced against the damage ; but as the City of Carlisle had been negligent in having an insufficient look-out, he made no order as to costs. (The 298th section of the Merchant Shipping Act then in force prevented a decree for the moiety of the damages.) From this decision the owners of the Thomas Snook appealed. The Queen's Advocate and Deane, Q. C, for the appellants. Brett, Q. C, and Clarkson, for the respondents. Cur. adv. vult. On the 23rd July, the Master of the Rolls delivered the judgment of the Committee. Judgment. In this case, at about a quarter before two o'clock on the morning of the 30th of June, 1862, the brig Thomas Snook, the property of the appellant, was run into and sunk by the barque the City of Carlisle, the property of the respondents. The evidence in the cause establishes that the Admiralty regu- lation lights of the brig were burning brightly. The question on the appeal is, whether the lights were fixed in a place which comphed with the regulation; or, to use the words of the learned Judge of the Admiralty Court, whether they were " so fixed as to be fairly visible." The gentlemen who assisted the Judge of the Admiralty Court were of opinion that they were not so fixed, and in consequence the Court determined that the owners of the brig could not recover, but as they were also of opinion that the City of Carlisle was grossly negligent and much to blame, no costs were given to the respondents. THE CITY OF CARLISLE. 365 The learned Judge of the Admiralty Court, in his judgment 1864. in the Court below, stated his understanding of the regulation July 23. to be, "not that there is any positive order that the lights The reeulation shall be fixed on the actual sides of the ship itself, but that the does not re- green light shall be exhibited on the right hand, and the red side lights shall light on the left hand, so as to be visible." He also stated that J^y^"''^^^! ^"^^ the substance of the regulation is, "that the lights shall be oftheshipin fairly visible as described : there is no order that the lights shall pf/Jf'but"'^' be fixed in any peculiar manner or in any particular part of the that they shall ship." " And the whole question is, whether, taking the descrip- ^s to be fairly tion of the manner in which these lights in the present case were visible in the fixed, they were so fixed as to be fairly visible." With these rection. observations their Lordships concur entirely. They have in consequence carefully examined the evidence for the purpose of arriving at the means of giving a correct answer to the question so put. There is no dispute about the place where the lights were Facts of the fixed. There was on the deck of the brig, just behind the fore- ''^^^' mast and nearly touching it, a galley, the length of which was about six or seven feet ; it was about six feet high, and about seven feet broad. The lights were placed on the top of this galley about six inches from the outer edge of it, and about three feet behind the foremast. At the time when the collision took place, the brig was close-hauled on the starboard tack heading south-south-west, and proceeding at the rate of five and a-half knots an hour, with the wind in the west blowing a fresh breeze. The City of Carlisle was close-hauled on the port tack head- ing about north-north-west, and making about five and a-half knots an hour. The vessels were therefore appi'oaching at the rate of eleven knots an hour. The City of Carlisle struck the brig just befbre the forerigging on the port side, cutting right into her, when she filled rapidly, and went down. There is no question but that it was the duty of the City of Carlisle, which was on the port tack, to give way, and if there- fore the lights of the brig were properly placed so as to be fairly visible, the collision must be attributed solely to the negligence of the barque. The objections made by the respondents to the place where the lights were placed on board the brig, resolve themselves principally into this — that they were placed in-board, and not on the outside of the vessel, and that by reason thereof they were not, as the respondents contend, fairly visible. The breadth of the brig at this spot is not very accurately ascer- tained ; it was not measured. Morecombe, the carpenter, sup- poses it to have been about 26 feet ; of the other witnesses. 366 THE CITY OF CARLISLE. 1864. Richard Swift, the mate, supposes it to have been 18 or •^"ly^s- 20 feet, Matson supposes it to have been from 18 to 21 feet. Their Lordships are informed by the nautical gentlemen who assist them, that having regard to the size of the brig, which was 249 tons, it is probable the breadth of the brig at this spot where the lights are fixed did not exceed 20 feet. If this be so the distance from each light to the side of the vessel was about 7 feet. The lights were properly secured, so that only one light could be seen at the same time, unless by a vessel exactly ahead. The foresail was set and was just in front of these hghts. The dimensions of the foresail are given by Isemonger, who made it; it was 17 feet 4 inches deep, 34 feet across the head, and 34 feet across the foot, and 19 feet 4 inches depth of leach. The foot of the foresail was about 11 J feet or 12 feet above the deck ; from the clew of the foresail to the deck was about 9 feet or 9| feet. The brig had two foresails, but their Lordships consider it to be proved that the foresail, the dimensions of which are given by Isemonger, was the foresail set at the time of collision. It was made to be used in going in and out of the Channel, and Isemonger saw it bent on the day before the vessel went out of dock on her last voyage. If this be correct it establishes that the sail could not have interfered materially with the lights, which were only 6 feet above the deck, while the foot of the sail was from 11 J to 12 feet above the deck, and therefore from 5| to 6 feet above the lights. The only material additional circum- stance to be noticed is, that the brig was lying over on the port side about three strakes from an even keel, and the height of The right con- the bulwarks above the deck were from 3 feet to four feet. In theXi'Js' *''^' ^^'^ ^^^^^' °^ circumstances, the nautical gentlemen who assist lights were car- their Lordships are of opinion that the position in which the place. ^™*'^'^ lights were placed was a fit and proper place for them, having regard to the size of the vessel. They are also 'of opinion, having regard to the fact that the vessel was lying over consider- ably on the port side, that if the lights had been fixed in the usual place, that is, on the top of the bulwarks, the red light on the port side would have been obscured by the spray, and would have been less fairly visible than on the top of the galley ; and that if a proper look-out had been kept on board the barque, the red light would have been seen in sufficient time to avoid a collision. Their Lordships concur in the opinion expressed by the learned Judge of the Admiralty Court, that there was gross negligence on the part of the City of Carlisle. The persons on board that vessel were engaged in furling the foretop-gallant-sail, there was but one man on the look-out, and little attention seems to have THE CITY OF CARLISLE. 367 been paid to anything except what the men aloft were engaged 1864. in. The brig seems to have been seen and reported simul- July 23. taneously from aloft and by the man on the look-out, but not in sufficient time to avoid the collision. Their Lordships, after reading the evidence and considering the matter with the nautical gentlemen who assist them, have come to the conclusion that the lights were not improperly placed, having regard to the size of the brig, that they were placed in a position in which they were fairly visible, and in fair compliance with the regulation. Their Lordships are of opinion that if a proper look-out had been kept on board the City of Carhsle the collision would have been avoided, and that that vessel was the sole cause of the collision. Their Lordships will therefore humbly advise her Majesty that Decision re- the decision of the Court of Admiralty be reversed, and that the g^sts. ' ^' respondents be condemned in damages and costs. THE KARLA. Costs of Suit — Costs of detaining foreign Seamen as Witnesses — Charge for Agency. A party in a cause is not bound to examine any of his witnesses before the hear- ing ; and if judgment is given in his favour with costs, he is in general entitled, with respect to seamen who are reasonably detained by him as neces- sary witnesses, to the expenses of maintaining them to the time of the hearing. In the case of the witnesses being foreign seamen, a reasonable charge incurred for agency or interpretation may be allowed. THIS was a motion on the part of the plaintiffs to review the Dec. 6. registrar's taxation of the defendants' bill of costs. On the 28th September, 1863, the cause was instituted by the plaintiffs, the owners of the Joseph Straker, against the foreign ship Karla, to recover damages occasioned by a collision. On the 14th October, the owners of the Karla entered an appearance. There was also a cross action. One of the Karla's witnesses v?as, upon application, examined before the trial. Her other witnesses, four in number, being all seamen belonging to (he ship, were examined at the trial, which took place on the 23rd December, 1863, resulting in judgment for the Karla. 368 THE KARL A. 1864. Dec. 6. In taxing the defendants' costs, the Registrar had allowed to each of these four seamen who had been examined at the trial maintenance money from the 14th October, 1863, to 3 1st De- cember, 1863. He also allowed the sum of \0l. 10s., a sum paid to Mr. Wendt, as a charge for agency. These were the items objected to. Deane, Q.C., in support of the motion. — It is submitted that if the defendants did not avail themselves of the power given by the rules of the Court, (Rules 78, 79) to have their seamen examined immediately upon the institution of the cause, they should not now charge the other side with the expense of maintaining them until the trial : Such expenses would not be allowed in the Courts of common law; the witnesses would get their ordinary expenses, and no more. There is no authority for allowing any charge for agency when the witnesses are in. London. Judgment. The defendant is under no obligation to examine his witnesses he- fore the hear- ing, and he is entitled to the The Queen's Advocate (Sir R. PhiUimore), contra. — There is no obligation upon a defendant to produce his witnesses before the hearing. To compel a foreigner defendant to do so, by inflicting a pecuniary loss upon him if he does not, would expose him to an unjust disadvantage. These expenses were just and necessary ; so also was the charge for agency, for here the seamen were foreigners. Dr. Lushington. — I am happy to say that these questions of taxation very seldom come under the consideration of the Court. I have every reason to believe that in the administra- tion of justice by the Registrar, and in examining the accounts which are given in, and the charges, great pains and attention are paid in order that no larger sum than is right shall be imposed upon the unfortunate person who fails in the case. But it is very desirable to look at what must be the governing principle in all these cases. The governing principle must be this — that the party who has been successful in the case shall be indemnified for all losses and expenses to which he has necessarily been put by the legal proceedings, provided these are of the same nature as those allowed in the ordinary and accustomed practice of this Court in matters of this description. Now, with respect to the four witnesses, and the allowance made by the Registrar for their detention here, the Court has to consider whether it was just and reasonable that these persons should be kept in this country for the purpose of oral examina- tion, or whether it was incumbent on the party to have examined THE KARLA. 369 them at an earlier period in one of the ways pointed out by Dr. 1864. Deane. I am very clearly of opinion that it is in the option of Dec 6. the party who has witnesses to be examined, to adopt that course '■ . '' ^ ' ^ expenses m- which appears to him most advantageous to his client. I can- cm-red in de- not conceive that it is ever incumbent upon the owner of a fOT"tlie&iaK vessel, who is defendant in the cause, to proceed to the ex- amination of foreign witnesses by affidavit, or by commission or oral examination, before the petition is examined upon, or, in other words, before the witnesses for the plaintiff have been examined. He is not bound to pursue such a course. Thera- fore, as to the principle, the Court hesitates not to say that the necessary detention for the purpose of examining foreign wit- nesses is a proper charge; and there is no objection to the amount of the charge in this case. It should not be supposed that as to witnesses examined in other Courts the charges for them are always small, or that the charges are merely limited to the expenses for the day ; because, in my experience, shortly after I had come into the profession, the Court of Queen's Bench allowed the sum of 2,000Z. for one witness, because in their opinion he was a most important wit- ness for the decision of the cause. He was a Russian, and refused to remain unless he was remunerated on exorbitant con- ditions. I well remember that case : I do not cite it as an example to be followed, and I hope it may not occur again ; but I do so for the principle that the detention of witnesses, where absolutely necessary for the purposes of justice, must be paid for by the losing party. I have no doubt on that point. As to the second point, the only inquiry the Court can or will The witnesses institute is this — were the services of Mr. Wendt absolutely ers°the°clafm necessary for the purpose of enabling the proctor to conduct '^oj" agency the cause? With respect to foreign witnesses and interpreta- tion, it is impossible to suppose that the proctor or solicitor is acquainted with the languages they speak, and it must be through some medium, that of an interpreter, that their evidence is obtained. It might be that they might be examined by commission through an interpreter, but that is only a course whereby it is more likely the expense would be augmented. I think that the sum of ten guineas for the services of Mr. Wendt is as moderate as can be; and, consequently, I pronounce against both the objections. The plaintiffs, of course, must pay the costs. Deacon Sf Son, proctors for the plaintiffs. Dyke ^ Stokes, proctors for the defendants. 370 BRIG, NAME UNKNOWN. 1864. Dec. 21. BRIG, NAME UNKNOWN. Slave Bounties — Joint Capture — 1 5f 2 Vict, c. 47, s. 2- 2 & 3 Vict. c. 73. A Queen's ship, which is authorized to capture slave ships, being in sight during the chase and capture by another ship of war of a vessel equipped for the slave trade, is entitled to share as joint captor in the tonnage bounties awarded under 1 & 2 Vict. c. 47, unless the animus capiendi is clearly rebutted. In establishing a claim to joint capture of a vessel equipped for the slave trade, proof that the alleged joint captor was seen by those on board the prize before capture is important, but is not absolutely required as in cases of prize of war. At daylight on a morning nearly calm, her Majesty's steamships Falcon and Dart were in company, each under canvas only ; each had authority to capture vessels engaged in the slave trade ; but the Falcon was on her voyage home. A vessel, which afterwards proved to be equipped for the slave trade, appeared in sight of both ships : the Dart got up steam and went in chase. The cap~ tain of the Falcon, deeming the Dart sufficient for the purpose, did not get up steam, but continued his course. The chase lasted a few hours only ; and the capture by the Dart took place in daylight, in sight of those on deck of the Falcon, at the distance of about seven miles. The prize was destroyed as unseaworthy. Proceedings of adjudication subsequently took place, and bounties were awarded under the 2 & 3 Vict. c. 73 ; 1 & 2 Vict. c. 47, s. 2. Held, that the Falcon was entitled to share as joint captor. rilHIS was a motion to reject the following petition, which had been filed on behalf of the captain, officers and crew of her Majesty's steam-sloop Falcon, praying the Court to pro- nounce the Falcon joint captor with her Majesty's ship Dart of a brig, name and nation unknown, which was captured on the 11th July, 1862, as a vessel equipped for the slave trade. "1. On the 10th day of July, 1862, her Majesty's steam-sloop Falcon, being under the command of Commander Heneage, and duly furnished with the necessary instructions, and autho- rized to seize and detain and capture vessels engaged in the slave trade, left the port of Saint Paul de Loando in company with her Majesty's steam gun-boat Dart, under the command of Commander Richards. The Falcon was bound to the Island of Ascension, on her way to England, and the Dart was bound on a cruise oflF the coast of Africa, for the suppression of the slave trade. " 2. At daylight of the 11th of July, both the Falcon and the BRIG, NAME UNKNOWN. 371 Dart were at sea under sail, in latitude about 8° 25 south, and 1864. longitude 12° 53 east. The Dart was only about a mile and Dec. 21. a-half south-south-west of the Falcon. The wind was about north-east, and very light. A strange sail, bearing west by compass, was then observed from the Falcon on the port-beam, about 7 or 8 miles distant ; her hull was distinctly visible, and she was observed to be steering to the westward. About 7 a.m. the strange sail, which had previously been discovered to be a brig, was observed to make additional sail. About 9.30 a.m. the Dart was observed to alter her course for the said brig. About 1 1 A.M., the wind having then fallen to a calm, the Dart was observed from the Falcon to proceed under steam in chase of the said brig. " 3. During the same day the Falcon remained under all plain sail on a wind, making, however, little progress, owing to light winds and calms. She did not have recourse to steam. " 4. The commander of the Falcon did not cause his ship to join in active chase, because he considered the Dart to be amply sufficient for the purpose, and because he knew that if the brig kept away she must necessarily near the Falcon. " 5. About noon of the same day, the Dart bore S.W. of the Falcon. The said brig bore about south by west, distant from the Falcon about 7 miles only, and continued at about the same distance until after she had been captured by the Dart. The Dart was distinctly observed from the deck of the Falcon to come up to, and close with the said brig, for the purpose of capture, about 1.30 p.m. " 6. The said brig so captured proved to be a vessel engaged in the slave«trade, and as such liable to capture. " 7. The brig remained in sight from the Falcon until dark, about 6 P.M. The Dart after so capturing the said brig pro- ceeded in chase of another vessel, and was detained thereby until after dark, when she rejoined the brig and took her in tow, and about midnight closed with the Falcon with the said brig in tow, and thereupon the commander of the Dart came on board the Falcon, and informed her commander of the particulars of the said capture. " 8. On the following morning, the 12th of July, the master and carpenter's mate of the Falcon were sent on board the prize brig to assist in taking her measurement, and the said brig being found unseaworthy was ordered to be burnt, and was burnt accordingly on the same day. " 9. Annexed to this allegation, and marked A, is a true copy of the original log-book of the ship Falcon for the eleventh and twelfth days of July, 1862." 372 BRIG, NAME UNKNOWN. 1864. The capture having taken place under the provisions of the Dec. 21. statute 2 & 3 Vict. c. 73, the suit had been instituted under the 6th section of that Act, which renders applicable the enactment of the 5 Geo. IV. c. 113 (viz. the 71st section), "relative to autho- rizing the High Court of Admiralty to determine as to doubtful claims of bounty, and also on any question of joint capture." By the 3rd section of the 2 & 3 Vict. c. 73, the High Court of Admiralty, and all Courts of Vice-Admiralty in any colonies or dominions of her Majesty beyond the seas, are authorized to try and condemn any vessel equipped for the slave trade, which shall not establish to the satisfaction of the Court that she is justly entitled to claim the protection of the flag of any state or nation. The 6th section appoints that there shall be applied mutatis mutandis to seizures of vessels under that Act (inter alia) the enactments set forth in the statute 1 & 2 Vict. c. 47, " relative to rewarding the captors with a bounty on the vessel as well as on the slaves." The 1 & 2 Vict. c. 47, enacts, Sect. 2. " Where any ship or vessel which shall have been or may be seized and condemned under the provisions of any ti'eaty or convention made or to be made with any foreign power, or additional article to any such treaty or convention, shall have been or shall be entirely demolished, and the mate- rials thereof publicly sold in separate parts as well as her cargo, there shall be paid to the commanders, officers and crews of her Majesty's ships authorized to make and making such seizures, in addition to the amount which may be payable in respect of the moiety of the proceeds of such sale as herein- before mentioned, a further bounty on the tonnage of such ship or vessel at the rate of one pound ten shillings for every ton of such tonnage." Sect. 6. "The bounties payable under this or any other Act of Parliament for the seizure of slaves, and vessels fitted out for or engaged in the traffic of slaves, shall be paid to and distributed amongst the commanders, officers and crews of her Majesty's ships engaged in the seizure thereof in such manner and pro- portion and to and amongst such persons as by any order in council or proclamation of his late Majesty King William the Fourth at present in force hath been, or by any order in council or proclamation of her present Majesty, her heirs or successors, shall be for that purpose ordered and directed." The proclamation in force at the time of the seizure was that dated 29th December, 1853, but it contained no provision with respect to joint capture. BRIG, NAME UNKNOWN. 373 ^ The Queen's Advocate (Sir R. Phillimore), and Middleton, 1864. against the admission of the petition. — The statute vests the Dec. 21. bounty in those "making the seizure" or "engaged in the seizure." The facts stated do not support the claim of joint capture. The doctrine of constructive capture is not to be extended: Vryheid{a); Aviso (b). Here there was between the two vessels no asssociation, neither was there co-operation. It is not even pleaded that the Falcon was in sight of the slaver, which would appear to be in this as in prize cases an indispen- sable condition : Sociedade Feliz (c). But if she was in sight, the presumption of the animus capiendi, which is usually to be attributed to a Queen's ship, is here rebutted by the fact that the Falcon deliberately took no part in the chase, and con- tinued on her course to Ascension : Drie Gebroeders (d) ; La Flore (e). There was no actual " contribution of endeavour," Vryheid^f), which, says Lord Stowell, "there must be, as well as a general intention." The log is clearly inadmissible in evidence : Sociedade Feliz (g). Deane, Q.C., and Lushington, contra. — " The general rule certainly is, that sight alone is sufficient to entitle King's ships to be considered as joint captors, and it is a rule that is liable to very few exceptions :" Galen {h). Here an animus capiendi on the part of the Falcon is clearly to be inferred from the facts stated in the petition. It would, indeed, be absurd to require every one of her Majesty's ships present to get up steam to chase a prize in a calm, when any one of her consorts is suffi- cient. The rule as to proving sight is not to be apphed with the same strictness to slave cases as to prize cases ; Sociedade Feliz (i) ; Brazil (k) ; and here it may be obviously inferred that the Falcon was in sight of the prize, as well as the prize in sight of the Falcon. The Queen's Advocate replied. Dr. Lushingtok. — This is a claim preferred by her Majesty's Judgment. ship the Falcon to be declared joint captor with her Majesty's ship the Dart, in respect of the capture of a slave vessel effected by the Dart on the 11th of July, 1862. A petition on behalf of the Falcon having been filed, its admission is now opposed (a) 2 C. Kob. 22. (/) 2 C. Rob. 30. (i) 2 Hagg. 36, 37. (g) 1 W. Rob. 311. (c) 1 W. Rob. 309 i 2 W. Rob. 164. (h) 2 Dodson, 24. (d) 5 C. Rob. 342. (i) 2 W. Rob. 159. (e) 5 C. Rob. 269. (fc) Swabey, 79. 374 BRIG, NAME UNKNOWN. 186t. Dec. 21. Facts of the case. Averment and proof that the alleged joint captor was seen by those on board the prize before capture are im- portant, but are not abso- lutely required, as in cases of prize of war. on behalf of the Dart, and it is contended, that, assuming all the facts here pleaded to be true, they do not establish the claim of the Falcon to share as joint captor. The material facts stated in the petition are as follows : — Both vessels left Loando in company on the 10th July, but with different objects in view. The Dart was on a cruise for the sup- pression of the slave trade. The Falcon was bound to the Isle of Ascension, on her way to England, but she was, as well as the Dart, duly authorized to capture vessels engaged in the slave trade. At daylight on the 11th the Dart was about a mile and a-half distant from the Falcon. The slave vessel was seen seven or eight miles distant. At 7 a.m. she was discovered to be a brig, and observed to make additional sail. About half-past nine the Dart was observed to alter her course, and at eleven to proceed under steam in chase. About noon, the Dart bore S.W. of the Falcon, the prize S. by W., distant seven miles, and continued at the same distance till after the capture. About half-past one the Dart was seen from the deck of the Falcon to close with the brig to capture her. The brig remained in sight from the Falcon till dark, 6 p.m. The Dart went in chase of another vessel, but returned and took the brig in tow. During the day the Falcon had remained under plain sail on a wind making little progress. She did not join the chase because the Dart was sufficient for the purpose, and if the brig kept away she must necessarily near the Falcon. The case of the Falcon then is this : — being in sight, or rather seeing the prize, the chase and capture, with power to have joined in the chase, but abstaining therefrom, because her con- sort needed no assistance, and, moreover, preventing the prize from escaping in one direction. The first observation I am called on to make is, that it is not pleaded that either before or at the time of the capture the Falcon was actually seen from the prize. Now, whether the Falcon was actually seen from the prize or not is of no small importance in a case of joint capture; and so the authorities show, and for good reason, because it is by intimidation, actual or constructive, that a claim for joint capture is supported. I know not whether this omission was intentional or otherwise ; it might be intentional, because there is a difficulty in procuring evidence of such fact in the case of the capture of slave ships, wliich did not exist in ordinary cases of joint capture during the former war, and hence also the averment and proof of such fact are not with respect to the capture of slave ships necessarily required (a). (o) Sociedade Teliz, 2 W. Rob. 155. BRIG, NAME UNKNOWN. 375 Then, proceeding on the supposition that the being in sight is 1864. clearly proved, what is the law? Assuming it to be the same Bm. 21. as in ordinary cases of joint capture — a question which has Beine in sight been previously determined (a) — the being in sight is a prima is a prima, facie title to be considered a joint captor. This rule is sus- jo;"t capture ; tained by many authorities, of which I cite one only, La Flore, reported 6 C. Rob. 268, where Lord Stowell said that being in sight prima facie supports a claim to joint capture, unless it be shown that the vessel so claiming was pursuing a contrary route, which is not the case here. Some exceptions have been introduced to this rule, but I need not enumerate them. They rest on facts, which it would be difficult to describe except in detail, but which are supposed to rebut the presumption of the animus capiendi. Were there any such facts in this case? It and here the ^ , facts do not was the duty of the Falcon to proceed to the Island of Ascension rebut the and so to England, and she was so proceeding; but being animus capi- authorized to seize slave vessels, and consequently ordered so to do, it was also her duty to seize such vessels if she fell in with them in her destined course, and also to assist other vessels engaged in the suppression of the slave trade. Her destination to Ascension, therefore, was by no means inconsistent with the animus capiendi. Then, further, the Falcon did not join in the chase, but this was because her captain deemed it unneces- sary, which, indeed, according to the circumstances stated, it was, and also because one chance of escape was stopped by the course the Falcon was pursuing. Now, speaking of this petition only, and with no reference to other facts which may appear at the hearing, I am of opinion that the circumstances do not form an exception to the general rule, that being in sight gives a prima facie title to claim as joint captor. I admit the petition, and, if the petitioners desire it, will allow them to amend the petition by pleading that at the time of the capture the Falcon was seen from the prize. As to the log, I reserve my opinion as to whether it is admissible evidence or not; and I reserve it for this reason, that the authorities are very contradictory. The costs will be costs in the cause. Afterwards, on an affidavit being filed by the plaintiff's soli- citor, that upon inspection of documents in the Registry (of the (o) Jviso, 2 Hagg. 31. B.L. C C 376 BRIG, NAME UNKNOWN. 1864. Admiralty Court) it appeared that the vessel had been adjudi- Dec.2l. cated upon and condemned by the Vice-Admiralty Court of Sierra Leone, on the 18th September, 1862, and that the, sum of 1,177/. had been awarded as tonnage on the bounty, the Court, with the consent of the defendants, decreed that the plaintiffs were joint captors, and directed the costs of the cause, both of the plaintiffs and the defendants, to be paid out of the bounty. Nelson 8f Son, proctors for the plaintiffs, Bnrchett, proctor for the defendants. THE NORWAY. 377 1864. Nov. 22. THE NORWAY (a). Lien for freight and general average — Right of assignee of bill of lading to sue ; 18 ^ 19 Vict. c. Ill, s. 1; 24 Vict. c. 10, s. 5 — Rights of deducting from lump freight "payable as per charter-party'' part freight forfeited under guarantee "to carry 3,000 tons cargo or to forfeit freight in proportion to deficiency ;" address commission ; part freight in respect of cargo lost by shipowners negligence — Waiver of tender by peremptorily demanding excessive sum and withholding necessary papers — Evidence of negligent navigation — Duty of master in respect of place and manner of discharging cargo; 25 Sr 26 Vict. c. 63, s. 67 — Reference to Registrar and Merchants. A tender of money due may be waived by the creditor persisting in making an excessive demand and refusing to listen to any proposition to talie less. A creditor having a Ijen upon a debtor's goods for an unascertained amount, dependent upon a complicated account, the particulars of Which are partly in possession of him, the creditor, alone, will be held to waive any {tender for the amount really due, if on demand of the goods he wilfully withholds from the debtor the information (including papers) necessary to enable him to ascertain the amount due. A cargo of rice for a foreign ship was bought at Rangoon by the firm of Ash- burner & Co., on joint account for themselves and one De Mattos, a merchant in England. The bills of lading were indorsed by the firm to Mr. Ashburner, the plaintiff, member and representative of their firm in this country, for the purpose of realizing the cargo on arrival. De Mattos being indebted in other transactions to the firm of Ashburner & Co. in a large sum, exceeding half the value of the cargo, directed Mr. Asburner to apply any profit that might be due to him (De Mattos) upon the sale of the cargo to reduction of his general account with the firm : Held, that the property of the cargo was in the plaintiff, and that he, alleging breaches of contract and breaches of duty on the part of the master of the ship inrespect of the cargo, was entitled to sue the ship upon the bill of lading under ^Tthefth section of the statute 24 Vict. i;. 10.— (Admiralty Court Act, 1861.) The bills of lading for the rice made "freight payable as per charter-party." This charter-party was between De Mattos and the master of the ship. The master undertook " to take out a cargo of salt from Liverpool to Calcutta, and there, after discharge, reload, or at freighter's option proceed to Rangoon, Akyab or Bassein, and there load a full cargo of lawful merchandise, and therewith proceed to Falmouth for orders to proceed to London or Liverpool or (other specified ports), or so near thereunto as she might safely get, and deliver the same." In consideration whereof the merchant agreed to pay " as freight for the use and hire of the said vessel 11,250^. lump sum, the master guarantee- ing to carry 3,000 tons dead weight of cargo upon a draft of twenty-six feet water, or to forfeit freight in proportion of deficiency:" (a) See same case on appeal, reported post, p. 404. c c 2 378 THE NORWAY. 1 864. The stipulation for the mode of payment of the freight provided for instalments and Nov. 22. advances during the voyage, concluding, " the balance as follows : viz. one- third in cash, on arrival at port of delivery, and the remainder on true and final delivery of the cargo at the said port of discharge by good and approved bills payable in London, or cash equal to three months' date from the de- livery." Other stipulations followed j amongst them: "the vessel to be addressed at all ports to freighter's agent, paying one commission only on this charter, not exceeding 5 per cent." " For the payment of all freight, dead freight, demurrage or other charges, the master or owners shall have an absolute lien on the said cargo laden on board:" The homeward cargo was shipped at Rangoon. In going down the Rangoon river, the ship took the ground ; in consequence of which she afterwards leaked, and the master was thereby obliged to jettison part of the cargo, and put into a port of refuge and sell another part of the cargo sea-damaged. The master then sailed with the residue of the cargo on board, and arriving at Falmouth was ordered to proceed to Liverpool. At Liverpool a dispute arose as to the amount due on the cargo for freight and general average, and the master peremptorily refused delivery except on receipt of a certain sum, which the plaintiff declined to pay. The master also refused to go into one of the closed docks as requested by the plaintiff, and went into another dock, whereby certain additional expenses would necessarily be incurred by the owner of the * cargo : The plaintiff then instituted this cause under the Sth section of the Admiralty Court Act, claiming damages for non-delivery and other breaches of contract : Held, that the master's guarantee was not a guarantee that the ship should actually carry 3,000 tons on the homeward voyage, either to the port of discharge, or from the port of shipment, but a guarantee of the capacity of the ship that she could carry 3,000 tons, and that she could do so upon a draft of twenty- six feet water, and that as loading was contemplated in rice ports which are situate in rivers, the word "water" meant water at the place of loading, whether fresh or salt. This guarantee being broken : Held, that " the forfeiture of freight in proportion to deficiency" was a forfeiture of such a proportion of the lump freight as corresponded to the deficiency from 3,000 tons of such carrying capacity of the ship, and that in assessing the amount to which the master's lien for freight extended against the plaintiff as the holder of the bills of lading for the entire cargo, making freight payable as per charter-party, the plaintiff was entitled to the benefit of the forfeiture of part freight under the guarantee. The Court also directed the Registrar and Merchants to report whether the plaintiff was entitled to deduct from the freight the address commission. The Court having found upon the evidence that the grounding of the ship had been occasioned by the negligent navigation of a pilot who was not employed by compulsion of law, and that the loss to the owner of the cargo by the con- sequent jettison and sale was in law occasioned by the negligence of the ship- owner : Held, that the ship was liable under the statute in damages for the nett value of the rice so lost, viz. the value of the rice in a sound state at the time and place of delivery, less the proportion of freight and necessary charges on account thereof. Held also, that in assessing the amount of the master's lien for freight, the plaintiff could not deduct the value of the part cargo so lost by the shipowner's negli- gence, but was entitled to deduct a proportionate part of the lump freight Held also, that the plaintiff was entitled to damages for non-delivery of the residue of the cargo, notwithstanding that he had made no suflScient tender of the freight and general average due thereon, for that the master had in law waived any such tender, 1st. By demanding an excessive sum in such a manner as to dispense with any offer of a smaller sum; THE NORWAY. 379 2ndly, By withholcUng from the plaintiff the papers in his possession necessary 1864. to calculate the amount really due, such papers being — ^ „2 1. A pro forma freight account showing all the deductions from the lump freight, and the sum total claimed : 2. A memorandum from an average adjuster as to the probable amount of contribution from the cargo for general average : 3. The particulars of the tonnage shipped at the rice port ; the particulars of the jettison i the surveys and account sales at the port of refuge. Held also, that the withholding such papers was a breach of duty by the master, giving a right of action under the Admiralty Court Act. Held also, that the master was not bound to discharge in any particular dock named by the holder of the bills of lading, but was justi6ed in discharging the rice on any wharf in the port of discharge on which goods of a lilie nature are usually placed.— 25 & 26 Vict. c. 63, s. 67. After the filing of the plaintiff's petition, the master, who had previously entered the cargo inwards, the plaintiff in the circumstances declining to do so, em- ployed a master porter to land the rice. In landing the rice, the master porter did not " assort " it as is usual with rice cargoes in anywise damaged, and thereby the rice became depreciated in value. At the hearing the plaintiflF gave evidence of this non-assortment and consequent depreciation of the rice. The Court, having found that the master had wrongfully refused delivery to the plaintiff. Held, that the master having taken upon himself to land the cargo was bound to have " assorted" it in the usual manner and that the ship was liable for the damages caused by the non-assortment. After the lauding of the cargo and during the progress of the cause the plaintiff obtained delivery upon paying into Court a certain sum of money. The Court in its decree directed the Registrar and Merchants to take an account of the freight due in respect of the cargo according to the positions laid down in the judgment, of the damages pronounced for, and of the amount, if any, due for general average contribution from the cargo ; and to report the balance. THE argument on the demurrer to the petition in this case is reported ante, p. 226. The answer of the defendants was in substance a denial of the several statements of the petition ; but it alleged that the jetti- son and sale of part cargo had been necessitated by perils of the seas. The trial which followed occupied four days. The results of the evidence, the points insisted upon by counsel, and the autho- rities cited, will be found stated in the following judgment. The provisions for the delivery of goods which are warehoused in warehouses belonging to the Mersey Docks and Harbour Board, subject to lien for freight, are contained in the Act 21 & 22 Vict. c. xcii. ss. 193—1,99. The Merchant Shipping Act Amendment Act, 1 862 (25 & 26 Vict. c. 63, ss. 66—78) con- tains similar provisions applicable to goods wheresoever so ware- housed. The provisions for entering goods inwards are to be found in 16 & 17 Vict. c. 107, s. 50 et seq. Lush, Q. C.J and Lushington, for the plaintiff. Brett, Q. C, and Cohen, for the defendants. 380 THE NOEWAY. 1864. Dh. Lushington. — The parties to this suit are the plaintiff, ^°''- ^^- Mr. George Ashburner, a partner in a mercantile house at Cal- Judgment, cutta, suing as owner and assignee of bills of lading; and the defendants are the owners of the Norway, an American vessel. The owners are not domiciled in this country. The action is brought under the 6th section of the Admiralty Court Act, 1861, for breaches of contract and breaches of duty by the master with respect to the goods comprised in the bills of lading. One of these breaches was non-delivery of the cargo. The petition was filed on the 19th of January, 1864. Objections were taken to its admissibility, and on the 12th of February following the Court ordered it to be reformed. On the 22nd of March, an order was made by the consent of both parties to the effect that, on payment to the master, by the plaintiff, of 3,461Z. 13j. 2d, (the balance of freight stated by the plaintiff to be due in respect of the cargo), and on the plaintiff depositing in the registry a note for 5,260Z. to answer any further claims of the master for freight and general average, and on the bills of lading being filed in the registry, and on an undertaking being given by the plaintiff to indemnify the defendants against any loss that they might sustain through the delivery of the cargo, the cargo should be released and possession th*eof given to the plaintiff. On the 1st of April the plaintiff, under this order, obtained possession of the cargo. On the 5th of April, under another order of the Court, made by consent, the plaintiff paid to Messrs. Taylor, the defendants' agents, in respect of the cargo, 845/. 6s. 8e?. for landing charges, reserving any question in respect of the same for the decision of the Court. The cargo has since been sold by the plaintiff. After the alterations had been made in the petition the pleadings were concluded, evidence was taken and the case fully discussed, and now it is my duty to give my judgment. The property The defendants have taken a prelinainary objection to the title passed to the °^ ^^ plaintiff to sue, and the objection, as I understand it, plaintiff, and he is that the plaintiff has no beneficial interest in these bills of IS tnGrBiorc entitled to sue. lading. The plaintiff, on the other hand, avers in his petition that, at the time of the institution of the cause, he was the owner of all the rice covered by the bills of lading. The law upon this point is clear. The judgment in the -S^. Cloud(a) de- cided that, under the 6th section of the Admiralty Court Act, 1861, the Court will not entertain a claim made by the bare assignee of a bill of lading, and to that judgment I adhere. (o) Ante, p. 4. THE NORWAY. 381 What, then, is the position of the plaintiff? I must briefly 1864. state the facts necessary to determine this question. Nov. 22. In November, 1861, a charter-party is made by which the master of the Norway qharters his ship to a Mr. De Mattos to carry a cargo of salt to Calcutta, and bring back a cargo from thence, or from one of certain rice ports in the charter-party named. Whilst the vessel is still on her outward voyage, De Mattos agrees with Ashburner & Co., of Calcutta, a firm of which the plaintiff is partner, and the representative in England, that the homeward shipment should be on joint account, each a moiety; the firm of Ashburner & Co. to purchase the cargo, and to manage the matter of the shipment. The Norway is sent to Rangoon to take in a cargo of rice. Ash- burner & Co. employ tlie Burmah Company to furnish the rice, and Ashburner & Co. pay for it. Cargo is shipped, and bills of lading for the same are endorsed by the Burmah Company and their agent, to Ashburner & Co., at Calcutta. Ashburner & Co. then draw bills on De Mattos for the whole amount of the pur- chase-money, 16,422/. 9s. 9d., and send these bills and the bills of lading to the Union Bank, in England, to be dealt with as follows: — De Mattos was to accept these bills of exchange and to pay the whole amount mto the Bank to the credit of Ash- burner & Co. ; until the acceptances were duly met, the Bank was to retain the bills of lading. Ultimately, had matters re- mained unchanged, I presume, though it is not mentioned, Ashburner & Co., in their account with De Mattos, would allow him half the amount so paid into the Bank, while De Mattos would debit himself, in favour of Ashburner & Co., with half of the proceeds of the cargo. For the adventure was a joint adventure. But this arrangement was subsequently altered. The vessel, under circumstances to be hereafter narrated, was obliged to deviate from her course, and to put into Mauritius, where she was detained. On the 22nd of October, De Mattos writes to Ashburner — " The Norway, as you are aware, by putting into Mauritius, has been delayed some three months extra in her voyage, and hence her bills are falling due prior to her arrival. Under these circumstances, I shall be glad if you will arrange to hold the bills drawn against the cargo over until after her arrival and discharge. Of course, this arrangement will in no way affect the liabilities in regard to this cargo." On the 26th October, he wrote again to Ashburner — " In handing you the remainder of the policies on the Nor- way, I hereby give you full power and authority to deal with my 382 THE NORWAY. 1 864, interest in that vessel as you may deem best. You will please carry Nov. 22. to my account with you any surplus arising from the sale of the cargo, or the realization of the policies after the payment of the bills against the cargo, amounting to about 1 6,422Z. 1 9s. 9c?." On the 6th of November, De Mattos writes further to Ash- burner — " I think that the recent rise in the price of rice will enable you to reimburse yourself fully from the sale of the Norway's cargo for the advance of 3,500/. you are about to make to the Union Bank to withdraw ray acceptances there. In this case it is fully understood and agreed between us, that the said surplus on the cargo of the Norway is to be applied, in the first instance, to Hquidate the said advance of 3,600/., with interest ; after which, the balance, if any, is to be applied to the general account for your other advances to me." At this time De Mattos was indebted to Ashburner on his general account (in addition to the bills drawn against the cargo) in the sum of about 13,000/. Ashburner accepted the proposi- tion, and agreed with the Union Bank for the withdrawal of the bills against the cargo. The result, accordingly, was this: — Under the original arrangement Ashburner, as partner and representative of his firm, was the legal owner of the bills of lading, subject to any lien upon them which might be exercised by the Bank to secure their current account with Ashburner & Co., and with the understanding that the bills of lading should be assigned to De Mattos, if he should meet the bills of ex- change. Then as to the cargo covered by these bills of lading, one-half would belong to Ashburner, as representative of his firm ; the other half would belong to De Mattos. Under the new arrangement Ashburner, as before, remained the legal holder of the bills of lading, but now free from any undertaking that they should be assigned to De Mattos; and as to the cargo he remained, as before, entitled to one-half as representative of his firm; but as to the other half he became equitable assignee from De Mattos, in trust to apply the proceeds as follows : — 1st, to satisfy one-half of the price of the cargo which would have been payable to Ashburner & Co. by De Mattos. 2nd, to reimburse himself the 3,600/. advanced by him personally to the Bank for De Mattos. 3rd, to pay off any debt due from De Mattos to Ashburner personally upon their general account. Then, if any residue was left, Ashburner would, of course, hold this for De Mattos. But no residue could be anti- cipated, because, in addition to the bills drawn against the cargo. THE NORWAY. 383 and this sum of 3,500Z., the debt from De Mattos to Ashburner at 1864. this time exceeded 13,000Z. De Mattos in his letters never even ^o"- ^2- refers to such an ultimate residue as a possible contingency. These trusts, then, were substantially for the benefit of Ashburner personally, and also as the representative of his firm. De Mattos ceased to be interested in this cargo, otherwise than that it was to his advantage that the cargo should turn out well ; for the higher price it fetched the greater would be the reduction of his debt to Ashburner. Then De Mattos expressly authorizes Ashburner to deal as he saw fit with the interest so assigned to him ; but at the same time it was arranged between them that, as Ashburner lived in the country, and had no place of business of his own, and had not been conversant with the affair from the beginning, that De Mattos should carry on the correspondence for Ashburner, and all letters for Ashburner should be forwarded to him at De Mattos' office. There is only one further fact that requires to be stated. When the vessel arrived, the Union Bank without hesitation handed over the bills of lading to Ashburner. Under these circumstances, I am of opinion that Ashburner was not only the legal holder of these bills of lading, but also that, by the assignment, the property comprised in the bills of lading passed to him as an indivi- dual person, and the representative of his firm ; that he has a right to sue the ship in this Court under the 6th section of the Admiralty Court Act, 1861. I now proceed to the consideration of the merits of the case. The charter-party was executed in London on the 2nd of Construction of November, 1861, between Captain Major, master of the Nor- and bills of way, and De Mattos. It was as follows : — lading. Memorandum for Charter (a). " London, 2nd November, 1861. " It is this day mutually agreed between Captain H. B. Major, of the good ship or vessel called the Norway, A. 1, of the bur- then of 2,078 tons per register, or thereabouts, now lying in the port of Liverpool, whereof he is at present master, of the one part, and W. N. De Mattos, Esq., of London, merchant and freighter, of the other part: That the said ship, being tight, staunch and strong, and every way fitted for the voyage, shall, with all convenient speed, be made ready and load at Liverpool a cargo of salt, not exceeding 2,200 tons, and therewith pro- (a) The words in Italics Jd this charter-party are the more material passages. — Rep. 384 THE NORWAY. 1864. ceed to Calcutta, and after the discharge of the outward cargo Nov. 22. reload {or at freighter's option proceed to Rangoon, Akyah or Bassien) a full and complete cargo of lawful merchandise, not exceeding what she can reasonably stow and carry over and above her cabin tackle, apparel, provisions and furniture, and being so loaded shall therewith proceed to Cowes, Queenstown or Fal- mouth, at master's option, for orders to proceed to London, Liverpool, Bordeaux, Havre, Antwerp or Marseilles, or so near thereunto as she may safely get and deliver the same, agreeably to bills of lading, and so end the voyage ; (restraints of princes and rulers, the dangers of the seas and navigation, fire, pirates, and enemies during the said voyage always excepted ;) ninety days are to be allowed the said merchant (if the ship be not sooner despatched) for discharging the outward cargo of salt, and loading at Calcutta or the rice ports, and the vessel to be unloaded at port of discharge according to the custom of the port; the freighter having the option of keeping the said vessel on demurrage, to the extent of 10 days, over and above the said laying days, if so required. " In consideration whereof, and everything before mentioned, the said merchant does hereby promise and agree to load and receive, or cause to be laden and received in the manner and within the time herein mentioned for these purposes, and pay, or cause to be paid as freight, for the use and hire of the said vessel, 1 1,250Z., lump sum, if ordered to the United Kingdom, Havre or Bordeaux; 11,625/. if ordered to Antwerp or Mar- seilles; the master guaranteeing to carry 3,000 tons dead weight of cargo, upon a draft of 26 feet of water, or to forfeit freight in proportion to deficiency; the vessel to be loaded at port of loading, to such a draft of water as the freighter or his agents may, in connexion with the pilot commissioners, con- sider safe to proceed to sea ; lighterage, if any, to fill up the ship below the flats, to be at freighter's expense, payment whereof to become due and to be paid as follows, viz. : — 2,000/. to be ad- vanced on the vessel's clearing at Liverpool, subject to insurance only, say 1,000Z., by freighter's acceptance, at 4 months, and 1,000/. at 6 months, sufficient cash for ship's disbursements, not exceeding 2,500/., to be advanced at Calcutta, and the necessary disbursements, if ordered to the rice ports, subject to interest and insurance only, all at current rate of exchange for 6 months' bills on London against the captain's receipts, such advances to be made on account of chartered freight, and the balance as fol- lows, viz.: — one-third in cash, on arrival at port of delivery, and the remainder on true and final delivery of the cargo at the said port of discharge, by good and approved bills, pagable in THE NORWAY. 385 London, or cash equal to 3 months' date from the delivery, if 1864, discharged in the United Kingdom, or in cash, at current rate Nov. 22. of exchange, if discharged on the Continent, less 3 months' interest, and also to pay for each and every day the vessel is de- tained beyond the times hereinbefore mentioned demurrage at the rale of thirty pounds sterHng money per day, to be paid day by day, or as the owner or captain may agree for it otherwise. The master shall sign bills of lading as tendered, without pre- judice to this charter-party. The vessel, if ordered from Cal- cutta to load at the rice ports, to proceed within 48 hours, wind and weather permitting, after receiving her despatches to sail; the customary port charges and towage at the rice ports to be borne by the freighter, as well as the actual cost of ballasting required for the ship at Calcutta; the cargo to be taken to and taken from alongside at merchant's risk and expense ; the vessel to be addressed at all ports to freighter s agent, paying one commission only on this charter, not exceeding 5 per cent.; and for the true performance hereof the said parties hereunto bind them- selves, their respective heirs, executors, assigns, the said vessel, her freight and appurtenances, and the said freighter the cargo to be laden on board the said vessel, each unto the other, in the penal sum of twelve thousand pounds, of good and lawful money of Great Britain, it being agreed that for the payment of all freight, dead freight, demurrage, or other charges, the said master or owners shall have an absolute lien and charge on the said cargo or goods laden on board. The brokerage on this charter-party, five per cent., is due by the ship, on perfecting this agreement, to Pilkington Brothers. In witness whereof the said parties have hereunto subscribed their names. "H. B. Major. " W, N. De Mattos." Before the arrival of the vessel at Calcutta, an agreement was made, as I have before stated, between De Mattos and Ash- burner & Co., that the homeward shipment should be on joint account, each a moiety, the firm of Ashburner & Co. to purchase the cargo and manage the matter of the shipment. In pursuance of the charter-party, the Norway proceeded to Calcutta, and discharged her outward cargo. On arrival there, on or about the 15th day of May, 1862, it was agreed between Ashburner & Co, and the master of the Norway, that the Norway might go an intermediate voyage to Bombay without prejudice to the charter-party, and thence proceed to the port of loading accord- ino' to the order of Ashburner & Co., there to load homeward, according to the charter-party. And it was further agreed be- 386 THE NORWAY. 1864. tween them that Ashburner & Co. should advance moneys for Nov. 22. the disbursements of the ship at Bombay, and that the same should be considered as advances of freight in pursuance of the charter-party, and should be deducted from the charter freight; provided the said advances, together with the advances at- Cal- cutta, should not exceed the sum of 2,500/. mentioned in the charter-party. The Norway accordingly went to Bombay, and thence in ballast, by order of Ashburner & Co., to Rangoon, there to load rice in pursuance of the charter-party, from the Burmah Company (Limited), who were the agents of Ashburner & Co. at that place. In the beginning of March, 1863, the Norway, having arrived at the port of Rangoon, commenced to load rice there from the Burmah Company, who furnished it on account of Ashburner &Co. The ship was first loaded at Rangoon itself up to a draught of eighteen feet, and then taken down the Irawaddy River, a few miles over the Hastings Flat, there to take in further cargo, which was brought by lighters, hired by the Burmah Company. In this manner the ship now loaded until she drew twenty-five feet, and then she had on board 32,600 bags of rice weighing 2,698 tons (exclusive of some tons of dunnage) ; that is, some 300 short of 3,000 tons. The 36,200 bags of rice thus loaded consisted of four parcels ; and in respect of these parcels the master of the Norway signed four bills of lading. The bill of lading for the first parcel (to which the bills of lading for the other parcels mutatis mutandis correspond) was in the following form ; (the words in Italics being in writing in the original documents) : — iBCl/ " Shipped in good order and well conditioned by the Burmah Company (Limited), in and upon the good ship called the 13,000 Norway, whereof is master for this present voyage H. JB. Major, and now riding at anchor in the Rangoon River, and bound for Cowes, Queenstown, or Falmouth for orders as per charter- party." " Thirteen thousand bags of cargo rice, being marked and numbered as in the margin, and are to be delivered in the like good order, and well conditioned, at the port of discharge (the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature and kind soever excepted), unto order or to assigns, freight for the said goods payable as per charty-parfy, with primage and average accustomed. In witness whereof the master or purser of the said ship hath affirmed to three bills THE NORWAY. 387 of lading, all of this tenor and date, the one of which three bills 1864. being accomplished, the other two to stand void. ^'''"- ^^- " Dated in Rangoon, \Oth March, 1863. " H. B. MAJOR." These bills of lading were endorsed by the Burmah Company and Mr. Cator, as I have stated, and forwarded to Ashburnor & Co., at Calcutta. The subsequent arrangement as to the cargo has also been already fully stated, and need not now be repeated. These facts are sufficient to enable the Court to pronounce its interpretation of the bill of lading, and of so much of the charter- party as is incorporated therein; and as one of the principal points in dispute was whether, under the terms of the bill of lading and the charter-party, any, and, if any, then what de- duction was to be made from the lump freight, in consequence of less than 3,000 tons of cargo having been shipped on board the Norway, I think it will be convenient if, before entering upon the subsequent history, I proceed to consider the construc- tion of these documents. The freight is stated in the bills of lading to be " freight pay- able as per charter." The Court is therefore referred to the charter-party, but only for the purpose of ascertaining the amount of freight. The construction of this charter-party is full of diffi- culties. In attempting to put a construction upon any doubtful provision which may be found in this charter, it must be borne in mind that it is a mercantile instrument, that the parties must be presumed to have intended to have carried out a fair mercan- tile transaction, the master to obtain a fair remunerative employ- ment for his ship, the charterer to acquire a conveyance for his merchandise at a reasonable rate. If any of the provisions of the charter are found doubtful, or capable of two constructions, the construction to be adopted must be, if the words of the charter will permit, that most consonant to mercantile usage, and most consistent with equity. Both parties must be presumed to have had an adequate knowledge of the nature of the adventure in which they had mutually engaged. What, then, are the stipulations in the charter as to freight ? The true I think they occupy the whole clause beginning: with—" In con- ™eaningof the •' ,. , . guarantee was sideration of,' and endmg " less three months mterest." After not a guarantee naming 11,250/. as the freight payable if the ship is ordered to earTyTood" the United Kingdom, the charter-party contains these words : — '"ns on the "The master guaranteeing to carry 3,000 tons dead weight of buta^|uaran^tee careo upon a draft of twenty-six feet of water, or to forfeit freight '''*'*'i^ ship . ^ r ■ "ijTi-ii- • could carry in proportion to deficiency. 1 thmk this guarantee is a two- 3,ooo tons, and fold one, viz. :— 1st, that the ship was large enough to carry upo'n a^drTftd 388 THE NORWAY. 1864. 3,000 tons. 2nd, that her build was such that she could carry Nov. 22. the 3,000 tons upon a draft of twenty-six feet of water. I think 26 feet water, this was a most natural guarantee for a charterer to require with wafer w *^^ respect to a vessel which he contemplated loading at a rice port fresh or salt at like Rangoon, which was separated from the sea by a river load^ngT ° channel of some thirty miles long, or more. I hold that it was not a promise on the part of the master that, in this particular voyage home, he would carry 3,000 tons. For, at the time when the charter was executed, it was not settled for certain from what port the vessel should load for the home voyage; the selection lay with the freighter, he might choose either Calcutta, Rangoon, Akyab, or Bassien ; and it is not impossible that the river channel from one of these ports might not be navigable for a vessel drawing twenty-six feet of water. The shipowner, therefore, could not with prudence covenant absolutely to carry 3,000 tons. What he covenants is, that his vessel was capable of carrying three thousand tons, and this upon a draft of twenty- six feet of water ; and, further, that she should take on board a full cargo compatible with safety. Hence, after the guarantee, is added the clause : — " The vessel to be loaded at port of lading to such draft of water as the freighter or his agents may, in connexion with the pilot commissioners, consider safe to proceed to sea." The interest of the freighter was to be protected by his agent, the safety of the vessel by the pilot commissioners. I think this covenant as to the loading of the vessel was a separate covenant from the previous cove- nant as to her capacity in connexion with her draft; and that the clause of "forfeiture in proportion to the deficiency" refers, as its place denotes, only to the first Covenant, and not to the covenant as to loading; though, if through the default of the master the vessel had not been loaded to the draft which the freighter's agent and the pilot commissioners had pro- nounced safe, the charterer would have had a right of action for damages. The guarantee then being, as I hold, a guarantee that the vessel was of a capacity to carry 3,000 tons, and this upon a draft of twenty-six feet of water, a further question arises what is the meaning of the word " water?" The question is of importance, because : 1st. — It is an undoubted fact that a vessel will float at a less draft in sea water than in fresh. It appears in the evidence that for every fifteen feet which a vessel draws in salt water it is necessary to add six inches in order to ascertain her draft in fresh water. 2nd. — In this case it is clear that the vessel could carry 3,000 tons of cargo in sea water at a dra:ft of twenty-six feet, but that she could not do so in fresh water. THE NORWAY. 389 For, at Hastings, where the water was nearly fresh, the Norway 1864. drew twenty-five feet, with 2,698 tons of cargo on board; with -Vou. 22. a draft of twenty-six feet she would have carried, as the master states, 220 tons more, or 2,918 tons in all; that is, eighty-two tons short of 3,000. Had the water been salt, it follows, from what has been stated, that the Norway might easily have carried these eighty-two tons, i.e., in all 3,000 tons, without drawing more than twenty-six feet. To solve this question as to the meaning of the word " water," the Court must look to the terms of the charter itself. Taken alone, the term is capable of either construction ; the meaning is ambiguous. This being so, it is lawful to look to the whole of the charter to discover what light can be thrown upon a doubt- ful part. I think that the fair inference from the charter is, that, in settling the stipulations as to the capacity and draft of the ship, both parties, the master and the charterer, contemplated the locus in quo of the intended shipment of cargo — viz., a rice port in India, intercepted from the sea by a river channel, and where the water was necessarily more or less fresh. The taking in cargo at sea was not contemplated. The provision as to load- ing to such a draft as might be safe for the vessel to proceed to sea, and the provision as to lighterage, if any, to fill up the ship below the flats, to be at the freighter's expense, show this. I think, therefore, that the guarantee meant that the vessel should be capable of carrying 3,000 tons upon a draft of twenty-six feet during the whole time of taking in, and until she reached the open sea — that is, during the whole period when the question of her draft could be of any importance. And during the early part of her voyage it was all-important to the freighters that the vessel should be able to carry 3,000 tons upon a draft of twenty- six feet, because otherwise, if either her capacity had been smaller, or the draft greater, a smaller cargo would necessarily be shipped. But consider what would be the effect of a contrary construc- tion of holding that the stipulation as to the twenty-six feet applied only to salt water, and not to fresh. It would be a stipu- lation without any rational object, for the rice once on board and the vessel in the open sea, what could it signify whether the ship drew twenty-six or twenty-seven feet of water? Again, such a construction confining the meaning to sea water, would dislocate this condition from all the surrounding provisions of the charter, which clearly point to the loading of the ship in the river, and not at sea. I do not, therefore, accede to the argument on the part of the defendants, that this guarantee by the master of the capacity of his vessel in connexion with her draft had reference to her ordinary sea-going draft; and that it was left to the 390 THE NORWAY. 1864. Nov. 22. The master liad a lien for the whole balance of the freight. The right of the plaintiff to deduct from the freight the address com- mission re- ferred to the Registrar and Merchants. charterer to take into account for himself the difference, how- ever well known, of the draft of a vessel in fresh water from the draft of the same vessel in salt water ; and I do not consider that the case of Pust v. Dowie (a), to which I was referred, is appli- cable to the present case. Accordingly, inasmuch as at Hastings, where the loading was completed, the vessel could not carry 3,000 tons upon a draft of twenty-six feet, I am of opinion that the guarantee was broken, and that forfeiture of freight must take effect. It still remains to interpret the phrase " to forfeit freight in proportion to the deficiency," By "freight" I think is meant tlie only thing that is called freight in the charter — the lump freight, which, under the circumstances that have actually hap- pened, is 11,250Z. I think it quite clear, that in fixing the freight, the parties to the charter-party were looking to the homeward cargo only ; in truth, the object of the adventure was not the carrying out salt, but the bringing home rice ; and by the deficiency is meant the difference between 3,000 tons which the vessel was guaranteed to be capable of carrying upon a draft of twenty-six feet, and the 2,918 tons which, on the evidence of the master, it appears she could actually have carried on that draft in the Irawaddy ; in other words, the allowance will be on tht deficiency of eighty-two tons. The exact sum will be ascer- tained by the Registrar and Merchants, to whom I shall refer the matter. Before I leave the charter-party, I will dispose of some other questions that have arisen upon its construction. I am of opi- nion that, the master had a lien for the whole of the balance of the freight, that is, not only for the two-thirds of that balance which were payable by bills upon the true and final delivery of the cargo at the port of discharge until the bills were given, but also in virtue of the lien which he had reserved to himself, in express terms at the end of the charter-party, upon the one- third of the balance, payable in cash, on arrival of the vessel at the port of delivery. Then as to the right of the plaintiff to deduct address com- mission from the freight, evidence was given on behalf of the plaintiff, that in a case like the present, where the bills of lading declare "the freight to be payable as per charter-party," and the charter-party provides " that the vessel shall be addressed at all ports to the freighter's agent, paying one commis.sion only on the charter, not exceeding 51. per cent.," and where the bills of lading comprise the whole of the cargo, and pass into the hands (a) 5 Best & Smith, 20. THE NORWAY. 391 of a single person, then, by universal custom, the holder of these 1864. bills of lading, although not the formal assignee of the charter- Nov. 22. party, deducts the address commission from the freight. The defendants gave no evidence to the contrary; but as this is an important question, and as it may be a matter of some delicacy to distinguish between a custom that ordinarily prevails upon a friendly settlement of freight and a custom of so universal a character that it may be enforced in invitum, I shall refer this question to the Registrar and Merchants. I shall also refer to them to ascertain the rate of interest that should be allowed on the advances. I now resume the history of the voyage, chiefly to lead up to the claim made by the plaintiff in respect of that part of bis goods which was jettisoned at sea, and that part which was sold at the Mauritius. On the 19th of March, 1863, the Norway left Hastings, six or Thecircum- seven miles below Rangoon, with her cargo on board, drawing stances ot the o J o ' o grounding in twenty-five feet, in charge of a pilot provided by Captain the Rangoon Brooking at the master's instance, and in company with a small [^',^35^ caused steamer of sixty-horse power. The Norway was not towed by 'he negli- down, the steamer not being powerful enough for that purpose ; pHot, the de- she was let drop down the river at ebb tide, stern foremost, the fendant's ser- . vant; steamer being made fast to her alongside for the purpose of sheering or canting her so as to keep her in the stream or of giving her a stern-board. At night, and also during flood-tide in the daytime, she anchored. On the 23rd of March she took the sands; what circumstances occasioned this, th#- log-book does not state ; and the master and the mate depose that, as the ship was at the time in charge of the pilot, and navigated by him exclusively, they know no more than that it was about ten o'clock when she was aground, that the weather was clear, and that there was a powerful tide running eight or nine knots an hour, for the freshets, so deposes the master, were com- mencing. Under these circumstances, it has been urged on behalf of the defendants, that the grounding is to be attributed to the perils of the seas ; but against this must be set the very strong evidence of the experienced witnesses called by the plain- tiff. They are Captain Ward, of the Indian navy, who himself made the survey of the Irawaddy for the Admiralty, Captain Dicey, who has commanded a government transport from Cal- cutta to Rangoon for thirteen or fourteen years, and a Mr. Duncan, who for ten years has been in charge of a sailing trans- port in the Irawaddy and the adjacent seas. According to them, the freshets do not commence before the rainy season in May, and even then the velocity of the tide would be seven knots an B. L. D D 392 THE NORWAY. 1864. honr instead of eight or nine as deposed by the master. In A'or. 22. March the ebb tide would be only four and a-half knots per hour, and, what is far more important, below Hastings, all the way to the sea, there is. a clear channel, a mile wide, for vessels drawing thirty feet of water. Neither steam-tug nor pilot is necessary, though the use of both may be convenient and proper ; and they assert that a master of ordinary skill, and with ordinary prudence, and watching the tides, could have safely navigated the Norway, loaded as she was, from Hastings to the sea. This evidence seems incontrovertible, and clearly to lead to the" conclusion that the grounding of the Norway was caused by the negligence or want of skill of the pilot in charge. The pilot must have navigated the Norway either at a wrong time of the tide or out of her proper channel. Whether the master is liable for the negligence of the pilot is a legal ques- tion, which for the present may be reserved. The Norway was got off the sands after a few hours. The Burmah Company procured the use of the mail steamer, 180 horse power, and by her assistance the Norway got clear out to sea, apparently uninjured. A few days afterwards the vessel began to leak, the leakage being clearly attributable, in the opinion of both the master and mate, to injuries received on the sand ; the leak increased in spite of all efforts to stop it. On two occasions the master made jettison of the cargo not under the pressure of any immediate danger; but, in order to clear the side-ports, so that if, as was feared, the leak should in- crease suddenly, jettison might be made freely and rapidly. This jettison, it may be assumed, was not an imprudent or im- proper measure. It seems, however, to have been made in haste, the bags were not counted as they were thrown over ; and the number thrown over was at first supposed to amount to 800, but turned out to be 500 only. The leak still increased, and the master found himself obliged to make for Mauritius. He reached Port Louis on the 11th of May, 1863. On the 12th of May the master noted his protest, and had it duly ex- tended. The ship was then surveyed, and the certificate recom- mended cargo to be discharged. This advice was followed, but after 3,400 bags had been dischargecf, an accident happened to the machinery, which prevented the men from working the pump any more by steam, and the water in consequence was insufficiently kept under during the discharge of the remainder of the cargo, and fresh injury was done to the cargo. The cargo discharged, there were three other surveys made succes- sively of the ship. One certified that the cargo had been well stowed and amply dunnaged. Another specified the repaii^ THE NORWAY. 393 that woro roqiiisilo for the sliip, and \ho lasl, oortifiod that tliose 1864. I'oiKiirs lu\d boon |ii'i>|HM'ly oxiH'uUhI. Hiisidos I lu'so surveys on ATob. 22. llio ship, (horo uon- survoys oC the ciirsi'o, the first by Horthfiehl, [\ hroktM-, nnd thou nsjuiu by two sworn hrolv<'rs. The result was, lliut 1, 3(H) bus;s of ili»nii>i:;('«l rice \\(Mv sold. Tiicn the niusler, bt>ing- in want of funds, niised 7,'J()()/. by a bottomry bond on the ship, freight and euro-o. The ship repuircd and the cargo reloaded, the nutster set sail ui!,uin for lM\i;li>nd. Ihuler Uiese eiroumstuneos the pluiutitr, in his |ietition, and i1i<- aliip is ehar^es the niasfer with hiivini;' wrono;l"nlly thrown overboard sponsMo I'or part of his eariio, and with hiivini'- wrongfully sold other part, the loss of ,„, , . . , . • . , , • C!U!iO JOUl. I he delenee \s, that the jettison and sale were ni couseqnenec soiu-a and sold of tho perils oi' the sea. and that by the provisions of the bill j," ^Jifg^ouud! of ladin<;- the shipowner was expressly exempted from all re- ing. sponsihilily on this aecount. But do liie faets sustain the lie- fenee ? 1 have already held, upon a consideration of the evi- denee in a fonner part of this judgment, that the grounding of tile Norway on the shoal is to be attributeil to the negligence or want of skill of tiie pilot in ehargc of her, tlie master having wholly abandoned the eare of her; and it is admitted by the master Rud mate, that the leak, whieh was afterwards found in her, was the et^nseipienee of this grounding, and not of bad weather. If so, then, though the jettison may have been neces- sary to avoid perils of the sea, and tlunigh the sale was eonlined to sueh part of the cargo as was found to be damaged wiien the whole of tlie cargo had been discharged at tho Mauritius for the purpose of Impairing the ship, then both the jettison and tlie sale were nvilly the consequences of the neglect o( the pilot, and in Bccorilance with the cases of Dnris v. (lonrtt (a)\ Siordrt v. IJaU(b); Lloyd V. The (Jeiieral Iron Screw Collier Com- j»f»i»y(c\ and many other authorities, the person who is answer- able for the negligence of the pilot is answerable for the con- sequences of that negligence. I think the shipowner, and there- fore, in this case, under the provisions of the statute, the ship is answerable for the negligence of the pilot on this occasion. The pilot was employed by the authority of the master, he was not taken by compulsion of law. In cases of collision the shipowner is always responsible for the condnct of the pilot to whom he has voluntarily committed the charge of the vessel, and I can dis- cover no somid reason why the same principle should not be applied, as between the shipowner and the owner of goods dainiUicd or lost by default of a pilot not taken under compulsion. (rt~\ ♦ M.vMV .<«; t\iyi\c, S+0, (c) S H. S l\ '.'St. (♦) + Binjj-, (i07. 394 THE NORWAY. 1864. Nov. 22. The measure of damages is the nett value of the goods at the time and place of de- livery. The value of the goods lost through the shipowner's negligence cannot be de- ducted from the freight ; but a proportion of freight in re- spect of such goods may be so deducted, not- withstanding the freight is lump freight. In each case, the loss arises from the fault of the agent of the master. The plaintiff, therefore, is entitled to an indemnity from the defendants for his goods, which, in the eye of the law, the defen- dants have wrongfully thrown overboard and wrongfully sold. An indemnity : What is an indemnity, and in what form is it to be made ? Indemnity to the plaintiff clearly consists in recoup- ing to him the loss which he has suffered in consequence of his goods having been thrown overboard and sold, instead of having been duly delivered to him ; and that loss as clearly amounts to the value of the goods in a sound state at the time and place of delivery, less the fieight payable on account of the same goods and necessary charges: this, for shortness, I may call the nett value. How then is this indemnity to be effected? There are three modes which may be considered : — 1st. For the. plaintiff to deduct from the full freight his full loss, viz., the nett value. 2. For the plaintiff to deduct nothing ; but first to pay the full freight, and then to recover by action his full loss, viz., the nett value. 3. For the plaintiff to deduct from the full freight the freight of the goods thrown overboard and sold, and then by action to recover the residue of his loss. In the end, if all the parties are solvent, each of these modes comes to the same thing ; but it is important to distinguish them, in order that the shipper may be able to ascertain the amount of freight for which the shipowner has a lien, and which he, the shipper, is bound to tender before he can become entitled to claim delivery of the rest of his goods brought to their destination. Now the first of these modes, by which the shipper would deduct the nett value from the full freight, is not recognized by English law. The cases of Meyer v. Dresser (a), Dakin v. Oxley, (h), and the Salacia, decide that under no circumstances can the shipper insist upon deducting. from the full freight the value of his goods wrongfully disposed of during the voyage ; he must seek his remedy for that value, as distinct from the freight, by cross-action. The third of these modes, by which the shipper would make a deduc- tion from the full freight of the freight of the goods improperly disposed of, but no other deduction, is permitted to the shipper if the freight is payable ^er- tale. [The Salacia and other cases.] But in this case the freight is lump freight ; for I cannot accede to the argument that the freight is freight per tale because 1 1,250/. freight for 3,000 tons would be equivalent to the round sum of 3Z. 15s. per ton, and 11,625/. for 3,000 tons to another round (o) 16 C. B., N. S. 646. (6) 15 C. B., N. S. 646. (c) Lushington, p. 578. THE NORWAY. 395 sum per ton. This argument, besides being inherently weak, is 1864. based upon the assumption (which I have already declared to be Nov. 22. without foundation) that the master covenanted absolutely to ship 3,000 tons. The freight is lump freight ; and it is urged on behalf of the defendants that lump freight cannot be appor- tioned ; that deductions would be difficult, if not impossible, to calculate ; and consequently, that the only remedy open to the shipper is that of an action for damages. On the other hand, Mr. Lush argued for the plaintiff that if there was any difference between lump freight and freight per tale, it was that in the case of lump freight, if any part of the cargo shipped was not brought to the port of destination, the shipowner, in an action for freight, could not recover any freight at all, because he would not have observed his own part of the covenant ; and in favour of this proposition Mr. Lush cited the old case o{ Bright v. Cowper (c). There seems to have been no recent decision on the point; and on consulting the various text books on the subject, [ find they all speak doubtfully as to what would be decided if a case like the present should arise : Mac- bichlan, p. 396-7; Abbott, 340; Parsons, i., 245, 246, n. ; Smith's Merc. Law, 317. The Court, then, must fall back upon considerations of equity. It certainly would be unjust that the master should forfeit the whole of his freight for failing to bring a small portion of his cargo ; but, on the other hand, it would be harsh upon the shipper that he should in the first instance pay full freight, though his full cargo had not been delivered ; nor, in ascertaining the proper amount of freight to be deducted, would any such difficulty be likely to arise as would detain the master and vessel in port. The Court, therefore, will hold that in the present case the plaintiff would have been entitled to deduct from the lump freight a sum equivalent to the freight for the goods jettisoned and sold, and then to have recovered the residue of his loss by a separate action. I have discussed this question specially as throwing light upon what would have con- stituted a sufficient tender on the part of the plaintiflP to the defendant. So far as the claim in this petition for damages on account of the goods thrown overboard and sold is concerned, it is sufficient to decide that the plaintiflP is entitled to recover the value of the goods in sound condition at the time and place of delivery, less the freight which would have been payable on them if delivered, and less also any necessary charges. The exact sum will be ascertained by the Registrar and Merchants. I now come to consider the proceedings at Liverpool. (o) Brownlow, part 1, 21. 396 THE NORWAY. 1864. Nov. 22. The master waived any ten- der of the money diie from the cargo as freight and general ave- rage: 1st. By de- mandingan ex- cessive sum in such a manner as to dispense with any offer of a smaller sum ; 2ndly. By withholding from the plain- tiff the papers [The learned judge then stated the evidence respecting the negotiation between the parties concerning the payment of freight and the delivery of the cargo, which took place between the 19th November, the date of the ship's arrival at Liverpool, and the 17th December, the date of the institution of the cause.] On reviewing these negotiations the sum of them seems to be this :— There was a dispute as to the amount of freight due ; the plaintiff offered to pay the undisputed portion at once, and to deposit the disputed portion with a bank, to abide a reference; the master, on the other hand, enforced his lien for the whole of the sum claimed ; for, without going the length of refusing to deliver any part of the cargo until the whole of the sum claimed had been paid, he insisted on retaining in his possession sufficient of the plaintiff's goods to cover his full demand ; he never re- laxed his lien for 7,740Z. 2s. 2d. The defendants now question the right of the plaintiff to sue for damages with respect to the goods brought to Liverpool, and they do so upon the ground that the plaintiff was never entitled to delivery, for that he never made a sufficient tender, or a tender at all. The plaintiff, on the other hand, contends that the con- duct of the master exempted the plaintiff from the obligation of making a tender. This conduct of the master is alleged to have consisted — 1st, in making an unjustifiable demand, and insisting upon it throughout ; and, secondly, in withholding papers and necessary information. As to the first point, the owner of goods may not be able to excuse himself for not having made a proper tender by merely showing that the master made an exorbitant demand ; but it is a very different case when the master not only makes an exorbitant demand, but persists in it, refusing to listen to any proposition to take less. I think that the case of Kerford V. Mondel (a) is an authority for the position that the owner of the goods is not, in such a state of circumstances, bound to make a tender; and I also think that the necessary facts are proved to bring this case within the rule. The master did make an exorbitant demand, for the freight note which he delivered on the 8th of December, as will hereafter be stated, showing that 7,740Z. 2s. 2d. was due, allowed no deduction of freight forfeited for breach of guarantee, or of freight for goods jettisoned and sold; he did insist upon this demand, and from first to last rejected the idea of compromise. Now, then, as to the second point — it was strongly urged on behalf of the defendants that it was no part of the master's duty or contract to furnish the plaintiff with information or papers, (a) 28 L. J; Exch. 303. THE NORWAY. 397 but to this doctrine the Court cannot accede. Where a creditor 1864. has a lien upon a debtor's goods for an unliquidated amount, Jfoo- 22. that amount being dependent upon a complicated account, the in his posses- particulars of which are, at all events, partly in the possession of ""Lkuiate'the the creditor alone, it seems only common sense that the creditor amount j cannot be justified in enforcing his demand unless he has com- municated to the debtor full information ; and by full informa- tion I mean not merely the statement of the total amount claimed, but a detailed account, and a production of all papers in his possession necessary to enable the debtor to verify the account, and satisfy himself that the sum claimed is justly due. I see no reason why this rule should not apply to a master of a vessel in his relation to the owner of goods on board the vessel ; nor do I think that in the present case this duty was the less incumbent upon the master of the Norway, because Ashburner, as representative of his firm, was aware of some of the advances which had been made to the shipowners, and which were to be deducted from the freight. That was an accidental circumstance. Besides, the particulars of which Ashburner was in possession were neither complete nor undisputed. If, therefore, the master failed to furnish to the plaintiff the papers necessary to enable him to ascertain the extent of the defendants' lien, and damage arose to the plaintiff thereupon, I shall hold that the master was guilty of a breach of duty within the terms of the sixth section of the Admiralty Court Act, 1861 ; and, also, that in consequence the plaintiff cannot be prejudiced in this cause from not having made a sufficient tender ; for how could he make a sufficient tender if he had not the means of knowing what was a suffi- cient tender? To use the words of Lord Denman, in the case of Ashmole v. Wainwright{a), — " It is said that he (the plaintiff who was the owner of the goods) ought to have tendered the proper charges: the answer is, that they (the defendants who were the carriers) ought to have told him the proper charges." To turn then to the facts. What were the necessary papers, and were they duly furnished? The defendants had a lien for the amount of their freight and of the contribution of the cargo to general average, if any. In order, therefore, to fulfil his duty of furnishing complete information, the master should have deli- vered to the plaintiff the following amongst other papers : — 1. A pro forma freight account, showing all the deductions from the lump freight, and the sum total claimed. (o) 2 Q. B. 845. 398 THE NORWAY. 1864. 2. Some memorandum from an average adjuster as to the Nov. 22. probable amount of contribution from the cargo for general average. 3. The particulars of the tonnage shipped at the rice port; the particulars of the jettison ; the surveys on the cargo at the Mauritius ; and the account sales at Mauritius. For, as I have already held, the plaintiff had aright to deduct from the full freight the freight forfeited in consequence of the bi each of the guarantee, and also the freight for the goods jetti- soned and sold. Now a pro forma freight account and a statement of a specified sum claimed for contribution to general average were, after re- peated applications, delivered by Taylor, the master's agent, to Bushby, the plaintiff's agent, on the 8th of December, in the following form : — "NORWAY. " Estimated Freight Account. " Freight per charter . . . "Advance in Liverpool, . . "Ditto at Bombay, say R.l "10,747 7 7@2s. 0|d. ex. "Ditto at Rangoon, say R.'l ,,.,,, r, "10,918 7 11 @2s.lT*^dex./ ^'^^^ " Insurance £200 "Interest ..50 250 4,509 17 10 £ s. d. £ s. d. 11,250 2,000 1,108 6 8 £6,740 2 2 " Taking the value of the cargo at 10,000?;, a little over l,O0OZ. will cover average." On this document I will make two observations : — First, that so far as it relates to the claim for general average, it contains no particulars, nor is it authenticated by an average adjuster. Se- condly, that I am satisfied that this was the only freight account, and the only specified claim for general average ever deHvered to the plaintiff. Then as to the other papers, No account of the jettison or of the sale, and no statement of general average, was ever sent to De Mattos or to the plaintiff. The master, after deposing in his examination that he is not positive whether, at the interview with the plaintiff on the 28th November, he had with him the papers respecting the jettison and the sale at Mauritius, in his cross- examination swears that he did have them all with him, and THE NORWAY. 399 produced them to the plaintiff, and said that all were at his 1864. service. There is, however, great conflict of testimony on this Nov. 22. point; and in such cases the only course, after considering the probabilities of the case, is to determine on whom lies the onus prohandi ; and if the party on whom the onus lies leaves the case in doubt, the decision must then, as I think, be against that party. In this case I deem it clear, that the burden of proof lies upon the master to produce or account for the non-production of the papers ; and the only result at which the Court can arrive is, that it is not established to the satisfaction of the Court that the master fulfilled his duty by producing the requisite information. On these two grounds then, viz.: — First, that the master, and the plain- having made an exorbitant demand for freight, persisted in it, Entitled to^ " and refused to entertain the idea of reduction: and, secondly, damages for the 1 i -iiii^ 1 i--/Y>i ii non-dchvery of that he withheld from the plaintifi the papers necessary to snow his cargo. what was the amount of freight and general average due; — I shall hold that the plaintiff", if he did not make a sufficient legal tender, was not thereby disqualified from prosecuting his claim for damages against the master for non-delivery of his cargo. This brings me to the claim of the plaintiff with respect to the disposal of his goods after their arrival in Liverpool. On the 7th of December, Bushby, the plaintiff''s agent at Liverpool, at the end of a letter to Taylor, the master's agent, says, " Haul the ship into Stanley Dock, we paying the expense of moving her." On the 8th, Taylor resolved to discharge her in the Canada Dock ; entered at first only a third of the cargo in the name of the owner of the ship, and hired warehouses. On the iOth of December, Mr. Bateson, the plaintiff's attorney, sent to both the master and Taylor the notices protesting against the master taking charge of the cargo, announcing that Bushby & Co. were ready and willing to take delivery as customary, and that the plaintiff" would hold the master and the ship, and Messrs. Taylor & Co., as master porters, liable for all loss sustained by reason of the cargo not being properly sampled, marked and classified on landing. The same letter contained the offer of '3,1001. Notwithstanding this, Messrs. Taylor & Co. commenced the discharge of the cargo in the Canada Dock upon the 17th. The Canada is an open dock. Formerly there were none but open docks: but within the last few years closed docks have been erected by the Mersey Harbour Board, especially suitable for grain cargoes, fitted with warehouses, and conducted by ex- perienced sorters in the service of the Board.. Rangoon rice, it appears, is generally discharged into these closed docks ; and cargoes discharged there have some favour in the market from 400 THE NORWAY. 1864. the confidence placed by the purchasers in the skill of the ser- Nav. 22. vants of the Board. But many grain cargoes are also dis- charged into the open docks; and if there are proper sheds attached to the dock, and if skilled servants are employed, there would seem to be no reason why the cargo could not be as well discharged and assorted as in the closed docks, the only difference being, that in the open docks the assortment is done by master porters, chosen by the consignee of the cargo, and in the closed docks this is done by the servants of the Board, and at a rather higher rate of charges. The process of assortment is as follows : — As the cargo is landed, distinction is made between the qualities, viz., first-class sound, then first-class damage, second-class damage, &c. ; every fifth bag of each class is numbered, and each draft of five bags is weighed ; the conse- quence is, that the purchaser, without further examination, knows what quality he is buying, and that the cargo can be sold at the landing-weights, without the necessity of re-weighing. The Canada Dock has a convenient shed attached to it. The cargo having been entered, and in the master's name, the master, by the authority of Mr. Alexander Taylor, appointed Mr. Joseph Taylor, member of the fii-m and licensed master porter, as the master porter to superintend the discharge of the cargo. The cargo was landed by Mr. Joseph Taylor, and placed by him in certain private warehouses. It has, as I have previously stated, been since given up to the plaintiflP and sold by him. It was sold at the recommendation of surveyors, " subject to all faults." It realized the nett sum of 'iO,020Z. I6s. 3d. The market price of rice, it should be observed, had not fallen since the ship's arrival. The plaintiff now seeks to recover damages from the defend- ants on three grounds : — 1. For not discharging into one of the three closed docks — Stanley, Wapping, or Albert. 2. For improperly handling the cargo, in not separating the damaged rice from the sound. 3. For non-assortment of the cargo. The master As to the first of these heads, Mr. Lush cited the third paragraph was not bound ^f j{,g gixty-seventh section of the Merchant Shipping; Amend- to discharge in ■' i-ii- -p • rr& any particular ment Act, 1862, which directs that " if any wharf or warehouse is the mTrdilt,^ named in the charter-party or bill of lading, the shipowner shall andwasjusti- land the goods at that wharf or warehouse;" and he argued, charging'tiie that the bill of lading, in stating that the Norway was " bound rice on any jg Cowes for Orders as per charter-party," rendered it incumbent wharf in which ' i j' THE NORWAY. 401 upon the master to obey the orders of De Mattos, the charterer, 1864: to discharge the cargo at the Albert, Stanley, or Wapping Nov. 22. Docks ; but on reference to the ctiarter, it appears that the '"goods of a orders there mentioned were orders to proceed to London, Liver- '"''^ nature are I T> 1 1 • • usually pool, Bordeaux, &c. ; that is to say, to specified ports, but not placed." to any particular dock in one of those ports. This argument, I think, therefore, cannot be maintained. Reference was also made by Mr. Lush to the fourth paragraph of the same section of the same Act, which provides that " the shipowner, in landing goods in virtue of this enactment, shall place them in or on some wharf or warehouse, on or in which goods of a like nature are usually placed;" and it was contended that the wharf in the Canada Dock was not a wharf on which Rangoon rice was usually placed. I think, however, that the evidence before me shows that rice is not unfrequently landed in the open as well as in the closed docks. Mr. Lush then argued that, irrespective of any obligation by express contract or by statute, the master being bound to deliver to the owner of the goods, was bound to deliver at the dock named by that owner. On this point I think the law is correctly represented in the following observa- tion of Mr. Parsons, in his work on Maritime Law (vol. i., page 152): — " The general rule applicable to carriers and other persons contracting to deliver goods, is that a personal delivery is neces- sary. But this rule does not apply to the case of ships, the usages of trade having constituted a delivery on the wharf, with notice to the consignee, sufficient." (See Hyde v. Trent and Mersey Navigation Company (a) ; and Gatliffe v. Bourne {b).) The Court would be reluctant in any way to diminish the responsibility of masters of vessels to attend to the instructions given to them by the owners of the goods on board their vessels; but, in the present case, looking to the absence of any pro- vision in the bill of lading that the goods should be delivered in any particular dock, to the difficulty and even danger of taking the Norway into the Stanley or Wapping Dock, to the attempt of the master to take her into the Stanley Dock ; and, lastly, to the fact that the goods might have been as well landed in the Canada Dock as in one of the closed docks, I shall hold that the plaintiiF is not entitled to any damages for the discharge of the cargo in.the Canada Dock. As to the second point, the claim to damages for not separat- ing the non-sound from the sound rice, in the conflict of testi- (o) 5 Term Rep. 389, (J) 4 Bing. N.'C. 314; 7 M. & Gr. 850. 402 THE NORWAY. ]864. moQy I must hold that the plaintiff has failed to prove that in Nov. 22. this respect the cargo was improperly handled. The master, As to the third point, the claim for damages for non-assort- detajnins the ment, that the cargo was not assorted, and that hereby its sale cargo wrong- ' = ' i i i fully, and land- was prejudiced, is admitted. The question is, whether the wfs'boundto' defendants were bound to assort. assort it on Mr. Brett relied upon two statutes as constituting a valid cording'to'cus- defence. He cited the 35th section of the Mersey Dock Con- toni.andthe solidation Act, 1858 (21 & 22 Vict. c. xcii.): "The cargo of ship IS liable ' ^ ' o for the damages any vessel from any foreign or colonial port entering and non-assOTt-'^^ using any open docks shall be received, weighed, and loaded ment. off by one set of porters only, who shall be in the employ and under the directions and orders of one of the master porters appointed by the Board," as showing that the duty of the master porter was limited to receiving, weighing, and loading off (which, in this case, was done), and that he is not bound to assort unless specially required and paid extra for the work, and the evidence of Messrs. Taylor went to the same effect. Mr. Brett also cited the 67th section of the Merchant Shipping Act Amendment Act, 1862. " If any goods are, for the purpose of convenience in assorting the same, landed at the wharf where the ship is discharged, and the owner of the goods at the time of such landing has made entry and is ready and offers to take delivery thereof, and to convey the same to some other wharf or warehouse, such goods shall be assorted at landing, and shall, if demanded, be delivered to the owner thereof within twenty-four hours after assortment, and the expense of and consequent on such landing and assortment shall be borne by the shipowner." And his argument was, that entry by the owner of the goods and an offer to take delivery and to carry the goods to some other ware- house was a condition precedent to assortment, and that in this case the owner had not made entry, and therefore that the duty to assort did not arise. It is true, as a fact, Ashburner did not make entry ; but, in my mind, the evidence establishes that this was occasioned by the wrongful act of the master. The master enforced his lien, and at the sanle time withheld the papers necessary to enable the plaintiff to ascertain what was a sufficient tender. This being so, I must hold that the plaintiff having been wrongfully prevented by the master from making entry must, as regards the defendant, be in as good a position as if he actually had made entry. The master had received express notice from the plaintiff to have the rice assorted ; and, irrespective of that, he was bound to take as good care of the cargo as a prudent owner would have taken; and it appears in evidence it is the custom to assort Rangoon rice, and that the cargo was depre- THE NORWAY. 403 ciated by not having been assorted, I think, therefore, the 1864. plaintiff is entitled to damages for the non-assortment of his Nov. 22. curgo. Then Mr. Brett contended that, even if the assortment of the cargo had been improperly omitted, the remedy of the owner of the goods would be against the master porter personally, and not against the shipowner. No doubt this would usually be the case, because usually the master porter is employed by the con- signee of the cargo; but, in the present instance, the master porter was employed by the master of the vessel, and therefore the defendants would be liable to the plaintiff" for the default of the master porter in respect of the plaintiff's goods. I hold that the defendants were bound to have assorted the cargo, and that whether the non-assortment arose from their neglect to give the proper order, or from the neglect of iheir agent in not making the assortment, they, the defendants, are equally responsible. The amount of the damage thus caused will be estimated by the Registrar and Merchants. I have now only to state the conclusion. I think it will be Summary of convenient that I should sum up the results of this judgment. I •'" S"'^"^" shall endeavour to effect, as far as lies in my power, an adjust- ment of all outstanding claims between the parties. On the one hand, I shall hold that the master had a lien upon the cargo for freight and general average, if any. That the freight will be the sum contracted for by the charter-party, 11,260/., less the following deductions : 1. The advances. 2. Commissions (if any), interest, and insurance. 3. The proportion of freight forfeited for breach of the guarantee in the charter-party as to the capacity and draft of the vessel. 4. The proportion of freight that would have been payable in respect of the goods jettisoned, and the goods sold at Mauritius, if these goods had been brought to their destination. I shall refer it to the Registrar and Merchants to take an account thereof, and to ascertain the nett freight due on the principles stated in my judgment, taking into consideration the amount which has been paid on account of freight by the plain- tiff during the progress of the cause, and the period at which it was paid. I shall also refer it to the Registrar and Merchants to ascertain the amount (if any) due from the owners of the cargo in respect of general average. On the other hand I shall hold that the plaintiff, under the 404 THE NORWAY. 1864. provisions of the Admiralty Court Act, 1861, is entitled to Nov. 22. damages in respect of — 1 . The goods jettisoned. 2. The goods sold at the Mauritius. 3. The non-assortment of the cargo at Liverpool. 4. The loss of interest occasioned by the wrongful withholding t>f the cargo. I shall direct the Registrar, with the assistance of the Mer- chants, to assess these damages, and having done so, to take an account between the parties, and to ascertain the balance due, and to which of them. They will also report to the Court, whether any, and if so what, interest is properly due on this balance, and for what period. The plaintiff is entitled to his costs. THE NORWAY. Jn ti)e 33n6g Counril. Present — Lord Justice Knight Bruce. Sir John Taylor Coleridge. Sir Edward Vaughan Williams. In an action upon the bill of lading against the shipowner for loss of part cargo alleged to have been jettisoned and sold in consequence of the ship stranding, the plaintiff is not entitled to recover, unless he proves affirmatively that the stranding was occasioned by the negligent navigation of the ship : Held, upon the evidence, reversing the judgment of the Admiralty Court, that this burden of proof was not satisfied, and that the loss was by perils of the seas. The loss of part cargo having been occasioned by perils of the seas, Held, that under the bills of lading and charter-party the master's lien on the residue for freight extended to the entire lump freight without deduction. Quare, whether, assuming the loss to have been by the shipowner's negligence, the Court of Admiralty was right in allowing a deduction from the lump freight of a proportionate sum representing the freight of the part not de- livered. Construction put by the Court of Admiralty upon the master's guarantee " to carry 3,000 tons, &c." affirmed. . The mere demand of an excessive sum by a creditor holding a lien does not dis- pense with a tender from the debtor of the sum really due j but if the demand of the larger sum be so made that it amounts to an announcement that it is useless to tender any smaller sum : — Held, affirming the judgment of the Admiralty Court, that this dispenses with any tender, even if it appears that the debtor was unwilling to tender the amount really due. THE NORWAY. 405 Held also, upon the evidence, that the master of the ship thus waived any tender i ogc of the freight and general average, and wrongfully withheld the cargo. ^ . „„ Held, reversing the judgment of the Court of Admiralty, that, although the master wrongfully withheld the cargo, his duty did not go beyond its safe custody and protection, and that he was not bound to assort the rice on landing it. Semble, that the plaintiff's claim for damages in non-assortment of the rice could not otherwise be enforced, because it accrued after the petition was filed. A reference was ordered to the Registrar and Merchants to take an account between the parties, and to report (inter alia) whether the plaintiff as holder of the bills of lading was entitled to deduct from the lump freight the address com- mission mentioned in the charter, and whether such right was forfeited by the plaintiff's agent having refused to take charge of the ship at the port of discharge. FROM the foregoing judgment of the Admiralty Court, the defendants, the owners of the Norway, appealed. In their case for appeal, and in the argument, they admitted that the plaintiff was the person entitled to sue, but contended against all the other conclusions of law and fact in the judgment which were adverse to them. The plaintiff did not appeal, but supported the judgment. The following additional authorities were cited and discussed. 1. As to whether the loss of the cargo by the jettison and sale was to be attributed to the negligence of the shipowner : Worms V. Storey (a) ; Laurie v. Douglas {h), 2. As to the shipowner's lien for freight: Black v. Rose (c) ; Bahia {d) ; Cargo ex Galam (e). 3. As to the waiver of the tender: Allen v. Smith (f). 4. As to the right to give evidence of custom with respect to the address commission : Meyer v. Dresser (g) ; Suse v. Pompe (h). 5. As to the right of making deduction from lump freight of a sum as freight for goods not delivered : Kenis Commentaries {i) ; Behn v. Burness {k). 6. As to the master's duty to assort the cargo on landing : Coggs V. Bernard (l) ; Somes v. British Empire Shipping Com- pany {m); Scarfe v. Morgan (m). On the 20th July, Sir Edward Vaughan Williams delivered the judgment of the Committee. This is an appeal from a judgment of the High Court of Admiralty in a suit instituted under the 6th section of the (fl) 11 Exch.427. (A) 8 C. B., N. S. 538. (6) 15 M. & W. 746. (j) 10th ed., vol. 3, p. 316. (c) 2 Moore, P. C, N. S. 277. (k) 3 Best & Smith, 751. (rf) Ante, p. 292. (J) 1 Smith's Leading Cases, p. 171. (e) Ante, p. 167. (m) E, B. & E. 353, 367. (/) 12 C. B., N. S. 638. (») 4 M. & W. 284. (g) 16 C. B., N. S. 646. 406 THE NORWAY. 1865. Admiralty Court Act 1861, 24 Vict. c. 10, by which it is en- •^"^y 20. acted that "the High Court of Admiralty shall have jurisdiction over any claim by the owner or consignee or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods, or any part thereof, by the negligence or misconduct of, or for any breach of duty or breach of contract on the part of, the ow^ner, master, or crew of the ship, unless it be shown to the satisfaction of the Court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales." The plaintiff sued, under this section, as the assignee of bills of lading. The defendants are the owners of the Norway, an American vessel; and plaintiff's petition complained (inter alia) that the master of the Norway wrongfully threw overboard part of the rice comprised in the bills of lading, and wrongfully sold a further part of the rice at the Mauritius, And, further, that on the arrival of the ship at Liverpool the master wrongfully de- manded to be paid 6,500/. as freight, and an additional sum of \,OOQl. by way of general average contribution, as a condition precedent to the delivery of any part of the cargo, and refused to deliver the cargo on any other terras. The petition contains other complaints as to the master of the Norway refusing to dis- charge at the docks at which he was directed to discharge, and also as to improperly dealing with the cargo in other respects, after arrival in Liverpool. But it is unnecessary to do more than state that the petition contained such complaints ; because the Judge of the Admiralty Court decided that they were ill- founded, and the plaintiff has not appealed from that decision. The defendants' answer denies many of the allegations of the petition, and justifies the jettison and sale of portions of the rice on the ground that it became, by reason of the perils of the seas, necessary and proper for the preservation of the ship and cargo to throw part of the rice overboard, and to sell another part which had been greatly damaged by salt water. To this part of the answer the plaintiff replies merely by denying the averments contained in it. The answer concludes by praying that the Judge will dismiss the petition with costs, and will decree that the plaintiff should pay to the defendants the balance of freight and general average due to the defendants, and in- terest thereon. The learned Judge below, in a most elaborate, lucid, and able judgment, has gone through all the points arising in the cause which ought to decide the claims of the parties. And we think we cannot do better than to follow his judgment, and state in what respects we agree with and in what respects we differ from him. THE NORWAY. 407 The first question is, what is the meaning of a guarantee in 1865. the charter-party that the vessel shall carry 3,000 tons dead July 20. weight upon a draft of twenty-six feet water 1 And the mate- The guarantee rialitv of this question arises from this, that she could carry the *° °^'^'^ ^''"'" y \ ' . ' , •' tons " upon a specified quantity on the specified draft in salt water, and could draft of 26 feet not in fresh. Does the guarantee then apply to salt water only, J^^the ,vatCT 'in or to water fresh as well as salt 1 We think it applies to water tlie place of fresh as well as salt. We think the learned Judge below was ther fresh or right in inferring from the charter that, in setthng the stipulations ^^''• as to the capacity and draft of the ship, both parties contem- plated that the cargo might be loaded in a river, and that the guarantee meant that the vessel should be capable of carrying 3,000 tons on a draft of twenty-six feet during the whole time of taking in, and until and after she reached the open sea. The next question is, whether the jettison of a portion of the The plaintiff cargo, and the sale of the damaged portion of it, have been prove "affirma- sufficiently shown to have been the consequence, legally speaking, tively that the of negligence or want of skill on the part of the pilot, for which fhe ship was the shipowner is responsible. It was objected, on the part of occasioned by the defendants, that even supposing that the grounding of the pilot; but, upon Norway was properly attributable to the misconduct of the pilot, h'^iVar^iled'to yet that the injury thereby sustained by the vessel was not either do so. the causa proxima or causa causans of the jettison or sale, inas- much as it appears that the leak thereby occasioned would not, in fact, have rendered the ship unseaworthy, but for the tempes- tuous weather, which occurred some time after the Norway had proceeded on her voyage ; and, moreover, that the damage to the rice sold, which necessitated the sale of it, would not have happened but for an accident to the steam engine, which ren- dered it useless in working the pumps. It is, however, un- necessary, in the view we take of the case, to express any opinion as to this contention, because we have come to the conclusion that there was not sufficient evidence that the grounding of the vessel was occasioned by any misconduct on the part of the pilot. The evidence on which the learned Judge in the Court of Admiralty relied, as leading to the conclusion that the grounding was caused by negligence or want of skill in the pilot is merely, or mainly, the expression of the opinions of Captain Ward, Captain Dicey, aad Mr. Duncan, that a pilot of ordinary skill and ordinary prudence might have safely navigated such a vessel to the sea. This testimony does not go further, in our opinion, than to show a reasonable possibility that the grounding may have been caused by want of skill or want of prudence on the part of the pilot. But there is no evidence given, and no suggestion made of any conduct of the pilot which amounted to such want of skill or of B. L. E E 408 THE NORWAY. 1866. July 20. The loss of part cargo hav- ing been by perils of the seas, there is no deduction from the lump freight of pro- portionate freight for part cargo not de- livered ; and semhle there would be no such deduction if the loss had been by the shipowner's negligence ; but the ship- per's remedy would be a cross action. care. The ship was of large size, and loaded as heavily as she could bear. It was necessary, under the circumstances, to let her drop down the river stern foremost, and a steamer of sixty- horse power, which was not powerful enough to tow her down, was made fast to her alongside for the purpose of sheering or canting her so as to keep her in the stream, and the grounding took place while the steamer was thus employed. The master and the mate were not asked whether there was any impropriety in thus navigating her. The witnesses on both sides agree that the tide ran very strong (although there is a conflict of testimony as to the amount of its velocity). No suggestion is made on the cross- examination of the master or the mate of anything done or omitted by the pilot which he ought not to have done or omitted, and the master swears that the steamer could not hold the ship against such a current, and that the navigation appeared to him very difficult in that current with so large a ship. And it seems to us impossible to affirm with reasonable certainty that such a vessel so navigated might not have grounded from some cause which reasonable skill and prudence on the part of the pilot could not prevent. The plaintiff was bound to prove affirma- tively, and not merely by way of conjecture, that the vessel grounded by reason of the pilot's want of skill or want of care, and we can find no such proof in the evidence he has adduced. It may be added, that the silence of the petition as to any im- puted negligence affiirds some ground for the defendants' com- plaint, that this imputation took them by surprise, so that they were not prepared with the evidence of the pilot* The next question is, whether, in respect of the rice jettisoned and that which was sold, there ought to be a deduction from the lump freight because they were not delivered. We think that there ought to be no deduction. It is obvious that this question stands on a somewhat different footing from that on which it stood when it was decided by the learned Judge below, because it was then taken for granted that the jettison and sale, and con- sequent failure to bring home the goods, were owing to the misconduct of the master. But in the view we take of this part of the case it must be understood that they were owing to the perils of the sea, and that the master was free from blame in the matter. Although the lump sum is called "freight* in the charter and bills of lading, yet we think it is not properly so called, but that it is more properly a sum, in the nature of a rent, to be paid for the use and hirfe of the ship on the agreed Voyages. The charter-party expresses that a sum of 1 1,250/. is to be paid as freight for the " use and hire of the ship," and this lump sum is to cover both the outward and homeward voyages, without THE NORWAY. 409 any distinction as to how much of it is to be attributed to the 1865. outward and how much to the homeward voyage. If this be so, J^iy 20. the shipper has had the full consideration for the money agreed to be paid. The ship took out the salt, and received the rice on board, and performed her homeward voyage according to her engagement, and the event that by the act of God it became im- possible to carry to the port of destination the rice jettisoned and the rice sold ought not to aflPect the shipowner's right to receive the full amount of the stipulated payment. It was objected, on behalf of the respondent, that, by the charter-party, the remainder of the lump sum is made payable only on "true and final delivery of the cargo at the said port of discharge." But this does not necessarily mean that the whole cargo origi- nally shipped must be deUvered. It may well have been intended merely to fix the time for payment to be the time of the delivery of such cargo as the ship brings with her to the port of dis- charge. And it should be observed that the " one-third in cash" is made payable "on arrival at the port of delivery," without any reference to the cargo the ship shall bring with her. It is right to add, that we do not mean to express an opinion, that even if the jettison and sale had been attributable to the negli- gence of the master there ought to have been a deduction. Per- haps in this case the proper remedy of the shipper would have been by a cross action. But it is not necessary to decide this point which does not now arise. The next question is, whether the plaintiff has a well-founded The master claim for damages against the defendants for the non-delivery of excessive sum the cargo ; and this depends on the question, whether the plain- for freight and tiff was excused by the conduct of the master from making a fg the condition tender of the freight for which the cargo was liable. We have of delivering ■ iii-/r>i 1- r- 1 T'l '"^ cargo, and felt considerable difficulty on this part of the case. It is clear in such a man- that the master claimed more than was due to him. But it was amounted to an conceded that this alone would not dispense with the tender, announcement If, however, the demand of the larger sum was so made that it useless to offer amounted to an announcement by the master that it was useless »"y smaller ,.„,,. ,- , sura. This ex - to tender any smaller sum, tor that it tendered it would be re- cused any ten- fused, that would amount to a dispensation with any tender, ^f^-^'"-^ * ^ generally speaking. And, in the present case, the Judge of the withstanding Court of Admiralty having come to the conclusion of fact, that ^g^'^,* ^^j^^^g the demand was made under such circumstances that it did that he had re- , , ^ , i- J- • solved not to amount to such an announcement, we see no reason tor dissent- tender the sum ing from the conclusion he has so -drawn. But our difficulty is, rightfully due ; , . , . , . . . . '' , and entitled that m this case there is positive evidence, m our opinion, that him to damages the plaintiff had resolved not to tender the amount unquestion- ^"'^.g'^t""^^"/ ably due; for his proposal was to pay a certain amount of the the cargo. E E 2 410 THE NORWAY. 1865. freight claimed, and to deposit the residue with a banker, as ■^"'y 20- being a disputed portion. Now this residue was an amount to cover the whole of the alleged short delivery of 300 tons at Rangoon, where 2,700 tons had been shipped instead of 3,000 ' tons; whereas, the learned Judge below was of opinion that the plaintiff had no claim for deduction in respect of even so much as 100 tons, and against this part of the judgment there is no appeal. Consequently, it appears that the plaintiff meant that his tender of money to the master should not cover a portion of the claim which has turned out to be due. However, we are not prepared to hold that this varies the ordinary rule which we have stated as to dispensing with the tender altogether by announcing that it will be useless to tender anything less than the wrongfully large amount insisted on. That the sum insisted upon in this case was wrongfully large we think is plain ; for, without entering into the question whether the plaintiff was wrong in claiming the full lump sum, the claim of 1,000Z. for general average was altogether unfounded, as will appear when the estimate on which this claim is based is narrowly examined. The amounts which, according to the master's estimate, formed the subject of general average, were — For expenses incurred by him at the Mauritius .. £1,530 For loss on the cargo jettisoned and sold . . . . 1,200 Making a. total loss, as the subject of general average, of £2,730 This amount had consequently to be apportioned between the ship, freight, and cargo. Then the master values the ship at 10,000/., and the freight he takes at 7,000Z. then due. The cargo he estimates at 10,000Zi, which seems reasonable, for although the cargo sold for 20,000/., yet deducting the freight and the landing charges and assorting charges, &c., the balance would probably not be much more than 10,000/. Assuming, therefore, the values to be correct, there is a total of 27,000/., on which has to be apportioned the total of the losses forming the subject of general average, viz., 2,730/. By the rule of three this will give the pro- portions payable by the ship, freight, and cargo as follows : — Ship £1,011 Freight 708 Cargo 1,011 Total £2,730 In other words, the owner of the ship, who is also the owner THE NORWAY. 411 of the freight, has to pay as his proportion towards general 1865. average : — • J»iy 20. For the ship Jl,011 For the freight 708 £1,719 But his losses, which form the subject of general average, are only 1,530Z., so that the amount payable by the owner of the ship and freight as his contribution to general average, is the difference between these two sums, or 189i. On the other hand, the owner of the cargo has to pay as his proportion 1,01 IZ., but his losses have been 1,200Z., so that he has to receive 189Z. to make up the losses on account of general average sustained by him. The general average account would then be balanced by the owner of the ship paying to the owner of the cargo the sum of 189/. If this be so, then upon the master's own estimate of general average there was nothing due to him by the owner of the cargo on account of general average, but, on the contrary, he owed the owner of the cargo a sum of 189Z. on this account. Being then of opinion that the peremptory claim for general average brings the case within the rule as to dispensation with the tender, it is unnecessary to consider the other ground on which the Judge below came to the conclusion that the conduct of the master had exempted the plaintiff from the obligation of . , , ^ "^ ° As to the ad- makmg a tender. dress commis- It remains to be considered whether the plaintiff has a right to i^°g"'u''e^sf°on7" deduct " address commission " from the freight. The contest in to be referred the Court below appears to have been confined to the question and merchantT: whether, by custom, the holder of a bill of lading comprising the (i-) Whether , , ' ■' • ,' . , , , , , f ^ .° . the holder of a whole 01 the cargo has a right to deduct the address commission bill of lading from the freight, and the learned Judge referred this question to <=o™P"sing the ° ' _ ° ^ whole cargo, the registrar and merchants. But in the argument before us and making the the contention was that, assuming the custom to be so, the as^per chMter*^ address commission was never earned, inasmuch as Bushby & I'as a right to Co., to whom the ship was addressed as the agents of the shipper, dress commis- refused to accept the ship as agents, and never acted for the ship sion from the ni_im /-ii • freight ; and if at all ; but that Taylor & Co. acted as agents of the ship for so, the defendants, who will have to pay them for so doing. Under guch^ght'was these circumstances, we think the reference to the registrar and forfeited by the merchants ought to be enlarged by leaving it to them to inquire reason of his whether the plaintiff, by his agents, so acted on the ship's behalf agentrefusing .1-. I _- .. to ibks cnsr^c as to entitle him to the address commission. of the ship at the port of dis- charge. 412 THE NORWAY. 1865. The last question to be considered is, whether the claim for July 20. damages for non-assortment can be supported. An objection to Damages for this claim was taken on behalf of the appellants, that there is no nortotrIr°* mention of it in the petition. The answer made to this objection lowed. The ig that this cause of complaint did not arise till after the petition bound to incur was filed ; an answer by no means satisfactory. But upon the the expense of merits of this question we think the plaintiff fails. We do not assorting the ^ i i • i f p i cargo in order Understand why he did not avail himself of the power conferred His d°uty'dM "'y ^^^ Statute 25 & 26 Vict. c. 63, s. 67, to enter and, land not go beyond the goods himself. If he does not, but allows the master to do and protection SO, is the master bound to take steps to have the goods assorted, from damage, jf the owner of the goods requires him so to do ? If the master Semble also, the . i^-i u ij ji- claim could not were to give orders for it, he would, we apprehend, render nim- be enforced by ggjf jj^ble for the expenses of the assortment. No doubt the law reason ot Us ^ ^ having accrued is that such a bailee is bound to take as good care of the cargo tion'was filed! ^® ^ prudent owner would have taken ; but we have never heard of any case where the bailee was held to be bound to incur a pecuniary liability to procure an advantage for the subject of the bailment. His duty, we think, does not go beyond safe custody and protection from injury or damage. We therefore think that this claim cannot be sustained. Recapitulation. According to our opinions on the various points arising in this case, the freight due to the owners of the Norway is the sum contracted for by the charter, less the following deductions : 1. The advances; 2. Address commission (if found in favour of the plaintiff by the registrar and merchants) ; 3. The proportion of freight forfeited for breach of the gua- rantee in the charter-party as to the capacity and draft of the vessel. It should then be referred to the registrar and merchants to take an account and ascertain the nett payment due on the principles we have stated, taking into account the amount which has been paid on account of freight by the plaintiff during the progress of the cause. On the other hand, in our opinion, the plaintiff, under the pro- visions of the Admiralty Court Act, 1861, is entitled to be indem- nified for the loss of interest in respect of the wrongful withhold- ing of the cargo, and to the claim for insurance and interest, but to nothing more. Therefore the registrar, with the assistance of the merchants, will have to ascertain the balance due, and to report to the Court whether any interest, and if so what, is properly due on such balance; and we shall humbly recommend her Majesty that judgment shall be given for the balance and interest thus THE NORWAY. 413 ascertained. And that there shall be no costs on either side, 1865. either in the Court of Admiralty or here. <^% 20. No costs al- Pritchard Sp Sons, proctors for the appellants. \mie& either in or on appeal. J. F. Elmslie, solicitor for the respondent. Appended is the Schedule annexed to the Repokt of the Re- gistrar AND Merchants. It will be seen that they allowed the plaintiff to deduct from the lump freight the address commission on the gross freight earned : and that they estimated the amount for which the defendants had had a lien for freight aud general average at £6,114 : 19s. Ad., a sum exceeding, therefore, the plaintiff's esti- mate of £3,461 : 13s. 2d., and falling short of the defendants' de- mand of £1,1 AO : 2s. 2d. For the purpose of making the account clear, it may be convenient to repeat here that the 17th, November, 1863, was the date of the ship's arrival in Liverpool ; that the 1st April, 1864, was the date of the actual receipt by the plaintiff of the cargo, and by the defendants of the £3,461 : 13s. 2d. paid into Court, and that the sum of £20,020 : 16s. ^d. was the nett sum subsequently realized by the cargo, and that the market had not varied from the 8th December, on which date it was estimated the delivery and sale would in ordinary course have taken place. Schedule. £ s. d. £ s. d. 1. Lump freight, as per charter-party .. .. 11250 Deduct 2. Advanced on the sailing of the ship . . 2000 3. Advanced in Calcutta per Custom's officers, Rs. 55, at 2s. Of at., E. K 5 11 8 4. Advanced in Bombay — Rs. 10,747 7 7, at 2s.0|Aex. 1099 18 9 5. Advanced in Rangoon — Rs. 10,918 7 11, at 2s. 1^' ^- "Delivered to Messrs. T. H. Briscall & Co., p. Thomas Lloyd & Co. T. Lloyd. T: & H. Briscall & Co." In October the vessel reached Liverpool. The oil shipped under the bills of lading was 4,888 gallons; but the whole quantity actually delivered was 2,001 gallons only. It was proved, without contradictory evidence, that ordinary leakage in oil cargoes from the Mediterranean does not exceed one per cent. The plaintiffs gave evidence that the casks in which the oil was brought were good, and that the cause of the great leakage was that rags and wool had been stowed in the same hold with the oil over and near to it, and that heat had been generated by the rags and wool, which had caused the casks to open : also that such stowage, especially without particular measures for separa- tion and ventilation (which had not been adopted) was unusual, and well known in the oil trade to be dangerous. The defend- ants gave evidence that the shippers had used ill-seasoned casks which slackened on the voyage : that the ship had met some bad weather, and that the leakage complained of ensued from these causes combined. They also proved that the entire cargo had been furnished by the charterers, and shipped in accordance with the charter, that is, taken on board as presented for ship- ment, and stowed by the stevedore appointed by the charterers, under the inspection of the master : also that the cargo was very carefully stowed, and that the shippers were very often down on board the ship, and saw how the cargo was stowed, and made no objection : also, that stowage of rags and wool with oil in the same ship was not unusual, and was not known to ship- masters generally or to the master of this ship in particular to be dangerous. The first two sections of the Bills of Lading Act, 18 & 19 Vict. c. Ill, are as follows : — 1. "Every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. 2. " Nothing herein contained shall prejudice or affect any - 420 THE HELENE. 1865. right of stoppage in transitu, or any right to claim freight ^''"'' ^- against the original shipper or owner, or any liability of the con- signee or endorsee, by reason or in consequence of his being « such consignee or endorsee, or of his receipt of the goods by reason or in consequence of such consignment or endorsement." Brett, Q.C. {Lushington with him), for the plaintiffs. The evidence shows that the extraordinary loss of the oil was caused by the contiguity of the rags and wool. This was negligent stowage, for which the shipowner is responsible, under the con- tract contained in the bill of lading, notwithstanding the con- dition, " not accountable for leakage :" Phillips v. Clark (a). The plaintiffs are the holders of a clean bill of lading, and have nothing to do with the charter which the shippers had made ; but, as between the master and the charterers, the master is under this charter responsible for the bad stowage of the stevedore. This case is manifestly different from Blaikie v. Stemlridge (J), where the clause was " Stevedore for outward cargo to be appointed by charterer, but to be paid by and to act under captain's orders." Edward James, Q.C. (^Aspinall and R. G. Williams with him), for the defendants. Upon the evidence the loss of the oil was not from the stowing but from the inadequacy of the casks. But if it arose from the stowing, the stowing was not negligent : to stow rags and wool with oil, was not a want of ordinary care on the part of the master. But at any rate in this case the stowing was with the assent of the shipper : the shipper was the plaintiffs' agent to ship ; or, if not, at any rate the plaintiffs are his assignees, and as such have under the statute 18 & 19 Vict, c. 1 1 ] , no better or greater rights than he has. Brett, Q.C, in reply. The bill of lading makes no reference to the charter-party, and the plaintiffs, as holders of the bills of lading, take neither burden nor benefit under the charter: Foster V. Colby (c) ; Norway {d). The shippers were not the agents of the plaintiffs to ship in any particular way : they chartered and loaded the ship for their own purposes. But the shippers, moreover, would have a remedy against the master for negligent stowage: Hutchinson v. Guion{e); or even for damage occasioned by stowage, though the master was not to blame : Gillespie v. Thompson (/). (a) 2 C. B., N. S. 156. (rf) Ante, p. 377. (6) 6 C. B., N. S. 89*. (e) 5 C. B., N. S. 149, 162. (c) 3 H. ff N. 705. (/) 6 EI. & Bl. 477, note. THE HELENE. 421 Dr. Lushington :— The plaintifFs, Messrs. Briscall, Oil Mer- 1865, chants at Liverpool, in June, 1864, purchased there a quantity March 3. of oil of the agent of Messrs. Lloyd & Co., of Leghorn, a firm judgment, largely engaged in the oil trade. In July following, Messrs. Lloyd chartered the Prussian barque, the Helene, to proceed to Liverpool, and they shipped on board her the oil purchased by the plaintiffs. In October, the vessel reached Liverpool. The oil shipped to be delivered to the plaintiffs was 4,888 gallons. The whole quantity actually delivered was less that quantity by 2,000 gallons. The plaintiffs were the assignees of the bill of lading, and also the proprietors of the oil. For the deficiency they bring this action against the ship, in effect against the owners. The first question which arises is — What was the cause of this deficiency ? And that ques- tion being decided, so far as the materials before the Court will enable it, the next question is — Assuming that the Court is right in its opinion as to the facts, whether upon such a given state of facts the plaintiffs are entitled to recover ? As to the facts, it is a case of conflicting evidence, and therefore, as I apprehend, it behoves the Court to consider at every step on whom the onus probandi rests. The bill of lading is in the ordinary form. It states that the oil was shipped in good condition, that the master is to deliver it in the same good order and condition, save the dangers of the seas, and also that he (the master) is not accountable for leakage. If the master does not so deliver the oil, I appre- The burden of liend that it lies upon him to allege and prove a legal excuse. mas°ter to ex'^^ He must prove the facts to exonerate him from his obligation to cuse the non- deliver, more especially if such facts, generally speaking, can be * ^''^^• proved from the ship only. It is proved in this case, and there is no contradictory evidence, that ordinary leakage does not exceed one per cent. The leak- age in this case is therefore extraordinary leakage, and must be accounted for by some extraordinary cause. The plaintiffs allege that the oil was improperly stowed, and particularly that large quantities of rags and wool were stowed in the same hold, near the oil, whereby the damage was occasioned wholly or in part. The defendants allege that the leakage arose from the slackness of the casks, their defective state increasing by bad weather, and they aver that the cargo was well stowed. It is not denied that, independently of the mixing rags and wool with the oil casks, the cargo was well stowed. The two principal questions of fact then for consideration are, first, the condition of the casks; and, second, the effect of stow- ing wool and rags in contiguity with, or in the immediate neighbourhood of, the casks of oil. If the casks were defective. 422 THE HELENE. 1865. it is not and cannot be contended that any loss arising from that ^"•""^ ^- cause should fall upon the shipowners; it is the fault of those who shipped the oil. Now it is to be observed that, according to the bill of lading, the oil was shipped in good order and condition. So far, there- fore, as was apparent, the casks must, I think, be assumed to have been in that state. The shipowner, however, cannot be responsible for secret defects, nor can he in his own defence be stopped from proving them. The non-discovery of secret defects cannot be negligence, nor can it be a part of the contract of the shipowner to protect the shipper from the consequences of his own defective merchandize. I incline to think that the onus probandi upon this point of the condition of the casks is first upon the shipowner, who asserts the affirmative that the casks were defective. The Court has, I regret to say, to deal with very conflicting evidence, and that, too, as to simple facts between witnesses of respectability, and some of great experience. The true issue, however, it must be observed, is not whether the casks in question were the best possible casks, but whether they were of the usual and ordinary kind, of ordinary material, strength, and goodness. How this is to be ascertained is, J feel, a question of some difficulty. It is left in some doubt whether mere inspection of the casks would lead to a satisfactory conclusion, or whether nothing short of chipping the casks would enable an experienced person to form a judgment. There is no evidence as to the condition of the casks at Leghorn, except the assertion in the bill of lading ; the evidence is all as to their condition on their arrival at Liverpool, which I will now proceed to state. Upon a balance [After Stating the evidence in detail.] I am of opinion that it the casks were' '^ "^o* proved that these casks were of a defective quality, but, not defective, on the contrary, that they were of the usual character. I am satisfied that this conclusion is correct upon the evidence I have examined, and that it cannot be overthrown, unless it should appear from other evidence that the leakage could have arisen from no other cause than the defective state of the casks. This leads me to consider whether any and what effect can be attributed to the fact that wool and rags were stowed with the oil. All a^ree that heat will injuriously affect the casks. Will the wool, and especially this wool as stowed, produce this result? [After stating the evidence on both sides.] I think the true con- clusion to be drawn is, that whether wool will aflfect oil depends on circumstances ; upon its comparative quantity ; in its quality, whether greasy or not ; the mode of stowage, the ventilation. Personally, I can draw no conclusion from the mode of stowage • THE HELENE. 423 and therefore I do not comment upon it. I think the result of 1865. the evidence is properly expressed by one of the witnesses when March 3. he said that the stowing wool with oil is " risky." Then how does this case stand ? It is clear that there was s;reat leakage, and that it was not occasioned by the weather. Two causes only for the leakage are suggested— the state of the casks, and the effect of the wool. I am of opinion that the casks were not so defective as to occasion the whole of the extra- ordinary leakage. Then the only remaining possible cause is the effect of the wool upon the oil ; and though some of the evidence denies that the wool was the cause in this particular case, all agree that wool might heat and occasion oil casks to leak. Under these circumstances I am compelled, by what I The stowage of must term the exhaustive method of reasoning, to conclude that Jhe^lw^'* the stowage of the wool in the hold with the oil was the cause hazardous ; of this leakage. It is possible that in some degree this leakage ^e the cause of may have been occasioned by the defective state of one, two, or the leakage, more casks; but it is wholly impossible for me in this judgment to pursue inquiry as to tlie particular casks. Assuming, then, that the loss was occasioned by reason of im- For the loss so proper stowage, by want of sufficient separation of the oil and shippers would wool by bulkheads, or otherwise by want of ventilation, the have had a . . -. ' , ,..-,., - . . remedy against question arises, — Have the plamtms a right ot action against the master, the ship in this Court ? This is denied on the part of the defend- potwithstand- • . . ... ing the goods ants. Their argument, if I understand it aright, is as follows : were stowed as —By the first section of 18 & 19 Vict. c. HI, the plaintiffs, as ^hTchatti" indorsees of the bill of lading, to whom the property in the goods has passed by reason of the indorsement, have had transferred to and vested in them all rights of suit and liabilities in respect of such goods as if the contract contained in the bill of lading had been made with themselves. Then by the sixth section of "The Admiralty Court Act, 1861," practically the plaintiffs acquire the same rights against the vessel itself; consequently, the plaintiffs have no better right than Messrs. Lloyd & Co., who shipped the oil. Then it is argued that Messrs. Lloyd & Co. would have had no right ; and, therefore, that the plaintiffs have none. The ground on which it is contended that the shippers, Messrs. Lloyd & Co., would have had no right, is, that they, and not the master, were responsible for the defective stowage ; for it is said, Messrs. Lloyd & Co. were the charterers ; by the terms of the charter they furnished the whole cargo, that is, not only the oil sold to the plaintiffs, but the rags and wool also; and by the charter also the cargo was to be taken alongside and from alongside the ship by the merchants at their own risk and expense, and to be received and stowed by the B. L. F F 424 THE HELEN E. 1865. master as it might be presented for shipment. But though this Match 3. was SO, and although the shipping of the oil with wool is, as I think it is proved by the evidence, a hazardous measure, yet, if the master of the vessel will take them both together, I appre- hend he is bound to take extraordinary precautions to prevent mischief, and cannot protect himself by showing that both the kinds of goods were sent on board by the same person ; for an authority by the shipper or charterer to stow the goods clearly does not amount to an authority to stow them in a careless or negligent manner; for which I cite Hutchinson v. Guion (a). Again : it is said that the whole cargo was, in accordance with the charter, stowed by a head stevedore, appointed by the charterers, and, therefore, that the master could not be liable for bad stowage. But, on reference to the charter, it appears that the terms were, " the charterers being allowed to appoint a head stevedore at the expense and under the inspection and respon- sibility of the master for proper stowage." These words appear to me to answer the objection, and remove the case out of the authority of BlaMe v. Stembridge (6), where similar words were not contained in the charter-party, and where the Court held that the true construction of the charter-party to be, that the cargo was to be brought alongside at the risk and expense of the charterer, and that it was to be shipped and stowed by his stevedore, and consequently at his risk — though at the expense of the ship- owner, and subject to the control of the master, on behalf of the shipowner, to protect his interests. There seems, therefore, no reason for saying that Messrs. Lloyd & Co. would have been estopped from suing the master for damages on account of im- proper stowage. Butifthe But even if they would have been estopped, why should it estopped by^^ follow that the plaintiffs would be estopped also ? The shippers matters arising and the assignees of the bill of lading do not stand to each other out of the char- i i • • i i i , mi ■ , ter only, this as agent and prmcipai, but as vendor and purchaser. Ihe rights rhTplalntiffi'"' ^"'^ *^^ liabilities which the assignee of the bill of lading under rights under the first section of 18 & 19 Vict. c. Ill, has transferred to him, lading" °^ '*''® ^^^ ^^'"^ rights and liabilities in respect of such goods as if the contract contained in the bill of lading had been made with him; but in these cannot be included the rights and liabilities as between the shipper and the master dehors of that contract in respect of other goods, or of the charter-party. If so, the bill of lading would always incorporate the charter-party, which it never does unless expressly stated ; Chappel v. Comfort (c). I think (a) 5 C. B., N. S. 149, 1C2. (J) 6 C. B., N. S. 891.. (c) IOC. B., N. S. 802. THE HELENE. 425 the rights of the plaintiffs as assignees of the bill of lading could 1865. not be curtailed by any liability of the charterers towards the ^'"'"^ ^- master, not being a liability imposed upon the plaintiffs under the bill of lading. The objection, therefore, to the plaintiffs' right of action, I think, fails on every ground ; and there must be judgment for the plaintiffs, with costs, and a reference to the Registrar. Chester ^ Urquhart, solicitors for the plaintiffs. Deacon Sf Son, proctors for the defendants. THE HELENE. hx ti^e 33ttbg Council. Present — The Loho Justice Knight Bruce. Sir John Taylor CotERiDGE. Sir Edward Vaughan Williams. Sail Sond — Security for Costs. The form of bail bond appointed to be given in tlie Admiralty Court by the Rules of 1859, to answer judgment " with costs," does not receive a new interpre- tation from the 33rd section of the stat. 24 Vict. c. 10, and does not extend to cover the costs of an appeal. On an appeal from the Admiralty Court to the Privy Council, the appellant (at least, if resident out of the jurisdiction) will be required by the Privy Council to give security for the costs of the appeal. An appellant will not be required to enlarge any security which he gave as defendant in the Court of Admiralty to answer judgment and costs in that Court, notwithstanding such security has proved insufficient for that purpose. THE defendants having entered an appeal from the fore- June 16, going judgment, the respondents made an application to the Judicial Committee for an order upon the appellants to give security for costs ; their case stated the following circum- stances : — "On the 1st November, 1864, the respondents T. and H. Briscall and Company, who carried on business as oil merchants at Liverpool, and who were the owners of and assignees of the bills of lading of certain oil which had been carried into Liver- ff2 426 THE HELENE. J 865. pool in the Prussian brig Helene, instituted a cause in the High June 16. Court of Admiralty against the said brig, under the sixth section of " The Admiralty Court Act, 1861," to recover damages for the loss of part of the oil caused by the neghgence of the servants of the appellants the owners of the brig. The loss was then estimated by the plaintiffs at the sum of 432?. 16s., and the cause was instituted in the sum of 600Z., leaving the sum of 167/. 4s. to cover costs. Upon the vessel being arrested, Edward Wilhelm OhrlofF and others, of Barth, in the kingdom of Prussia, the owners, ap- peared and gave bail to the amount of 600Z. to answer judgment in the cause and costs (according to the usual forpi of such bail bonds), and the vessel was thereupon released. On the 3rd of March, 1865, the Judge of the Admiralty Court gave judgment in favour of the plaintiffs, and condemned the owners and their bail in the damages proceeded for, and in costs. From this judgment the owners, who were all foreigners, resi- dent in Prussia, appealed. The costs of the proceedings in the Court below, together with the damages sustained by the plaintiffs, already exceed the amount of 600Z." The case concluded by praying the Court "to order the appellants to give security to such an amount, and within such time as should to their Lordships seem right, to answer the respondents' costs in this cause in the Court below, and in the Court of Appeal ; and to order that, in default of such security being duly given, the appeal should stand dismissed." The motion was supported by an affidavit of one of the respondents and their solicitor setting forth the abov€ facts. The form of bail bond, which had been given in the Court below, was as follows : — " In the High Court of Admiralty of England. " The Helene, master. " Whereas a cause has been instituted in the High Court of Admiralty of England on behalf of T. and H. Briscall and Company, of Liverpool, against the brig Helene, her tackle, apparel and furniture, and against Edward Wilhelm Ohrloffand others, of Barth, in the kingdom of Prussia, the owners of the said brig intervening: Now therefore we, A. B. and C. D., hereby jointly and severally submit ourselves to the jurisdiction of the said Court and consent that if they, the said Edward Wilhelm Ohrloffand others, shall not pay what may be adjudged against them in the said cause with costs, execution may issue THE HELENE. 427 forth against us, our heirs, executors and administrators, goods 1865. and chattels for a sum not exceeding 600/. Jane 16. A. B. C. D." This bail bond was signed by the said A. B. and C. D., the sureties, the of 1865. Before me, &c. I said A. B. -j I day V c. J Lushington, in support of the motion. — The respondents, it is submitted, are entitled, as a matter of course, to security for the costs of the appeal : {MacPherson on the Practice of the Privy Council, p. 156.) It is further submitted that they ought to have security for such costs in the Court below as are not in fact covered by the bail bond. The theory of proceedings in the Court of Admiralty is that the plaintiff should have security for his costs as well as his damages : and the Court, to carry out this principle, has frequently allowed the amount of an action to be increased after its institution. [Sir J. Coleridge. — You admit that there is no instance of requiring further security after judg- ment given.] Not after judgment given; but if the plaintiff has security when his claim is uncertain, why should he not have security when his claim is ascertained to be right? R. G. Williams, for the appellants. — [Lord Justice Knight Bruce. — The only question is as to security to meet the costs of the appeal.] An appeal lies as a matter of right, and the Court will not order security for the costs unless justice appears to require it. Now, owing to the proceedings of the Admiralty Court being in rem, the appellants have already been under the dis- advantage of giving security to the respondents to a large amount, exceeding their substantive claim: in no other Court could a plain- tiff have had such an advantage, or a defendant have been required to give such security. It is submitted, therefore, that the appel- lants should not be called upon now to give any further security. But the respondents here are themselves to blame : they might have, in the first instance, got bail to answer costs both in the Court below and in the Court of Appeal; for the 33rd section of "The Admiralty Court Act, 1861," provides: " In any cause in the High Court of Admiralty bail may be taken to answer the judgment as well of the said Court as of the Court of Appeal, and the said High Court of Admiralty may withhold the release of any property under its arrest until such bail has been given ; and in any appeal from any decree or order of the High Court of Admiralty, the Court of Appeal may make and enforce its order against the surety or sureties who may have signed any such bail bond in the same manner as if the bail had been given 428 THE HELENE. 1865. in the Court of Appeal." [The Registiar here stated, that the June 16. costs of appeal were always taxed in the Court of Appeal ; that they were generally paid without demur ; that the form of bail bopd given in the Admiralty Court had not been altered so as to extend to the costs of appeal, as to which, therefore, the Court of Admiralty had no jurisdiction.] If your Lordships think it necessary to order security for the costs of the appeal, I would submit that the alternative should not be that the appeal should- stand dismissed, but only that the proceedings should be stayed, according to the practice of the Common Law Courts. Lushington, in reply, pointed out that the form of bail bond, like that of other instruments used by the Court, is authorized by the Rules of 1859, and that no valid change could be made in these rules without an Order in Council, as provided by 3 & 4 Vict. c. 65, s. 18. Judgment. The Lord Justice Knight Bruce: — If it be admitted that security is given in cases where the appellant is out of the juris- diction, what is there to exempt this case from the ordinary rule? The form of the bail bond is the same now in use as it was before The Admiralty Court Act of 1861 (24 Vict. c. 10) came into operation. It was then construed to have reference only to costs in the Court of Admiralty, and not to ex- tend to costs in the Appellate Court. Their Lordships see no reason for holding that that statute introduces a change of in- terpretation on the old form of bail bond. Section 33 of that statute gives power to the Court of Admiralty to extend its requirements by a new form of bail bond. That power, however, is discretionary, and although the Court of Admiralty has autho- rity to make new forms, that could only be done under, the sanction of an Order in Council^ which has not yet been ob- tained, though we understand that a new form will speedily be issued. The old form of bond, therefore, alone exists, and must be construed as it always has been. There is consequently no security for the costs of this appeal, and the appellants, being foreigners, domiciled abroad, must, according to the ordinary- rule, give security for costs. Their Lordships are of opinion, having regard to the amount of issue and of the expense of appeal, that bail to the amount of 200Z. should be given within three months to answer costs of appeal, and in default the appeal to be dismissed. Costs of this application to be costs in the cause. THE HELEN E. ^129 1866. Aug. 4. I'll tijc SPiibS Council. THE HELENE. BUI of Lading — Memorandum excepting Liability for Leakage— Negligence — Burden of Proof. Where, by the memorandum in the margin of a bill of lading, the shipowner is " not accountable for leakage," the word leakage is not to be limited to " ordinary leakage" only, but the memorandum protects the shipowner as to all leakage except that caused by negligence. In an action upon such a bill of lading to recover damages for loss by leakage of any kind, the burden of proof is on the plaintifif to show that the leakage was caused by negligence. A charterparty provided that the cargo should be taken alongside by the charterer, and be received and stowed by the master as presented for shipment, the charterer being allowed to appoint a head stevedore at the expense and respon- sibility of the master for stowage. The cargo was received and stowed accord- ingly, the whole being shipped by the charterer, who also was on board during the loading, and made no complaint, and saw the mode of stowage. Amongst other things oil was shipped in casks, and rags and wool were stowed in the same hold over and near it, without any bulkhead between. Bills of lading for the oil, making no reference to the charter, but containing a memorandum in the margin " not accountable for leakage," were assigned to merchants, the purchasers of the oil, who had no notice of the charter. On the voyage extraordinary leakage from the oil casks took place, by the wool and rags heating the casks and causing them to shrink. The assignees sued upon the bill of lading to recover damages for the loss of the oil. Conflicting evidence was given whether the juxtaposition of rags and wool to oil in the same hold was known to be a dangerous mode of stowage. Held, upon the evidence, that the master did not know, and was not bound to know, the heating tendency of wool and rags on oil casks if placed in con- tiguity ; and that, if he did know it, he was not in the circumstances bound to go to the expense of putting up bulkheads between the wool and rags and the oil, to separate them j and that the leakage, therefore, was not caused by negligence. Qutere, whether in an action by the assignees of the bills of lading under 18 & 19 Vict. c. Ill, for damage to the goods by bad stowage, the assent of the shipper to such stowage affords any defence. TT^FIIS was an appeal from the judgment of the High Court of J- Admiralty, reported ante, p. 415, where the facts are fully set out. The case was twice argued ; first, before the Lord Justice Knight Bruce, the Lord Justice Turner, and Sir Edward Vaughan Williams; secondly, before Lord Chelmsford, the Lord Justice Knight Bruce, the Lord Justice Turner, Sir John Taylor Coleridge, and Sir Edward Vaughan Williams. 430 THE HELENE. 1866. Edward James, Q.C., and R. G. fFiZ&ws for the appellants. — ■^"g- ^- 1st. If a bill of lading contains a memorandum, " not accountable for leakage," the shipowner continues responsible for leakage caused by negligence, Phillips v. Clark (a); but the memorandum covers him against all other leakage whatsoever. The question here, therefore, was not whether the leakage was ordinary or extra- ordinary, but, was the loss occasioned by the shipowner's negli- gence ? On that issue the burden of proof was on the plaintiffs, whereas the Court below wrongly adjudged it to be upon the defendants. Thus, in Lloyd v. The General Iron Screw Collier Company {b), where the shipper sued the shipowner for the loss of his goods occasioned by a collision of the defendants' ship with another ship, and the shipowner pleaded the excepted perils, to which the shipper replied that the perils were incurred by the gross negligence of the defendants, the plaintiffs would have had to prove their replication. In the case of Grill v. The General Iron Screw Collier Company (c), which arose out of the same collision, and where the pleadings were the same, Erie, C. J. left it to the jury to say " whether the collision which caused the loss of the goods was occasioned by the neghgence of the defendants' crew." 2HdJy. There was no evidence of negligence on the part of the defendants. The evidence does not show that it was a want of common care and skill to stow the oil contiguous to the wool, or so stowing the goods to omit to pat up bulkheads between them, or to take extraordinary precautions of any kind. In consider- ing the question of negligence the terms of the charter must be borne in mind. 3rdly. The shippers were clearly consenting parties to the mode of stowage, and they therefore could not sue for damage so occasioned, Hovill v. Stephenson (d), where Tindal, C. J. ruled that if the charterers, by their conduct during the ship's loading, induced the shipowner to suppose that they consented to a certain partition being put up in the ship, whereby a full cargo could not be carried according to the charter, they could not sue for such breach of contract, and the jury found for the defendant. 4thly. If the shippers could not sue, neither could the plain- tiffs, as assignees of the bills of lading : for the statute 18 & 19 Vict. c. Ill, gives them only the shippers' rights. [Sir E. Williams referred to Srnurthwaite v, Wilkins (e;.] In Major v. (a) 2 C. B., N. S. 156. (d) 1, C. & P. 469. (6) 3 H. & C. 284. (c) 11 c. B., N. S. 84>. (c) Law Rep., 1 C. P. 600. THE HELENE. 431 While (a), where the damage was proved to have been occasioned ] 866. by bad stowage, but evidence was given that the shipper was Aug. 4. aware of the manner in which the goods would be stowed, and made, no objection, Parke, B., nonsuited the plaintiflF, saying : " If the shipper of the goods was warned as to the way in which they would be stowed, the plaintiff as consignee cannot maintain any action for damage occasioned by bad stowage." We contend here, moreover, that the shippers were the agents of the plaintiffs to ship, because the property in these casks of oil had already passed to the plaintiffs. The evidence as to the purchase indicates that the identical casks of oil were bought by the plaintiffs before shipment, and that shipment was on their account. Coxe v. Harden (i), Fragano v. Long (c), Bloxam v. Saunders (d). Brett, Q.C., and Lushington for the respondents. — 1st. The memorandum, " not accountable for leakage," exempts only for ordinary leakage, which in oil cargoes is proved to be 1 per cent. : it is like the memorandum in policies of insurance. Extra- ordinary leakage may mean 99 per cent. Phillips v. Clark (e) was on demurrer, and only decides that if the leakage is by neghgence, the shipowner remains liable. 2ndly. Whatever the construction of the memorandum, the burden of proof was on the shipowner to show the cause of the loss : he is an insurer, subject to certain perils and causes which he specially excepts, and he should bring himself within the . exception : Story on Bailments, sect. 529. Another reason is, that he has the means of knowing the facts, which the owner of the cargo generally has not. 3rdly. The loss was occasioned by the stowing the wool upon the oil in contiguity to it, and without taking the needful pre- cautions to avoid the heating. This was negligence. It does not follow that because the cargo was stowed as presented for shipment, it was therefore necessary to stow the oil and wool in this manner. Alston v. Herring (f). 4thly. The shipper would not have been precluded from suing in this case under the charter. The stevedore was and is the master's servant. The responsibility of the master for the stowage was in the master. Sack v. Ford (g), Roberts w. (a)7C. &P.41. (e) 2C. B., N.S. 156. (A) 4 East, 212. (/) 11 Exch.822. (c) 4 B. & Cr. 219. (g-) 18 C. B., N. S. 90. (d> 4B.&Cr. 9il. 432 THE HELENE. 1866. Shaw (a). The omission of the shippera to remonstrate upon the Jug.i. mode of stowing did not in any degree relieve the master of his liability. It was not the shipper's duty to see how the cargo was stowed, or to make remarks upon it; he may have properly left that entirely to the shipmaster, Hutchinson v. Guion (6). .5thly. But if the shipper was barred by his own act, this should not affect the plaintiffs as assignees of the bill of lading. The assignee takes the bill of lading without knowledge of the charter or the charterer's act; and the statute gives him the same rights and liabilities as if the contract contained in the bill of lading had been made with him : his rights and liabilities depend on that contract only. The cases settle that the mutual rights of the shipowner and the assignee of the bill of lading are independent of the charter, except so far as the bill of lading may expressly incorporate it. Thus the assignee is not liable for demurrage, Chappel v. Comfort (c), or for charter-party freight, Foster v. Colby {d). The importance of making bills of lading freely negotiable is a good reason for allowing the assignee in certain cases to have better rights than the shipper. Thus, as to stoppage in transitu, the second indorsee has an immunity, which his indorser, the original vendee, has not. So the shipowner has no lien on the goods for freight against the assignee, where the bill of lading states the freight to be prepaid, though the shipper's bill, by which it was prepaid, has proved valueless : Kirchher v. Venus (e). There is no ground for say- . ing, that in this case the shipper was the plaintiff's agent to ship. The defendants should have made it plain by cross-ex- amination of the plaintiff, when the property passed to him. [Sir E. Williams referred to Tronson v. Dent (/).] It may have been that in this case there was no appropriation to the plain- tiffs, in consequence of the shipper keeping the bill of lading in his own hands until receiving payment. Wait v. Baker {g); Blackburn on the Contract of Sale, p. 134. Judgment. The Lord Justice Turner : — This is an appeal from a judgment of the High Court of Admiralty, in an action brought by the respondents under the provisions of The Admiralty Act, 1861, as owners and assignees of the bill of lading of forty-seven casks of oil against the Helene, of which the appellants v.'ere owners, (o) 4 B. & S. 44.. (c) 12 Moore, P. C. 392. (i) 5 C. B., N. S. 155 ; per Willes, 3. (/) 8 Moore, P. C. 419. (c) 10 C. B., N. S. 802. (g) 2 Exch. 1. (d) 3 H. & N. 705. THE HELENE. 433 and in which the oil had been carried from Leghorn to Liverpool. 1866. When the ship arrived there many of the casks were partially Aug. 4. empty, and this action was brought to recover damages, for this leakage of the oil, as having been occasioned by negligence and breach of contract, and breach of duty on the part of the appellants. The great question in the action was one of fact, viz., what The cause of was the cause of the leakage which was the subject of complaint? ^^^ Stowage of The learned Judge of the Court of Admiralty decided this yags and wool ° 'ill • • r i_ '" ™^ same question, after a most complete and able exammation or the hold with the evidence, and we see no reason to find fault with his decision. "'• The evidence, in his opinion, established that the leakage was caused, not by the perils of the sea, not by the defective quality of the casks, but by their being stowed in the same hold with some rags and wool, which formed part of the cargo which was taken on board at the desire of the charterers. Assuming that this was the cause of the leakage, the appellants, The memo- the shipowners, deny that they are responsible for it, because, by [^{J'^"/? ^?- "'^ the memorandum in the margin of the bill of lading, the ship- "not account- owners are not to be accountable for leakage. age^" "protects On the argument different views were suffgested by counsel the shipowner . . from all leak- as to the meaning of this word " leakage." For the respondents ^gg except it was contended that the word means only ordinary leakage leakage caused 1-1 1- 1-1 1 ^ 1 byhisnegli- (which, accordmg to the evidence, amounts to 1 per cent.), and gence. (See does not extend to extraordinary leakage such as that in question ^'^° P" *^^'^ amounting to an alleged deficiency of 2,000 gallons. On the part of the appellants it was denied that, according to the natural and ordinary meaning of the words employed, the amount of leakage was at all limited in quantity; but it was con- ceded that, in accordance with the case of Phillips v. Clark (a), the words in the margin did not protect the shipowners from responsibility for leakage occasioned by their own negligence. It was, however, contended, on behalf of the appellants, that The burden of the plaintiffs must, in order to entitle themselves to the action, ^hj'pperto * ^ give satisfactory proof of such negligence, and that they had prove that the failed to do so; and, after a careful consideration of the case, caused by we have come to the conclusion that this contention on behalf negligence. of the appellants is well founded. Notwithstanding the evidence of the notoriety at Liverpool of Upon theevi- the deleterious consequences of the collocation of oil in casks mTsto'w^as with rags and wool, or other matters tending to generate heat, ignorant that we do not believe that either the shippers or the shipowners in stowage was dangerous to (a)2C.B.,N.S 156. *'"''' 434 THE HELENE. 1866. Au2. 4. and he stowed the goods in accordance with the char- ter, as pre- sented for ship- ment by the charterer, and with the char- terer's know- ledge and as- sent; such stowage there- fore did not amount to negligence on his part. Even if the master knew, or ought to have known the consequences of such stow- age, he was not bound to go to the ex- pense of put- ting up bulk- heads to sepa- rate the goods. this case were aware of them. If the shippers knew of thera, they also knew that (he wool and rags, which they made a part of the cargo, must necessarily be stowed and were in fact stowed in the single hold of the ship, and with this knowledge we think it impossible that they should have abstained from mentioning the inevitable leakage in the then condition of the ship, and from requesting some means to be applied to prevent it, such as dividing the hold by bulkheads. Nor do we think the ship- owners were in a better state of knowledge on the subject. Had they been so, it is inconceivable, as it seems to us, that they should have received a cargo so composed without some remonstrance with the shipper for selecting such mischievous companions to form part of the cargo with the oil. If the shipowners were ignorant of the consequences of taking such a cargo, we do not think it amounted to culpable negligence on their part to stow in the only place they could be stowed the goods which, under the charter-party, the charterers had a right to insist, and did insist, should form part of the cargo. On this question it is, in our opinion, very material to consider not only that the charterers so insisted, but also that the cargo was, according to the terms of the charter-party, received on board and stowed as it was presented for shipment by them, and that they were shown to be very frequently on board as the stowage progressed, and were well acquainted with the mode of stowage (which was effected in a masterly way), and never made any complaint of or objection to it. Nor do we think the ignorance of the shipowners in itself amounted to negligence. It can hardly be imputed as mis- conduct that the shipowners should be ignorant of latent mischief of this nature, when Lloyd & Co., who are proved to have had very great experience as oil merchants, were in the same state of ignorance. But even if the appellants knew, or ought to have known, wliat the consequences of such stowage must be, we are not prepared to say that they were guilty of negligence in not putting up bulkheads. Assuming that they could be so con- structed as to protect the part of the hold where the oil was stowed from the influence of the heat generated by the wool and rags, still this could not have been done without much trouble and considerable expense, which we cannot concede that the shippers had a right to throw on the shipowners, because the shippers chose to load the ship they had chartered with a caro-o of such a nature. And to this we may add that, even supposino- the shipowners to have been aware of the usual consequences of stowing such a cargo in the same hold, they might have well THE HELENE. 435 come to the conclusion that the shippers were also aware of 1866. them, and would not have put such a cargo on board unless ^"g- *■ they had been assured that the casks were of such extraordinary strength and goodness as to be capable of resisting the usual influence of a heated temperature. For these reasons we think the respondents failed to prove that the leakage was caused by the appellants' negligence. It may be observed that the learned Judge of the Admiralty Court appears to have adopted the construction of the word " leakage," contended for by the respondents, viz., that it means "ordinary leakage" only, and consequently the judgment adverts but little, if at all, to the question whether negligence on the part of the shipowners had been proved. But we do not think such a construction allowable. The condition that the shipowners are not to be accountable for leakages does not, in its ordinary and grammatical sense, put any limit to the quantity of leakage ; and on principle, therefore, we do not think it would be justifiable to add any such limit to its terms. Nor are we aware of any authority for doing so. It follows that, in our judgment, the memorandum in the bill of lading protects the shipowner as to all leakage except that caused by negligence, and, therefore, if no negligence is shown, there is no cause of action. Another point was raised and argued before us, viz., that the Qu/^re, wlie- conduct of the shippers as to the stowage was such that it would of^[i,e'ship^Tr' support a plea of leave and licence by the shippers if the action to the mode of had been brought by them. But it was contended on behalf of be°avaUabl'"as the respondents that, by reason of the Bills of Lading Act, 18 & » defence to irviT- 111 11 11 11- ■ 1 the action by 19 Vict. c. Ill, such a plea was not allowable m an action by the indorsee the indorsees of the bill of lading. It is unnecessary, however, °^^y^ '"" "^ to decide this point, as our opinion is against, the respondents on the question of negHgence. On these grounds their Lordships will humbly advise her Judgment re- Majesty that the judgment of the Court of Admiralty should be ^o^'g.''' ™'* reversed, with costs, both in the Court below and on this appeal. Nethersole 8f Speechly, solicitors for the appellants. Chester Sc Urquhart, solicitors for the respondents. 436 THE FLYING FISH. 1865. March S. THE FLYING FISH, in t^t 39n6s Council. Piesent— Lord Chelmsford. Lord Justice Knight Bruce. Lord Justice Turner, Collision— Appeal from Registrar's Report of Damages — Fresh Evidence — Rule of Consequential Damages. Tbe Rules of 1859 do not abridge the discretion of the Judge of the Admiralty Court to admit fresh evidence on an appeal from a report of the Registrar; but such discretion is to be exercised with great caution, and with a careful regard to the peculiar circumstances of each case. Upon a decree pronouncing generally for damages occasioned by a collision, and ordering a reference to the Registrar to assess the amount, the defendant is not liable for such damages as might have been avoided by the exercise of ordinary nautical skill and diligence after the collision on the part of the servants of the plaintiffs in charge of their ship. If upon such reference the plaintiffs present a case of immediate partial damage resulting in the total loss of their ship, and no evidence is given on either side of the pecuniary extent of such partial damage, and the Registrar is of opinion that the plain- tiffs are not entitled to recover the total loss upon the ground that by ordinary skill and diligence after the collision they might have avoided it, but are entitled to recover the partial damages, he should not assess the amount of the partial damages conjecturally and report such amount to be due, but should make a special report to the Court; and the Court will then order a further reference to ascertain the amount of the partial damages by evidence. If a collision takes place between two vessels by the negligence of the crew of the defendants' vessel, whereby the plaintiffs' vessel suffers damage and is necessarily run aground, and afterwards and before any expenses are in- curred, by the negligence of the plaintiffs' servants, a total loss of the plain- tiffs' ship ensues, the defendant is not liable for such total loss of the plain- tiffs' ship, but is liable for the expense which would have been incurred in making good the partial damage. npHIS was an appeal from a decree of the Admiralty Court, reversing a report of damages made by the Registrar and Merchants. The cause was originally brought against Warren Hastings Anderson, the captain of her Majesty's ship Flying F^ish, by Adrian Hoem, of Amsterdam, the managing owner, and others the remaining owners of the late ship Willem Eduard, and of Messrs. Cotesworth & Powell, Messrs. John Fair & others, of London, merchants, the owners of the cargo, and by her master and crew for their private effects, to recover damages arising out of a collision which occurred between the Flying Fish and the THE FLYING FISH. 437 Willem Eduard, ofF Rye, on the night of the 30th November, 1865. Y gg ] March 8. The cause was heard on the 5th of March, 1863, when the learned Judge, assisted by Trinity Masters, pronounced for the damage sued for, and referred the amount to the Registrar and Merchants. The circumstances of the loss of the Willem Eduard are set out in the judgment of the Privy Council, reported post. Here il is necessary only to state that at the reference the plaintiffs called no witnesses, but simply referred to the evidence which had previously been taken at the hearing, and that the defend- ants produced several witnesses to prove that, after the plaintiffs' vessel had been run on shore in consequence of the collision, the master did nothing to save the ship, and improperly declined to accept the assistance which was offered to him by coastgu|rd- nien, whereby a loss nearly total of ship and cargo ensued. The total value of the ship and cargo was estimated at 10,910Z. lis. 8d., and the net proceeds were 2,6231. I3s. 2c?. The plaintiffs claimed the balance 8,286/. 18s. 6d. On the 30th December the Registrar made his report. He therein stated, that, in the opinion of himself and the merchants, "the master of the Willem Eduard showed both a great want of ordinary nautical skill in not taking any measures to save the vessel before the tide rose, and gross neglect of duty in not accepting the services of the coastguard men ; and that the owners were not entitled to recover the damage occasioned by his misconduct," The report concluded : — " It only remains then for us to say what ought to be the measure of the damages which the owners are entitled to recover as directly arising from the coUision. It appears that the vessel was seriously damaged in her port quarter, that the steering apparatus was deranged, and that the main rigging on the port side was carried away, the result of which was that the mainmast went overboard; it was also admitted that the master was not to blame for beaching his vessel after the collision. We were therefore of opinion that the damages to which the owners are entitled are, first, for the cost of the repairs to the vessel at the port to which she might have been taken, including the discharge and reloading of the cargo, and the demurrage and port charges — this we have estimated at the sum of 610/.; secondly, a reasonable sum for the services of the coastguard- men, and of the steam-tug in rescuing her from the shore, and taking her to a port of safety ; and as the whole value of the ship and cargo is estimated by the owners at 10,910/., we think that 500/. would have been a proper remuneration to the salvors for their services. 438 THE FLYING FISH. 1865. "We have therefore estimated the damages at the sum of March S. ],110Z., and shall allow interest thereon at four per cent, per annum, from the Ist day of January, 186^, when the repairs would probably have been completed, and the accounts settled." This report was objected to by the plaintiffs, who filed a petition, praying the Judge to refer back the report to the Regis- trar for amendment and to condemn the defendant in costs. An answer was filed on behalf of Captain Anderson, praying the Judge to confirm the report. The case came on for hearing on the 21st June, 1864, when witnesses were tendered for examination on behalf of the plaintiffs. Counsel for the defendant objected that it was not competent to the plaintiffs, who had not produced any witnesses before the Registrar and Merchants, now to produce witnesses. The learned Judge overruled the objection, and five witnesses were produced and examined for the plaintiffs. On the 2nd of August Dr. Lushington gave judgment, reversing the decision of the Registrar and Merchants, upon the ground that the evidence did not establish against the master of the Willem Eduard gross nautical ignorance or gross negligence, and that the defendant was liable for the total loss. The learned Judge referred the report back to the Registrar, but condemned the plaintiffs in the costs of the reference, and made no order as to costs incurred in the hearing of the objection to the report. The material part of his judgment is set out, post, p. 441. From this judgment the defendant Captain Anderson ap- pealed. The Queen^s Advocate (Sir R. Phillimore, Q.C.), the Admi- ralty Advocate (Dr. Twiss, Q.C.), and Phinn, Q.C., for the appellant. Dr. Deane, Q C, and Brett, Q.C., for the respondents. On the 8th of March Loed Chelmsfoed delivered the judgment of the Committee. Judgment. In this appeal no question has been raised as to the appellant's liability for damages arising from the collision, which was the subject of the action, but he objects to the decree of the Judge of the Court of Admiralty, so far as it renders him liable to a portion of the damages, which he contends was the result, not of the collision itself, but of the absence of nautical skill on the part of the captain of the respondents' vessel in making no effort to rescue her from the peril in which she was placed by the im- case. THE FLYING FISH. 439 mediate consequence of the collision, and of his want of prudence 1865. and judgment in refusing assistance which was offered to him, March 8. and which if it had been accepted would probably have pre- vented all tlie damage which afterwards ensued. The collision happened about twenty minutes past nine, p.m., Facts of the 30th November, I86I, in the English Channel, off Hastings, by """' her Majesty's gun-boat Flying Fish, of which the appellant was commander, running with her stem and port bow into the port quarter of the respondents' vessel, the Willem Eduard. It is admitted that the blame of this collision must be attributed solely to the appellant. The effect of the blow received by the Willem Eduard was that a hole was made in her stern about five or six feet above the water line, and the steering gear was disabled. The master believing that the vessel was making water, and was in danger of sinking, rigged a temporary steering apparatus, and stood in for the land, which he reached at about midnight of the same day, and ran her ashore three miles from Rye Harbour. The tide was then about half ebb. The night was dark, the wind being W.S.W., and the weather cloudy and squally. The coast guard, who were on duty at a station near Rye, being desirous of rendering assistance, and the surf on the beach being heavy, carried their boat and launched it abreast of the vessel, and got aboard of her about two o'clock in the morning. Attersoll, the chief boatman, in the presence of Tremble, a commissioned boatman of the coast guard, told the captain of the Willem Eduard that he was three miles from Rye Harbour, that where his vessel was lying was sand and no rocks, and that if he would give him charge of her he had no doubt that be could get her safe into Rye Harbour. But the captain refused this offer, stating, " It would be of no use tiding." Attersoll then asked to be allowed to get out an anchor, but the captain said " No." He then inquired what he intended to do; the captain replied, " It is no use, the wind will be from the south-west, and the ship will go to pieces." Attersoll, after waiting some time longer to see if the captain would allow him to do his best to get the vessel intp a place of safety, at about three o'clock got over the side of the vessel, and walked ashore, the tide having ebbed and left her high and dry. After Attersoll quitted the vessel, Tremble, who stayed behind, pointed out to the captain that the wind was two points off the land, and that they could get the vessel off, she being three miles to, windward of the harbour, but " he still refused to let them try." Attersoll returned to the vessel at four o'clock, when he and Tremble procured a light and walked round the vessel, which was still dry, and all the damage they could discover was on her E. L. G G 440 THE FLYING FISH. 1865. March 8. Registrar's report. stern and quarter, about five or six feet above the water line, and they asked the captain to give them some canvass and nails for the purpose of nailing the canvass over the damaged part, which he refused to do. When AttersoU got on board again, he asked the captain what he intended doing, and he answered, " The vessel will go to pieces." And upon Tremble proposing to get her port anchor out, he replied angrUy, " No anchor— no good." At five o'clock the tide began to flow, when Mr. Groom, the Receiver of wreck for the port of Rye, and Mr. Buck, the chief officer of the coastguard station, went alongside the vessel, and repeatedly urged the captain to accept the services of the coastguard men, but he still refused all offers of assistance. At five o'clock the captain and the crew left the vessel, the men carrying their clothes and chests with them, and the captain taking away his chronometer. As the tide rose the vessel floated, and a little before seven o'clock, the port wing of the foresail and gaff" of the fore-trysail not being properly brailed up the wind caught these sails, and carried the vessel on to the beach. As she was driving into the beach, the mainmast went overboard. At seven o'clock^ after the vessel was on the beach, there having been no one on board from five to seven o'clock, and nothing having been done during that time, the captain said the coast- guard might try their best, and he gave charge of the vessel to them, but it was then too late for any effectual services to be rendered. When the vessel was seen about half-past nine she was lying broadside on to the land, full of water, and the sea breaking over her. She afterwards went to pieces on the beach and the greater part of her cargo was destroyed. The total value of the ship and cargo was 10,910^. lis. 8rf. The nett pro- ceeds of the sale of the wreck and cargo was 2,623Z. 13s. 2d. Upon the hearing of the cause the learned Judge, who was assisted by two of the elder brethren of the Trinity House, pro- nounced for the damage sued for, and referred the question of amount to the Registrar and Merchants to report upon. The re- spondents, before the Registrar and Merchants, claimed compen- sation for a total loss, amounting to 8,286Z. 18s. 6d., after giving credit for the nett proceeds of the sale of the wreck, and of the cargo recovered. The appellants denied their liability for the damage consequent upon the refusal of the master to accept the services of the coastguard. No affidavits were used by the respondents, nor were any witnesses produced by them before the Registrar and Merchants; but they relied entirely upon the written evi- dence filed in the cause. On the part of the appellant six witnesses were examined, all of whom had been present when the services of the coastguard were tendered and refused, and they were cross-examined on behalf of the respondents. The THE FLYING FISH. 441 Registrar reported that he was of opinion, for the reasons which 1865. lie set forth in an exhibit to his report, that there was due to the March 8. respondents in respect of the damage proceeded for the sum of I,110Z., together with interest thereon at 4 per cent. The reasons for this opinion were stated to be that the master showed both a great want of ordinary nautical skill in not taking any measures to save the vessel before the tide rose, and gross neglect of duty in not accepting the services of the coastguard men ; that there- fore the damages to which, in the opinion of the Registrar and Merchants, the respondents were entitled were, 1st, the cost of the repairs to the vessel at the port to which she might have been taken, including the discharge and reloading of the cargo, and the demurrage and port charges, which they estimated at the sum of 610/.; and 2ndly, a reasonable sum for the services of the coastguard, and of the steam-tug in rescuing her from the shore and taking her to a port of safety ; and as the whole value of the ship and cargo was estimated by the owners at 10,910/., they thought that 500/. would have been a proper re- muneration to the salvors for their services. This report was objected to on the part of the respondents. Judgment of and they filed a petition praying the Judge to refer it back to cLru"^"^^^^ ■ the Registrar for amendment, and the appellant filed an answer praying the Judge to confirm the report. At the hear- ing of this petition the respondents proposed to produce wit- nesses who had not been examined before the Registrar and Merchants. This was objected to on the part of the appellant, but the learned Judge overruled the objection, and five new witnesses were produced by the respondents. One witness who had been examined before the Registrar and Merchants was produced and examined by the appellant. The Judge by order referred back the report to the Registrar and Merchants for amendment, condemned the respondents in the costs incurred at the reference before the Registrar and Merchants, but made no order as to the costs incurred by the objection to the report. The learned Judge was of opinion " that the appellant had not substantiated bis allegation that a large part of the damage was not to be attributed to the collision, but was solely occasioned by the master's refusal to accept assistance. That to establish that defence it ought to have been shown, not only that the master did refuse assistance as a matter of fact,"bnt that such refusal arose from gross want of nautical knowledge, or crassa negligentia. That the true issue in the case was not whether the assistance of the coastguard or others, and the laying out of the anchor, might have been successful, but whether there was such reasonable doubt on the part of G g2 442 THE FLYING FISH. 1865. the master who refused the adoption of such measure, that he March s. was justified in dedining to run the risk; or, putting it in other words, whether looking to the condition of the ship, the cargo, the weather, and the locality, he was guilty of gross nautical ignorance or gross negligence." The learned Judge stated that " had the case come before the Court sqlely upon the evidence produced before flie Registrar and Merchants, he thought it most probable, indeed he entertained little doubt, that the Court would have come to the same conclusions, as to matters of fact, as they did." But after adverting to the evidence of the wit- nesses produced by the respondents on the hearing of their petition, he added, " with this evidence before me is it possible for me to come to the conclusion that the master was guilty of gross nautical ignorance, or of gross negligence ?" and he con- cluded by expressing his opinion that, as " against a wrong- doer, which, in legal estimation, the Flying Fish must be taken to have been, it could tjot be maintained that there was no rea- sonable doubt as to the course to be pursued." The new Rules Upon the hearing of the appeal from this judgment, two abridge the""' points were insisted upon by the counsel for the appellant : 1st. power of the That the learned Judge ought not to have received fresh evidence Court of upon the objection fo the Registrar's report ; and, 2ndly, That Admiralty to such evidence was not sufficient to lead to a decision contrary to admit fresh evidence on an such report. As to the admission of additional evidence the repOTt orthe* counsel for the appellant did not attempt to maintain that the Registrar, but learned Judge had no power to admit such evidence, but they irto beTxer- contended that he thereby exercised his judicial discretion im- cised with properly. And they referred to former expressions of opinion of great caution, , ^ '^ '' , ... , , j , f ^i c and with a the same learned Judge strongly condemnatory or the course or to'the ijMuHar withholding evidence at the reference, and making a new case circumstances before the Court, particularly in the cases of the Sir George Seymour [a), and the Glenmanna (b). They also insisted that the new rules made in pursuance of the acts of the 3 & 4 Vict. caps. 65 and 66, and 17 & 18 Vict. cap. 78, which came into operation on the 1st January, 1860, had introduced a new practice with respect to references before the Registrar, had armed him with more authority in conducting the inquiry, and had enabled the Judge to know the oral evidence taken before the Registrar by a transcript of the shorthand-writer's notes, and therefore had considerably limited the discretion previously ex- ercised as to admitting additional witnesses. Their Lordships do not think that these rules have at all the effect of restraining the power of the Judge, or of fettering his discretion as to the admissibility of fjesh witnesses upon these occasions, a discre- (o) 1 Spinks' Adm. and Eccl. Rep. fi7. (6) Lushington, 122. THE FLYIJ^^G FISH. 443 tion which it is unnecessary to say must always be exercised 1865. with great caution, and with a careful regard to the peculiar ^"'""^ ^- circumstances of each case. Now, taking the whole of the evidence on both sides into ^^^ l"«f''°" -III £• i_ ■ .. is> Could the consideration, can it be said that the conduct of the captam or damages have the Wiilem Eduard, after he had run his vessel on shore in con- ^y^"i,g™3^frc1se sequence of the collision, did not exhibit a want of nautical skill, of ordinary and a gross neglect of duty ? The learned Judge thought that "^^ diUgencc in order to exonerate the appellant from liability to the subse- on the part of .1 . ■ . L .u ^ J.U the master? quent damage to the vessel it was necessary to show that tne master was guilty of " gross nautical ignorance, or of gross negligence." It appears to their Lordships that the principle upon which the owners of a vessel are to be exempted from hability for the acts or omissions of their master is not here laid down with perfect accuracy. The blame imputed to the master of the respondents' vessel in this case is, that he made no effort to save her, and that he refused all offers of assistance which were made to him ; and the proper question seems to be, whether in so acting he did, in the words of Baron Parke, in Tindal v. JBeU{a), "what a reasonable man would do under similar cir- cumstances, where he had no other judgment but his own to resort to;" or in the words of the learned Judge of the Court of Admiralty himself, in the case of the Linda (h), upon a quea- tion of abandonment, " whether the master had wilfully aban- doned the vessel when he might have saved her, or had aban- doned her through a want of ordinary nautical skill and resolution." It is to be observed that this was not the case of a sudden emergency, leaving no time for deliberation, when great allowances should be made for any error in judgment which may occur. In this case there was no danger to life, nor any immediate apprehension of the loss of the vessel, and the captain had some hours to decide what course was best to be adopted. The learned Judge was of opinion that " as against a wrongdoer, which," he says, " in legal estimation the Flying Fish must be taken to have been, it cannot be maintained that there was no reasonable doubt as to the course to be pursued." But treating the Flying Fish as a wrongdoer is really begging the whole question. For the collision, and for all the conse- quences of that collision, the appellant is responsible. But if the subsequent damage resulted from the acts or omissions of the captain of the Wiilem Eduard, for that portion of the damage the appellant is not only not a wrongdoer, but he is not even to be regarded as the doer of the act which occasioned it. It is (a) 11 Mee. & W. 232. (6) Swabey, 306. 444 THE FLYING FISH. 1865. quite true, as the learned Judge has said, that "if there was March s. a reasonable doubt on the part of the master whether the measure proposed, or any other measure, would have been suc- cessful, he was justified in declining to run the risk, and would not be guilty of nautical ignorance or gross negligence." But the master appears to have exercised no judgment at all in the matter, but at once to have abandoned himself to despair, and to have regarded all efforts to save the vessel as hopeless. [The judgment then discussed the evidence on this point and con- tinued.] It is impossible for their Lordships to arrive at the coiKilusion that the master exercised any judgment at all upon the possibility of saving his vessel. It appears that he attempted nothing because he had persuaded himself that nothing could be done, and that he rejected all offers of assistance, not after weighing the measures proposed, but because he had hastily determined that the state of his vessel would make every effort The right con- to save her unavailing. Their Lordships therefore agree in the herethe'mastM- conclusion to which the Registrar and Merchants arrived, as to showed want the master having shown want of ordinary nautical skill and nautical skill neglect of duty, and they think that the witnesses produced and neglect of before the Judge by the respondents did not alter the case, and that the learned Judge ought to have confirmed the report so far as it limited the damages to the immediate consequences of The Registrar the collision. But they agree with the learned Judge in his esdmadnfthe objection to the conjectural estimate of the measure of damages partial damages made by the Registrar and Merchants. They ought not to have without formed any judgment as to the reduced damages except upon evidence. j-jje evidence of witnesses. By which of the parties these wit- nesses should have been produced was made a question in the course of the argument. It seems clear that the respondents could not'have been expected to be prepared with proof of this description upon the reference. They claimed the entire value of the vessel and cargo minus the amount of the proceeds of what had been sold, and they could not know that the Registrar and Merchants would reject that claim before their report was made. On the other hand, the appellant contended that the re- spondents were not entitled to damages beyond those which could be attributed solely to the collision, and the proof of the amount of those limited damages would seem more properly to have been a part of their case. But no evidence at all having been given, their Lordships think that the Registrar should have reported to the Judge his opinion that the appellant was re- sponsible only for the damages directly occasioned by the col- lision, and not for any which happened after the refusal of the master of the respondents' vessel to accept the assistance which THE FLYING FISH. 445 was offered to him, and that as to the amount of those hmitcd 1865. damages no evidence had been given. If the Judge had adopted ^'"•'^'' ^- the view of the Registrar he would have confirmed the repbit, but referred the matter back to the Registrar to ascertain the damages upon that footing, and then the onus of proving the amount to which the respondents would be entitled upon this restricted view of their claim would have fallen upoii them. Their Lordships upon the whole of the case will humbly advise Decree re- ^ her Majesty that the decree appealed from should be reversed, newWfe^rence except so far as it condemned the respondents in the costs in- ^'•^^Ysttar''and curred on the reference before the Registrar and Merchants ; Merchants to that the cause be retained, and that it be referred back to the d^'^^gf/^own Registrar, assisted by Merchants, to ascertain the amount of the to the time damages to which the respondents are entitled down to the time ^as°eJfi^rst when the master of the Willem Eduard first refused the refused assist- assistance which was offered to him, and that there should be no costs of the appeal on either side. The parties subsequently agreed to adopt the Registrar's original report and to take the sum of 1,100Z. mentioned therein as the true measure of damages. Townsend, proctor for the appellant. Deacon, proctor for the respondents. Note.— As to the right allowed the plaintiffs in this case to recover the original partial damages, compare Knight v. Faith, IS Q. B. 649. The supervening total loss was here apparently regarded as being wholly occa- sioned by the plaintiffs' own default, and completely foreign to the cause of action. But if it had been considered, which it might not unreasonably have been, as occasioned partly by the original negligence of the defendant, and partly by the ensuing default of the master of the Dutch ship, the question would have arisen, whether the plaintiffs were entitled to recover half the total loss, according to the Admiralty rule of dividing the damages in cases where both parties are to blame. It must be immaterial whether the contributory negligence of the plaintiff occurs before or after the negligence of the defendant, Vaux v. Sheffer, 8 Moore, P. C. 87 ; and the technical objection to permitting under a general decree for damages one portion of the damages to be reckoned at their full amount, and another portion, so to speak, of the damages to be reckoned at only half their amount, might be over- ruled. But a distinction might be drawn between negligence which contributes to the collision and negligence subsequently arising which contributes to ulterior damages, on the ground that the Admiralty rule should be strictly confined to that class of cases in which it has in practice been applied. The normal case for its application is where the owner of a ship sues in the Admiralty Court to recover damages accruing to his ship from a collision with another ship, which collision proves on inquiry to have taken place through the improper management of both 446 THE FLYING FISH. 1865 ships. This rule — truly called arbitrium rusHcum — which is peculiar- to our own Mar h 8 Admiralty Courts, may have been designedly created from a notion of its own merits — the supposed equity, where each is proved to have been to blame for the cause of loss, of dividing equally between the parties the loss which otherwise might fall unequally. It was more probably, however, a corruption of a similar rule which still prevails in most European codes (see Laconia, arguendo, ante, p. 133), but is not allowed in our Admiralty Court, of dividing damages in oases where the cause of the collision is left after investigation in utter ambiguity. This latter rule, which is equally opposed to principle, may have arisen from the peculiar difficulty so often experienced in ascertaining the real parties to blame for a collision between ships at sea. The Admiralty rule above mentioned is not merely anomalous, but is in direct con8ict with the common law, and occasionally produces startling results, as when a collision having taken place, one shipowner, say A., sues the other, B., in the Admiralty Court, and is sued by B. in turn in one of the common law courts, and each tribunal considers both parties to blame. A. recovers half his damages, B. recovers nothing ! (See also /iBrora, Lushington, p. 327.) The rule in question has, however, as regards the rights of shipowners in such case, been affirmed to be the law of the Admiralty Court, both by the House of Lords and the Privy Council, Hay V. Le Neve, 2 Shaw's Scotch Appeals, 395 j f^aux v. Sheffer, 8 Moore, P. C. 75. The Admiralty Court has also in a single decision {Milan, Lushiugton, 388), which might have come under review in the present case, extended its application to the case where the plaintiff, being the owner of cargo which is carried in one ship, sues the opposing ship for damages occasioned by a collision, which proves to have been brought about by the negligent navigation of both ships. No oppor- tunity has yet offered of extending it to other cases in the Admiralty Court, though such might any day occur under the newly-granted jurisdiction. Thus if the owner of cargo, carried in a foreign ship, were to sue such ship for loss occasioned by the negligence of the shipowner, the case proving that his negligence consisted in improper navigation of the ship resulting in a collision with another ship also im- properly navigated, or if it was proved that the loss (not by collision) was occasioned by the default of the plaintiff or the shipper as well as by that of the shipowner. The increasing conflict of the rule with the common law applicable to these and all other cases of negligence, thus threatens to become hardly tolerable. When the whole subject passes, as one day it must, under legislative review, this anomalous Admiralty rule, notwithstanding its equitable or seemingly equitable operation in some cases, may, it is to be hoped, disappear altogether. THE HERO. 447 1866. May 4. THE HERO. Amendment of Mistake in prcecipe — Increase of Action. The praecipe to institute an action having been by mistake entered in a smaller sum than that intended, the defendant's ship was arrested and bailed in that sum. On the mistake being discovered before the hearing of the cause, the Court gave permission (on payment of costs occasioned by the mistake) for the praecipe to be amended, and the defendant's ship to be re-arrested. COLLISION.— This was a motion made on the 28th April, 1865, on behalf of the plaintiffs, the owners of the ship Albertus"and her cargo, for leave to amend the praecipe insti- tuting the cause, by altering the sum in which the action was entered from 1,000/. to 2,6001., and to decree a warrant for the re-arrest of the ship Hero. In support of this motion was filed an affidavit by the plaintiffs' proctor and his clerk, by which it appeared that the clerk had on the 15th August, 1864, by mistaking his instructions, filled in the original praecipe for instituting the action with the figures 1,000/. instead of 2,600/. ; that the ship Hero was accordingly arrested and bailed in that sum ; that the error was not dis- covered until the 21st April, 1865; that the damages were esti- mated at 2,350/. ; and that the gross register tonnage of the Hero was 602 tons. The defendants had originally appeared under protest to the action. Before the date of this motion the proceedings on pro- test had been concluded, an absolute appearance given, and the plaintiffs' petition filed. Clarkson, for the plaintifl's, in support of the motion, referred to the Temiscouata {a) and the Mceander (b), Beane, Q.C., contra, referred to the Kalamazoo (c) and Wild Ranger (d). Cur. adv. vult. Dr. Lushington. — I have considered the cases which were Judgment, cited to me on the hearing of this motion : Kalamazoo (e), (a) 2 Spinks, 208. (d) Ante, p. 84. (6) Ante, p. 29. (e) 15 Jurist, 885. (c) 15 Jurist, 885. 448 THE HERO. 1865. Temiscouata{a), McBander {b), Wild Banger (c). In the Kalu- May4. mazoo and the Wild Ranger are expressions which, literally interpreted, would indicate that I have no power to grant a re-arrest for the same cause of action after the property has been released on bail : but those expressions must be read -subject to the fact which formed the ground of the decision in each of those cases, that the cause of action had passed into res judicata. I am of opinion that where application to increase the amount of the action is made before judgment has been pronounced, the Court has power to direct measures to be taken to do full justice to the plaintiff. I am of opinion, therefore, that the Court has power to grant this motion, and that under the circumstances it is just and proper that the plaintiffs should be relieved from the mistake committed. I allow the re-arrest, but the plaintiffs must pay all the expenses arising from their mistake. Clarkson, Son df Cooper, proctors for the plaintiffs. Coote, proctor for the defendants, (o) 2 Spinks, 208. (6) Ante, p. 29. (c) Ante, p. 84. THE MARIE JOSEPH. 449 h\ tlje 33nbg Council. Present — The Lord Chancellor. Lord Justice Knight Bruce. Lord Justice Turner. Sir John T. Coleridge. Sir Edward Vaughan Williams. THE MARIE JOSEPH (a). Negotiability of Bills of Lading— Stoppage in transitu — Effect of Fraud— deposit of Bills of Lading with Banker "for Advances past or future." If the vendee of goods having received from the vendor an indorsed bill of lading making the goods deliverable to order or assigns, indorses and delivers it to a banker as a security for past and future advances, the banker's claim upon the goods for all such advances will prevail against a claim of the unpaid vendor to stop the goods in transitu. The vendee of goods having received from the vendor an indorsed bill of lading making the goods deliverable to order or assigns, and having given an accept- ance for the price, returned the bill of lading to the vendor, to hold "as - security against the acceptance until the goods are sold or the vessel arrives," and afterwards by fraudulent representation again obtained possession of the bill of lading from the vendor, and negotiated it by indorsement and delivery to a third person, who took without notice of the fraud : Held, reversing the judgment of the Admiralty Court, that the vendee's fraud did not vitiate his power to pass a good title by indorsement, and that the right of such third person under the indorsement should prevail against the claim of the unpaid vendor to stop the goods in transitu. The vendor's agent, Stericker, delivered to the vendees, a firm consisting of two persons called Scarborough & Tadman, a bill of lading for linseed cake indorsed by the vendors, making the goods deliverable to order or assigns, and took an acceptance for the price. Afterwards, at the same interview, the vendees returned the bill of lading to Stericker, to hold "as security against the acceptance, until the cakes are sold or the vessel arrives." Sub- sequently Tadman, by falsely representing to Stericker that he had sold the goods to one Croysdale, re-obtained from him possession of the bill of lading, and then indorsed it in the name of his firm to a bank as security for past or future advances. The bank took without notice of the fraud. They after- wards advanced to the firm a sum less than the value of the linseed cakes ; but the total amount of their debt was greater : Held, reversing the judgment of the Court of Admiralty, that Tadman's fraud did not vitiate his power to pass a good title to the bill of lading, and that the claim of the bank upon the goods (for the whole of their debt) prevailed over the claim of the unpaid vendor to stop in transitu. Gurney v. Behrend, 3 E. & B. 622 ; Kingsford v. Merri/, 11 Exch. 577 i I H. & N. 503, considered (ft). rriHIS was an action brought in the Admiralty Court under the 6th section of the stat. 24 Vict. c. 10, by Messrs. Peases, Hoare & Pease, bankers at Hull, as indorsees of a (a) This appeal was twice argued. (6) See also Coxe v. Harden, 4 East, 211. 1866. Aug. 4. 450 THE MARIE JOSEPH. 1866. bill of lading for certain linseed cake, against the foreign sh'ip Aug. 4. Marie Joseph, for breach of duty by the master in not delivering the cake to them. The action was defended by the master, who had delivered the cake under an indemnity to Messrs. Maxwell & Dreossi, the original shippers, who had claimed to stop in transitu. The facts proved at the trial were thus stated by Dr. Lushing- ton in his judgment : Early in the month of February, 1864, Walter Stericker, of Kingston-upon-Hull, as agent for Messrs. Maxwell & Dreossi of Bordeaux in France, agreed with Messrs. Scarborough & Tadman of Kingston-upon-Hull for the sale to them of sixty tons of linseed cake, they paying for the same by their accept- ance at three months' date. The linseed cake was accordingly on the llth February shipped at Bordeaux by Maxwell & Dreossi on board the Marie Joseph, owned and commanded by Jean Marie Gloahec. Messrs. Maxwell & Dreossi indorsed the bill of lading for the same unto order or assigns and drew a bill of exchange for the price of the linseed cake on Messrs. Scar- borough & Tadman, and forwarded both the bill of lading and the bill of exchange to Stericker, their agent. On the 16th February, 1864, Sterick&r brought both' the bill of lading and the bill of exchange, and also a policy of insurance upon the linseed cake, to the office of Scarborough & Tadman. Mr. Scarborough, one of the members of the firm, accepted the bill of exchange, and thereupon Stericker delivered to him the bill of lading, duly indorsed as mentioned by Maxwell & Dreossi, together with the policy of insurance. A conversation then took place in which some mention was made by Stericker respecting the implication of the firm of Scarborough & Tadman in the affairs of one David Moor, which affairs since the preceding Christmas had been rumoured to be embarrassed. Thereupon Mr. Scarborough said : " Let him " (Stericker) keep the bill of lading." Accordingly, Scarborough handed back the bill of lading and the policy to Stericker, and Stericker signed and gave to Scarborough a receipt for the same in the following terms : — " Hull, 16th February, 1864. Memorandum that I have re- ceived of Messrs. Scarborough & Tadman, of Hull, a bill of lading and policy of assurance for about sixty tons of linseed cake shipped ex Marie Joseph, dated at Bordeaux, 1 1 th February, 1864, and which I hold as security against their acceptance of Messrs. Maxwell & Dreossi's draft for 427Z. Is. 4rf. due on the 14th May, 1864, until the cakes are sold or the vessel arrives. Walter Sterickee." THE M'ARIE JOSEPH. 451* On the IHth February, 1864, Mr. Walter Tadman, the other 1866. member of the firm of Scarborough & Tadman, called on ^«g- *■ , Stericker, and stated to him that his firm had sold the linseed cake to a Mr. Croysdale, who would accept a bill of exchange against the bill of lading, and Mr. Tadman asked for the bill of lading. Trusting to this representation, Stericker returned the bill of lading to Tadman. The representation was untrue; no such sale had taken place. On the same day, the 18th of February, but shortly afterwards, Messrs. Pease & Co., the plaintiffs, bankers in Hull, sent a message to the office of Scarborough & Tadman, requesting one of the members of the firm to call upon them at the bank. No reason for the request seems to have been given with the message, but Messrs. Scar- borough & Tadman could not fail to know it was respecting their account with the bank. It appears that on the 18th of January preceding, Messrs. Scarborough & Tadman owed the bank 1,985Z., and were liable on bills which the bank had discounted, and which were running to the extent of 4,847Z., whilst the bank held security only for 850/. On the 18th of February the debt had been reduced to 1,187/., but the discount liabilities still amounted to 4,000/. or thereabouts. Upon receipt of the message, Mr. Tadman went to the bank, and took with him the bill of lading, and also some warrants for some rib grass. There he saw Mr. Arthur Pease, a member of the banking firm. Mr. Pease asked him to reduce the debt of the firm, but did not ask him for security. Tadman thereupon offered to him as a security the bill of lading, the policy of in- surance, and the warrants, and this offer Mr. Pease accepted. Tadman then indorsed the bill of lading in the name of his firm, and delivered it with the other documents to Mr. Pease, and a memorandum was drawn up in the following, which was the usual form : — "Hull, Feb. 18, 1864. " Messrs. Peases, Hoare & Pease, " Gentlemen, herewith we beg to hand you warehouse warrant for thirty-nine sacks rib grass, and a bill of lading for sixty tons linseed cake in bulk per Marie Joseph, and policy of insurance, as a security for advances now made or that may hereafter be made on our account, and we hereby give you authority to sell the above goods, placing the proceeds to our credit in account." This memorandum was' not signed by Mr. Tadman, in con- sequence, as it was sworn, of a mere oversight. Mr. Pease also deposed that at the date of this transaction he did not know the history of the bill of lading, but assumed the bill of lading to be. 452 TPIE MARIE JOSEPH. 1866. as it purported, the lawful property of Scarborough & Tadman, Aug. 4,. that he had no suspicion that Scarborough & Tadman were insolvent or on the eve of insolvency, though he knew through the banking account that they were mixed up with the dealings of Mr. Moor. Mr. Moor did not become bankrupt till the 4th of March, and on the 7th March, Scarborough & Tadman also stopped payment. On the 5th of March however, most probably in consequence of Moor's bankruptcy having been communicated from Hull or from other information, Messrs. Maxwell & Dreossi telegraphed to Stericker to stop the delivery of the linseed cakes, and announced that a bill of lading indorsed to Stericker would be sent by the same post. This was accordingly done, and on the 7th of March Stericker received a bill of lading, being a duplicate of the one indorsed to Scarborough & Tadman, except that it was indorsed to him, Stericker. The vessel arrived in Hull on theStb of April; a water clerk came on board first, and told the captain that he thought two persons claimed the cargo, and advised him to be careful. He was shortly afterwards fol- lowed by Johnson, the clerk of the solicitors to the plaintiffs Pease & Co., who presented the bill of lading held by the plain- tiffs and claimed the cargo. When it was first presented, it was not indorsed by Messrs. Pease & Co., the plaintiffs:— in fact, it was not indorsed till the 7th. On the same day, the 5th, but later, Stericker came on board and presented his bill of ladinmG— continued. ment and consequent depreciation of the rice. The Court, having found that the master had wrongfully refused de- livery to the p[a.mtifl',—Seld, that tlie master, having taken upon himself to land the cargo was bound to have "assorted" it in the usual manner, and that the ship was liable for the damages caused by the non-assortment. After the landing of the cargo and during the progress of the cause the plaintiff obtained delivery upon paying into Court , a certain sum of money. The Court in its decree directed the registrar and merchants to take an account of the freight due in respect of the cargo according to the positions laid down in the judgment, of the damages pronounced for, and of the amount, if any, due for general average contribution from the cargo ; and to report the balance . . Norway 377 15, In an action upon the bill of lading against the shipowner for loss of part cargo alleged to have been jettisoned and sold in consequence of the ship stranding, the plaintiflP is not entitled to recover, unless he proves affirmatively that the stranding was occasioned by the negligent navigation of the ship. — Meld, upon the evidence reversing the judgment of the Admiralty Court, that this burden of proof was not satisfied, and that the loss was by perils of the seas. The loss of part cargo having been occasioned by perils of the seas, — Held, that under the bills of lading and charter- party, the master's lien on the residue for freight extended to the entire lump freight without deduction. Quaere, whether, assuming the loss to have been by the shipowner's negli- gence, the Court of Admiralty was right in allowing a de- duction from the lump freight of a proportionate sum repre- senting the freight of the part not delivered. Construction put by the Court of Admiralty upon the master's guarantee " to carry 3,000 tons, &c." affirmed. A reference was ordered to the registrar and merchants to take an account between the parties, and to report (inter alia) whether the plaintiff as holder of the bills of lading was entitled to deduct from the lump freight the address com- mission mentioned in the charter, and whether such right was forfeited by the plaintiff's agent having refused to take charge of the ship at the port of discharge. — Held, reversing the judgment of the Court of Admiralty, that, although the master wrongfully withheld the cargo, liis duty did not go beyond its safe custody and protection, and that he was not bound to assort the rice on landing it. Norway (P. C.) 404 III. Measure of Damages. 1. In cases brought in the Admiralty Court under 24 Vict. c. 10, s. 6, the damages will be referred to the Registrar and Mer- INDEX. 497 BILLS OF LATtmG-contimed. chants, witlj instructions to follow the rules of the Courts of Common Law as to the measure of damages. . St, Cloud 4 2. In case of injury to goods by improper stowage, loss upon a contract of resale which was entered into before delivery, and of which the defendant had -no notice at the time of making the original contract, is not to be allowed. St. Cloud 4 IV. Stoppage in Transitu. 1. If the vendee of goods having received from the vendor an indorsed bill of lading making the goods deliverable to order or assigns, indorses and delivers it to a banker as a secm-ity for past and future advances, the banker's claim upon the goods for all such advances will prevail against a claim of the unpaid vendor to stop the goods in transitu. Marie Joseph (P. C.) 449 2. The vendee of goods having received from the vendor an indorsed bill of lading making the goods deliverable to order or assigns, and having given an acceptance for the price, returned the bill of lading to the vendor, to hold " as security against the acceptance until the goods are sold or the vessel arrives," and afterwards by fraudulent repre- sentation again obtained possession of the bill of lading from the vendor, and negotiated it by indorsement and delivery to a third person, who took without notice of the fraud. — Held, reversing the judgment of the Admiralty Court, that the vendee's fraud did not vitiate his power to pass a good title by indorsement, and that the right of such third person under the indorsement should prevail against the claim of the unpaid vendor to stop the goods in tran- situ Marie Joseph (P. C.) 449 3. A merchant who purchases goods on his own credit for another, to whom he indorses a bill of lading of the goods, stands, for the purpose of stoppage in transitu, in the position of vendor ; and the indorsement by him of one bill of lading to the vendee does not, of itself, defeat his right to stop in transitu Tigress 38 4. The vendor claiming to stop need not represent to the master that the bill of lading is still in the hands of his vendee. Tigress 38 5. Upon the vendor asserting his right to stop in transitu, the master, unless aware of some legal defeasance of such right, is bound to deliver the goods to him ; and his refusal so to deliver constitutes " a breach of duty " within the 6th section of the Admiralty Court Act, 1861, for which the ship will be liable Tigress 38 498 INDEX. BILLS OF LABmG—contimed. 6, A master is justified in delivering goods to the holder of the first bill of lading presented Tigress 38 BOTTOMRY. 1. Where a bottomry bond is made payable upon arrival at the ship's port of destination in England, the validity of the bond is triable by the general maritime law as administered in England, and not by the law of the ship's flag, or the law of the place where the bond was executed. Hamburg (P. C.) 253 2. The character of agent for the owners of the cargo is imposed upon the master solely by the necessity of the case. The master of a ship, therefore, has not authority to hypothecate the cargo, if in the circumatances of the case it is reasonably practicable for him to communicate with the owners of the cargo before doing so ; and if he hypothecates the cargo in such circumstances without so communicating, the bond, though given and taken bona fide, is not binding upon the cargo Hamburg (P. C.) 253 3. A lien on the ship and freight, existing by local law, for ad- vances and commissions, does not convert a transaction on personal credit into a bottomry transaction, so as to render valid a bond subsequently given, or prevent the ordinary reference of the fairness of the commissions to the Registrar and Merchants. . . Laurel 191 The existence of such, a local law may be properly pleaded as material evidence to support an allegation that the agree- ment was to make advances on the credit of the ship and freight, and that the commissions were customary. Laurel 191 The existence of such a law in a foreign port will be assumed by the Court of Admiralty unless contradicted by plea. If contradicted, either party may produce evi- dence, the party failing in the particular issue to pay the costs of it Laurel 191 4. The master in a port of refuge consigned the vessel to a merchant to advance money for her repairs, the law of the country allowing a lien on the vessel for such advances; no agreement was made at the time whether the advance was to be made on personal security or on bottomry; and the merchant did not himself determine on having bottomry security until shortly before the ship sailed, when he de- manded a bond, which the master executed. The Court upheld the bond . . Laurel 317 5. An excessive charge for commissions may be a reason for impeaching a bottomry bond on the ground of fraud, but does not otherwise affect its validity, . . , . Laurel 317 INDEX. 499 BOTTOMRY— contmued. 6. It is proper for the master to advertise previous to taking advances on bottomry ; but a bottomry bond is not invalid because of no such advertisement having been made. Laurel 317 7. The master of a ship putting into a foreign port of distress has not authority to insure the ship or freight for performing the residue of the voyage ; and has no authority therefore to grant a bottomry bond on the ship to pay for the premiums of such insurance . . . . . . . . Serqfina 277 A bottomry bond to cover payment of premiums for such insurance, stipulated that in case of average or loss of the ship, the lender should obtain reimbursement from the under- writers, and should thence repay himself the premiums of insurance with interest, commission and costs, holding the remainder at the disposal of the master or his principal. — Semble, that such a bond was also invalid as not being con- ditioned to bear maritime risk. . . . . Serajina 277 8. A bottomry bond, if it expresses a maritime risk, is not in- validated by the absence of any provision for maritime interest .. .. Zaurel 317 9. Where the defendant being in adequate possession of the facts, had given his consent to a decree of the Court pro- nouncing for the validity of a bottomry bond ; the Court refused at the defendant's application to rescind the decree, though the facts might possibly raise a valid defence ac- cording to a decision pronounced subsequently to the decree. Glenburn 62 10. The holder of a bottomry bond on ship, freight and cargo is, upon the conclusion of proceedings by default against ship and freight, entitled, as of course, to have the full freight due upon delivery of the cargo paid to him to satisfy the sum secured by the bond with costs, and the owner of the cargo who has paid the fi'eight into Court is not entitled to a reference of the amount due on the bond, notwithstand- ing that before the execution of the bond part of his cargo was sold by the master, and the proceeds applied to ship's expenses . . . . . . . . Gem of the Nith 72 CARGO, DAMAGE TO. See Bills of Lading. CAVEAT RELEASE. A plaintiff filing a caveat release in his own action after a bail . bond duly executed, condemned in costs and damages. CHANNEL. '^°™^'' ^61 The channel or water between the Bell Beacon and the buoys of the Queen's channel leading to the port of Liverpool, is not a "narrow channel" within the meaning of the 297th sec- tion of the Mercliant Shipping Act, 1854. Mceander (P. C.) 29 500 INDEX. CHARTER-PARTY. See Bills of Lading, I. 5 ; II. 4, 5, 6, 7, 9, 11, 14, 15. COLLISION. I. Jurisdiction. 1. By the 24 Vict. c. 10, s. 7, the utmost extent of jurisdiction in cases of collision is given to the High Court of Admiralty. Malvina (P. C.) 57 The Court of Admiralty has by that statute jurisdiction in a case of damage done by a sea-going vessel to a barge within the body of a county . . . . Malvina (P. C.) 57 2. The Court of Admiralty has not jurisdiction under 3 & 4 Vict. c. 65, s. 6, or 24 Vict. c. 10, s. 7, or otherwise, to enter- tain a claim against a steam-tug for damage occasioned to the vessel towed, by negligence in towing, if the damage arises not by collision, but by the vessel taking the ground. Robert Paw 99 II. Rules, ^e. 1. The Admiralty Regulations of 1858, with respect to the exhi- bition of side lights by sailing vessels, do not require that such lights should be placed on any particular part of the ship; such lights may be carried inboard, provided that they are fairly visible in the appointed directions. Circum- stances considered under which the regulations were suffi- ciently complied with . . City of Carlisle (P. C.) 363 2. On a dark hazy night in the Atlantic, a collision took place between a steamer and a sailing ship. The steamer was steering E. by S. | S., and steaming thirteen knots an hour; the sailing vessel was close-hauled on the port- tack, heading N. W., and was going at the rate of seven knots. The mast-head light of the steamer was observed by those on board the sailing vessel on her port bow, distant from two to three niiles, and the sailing ves- sel's helm was then ported. The collision occurred in nine or ten minutes afterwards. The steamer did not observe the sailing vessel until it was impossible to avoid the col- lision. — Held, that under the Rules' of the Order in Council, 9th January, 1863, both vessels were to blame : the sailing vessel for altering her course without necessity to avoid im- mediate danger, and the steamer for going at an undue rate of speed Great Eastern (^. G.) 2^1 3. When a vessel is sailing upon a wind, and passes from one tack to another, the usual mode of effecting this change is by tacking and not by weaiing. As vessels which are navi- gating near the one which is changing her tack, naturally expect that the ordinary method of going about will be pursued, the unusual and therefore unexpected operation of INDEX. 501 COLLISION— contJwMec?. wearing ought not to be resorted to unless for some good reason, nor -without sufficient sea room for the purpose. Falkland (P. C.) 204 III. Compulsory Pilotage. 1. In a cause of collision a defendant relying upon the statutory defence (17 & 18 Vict. c. 104, s. 388) that the accident was occasioned by the default of a pilot acting in charge of the ship and employed by compulsion of law, is bound to give strict proof that the collision was occasioned by the pilot's default, and by that only. Where, therefore, the improper navigation of the defendant's vessel consisted in getting under way for the purpose of docking, under cir- cumstances which rendered that proceeding dangerous to other vessels, and the defendant only proved that the pilot, as well as tlie captain, was on deck giving general orders, but did not prove the particular order, nor produce the pilot as a witness : — Meld, affirming the judgment of the Court of Admiralty, that the defendant remained liable for the damage . . . . . . Carrier Dove (P. C.) 113 2. The words "navigating within," in the 379th section of the Merchant Shipping Act (17 & 18 Vict. c. 104), mean being roithin; and therefore a vessel belonging to the port of London, and coming from a foreign port, is exempted from the employment of a licensed pilot in the river Thames. — Semite, that such a vessel is also exempted from compulsory pilotage by the General Pilotage Act (6 Geo. IV. c. 125). Stettin (P. C.) 199 3. The 374th section of the Merchant Shipping Act, 1854, pro- vides that no licence granted by the Trinity House shall " continue in force beyond the 31st day of January next ensuing the date of such licence ; but the same may, upon the application of the pilot holding such licence, be renewed on such Slst day of January in every year, or any subsequent day, by indorsement under the hand of the secretary of the Trinity House, or such other person as may be appointed by them for that purpose." — Held, that a pilot's licence, renewed by indorsement made on the 22nd January, operated a renewal from the 31st January, and was therefore in effect on the 6th May following . . Beta (P. C.) 328 4. A tessel ordinarily occupied in the foreign trade, going from Liverpool to London in order to sail from London under advertisement for foreign parts without passengers, but having on board a cargo shipped at Liverpool and deliver- able in London, is not " a ship employed in the coasting- trade of the United Kingdom," within the meaning of the 379tb section of the Merchant Shipping Act, 1854, and is 502 INDEX. COLUSIO'N— continued. compellable by the 376th section to take a pilot in the London District of the Trinity House . . Lloyds, or Sea Queen 359 IV. Mules as to Damages. 1. Upon a decree pronouncing generally for damages occasioned by a collision^ and ordering a reference to the Registrar to as- sess the amount, the defendant is not liable for such damages as might have been avoided by the exercise of ordinary nautical skill and diligence after the collision on the part of the servants of the plaintiffs in charge of their ship. If upon such reference the plaintiffs present a case of immediate partial damage resulting in the total loss of their ship, and no evidence is given on either side of the pecuniary extent of such partial damage, and the Registrar is of opinion that the plaintiffs are not entitled to recover the total loss upon the ground that by ordinary skill and diligence after the col- lision they might have avoided it, but are entitled to recover the partial damages, he should not assess tlie amount of the partial damages conjecturally and report such amount to be due, but should make a special report to the Court; and the Court veill then order a further reference to ascertain the amount of the partial damages by evidence. If a col- lision takes place between two vessels by the negligence of the crew of the defendant's vessel, whereby the plaintiffs' vessel suffers damage and is necessarily run aground, and afterwards and before any expenses are incurred, by the neg- ligence of the plaintiffs' servants a total loss of the plaintiffs' ship ensues, the defendant is not liable for such total loss of the plaintiffs' ship, but is liable for the expense which would have been incurred in making good the partial damage. Flying Fish (P. C.) 436 2. The Consular Court at Constantinople in 1862 was not a Vice- Admiralty Court, but had a customary jurisdiction in rem in cases of collision. — Seld, that, if both parties were found to blame, the Admiralty rule of dividing damages should be applied . . . • . . Laconia (P. C.) 117 V. Limited Liability of Shipowners. 1. The 54th section of the 25 & 26 Vict. c. 63, with respect to limited liability, applies equally to British and foreign ships. The owner of a British ship, sued (in rem) by the owner of a foreign ship for damages occasioned by a col- lision between the two ships on the high seas, is entitled to limited liability Amalia (P. C.) 151 2. The owner may claim limited liability without admitting that the negligence of his servants contributed to the collision. Amalia (P. C.) 151 INDEX. 503 COLLISION— cowimMecZ. VI. Pleading and Practice. 1. In a cause of collision the plaintiff is only entitled to recover secundum allegata et probata . . Hasnell (P. C.) 247 2. Where the plaintiffs pleaded that the collision was caused by the defendants' vessel having " suddenly put her helm a starboard ;" and the evidence given in support of the peti- tion was that the collision was caused by the defendants' vessel having ported instead of continuing under a starboard helm. — Held, by the Court of Appeal, affirming the judg- ment of the Court below, that the evidence could not be applied to the statement in the petition, and that the plain- tiffs, therefore, were not entitled to recover. Hasmell (P. C.) 247 3. The plaintiffs, in a cause of collision, alleged in their petition, in two separate articles, that the helm of the defendants' vessel was not duly ported, and was improperly starboarded. They also produced witnesses who deposed that the defend- ants' vessel had starboarded, and that the collision was thereby occasioned. The finding of the Court was, that the collision was occasioned by the helm of the defendants' vessel not having been duly put to port. — Seld, that the plaintiffs were not barred from recovering by the rule con- fining the plaintiffs' right to recover secundum allegata et probata .. . . . . . . . . Amalia 311 4. In a cause of collision, where the defendant admits in the pleadings that his ship, when under way, ran into a vessel at anchor, but denies that the vessel at anchor was the vessel of the plaintiff, the plaintiff must begin and prove his case. Earl of Leicester 188 5. The Court of Admiralty will admit in evidence a light-ship log, on production by the officer of the Trinity House, in whose custody such logs are kept, without requiring the evidence of the person who made the entries. Such logs permitted to be proved by examined copies. Maria Das Dores 27 6. A ship having been released from arrest upon bail given in the full sum in which the cause was instituted, cannot be re- arrested by the plaintiff to answer his damages, if, after the ordinary decree and reference, they prove to exceed that sum : and if the ship has been sold by the Court in another action brought by other parties, the Court cannot, under its general authority, or under the 15th section of the Admi- ralty Cou7t Act, 1861, order the proceeds of the ship to be applied to satisfy such damages or interest, or costs. Wild Manger 84 B.L. L L 504 INDEX. COLLISION— continued. 7. In causes of collision, where the Court finds inevitable acci- dent, the general rule is that each party pays his own costs ; but the Court still holds, and will on occasion exercise, the power to condemn the plaintiff in costs . . London 82 8. In a cause of collision, instituted on behalf of her Majesty in her office of Admiralty and of the commander and crew of one of her Majesty's ships, against a private shipowner, the Court, on finding for the defendant, declined to condemn the Crown in costs, but condemned the commander and crew to pay the whole of the costs .. -. Zieda 19 9. Co-plaintifi's are severally liable to the whole of the costs. Jjeda 19 CONFLICT OF LAWS. 1. If a bill of lading is given by the master of a foreign vessel, the agreements to be implied as to the duty of the master to carry on, trans-ship, or deliver the goods at an intermediate port of refuge will be ascertained by reference to the law of the fiag which the vessel carried, and not by reference to the lex loci contractus or the lex fori, or the law of the place where the breach of contract by the master is alleged to have been committed . . . . . . . . JBahia 292 2. Where a bottomry bond is made payable upon arrival at the ship's port of destination in England, the validity of the bond is triable by the general maritime law as administered in England, and not by the law of the ship's fiag, or the law of the place where the bond was executed, Hamburg (P. C.) 253 And see Collision, IV. 1, 2; V, 1. CONSULAR JURISDICTION. 1. As between two Christian states, all claims for cession of jurisdiction or exemption from jurisdiction within the other require, generally, at least, the sanction of a treaty; but such may, nevertheless, be proved by evidence of consent otherwise, and such consent may be expressed by usage and conscious acquiescence, especially in transactions with Oriental states Laconia (P. C. ) 117 2. The Ottoman Government has for a long -time acquiesced in allowing to the British consular authorities in Turkey a juris- diction between British subjects and the subjects of other Christian states. Such acquiescence, of the Ottoman Go- vernment does not vest a compulsory power in a British Court in Turkey over the subjects of other foreign states ; but the foreigner may voluntarily submit to its jurisdiction with the consent of his sovereign . . Laconia (P. C.) 117 INDEX. 505 CONSULAR JVRISBICnON— continued. 3. The effect of the 6 & 7 Vict. c. 94, is to make the jurisdic- tion of the British consular authority in the Ottoman Em- pire liable to be regulated by Order in Council; and the Order in Council, 27th August, 1860, provides for the exercise of such jurisdiction in suits between British sub- jects and the subjects of foreign states. .Laconia (P. C.) 117 4. The nature and extent of the consular jurisdiction must be solved by reference to usage. The Consular Court has exercised a customary jurisdiction in rem in cases of bot- tomry, whence the right to exercise a similar jurisdiction in cases of collision may be inferred. . Laconia (P. C.) 117 5. The jurisdiction being in rem, the rules applying to actions in rem apply rather than the rules of the English common law in personal actions ; and, therefore, if both parties are to blame for a collision, the damages ought to be divided. Laconia (P. C.) 117 6. The Order in Council, 9th January, 18G3, confirms rather than confers the Admiralty jurisdiction of the Consular Court at Constantinople . . . . Laconia (P. C.) 117 7. The protest by a foreign consul against the continuance of a wages cause against a foreign vessel does not deprive the Court of jurisdiction ; but the Court will use its discretion whether or not to exercise its jurisdiction .. Octavie 2\5 8. Upon the Belgian Consul protesting on the ground " that, in his opinion, the cause ought to be settled by Belgian Courts of Law," and the ship being laden ready for a voyage to Ostend, the Court dismissed the suit of the Belgian master. Octavie 215 COSTS. Co-plaintiiTs are severally liable for the whole of the costs. Leda 19 COSTS AND DAMAGES. 1. A plaintiff filing a caveat release in his own action after a bail bond duly executed, condemned in costs and damages. Corner 161 2. A vessel having been arrested in a cause of collision, and the suit having been dismissed vrith costs, the plaintiff obtained leave to detain her for twelve days, that he might have time to consider whether he would appeal. On the thirteenth day the. vessel was released. — Held, that the defendant was entitled to damages for the twelve days' detention. Cheshire Witch 362 ll2 506 INDEX. CROWN. 1. The 18 & 19 Vict, c. 90, authorizing costs to be given to or against the Crown, applies only to proceedings in which the Attorney-General or Lord Advocate is a party. Leda 19 2. In a cause of collision instituted on behalf of her Majesty in her office of Admiralty, and of the commander and crew of one of her Majesty's ships, against a private shipowner; the Court, on finding for the defendant, declined to con- demn the Crown in costs, but condemned the commander and crew to pay the whole of the costs . . . . Leda 19 DAMAGES. See Measure op Damages. DOMICILE. Where the Admiralty Court Act, 1861, confers a right to sue the ship, unless the owner is "domiciled" in England or Wales at the date of the institution of the cause, the word domiciled is to be taken in its legal sense. The fact that the owner is at such date out of England and Wales is immaterial, if he be " domiciled " there . . Pacific 243 FOREIGN LAW. See Bills of Lading, II. 1— Bottomry, 1, 2, 3, 4— Collision, V. 1. FREIGHT. See Affreightment, 1, 2, 3, 4, 5 — Bills of Lading, II. 1, 2, 3, 6, 14, 15 — Bottomry, 10. GENERAL AVERAGE. See Affreightment, 2— Bills of Lading, II. 3, 14, 15. INSURERS. 1. The former practice of the Court was to permit only the master or owners of a ship arrested to appear and defend. But the Court will allow the insurers of the ship to defend (on terms) if they show a substantial interest which may be prejudiced by the plaintiff proceeding to judgment. Regina del Mare 315 2. A ship having been arrested in a cause instituted in the Ad- miralty Court, and the owliers not appearing, the foreign insurers then entered an appearance and applied for leave to defend, upon the ground that if the ship was sold by the Court, they might be made responsible to the owner for a total loss. The Court granted the application upon their giving security for costs . . . , Regina del Mare 315 3. In another action brought for necessaries against the same ship, no appearance having been entered for the owner, the same insurers appeared and paid the amount of the claim into Court, making at the same time an offer to pay costs. The Court rejected a motion on behalf of the plaintiff to sell the ship as for want of appearance. . Regina del Mare 315 INDEX. 507 JETTISON. See Bills of Lading, II. 14, 15. JOINT CAPTURE. See Slave Bounties. JURISDICTION. See Bills of Lading, I.— Collision, I.— Master's Wages— Necessahies— Salvage, III., IV. LIEN. 1. The mere demand of an excessive sum by a creditor holding a lien does not dispense with a tender from the debtor of the sum really due ; but if the demand of the larger sum be so made that it amounts to an announcement that it is useless to tender any smaller sum,— BeW, aflBrming the judgment of the Admiralty Court, that this dispenses with any tender, even if it appears that the debtor was unwilling to tender the amount really due . . . . Norway (P. C.) 404 2. A creditor having a lien upon a debtor's goods for an unli- quidated amount, that amount being dependent upon a complicated account, the particulars of which are partly in possession of the creditor alone, the creditor waives any tender for the amount really due, if on demand of the goods he wilfully withholds from the debtor the information, in- cluding papers necessary to enable him to ascertain the amount due . . . . . . . . . . Norway 21111 3. The Court of Admiralty is bound to recognize a possessory lien for freight and general average contribution. Cargo ex Galam (P. C.) 167 See Affreightment — Maritime Lien — Prece- dence OF Liens— Salvage. LIEN FOR FREIGHT. See Affreightment-Bills of Lading, II. 1, 2, 14, 15. LIGHT-S-HIP LOG. The Court of Admiralty will admit in evidence a light-ship log, on production by the officer of the Trinity House, in whose custody such logs are kept, without requiring the evidence of the person who made the entries. Such logs admitted to be proved by examined copies . . Maria Das Dores 27 LIMITED LIABILITY OF SHIPOWNERS. 1. The 54th section of the 25 & 26 Vict. c. 63, with respect to limited liability, applies equally to British and foreign ves- sels. The owner of a British ship sued (in rem) by the owner of a foreign ship for damages occasioned by a col- lision between the two ships on the high seas, is entitled to limited liability Amalia (P. C.) 151 2. The owner may claim, limited liability without admitting that the negligence of his servants contributed to the collision. Amalia (P. C.) 151 508 INDEX. LIMITED LIABILITY OF SIIIVOWNERS— continued. 3. Unregistered as well as registered owners are entitled to limited liability under the statute. Spirit of the Ocean 336 4. If the loss is occasioned by the actual fault of one of several part-owners, his co-owners are not thereby precluded from a right to the limited liability given by the statute. Spirit of the Ocean 336 5. On the 24th July, Gary junior, a registered part-owner of a vessel, transferred his shares, by bill of sale, to Gary senior. This bill of sale was not registered until after the 22nd November, on which day a collision took place, Gary junior being on board and in command of the vessel as master. It was not denied that he personally was in fault. On a cause for limited liability being instituted by Gary senior, and by all the registered owners of the vessel except Gary jvLnior-.—SeM, that they were all entitled to the privilege of limited liability given by the statute. Spirit of the Ocean 336 MARITIME LAW. See Bottomry, 1-Collision, V. MARITIME LIEN. 1. A maritime lien follows the ship into whosesoever hands she may pass, and may be enforced after a considerable lapse of time ; but to affect the rights of third persons, rea- sonable diligence in its enforcement must be used, other- wise the lien may be lost. Reasonable diligence means, not the doing of everything possible, but of that which, having regard to all the circumstances, including consideration of expense and diflBiculty, can be reasonably required. Europa\V. G.) 89 Maritime lien allowed under the circumstances to be enforced three years after it accrued . . Europa (P. C.) 89 2. A master delayed to enforce his maritime li^n for wages against the ship for ten months after his discharge. In the interim the ship had been mortgaged without notice of his claim. — Meld, that he was not estopped from enforcing his claim Chieftain 212 3. A master was hired by one who had fraudulently obtained possession of the ship, and discharged bis duties in ignorance of his employer's fraud iSeld, that he had a maritime lien on the ship for his wages and disbursements . . Edwin 281 4. The release by the master of his right of action against the shipowners for wages does not operate as a release of the ship from his lien for such wages . . . . Chieftain 212 INDEX. 509 MASTER, DUTY OF. See Affreightment— Bills of Lad- ing, II.— Bottomry— Stoppage in Transitu. MASTER, REMOVAL OF. The Court of Admiralty has power, under the 240th section of the Merchant Shipping Act, 1854, to remove the master of a ship, upon the application of any owner or part-owner, if it is satisfied that such removal is necessary : — Held, that the removal was "necessary," where the master had committed a fraudulent breach of trust against his owners, by making a payment of U. on ship's account, and fraudulently claim- ing 25Z. of the owners. The Court will make the order of removal on the application of one part-owner only, notwith- standing another part-owner (the ship's husband) is dis- sentient Royalist 46 MASTER'S LIEN FOR WAGES AND DISBURSEMENTS. 1. Held, that a master did not lose his lien upon a ship for wages due by delaying to enforce such lien for ten months after his discharge, notwithstanding he had an opportunity to do so. — Held, also, that a master may enforce such lien against persons who as mortgagees had in the interim be- come interested in the ship without notice of the lien. Chieftain 212 2. Semble, by operation of 4 Anne, c. 16, s. 17, and the 191st section of the Merchant Shipping Act (17 & 18 Vict. c. 104), the master of a ship has, like other seamen, six years to bring his suit for wages in the Admiralty Court. Chieftain 212 3. The fact that the master was hired by one who had fraudu- lently obtained possession of the ship will not prevent the master having a lien upon the ship for his wages and dis- bursements, if he has discharged his duties in ignorance of the fraud . . . . . . . . . . Edmin 281 4. The master's lien under 24 Vict. c. 10, s. 10, for disburse- ments on ship's account does not include a lien for mere liabilities, as upon a bill of exchange drawn by him upon the owner and dishonoured . . . . Chieftain 104 Edwin . . 281 5. A master is entitled to sue the ship for wages as " earned on board the ship " within the 10th section of the Admiralty Court Act, 1861, if he performed the duties of master, although during his service he did not sleep on board the ship, and many of his duties were performed oip shore. • Chieftain 104 He may also sue for disbursements made by him during such service on the ship's account . . . . Chieftain 104 6. The claim of a master for wages and disbursements preferred to the claim of a mortgagee . . . . Chieftain 104 510 INDEX. MEASURE OF DAMAGES. 1. In case of injury to goods by improper stowage, the merchant cannot recover against the shipowner loss upon a contract of re-sale, of which he (the shipowner) had no notice at the time of shipment St. Cloud 4 2. In cases brought in the Admiralty Court under 24 Vict. c. 10, the damages will be referred to the Registrar and Mer- chants, with instructions to follow the rules of the Courts of Common Law as to the measure of damages. . St. Cloud 4 MORTGAGEE. The second mortgagee of f|th shares of a vessel instituted a cause under the 11th section of the Admiralty Court Act, 1861, and arrested the ship. He afterwards withdrew the suit. The owner of the remaining shares (who was not mortgagor to the plaintiflF) thereupon applied to the Court to condemn the plaintiff in costs and damages. — Seld, that he was entitled to his costs of suit, but not to any damages occasioned by the arrest and detention of the vessel. Volant 321 See Precedence of Liens. NATIONALITY OF SHIP. See Ship. NECESSARIES. 1. A ship if beneficially owned by foreigners at the date of the supply of necessaries, but carrying a British flag and re- gister, is a foreign ship within the meaning of the statute 3 & 4 Vict. c. 65, s. 6 . . . . Princess Charlotte 75 2. A claim for necessaries supplied to a foreign ship may be en- forced by proceedings in rem under the 6th section of the 3 & 4 Vict. c. 65, notwithstanding a subsequent bona fide transfer to a British owner ; and this remedy is not taken away by the 5th section of the Admiralty Court Act, 1861, though the British owner be domiciled in England at the time of the institution of the cause . . Ella A. Clark 32 3. The 5th section of the Admiralty Court Act, 1861, does not apply to ships foreign-owned at the time when the neces- saries were furnished Ella A. Clark 32 4. Under the 5th section of the Admiralty Court Act, 1861, the party'supplying necessaries to a ship acquires no maritime lien, but only a right to sue the ship : his claim against the ship accrues only upon his institution of the suit, and is therefore subject to any registered mortgage at that time subsisting on the ship Pacific 243 INDEX. 511 ORDER IN COUNCIL. 27 August, 1860. 1 (Constantinople Consular Court). 9 January, 1863. ) Laconia (P. C.) 117 9 January, 1863. (Sailing Regulations). Great Eastern (P. C) 287 ORIENTAL STATES. In almost all transactions, whether political or mercantile, a wide difference subsists in the dealings between an Oriental and a Christian state, and between two Christian states. Laconia (P. C.) 117 See also Consular Jurisdiction. OWNERS. 1. Under the 8th section of the Admiralty Court Act, 1861, the Admiralty Court may order an account to be taken between co-owners relating to matters which took place before the date assigned for the Act to come into operation, and relating to a ship lost before the institution of the cause. Idas 65 2. The master of a ship who held ^-f-th shares having com- mitted a fraud against his owners, an application under the 240th section of the Merchant Shipping Act, by the owner of Ifth shares for his removal was granted; notwithstanding dissent of the owner of the remaining 16 shares. Royalist 46 See Limited Liability. PARTIES. 1. The practice in the Admiralty Court is for the original owners of maritime property to be the parties in a cause, although they have abandoned the property to underwriters and re- ceived from them payment as for a total loss. Cargo ex Qalam (P. C.) 167 2. The former practice of the Court was to permit only the master or owners of a ship arrested to appear and defend. But the Court will allow the insurers of the ship to defend (on terms) if they show a substantial interest, which may be prejudiced by the plaintiff proceeding to judgment. Meg'ina del Mare 315 PILOTAGE. See Collision, IIL POSSESSION FEES. * A British ship having been arrested for a collision which took place before the passing of the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), was left under arrest in charge of the Admiralty marshal. Upon the cause being determined in favour of the plaintiffs, the ship was 512 INDEX. POSSESSION FEES— continued. sold by order of the Court.— Be/c?, that the plaintiffs were only entitled to the nett proceeds of the ship (i. e. the gross proceeds less possession fees and marshal's charges), together with costs of suit and interest, the amount of interest to be referred to the Registrar Europa 210 PRACTICE. I. Pleading. 1. The Court will not, at the hearing of a cause of collision, allow a plea to be added, alleging that the vessel proceeded against was in charge of a licensed pilot, and that the acci- dent was caused by his default . . Alhambra 286 2. Where the Plaintiffs pleaded that the collision was caused by the defendants' .vessel having " suddenly put her helm a starboard," and the evidence given in support of the petition was that the collision was caused by the defend- ants' vessel having ported, instead of continuing her course under a starboard helm : — Held, by the Court of Appeal, confirming the judgment of the Court below, that the evi- dence could not be applied to the statement in the petition, andthafthe Plaintiffs were therefore not entitled to recover. Masnell (P. C.) 247 3. The plaintiffs, in a cause of collision, alleged in their petition, in two separate articles, that the helm of the defendants' vessel was not duly ported, and was improperly starboarded. They also produced witnesses who deposed that the de- fendants' vessel had starboarded, and that the collision was thereby occasioned. The finding of the Court was, that the collision was occasioned by the helm of the defendants' vessel not having been duly put to port : — Meld; that the plaintiffs were not barred from recovering by the rule con- fining the plaintiffs' right to recover secundum allegata et probata Amalia (P. C.) 311 II. Evidence. 1. The Rules of 1859 do not abridge the discretion of the Judge of the Admiralty Court to admit fresh evidence on an appeal from a report of the Registrar; but such discretion is to be exercised with great caution, and with a careful regard to the peculiar circumstances of each case. Flying Fish (P. C.) 436 %, The log of a light-ship kept officially may be admitted in evidence, and may be proved by an examined copy. Maria Das Dares 27 III. Miscellaneous. 1. The amount in which a cause has been instituted, may, by permission of the Court, be increased before the hearing. M(eander{V. C.) 29 INDEX. 513 FRAGTICE— continued. 2. The precipe to institute an action having been by mistake entered in a smaller sum than that intended, the defendant's ship was arrested and bailed in that sum. On the mistake being discovered before the hearing of the cause, the Court gave permission (on payment of costs occasioned by the mistake) for the prsecipe to be amended, and the defendant's ship to be re-arrested Sero 447 3. The practice in the Admiralty Court is for the original owners of maritime property to be the parties in a cause, although they have abandoned the property to underwriters and re- ceived from them payment as for a total loss. Cargo ex Qalam (P. C.) 167 4. The former practice of the Court was to permit only the master or owners of a ship arrested to appear and defend. But the Court will allow the insurers of the ship to defend (on terms) if they show a substantial interest, which may be prejudiced by the plaintiflF proceeding to judgment. Regina del Mare 315 A ship having been arrested, and the owners not appear- ing, the foreign insurers entered an appearance and applied for leave to defend, upon the ground that if the ship were sold by the Court, they might be made responsible to the owner for a total loss. The Court granted the application upon their giving security for costs. .Begina del Mare 315 In another action brought for necessaries against the same ship, no appearance having been entered for the owner, the same insurei's appeared and paid the amount of the claim into Court, making at the same time an oflFer to pay costs The Court rejected a motion on behalf of the plaintiff to sell the ship as for want of appearance. . Megina del Mare 315 5. Where the defendant, being in adequate possession of the facts, gave his consent to a decree of the Court pro- nouncing for the validity of a bottomry bond, the Court refused, at the defendant's application, to rescind the decree, though the facts might possibly raise a valid defence ac- cording to a decision pronounced subsequently to the de- cree . . . . . . . . . . . . Olenburn 62 6. If the Court has not in fact jurisdiction, a defendant is not prejudiced by an absolute appearance . . Eleonore 185 7. A. sued the ship for damages occasioned by a collision; the ship was released on bail being given in the amount of the action. B. also sued the ship ; the ship was sold by order of the Court, and after satisfying B.'s claim, part proceeds of the ship remained in the Registry. A.'s claim was pronounced fqr, and on investigation proved to exceed the 614 INDEX. FRACTIGE— continued. amount of the bail. — Meld, that the Court could not, under its general authority, or under the 15th section of the Ad- miralty Court Act, 1861, order the proceeds remaining in the Registry to be applied to satisfy A.'s damages, or interests or costs . • . . • ■ Wild Sanger 84 8. A vessel having been arrested in a cause of damage, and the suit having been dismissed with costs, the plaintiff ob- tained leave to detain her for twelve day, that he might have time to consider whether he would appeal. On the thirteenth day the vessel was released. — Meld, that the defendant was entitled to damages for the twelve days' detention . . . . . . . . Cheshire Witch 362 9. In the case of the witnesses being foreign seamen, a reason- able charge incurred for agency or interpretation may be allowed . . . . . . . . . . . . Karla 367 10. A party in a cause is not bound to examine any of his wit- nesses before the hearing; and if judgment is given in his favour with costs, he is in general entitled, with respect to seamen who are reasonably detained by him as necessary witnesses, to the expenses of maintaining them to the time of the hearing Karla ^Ql PRECEDENCE OF LIENS. 1. In November, 1861, A. supplied necessaries to a ship regis- tered in England. On the 12th December, 1861, B. became a registered mortgagee of the ship, and A. subsequently instituted a cause of necessaries against the ship. — Meld, that the mortgage of B. had priority over the claim of A. for necessaries . . . . . . . . . . Pacific 243 2. A cargo which had been discharged from a condemned Fi'ench vessel was lying in the island of Terceira. The owner in England chartered a ship for a lump sum to go out and bring the cargo to one of several ports (according to orders to be given at Sciliy or Falmouth, the port of call) ; one of these ports was Hamburgh. In accordance with this charter the ship proceeded to Terceira, and took on board the cargo, upon which, unknown to the shipowner, who also acted as master, there was a respondentia bond given to pay other expenses than the expenses of carrying on, and made pay- able at Falmouth, which was not one of the ports of desti- nation specified in the charter. In the voyage to England the ship was stranded at Scilly, and general average ex- penses were incurred,' and the cargo was landed and stored ■ (23rd February) in the shipowner's name. The chartei'er, who was aware of the bond, ordered the shipowner (25th February) to carry the cargo to Hamburgh. Thereupon INDEX. 515 'RECEDENCE OF LIETHS— continued. the cargo was arrested by Admiralty warrant (4th March) at the suit of the respondentia bondholder. The owner not appearing, nothing was done by any party until the 23rd May, when the cargo was removed to London by order of the Court, and then sold. The shipowner, however, in the meanwhile, settled with his underwriters on ship and freight, upon the terms of a total loss. The legal origin of the bond was not disputed. — Held, reversing the decision of the Admiralty Court, that the shipowner was prevented from carrying on the cargo by the default of the owner ; that he therefore had a possessory lien on the cargo for his full freight and general average; and that such lien must be satisfied in preference to the respondentia bond, upon the ground that so carrying the cargo, the shipowner had ren- dered services in the nature of salvage to the bond. Cargo ex Galam (P. C.) 167 3. The claim of a master for wages and disbursements preferred to the claim of a mortgagee . . . . Chieftain 104 ROCEEDS. 1 . Where a ship has been sold by order of the Court, and the proceeds are in the registry, such proceeds are not " money belonging to the owner of the ship" (1 & 2 Vict. c. 110, s. 12), nor a "debt owing" to them (17 & 18 Vict. c. 125, s. 61) Wild Banger 84 2. In a cause of collision, the ship was liberated on bail ; the damages proved to exceed the amount of such bail. In another action brought by other parties the ship was sold, and their claim having been satisfied, a balance remained in tlie registry. — Held, that the Court could not, under its general authority or under the 15th section of 24 Vict. c. 10, order such balance to be applied in satisfaction of the damages, interest or costs in the collision cause. Wild Ranger 84 E-ARREST. The praecipe to institute a cause having been by mistake en- tered in a smaller sum than that intended, the defend- ant's ship was arrested and bailed in that sum. On the mistake being discovered before the hearing of the cause, the Court gave permission to the plaintiff", on payment of costs occasioned by the mistake, to amend the prsecipe, and re-arrest the defendant's ship . . . . . . Hero 447 EASONABLE TIME. See Bahia, 292. EGISTER. The 107th section of the Merchant Shipping Act, 1854, makes the register prima facie proof of disputed British nationality ; but such inference may be overborne by circumstantial evi- dence to the contrary . . . . Princess Charlotte 75 516 INDEX. RULES. Admiralty Court Rules (1859), 10 . . . . Octavie 215 42, 43, 51, 54 . . Corner 161 SALVAGE. I. Life Salvage. 1. The words "persons belonging to such ship," in the 458th section of "The Merchant Shipping Act, 1854," include passengers . . . . . . . . Fusilier (P. C.) 341 2. The owners of the cargo of a vessel to which salvage services have been rendered are liable under the 458th section of " The Merchant Shipping Act, 1854," to contribute to that portion of the claim of the salvors which arises from the saving of the lives of persons belonging to the ship. Fusilier(P. C.) 341 3. Tlie Mersey Docks and Harbour Board, acting in pursuance of enabling powers given them by their Dock Act (21 & 22 Vict. c. xcii. s. 109), entered into an agreement with certain steam-tug companies at Liverpool, whereby the companies undertook that at all times, in day and night, one of certain specified steam-tugs should always be in readiness to pro- ceed, and should, on signal given, proceed with one of the Liverpool life-boats to any ship in distress within certain limits, the Board contracting to pay fifteen guineas for each occasion. The agreement contained a proviso, that nothing contained in the agreement should prejudice or aifect the rights of the steam-tug companies in regard to services in saving ships or other property to be rendered by their steamers. One of the steam-tugs specified, belonging to one of the companies, in pursuance of a direction received from the mate of the landing-stage, who was a servant of the Dock Board, towed out a life-boat to a vessel in distress, and brought the master and crew into Liverpool, then re- turned and brought the ship and cargo in also. In an action for salvage against ship and cargo, instituted by the owners, master and crew of the tug, — Meld, that the agree- ment between the Dock Board and the tug companies did not bar or afiect the plaintiffs' claim to reward for salvage of life Pensacola 306 1 1. Salvage supervening Towage. A tug engaged under the ordinary contract to tow, may, by the performance of substantial salvage services in saving the ship towed from supervening danger, earn salvage reward, though not herself incurring risk . . . . Pericles 80 INDEX. 517 SALVAGE — continued. III. Summary Jurisdiction of Magistrates. 1. " The Merchant Shipping Act, 1854," and the Amendment Act, 1862, combined, take away the jurisdiction of the Ad- miralty Court from all cases of salvage, whether rendered within the United Kingdom or not, in which the sum claimed does not exceed 200Z., or in which the value of the property saved does not exceed 1,000Z. William and John 49 2. The words "sum claimed" in sect. 460 of "The Merchant Shipping Act, 1854," mean sum claimed by the salvors before any legal proceedings are taken . . William and John 49 3. Where the value of the property saved does not exceed 1,OOOZ. the Court will, notwithstanding an absolute appearance has been given by the defendant, refuse to proceed in the salvage suit, on the ground that the statutes prohibit the Court to exercise jurisdiction . . . . . . . . Louisa 59 4. It is immaterial to this question that the party defending is the mortgagee, and not the owner of the ship. The word " owners " in 17 & 18 Vict. c. 104, s. 460, if necessary, extends to all persons interested in the property. . Louisa 59 5. An agreement between the salvors and shipowner as to re- muneration does not give the Court of Admiralty jurisdic- tion ; but may induce the Court to grant a certificate for costs, where the suit is duly brought for an amount exceed- ing 200Z., and a smaller sum is decreed to the salvors. William and John 49 6. By the 460th section of " The Merchant Shipping Act, 1854," and the 49th section of the Amendment Act, 1862, the Court of Admiralty has not jurisdiction to determine and award the amount of salvage due, if the value of the property saved is proved not to exceed 1,000^., but, nevertheless, it retains jurisdiction to condemn in costs and damages salvors so wrongfully arresting property and for other collateral purposes Kate 218 7. No general rule can be laid down as to condemning salvors in costs and damages for arresting in the Admiralty Court property of less value than 1,OOOZ Eleonore 185 8. The fact that the airest was made without verbal claim, and for a sum disproportionate to the value of the property and the services rendered, will be evidence that the arrest was made negligently Eleonore 185 9. The Court will not decree for damages unless the circum- stances show mala fides or crassa negligentia on the part of 518 INDEX. SALVAGE— continued. the salvors in arresting, whereof the fact that the salvors arrested without first obtaining a valuation of the property from the receiver of wreck (as provided for by sect. 50 of 25 & 26 Vict, c. 63) is not conclusive evidence. Kate 218 IV. Appeal from Justices. 1. The 464th section of the Merchant Shipping Act provides, that no appeal shall be allowed from a salvage awai'd of justices " unless the sum in dispute exceeds 601." — Held, that the "sum in dispute" means the sum claimed by the salvors . . Mary Anne 334 Salvors sent in a formal demand in writing for 40Z. j on being refused, they claimed before the justices " a sum not exceeding 200Z." The justices found no salvage was due ; the salvors appealed to the Admiralty Court. — Held, that " the sum in dispute" was the 40Z. thus claimed, and that therefore the Admiralty Court had no jurisdiction to enter- tain the appeal , . . . . . . . Mary Anne 334 2. The words "sum in dispute" in the 464th section of the Merchant Shipping Act, 1854, do not mean the sum awarded by the justices and appealed against ; and where the only evidence of the sum in dispute is ^hat the salvors claim before the justices "a certain amount of salvage not exceeding 200Z.," an appeal from the award of the jus- tices lies to the Admiralty Court . . Andrew Wilson 56 V. Miscellaneous. . 1 . Tlie value of the salvors' property endangered in the service . does not limit their salvage remuneration to that sum. Fusilier (P. C.) 341 2. In the case of a derelict the salvors have a right to exclusive possession of the vessel; but unless the vessel has been utterly abandoned, and is in contemplation of law a dere- lict, the occupying salvors are bound to give up charge to the master on his appearing and claiming charge ; and the master may then refuse to continue to employ them, and may employ others, and may take what measures he thinks fit for the preservation of the vessel . . Champion 69 A vessel having run on shore, and been got off water-logged and disabled, was anchored, and the master then quitted with all his crew to obtain assistance. On the next day he returned with a steamer, and found that salvors had just . taken possession. — Held, that the vessel was not a derelict, and that the master was entitled to resume full authority. Champion 69 INDEX. 519 SALVAGE — continued, 3. Ship and cargo must each pay its own share of salvage ; neither can be made liable for the salvage due from the other; whether the salvors proceed in the Admiralty Court, or before the local magistrates . . . . Pyrennee 189 4. In order to deprive a seaman of his right to share in salvage, neither the agreement for the vessel to be employed in salvage services, nor the stipulation that the seaman shall waive his claim for salvage need be in veriting to satisfy the 18th section of "The Merchant Shipping Amendment Act, 1862," but both must be clearly proved by those who dispute the seaman's right . . .. Pride of Canada 208 5. On suits by rival salvors being heard together, the witnesses called on behalf of one set of salvors will be liable to cross- examination, first on behalf of the rival plaintiffs, and then on behalf of the defendants . . . . Philadelphia 28 SHIP (NATIONALITY OF). A ship's register containing a statement of British ownership, even if by the 107th section of the Merchant Shipping Act, 1854, made primA facie proof of such ownership, may be outweighed by circumstantial evidence to the contrary. Princess Charlotte 75 SLAVE BOUNTIES. 1. The governor of a colony, being the person to whom the general management of the colony is entrusted, is the per- son entitled to the bounties payable in respect of a seizure of slaves, even though he is absent from the colony at the time the seizure is made . . . . Sierra Leone Case 148 2. A Queen's ship, which is authorized to capture slave ships, being in sight during the chase and capture by another ship of war of a vessel equipped for the slave trade, is en- titled to share as joint captor in the tonnage bounties awarded under 1 & 2 Vict. c. 47, unless the animus ca- piendi is clearly rebutted. In establishing a claim to joint capture of a vessel equipped for the slave trade, proof that the alleged joint captor was seen by those on board the prize before capture is important, but is not absolutely re- quired as in cases of prize of war. At daylight on a morn- ing nearly calm, her Majesty's steamships Falcon and Dart were in company, each under canvas only; each had authority to capture yessels engaged in the slave trade ; but the Falcon was on her voyage home. A vessel, which afterwards proved to be equipped for the slave trade, ap- peared in sight of both ships : the Dart got up steam and went in chase. The captain of the Falcon, deeming the B.L, M M 520 INDEX. SLAVE BOVNTIES— continued. Dart sufficient for the purpose, did not get up steam, but continued his course. The chase lasted a few hours only ; and the capture by the Dart took place in daylight, in sight of those on deck of the Falcon, at the distance of about seven miles. The prize was destroyed as unsea- worthy. Proceedings of adjudication subsequently took place, and bounties were awarded under the 2 & 3 Vict, c. 73; 1 & 2 Vict. c. 47, s. 2.— Meld, that the Falcon was entitled to share as joint captor. Brig, name unknown 370 STATUTES REFERRED TO. 4 Anne, c. 16, s. 17 — Chieftain 7 Geo. I. c. 21, s. 2 — India. . 5 Geo IV. c. 113, ss. 26, 28, 38— Slave Bounties Case 6 Geo. IV. c. 125, s. 59— Stettin (P. C.) . . 11 Geo. IV. & 1 Will. IV. c. 55, s. 1- 212 221 148 199 -Slave Bounties Case. 148 1 & 2 Vict. c. 47, s. 2 — Brig, name unknown 1 & 2 Vict. c. 110, s. 12— Wild Banger . . 2 & 3 Vict. c. 73 — Brig, name unknown . . 3 & 4 Vict. c. 65, s. Q—Ella A. Clark . . „ Princess Charlotte „ Robert Pan 6 & 7 Vict. c. 94— iacom'fl (P. C.) 17&18Vict. c. 104, s. 11— Volant s. 107 — Princess Charlotte . 370 84 370 32 75 99 117 321 75 s. 191— Chieftain 212 s. 2^— Royalist 46 B. 297— Mceander 29 s. 374— ^eia (P. C.) . . . . 328 s. 379— Stettin (P. C.) . . . . 199 Lloyds .. . . . ■ 359 s. 3&^— Carrier Dove (P. C.) . . 113 S3. 458, 459 — Pensacola- . . . . 306 Fusilier {V.C.) .. 341 s. 4t&0— William ^ John .. ..49 Louisa . . . . . . 59 Pyrennee .. . . . . 189 s. 464:— Andrew Wilson . . . . 56 Mary Anne . . . . 334 s. 468—Eleonore 185 Pyrennee . . . . . . 189 17 & 18 Vict, c, 125, B. 61— Wild Ranger .. . . 84 18 & 19 Vict. c. 90— Leda 19 18 & 19 Vict. c. Ill, s. 1— Norway 377 „ mUne{P.C.) .. 415,429 INDEX. 521 STATUTES REFERRED HO-continued. 24 Vict, c. 10, s. 5- -Ella A. Clark .. 32 Pacific .. 243 9t s. 6- -Kasan .. 1 Norway 226,377,404 Selhne . 415, 429 St. Cloud .. 4 Tigress .. 38 Bahia .. 61 Danzig .. 102 s. 7- -Malvina .. 57 Bobert Pom .. 99 s. 8- -Idas .. 65 s. 10- -Chieftain .. 104 Octavie .. 215 Edwin .. 281 s. 11- -Volant .. 321 s. 15- -Wild Manger .. 84 s. 33- -HeUne (P. C.) .. 425 25 & 26 Vict. c. 63, 3. 18— -Canada .. 208 1 !. 49— William ^ John .. 49 Louisa .. 59 Eleonore .. 185 Kate .. 218 s i. 54—Amalia (P. C.) .. 151 Spirit of the Ocean . .. 336 £ . Ql— Norway . 377, 404 STATUTES. I, Repeal. 1. No statute can lose its force by non-user alone. Presumption is against repeal of a statute by implication; but a sub- sequent statute, though not expressly referring to it, will be taken to have repealed a prior one if the provisions of the two statutes are incompatible with each other, or would lead to absurd consequences . . . . . . . . India 221 2. The 7 Geo. I. c. 21, s. 2, prohibiting loans of bottomry by British subjects, upon foreign ships engaged in the East India trade, is repealed . . . . . . India 221 II. Retrospective operation of . . . . . . Idas 65 STOPPAGE IN TRANSITU. 1. A merchant who purchases goods on his own credit for another, to whom he indorses a bill of lading of the goods, stands, for the purpose of stoppage in transitu, in the position of vendor ; and the indorsement by him of one bill of lading to the vendee does not of itself defeat his right to stop in transitu Tigress 38 MM 2 522 INDEX. STOPPAGE IN TRA'NSITV -continued. 2. The vendor claiming to stop need not represent to the master that the bill of lading is still in the hands of his vendee. Tigress 38 3. Upon the vendor asserting his right to stop in transitu, the master, unless aware of some legal defeasance of such right, is bound to deliver the goods to him ; and his refusal so to deliver constitutes a "breach of duty" within the 6th section of the " Admiralty Court Act, 1861," for which the ship will be liable Tigress 38 4. A master is justified in delivering goods to the holder of the first bill of lading presented .. .. .. Tigress 38 5. If the vendee of goods having received from the vendor an indorsed bill of lading, making the goods deliverable to order or assigns, indorses and delivers it to a banker as a security for past and future advances, the banker's claim upon the goods for all such advances will prevail against a claim of the unpaid vendor to stop the goods in transitu. Marie Joseph (P. C.) 449 6. The vendee of goods having received from the vendor an indorsed bill of lading, making the goods deliverable to order or assigns, and having given an acceptance for the price, returned the bill of lading to the vendor to hold "as security against the acceptance until the goods are sold or the vessel arrives," and afterwards, by fraudulent representation, again obtained possession of the bill of lading from the vendor, and negotiated it by indorsement and delivery to a third person, who took without notice of the fraud: — Held, reversing the judgment of the Admiralty Court, that the vendee's fraud did not vitiate his power to pass a good title to a third person by indorsement, and that the right of such third person under the indorsement should prevail against the claim of the unpaid vendor to stop the goods in transitu. Marie Joseph (P. C.) 449 TENDER. 1. A tender of money due may be waived by the creditor per- sisting in making an excessive demand, and refusing to listen to any proposition to take less . . . . Norway 377, 404 2. A creditor having a lien upon a debtor's goods for an unascertained amount, dependent upon a complicated account, the particulars of which are partly in the possession of him, the creditor, alone, will be held to waive any tender for the amount really due, if on demand of the goods he wilfully withholds from the debtor the information (including papers) necessary to enable him to ascertain the amount due Norway 377 INDEX. 523 HENBER-eontimed. 3. The mere demand of an excessive sum by a creditor holding a lien does not dispense with a tender from the debtor of the sum really due; but if the demand of the larger sum be so made that it amounts to an announcement that it is use- less to tender any smaller sum -.—Held, that this dispenses with any tender, even if it appears that the debtor was un- willing to tender the amount really due . . Norway 377, 404 USAGE. Laconia (P.C.) 117 WAGES. 1. The protest by a foreign Consul against the continuance of a wages cause against a foreign vessel does not deprive the Court of jurisdiction ; but the Court will use its discretion whether or not to exercise its jurisdiction . . Octavie 215 2. Upon the Belgian Consul protesting on the ground " that in his opinion th'e cause ought to be settled by Belgian Courts of Law," and the ship being laden ready for a voyage to Ostend, the Court dismissed the suit of the Belgian master for his wages .. .. .. .. .. Octavie 215 3. If there be a doubt as to the interpretation of a seaman's contract, the contract is to be interpreted favourably to the seaman . . . . ... . . . . Nonpareil 355 A seaman signed articles at New York to serve on board a British ship on a voyage to terminate either in the United States or in the United Kingdom, "amount of wages per month" to be "50 dollars." At the time of making this contract there was an inconvertible paper dollar currency in the United States, and the actual exchange value of the paper dollar in English currency was then 2s. 8^d. It afterwards further depreciated in value. The voyage terminated at Liverpool in the United Kingdom, and the seaman was there discharged. Upon evidence that for twenty-five years past seamen discharged from American ships in London or Liverpool received their wages at the rate of 4s. 2d, a dollar : — Seld, that the parties contracted subject to this usage, and that the seaman was entitled to have the dollars reckoned at the value of 4s. 2d. Nonpareil 355 4. The release by the master of his personal claim against the shipowner for wages does noir operate as a release of the ship from his lien for such wages . . . . Chieftain 212 WAIVER. See Tender. WITNESSES. See Practice, IIL, 9, 10. CORRIGENDA. Page 61, firsfhe^ note— for "7th" substitute "6th". Page 74, line 12-^?SKi' ; and the " substitute " ■ The ". Page 226, third head not&^s^r " hefore he is entitled to delivery of the goods ; at least if he is entitled to^uMbr non-delivery," substitute " if he is entitled to sue for non-delivery of the gS»d|: and semble hefore he is so entitled." Page 301, line 19— for "neutral" substitMS